Why did the Senate refuse to ratify the disabilities Convention?

by on December 8, 2012 at 2:51 am in Law | Permalink

Many people are criticizing the Senate for failing to ratify the UN Convention on the Rights of Persons With Disabilities, background here.  The text of the Convention is here.  In terms of enforceability, it is the usual “shall undertake to do” approach, with nothing in the way of actual teeth.

Erik Voeten seems upset that the United States did not ratify and seems to regard ratification as a no-brainer.  Keep in mind that many of the good aspects of the Convention are already law in the United States and indeed often stem from American precedents.

If you would like one starting point for thinking about this issue, here is a simple exercise: imagine yourself a specialist in international law advising the U.S. government.  Here is a Wikipedia summary of one part of the Convention:

In accordance with international law, to ensure that law protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.

What do you advise?  Consider that the United States, when writing bilateral trade treaties, tries to enforce or even redefine IP law to the hilt.  (NB: I don’t at all favor this, but it is a fact of life and will very likely remain so, for obvious public choice reasons.)  You are the most powerful country on earth, so why should you ratify a Convention which will make this IP policy harder to see through and which will in fact create an entire series of loopholes, or at least rhetorical moves, many of which could end up involving weaker IP enforcement against the non-disabled?  Imagine a nation, negotiating with the U.S., insisting that derivative works with subtitles for the hearing-impaired receive weaker IP protection, and citing the U.S. ratification of this Convention.  (Personally, I probably would favor this by the way.)  All of a sudden the U.S. would have to spend some political capital whacking this back down.

Very often UN Conventions are fights over the rhetoric which will be allowed and recognized in (binding) negotiations elsewhere.  It is thus weaker nations which favor the increased ability to use such rhetoric, and stronger nations which wish to limit such rhetoric.  Guess where that puts the United States?

I do not personally have any problem with the United States ratifying this Convention.  But I recognize that a failure to ratify is simply “business as usual,” reflecting longstanding and rather deeply rooted priorities, rather than some strange Senatorial or Republican intransigence against the disabled.

More generally, the U.S. will be most interested in ratifying Conventions only if they bind other nations in a useful way to the United States.  The WTO (although not legally a “Convention”) is a good example of that, but such examples are not that frequent.

This entire debate could use a closer look at the differences between being a states party to a Convention, signing, and ratifying.

I’ve read a bunch of articles on this Convention, from various media outlets, and not one of them is setting out the basic principles here with much accuracy.

dan1111 December 8, 2012 at 3:34 am

While the language may not be strictly binding, it seems likely that the Senate’s adoption of this convention would influence the courts. There are ongoing battles on the extent of accommodation to disabled people that is required by law. For example, I remember a case a few years ago in which the state of California was being sued because some (very steep) hiking trails in the San Francisco Bay area were not wheelchair accessible.

People can disagree about what is “reasonable accommodation” without being anti-disabled. And it seems likely that the broad, rights-based language of this convention would shift the debate.

dan1111 December 8, 2012 at 4:35 am

Also, one could agree with everything in the document and still not want America’s compliance to be monitored by a committee that includes members from such free places as China, Qatar, and Jordan.

Jim December 8, 2012 at 3:58 am

AP reports its been ratified by 126 nations.
http://news.yahoo.com/republican-opposition-downs-un-disability-treaty-173630794–politics.html

The problem with how this is being perceived and the possiblity that there may have been rational reasons to oppose this convention, is that the people that view the The Daily Show and The Colbert Report were able to view video of the crazy in action, with elected Senators spouting near psychotic paranoid fears of what might happen to Americans and our children if this toothless convention is passed

“The opposition was led by tea party favorite Sen. Mike Lee, R-Utah, who argued that the treaty by its very nature threatened U.S. sovereignty. Specifically he expressed concerns that the treaty could lead to the state, rather than parents, determining what was in the best interest of disabled children in such areas as home schooling, and that language in the treaty guaranteeing the disabled equal rights to reproductive health care could lead to abortions. Parents, Lee said, will “raise their children with the constant looming threat of state interference.”

.

Stephen December 8, 2012 at 4:06 am

Jim, spot on analysis. The rhetoric being used by the senators opposed to it in their speeches on the floor of the senate are not the points Tyler is making, but paranoid, irrational, crazy reasons.

dan1111 December 8, 2012 at 4:23 am

Well, I would prefer that Lee toned if down a few notches, but if you are going to include over-the-top statements, you had better include Obama’s as well:

“Disability rights should not stop at our nation’s shores.”

As if failure to ratify this treaty would mean anything remotely like that. America is and will continue to be a world leader in protecting the rights of the disabled, whether or not this convention is ratified.

8 December 8, 2012 at 6:27 am

That doesn’t sound paranoid to me, given that it sounds accurate. When has the left ever stopped with one law? It builds the wall brick by brick. Every time they add a brick to the wall, they argue it’s just one brick, stop being paranoid. The opposition looks paranoid, pointing out that they’re building a wall. After all, it’s just one brick. It’s a good system.

Mark Thorson December 8, 2012 at 2:03 pm

Yes, this and Agenda 21 bring us one bike lane closer to a one-world-government Soviet socialist state.

http://www.huffingtonpost.com/2012/10/15/agenda-21-tea-party_n_1965893.html

http://www.americanthinker.com/2009/10/un_agenda_21_coming_to_a_neigh.html

Jan December 8, 2012 at 8:05 am

It would give us leverage to help ensure the U.S. is on a level playing field with other countries with regard to disability protections. This is especially important for businesses competition. How is that an over the top statement? Maybe not signing this treaty will be used as leverage against us one day down the line. Oh well, we are the U.S.

Nylund December 8, 2012 at 10:12 am

Did you read the statement from the press secretary? You have the shores the wrong way! The “stopping at the shores” isn’t about Americans not getting disability rights here in the US, it’s about promoting those same rights when disabled Americans go abroad.

“it would position the United States to support extending across the globe the rights that Americans already enjoy at home. This in turn would improve the lives of Americans with disabilities — including our wounded service members — who wish to live, work, and travel abroad.”

You think that is “over-the-top?” You think that is on par with the paranoid statements about how the UN is going come into your home and change the way you home-school your kid, or the statements by Rick Santorum implying a treaty like this would have caused the UN to force his wife to abort their disabled daughter?

maguro December 8, 2012 at 1:02 pm

Uh huh. And if we sign the treaty and then some other signatory doesn’t provide a wheelchair ramp for a disabled American travelling there, what is the UN going to do about it? Give me a break.

Countries that wish to provide legal protections for the disabled – like the US – are already free to do so, and countries that don’t will not be forced to, whether they sign the treaty or not.

Anthony December 9, 2012 at 10:55 am

How is this, in any way, paranoid? There are activist groups in the U.S. which are pushing for all these things already.

prior_approval December 8, 2012 at 4:05 am

‘Guess where that puts the United States?’

The nation that writes whatever rhetoric it wants – such as the U.S.’s peculiar self-defined notion of ‘free trade’ (yet again, another place to mention one of Dean Baker’s most salient Beat The Press themes http://www.cepr.net/beat-the-press/ )

Ray Lopez December 8, 2012 at 4:13 am

This issue has already occurred with medical process patents. Under US and Australian law you can patent a medical process (that is, the steps on how to perform a certain operation by an MD), but in the USA you cannot sue doctors for infringing your patent, nor in the USA their hospitals, making it largely worthless (you can sue if the patented medical method includes a new piece of hardware). Under EU law, such medical process patents are invalid. It’s been argued that US medical method patents violate TRIPS (WTO IP law). Further, this sort of thing “Balkanizes” the law into a series of exceptions. See here for a recent article. http://www.insidecounsel.com/2012/04/17/ip-the-new-patent-eligibility-of-medical-methods?t=ip

Rahul December 8, 2012 at 7:52 am

If as Tyler says the IP clause is the sticking point wouldn’t the more reasonable course be to ratify but after filing a formal reservation? Isn’t that exactly what reservations are for?

Other than this IP clause does Tyler see any other substantive reasons how this would hurt American interests?

Bill December 8, 2012 at 8:26 am

+1. I also liked how, in the post,

sentences begin with

“Imagine….”followed by imaginary interpretations.

Imagine if the Senate were to ratify the Declaration of Independence. Some pretty imaginary language in there,

including that stuff about all men are created equal.

Imagine how that could be interpreted.

Derek December 8, 2012 at 9:52 am

Imagine the UN being pretty well completely funded by the US. Imagine another costly but ineffectual bureaucracy with a grandiose name and purpose. Imagine this being led by, I dunno, Saudi Arabia, making courageous stands for the rights of people missing a hand. Imagine another reason for foreign potentates to show up in New New York for essentially a us funded shopping expedition.

