Abstract: On July 30, 2009, the Obama Administration signed the Convention on the Rights of Persons with Disabilities, an international treaty purporting to guarantee the civil, political, economic, social, and cultural rights of the disabled. However, U.S. membership in the Disabilities Convention would not appreciably advance U.S. national interests either at home or abroad. The rights of Americans with disabilities are well protected under existing law and are enforced by a wide range of state and federal agencies. Joining the convention merely opens the door for foreign "experts" to interfere in U.S. policymaking in violation of the principles of U.S. sovereignty.
Ratification of the Convention on the Rights of Persons with Disabilities (CRPD) would not advance U.S. national interests either at home or abroad. Moreover, joining the Disabilities Convention would obligate the federal government to defer to an unaccountable committee of academics and "disability experts" in Switzerland in violation of the principles of U.S. sovereignty and federalism. The United States need not become party to the convention to demonstrate its strong commitment to disability rights, because existing U.S. law and a multitude of federal agencies already protect Americans with disabilities against discrimination.
On December 13, 2006, the U.N. General Assembly adopted the Convention on the Rights of Persons with Disabilities "to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity."
The terms of the Disabilities Convention are meant to protect the rights of persons with disabilities in the civil, political, economic, social, and cultural spheres. It recognizes traditional civil and political rights that are guaranteed under the U.S. Constitution--such as the right to life and liberty, equality before the law, and the freedom of expression and opinion--alongside certain economic, social, and cultural "positive rights," such as the right to education, health, and "an adequate standard of living for [persons with disabilities] and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions."
The Disabilities Convention entered into force on May 3, 2008, after 20 nations had deposited their instruments of ratification. The convention has 80 parties, although many more nations have signed the treaty. The United States is one of the nations that has signed but not ratified the convention. U.S. Ambassador to the United Nations Susan Rice signed the convention on July 30, 2009, but President Barack Obama has not yet submitted the convention to the Senate for its advice and consent, a prerequisite to depositing the U.S. instrument of ratification.
If the United States ratifies the Disabilities Convention, it will become the "supreme Law of the Land" on par with federal statutes and the Constitution itself. When the United States becomes party to a treaty--particularly a human rights treaty--it obligates itself to the other treaty parties that it will comply with the terms of the treaty within U.S. territory. Therefore, the United States needs to take great care when deciding whether to ratify a treaty, because its terms--or the interpretation of those terms by the treaty committee--may not conform either to existing state and federal law or to prevalent American social, cultural, and economic norms.
America's Leadership on Disability Rights
The United States should become party to a treaty only if it advances U.S. national interests. The U.S. should be especially wary of international conventions that require complex domestic regulation and enforcement by the federal government. U.S. national interests in the context of the Disabilities Convention may be characterized in both foreign and domestic terms: Would becoming a party to the treaty serve U.S. interests within the international community, and would joining advance the cause of Americans with disabilities?
U.S. Laws Protecting the Rights of Americans with Disabilities
- Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in federal employment, programs conducted by federal agencies, programs receiving federal funding, and the employment practices of federal contractors.
- The Americans with Disabilities Act of 1990 provides a private cause of action for the disabled, including for instances of discrimination in employment, public accommodations, transportation, telecommunications, and other areas.
- The Individuals with Disabilities Education Act of 1990 provides federal funds for the educational needs of children with disabilities and requires states that accept such funds to identify and individually evaluate children who are eligible for special education and craft an individualized education program for each child.
- The Fair Housing Act as amended in 1988 protects the disabled against discrimination in the sale, rental, or financing of housing.
- Other federal laws protecting persons with disabilities include the Telecommunications Act, the Air Carrier Access Act, the Voting Accessibility for the Elderly and Handicapped Act, the Civil Rights of Institutionalized Persons Act, and the Architectural Barriers Act.
From a purely public diplomacy calculus, one can argue that the United States will enhance its reputation within the international community by holding itself to a high standard of human rights. However, in the case of the Disabilities Convention, the United States already has effective legislative measures in place to protect the rights of the disabled.
Those who say that ratification would allow the United States to claim the moral high ground within the international community--at least in regard to disability rights--imply that the United States is deficient in protecting the rights of the disabled. In truth, the United States has been a leader in protecting the rights of the disabled. It already holds the moral high ground. Signing a treaty merely to score points overseas is not a sound basis for making policy.
