"The Senate Can Pass A Treaty To Protect Fish But Not One To Protect Disability Rights"

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The U.S. Senate last week without fanfare performed one of their primary functions, one that they have managed to avoid for years. By a voice vote, without a word of opposition, the upper house of Congress ratified not one, not two, but four international treaties. In doing so, they broke a logjam that has been in place since the previous Congress and made the world a little safer for the fish of the Pacific — but continued to ignore a crucial treaty on their agenda dealing with the rights of the disabled.

The Constitution gives the president the power to make treaties, but only “by and with Advice and Consent of the Senate … provided two thirds of the Senators present concur.” That function is one of the levers of power that separates the Senate from the lower chamber of Congress and is closely guarded. In recent years, however, exercising it has proved even more difficult than usual. The last treaty to make it through the Senate was in 2010, when the contentious New START, which placed limits on the number of nuclear weapons the United States and Russia can possess, passed in a lame-duck session. Even formerly non-controversial tax treaties — international legal documents intended to prevent double taxation on U.S. citizens living abroad — have been unable to break through the Senate chamber since then.

That all changed last week. The four international treaties that broke the nearly four-year long drought all deal with supporting the $70 billion commercial fishing industry and protecting their interests off the U.S.’ shores. The Port State Measures Agreement commits member-states to “prevent, deter, and eliminate illegal, unreported, and unregulated fishing;” the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, and its counterpart for the South Pacific Ocean, aims to “ensure the long-term conservation and sustainable use” of fisheries; the fourth is an amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. All sailed through on a basic voice vote.

The failure of the CRPD was a “bitter moment” in the words of one Senate staffer.

Those treaties were the first to be ratified since 2010, but they weren’t the first to reach the Senate floor. In winter 2012, in the lame duck session that followed the elections, the full Senate voted on the Convention on the Rights of Persons with Disabilities (CRPD). While not expected to be as easy as the passage of the recent treaties and their focus on protecting fish, a treaty designed to urge countries to provide the same level of access to public spaces for the disabled as the United States, and the same protections under the law, seemed guaranteed ratification as the clerk began to call the roll.

Former Sen. Bob Dole (R-KS) sat on the Senate floor in the wheelchair that marked his recent hospitalization as votes rolled in. One by one, the former majority leader who once served as his party’s standard-bearer watched as friends and colleagues who had personally pledged their support suddenly shifted, throwing their votes into the “nay” column. Minutes later, the tally told the tale: the Disabilities Treaty had failed, coming just five votes shy of ratification.

The failure of the CRPD was a “bitter moment” in the words of one Senate staffer. Several of the Republicans who voted against had told the aging Dole that their backing of the treaty was firm before casting their “no” votes before Dole’s very eyes. The fact that the Disabilities Treaty is based solely on the American Disabilities Act (ADA) and would require no change in law didn’t prevent their opposition. The argument that many Republicans gave at the time was that voting on another treaty in a lame duck session was a bridge too far.

But Senate Foreign Relations Committee chair Sen. Robert Menendez (D-NJ) has refused to let the Disabilities Treaty languish after that defeat, working with the administration last fall to raise the treaty’s profile and give senators the time they needed to review the document. Two hearings were held this session of congress to vet the CRPD once again, including one featuring testimony from two of Menendez’s Republican colleagues. “I am still convinced that we give up nothing, but get everything in return,” Secretary of State John Kerry said at the second hearing. “Our ratification does not require a single change in American law and isn’t going to add a penny to our budget.”

Kerry’s appearance before the committee he’d once chaired, speaking on the treaty he had tried to shepherd through the last congress, was just a part of a full-court press from the administration on the treaty. Vice President Joe Biden met with leaders of national disabilities and veteran’s advocacy groups, along with top Obama adviser Valerie Jarrett. U.S. Ambassador to the U.N. Samantha Power lobbied Congress and spoke on the CRPD’s benefits at a POLITICO event. And the White House and Menendez made sure to emphasize the bipartisan support for the treaty, particularly that of Sen. John McCain (R-AZ) who has been a vocal proponent.

CREDIT: Andrew Breiner

Things seemed to be going well until just before the Christmas holidays at the Capitol building. It was then that SFRC ranking member Sen. Bob Corker (R-TN) decided to voice his opposition to the treaty, despite previously showing a wary openness towards moving it forward. Specifically, Corker announced that in his view no combination of reservations, understandings, and/or declarations (RUDS) would bring him around anytime soon. RUDS are additional modifying language added onto treaties’ authorizations in the Senate to make them more palatable to the United States. Much like the controversial “signing statements” heavily utilized under the Bush administration, RUDS make crystal clear just what the U.S. believes a treaty says, and which parts it thinks do not apply to it.

“I remain uncertain that even the strongest RUDS would stand the test of time, and I believe any uncertainty on this issue is not acceptable,” the Tennessee senator said in a statement. “Ultimately, I’m unable to vote for a treaty that could undermine our Constitution and the legitimacy of our democratic process as the appropriate means for making decisions about the treatment of our citizens.”

Advocates were extremely disappointed in Corker for his reversal, particularly that it was dropped at a time when few would be paying attention to the treaty process. “The number one concern about this has been sovereignty, so we we want to make sure that the United States is predominant decision maker,” VetsFirst director of Veterans Affairs Chris Neiweem told ThinkProgress in January, adding that it was “frustrating” that Corker acknowledged neither the protections of American sovereignty already contained in the treaty nor that the military and veterans — charged with defending that sovereignty — are backing the CRPD. “So the sovereignty defending organizations are in full support but aren’t mentioned in this statement that comes out right before the holidays,” Neiweem said.

