Tuesday, July 24, 2012
What's in the CRPD?
In a previous article, we encouraged all of our members and friends to call or write Senator Inhofe urging him to support the Convention on the Rights of Persons with Disabilities. In passing, we mentioned that there is some opposition to the Convention -- even though the treaty enjoys broad support from the American public.
In the interest of educating about the purpose and contents of the treaty, we would like to offer this item-by-item analysis of the objections that have been raised by treaty opponents. Here is our response to an article published by the Home School Legal Defense Association, a group that is focused on policy advocacy.
We call this article:
Ten Specific Reasons Why We Support
The Convention on the Rights of
Persons with Disabilities
A response to an article published at
Any remaining state sovereignty on the issue of disability law will be entirely eliminated by the ratification of this treaty. The rule of international law is that the nation-state that ratifies the treaty has the obligation to ensure compliance. This gives Congress total authority to legislate on all matters regarding disability law -- a power that is substantially limited today. Article 4(5) makes this explicit.
For more than 20 years, our nation has recognized that the rights of people with disabilities transcend state boundaries, and so federal laws have been written to effectively promote and defend those rights. Few people want to go back to the time before the passage of the Americans with Disabilities Act. The requirements of the Convention on the Rights of Persons with Disabilities are completely congruent with present American law. That is why the treaty has the bi-partisan support of prominent Americans, including former President George H.W. Bush, former Senator Bob Dole, Senator John McCain, and many others.
Article 4(1)(a) demands that all American law on this subject be conformed to the standards of the UN.
Section 4(1)(a) of the treaty does *not* refer to "standards of the UN." Rather, the States Parties agree "To adopt all *appropriate* legislative, administrative and other measures for the implementation' of the rights recognized in the convention...." (Emphasis added).
All States Parties (nations which sign the treaty) agree to "ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities...."
Article 4(1)(e) remands that “every person, organization, or private enterprise” must eliminate discrimination on the basis of disability. On its face, this means that every home owner would have to make their own home fully accessible to those with disabilities. If the UN wants to make exceptions, perhaps they could. But, on its face this is the meaning of the treaty.
American laws on disability rights are among the most progressive in the world, and we do not expect any changes as a result of joining the Convention on the Rights of Persons with Disabilities. The Convention has *no* requirement for individual home owners to retrofit their houses to make them fully accessible. Rather, under this section of the treaty, the United States and other nations will agree to "...take all *appropriate* measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise." (Emphasis added). The treaty recognizes the concept of "reasonable accommodation" -- an idea that most Americans are familiar with. It is a legal concept that is well-developed under United States law.
Article 4(1)(e) also means that the legal standard for the number of handicapped spaces required for parking at your church will be established by the UN — not your local government or your church.
There is no place in the Convention that refers to the number of parking spaces that must be made available to people with disabilities. Under the treaty, the U.S. government will be responsible for implementing appropriate measures to protect the rights of people with disabilities. The UN has no authority under this treaty to directly enforce rules about parking spaces. It does not revoke or remove the authority of local governments to establish reasonable regulations in this regard.
Article 4(2) requires the United States to use its maximum resources for compliance with these standards. The UN has interpreted similar provisions in the UN Convention on the Rights of the Child to criticize nations who spend too much on military issues and not enough on social programs. There is every reason to believe that the UN would interpret these provisions in a similar fashion. The UN believes that it has the power to determine the legitimacy and lawfulness of the budget of the United States to assess compliance with such treaties.
Article 4 of the treaty describes the "general obligations" of each State Party. Under the treaty, the United States will agree to take measures to achieve the "full realization" of the rights of people with disabilities. Within this context, the treaty recognizes that full implementation may occur "progressively," and there is an explicit recognition that nations are constrained by "available resources." Under the treaty, the UN has no authority to dictate the budget of the United States or any state or local government within our federal system.