Gauging how much signing the convention would actually improve the image of the United States abroad is difficult. More determinable are the domestic effects of joining such a convention.
- Ratification of the CRPD is not needed to end discrimination against persons with disabilities in the United States. The United States already has in place a wide range of federal laws to protect and advance the cause of Americans with disabilities. These include:
- Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federal employment, programs conducted by federal agencies, programs receiving federal funding, and the employment practices of federal contractors.
- The Americans with Disabilities Act of 1990 (ADA), which provides a private cause of action for the disabled, including for instances of discrimination in employment, public accommodations, transportation, telecommunications, and other areas.
- The Individuals with Disabilities Education Act of 1990 (IDEA), which provides federal funds for the educational needs of children with disabilities and requires states that accept such funds both to identify and individually evaluate children who are eligible for special education and to craft an individualized education program for each child.
- The Fair Housing Act as amended in 1988, which protects the disabled against discrimination in connection with the sale, rental, or financing of housing.
- Other federal laws that protect persons with disabilities, including the Telecommunications Act, the Air Carrier Access Act, the Voting Accessibility for the Elderly and Handicapped Act, the Civil Rights of Institutionalized Persons Act, and the Architectural Barriers Act.
These federal laws, unlike the broad provisions of the CRPD, were crafted to address the situation of the disabled in the United States, not to address the general opinions of the international community. As a whole, the legislation is a firm foundation that can be modified or expanded as necessary through the legislative process.
In addition, U.S. disabilities laws are enforced by a panoply of federal agencies, most notably the Civil Rights Division of the Department of Justice. Other elements of the federal government have responsibilities under the ADA and other federal disability legislation. (See text box.) In addition to federal law, all 50 states and the District of Columbia have enacted a wide range of laws to prevent discrimination against the disabled and provide an array of resources to persons with disabilities.
Federal Agencies Charged with Protecting the Rights of Americans with Disabilities
- Civil Rights Division in the U.S. Department of Justice
- U.S. Equal Employment Opportunity Commission
- Federal Transit Administration in the U.S. Department of Transportation
- Office for Civil Rights in the U.S. Department of Education
- Office for Civil Rights in the U.S. Department of Health and Human Services
- Civil Rights Center in the U.S. Department of Labor
- U.S. Department of Housing and Urban Development
- Office of Civil Rights in the U.S. Department of the Interior
- Office of the Assistant Secretary for Civil Rights in the U.S. Department of Agriculture
In short, the U.S. government treats disability discrimination in a comprehensive and exhaustive manner that makes membership in an international covenant purporting to set standards for the treatment of the disabled superfluous at best. To allow an international panel of disability experts to scrutinize the U.S. record every four years would yield little or no benefit in realizing disability rights for Americans. Any public diplomacy or other possible marginal benefits, if any, that could arise from signing should be weighed against the negative consequences of ratification.
Ceding Authority to an International Committee
To monitor implementation, human rights treaties usually establish a "committee of experts" to review reports from states parties on their compliance. The "experts" on such committees are not elected democratically; rather, each is appointed by a state party, regardless of that state's human rights record.
States parties are required to submit periodic reports (usually every four years) to the committee detailing their compliance with the particular treaty. For example, the Human Rights Committee oversees state compliance with the provisions of the International Covenant on Civil and Political Rights, and the Committee on the Rights of the Child monitors compliance with the Convention on the Rights of the Child.
The Disabilities Convention established the Committee on the Rights of Persons with Disabilities (CRPD Committee), which is charged with reviewing periodic reports and making "such suggestions and general recommendations on the report as it may consider appropriate." Since the convention entered into force in May 2008, the CRPD Committee has not yet reviewed the record of any state party. The first such review session should occur in the near future for those nations that ratified the convention in 2007. Thus, they will be the first nations required to report their compliance.
Abuses by Treaty Committees. In general, U.N. human rights treaty committees have frequently made demands of states parties that fall well outside of the legal, social, economic, and cultural traditions and norms of states parties. This has especially been the case with the United States.
For instance, in February 2008, the Committee on the Elimination of Racial Discrimination reviewed the U.S. record on racial discrimination and issued a report directing the United States to change its policies on a series of political causes completely divorced from the issues of race and racial discrimination. Specifically, the committee urged the United States to guarantee effective judicial review to the foreign unlawful enemy combatants held at the Guantanamo Bay detention facility, prevent U.S. corporations from abusing the rights of indigenous populations in other countries, place a moratorium on the death penalty, restore voting rights to convicted felons, and take action on other matters completely unrelated or only tangentially related to racial discrimination.
