What Good is a UN Human Rights Treaty?

by Erik Voeten on December 5, 2012 · 9 comments

in Blogs,International Relations

Dan Drezner argues that yesterday’s Senate vote to reject the UN Convention on the Rights of Persons with Disabilities reflects a victory of a sovereigntist lobby that seeks to protect the U.S. from …… well, something . It is indeed a bit odd to describe the Convention as “just another UN power grab” when it was inspired by the Americans with Disabilities Act, would require no reforms of existing U.S. laws, and would delegate no meaningful new authority to an international body (except the establishment of a Committee that reviews state reports on implementation).

This is, of course, not the first time a treaty like this fails in the Senate. For example, when the Bush Administration tried to ratify the Convention to End Discrimination Against Women (CEDAW) opponents claimed that it would “end Mother’s day.”  The only evidence was a very liberal reading of a remark by a UN official in a Committee meeting (see the similarities with the current objections about the potential impact on homeschooling). Andrew Moravcsik has a nice chapter (pdf, ungated) that explains why the U.S. has long been at the forefront of promoting human rights but resists binding itself to human rights treaties. The short answer is that there is little domestic demand, difficult institutional requirements for ratification, and a very vocal small minority opposition to treaty ratifications.

While the arguments against ratification are poor, the arguments for are not that obvious either. Not ratifying would allegedly make the U.S. look bad. Fine, but international politics is not a popularity contest and the US does a lot more consequential things that can make it look good or bad. A more interesting claim is that the U.S. has an interest in spreading values and rights protections to other countries. Treaties could be a low cost policy option to achieve this goal.

The validity of this argument hinges on two claims: human rights treaties should be effective at improving human rights and the U.S. decision to ratify should increase the effectiveness of treaties. There is a large recent literature that examines the first claim. Although the results vary across treaties and methodological approaches, the majority view is that most treaties have a marginal and conditional positive effect on human rights observance (see for instance Beth Simmons’ award winning book). There are lots of states for whom treaties do little, either because they already have strong human rights protections in place (like the U.S.) or because they have no intentions to improve human rights. Some of these states will ratify treaties anyway but we should not expect this to matter (although see here for a more perverse theory).

Treaties are most likely to have a positive impact in countries that want to improve their rights record but that are not yet stable liberal democracies. For example, the mere presence of the UN Disabilities Convention creates a moment where a government and a legislature need to decide whether to ratify the Convention and whether to adopt implementation legislation. As any activist knows, getting an issue on the agenda is at least half the battle. This is especially true if it concerns the rights of marginalized minorities, which people with disabilities are in many countries. The Convention makes this an issue that is not just about disabilities rights but also about coming into compliance with international standards. In many countries outside the U.S., this actually is a powerful argument for policy change.

This gets me to the second question: does a U.S. ratification actually help this process in other countries? I am not aware of any research that would give us much guidance on this but it is at least plausible. If domestic politicians start caring about disabilities rights not necessarily because they care about disabilities rights but also because they wish to be in conformance with international standards, then that push may be larger if the biggest (liberal) power in the world accepts this as an international norm. In my mind, then, the Senate missed an opportunity to plausibly make a small positive impact for a marginalized group across the globe at very little cost. This is not a strong statement but given that many foreign policy tools are so costly it is wasteful not to use the cheap ones.

{ 9 comments }

Jeff Peake December 5, 2012 at 11:00 am

Several things are notable about yesterday’s defeat of the UN Disabilities Convention. First, It is the first floor-vote failure of a treaty since the Comprehensive Test Ban Treaty (CTBT) failed on the floor in 1999. However, yesterday, the treaty was brought to the floor by the Democrats who had fairly good information that the vote would fail, given that 36 Republicans had indicated they’d vote against the treaty. In the case of the CTBT, the Republican leadership brought the bill to the floor knowing it would fail, despite efforts by Democrats and President Clinton to forestall the vote.

Second, it’s not just human rights treaties that have a difficult road to ratification in the US Senate (Natalie Kaufman has a good book on this specific topic), but other UN treaties face similar difficulties (the Law of the Sea Treaty being the latest example). The degree to which the scare tactics work to rile up domestic opposition to UN treaties is very interesting. The opposition, in many of these cases, appears to be much more intense than proponents of the treaties, which clearly lends to their failures. This is not new, of course. After all, it took over 40 years for the US to ratify a convention outlawing genocide despite heroic efforts on behalf of the treaty by proponents and multiple Republican presidents. The “sovereigntists” have held sway for some time.

