Why the U.S. Shouldn’t Sign On to Empty Human Rights Treaties
They’re a propaganda exercise for many of the world’s most unsavory nations.
Josef Stalin, 1949.
This month, the Senate by a vote of 61-38 failed to amass the two-thirds majority needed to approve the U.N. Convention on the Rights of Persons With Disabilities. The treaty’s supporters, lamenting America’s broader reluctance to join international human rights treaties, snorted at the vote and lampooned the antediluvian (but not prelapsarian) Republicans who shot the convention down. And it’s true that there are about a dozen human rights treaties, the vast majority of countries have ratified them, and the United States, frequently, has not. And rightly so. These treaties are little more than a collective back-scratching exercise involving many of the world’s most unsavory nations: The United States does well to keep its distance.
To understand why the United States is an outlier, one must begin with America’s unusual voting rules for approving treaties. Virtually no other country requires two-thirds approval from the legislature. Our system enables interest groups to block treaties by stiffening the spines of a few senators already temperamentally submerged in the isolationist right.
Supporters of the treaty argue that the disabilities treaty doesn’t actually obligate the United States to do anything that is not already incorporated in U.S. law. (Most of the other human rights treaties do not either.) Moreover, the globalists continue, treaties like this one are a free lunch. While not obligating the United States to compromise its values or interests, they do obligate other countries—including the authoritarian countries that routinely ratify these treaties—to improve their treatment of their people. Why would the United States object to such a good deal?
One learns little by examining the arguments of the critics of the disabilities treaty. One of their claims is that the disabilities treaty would prevent Americans from homeschooling disabled children (don’t ask). Many critics reflexively invoke “sovereignty costs,” as though any treaty must be unacceptable if it could reduce America’s freedom of action, but the United States has entered thousands of treaties. Trade treaties, military alliances, and environmental treaties limit our actions somewhat but also generate considerable benefits for the country.
Still, supporters of the disabilities convention go too far when they claim that this treaty would impose no costs on the United States at all. One obvious but overlooked point is that the word “disability,” is not self-defining; nor are other key terms. Reasonable people can disagree about what sorts of conditions count as a disability entitling one to legal privileges. Currently, U.S. courts resolve these disputes, and Congress can revise their interpretations. If the treaty binds the United States, then it is possible that the views of other parts of the world could come into play. Other human rights treaties have given rise to such interpretive disputes. For example, Europeans frequently argue that a provision of a treaty ratified by the United States that bans “cruel, inhuman or degrading treatment or punishment” forecloses the death penalty.
The disabilities treaty also prevents the United States from repealing or narrowing its disabilities law. Now that may not be likely, but one must still ask why the United States should remove from democratic politics an area of policy that just 20 years ago was considered open for debate. To be sure, the United States could exit the treaty if it wanted, after giving notice, but then in what sense does it really bind? (Other human rights treaties lack withdrawal clauses; the United States could withdraw only with the consent of other treaty parties, raising this question: Why if we want to modify our law we should first have to ask for the permission of countries like Azerbaijan, Benin, and Cuba?)
So human rights treaties may impose some small costs to democracy. What about the benefits? That free lunch is less than nutritious: Academic research has suggested that human rights treaties either do not improve human rights at all or do so very little, for a limited group of treaty rights, and among a select group of countries, not the worst offenders. In addition, U.S. failures to ratify other human rights treaties have not stopped nearly all other countries from doing so. And it is unclear why states would think they can ignore their treaty obligations just because the United States has not taken them on.
Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Reach him on Twitter at @EricAPosner.