Do Human Rights Treaties Matter? The Case for the United Nations Convention on the Rights of People with Disabilities.

• Author: Kanter, Arlene S.

TABLE OF CONTENTS I. INTRODUCTION 578 II. DO HUMAN RIGHTS TREATIES MATTER? 579 III. WHY DO COUNTRIES RATIFY TREATIES? 584 A. Theories of Treaty Ratification 585 B. Why Countries Decide to Ratify or Not Ratify the CRPD 590 1. The Failure of the United States to Ratify the CRPD 590 2. The Decisions of Other Countries to Ratify the CRPD 592 C. Ratifying States May Not Have Yet Realized the Potential Effect of the CRPD 593 IV. THE CRPD MATTERS: IT IS MAKING A DIFFERENCE IN THE LIVES OF PEOPLE WITH AND WITHOUT DISABILITIES 594 A. Background of the CRPD 595 B. Why the CRPD Matters 596 1. The CRPD Is Changing Society's View of People with Disabilities 596 2. The CRPD Is Having an Impact on the Development of Domestic Disability Laws 599 3. The CRPD Is Having an Impact on International Human Rights Norms 600 1. The CRPD Introduces New Rights and Novel Interpretations of Existing Rights 601 5. The CRPD Provides a Model for Awareness Raising 605 6. The CRPD Provides a Model for More Rigorous International and Domestic Reporting and Monitoring 606 V. CONCLUSION 608 Nothing will change overnight but change comes more rapidly with law behind it. --Kofi Annan, December 13, 2006 (1) I. INTRODUCTION

In recent years, the efficacy and wisdom of international human rights treaties, as well as the philosophical underpinnings of the entire human rights regime, have come under attack. Some scholars call our time the "post-human rights era." (2) The continued existence of human rights violations around the world, they argue, constitutes sufficient evidence that human rights laws have not worked. (3)

While it is true that human rights treaties have not realized their full potential in every country that has ratified them, this Article presents the argument that human rights treaties do have positive outcomes, as least with respect to the most recently adopted treaty, the Convention on the Rights of People with Disabilities (CRPD). The CRPD has successfully spurred the development of new disability rights laws, policies, and practices, thereby providing a case study for the potential effectiveness of human rights treaties.

The CRPD was adopted by the UN in 2006 as the first treaty written for and by people with disabilities. (4) This treaty is not only transforming the way in which the world views people with disabilities, but it is also changing state practices to ensure new protections, opportunities, and participation for people with disabilities, often for the first time in history. Moreover, the CRPD is creating new norms within the international human rights regime itself.

This Article begins by situating its argument about the impact of the CRPD within the current debate about the effectiveness of human rights treaties, generally. Unlike those scholars who assess the effectiveness of human rights treaties by comparing human rights practices before and after ratification, this author argues that the effectiveness of treaties should be measured in decades, and not according to a linear progression. Using this analysis, this Article will show how the CRPD is resulting in the development of domestic laws, policies, and practices that are transforming societies for the betterment of people with and without disabilities. The Article also explains the CRPD's potential impact on the future development of human rights law, generally.

2. DO HUMAN RIGHTS TREATIES MATTER?

   The question of whether or not human rights treaties matter has captured the attention of many legal scholars. Some scholars hold the view that treaties make no difference at all; Eric Posner, for example, has written that human rights laws have made no difference in the lives of people around the globe and that we should, in his words, admit that human rights law "doesn't do much [and that] we should face that fact and move on." (5) In his new book, The Twilight of Human Rights Law, Posner further argues that the continued existence of human rights violations around the world constitutes sufficient evidence that human rights law has not worked and that the whole enterprise should be abandoned. (6) Supporters of this position, cite to the nearly universally ratified Convention on the Rights of the Child (CRC), which has not ended child labor, (7) and the myriad examples of discrimination against women that continue to occur, even with the widely ratified Convention on Elimination of Discrimination Against Women (CEDAW). (8)