Imagine a future generation considering how otherwise intelligent people could imagine that these expensive and pompous and in most cases counterproductive symbolic gestures actually mean anything.

dstraws December 8, 2012 at 3:18 pm

Yeah so what is so bad about what you just said? Anytime I can get someone to interact with Americans in their natural habitat it is good for us. The world is getting smaller all the time and it will continue to do so. Influence at any time in this process should be taken advantage of.

mulp December 8, 2012 at 5:33 pm

Ah, yes, you must buy into the Tea Party opposition to the ITU because we should not have the UN dictate to us what telephone numbers we can use, how telephone signals work, how cell phones operate, what the Internet protocols and standards are, because we are the US, and the rest of the world must make sure that they provide the telecom services we demand of them without us paying a penny.

Why, by ratifying the ITU treaty, the US is unable to use country code +52 but can only use +1 !!!

If the US were to switch to +52, the rest of the world would use the UN to cut off US global phone service! Outrageous!! We have a right to use any country code we want, and the UN can not dictate routing +52 calls to Mexico in violation of US sovereignty.

And the money we pay the UN that funds that obscene ITU which just makes all those rules and dictates what numbers the US can use is just “expensive and pompous and in most cases counterproductive symbolic gestures actually mean anything.”

If only the Tea Party recognized that all the traffic sign icons are just UN “expensive and pompous and in most cases counterproductive symbolic gestures actually mean anything.” Why we could have out traffic sign icons be based on guns: “machine gun” means fast, “muzzle loader” means slow, “deer with gun” means no hunting, “car wreck with armed moose” means watch out for the killer moose in the road.

unpublic choice December 8, 2012 at 8:51 am

“..it is a fact of life and will very likely remain so, for obvious public choice reasons”

Sorry – I’m not well versed in public choice theory, so the reasons are not obvious to me. Could someone please explain why?

Thanks.

Mike December 8, 2012 at 9:33 am

Basically, extremely strong IP protections are very valuable to some, but the costs of such a regime are diffused across all of society. Since the personal cost to me of having copyright laws extended forever (for example) is relatively small, I’m not generally going to worry much about this issue relative to the few who benefit greatly.

maguro December 8, 2012 at 9:17 am

Come on, these UN Conventions are nothing but clubs with which to beat the US. Most signatories won’t live up to it and no one will be surprised. Meanwhile, the countries that live up to it would have done so in the absence of the treaty. Completely worthless, except as a political tool for other countries to extract concessions from the US.

Ray Lopez December 8, 2012 at 9:29 am

Yeah, I also saw that strawman. What the US needs is a fair and balanced carbon tax, not an open ended treaty where some island nation in the Pacific can sue the USA for unlimited damages due to rising oceans.

mulp December 8, 2012 at 6:07 pm

You mean like the UN conventions backing ISO, which define the “Metric system” among many others, which then let’s the entire rest of the world dictate every damn measurement of anything.

My god, the metric standard is just the best example of a useless UN convention.

Better to use the length of your foot, the length of your stride, the length of your bent finger, the weight of a grain of wheat cause we don’t need no stinking UN standards. We should not submit to the rest of the world their demand we use the UN ISO metric measurements.

maguro December 8, 2012 at 7:15 pm

Yes, thank gooddness the UN invented the metric system back in 1799.

What would we ever do without them?

Roxy December 8, 2012 at 9:46 am

“I do not personally have any problem with the United States ratifying this Convention. But I recognize that a failure to ratify is simply “business as usual,” reflecting longstanding and rather deeply rooted priorities, rather than some strange Senatorial or Republican intransigence against the disabled.”

It is Republican intransigence against things that sound like do-gooder liberalism.

Shorter Cowen: Hey, I personally don’t have any problem with the U.S. ratifying this convention, but if you deliberately ignore what the Republicans are saying, you can come up with a maybe plausible argument for their position (granted, this requires some mental acrobatics that I don’t even buy, because as I said I “personally” don’t have “any problem” with ratification), so everybody please stop criticizing them.

King Cynic December 8, 2012 at 10:22 am

+1

I often have a hard time telling whether Tyler is being deceptive, ideologically blinded, or just intellectually lazy. This is one of those times.

Michael December 8, 2012 at 10:23 am

My gut feeling is that there are people who want to dismantle the “gold standard” we here in America have set for disability rights. Caring and accommodating for the disabled isn’t cheap or easy. It’s just another set of entitlements and expenses that they’d like to do away with. If this treaty were ratified, it would further enshrine those “entitlements” and make it that much harder to undo them here in the US.

That’s my guess as to what this was all about, preventing another obstacle in the dismantling of the US safety net for America’s most vulnerable.

And they scared many Tea Party types into thinking that if it passed, blue helmets would raid your home and force you to get abortions. That stuff works with the black helicopter, FEMA concentration camps types.

