The most important rule of international law is “pacta sunt servanda”—agreements must be kept. When the United States, or any nation, becomes a party to a treaty, it promises to obey the provisions of the treaty as a legally binding commitment. Treaties are not feel-good endorsements. They create law.
A second fundamental rule of international law is the rule of equality of nations. Every nation decides for itself whether to enter into any international commitment. Every nation is equal with every other nation. And every nation is entitled to self-government—meaning no other nation can tell it what it must do.
When one understands these two basic premises of international law, it draws into serious question the arguments advanced by Bob Dole and other proponents of the United Nations Convention on the Rights of Persons with Disabilities, which the U.S. Senate’s Foreign Relations Committee considered Tuesday.
Caveats Don’t Matter
Treaty proponents argue the United States will not be submitting itself to United Nations mandates; rather, our ratification will advance the rights of disabled people in other countries. And, they argue, our ratification will ensure that when Americans with disabilities travel overseas, they will receive the same level of access the Americans with Disabilities Act made possible in this country.
U.S. ratification means that the United States is committing itself to adhere to the treaty. Pacta sunt servanda. U.S. ratification does not have any direct effect on the law in any other nation. Equality of nations. The idea that our ratification will not cause legal changes in the United States but will result in real changes in other nations manages to violate both of the most fundamental principles of international law.
Dole and others will protest: But read our package of Reservations, Understandings, and Declarations (RUD). These will answer all of your concerns.
First, there is the non-self-executing declaration. This only means Congress has the duty to pass legislation to implement the treaty rather than allowing courts to directly enforce its provisions. This does not change our legal duty to comply; it only changes the agency in charge of enforcing compliance.
Second, there is the federalism declaration. All this means is that legislative authority on disability issues will not change merely because of the ratification. This declaration does not relieve our nation from its duty to comply. And, in any event, the power of Congress to legislate under the General Welfare Clause is essentially unlimited, as the Supreme Court confirmed in the Affordable Care Act litigation. Congress will have all of the power it needs to implement the treaty.
Third, there is the declaration designed to protect homeschoolers from the provisions of the treaty that will damage parental rights.
The emptiness of this declaration requires knowledge of the recent Romeike case in which a German homeschooling family lost their bid for political asylum in the United States. Our government contended that treaty language that promises parents could choose a form of education according to their own convictions did not create a binding human rights commitment that our nation is obligated to recognize. This language was found in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Cultural, and Social Rights.
Any student of international law would be able to explain to Dole that treaty language is a superior source of international law than a RUD any day.
Homeschoolers learned that our nation repudiates treaty language designed to protect parental rights in education. And homeschoolers are now supposed to be placated with a mere RUD? I think not.
International Treaties Displace Self-Government
The simple truth is that international law has lost its way. It serves a vital purpose in regulating how nations treat other nations. But when international law purports to actually control how nations treaty their own people, we have an inherent conflict with the principle of American self-government.
Americans should make the law for America. And if U.S. Senators feel that they are incapable of making the necessary law to protect Americans with disabilities and need the assistance of the UN in this endeavor, then they should do the honorable thing and resign their seats. New senators who feel up to the task can pass American laws to provide whatever new protections our disabled citizens need.
The final argument raised by Dole & Co. is that the United States loses its standing in international circles by failing to ratify this treaty. I contend that we do far more damage to our international standing if we claim to ratify on the basis that America need not comply with this treaty but all of the rest of you really need to get in line now that we have ratified. This is the antithesis of wise diplomacy and the ugliest version of the Ugly American that can possibly be imagined.
Michael Farris, JD, is founder of the Home School Legal Defense Association. He holds an LLM in public international law from the University of London.