Why Ratifying Human Rights Treaties Matters for the United States
Last week, some of the hottest news in the United States was about the Convention on the Rights of Persons with Disabilities. “By Thor’s beard!” you might be thinking, “have Americans finally started to care about UN Conventions or non-Americans?”
Not so much, it turns out, or, at least, not enough. The Convention, up for a ratification vote in the US Senate, failed to meet its constitutionally required two-thirds super-majority to make it into law. Sixty-one senators voted in favor of the Convention: only five more were needed for ratification. News stories about the Senate voting down the global rights of Persons with Disabilities mention that the bill was championed by wounded veterans John McCain and Bob Dole, among others popular with Republicans, yet concerns about eroded sovereignty, abortion, bans on homeschooling, and more, won out over the daily plight of individuals who are blind, deaf, non-ambulatory, and suffering from a wide variety of diseases that prevent those individuals from participating in society without some accommodation. It’s outrageous!
Or is it? After all, the Convention was built upon the 1990 Americans with Disabilities Act, already in force in the US. Even those frustrated by the Republicans who prevented ratification believe that, since none of the things they were worried about were going to happen AND none of the things the treaty required of its signatories was affected by the US vote (the treaty is already in force elsewhere) this vote is not such a big deal. Other countries can go ahead and ratify the treaty (126 have already done so), and we’ll take it as a reminder of the dysfunction of the US government. No harm, no foul?
Human rights treaties are a meaningful way for states to express global norms on human rights so that emerging states and their citizens know what standards to accept and enforce as they join the global community (of course, developed states violate human rights, too, but the rationale is at least mostly to improve conditions in less-developed states). Each state lends its reputation and legitimacy to that treaty when it completes the ratification process: that legitimacy seems to be the piece missed by the prevailing discussion. In what follows, I will explain how this is the case, what this has to do with the Convention on the Rights of Persons with Disabilities, and how the United States abrogated its responsibilities in its ratification vote last week.
Claims against the Convention
First, let’s cover objections to this treaty in particular: after all, before we pass any treaty, we want to make certain it doesn’t actually make life worse for those in the United States, or so the theory goes. Consensus is pretty clear that this treaty would have had no adverse effect on the United States, but thirty-eight Senators voted against it. What gives?
Many senators claimed the Convention violated the sovereignty of the United States. On its face, this is a silly argument. The United States’ authority to exclusively manage its own internal affairs is not affected by this or any other treaty: yes, we consult with other nations in designing the treaty, but when we sign it and ratify, we decide for ourselves that it is something to which we agree. That’s the nature of treaties – the rules laid out therein, when accepted, are choices made by the government ratifying the treaty. If they don’t want them, they reject the treaty. Claiming that a signed-and-ratified treaty would infringe upon sovereignty is a failure of understanding the definition of “sovereignty” and how treaties work. Additional claims made, about how the body set up to make recommendations about improving respect for rights of those with disabilities is somehow impinging sovereignty, are again problematic, both for the definition fallacy above and because the body makes non-binding recommendations and has no sanctioning power(1). Finally, the United States can again veto the treaty at any time by un-signing it or, as many states already do, by simply ignoring its provisions: states are far more powerful in their local area than any international body. The sovereignty argument is frivolous. (2)
Those who rejected the Convention made other arguments, including that the treaty would prevent parents from schooling their children at home rather than in public schools, that the treaty would force mandatory abortion or abortion rights on the US, or that the law expands certain undesirable definitions or rights in state and federal courts. The first two arguments fail on the sovereignty claims above and also argued elsewhere; claims about court challenges were dealt with in the ratification process(3). Put simply, the Convention would have had no deleterious effect on any constituency’s pet issue because that’s not how this treaty was written, it’s not how sovereignty works generally or specifically in this case, and ratification deals with these issues to prevent them from occurring.