Ryan December 8, 2012 at 10:50 am

“I’ve read a bunch of articles on this Convention, from various media outlets, and not one of them is setting out the basic principles here with much accuracy.”

Well, the media isn’t trained for such things, so I’m not surprised.

How did the Senators measure up?

Yancey Ward December 8, 2012 at 11:09 am

The US really should only consider ratifying treaties that actually have concrete details and effects. I am simply stunned by people on the one hand saying the US is hurting the rights of the disabled in not ratifying it, but then out of the other side of their mouths saying it really is vaporous rhetoric that can’t possibly hurt the US. Fine, then just pass a resolution through the Senate that lays out the rhetoric and leave it at that.

The Other Jim December 8, 2012 at 5:15 pm

Bingo.

This whole discussion is just fodder for American oikophobes. Move along, nothing to see here.

Christopher Walker December 8, 2012 at 11:11 am

Prof, I understand your point about the differing dynamics of strong/weak nations in international agreements, but I think you have to look at it in another way as well.

Sure, we don’t have to do anything we don’t want to, and this is true for the US perhaps more than any other country. But international law isn’t so much about enforceability as it is establishing global “norms” that countries should follow in order to maintain a certain level of international prestige and respect. When the US doesn’t put its name on these Conventions – and again, this is perhaps more true for the US than any other country – that is a major blow to the standards of this Convention becoming an international norm that should be “expected” of countries wishing to garner international respect.

And you’re right, it’s all rhetoric and posturing, but that is how most of international standards “enforced.”

Just my opinion

yenwoda December 8, 2012 at 11:12 am

So the “reasonable” argument against ratification is that 1) it’s a toothless, symbolic document; 2) if it weren’t toothless and symbolic it could interfere with aggressive US IP enforcement; 3) which would actually be a good thing. Okay… but that’s not even “why the Senate refused to ratify”. The Senate isn’t a black box whose motivations needed to be guessed at; we can look at what actual Senators said in opposition. It seems to be a mixture of general refusal to consider treaties during a lame duck Congress (doesn’t make much sense to me), Tea Party fears of blue helmeted thugs escorting pregnant disabled women to get abortions against all principles of sovereignty &c., and a surprisingly well coordinated campaign to scare home-schoolers. This is not a great example of devil’s advocacy.

As others have noted, there are 126 ratifications, not 20; and if nations have reservations about portions of a convention there is a mechanism (formal reservations) to deal with that.

Thomas December 8, 2012 at 5:29 pm

While you are discussing reservations, you might address whether the convention puts any limits by its terms on those reservations. (Hint: it does! and it doesn’t permit the reservations the US made!)

Andrea December 8, 2012 at 11:13 am

I’m not sure why I should take your opinion seriously when you did such a poor job of research you can’t even get the number of ratifications correct. The best source for this (though the yahoo link someone offered here did happen to be correct also) is always the official UN site on the CRPD itself: http://www.un.org/disabilities This will always have the most recent information on how many and which countries are signatories, and how many (and which) are ratifying state parties to the treaty. The CRPD has been adopted and ratified at a faster pace than most other treaties. The US is increasingly looking rather backwards in international perceptions for not having been one of the first to ratify.

Roxy December 8, 2012 at 12:45 pm

Particularly amusing to see this error in a post that criticizes “various media outlets” for their failure to live up to Cowen’s lofty standards of “accuracy.”

chuck martel December 8, 2012 at 11:57 am

The UN literature naturally doesn’t go into details but personal experience with disability “rights”, whatever they are, demonstrates some logical inconsistencies. How about “handicapped parking, for instance. Assuming that providing parking a short distance from destinations is intended to make access easier for those with mobility problems rather than mental issues, what’s the logic? Well, it starts with people without handicaps, that consider it advantageous to park as closely as possible to wherever they’re going. In fact, of all the short term goals in American society, none is more ubiquitous than convenient parking. So, we assume that handicapped drivers should enjoy what everyone else wants, too. But is that necessarily true? Don’t handicapped individuals need exercise just like everyone else? When a person has a stroke, for instance, isn’t part of the rehabilitation process physical therapy, a process designed to minimize the negative effects on their diminished mobility? So when that therapy is over does that mean the handicapped stroke victim should never have to exert themselves again? Are we doing some one a favor by attempting to insure that they never have to unwilling exert themselves ever again? If a handicapped driver can’t find a reserved parking spot do they park somewhere else, go to another business or go home and try again later? Isn’t it a fact that the handicapped parking system has been abused by drivers having minimal issues or even using another’s sticker or tag? Who defines and issues handicapped credentials? How about providing some statistics on the realities of handicapped parking. People with disabilities and handicaps don’t have any more rights than anyone else and, with the exception of public buildings, requiring private entities to accommodate them is a violation of private property rights.

