The Intellectual Poverty of the Sovereigntist Argument Against the Disabilities Convention

by Erik Voeten on December 7, 2012 · 14 comments

in International Relations

There is a pretty strong consensus that the UN Convention on the Rights of Persons with Disabilities, which the Senate rejected on Tuesday, would have imposed no meaningful sovereignty costs on the United States.  So when the New York Times wanted to line up a debate on the merit of ratification, it had to look long and hard for credible counterpoints. That is the only way I can understand how they would end up with David Kopel, the research director of the Independence Institute and an adjunct professor of law at the University of Denver. Professor Kopel apparently doesn’t know much about the UN or human rights treaties because he had to put this request to his readers on the Volokh Conspiracy:

 I respectfully request commenters to describe previous situations in which a UN body has, in the commenter’s view, made an inappropriate interpretation or application of a Convention of Treaty.

Unfortunately, the commenters proved little help. But professor Kopel still wanted to argue that:
Experience shows that the U.N. bureaucracy can take innocuous treaty language and “interpret” it to impose the political agenda of the global hard left.

So what did he do? Just make stuff up:
When many nations (not including the U.S.) ratified the Convention on the Elimination of All Forms of Discrimination Against Women, they had no way of knowing that the U.N. would declare Mothers Day to be illegal, if a nation’s version of that holiday puts too much emphasis on women’s role as mothers.

Nor could governments ratifying that “discrimination against women” treaty foresee that the U.N. would later decide that it mandates the legalization of prostitution, or numerical gender quotas in both government and the private sector.


This is utter nonsense. Virtually all of the 184 state parties of the CEDAW treaty celebrate Mother’s Day and very few have legalized prostitution (and none because CEDAW demanded it). The committee does not have the authority to declare anything illegal. It may write reports criticizing countries but these reports can be and often are ignored. The Mother’s day myth (which I referenced on Wednesday) stems from a 2000 Committee report on Belarus, which criticized the country for:
[..] continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women’s traditional roles.

You may well disagree with this statement but to say that it had any legal effect is nonsense (nor has this been repeated against any of the many other countries that celebrate Mother’s Day). Similarly: quotas are not mandated for CEDAW signatories nor is legalizing prostitution.

I suspect David Bosco is right that this is not about the Disabilities Convention at all but based on a “slippery slope” logic where even minor instances of acceptance of international standards will lead to the slow and gradual slipping away of sovereignty. For Kopel it seems to be all about an arms trade treaty that is currently being negotiated (and which will have zero chance of passing the Senate).

The problem that I have with this is that the UN debate is increasingly dominated by liberal and conservative fantasists. The liberal fantasists see submission to the UN as a way towards a peaceful global order in which the role of power politics slowly dissipates. The conservative fantasists see the UN as a severe threat to U.S. domestic and international freedom of action. Both are based on wholly irrational ideas about the potential power of the UN. What we should be talking about is how to best use the UN to take small steps towards a better world (with apologies to Marginal Revolution). But that conversation all too often gets hijacked by ideologues.

ps. the other skeptical piece is by Julian Ku, who agrees the sovereignty cost of the Convention are minor but worries about the Law of the Sea. There is a reasonable argument there because there are real sovereignty costs, thus creating the need for a trade off between cost and benefits.

{ 14 comments }

PJR December 7, 2012 at 2:04 pm

Would ratification of the treaty legally prevent Congress from ending the Americans With Disabilities Act, or substantially weakening it, without first withdrawing from the treaty? The Act is not without its critics (including some employers) and the GOP probably does not want to add a barrier to amending it to afford fewer legal protections to the disabled.

Suzanne December 7, 2012 at 5:54 pm

They can end the ADA over my cold, wheelchair using, dead body. I have a job and my own Condo because of the ADA and if you think the Disability Activists in this country were possibly a little too polite about the CRPD, JUST TRY and take away the rights we have fought so hard for in this country. Business can suck it. They are making record profits and the small businessman who is “burdened” by the ADA has no soul. Why don’t we go back to segregation or slavery, those were better for business. I’m not going back on Social Security, Asshole.

Joel December 10, 2012 at 12:02 pm

PJR,

Ratification of the treaty would not prevent Congress from ending the ADA. Usually when treaties are ratified or given the advice of the senate, they are given a list of reservations, understandings, or declarations (RUDs) which prevent the international legislation from becoming domestic law without going through the Senate first. In short, there is a non-self-executing provision which protects US law from international human rights treaties. This has been the case since the 1950s.

