Support Ratification of the Convention on the Rights of Persons with Disabilities Because It Doesn’t Do Anything!

by Julian Ku

In the NYTimes.com’s Room for Debate forum, I offer reasons for supporting U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Unlike most supporters (like a certain Comedy Central personality), I don’t think the opponents are crazy nutcases. (For a more sensible, but less amusing take, take a look at co-blogger Peter Spiro’s contribution to the same forum).  I think they have good and genuine objections.

While these concerns are not completely unfounded, treaty opponents are grossly exaggerating the impact that the convention would have on U.S. law and policy. The Obama administration, following a precedent set during the George H.W. Bush administration, has carefully shielded U.S. law from the treaty’s legal effect. It has conditioned Senate approval on a “non-self-executing” declaration that prevents any litigation under the convention in U.S courts. It has also added a federalism reservation that would prevent the convention from overriding inconsistent state law. And for good measure, it added a “private conduct” reservation that would prevent it from regulating nonstate actors, like parents or small businesses. Taken together, these limitations would indeed render the convention a legal nullity within the United States.

In any event, I argue that “sovereigntists” should save their fire (and credibility) for treaties that would actually impact US law and policy, like the UN Convention on the Law of the Sea.   There are bad treaties that would allow UN agencies and international tribunals to interpret and impose bad legal obligations on the United States, but the CRPD is not one of them.

http://opiniojuris.org/2012/12/07/support-ratification-of-the-convention-on-the-rights-of-persons-with-disabilities-because-it-doesnt-do-anything/

One Response

  1. Julian, if I understand you, you “support” the convention primarily because opposing it cost “fire (and credibility)” better spent against other treaties.  So maybe you’d have been happiest if this had never achieved any political momentum, but since it did, you think sovereigntists/conservatives should have conserved their resources for other fights.
    At least as to this caution, I think you’re seeing the world quite differently from the convention’s (other?) opponents.  I would have guessed that this was seen as a test of a general principle — whether the U.S. could be permitted to become party to a UN convention involving some semblance of UN authority over US affairs — on which compromise would be seen as a sign of weakness, not unlike acquiescence in any kind of tax increase.  And like a de minimis tax increase, the test of commitment to the principle may be even more significant when *only* that principle is at stake . . . and even more so when other forces, such as Bob Dole and the business community, make hewing to that principle more costly.
    On this view, opponents gain credibility, rather than spending scarce political capital, in successfully opposing treaties like this.  Indeed, given the comparable alignment of interest in favor of acceding to the Law of the Sea Convention — including, just as with the Disabilities Convention, the military and the business community favoring the treaty — you can see how opponents might have thought of this as a nice acid test for sovereigntist arguments, rather than as an opportunity to approve of a UN treaty based on its exceptional merits. 
    That’s not to say that this view was right, even politically.  There’s the prospect that bad press will cause the defeat to backfire.  Or that the substance — or timing — of any other treaty will make a difference; since I don’t think all treaties are alike, I tend to favor this view, and going forward would tend to attribute this result in part to the lame duck context.  Still, looking back at the history of U.S. treaty politics, and the sway in fact of sovereigntist arguments, one can see how others might view it differently.

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