Shaping Child Rights Globally: The International Law-Making Process

Every major international human rights standard that exists today – including those protecting children – went through a painstaking, often politically charged process before it became binding law. A treaty doesn’t simply appear because well-meaning governments agree on a problem. It is built, negotiated, adopted, signed, ratified, and only then brought into force. Understanding this process is essential for anyone studying international law, because it reveals how global norms are created, why they sometimes fall short, and what it actually means for a country like India to be bound by them. The Convention on the Rights of the Child (CRC) – the most widely ratified human rights treaty in history – is the perfect lens through which to study this entire process.

How international law gets made: the basics 🔗

Domestic law is straightforward in one key respect: once a legislature passes a law and the executive approves it, that law binds everyone within the country’s jurisdiction. International law works very differently. Even after states collectively adopt a treaty text, it has no immediate legal effect on any of them. Each state must separately consent to be bound – through signature, ratification, and eventually the treaty’s entry into force. This multi-stage structure exists because sovereign states cannot be bound by rules they have not accepted, which is a foundational principle of the international legal order.

The framework governing this entire process is the Vienna Convention on the Law of Treaties, 1969, which lays out the rules for how treaties are negotiated, adopted, signed, ratified, and brought into force. Think of it as the treaty about treaties.

Stage 1: Negotiation and drafting 🔗

The first stage is the drafting period, where representatives of states sit together and negotiate the rules that should go into a convention. This is where the real political work happens – differing national interests, cultural values, and legal traditions must all be reconciled into a single text that enough states will be willing to accept.

The CRC’s drafting history illustrates just how complex this process can be. The process began with discussions triggered by the 1979 International Year of the Child, when Poland submitted a draft text to the UN Commission on Human Rights. That original Polish draft was then amended and expanded over a decade of deliberations by a working group that included government delegates, UN bodies, and – unusually for that era – non-governmental organisations (NGOs). A group of about thirty NGOs formed an informal ad hoc group in 1983, actively participating in discussions alongside government delegations. This inclusion of civil society was a significant development in the international law-making process.

The drafting phase is driven by consensus-building. States with different legal systems, political ideologies, and domestic realities must find language that everyone can live with. This is why treaty texts sometimes use broad or qualified language – it reflects the political compromises required to keep all parties at the table. Some of the most contentious debates during the CRC’s drafting involved issues like the right to freedom of religion for children and provisions around family planning, where states had fundamentally different positions rooted in cultural and religious values.

Stage 2: Adoption 🔗

Adoption is the formal act by which the form and content of a proposed treaty text are established. At this stage, states collectively agree that this version of the document is final. Treaties negotiated within an international organisation like the UN are typically adopted by a resolution of a representative organ of that organisation.

The CRC was adopted by the UN General Assembly on 20 November 1989 through resolution 44/25. The adoption was unanimous – a remarkable achievement for a text that had been in negotiation for a full decade. Unanimity at the adoption stage sends a strong political signal about the breadth of global consensus behind the document, even if not every adopting state would ultimately ratify it.

Adoption does not create any legal obligation. It simply closes the drafting stage and opens the document for the next phase.

Stage 3: Signature 🔗

After adoption, a treaty is typically opened for signature. Where a signature is subject to ratification, it does not establish consent to be bound, but it does serve as a means of authentication and expresses the willingness of the signing state to continue the treaty-making process. Importantly, a signed-but-not-yet-ratified state is already under an obligation – in good faith – not to take actions that would defeat the object and purpose of the treaty.

Signature also qualifies the state to proceed to ratification. Most commonly, countries that are promoting a convention sign shortly after it has been adopted, and then ratify once all domestically required legal procedures have been fulfilled.

A well-known example of a state that signed but never ratified is the United States. The US signed the CRC on 16 February 1995 but has not ratified it, making it the only UN member state to remain in this position. Despite having actively contributed to the drafting process – proposing the original text of several articles – domestic political opposition has blocked ratification for three decades. This illustrates that signing is a political signal, not a legal commitment.

Stage 4: Ratification 🔗

Ratification is where the treaty process becomes legally serious. Ratification is the international act whereby a state indicates its consent to be bound by a treaty, and it grants states the necessary time to seek domestic approval and enact implementing legislation. It is a two-step process: first, the appropriate national body (parliament, president, or a combination) formally approves ratification through domestic constitutional procedures; second, the state deposits its instrument of ratification with the treaty’s depositary – in the case of most UN treaties, the UN Secretary-General in New York.

Before a state can ratify, it must complete all necessary procedures at the national level, which are governed by national law and frequently the national constitution. National law determines whether ratification is to be approved by the executive or by parliament, and whether a treaty automatically becomes domestically binding once internationally binding, or whether separate implementing legislation is required.

India’s position here is instructive. India follows the dualist theory of international law, meaning that an international treaty does not automatically become part of domestic law upon ratification. India follows the dualist theory, and no treaty entered into by the President is enforceable by courts unless Parliament codifies it under Article 253 of the Constitution. This means ratification without corresponding legislation has limited practical impact on the ground.

