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: