Why the U.S. Shouldn’t Sign On to Empty Human Rights Treaties

Eric Posner weighs in.
Dec. 21 2012 7:22 AM

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.
Josef Stalin, 1949.

o.Ang./Wikimedia Commons.

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?

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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.

Then there’s the question of whether it makes sense to impose Western-style standards for disability rights on other countries. Poor countries face many problems. A country that is required to build ramps and elevators for disabled people has less money to build health clinics for sick people and schools for children. Governments must make trade-offs, and we in the West really have no idea what these trade-offs should be in Angola or Suriname. The impulse behind the human rights regime bears more than a passing resemblance to the naïveté with which the West has supplied poor countries with power plants, dams, and other development projects that turn out to cause more harm than good, as William Easterly and other development economists have documented again and again.

So why do other states enter all these treaties in the first place? In 1936, Stalin engineered the ratification of the Soviet Constitution, which guaranteed rights to free speech, religious freedom, due process, work, rest, and all sorts of other good things—even while he was sweeping political opponents into the gulag. Stalin considered his constitution a propaganda coup. And while he did not fool everyone, he fooled a lot of people, including many influential Western intellectuals.

Today, there are many countries with sham constitutions like the Soviet Constitution. A recent paper by two law professors, David Law and Mila Versteeg, lists dozens that promise the moon in terms of constitutional rights but flagrantly violate most of them. You might think of these countries’ participation in human rights treaties in the same light as their constitutions, as a kind of propaganda, albeit blessed with the imprimatur of the leading liberal democracies, aimed at ignorant, especially Western, observers.

If you need evidence, consider a country like Uzbekistan, a party to the convention protecting the rights of the child, and a place where, according to Human Rights Watch, there is “Government-sponsored forced child labor during the cotton harvest.” Or Saudi Arabia, a party to the convention banning discrimination against women (“girls and women of all ages are forbidden from traveling, studying, or working without permission from their male guardians”). Or Vietnam, a party to the treaty that guarantees political freedoms (“systematically suppresses freedom of expression, association, and peaceful assembly”). Or China, a party to the treaty that bans torture (“forced confessions under torture remain prevalent”). Or Nigeria, a party to the convention outlawing racial and ethnic discrimination (“State and local government policies that discriminate against … people who cannot trace their ancestry to what are said to be the original inhabitants of an area continue to exacerbate intercommunal tensions and perpetuate ethnic-based divisions.”). (All quotations from Human Rights Watch’s 2012 World Report.) Or consider India, which ratified a treaty that confers a right to housing, and yet is unable to house tens of millions of homeless Indians who live in shanties on streets and garbage dumps. The nine most repressive countries of 2011, Freedom House‘s “Worst of the Worst,” including Eritrea, Syria, and Turkmenistan, belong to most of the major human rights treaties.

The human rights regime is a vast international Potemkin village, a kind of communal effort among states to deceive one another and mainly their citizens, or an excrescence of the bureaucratic imperative to deny error and bad intentions, using whatever legal forms happen to be available. Think of it as the modern version of the brass band and fancy bunting that surround the dictator while he harangues the crowd. Fine if other countries want to do that, but why should we be complicit?

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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