However, I would take a moment to caution against the seeming consensus among the foreign policy commentariat that the Convention on the Rights of Persons with Disabilities would have no effect on the United States. While it certainly has very little legal effect (by US design, see (3)), it does accomplish three key things. First, it adds an extra layer of support to the Americans with Disabilities Act of 1990: even if not a cushion of additional regulations, it is an extra piece of precedent on which support for the disabled in the United States is built. When drafting new legislation, or requesting access for a disability that has been overlooked, a person can point to ADA and CRPD and say, “We have two major pieces of law saying that disabled persons deserved to be treated equally and yet I [or we] are not. It is imperative that this is rectified.” Even a treaty with no substantive effect adds the (now echoing, twenty-two years later) voice of the entire United States to that person’s claim. Second, ratifying the treaty signals to the disabled community, from blind to deaf to veteran to disease/accident survivors, that the United States supports all of them as just as important as a person without a disability. By failing to ratify the treaty, we have already invited their disappointment and anger; the Republican party, in particular, needs to reach out to these persons. They are people, human agents with wants and needs who have been told that their interests are less important than easily dismissed arguments about subjects not covered in a Convention that names their group specifically. Beware their wrath. Finally, and to a similar point: any action that improves the treaty’s chance to be ratified around the world, as US ratification may do (which will be discussed below), will secure for US disabled persons equality of access and opportunity abroad as they travel on business, vacation, and for whatever ends they deem appropriate. Disabled people in the United States have an interest in its ratification for their own interests, even if no one else in the United States has so self-interested a rationale.
A More Cosmopolitan Argument
Of course, self-interest is not the only argument. We Americans care not just for people who are identical to us, else only twins would vote. We care for the interests of the disabled in the United States as they are part of who we are as a people. Similarly, we care for the disabled around the world and how we can ensure their equality and dignity as persons. This more cosmopolitan obligation stems from the inherent equality of all persons, regardless of where they are born, what their religion or nationality, their gender or sexual orientation, or whether they have a disability. The question now is whether this Convention, or human rights treaties generally, can help us provide a more equal playing field to disabled persons around the globe. We have a few considerations on this point.
First, we need to recognize that human rights treaties have a weak history of improving human rights. The 1948 Universal Declaration of Human Rights was a non-binding declaration that states agreed to more for public relations than for any other reason: as much as the human rights activists at the center of the Declaration were sincere, governments didn’t want to commit to anything enforceable, and so didn’t. As additional Covenants and treaties were added to the body of human rights law over the years, additional instruments were added to sanction those states that violated their citizens’ human rights as laid out in these treaties. Other agencies have arisen to actually assist people whose lives or rights are in danger. The original Universal Declaration has had individual rights expounded upon in additional treaties and conventions to clarify what each state’s responsibilities are with respect to each right or at-risk group. Even the UN Security Council weighs in when rights abuses become severe.
But academic studies, looking backward, can tell you that the backlog for reports and sanctions is long (4); that treaties are more likely to constrain a state the more democratic that state is and that autocratic regimes may sign human rights treaties and then show either the same or less respect for human rights (5); this appears to be a result of states seeking the reputation that comes from having signed a human rights treaty: with very little enforcement but a public commitment to universal values, states gain respect from international organizations and businesses (6). The article cited below from Hafner-Burton and Tsutsui in (5) shows that the most repressive of states simply don’t institutionalize respect for human rights, even years after signing relevant treaties.
These and other studies are pessimistic about the probability that strengthening human rights enforcement mechanisms will make a difference: despots will fleece their citizens with no respect for what becomes of those whose dignity is beneath their attention. While we have been steadily improving the system, adding a High Commissioner for Human Rights and integrating the human rights conventions with one another slowly but surely, we still fail at making the changes we need; these concerns are well-justified and not merely academic. Our human rights treaty system is not doing a good enough job of serving those who most need it.
However, the treaties themselves and their enforcement mechanisms are not the only tools in play.
As I mentioned above, the history of the global human rights treaty system managed through the UN has been getting more and more robust since the Universal Declaration of Human Rights in 1948. More importantly, respect for the concept of human rights has become a pervasive influence on the wider institutional regime: treaty organizations, NGOs, and global business. Aid institutions, including those in the European Union, the United States, and around the world are increasingly using the concept of conditionality to include human rights benchmarks in their interactions with debtor states. The World Bank and International Monetary Fund, the key aid organizations with global mandates are gradually moving away from the Washington Consensus, a restrictive kind of conditionality that forced states into American-style fiscal, trade, and monetary policy without guaranteeing human rights. Innovative new ideas are being presented to allow aid money to be used for projects that maintain accountability while still making progress toward development. In addition to development, we’re learning more on a daily basis about how improving the lives of women contributes to better outcomes for all people. As we learn to make conditionality more closely related to human outcomes rather than demanding particular economic institutions, we may be able to tie governments’ purse strings to their respect for human rights, regardless of their respect for human rights treaties.
