Why did the Senate refuse to ratify the disabilities Convention?

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.


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