Senate Rejects Disabilities Treaty (Sovereigntism Lives, or Does It?)

by Peter Spiro

Story here on how the CRPD went down. The tally was 61-38, five votes short of the two-thirds necessary for approval.

On the one hand, the defeat demonstrates sovereigntism’s staying power. The anti-internationalist Right has been energized by a flight of treaties baring the putative menace of global governance — the Law of the Sea, the Arms Trade Treaty, and the Convention on the Rights of Persons with Disabilities.   Alarmists at Heritage and elsewhere have had a lot of fodder to work with in calling fellow travelers to the virtual barricades. Rick Santorum will surely claim responsibility for the CRPD’s defeat in trying to revive his political fortunes.

On the other hand, it’s only because of the treaty clause’s supermajority rule that their veto is worth anything. Anti-treaty forces clearly no longer represent a majority of the American people.

Might the second term present an appropriate juncture for a constitutional gambit? Assuming that 15 Republicans could be brought across the aisle, any of these or other agreements (eg the Children’s Rights Convention) could be submitted and approved as congressional-executive agreements, that is, with simple bicameral majority support. The US failure to sign on to broadly subscribed multilateral agreements is making us look stupid. Let’s update our constitutional mechanisms (a continual process with many, many examples in the realm of foreign relations) to better serve the national interest on the global stage.

http://opiniojuris.org/2012/12/04/senate-rejects-disabilities-treaty-sovereigntism-lives-or-does-it/

2 Responses

  1. This blockage by a few Senators reminds us of the ideologic war that has been initiated for several years by some radical would-be revisionists and others who strive to deny the legal efficacy of any form of international law as law of the United States, in particular the prohibition of genocide, human rights law, including the prohibition of torture.  It is shocking that two among them are amongst the ALI group about to contemplate revision of the Restatement of the Foreign Relations Law of the United States, Curtis Bradley and Paul Stephen.  See, e.g., Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 498-499, 579-581 (Thomson -West, American Casebook Series, 3 ed. 2009). 
    Contrary to overwhelming views of the Founder, Framers, and judiciary, Professors Curtis Bradley and Jack Goldsmith have favored radical opposition to the use of customary international law as law of the United States and have expressed fear over, of all things, “a large body of … human rights” law and related prohibitions of slavery and genocide. Compare Curtis A. Bradley, Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 832, 841 (1997) with Jordan J. Paust, Customary International Law and Human Rights Treaties Are Law of the United States, 20 Mich. J. Int’l L. 301, 306-36 (1999).
    Professor Paul Stephan has seemingly favored lawless governmental use of torture. Compare Paul B. Stephen III, Constitutional Limits on the Struggle Against International Terrorism: Revisiting the Rights of Overseas Aliens, 19 Conn. L. Rev. 831, 850-53 (1987) with Jordan J. Paust, An Introduction to and Commentary on Terrorism and the Law, 19 Conn. L. Rev. 697, 723-26 (1987).

    Professor John Yoo has favored “coercive” interrogation and an Executive unbound by law. Compare John Yoo, War by Other Means ix, 35, 39-40, 190-92, 202 (2006) with Jordan J. Paust, Above the Law: Unlawful Executive Authorizations Regarding Detainee Treatment, Secret Renditions, Domestic Spying, and Claims to Unchecked Executive Power, 2007 Utah L. Rev. 345, 356-59, 393, 397-99 (2007).

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