The committees overseeing the enforcement of other human rights treaties to which the United States is not a party often recommend changes in policies that are outside of traditional American norms. For example, the committee that oversees the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) regularly advocates that states decriminalize prostitution, radically expand access to abortion, devalue the role of women as mothers, reduce parental authority, and implement strict numerical gender quotas in the government and private sectors.
The U.S. has ample reason to expect that the experts on the CRPD Committee will disregard U.S. sovereignty and embark on similar forays in pursuit of a broader agenda of social and cultural engineering unrelated to disabilities.
Defining the CRPD Committee's Role. Any debate over U.S. ratification of the Disabilities Convention should make it clear through reservations, understandings, and declarations that the CRPD Committee has no power--either through its recommendations or by the issuance of general comments--to provide universally authoritative or legally enforceable interpretations of the treaty.
The Administrations of Presidents Bill Clinton and George W. Bush held that position on treaty committees. In 1994, the Human Rights Committee adopted a general comment claiming that its "role under the [International ] Covenant [on Civil and Political Rights]...necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence." The Clinton Administration reacted strongly to this claim of authority by issuing a lengthy critique, which observed that:
[The Committee's] rather surprising assertion...would be a rather significant departure from the Covenant scheme, which does not impose on States Parties an obligation to give effect to the Committee's interpretations or confer on the Committee the power to render definitive or binding interpretations of the Covenant. The drafters of the Covenant could have given the Committee this role but deliberately chose not to do so.
The Bush Administration responded in a similar manner to a fact sheet titled "The Right to Health" that was produced by the Office of the U.N. High Commissioner for Human Rights and the World Health Organization. The fact sheet asserted that the general comments and recommendations adopted by human rights treaty bodies "provide an authoritative and detailed interpretation of the provisions found in the treaties." The U.S. response was unequivocal:
General comments and other documents issued by treaty monitoring bodies express the opinions of individuals acting in their expert capacities; such documents are not the result of deliberations among States. While the views of treaty monitoring bodies are entitled to respect and should be considered carefully by States Parties, they do not create legal obligations or "requirements."
The Obama Administration needs to be equally clear in reaffirming that the CRPD Committee would have no power to interpret or create new international norms or customary international law that the states themselves have not approved, particularly any that would arguably bind the U.S. domestically. Such a clarification would reinforce the traditional understanding of customary international law as the "law of nations" that "results from a general and consistent practice of states followed by them from a sense of legal obligation," not from the recommendations of a treaty committee. It would also reaffirm U.S. sovereignty by demonstrating that the federal government will work actively to prevent the improper imposition of norms to which it has not given its democratic consent.
The CRPD Committee does not possess the authority to dictate the meaning of a treaty to states parties. Its interpretation of the terms of the convention, the obligations it imposes, and any recommendations and general comments are entitled only to respect and consideration by the member states. The committee should serve a technical, administrative role as opposed to a substantive, adjudicatory, or quasi-lawmaking role. This understanding of the committee's role should be made clear if the Senate considers giving its consent to ratification. The United States, not a committee of so-called experts, retains the final authority to interpret the terms of the treaty and determine its obligations under the treaty.
The U.S. has proposed such an understanding of the authority of the expert committee that monitors CEDAW. Specifically, the Senate Foreign Relations Committee proposed such an understanding in 2002 as a condition for ratification of CEDAW: "Accordingly, the United States understands that the Committee on the Elimination of Discrimination Against Women has no authority to compel actions by States Parties."
Opening the Door to Litigation
U.S. ratification would make the Disabilities Convention "the supreme Law of the Land" under the Supremacy Clause of the Constitution. Although ratification would constitute a commitment under international law, the text of the convention gives no indication that its drafters intended its provisions to be automatically enforceable under the domestic law of the states parties.
Nevertheless, to protect against any assertion to the contrary, the United States needs to enter a declaration that the convention is not self-executing, meaning that its provisions would not be enforceable in U.S. courts. Private causes of action or other new avenues of litigation would thus require passage of federal legislation to implement the treaty's terms.
"Non-self-executing" declarations are common. In fact, the United States has entered such declarations as a condition for ratifying the three major human rights treaties to which it is a party: the International Covenant on Civil and Political Rights, the International Covenant on the Elimination of Racial Discrimination, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The non-self-executing reservation has also been proposed as a condition for CEDAW ratification.