   Moreover, Stephen Hopgood, in The Endtimes of Human Rights, argues that human rights laws are powerless to address inequality. (9) Makau Mutua, in his book, Human Rights: A Political and Cultural Critique, presents a related argument that human rights treaties do not work because they have not resulted in greater economic opportunities, particularly in the Global South. (10) Stephen Moyn, too, in Human Rights in the Age of Inequality, calls the UN human rights regime "dead on arrival." (11)

   Other scholars who engage in empirical research have sought to show that there is no "concrete evidence" regarding the effectiveness of human rights treaties. Oona Hathaway, for example, in her 2002 article, Do Human Rights Treaties Make a Difference?, (12) presents the findings of her quantitative study in which she compared the records of 166 countries in five areas (torture, genocide, access to fair trials, protection of civil liberties, and political representation of women) to determine their respective records on compliance with human rights treaties. (13) Based on her research, Hathaway concludes not only that human rights treaty ratification does not lead to improvements in state practices, but that treaty ratification may actually have an inverse relationship to the human rights record of any given country. (14)

   This author and others have criticized Hathaway's study on several grounds. (15) Indeed, Hathaway herself acknowledges the limitations of her study, including errors in data from self-reporting, a lack of historical context, and her "imperfect" conclusions. (16) Ryan Goodman and Derek Jinks argue that Hathaway's findings do not refute the important role treaties play in the process of developing human rights norms nor does her study explain why, for example, some states with records of human rights abuses ratify treaties since "joining the treaty would signal (as a formal legal matter) the state's acceptance of the human rights principles embodied in the treaty." (17) Moreover, Hathaway's failure to account for changes as a result of improved reporting practices invalidates the entire study, according to Goodman and Jinks. (18)

   Hathaway also fails to consider the steps a state may take to mitigate violations, once such violations are identified. Such steps could include improved enforcement of existing laws, amendments to current laws, adoption of new laws, development and implementation of action plans to address the violations, creation of oversight committees that would enforce recommendations to address these violations, as well as advocacy by civil society organizations. Nor does Hathaway adequately address budgetary issues surrounding treaty implementation. Wealthier nations are likely to spend more money on enforcement of treaties, thereby earning them higher marks according to her methodology. Moreover, neither Hathaway nor Goodman and Jinks raise the issue of what is considered a human rights violation in the first place, and how, even in those wealthier states that do offer due process protections under law, human rights abuses and violations continue to occur. This remains one of the most challenging questions of our time. It is also an issue on which the Convention on the Rights of People with Disabilities may offer some insights. (19)

   In contrast to Hathaway, who focuses on the effect of treaties at the time of their ratification, scholars Beth Simmons and Kathryn Sikkink have demonstrated that human rights treaties are not defined by the "magic moment" of ratification. Rather, these scholars argue that the impact of human rights treaties should be evaluated over time. (20) As Sikkink has written, processes of change are gradual, disorderly, and a result of a constellation of disparate events, including the activism of individuals. (21) It takes time for any law to be understood, applied, and for people to rally behind and mobilize for its enforcement. This is especially true regarding implementation of treaties that contain social, economic, and cultural rights since, unlike civil and political rights, these rights are legally designed to be progressively realized, over time. (22) Thus, states may resist implementation of a treaty soon after ratification. However, once these states develop economically, their noncompliance with treaty obligations, including those rights subject to progressive realization, will become less acceptable, resulting in greater treaty compliance.

   For example, one may point to the fact that the Convention Against Torture's widespread ratification has resulted in reducing incidents of state-sponsored torture. (23) Another example is the ratification of the Convention on the Elimination of Discrimination Against Women, which, while it has not eliminated all discrimination against women, has resulted in improvement in women's living conditions and greater employment opportunities for women throughout the world. (24) Similarly, the Convention on the Rights of the Child has brought increased rates of inoculation as well as education to millions of children, even in the most remote countries on earth. (25) These treaties have had an impact, but it takes time.

   The United States' experience with its own disability laws illustrates the challenge of assessing the effectiveness of laws. For example, since 1975 with the passage of the Education for All Handicapped Children Act, children with disabilities in the United States have enjoyed the right to receive a "free appropriate public education." (26) This...