The latest battle in the sovereignty wars

Many observers are still expressing anger and disbelief that the United States Senate failed to ratify the Convention on the Rights of Persons with Disabilities. Despite pleading from Senator John McCain, former Senate majority leader Bob Dole, and other Republican luminaries, only a few GOP senators broke ranks and voted for ratification. Foreign Relations Committee chairman John Kerry, who led the ratification push, was despondent. He described Tuesday as "one of the saddest days I’ve seen in almost 28 years in the Senate." Maine Republican Olympia Snowe called the vote "utterly unconscionable." Human Rights Watch labeled it a "big step backward."

There’s little mystery about what happened. Key conservative groups mobilized their supporters and successfully cast the treaty as an insidious threat to American sovereignty. These groups and their supporters in the Senate raised the specter of UN-appointed bureaucrats tinkering with U.S. laws and perhaps even preventing American families from homeschooling their disabled children. 

Let’s stipulate that conservative fears that the treaty would force changes to U.S. law are inaccurate and the product of suspicion rather than analysis. In fact, the treaty’s toothlessness is apparent. Countries that ratify the convention have to submit regular reports on compliance to an elected committee of experts, but that group would have no power to compel changes in national law. Here’s the treaty’s provision on what that expert committee can do:

Each report shall be considered by the Committee, which shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned. The State Party may respond with any information it chooses to the Committee. The Committee may request further information from States Parties relevant to the implementation of the present Convention.

U.S. jurisprudence makes the treaty’s already weak enforcement provisions even less onerous; the U.S. Supreme Court has ruled that treaties like this one are not "self-executing" and that explicit Congressional action would be required to make its provisions actionable in the U.S. courts. A series of heroic assumptions are required to reach the point where the treaty or the opinions of UN experts have any meaningful impact on U.S. disability law.

It’s regrettable that alarmism prevailed in the Senate. But is the internationalist rending of garments warranted? I’m not so sure. 125 states have already become parties to the disabilities convention. It is well on its way internationally, and I don’t see any reason that the U.S. ratification decision should diminish its global impact. It’s even possible that the U.S. rebuff might encourage further ratifications, as holdouts seek to show themselves as more progressive than the benighted superpower. There’s some evidence, for example, that U.S. opposition was a boon for the Rome Statute on the International Criminal Court, which won broad international backing and came into force faster than most observers expected even as the United States fulminated against it.

If the international implications of the treaty’s defeat are likely weak, the domestic effects are even less weighty. As treaty supporters were at pains to point out during the Senate debate, U.S. law–and in particular the Americans with Disabilities Act–already offers broad protections for the disabled. In many respects, the convention does little more than disseminate the U.S. system to the rest of the world.  

So if the practical impact of the U.S. rebuff is likely minimal, why all the alarm? The answer, I suspect, has less to do with the rights of disabled around the world than the health of America’s image. Internationalists desperately want the United States to be–and to be seen as–a country that embraces human rights treaties. My sense is that most U.S. internationalists want this not because they believe these instruments will have a significant effect (the evidence on that point is decidedly mixed). Still less are they anticipating that these instruments will force  the United States to change its own behavior.  Instead, U.S. participation in these treaties is desirable because it signals a certain national orientation, including respect for international opinion and support for the project of advancing international law and institutions.

If I’m right about this, that makes these human rights treaties largely symbolic for U.S. internationalists. And that in turn suggests that internationalists should be far less shocked when those with a different view of the international law project treat even inoffensive treaties as proxies in a larger struggle.