INTRODUCTION

After a contentious debate last year, the U.S. Senate rejected an international treaty related to the rights of the disabled. The public discussion of this issue brought to light some important differences in views on whether and how the U.S. should use treaties to spread its values around the world.

In general terms, the main arguments on each side of the disability rights treaty were as follows. On one side, proponents of ratifying the treaty suggested that the treaty was largely consistent with U.S. law. The purpose of the treaty was mainly to make the rest of the world “more like us,” as then-Senator John Kerry put it.¹

On the other side, opponents worried that the vaguely worded treaty might in some way interfere with U.S. sovereignty, by requiring us to change how we do things in the area of disability rights. And while the U.S. should promote its values abroad, some argued it should not be done through treaties, which are ineffective at convincing most governments to change their ways.

This essay uses the debate surrounding the disability rights treaty as a basis for exploring the United States’ use of treaties and other international agreements to push other countries to adopt specific domestic policies. Should we try to make the world like us? Are treaties a good way to accomplish this? Are there any negative repercussions from doing so? After considering these questions, I propose an alternative approach to spreading our values in the international arena.

I. TREATIES (AND OTHER INTERNATIONAL AGREEMENTS): WHAT ARE THEY GOOD FOR?

Broadly speaking, treaties and other international agreements can be used for a number of purposes. They can address issues of international relations, such as the treatment of diplomats, the laws of war, or the conflict caused by economic nationalism. They can promote a country’s strategic interests, such as protections for investments abroad. And they can make policy at a global level, such as in the area of disability rights.

In many cases, a treaty might have more than one purpose. For example, international agreements on intellectual property protection could be seen as making policy, but also promoting the interests of rich Western countries with a lot of intellectual property.

The focus of this article is on treaties that are used mainly for policy-making. In theory, international policy-making could be an attempt to harmonize policies globally, finding a middle-ground among various domestic policies. In practice, though, when the United States is involved, it tends to be the United States pushing its policies on others. The issue here is: Should the United States try to spread its values by pushing particular policies in treaties and other international agreements?

II. IS THERE ANY “DOMESTIC” POLICY-MAKING IN A GLOBALIZED WORLD?

In today’s world it sometimes feels as though events in other countries have a real impact here in the United States. When Spain becomes the latest of many countries to legalize gay marriage, it seems natural to take this as a sign that gay marriage will someday be legal throughout the United States. But despite the connection we feel with world events, a “domestic” sphere of policy-making still exists. It may be that “domestic” and “international” issues are separated more by degree, rather than being completely different categories. Some domestic issues spill over into the international arena more than others.

To illustrate this, consider the issue of adoption. On the one hand, a country’s decision whether to allow gay people to adopt is a domestic one, even though people in other countries may have an opinion on the matter and may be concerned about the choice. On the other, international adoptions have an impact on relations between governments, and thus have an inherent international component.

III. I’D LOVE TO CHANGE THE WORLD: USING INTERNATIONAL LAW TO MAKE OTHER COUNTRIES “MORE LIKE US”

The disability rights treaty had a very small international component. It was mostly about taking the domestic policies of some countries and applying them globally. One of the points made by U.S. supporters of the disability rights treaty is that its main goal was to make the rest of the world “more like us.” It was not about international relations, but rather an attempt to change other countries’ domestic policies. On this issue, there are some important questions that need to be asked: Why should we try to make the rest of the world more like us? If we should try, in what specific ways should they be more like us? And finally, what is the best way to make others more like us?

Let’s start with whether it is a good idea to try to make the rest of the world “more like us.” In some sense, this is a natural instinct. Presumably, most countries believe their choices are good ones. Thus, others would benefit from copying their models.

The real issue here is probably one of tone. It comes across to many people as arrogant to tell the rest of the world to be more like us. Perhaps we should try to spread our values, and obviously we think we have good ones, but we should tread lightly here. A world where everyone is trying to influence each other can get pretty contentious. And a situation where one country is trying to make everyone else “more like them” can lead to a backlash against that country.

A softer approach to this same idea might be more effective. For example, if we think we are doing the right thing in a particular policy area, we could simply hold it out as an example for others to follow. Thus, while attempts to spread values to others are understandable, and probably desirable, some tact is required.

Assuming that, to some degree and in some way, we want to spread our values, the question then arises as to how to do it. The critics of the disability rights treaty were not against spreading our values. They just did not want to do it in a treaty, which, they said, was ineffective and gave cover to countries that were egregious violators of the principles therein, but signed-on anyway.