Of course, the United States would be fully justified in entering such a declaration. Existing state and federal legislation already provides private causes of action for the disabled in the United States, including for instances of discrimination in employment, public accommodations, transportation, telecommunications, housing, and other areas.
Pushing "Reproductive Health" and Abortion
For many years, there has been a heated debate within the U.N. system regarding abortion "rights." Apparently unwilling to use the term "abortion" in the debate, the proponents of establishing abortion as a human right use terms such as "reproductive rights" and "sexual and reproductive health" as euphemisms for "abortion rights."
The use of one such euphemism in the text of the Disabilities Convention has extended the abortion debate into the realm of disability rights. Specifically, Article 25 of the convention requires states parties to "[p]rovide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes."
Within the context of the debate over abortion rights, Article 25 of the Disabilities Convention could be interpreted as ensuring that persons with disabilities are provided access to free or affordable abortions, assuming such access is provided to non-disabled persons by the state party.
However, when the U.N. General Assembly approved the final text of the Disabilities Convention on December 13, 2006, more than one dozen nations, including the United States, made official statements regarding their understanding of the phrase "reproductive health." Specifically, the pertinent part of the U.S. statement reads:
In this regard, the United States understands that the phrase "reproductive health" in Article 25(a) of the draft Convention does not include abortion, and its use in that Article does not create any abortion rights, and cannot be interpreted to constitute support, endorsement, or promotion of abortion. We stated this understanding at the time of adoption of the Convention in the Ad Hoc Committee, and note that no other delegation suggested a different understanding of this term.
However, that statement appears to conflict with the opinion of a key Obama Administration official on the meaning of "reproductive health." On April 22, 2009, testifying before the House Foreign Affairs Committee, U.S. Secretary of State Hillary Clinton stated: "We happen to think that family planning is an important part of women's health, and reproductive health includes access to abortion, that I believe should be safe, legal and rare."
Due to this apparent conflict in the interpretation of "reproductive health," any Senate debate on ratification of the Disabilities Convention needs to clarify the nature of the treaty with respect to abortion.
Similar debates arose in the Senate in 1994 and 2002 in the context of CEDAW. In these instances, Senators raised the question of whether abortion rights were to be inferred from certain language in CEDAW that related to "family planning." The Senate Committee on Foreign Relations issued two reports (in 1994 and 2002) concluding that CEDAW did not require the provision of abortions. Moreover, the committee required as a condition for the Senate's advice and consent an understanding explicitly stating that nothing in CEDAW "shall be construed to reflect or create any right to abortion and in no case should abortion be promoted as a method of family planning."
Abortion remains one of the most heated social issues being debated in the United States among activist groups, state and federal legislatures, and courts at all levels, including the U.S. Supreme Court. Introducing an "international" opinion on the matter from a group of disability experts ensconced in Geneva is unlikely to resolve or advance the debate in the United States.
It stands to reason that an international treaty designed to end discrimination on the basis of "disability" should provide a working definition of that term, yet the Disabilities Convention provides none. In fact, the treaty clouds any legally workable definition of disability by stating in its opening paragraphs that "disability is an evolving concept."
Such ambiguity invites abuse by persons or groups who do not suffer from a recognized medical disability yet seek resources and protection under the authority of the convention. This would also complicate implementation of the convention in the United States, in which the definition of "disability" is still regularly contested by activists, litigants, and judges.
Under the Americans with Disabilities Act, a person is considered disabled if he has "a physical or mental impairment that substantially limits one or more...major life activities," has "a record of such an impairment," or has been "regarded as having such an impairment." Recent amendments to the ADA further clarified that definition by defining "major life activities" to include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working" and "[m]ajor bodily functions."
Without a definition or an "evolving" definition, ratification would cause undue conflict between U.S. law and the convention. Of course, the U.S. could enter an understanding to remedy the ambiguity, at least by defining "disability" in the United States. The understanding would need to state that the United States is bound to comply with the convention within the bounds of "disability" as defined by the ADA and U.S. federal court decisions.
The United States has similarly qualified terminology in previous treaties. For example, when the United States ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it entered an understanding that substituted its own definition of "torture," which differed from the convention's definition. The United States also entered a reservation that limited the treaty's definition of "cruel, inhuman or degrading treatment or punishment" to prohibit only those acts considered cruel, inhuman, or degrading treatment or punishment under the U.S. Constitution.