Of course, we have a few substantial internationally sanctioned disincentives for those who would engage in human rights abuses. As far back as the Nuremberg trials, we held criminals to account for genocide. Just as with human rights treaties generally, we have moved from that one-time event to ad hoc courts for atrocities in Rwanda and the former Yugoslavia. We now have a regular, increasingly powerful disincentive in the form of the International Criminal Court, enacted by the Rome Statute of 1998 and in force since 2002, is a standing court prepared to hold, try, and convict any individual responsible for human rights abuses. Further, even though many states have not yet signed on to the Rome Statute, cases can be referred by the UN Security Council, ensuring justice is applied even when a government wishes to avoid prosecution by simply ignoring the world community. The possibilities of individuals being prosecuted for misdeeds may prove to be a powerful motivator. Further, the Security Council itself, present since the founding of the United Nations, bears the mandate of protecting peace and security as laid out in Chapter V of the UN Charter. Often human rights are protected by peacekeeping forces authorized by the Security Council or, in rare cases, actual war-making forces halt atrocities by land, sea, or air.
Since 2011, though, a new human rights equalizer has arrived on the scene in a way that few predicted: humans standing up for their own rights. The so-called Arab Spring has shown that when states fail to meet obligations, whether to provide a secure economy or basic freedoms of speech, political participation, and religion, even oppressed societies will stand up and demand better outcomes and are not afraid to overthrow leaders if necessary. It’s not just a military junta or an oligarchic elite who will engage in coup d’etat in the twenty-first century. Everyone will, after suffering Locke’s famous “long train of abuses”, rouse themselves and set things right.
Let’s tie this bow: what does all this have to do with the United States Senate and the Convention on the Rights of Persons with Disabilities? Everything, of course.
The global community, to the extent that it exists, gets to decide what human rights will be respected and how they will be protected around the world. We do that through negotiating, signing, and ratifying human rights conventions, at the UN level, through regional organizations like the Inter-American Commission on Human Rights within the Organization of American States (7), through non-governmental organizations like Amnesty International, Human Rights Watch, and the Bill & Melinda Gates Foundation, among many others, and through businesses like Google, Facebook, and Apple(8), all of whom have strong incentives to promote the adoption of equality, liberty, and access. We learn more about how to provide effectively for human rights each year, and put that knowledge into new treaties, new practices, and new organizations. Each new treaty, UN Security Council Resolution, each new human rights lawsuit is an opportunity to fulfill our obligations to support the rights of individuals around the globe.
The United States already takes an active role in this process. Many human rights organizations are based in the United States; much (not all, by a long shot) of the scholarship behind human rights is from US universities and American scholars. The United States has a key role in negotiating human rights treaties, and as a permanent, veto-holding member of the UN Security Council, as the key donor to a variety of aid organizations, including in the UN, IMF, and World Bank systems, we have a great deal to say about what is a human right and who has gone over the line in violating those rights.
But as we as a global society construct our human rights regime, that regime needs a written body of law that is supported by the widest possible number of states who have the greatest amount of intellectual, moral, economic, political, and military power behind them. Our belief alone can’t support it. As it gets embodied into international law, unlike with domestic law, it becomes more effective with each new ratification. Not because a particular state will jump on the ratification bandwagon. But rather because it becomes a stronger, more vital norm. For instance: if the only states who sign on to making X a human right are the 100 least populous states, then when the tenth-most populous state violates the rights of its citizens based on that norm, it is much more difficult to say that it is a global norm at all, and enforcing that right, while it may be demanded by international law, will be harder to accomplish in practice. And again: if only the Islamic, Hindu, and Buddhist states sign on to a human rights agreement, then it is harder to argue that when a Christian state violates that human right that it is a human right at all.
Put simply, the more states ratifying a convention, the more powerful the states, the wider the variety of states in geography, in values, in economic strength: the more likely the subject of the human rights treaty actually is a human right and the more likely a consensus of states at the UN and broader global community will enforce the protection of that human right. Each state ratifying a human rights treaty legitimizes not only the system, and the treaty, but the existence of the right itself. This may seem self-evident, but apparently it has ceased to be so in the United States Senate.