India ratified the CRC in 1992. However, India also made certain reservations and declarations at the time of ratification. India ratified the CRC in 1992 and the Optional Protocol on the Involvement of Children in Armed Conflict in 2005, legally obliging itself to protect children under these frameworks. On Article 32 dealing with child labour, India declared that implementation would proceed progressively in accordance with national legislation – a reservation that reflected the political and economic realities of child labour in India at the time.

Reservations and declarations: the fine print of ratification 🔗

A crucial aspect of the ratification stage is the ability of states to attach reservations and declarations. A reservation excludes or modifies the legal effect of specific treaty provisions for that state. A declaration explains how the state interprets key provisions. Most treaties allow any reservation that does not defeat the purpose of the treaty, but a few only allow specified reservations, and an even smaller number allow none at all. Reservations are often a political necessity – they allow states with genuine domestic constraints to still join a treaty, widening global participation even if at the cost of uniform application.

The CRC itself specifies that reservations incompatible with the object and purpose of the convention shall not be permitted. This is a common safeguard in human rights treaties designed to prevent states from ratifying in name only while hollowing out all substantive obligations.

Stage 5: Entry into force 🔗

No country is actually bound by a treaty until it enters into force. The treaty itself specifies the conditions for this, either as a specific date or a set of circumstances – most commonly, a minimum number of ratifications. The CRC provided that it would enter into force on the thirtieth day following the deposit of the twentieth instrument of ratification or accession.

The CRC officially entered into force on September 2, 1990, when twenty member states ratified it – less than a year after its adoption, which was an extraordinarily rapid pace for a major multilateral treaty. By the end of that same year, 57 states had ratified it. The speed of ratification reflected the depth of global political will behind the convention.

For states that ratify after the initial entry into force, the treaty enters into force for them individually on the thirtieth day after their own instrument of ratification is deposited.

Accession: joining after the fact 🔗

Accession is the act whereby a state accepts the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. Accession usually occurs after the treaty has entered into force and is the route taken by states that were not part of the original negotiations or missed the window to sign. The conditions for accession depend on the provisions of the individual treaty.

This mechanism matters for universality. Many human rights treaties – including the CRC – use the accession mechanism to progressively widen their reach. By 31 December 2015, 196 countries had ratified or acceded to the Convention, making it the most universally ratified human rights instrument in history.

From ratification to implementation: the domestic challenge 🔗

Ratification is not the end of the process – it is the beginning of a state’s legal obligations. The real test of any international treaty is what happens domestically after ratification. States are required to ensure that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and enforced.

India’s post-ratification legislative record shows this in action. Following the CRC’s ratification, India enacted a significant body of child-focused legislation, including the Protection of Children from Sexual Offences (POCSO) Act 2012, the Juvenile Justice (Care and Protection of Children) Act 2015, and the Right of Children to Free and Compulsory Education Act 2009. These laws represent the translation of international standards into enforceable domestic rights. However, as scholars and UN bodies have noted, gaps between law on paper and law in practice remain significant – a challenge not unique to India, but one that underscores why the international law-making process cannot be judged by treaty ratification numbers alone.

Why this process matters: politics, power, and child rights 🔗

The international law-making process is not a purely technical exercise. Every stage – from the drafting room to the instrument of ratification – involves political choices. The decision to include or exclude a provision, to attach a reservation, to delay ratification, or to adopt implementing legislation is shaped by domestic politics, resource constraints, cultural values, and international pressure.

The CRC’s journey from a Polish draft in 1979 to near-universal ratification by the mid-1990s illustrates both the possibility and the limits of international consensus-building. It shows that states with very different legal traditions and political systems can agree on non-negotiable standards – in this case, that children have rights, not merely interests – while also showing that formal legal commitment does not automatically translate into meaningful protection. Understanding the process helps legal practitioners, advocates, and policymakers know where the pressure points are, and where intervention can actually make a difference.

What do you think? Given that India follows the dualist theory of international law, what legislative changes do you think are still needed to fully domesticate the CRC’s obligations into enforceable Indian law? And does the ability to attach reservations during ratification strengthen or ultimately undermine the purpose of a treaty like the CRC?

References

1. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
2. https://archive.unu.edu/unupress/unupbooks/uu25ee/uu25ee09.htm
3. https://treaties.un.org/pages/overview.aspx?path=overview/glossary/page1_en.xml
4. https://www.humanium.org/en/convention/signatory-states/
5. https://www.ohchr.org/en/treaty-bodies/crc/background-convention
6. https://www.ebsco.com/research-starters/law/united-nations-adopts-convention-rights-child
7. https://ask.un.org/faq/14594
8. https://www.unicef.org/child-rights-convention/how-convention-works
9. https://en.wikipedia.org/wiki/U.S._ratification_of_the_Convention_on_the_Rights_of_the_Child
10. https://en.wikipedia.org/wiki/Ratification
11. https://fctc.who.int/docs/librariesprovider12/default-document-library/stepsrequiredforratification.pdf
12. https://www.mjilonline.org/indias-noncompliance-with-international-law-on-childrens-rights-in-conflict-zones/
13. https://guides.library.lls.edu/treaties
14. https://jgjpp.regent.edu/wp-content/uploads/2021/12/THE-SUGGESTIONS-ON-THE-RIGHTS-OF-THE-CHILD.pdf
15. https://www.endcrsv.org/guidebook/crc/