Blog to Blog: Report from the Oxford HR Hub’s Traveling Fellow

The Oxford Human Rights Hub’s Traveling Fellow, Abby Buttle, has arrived in South Africa, and her first posting is of interest to US human rights lawyers.  Buttle began her fellowship by observing an oral argument in a case challenging the right of undocumented students to a basic education.  In the US, this issue is front and center as undocumented children stay home from school in reaction to aggressive immigration enforcement and due to fear of deportation, despite the U.S. Supreme Court precedent — Plyler v. Doe — stating that they cannot be denied basic education.  In fact, keeping these children from learning despite their constitutional protection seems to be an official administration policy.

In South Africa, the litigation challenging the government’s efforts to eject undocumented children from school turned in part on international law, including the Convention on the Rights of the Child.  196 countries have ratified that Convention, which turns 30 this year — on November 20 to be exact.  The United States is the only country in the world that has NOT ratified it.

Will the terms of the CRC dictate the outcome in the South African case? Probably not directly, as courts will look for domestic precedents.  

Would ratification of the CRC itself shift US policy?  Again, it’s not likely, particularly if the Administration has already shown its willingness to step around Supreme Court precedent to keep undocumented learners out of the classroom. 

But with treaty ratification, South African litigators and advocates can leverage the touchstone of the CRC to seek a more humane interpretation of domestic law. 

And without treaty ratification after 30 years, the US can continue to turn away from the human rights involved when kids are denied schooling, taken from their families, put in cages, and so on.