Issued: July 14, 2014
Over a decade ago, the National Council on Disability (NCD) helped kick off U.S. disability community consideration of an international treaty by publishing a White Paper titled Understanding the Role of an International Convention on the Human Rights of People with Disabilities.[i] Since that time, NCD has published numerous documents and reports[ii] in support of the development, signature and ratification of the U.N. Convention on the Rights of Persons with Disabilities (CRPD).[iii] Through the development phase of the treaty and our support throughout the process, NCD has proudly encouraged the ratification of this first international treaty to address disability rights. This treaty will extend the values of the Americans with Disabilities Act abroad and improve access for Americans with disabilities, including veterans, who live, work or travel abroad.
NCD now takes this opportunity to weigh in on several of the misperceptions that have been discussed as the treaty is considered by the United States Senate.
Concern over loss of sovereignty
Contrary to claims by treaty opponents, the CRPD does not infringe upon U.S. sovereignty. The U.S. is party to over 10,000 treaties and international agreements, through which the U.S. has strengthened its position as a global leader, not weakened it. Ratification of the CRPD will not establish any international control or authority over U.S. law.[iv] Ratification will allow the U.S. to participate in an annual discussion about disability rights globally through the Conference of States Parties.[v] Ratification will require the U.S. to submit periodic reports, as it already does for numerous human rights treaties it has ratified, to a treaty body endowed with the authority to issue non-binding recommendations for the consideration of countries.[vi] With adoption of appropriately worded Reservations, Understandings, and Declarations (RUDs), ratification of the treaty will not require any changes in any U.S. law or policy nor relinquish any authority whatsoever over U.S. law.[vii] Accordingly, concerns regarding loss of US sovereignty as a consequence of ratification of the CRPD are misplaced and without foundation.
Concern regarding weakening of our federal system
Ratification of the CRPD will not undermine or weaken our federal system. Consistent with ratification of other treaties, a proposed reservation on federalism ensures that state and federal disability law and protections are fully preserved.[viii] Moreover, the US Supreme Court provided further affirmation that ratification of treaties will not threaten the careful balance of our federal system in its decision in Bond.[ix] There, the Court unequivocally refused to allow a prosecution to proceed under the Chemical Weapons Convention where state law (Pennsylvania) more than adequately addressed the criminal conduct in question. The Court categorically refused to interpret implementing legislation to intrude on the state’s police power. The Court made it clear that the Federal government had no business using a federal statute enacted to implement a chemical weapons ban treaty to prosecute and convict a Pennsylvania woman who tried to poison her husband's mistress.
Concern regarding reproductive rights
The CRPD protects against discrimination in the area of health in Article 25, thereby underscoring that persons with disabilities are not to be discriminated against in the context of accessing health care. This also extends to the discriminatory denial of health care or health services on the basis of disability including, but not limited to, denial of food and fluids. Both the text of the CRPD and the drafting history make clear that the CRPD does not in any way address the issue of abortion.
Concern regarding cumbersome or burdensome regulations
The drafters of the CRPD took care to ensure that the treaty would not require cumbersome or burdensome regulations. Article 4 of the treaty specifically leaves it to ratifying countries to undertake the necessary reviews and action to implement the treaty. U.S. law is already more detailed and in most respects more comprehensive than the CRPD, so this concern would not impact the U.S. Although, it would impact some nations that currently have no disability laws in place. U.S. ratification would provide us with greater leverage to work with countries to align their framework with U.S. disability law and our understanding of the CRPD.
Concern regarding the principles of the best interest of the child and homeschooling
The use of the phrase “the best interests of the child” in the treaty will not harm parental rights in this country. The Senate responded to the concerns raised by the treaty’s use of this term by including an understanding that makes clear that the phrase “the best interests of the child” will be interpreted as that term is now used and understood in Federal, State, and local law. The concept of “best interest of the child” is widely used in U.S. law. Every State in this country and a wide range of Federal laws, employ the concept of “best interest of the child”. With the Senate’s additional language, which will become a legally binding part of the treaty, there will be no change to Federal, State, or local law regarding the ability of parents in the U.S. to make decisions about how to raise or educate their children as a result of ratification.