KM December 8, 2012 at 11:53 am

I don’t know much about sovereigntist arguments, but I can think of good reasons to question the proliferation of ‘rights,’ particularly for things on a sliding scale, such as sexual urges and disabilities. Consider the growing number of students requiring accommodations for exams and the like due to learning problems. Not saying they don’t need or deserve it, just that not all disabilities are equal. As a child my brother was diagnosed with ADD. Now he’s a doctor making six times what I do as a political scientist. Is he still disabled? Was he ever? I’m not sure.

I’m not suggesting that disabled persons have no inherent rights—today most are aborted before taking their first breath. One could reasonably perceive this as a violation of a fundamental right. Rather I’d offer that perhaps there are ways to recognize the challenges people face without routinely manning the barricades of rights.

For what it’s worth, I say this as the parent of a child who is physically handicapped.

Brett December 8, 2012 at 3:39 pm

I seems the reasons to NOT ratify the treaty are largely crap.

But what are the real benefits of ratification?

I want to know but I’m too lazy to figure it out on my own. From the little I’ve read, it seems like little more than a philosophical affirmation being decent to people with disabilities.

Joel December 10, 2012 at 12:02 pm

Brett,

The primary reason for ratifying the treaty is to get other nations to ratify and comply with the treaty. The UN wants to have universal ratification of all of their human rights treaties. For states that already comply with laws but have not ratified the treaty, especially powerful states like the US, the argument is that there can be some suasion going on.

Another reason is that it disallows states the ability to point out that the US has not signed the treaty while they have, regardless of compliance. This is best viewed through the conventions on the rights of the child. Only three states have not ratified this treaty. The US, Somalia, and South Sudan. States take every opportunity to point this out and shame the U.S. It doesn’t matter that for the most part, the U.S. already complies with the CRC.

Dan Russell December 8, 2012 at 9:29 pm

Good point about the slippery slope. Fact is, 90% of Hayek’s argument that conservatives tout as epic is slippery slope. It’s a pretty weak form of logic.

LFC December 10, 2012 at 11:48 am

Re the post’s last paragraph (before the p.s.): I think Prof. Voeten’s implicit equation of liberal and conservative “fantasists” about the UN is a bit unfortunate; the conservative “fantasists” are more misguided and dangerous, by a very wide margin, IMHO.

Anonymoose December 12, 2012 at 6:30 am

I wanted to ask about this, because I simply don’t know of any significant, influential, group of liberals that meet this standard. Whereas the conservatives of this group have blocked a number of treaties, several of which would have actually served the national interests they purport to support, e.g. the Law of the Sea treaty.

The most you get on the other side of the ledger is liberals who argue for greater use of international structures to come to multilateral agreements, not the subsuming of the nation-state to a one world government.

roderick January 14, 2013 at 10:18 pm

And one of these (neo)conservatives is, apparently, the Julian Ku that Voeten mentioned in his ps. note. Ku has co-written a book with John Yoo, a former scholar with the American Enteprise Institute, covering some of these issues.

That says a lot.

Joel December 10, 2012 at 11:59 am

Brett,

The primary reason for ratifying the treaty is to get other nations to ratify and comply with the treaty. The UN wants to have universal ratification of all of their human rights treaties. For states that already comply with laws but have not ratified the treaty, especially powerful states like the US, the argument is that there can be some suasion going on.

Another reason is that it disallows states the ability to point out that the US has not signed the treaty while they have, regardless of compliance. This is best viewed through the conventions on the rights of the child. Only three states have not ratified this treaty. The US, Somalia, and South Sudan. States take every opportunity to point this out and shame the U.S. It doesn’t matter that for the most part, the U.S. already complies with the CRC.

roderick January 14, 2013 at 11:10 pm

Hi Joel,

Your view seems reasonable. But it still doesn’t quite justify why, even when the U.S. already complies with any given treaty, it can’t – or shouldn’t – sign it.

Linked directly to this, what then do you think about these other reasons that Voeten pointed out in another post, from a piece by Andrew Moravcsik?
(http://themonkeycage.org/blog/2012/12/05/what-good-is-a-un-human-rights-treaty/) “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.”

Steve Barclay December 13, 2012 at 4:29 pm

So. The thrust of the argument against is that it could threaten US sovereignty. To which they reply, no, it’s utterly unenforceable. The argument for ratification is that it compels other counties to comply. But it’s utterly unenforceable. So why does anyone give a good goddamn if this treaty is or isn’t ratified?

Joel December 14, 2012 at 2:49 pm

1. In many countries, the laws are enforceable. Treaties actually do change domestic law.

2. Slow change of norms of other states to match Western practice.

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