The Convention on the Rights of Persons with Disabilities and the Question of Sovereignty

Last week I described Catholic teaching on international institutions, in particular focusing on the tension between the desire for institutions with the power to enforce globally binding measures needed in an increasingly interdependent world, and that for institutions that, following the principle of subsidiarity, respect the legitimate authority of states. I ended by posing two questions left unanswered in Catholic teaching:

•  Given that international law now covers a wide range of issues covering not just those transnational in scope, but also those concerning the relationship between the state and the individual, what is the boundary between the proper realm of the state and the international authority?

• How could an international political authority with the power to enforce its will on states in areas within its proper competence be restrained from doing so in areas outside its competence?

In this post I will explain how the debate over the Convention on the Rights of Persons with Disabilities, voted down by the United States Senate on December 4, illustrates the relevance of these questions.

Opponents of the convention are not hostile to the rights of the disabled; rather, their criticisms of the convention centered on specific features of its content and on the issue of sovereignty. One of the criticisms of the specific content of the treaty is that it is unclear about parental authority over children, particularly in determining what is in the best interests of a disabled child (See Article 7.2). This argument was made particularly strongly by homeschoolers. Another criticism is that Article 25(a) assures equal access to health care, “including in the area of sexual and reproductive health and population-based public health programmes.” Although abortion is not specifically named, critics fear that this passage could be used as a basis for an international right to an abortion. The Holy See refused to sign the convention in 2006 over the issue of abortion.

As with other international conventions, though, signatory nations could circumvent these objections with appropriately-worded interpretations and reservations. In my opinion, the more important criticisms arise in the realm of sovereignty.

Of course, some would reject on principle any treaty that constrains the United States. Austin Ruse writes at First Things:

 Opposition centers first and foremost around the question of need. Do Americans with disabilities need this treaty? Does the U.S. in general? Americans with disabilities are already protected by the strongest laws in the world through the Americans with Disabilities Act.

But there are several ways that the U.S. benefits directly from international human rights law, including this convention. On many occasions the United States intervenes, militarily and in other ways, in the affairs of other nations in the name of human rights; human rights law provides a shared framework for these interventions. Americans constantly travel to foreign countries, and international human rights law helps to create shared standards of treatment across borders. And finally, human rights law provides a framework for cooperative efforts on global issues such as the environment, migration, and economic globalization.

Also, I think we must take seriously the teachings of popes such as John XXIII and Benedict XVI that, even apart from national interest, international institutions have an important role to play in promoting human rights. As I wrote in my previous post, Catholic teaching is clear that international institutions should have some kind of authority over the relationship between state and citizen when it comes to human rights.

So while accepting of the convention in principle, I believe that the more important problem is not with its content but with the institution tasked with its oversight. Like the other major international human rights convention, the Convention on the Rights of Persons with Disabilities creates an oversight committee, the Committee on the Rights of Persons with Disabilities. Signatories must periodically produce state reports outlining their efforts to implement the treaty, and the committee makes recommendations to the reporting country.

Other reporting committees, however, have arguably gone beyond their mandate by recommending policies outside their specific competence or that would be better decided by the democratic process at the national level. For example, the Committee on the Elimination of Racial Discrimination (CERD) has taken advantage of the fact that the Convention on the Elimination of Racial Discrimination defines racial discrimination not only in terms of overt discrimination, but also in terms of what in the U.S. is called “disparate impact,” to make recommendations on practically any matter where racial disparities come into play. In its concluding observations on the United States in 2008, CERD proposes a moratorium on the death penalty, calls on the U.S. to grant judicial review to detainees at Guantanamo Bay, and recommends granting voting rights to convicted felons who have completed their sentences. The point is not that these are bad policies, but rather that many are covered by other areas of international law over which CERD has no authority, and there seems to be little limit on what sorts of matters the committee could speak on.

CERD has also made quite specific policy recommendations more directly related to racial discrimination, such as criticizing recent Supreme Court judgments on affirmative action (likely referring to Grutter v. Bollinger (2003), permitting only limited racial preferences in university admissions and Parents Involved in Community Schools v. Seattle School District No. 1 (2006) prohibiting race-based assignments for public schools), proposes measures such as bussing to better racially integrate public schools, and recommends discarding “zero tolerance” discipline policies in schools. Again, the point is not that the policies being recommended are necessarily bad, but they are complex and involve multiple, competing stakeholders; such issues are better decided through democratic give and take by representatives accountable to the stakeholders.

Similarly, the Committee on the Elimination of Discrimination Against Women (CEDAW) has demonstrated a lack of due regard for proper boundaries. For example, in 2008 it recommended to Finland that the government should do more “to promote equal sharing of domestic and family tasks between women and men.” The committee has recommended the legalization of prostitution to China, Germany, Liechtenstein, Mexico, and Sweden. The committee has also shown little regard for rights of conscience; for example, in its 1998 recommendations to Croatia, it states that it is “concerned about information regarding the refusal, by some hospitals, to provide abortions on the basis of conscientious objection of doctors. The Committee considers this to be an infringement of women’s reproductive rights.”

The Committee on the Rights of Persons with Disabilities will likely engage in the same sort of overreaching. Of course, none of these committees has the authority to enforce its recommendations, but that applies to both the good and the bad. According to CERD (see p. 78), twenty-five countries (including the Holy See!) have not even submitted a state report in ten or more years. If international institutions are to have “real teeth,” to use the words of Pope Benedict XVI, then the decisions of these treaty oversight committees, or institutions much like them, will have to have consequences. But how can it be assured that once given the authority to enforce their decisions, these bodies will limit themselves to areas within their proper competence? And where do the lines defining that competence fall? Further reflection on the role of international institutions in promoting the global common good, including Catholic teaching on this matter, must grapple with these questions.