The CRPD does not mention homeschooling and nothing in the treaty diminishes the ability of parents to make choices about how to provide schooling for their children. Parents can choose the best school environment for their children with disabilities, whether in the mainstream setting, in a special school, or in a home school environment. Instead, the treaty ensures that children with disabilities will have the right to an education on an equal basis with all other children. The treaty also recognizes the importance of the family unit where the family contains parents or children that have disabilities. The treaty’s Preamble recognizes that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State” and includes a specific article entitled “Respect for home and the family.”
Nothing in the CRPD abridges the defining of disability as set forth in the Americans with Disabilities Amendments Act. Consistent with multilateral treaties, countries enjoy flexibility in the domestication of treaty obligations. The CRPD provides a floor for the definition of disability and allows countries to be more inclusive with respect to defining disability as appropriate within a domestic legal framework. Thus, a country may decide to include temporary disability for certain purposes, if it so chooses. As the drafting history makes abundantly clear, the idea was to provide guidance to countries that have underdeveloped disability laws or that define disability very narrowly. This is decidedly not the case with American disability law. Finally, to ensure clarity as to the definition of disability in U.S. law, the treaty package presented to the Senate includes an understanding that the terms “disability” and “persons with disabilities” are to be defined under U.S. law.
The drafting history of the CRPD makes it clear that the drafters had no intention of mandating how a country should allocate its foreign assistance spending. Rather, in keeping with dozens of other treaties that the U.S. has ratified and that make reference to international cooperation, the CRPD provides a framework within which international cooperation may occur and encourages in any international development assistance program the accessibility of such programs to persons with disabilities. The provision in the CRPD is no different from provisions that encourage, as appropriate, international cooperation in treaties that the US has ratified, including the UN Charter and the International Covenant on Civil and Political Rights (ICCPR).
[ii] National Council on Disability, Toward the Full Inclusion of People with Disabilities: Examining the Accessibility of Overseas Facilities and Programs Funded by the United States (2013) /publications/2013/032013/; National Council on Disability, NCD Education Forum Report: UN Convention on the Rights of Persons with Disabilities (December 12, 2013) /publications/2013/12122013/; National Council on Disability; National Council on Disability, Practical Discussions on Implementation in the U.S. and Other Countries: Summary of panel discussion co-sponsored with Mental Disability Rights International held at the United Nations (August 22, 2006) /publications/2006/Oct242006; National Council on Disability, Monitoring Symposium: A Contribution to the Formulation of Proposals for Monitoring a United Nations Convention on the Rights of People with Disabilities Report (October 24, 2005) /publications/2005/10242005; National Council on Disability, Update on the UN Convention on the Rights of People with Disabilities (July 2004, November 2004, September 2005, and 2006) /policy/international and /policy/CRPD; National Council on Disability, Foreign Policy and Disability: Legislative Strategies and Civil Rights Protections To Ensure Inclusion of People with Disabilities (September 9, 2003) /publications/2003/Sept92003; National Council on Disability, An International Disability and Human Rights Convention: What you need to know about international human rights law and efforts to gain equality and justice for people with disabilities in the US and abroad (July 2002) /publications/2002/July2002; National Council on Disability, A Reference Tool: Understanding the Potential Content and Structure of an International Convention on the Human Rights of People with Disabilities (July 29, 2002) /publications/2002/July302002.
[iii] Convention on the Rights of Persons with Disabilities, http://www.un.org/disabilities/convention/conventionfull.shtml.
[iv] National Council on Disability, NCD Education Forum Report, 30.
[vi] Id.; Convention on the Rights of Persons with Disabilities, art. 35 – 39, http://www.un.org/disabilities/convention/conventionfull.shtml.
[vii] Id. at 7.
[viii] Id. at 9.
[ix] Bond v. United States, 572 U.S. _____, June 2, 2014.