The question here is whether treaties are the best way to spread values. There is a balance to be struck here. Aiming a nuclear missile at a country clearly goes too far; sending a polite note requesting changes may not be enough. We need to find the right middle ground. Can treaties be effective in this regard? The evidence on this point is mixed at best in the context of human rights treaties.

Furthermore, if we are going to try to change the world to be “more like us,” we need to think about how we want to change it: More death penalty, free markets, and gun rights? Or more Keynesianism, abortion rights, and protection for minorities? If it is just more of the views of whichever party is currently in power, we may wear out our welcome with ever changing demands for how the world should behave.

To take a concrete example, Canadian law on expropriation of property is less protective of individual rights than is the corresponding U.S. law. Should we try to change the Canadians to be more like us in this area? If so, why? Because we believe it is the right thing to do as a public policy matter? In order to give Canadians similar protections? Or to give U.S. investors in Canada stronger protections? If our goal is to protect U.S. investors, our motives seem questionable. It no longer seems like we believe in the policy. We are just looking out for our interests.²

And how should the effort be carried out? Should we do it through a treaty, or through an informal explanation to Canada of why we think they should change? The particular purpose might affect the approach that is taken. And if it is through a treaty, isn’t there an imbalance if we do not have to do anything? This makes the whole process feel like a sham: We are demanding that they change while we do nothing.

The reasons and the approach taken on these issues affect how the rest of the world sees us, how effective we are at spreading our values, and how international law may ultimately have an impact on us, an issue to which we now turn.

IV. THE UNINTENDED CONSEQUENCES OF INTERNATIONAL LAW: “YOU MEAN THIS APPLIES TO US, TOO?”

When the U.S. signs international treaties, it is often assumed that the impact will be on others, not on us. As an example, in the investment treaty context, Judge Stephen Schwebel recently noted:

For more than 150 years, the United States strongly espoused the protection of foreign investment. That position was constructively developed by the terms of the 1994 U.S. Model BIT. However the United States sharply modified its traditional position with the advent of NAFTA, not by the terms of that Treaty but by interpretation of it and by the positions it took in cases brought by Canadian investors against the U.S. Government. The United States made the remarkable discovery that treaty obligations run in more than one direction; foreign investors could take advantage of U.S. obligations just as U.S. investors could invoke the BIT obligations of other States.³

Along these same lines, of great concern to the critics of the disability rights treaty was how it might affect what we do here in the U.S. The proponents are right that the treaty generally reflects U.S. policies, and thus on its face would not have much impact on current U.S. practice on disability rights. At the same time, as with most legal obligations, there are vaguely worded portions that are susceptible to different interpretations. We can all agree that actions should be in the “best interests of the child,” but who decides what is in the “best interests of the child”? Opinions may vary.

Could some of these provisions be interpreted in ways that conflict with U.S. policies? Probably. But a key question is this: Who would interpret the provisions this way? Unlike some treaties, this one does not have a dispute procedure under which international judges can interpret the rules and apply them to the actions of signatory nations. So, how would there be any impact on U.S. policies? One possibility is through domestic litigation. Even though domestic lawsuits cannot be brought directly under this treaty, it has been argued that treaties like this one should play a role when U.S. courts interpret related domestic law in various ways. This idea is contentious, and the argument may very well fail, but it is out there as a possibility.

To deal with these issues, certain “reservations,” “understandings,” and “declarations” (in essence, exceptions to the general obligations) were included with the disability rights treaty text. Thus, there was a “reservation” making clear that “the United States of America does not accept any obligation under the Convention to enact legislation or take other measures with respect to private conduct except as mandated by the Constitution and laws of the United States of America.”⁴ This reservation was intended to prevent regulation of non-state actors such as parents or small businesses.⁵ And because there was concern about the interpretation of the term “best interests of the child” in the treaty, an “understanding” was added to the effect that “The United States of America understands that, for the United States of America, the term or principle of the best interests of the child as used in Article 7(2), will be applied and interpreted to be coextensive with its application and interpretation under United States law. Consistent with this understanding, nothing in Article 7 requires a change to existing United States law.”⁶

Are these efforts to limit the impact on U.S. law sufficient? It is difficult to say in the abstract. There is a good deal of uncertainty as to how international law might be used in this way, but there is a possibility that it could have an impact.

More generally, beyond specific domestic litigation, treaties can be used to establish norms that push nations in a certain direction. If a treaty provides a mechanism for suggestions and recommendations to signatory nations (as this treaty does), it could be used to influence the domestic political agenda. Thus, if the United States takes a different approach than others to particular issues, there would be an opportunity for countries to push the U.S. to change its policies.

