The War of Law

How New International Law Undermines Democratic Sovereignty

Stainless steel gavel, Ohio.
Stainless steel gavel, Ohio. (Andrew F. Scott / Flickr)

Rarely does the U.S. Senate reject a treaty. But on December 4, 2012, it did just that, blocking ratification of the UN Convention on the Rights of Persons With Disabilities. President Barack Obama had argued that by joining, the United States would “reaffirm America’s position as the global leader on disability rights” and help inspire other countries to improve their treatment of the disabled. Skeptics asked why ratification would prove more inspirational than the U.S. domestic laws already on the books. When skeptics also warned of the effect on U.S. sovereignty, supporters stressed that the treaty imposed no burdensome requirements. That was a peculiar argument, for if the treaty lacks substance, then there is no point in ratifying it, and if it makes substantive demands on the parties, then the concerns about sovereignty are well founded.

What little news coverage the Senate vote did garner tended to describe the treaty’s supporters as sympathetic to the disabled and its opponents as insensitive. Little light was shed on why any senator would appear to subordinate the interests of the disabled to an ideological abstraction such as sovereignty. But what sank the treaty was not heartlessness, nor was it any abstract quibble. Rather, opponents were worried about something practical and fundamental: whether U.S. laws should be made by politicians held accountable to Americans through the ballot box or by unaccountable officials in multinational organizations. If the treaty has a practical effect, it will be due in large part to interpretations made by foreign government officials and judges and by nongovernmental organizations, none answerable to American voters.

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