If the United States considers ratification of the Disabilities Convention, it should enter a reservation regarding the treaty's overly broad definition of "discrimination" because the CRPD Committee inevitably will interpret this term differently than Congress or U.S. courts would interpret it. For instance, a committee of experts recently questioned the United States about whether the definition of "racial discrimination" under U.S. law comported with the terms of the International Convention on the Elimination of Racial Discrimination. The United States would at least need to enter a reservation to the Disabilities Convention stating that the controlling definitions of "discrimination" and "disability" are set forth in the ADA and other federal legislation and in U.S. court decisions.
The CRPD Committee of experts will likely find the U.S. definitions of "disability" and "discrimination" too narrow and will press the United States to accept the committee's broader, more flexible descriptions. Thus, the United States needs to enter a reservation to the convention to send a strong signal that it intends to interpret the treaty according to its own laws and will not submit to the interpretations of the CRPD Committee.
To Ratify or Not to Ratify
On balance, the flaws of the Disabilities Convention indicate that ratifying it would not advance U.S. national interests either at home or abroad.
U.S. membership in the Disabilities Convention would produce, at best, an intangible public diplomacy benefit in the international community. The United States need not become party to the convention to demonstrate its commitment to the rights of persons with disabilities or to advance the cause of the disabled in other nations. Any nation that questions U.S. dedication to protecting Americans with disabilities need only review the architecture of state and federal laws and the network of state and federal agencies that enforce those laws.
On the domestic front, persons with disabilities in the United States would be better served by a continual review of the implementation of existing state and federal laws. The U.S. Congress, American civil society, and special-interest groups are far better positioned to conduct such reviews than a committee of supposed disability experts from CRPD members Bangladesh, China, Qatar, and Tunisia would be.
Nevertheless, the current Senate leadership may try to move forward with the ratification process once the Obama Administration transmits the convention to the Senate for its advice and consent. If this occurs, concerned Senators should insist on including a series of reservations, understandings, and declarations (RUDs) in the resolution of ratification. RUDs could greatly diminish, although not eliminate, the danger that the convention would pose to U.S. law and American sovereignty.
At a minimum, these RUDs would need to state clearly that:
- The CRPD Committee has no authority to compel actions by states parties, and the United States does not recognize any conclusion, recommendation, or general comment issued by the committee as customary international law or legally binding on it in any manner.
- For purposes of U.S. domestic law, the provisions of the convention are non-self-executing.
- Ratification of the convention would have no effect on existing law in the United States regarding either the restriction or the expansion of abortion "rights."
- The United States would consider itself bound by the obligations of the convention only insofar as the terms "disability" and "discrimination based on disability" are understood in the Americans with Disabilities Act and related federal legislation.
However, the inclusion of such RUDs will not remedy all of the potential problems that membership in the convention will cause. Indeed, some legal scholars--including Harold Koh, current Legal Adviser at the Department of State--have questioned the legality of RUDs. For example, in a 2002 law review article, Koh criticized as "legally questionable" the use of RUDs in connection with ratification of CEDAW:
Indeed, past Administrations...have unwisely proposed that ratification [of CEDAW] be accompanied by a detailed package of conditions designed to insulate existing U.S. practices with regard to protection of individual privacy, the role of women in combat service, comparable worth in pay, maternity leave, freedom of speech, family planning, and the like...
To proceed with such a qualified, "swiss cheese" ratification in which the legal exceptions would overshadow the core act of ratification would be politically unwise, legally questionable, and practically unnecessary to protect American national interests.
The Senate seems to find itself in a dilemma: Unconditional ratification of the Disabilities Convention would harm U.S. interests because it would obligate the federal government to defer to an unaccountable committee of disability experts in Geneva. At the same time, any effort by the Senate to condition its consent to ratification by including certain RUDs may be deemed illegitimate by international legal scholars, including perhaps the top legal scholar in the U.S. government.
The United States need not become a party to the Convention on the Rights of Persons with Disabilities because current U.S. law meets and exceeds the provisions of the convention, and mere membership in the convention will not convince the international community that America protects the rights of its disabled citizens.
Moreover, ratification of the convention may harm U.S. national interests, because human rights treaty committees increasingly view themselves as the legislators of binding international norms instead of as experts fulfilling the technical roles they were intended to perform.
Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation and a contributor to ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009).