Thus, there is a possibility that a treaty like this one could have some impact, albeit probably a small one, on domestic affairs in the area in question. In this way, it does limit “sovereignty” to a small degree.

V. THE APPROPRIATE ROLE OF INTERNATIONAL LAW IN POLICY-MAKING

There are legitimate reasons for critics to question the current role of international law, especially as it relates to domestic policy issues. However, despite any doubts they might have, they cannot simply ignore it. The U.S. cannot sit on the sidelines of the international law game. Countries will continue to push international law in various forms with or without us. The disability rights treaty has been signed and ratified by 133 countries.⁷ It is important that the U.S. plays a role in this process, at the least to help shape it, but also more generally to play a part in the community of nations, engage with the rest of the world, and express specific values.

Based on the Senate disability rights debate, there seems to be broad agreement that we should communicate our values to the rest of the world. None of the critics disagreed with this view. We think we have good values, and we would like to see them spread. The question is how to accomplish this in an effective manner.

As much as law can be a force for shaping values in the domestic context, it may be less effective than some might hope in the international context. Convincing countries that do not respect the rule of law to sign on to a legal instrument may not have the positive impact supporters expect. As some of the critics noted, it may simply provide these countries cover so that they do not have to take any real action.

Instead, perhaps international discussion of these issues should be less formal and legalistic. Such dialogue should focus more on general principles, rather than legal obligations. More important than legal technicalities may be an opportunity to present one’s case, that is, to explain what one is doing and why. If we believe in our vision of disability rights, we should tell others about it, and hold it up as an example. And just as important is to hear from others. What do they think of our approach? What are they doing on the same matters? What advice can we offer them?

All of this may be better achieved with some sort of permanent international “conference” rather than a formal treaty. An institution to work on these issues is useful, and it is good to have an international forum to talk about domestic policies: disability rights, intellectual property, gay rights, and pensions, to name a few. We can all learn from each other.

By contrast, a formal treaty might end up being of less value. Some existing treaties feel like a sham. Many countries sign on, but have no plan to do anything to implement. And the United States often only signs treaties when it does not have to do anything to implement. The whole arrangement seems disingenuous.

A less formal approach might be a better way to accomplish our foreign policy goals, and would intrude less into domestic affairs. Which is more useful? Having a persistent human rights violator sign on to a treaty that no one expects it to follow? Or having an opportunity to make the case for reform in that country as part of an international discussion?

On the other side, where U.S. policies come under scrutiny, we should not fear a discussion. With regard to the prospect of having international bodies weigh in on domestic policy, perhaps we need to be a little less worried about this sort of critique from outsiders. We should be confident enough in our views to be able to defend them. These kinds of critiques are not just a chance for others to scold us. If that does occur, they also provide an opportunity for a vigorous defense of our values.

Ultimately, perhaps we need to be more realistic about what international law is and what it can do. Legal instruments that do not operate like real law may be a bit deceptive, suggesting that they are doing things which they really are not. Signing on to a disability rights treaty does not actually make countries comply with its terms. We should avoid the illusion that it does, as this can undermine the important work international law does in governing international relations. The laws of war, diplomatic relations, and international trade and investment, to name a few, involve real interactions between nations, and all benefit greatly from strong legal instruments. If we promote international legal instruments that we know will be ignored, we weaken the law that we want followed.

Notes:

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¹ 158 CONG. REC. S7378 (daily ed. Dec. 4, 2012) (statement of Sen. Kerry).
² Note Senator Kerry’s statement that the disability rights treaty will be “good for American business, which can sell products and services as other nations raise their standards and need our expertise to meet their goals. That is why, incidentally, the United States Chamber of Commerce supports this treaty as do a huge number of businesses.” Id. at S7379.
³ U.S. DEP’T OF STATE, REPORT OF THE SUBCOMMITTEE ON INVESTMENT OF THE ADVISORY COMMITTEE ON INTERNATIONAL ECONOMIC POLICY REGARDING THE MODEL BILATERAL INVESTMENT TREATY: ANNEXES (Sept. 30, 2009) (statement of Judge Stephen Schwebel), available at http://www.state.gov/e/eb/rls/othr/2009/131118.htm#9
⁴ CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES, S. EXEC. REP. 112-6, at 15 (2012).
⁵ Id. at 111.
⁶ Id
⁷ United Nations Treaty Collection, Status on Convention of Persons with Disabilities, at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en (last visited Aug. 4, 2013).