Menendez made his own frustration at his Republican counterparts apparent in the statement released following the fishing treaties’ passage. “Approving these treaties demonstrates that a bipartisan commitment to protecting our oceans and our fishing industry exists in the U.S. Senate,” Menendez said. “It is not only possible, but necessary to put aside extremist politics, engage with the international community, and fulfill our Constitutional duty concerning treaties,” he continued, a subtle dig at the continued roadblock the Disabilities Treaty faces.

I don’t know how people can make that judgment and live with it.”

Former Congressman Tony Coelho (D-CA), the sponsor of the original ADA, seemed stunned that the Senate could have moved on the fish conventions ahead of the Disabilities Treaty. “I think it’s real interesting as someone who has a disability … that [Senate conservatives] could pass multilateral agreements to protect fish internationally, but are unwilling to pass a multilateral agreement to protect one billion people with disabilities worldwide,” Coelho, who himself has epilepsy, told ThinkProgress. “I don’t know how people can make that judgment and live with it.” Coelho pointed to the bipartisan nature of both the original ADA and the ADA Amendments Act, lamenting that ultraconservatives in the Republican Party seem unwilling to back the treaty even with substantial reservations attached to it. Adoption of the fisheries conventions is a stark realization that the opposition to the Disabilities Treaty is more than what’s on the face of it, Coelho said, that it’s more of a political move from the Republicans in question as opposed to a reality with regards to international treaties.

It hasn’t been as though the Senate Democrats and administration have been unwilling to work with the Republicans currently blocking passage. Menendez’s office had been working with Corker’s office and the State Department on a RUDS package prior to Corker’s shunning, a Senate Foreign Relations Committee staffer told ThinkProgress. There’s tons of room for people to work, staffers say, but ultraconservative Republicans like Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) remain unwilling to move.

David Kaye, an international law professor at the University of California – Irvine, spoke to ThinkProgress earlier this year on the stalling of the CRPD in the Senate. Kaye pointed to a piece from Cruz in the Harvard Law Review on the futility of treaties as an example on how far the Senate has slid from its past willingness to pass treaties. The first President Bush sent the International Covenant on Civil and Political Rights to the Senate, Kaye noted, and got it passed through the Senate Foreign Relations Committee — with substantial reservations — at a time noted archconservative Sen. Jesse Helms chaired the committee. “These RUDS satisfied Jesse Helms, they don’t satisfy Ted Cruz?” Kaye asked ThinkProgress incredulously.

The unwillingness of the Senate to pass multilateral agreements now is already having negative impacts on negotiations on future treaties. “If you talk to people at State who regularly negotiate treaties and who’ve done it for a long time, they’ll say maybe ten, fifteen years ago, if we were in the middle of a treaty negotiation with our partners or potential partners, we might say we need something in this if we’re going to get the Senate to ratify,” Kaye said. “They can’t say that anymore.” International partners now believe that the Senate just won’t ratify the treaty no matter what, so why accommodate the United States?

They may have a point, as the list of treaties that the United States has agreed to but not passed through Congress continues to grow: the Convention on the Rights of the Child; the Convention on the Elimination of Discrimination Against Women; the Comprehensive Test Ban Treaty on testing nuclear weapons; the Law of the Sea, which has not been signed and received its own full court press in the first term of the Obama administration; and the U.N. Arms Trade Treaty — which has yet to even be sent to the Senate for consideration.

These RUDS satisfied Jesse Helms, they don’t satisfy Ted Cruz?”

There will be no third hearing on the Convention on the Rights of Persons with Disabilities in the current congress. The next time that the chance will arise to swing Republican votes will come in mid-June with the release of the Supreme Court’s decision in a little known case that has become the main conservative argument against moving forward with the CRPD now. In Bond v. United States a chemical weapons treaty is being used to prosecute a case against an American citizen, who is accused of attempting to poison a rival for her husband’s affections. Corker specifically cited Bond in his statement last December as a reason to hold off on supporting the treaty, a point of linkage that advocates and the administration alike dismiss. A verdict that places limits on the federal government’s ability to broadly interpret treaties in cases like Bond, however, could potentially swing Corker and other skeptics back into the supporting camp.

The chances of a potential reversal in the Senate, one that will find the votes needed to bring the treaty over the finish line, remain slim — but not utterly impossible. After all, one senate staffer ThinkProgress spoke to in January was unable to think of any treaty that would pass through the current Senate climate — an observation that the passage of the fishing conventions has proved wrong. “What we need is to have some of the enlightened Republicans — and there are many — who have been unwilling to support the treaty to come up with RUDS that will bring around the necessary votes to adopt it,” Coelho said. Advocates are working on it, he continued, and they remain hopeful that process can get process started in the next few weeks.

But this is an election year, one in which the Republicans are poised to retake the Senate, and the odds of action dwindle as the full force of campaign season come upon Washington. And the Senate won’t move on the CRPD when the votes aren’t there to ensure that there won’t be a repeat of the heartbreak on the floor in December 2012. Despite the insistence last year that as many as nine Republicans remain on the radar for possible conversion, without Corker’s support to provide momentum out of committee the goal of getting the 67 votes needed seems just out of reach. So for now it appears that the fish of the world can count on the support of the U.S. Senate. The disabled population around the globe? Not so much.

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