Third, the failure highlights–at least to me–why President Obama has all but abandoned the formal Article II treaty mechanism when completing international agreements. The data on treaty transmittals are clear. Obama has transmitted just 16 treaties in 4 years as president. Since 1949, presidents have transmitted an average of 32 treaties every 2-year Congress, so Obama’s average is one quarter that of his predecessors. GW Bush averaged 24 treaty transmittals every 2-year Congress. Today’s Senate is just too polarized to marshal bipartisan support for anything that might have some level of controversy. The ratification of the New START treaty in December of 2010 is an exception, of course, but there for 4 times the “no votes” on that treaty than all prior START treaties combined.

One must ask, however, that if this treaty was such an important priority, why did President Obama wait until May, 2012, to transmit it to the Senate, nearly 3 years after he had signed the treaty? My guess is it has something to do with an overfull agenda in 2009. Also, the “treaty is non-binding” argument used by proponents to counter the “world government” argument is in many ways self-defeating. If the treaty is non-binding and purely symbolic, why is its ratification so important? How is it likely to change any state’s behavior?

Jeff Peake December 5, 2012 at 12:53 pm

At the hazard of self-promotion, Glen Krutz, Tyler Hughes and I have recently authored an article on the difficulties of treaty politics in the US Senate. It is located here: http://onlinelibrary.wiley.com/doi/10.1111/j.1540-6237.2012.00913.x/abstract.

Glen and I have an earlier book on the topic. More information can be found here: https://www.press.umich.edu/3693860/treaty_politics_and_the_rise_of_executive_agreements

Jana von Stein December 5, 2012 at 1:38 pm

A fascinating debate … or debacle perhaps … to watch. How exciting that a treaty actually makes national headlines in the US! But more seriously, none of this is really surprising. The US has only ratified about one in three of UN human rights agreements. It took us a whopping 40 years to ratify the Genocide Convention. The non-ratification will have no impact on the US treatment of disabilities (which, of course, begs serious questions about some Republicans’ logic that committing would ring the death knell of our sovereignty). From that perspective, this is not a very big deal.

But it probably makes it look bad. Why are we unable to join on to an agreement with which we’re already largely compliant? Most international observers won’t remember that it was a close vote, with even some Republicans (e.g., Bob Dole) making huge efforts on the agreement’s behalf. Most international observers also won’t know that the treaty would have passed in most any other country but that our bar for ratification is tremendously high in the US. I for one am not so sure that the US’s non-ratification will have much implication for how disabilities are attended to in other countries. That is probably a chiefly domestic process, in my view.

Matt_L December 5, 2012 at 2:10 pm

How about the Helsinki Accords during the Cold War? The agreement gave dissidents in the Eastern Bloc some legal cover and helped put Human Rights back on the agenda for those countries. The Accords did not provide a huge amount of leverage, but still it was aid and comfort for an embattled minority.

Jana von Stein December 5, 2012 at 2:19 pm

True indeed, Matt. But it was a domestic process, combined with some Western pressure. As I wrote, I could see the Convention having impacts through domestic processes. Not sure we’d see a whole lot of int’l pressure on that front, unless through the European Court of Human Rights or some such…

Mike Huben December 6, 2012 at 8:25 am

Since a treaty is constitutionally part of the supreme law of the land, could it provide grounds for lawsuits against the government or private parties by citizens or extranationals who are hurt by treaty violations?

LFC January 29, 2013 at 10:04 pm

In this case it’s pretty much irrelevant b.c the U.S. already has a domestic law, the ADA, which according to the post covers the same substantive matters.
(In general you’d need at least implementing legislation before a treaty could become grounds for a suit, and even then there’d probably be hurdles. But I would yield to those who know more here. And as far as suits by non-nationals are concerned, they often face even higher hurdles to suing in U.S. courts unless a statute, such as the Alien Tort Claims Act, specifically provides for it.)

RobW December 6, 2012 at 11:15 am

Professor Tucker,

Interested to know what your take on US treaty rejection in the context of Ikenberry’s arguments here or here. In your view, would this undercut the argument that the US uses IOs to lock-in a hegemonic advantage?

Jeremy Smith December 13, 2012 at 11:50 am

I share your conclusions. Basic human rights treaties set and confirm standards for accountability, and for education etc. From my (UK) perspective, the weakness for the US in refusing consistently to sign/ratify good treaties is that it engenders great cynism internationally about the genuineness of the country’s much-self-trumpeted attachment to human rights.

It adds to and helps confirm the widely-held view that the US picks and chooses which human rights or their alleged violations to focus on simply according to its foreign policy national interests, and aims to avoid even minimal accountability for its own human rights record. By refusing to ratify positive treaties with no evident down-side, it therefore suffers self-imposed reputational damage, even if the ‘policy’ plays well at home.

In addition, of course, the US’s refusal to be bound by human rights treaties only strengthens the hands and arguments of other states whose human rights record and commitment leaves far more to be desired.. The US’s attitude therefore damages all who genuinely wish to promote human rights.

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