The United States is uniquely positioned on this front. It has a varying geography, which includes large urban and rural areas, with its states in the Arctic, the tropics, and more temperate zones, with Christians, Jews, Muslims, Buddhists, Hindus, and Atheists, with a diverse economy, a relatively legitimate constitution, and cultural, economic, or scientific ties to every continent. With our role in setting the human rights agenda through government, private, and non-profit agencies and through academia, we substantially affect the legitimacy of any human rights treaty when we sign it. Forget, if you can, that this particular treaty is based on human rights already provided in the US, or any consequentialist arguments about ratification votes in other states. Ours is one of the more important voices for human rights; when we say that a treaty does not qualify as worthy of being lent our legitimacy, we have an obligation to provide a powerful, legitimate reason for the rejection. None has been given.
Taking in this argument, you might, at this point, be wondering whether if this is all we accomplish with human rights treaties, then what’s the point? A little legitimacy here, some marginal effect there… what’s the point?
If that’s what you take out of this argument, then you may be misunderstanding the struggles for human freedom of the past 2,500 years. Ratifying a treaty that makes liberty and equality more inclusive rather than less, while also broadening the geographic area under which those rights are likely to be enjoyed, while strengthening the legitimacy of those rights… ratifying such a treaty, when properly written, as this one has been proven to be, is a duty of any person who wishes to be on the side of justice. While we have other avenues to promote human rights, and many levels on which to champion the well-being of disabled persons, failing to pass the Convention on the Rights of Persons with Disabilities unnecessarily excludes those with disabilities from the global human rights regime, fails to grant the full legitimacy-bearing weight of the United States onto this Convention, and misses the point of treaties in general and human rights treaties in particular.
The good news is that this isn’t the end of this story: the treaty can be brought to a vote again when the next session of the Senate is convened. I recommend contacting both your senators to strongly recommend that the Convention on the Rights of Persons with Disabilities deserves the ratification of the United States.
(1) US Senator John Kerry handled this objection especially well in his argument in favor of ratification.
(2) A great primer on understanding sovereignty in international affairs is Alan James’ “Practice of Sovereign Statehood in Contemporary International Society.” Political Studies XLVII (1999), pp. 457-473. A good free not-too-crazy-academic resource is the Stanford Encyclopedia of Philosophy article or, if you must, Wikipedia. Or I’ll write you a long email or blog post about it if you ask nicely enough.
(3) To briefly expound on this point, by the “ratification process“, I’m referring to the system of reservations, “understandings”, and declarations appended to these treaties as they are submitted to the Senate and moved through committee. These understandings ensure that none of the provisions of the treaty actually affect any aspect of US law, whether by forcing the executive branch to do anything it isn’t already doing or by enforcing any standards upon the judicial or legislative branches. Human rights treaties are solely a legitimating exercise in the US Senate.
(4) Bayefsky, Anne F. The UN Human Rights Treaty System: Universality at the Crossroads. Ardsley, NY: Transnational Press.
(5) Neumayer, Eric. “Do International Human Rights Treaties Improve Respect for Human Rights?” Journal of Conflict Resolution vol. 49, no. 6 (Dec. 2005), pp. 925-953. Also see Hafner-Burton, Emilie M., and Kiyoteru Tsutsui. “Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most.” Journal of Peace Research vol. 44, no. 4 (Jul 2007), pp. 407-425.
(6) Extrapolating from a point by Oona A. Hathaway, “Do Human Rights Treaties Make a Difference?” Yale Law Review 111 no. 8 (June 2002), pp. 1935-2042. (9)
(7) There is also the European Convention on Human Rights, which includes a High Commissioner, Court, and other offices, an African Court on Human and Peoples’ Rights set up as part of the African Union, and the Association of South East Asian Nations (ASEAN) recently approved an (insufficient) declaration on human rights. These are just the ones I thought of off the top of my head: there are an increasing number of venues for human rights protection and enforcement.
(8) There are even private companies who track human rights around the world so that businesses know which economies are good investments based on their human rights record.
(9) I am aware that my citation format sucks. ‘Tis one of the nice things about being an academic-type-not-currently-in-academia.
* Updated December 14, 2012, 12:13 PM, for copyediting. No substantive change.