Posted on | August 3, 2012 by Stefano Gennarini, J.D. |
The United Nations Convention on the Protection of Persons with Disabilities is certainly a nobly inspired document, but it creates more problems than it solves. The Senate thankfully has not been able to vote on the ratification of the new treaty, this week, in time for the summer recess. But sooner, rather than later, and possibly as soon as September, the Senate will have to vote on it.
Ratifying this UN Treaty would constitute a 180 degree reversal from US foreign policy over the past 30 yrs, and has a myriad of consequences and ramifications, none of which seem to have been given due consideration by the senators, who were nowhere to be found at the hearings that took place last month on this topic. Perhaps, they knew a vote would not come up before summer break. Let’s hope so. The consequences and ramifications of being part of the UN Human Rights Treaty system are extensive and worrisome.
So what are the considerations the senators should be making?
At the very least, this cannot be seen as just another political opportunity. The United States has always been weary of giving up its sovereignty in any form, especially to entities like the UN. We Americans cherish our Constitution, and the protections it affords us, and are generally cautious in our dealings with foreign powers, especially if those dealings require us to forgo our independence in even the slightest way.
This is nothing new. Take President John Quincy Adams for example, who was the heir of a multi-generational aversion for the slave trade, and yet refused to submit US citizens to an international slave trade tribunal. He knew that in subjecting US citizens to a foreign tribunal, the protections afforded to US citizens under the Constitution would be ignored.
Unfortunately, these doctrines from the past seem to have been forgotten. In more recent times, Sen. Kerry has been spearheading an effort to get the disabilities treaty through the Senate Foreign Relations Committee, and has been successful. He has been using the “best student” argument, saying that the United States are the world leader in Human Rights, and that we cannot continue being so, unless we are the top country in the United Nations Human Rights system. Sen. McCain, on the republican side, and others within the committee, seem to have bought this rhetoric, and have not created any real opposition to the Treaty, limiting themselves to observing that it has remarkable similarities with the Americans with Disabilities Act, and that it would facilitate travel abroad for US citizens with disabilities, veterans in particular.
Aside from the differences between the ADA and the UN Treaty, which McCain and other Republicans in the Foreign Relations Committee have so easily dismissed (e.g. the fact that the ADA is almost exclusively interested in accessibility and employment discrimination, while the UN Treaty covers a broad range of economic, social and cultural matters), the UN Treaty presents a number of provisions, that should give any US citizen cause for alarm.
Chief among these is the first mention in any hard international law of the term “sexual and reproductive health”. The non-medical term was coined in the cauldron of the United States Roe v. Wade wars. For activists at the UN and around the world it is synonymous with condoms and abortion, and very little else. There is nothing that will effectively prevent it from becoming a right to partial birth abortion, IVF, designer babies, and who knows what other weird and wonderful things under the sun, unless the US puts its foot down.
In addition, this UN Treaty, like other UN Treaties that the US has NOT ratified, establishes rights for individuals and duties for government, that the Constitution does not provide, and that Congress has never even contemplated, like “the right to the enjoyment of the highest attainable standard of health,” Art. 25, which includes the right to “free or affordable health care” (say goodbye to repealing Obamacare), as well as the right to an “adequate standard of living and social protection,” Art. 28 (say goodbye to reducing government spending and taxes).
More importantly, all the reasons that have stopped the US from becoming further entangled in the US treaty system in the past continue to be excellent reasons not to do so today. Nevertheless, the Senate GOP appears happy to brush these aside in order to avoid political confrontation on a sensitive issue. That is very worrying.
The UN human rights treaty system was shaped during the Cold War conflict. The United States led a movement for individual civil liberties, and the USSR led a movement for communal economic and social rights. This conflict played out at the United Nations in the creation of two Human Rights Treaties the International Covenant on Civil and Political Rights promoted by the US, and the International Covenant on Economic, Social and Cultural Rights promoted by the USSR. The two treaties represent each system’s effort to push their model of human rights on the global stage through the UN Human Rights system.
The US attempt of promoting civil rights as the chief human rights model through a hard law treaty backfired. The only rights with which the UN system seems to be concerned with are economic and social rights. That is one important reason the United States effectively stopped signing international treaties once this became evident in the 1970s. In the end, the EU, which took the torch of economic and social rights from the hands of the USSR, increasingly dominates the UN process, and other international mechanisms.
The USSR backed treaty is the basis of other so called “major” Human Rights treaties that the United States has not ratified: the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities.
But the principal reason the US has stopped playing human rights roulette at the UN is that it is a threat to the sovereignty of the American people and the US constitutional order. The UN Human Rights Treaty system is the single greatest threat to the international legal order since the end of the cold war. It undermines the sovereignty of nation states, by removing norm making power from democratic processes, and giving it to intellectual elites, accountable to no one, and who are content with increasing benefits and taxes until nations collapse.
The only human rights treaties that the United States is a party to merely establish rights that US citizens already possess under the US Constitution. Even so, when the US ratified those Treaties it recorded reservations stating that the United States would not give any international arbiter, like the International Court of Justice, jurisdiction over disputes that might arise under treaty provisions without US consent, and that any conflict between the Treaty and the US Constitution would be resolved in favor of the Constitution.
The effect of those reservations is to eliminate even the remotest possibility that the US was giving up its norm creating power to an international body, process or mechanism. That norm creating power is an essential attribute of sovereignty, that is increasingly under attack by international elites that inhabit the United Nations and other supra-national mechanisms.
There are also many legal problems associated with international processes, like the nascent UN Human Rights Treaty System, chief of which is the confusion of multiple legal systems into a single binding text of international law. The Common Law system, which allows for some translation, has a remarkable variety of incarnations across the globe. But the Civil Law system is entirely different from Common Law system (some would even say incompatible), and it too varies enormously from country to country. This means that one provision written into a treaty can mean a multiplicity of things to each individual country and the peculiarities of their own legal system.
Finally, there are the abuses of treaty bodies and UN agencies, which have become a major concern for UN member states, and because of which a process of reform is currently under way. Both treaty bodies and powerful UN agencies routinely expand the meaning of international instrument, disregarding the sovereignty of the nations that constituted them. Moreover, treaty bodies routinely act ultra vires by purporting to issue rulings in a quasi-judicial capacity.
In sum, it would be imprudent for the United States to ratify another UN human rights treaty until the UN system is reformed. Ratifying the convention would be seen as United States approval for this way of conducting business.