But — advocates say — consider how toothless the actual enforcement is sure to be! According to Sen. John Kerry (D-Mass.), “the U.N. committee created by the treaty only has the power to recommend, and cannot force individual nations to change their laws.” The Washington Post editorialists make joining the treaty sound as if it were just a way of getting into an ongoing neighborly chat-and-lend-a-hand process: “ratification would give Americans the standing to lobby other nations to follow the U.S. lead and to offer help to those who want to do so.”
That’s wrong. Obviously, having enacted aggressive disabled-rights statutes of its own already, the U.S. is already in a position if it wishes “to lobby other nations to follow [our] lead and to offer help to those who want to do so.” Who would stop us? After a ratification, however, we will assuredly hear less happy talk about our rights to advise and offer help and more talk about the solemn “treaty obligations” that we have now assumed, and we will be told that refusing to adopt one or another aggressive interpretation of disabled rights makes us willful violators of international human rights law. As the 36 critical senators remind us in their letter: “Under Article 6 Section 2 of the Constitution, treaties that receive the advice and consent of the Senate will become the ‘supreme law of the land.’”
In their own publications disabled-rights advocates, and their cheering section in law schools and the foundation world, often frankly acknowledge that they expect it to have far-reaching effects in this country. New York Law School professor Michael Perlin, who has decried disparate treatment of mentally ill persons as the ill effect of a prejudicial syndrome he calls “sanism,” has argued hopefully that the convention could revolutionize the legal rights of the mentally ill. At present, many states are in litigation with the federal government over whether they can lawfully maintain existing group facilities for the care of the developmentally disabled; the federal Justice Department is negotiating the shutdown of many such facilities even when residents’ families plead for them to be kept open as the safest and most familiar places for their loved ones. Congress might revisit this issue in the future to strike a different balance, but should the convention be ratified in the meantime, we can confidently predict that the treaty will be said to have settled the issue. Some local medical clinics protest that it is overly burdensome to demand they provide sign language interpreters at their own expense for all hearing-impaired comers. Again, Congress would be giving up the future flexibility to set a different course.
Republicans have understandably relied on procedural objections to having such an important measure considered without any obvious necessity during the lame-duck session. But the truth is that whether presented today, next term, or 10 years from now, the convention deserves rejection by the Senate.
Walter Olson is senior fellow at the Cato Institute. He wrote about the new international human rights law in his book Schools for Misrule (Encounter, 2011).