Rahul December 8, 2012 at 12:06 pm

Let’s get your arguments straight: Are you saying:

(a) We ought to help the disabled but our current policies, though well intentioned, do a bad job?
OR
(b) We do not need to do anything special to help the disabled since they are no special than the rest of us?

chuck martel December 8, 2012 at 1:55 pm

What’d ya mean, “we”, white man?

spike December 8, 2012 at 2:35 pm

Heartless moron of the day award goes to….

I do hope that you realize that if the US standard of law was such as you propose, discrimination against POC, women, etc., would be legal.

If that doesn’t bother yo, then you have never faced outright discrimination or disability.

The Anti-Gnostic December 11, 2012 at 10:28 pm

Actually, it is impossible to get thru life without experiencing episodes of discrimination or disability.

Steve C. December 8, 2012 at 2:20 pm

Just because Rick Santorum makes a silly argument, doesn’t mean he hasn’t identified a problem.

I hope nobody would argue that the federal governments powers, originally defined as few and specific, haven’t expanded geometrically over the past 80 years.

Regular constitutional order requires laws to be passed by two houses of Congress and signed by the President. Treaties require a Presidential signature and approval by 2/3ds of the Senate. Madison et al rightly assumed that treaties would address mutual subjects between sovereigns. Objects like trade, war, peace, and navigation. External relations. According to the constitution, treaties become the law of the land.

When a treaty can impact the routine life of a private citizen, my spidey sense tingles.

john chamberlin December 8, 2012 at 9:06 pm

Rick Santorum..silly argument.
isn’t that axiomatic?

chuck martel December 8, 2012 at 3:29 pm

Evidently you’re contending that large numbers of the human race must be compelled, under ultimately the threat of violence, to be nice to their fellows. Thank goodness folks like you are around to legislate morality.

chuck martel December 8, 2012 at 3:31 pm

A reply to spike.

Engineer December 8, 2012 at 4:24 pm

“International law” is one of those phrase that just elicits awestruck reverence in the liberal monoculture (“peer-review” is another phrase).

This is despite the fact that international law lacks basic features of regular law has eg. consent of the governed, due process, and especially equality under the law.

Alvin December 8, 2012 at 4:58 pm

This type of policy – weakening of IP rights against the disabled – would harm the disabled. There would be less incentive to create the original work if the derviative works were not protected.

The same argument applies in the medical arena. If you weaken patent rights on therapies and diagnostics – think of the patents on the breast cancer diagnostics and methods – you’ll have fewer diagnostics on the market.

A lot of people, and not just pharma and biotech companies, are pissed off at the possibility that these patents could get struck down. Cancer patients are nurses especially are angry over the possible invalidation of the BCRA gene patents.

Alvin December 8, 2012 at 5:00 pm

Sorry for the typo…the last sentence above should say “Cancer patients AND nurses…”

The Other Jim December 8, 2012 at 5:13 pm

I love how HuffPo calls it “a failure to show global leadership” when the Senate refuses to follow the herd and do exactly what 126 other nations are doing. Psycho-leftism in action.

The convention was a waste of time. Good riddance.

john chamberlin December 8, 2012 at 9:01 pm

“I recognize that a failure to ratify is simply “business as usual,” reflecting longstanding and rather deeply rooted priorities” like a paranoid antipathy to anything ‘UN” ?

Mr Cowens
Your effort to put lipstick on the pig of the reasons proffered by Republicans during floor debate cannot obscure the fact they had nothing to do with what you present, not that I agree with them.
To paraphrase Mr Carville, why throw the Republicans an anchor? It has wrapped the anchor chain around its neck and is making ‘weigh’ to sleep with Mr D Jones.

Engineer December 9, 2012 at 3:58 am

How about providing a reason in favor of ratifying the convention instead of just offering quotes from the liberal monoculture about the supposed stupidity of the Republicans?

Why _should_ it be ratified? I haven’t seen a reason offered in this thread.

LegalMinimum December 9, 2012 at 10:04 am

What Tyler says about derivative works is already true under US law, at least according to one court. In the HathiTrust universities book scanning case, the court held that scanning and making e-books out of print books so that they could be put through text to speech is fair use in part because it promotes the goals of the Americans With Disabilities Act.

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