Article 6(2) is a backdoor method of requiring the United States to comply with the general provisions of the UN Convention on the Elimination of All Forms of Discrimination against Women. This treaty enshrines abortion rights, homosexual rights, and demands the complete disarmament of all people.
The treaty does not incorporate the requirements of the Convention on the Elimination of All Forms of Discrimination Against Women -- which is entirely separate from the Convention on the Rights of Persons with Disabilities. Section (2) of Article 6 reads as follows: "States Parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention."
Article 7(2) advances the identical standard for the control of children with disabilities as is contained in the UN Convention on the Rights of the Child. This means that the government -- acting under UN directives —- gets to determine for all children with disabilities what the government thinks is best.
Additionally, under current American law, federal law requires public schools to offer special assistance to children with disabilities. However, no parent is required to accept such assistance. Under this section the government -- and not the parent -- would have the ultimate authority to determine if a child with special needs will be homeschooled, attend a private school, or be required to accept the program offered by the public school.
Article 7 of the treaty addresses the topic of "Children with Disabilities." Section (2) of this article states: "In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration."
The "best interest" principle is widely accepted by U.S. courts, as it is a protection against child abuse as well as undue government interference. In the context of the Convention of the Rights of Persons with Disabilities, it should be noted that the treaty also provides protection for parents and guardians. For example, Article 23 of the treaty addresses, "Respect For Home and the Family."
Article 23(4) provides: "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents."
Article 24 of the treaty ("Education") establishes the principle that all people with disabilities have the right to an education, and this right should be realized "...without discrimination and on the basis of equal opportunity." So, to the extent that an able-bodied child may enjoy an education at home, the Convention on the Rights of Persons with Disabilities will serve to equally allow a child with a disability to enjoy the same privilege.
The United States, as a wealthy nation, would be obligated to fund disability programs in nations that could not afford their own programs under the dictates of Article 4(2). This is what “the framework of international cooperation” means.
As previously noted, Article 4 of the treaty describes "general obligations" of State Parties. It does not lay out specific requirements for how international cooperation must take place. The concept of "international cooperation" is addressed in Section 32 of the Convention on the Rights of Persons with Disabilities, and it includes a list of suggested measures which nations could agree to pursue -- but none of these measures are described as mandates. And, in any case, the treaty provides that each nation is responsible for fulfilling its own obligations under the treaty.
Also, under the principle of national sovereignty, the UN has no authority to dictate the budget of the United States nor of any other member state of the United Nations.
Article 15’s call for a ban on “inhuman or degrading treatment or punishment” is the exact same language used in the UN CRC which has been authoritatively interpreted to ban any spanking by parents. It should be noted that Article 15 is not limited to persons with disabilities. It says “no one shall be subjected to … inhuman or degrading treatment.” This means that spanking will be banned entirely in the United States.
The complete text of Article 15 is:
"Freedom from torture or cruel, inhuman or degrading treatment or punishment
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.
"States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment."
The prohibition on "inhuman or degrading treatment or punishment" appears in several laws, treaties, and international agreements. For example, an identical phrase appears in the United Nations Convention Against Torture, which has been American law since 1994. In this sense, Article 15 does not add any new requirements that we have not already agreed to.
As to an interpretation under the "UN CRC" (the Convention on the Rights of the Child), it should be noted that the monitoring and enforcement mechanisms of the Convention on the Rights of Persons with Disabilities are entirely separate from the enforcement mechanisms of the CRC. The CRC treaty is monitored by a UN Committee on the Rights of the Child. In contrast, the monitoring and enforcement mechanisms of the Convention on the Rights of Persons with Disabilities are the responsibility of an 18-member Committee on the Rights of Persons with Disabilities -- with members elected by the State Parties.
The powers of the Committee on the Rights of Persons with Disabilities are limited to receiving reports from member countries, reviewing those reports, and making its own periodic report to the UN General Assembly. The Committee is authorized to "...make suggestions and general recommendations based on the examination of reports and information received from the States Parties."
Article 25 [sic] on Education does not repeat the parental rights rules of earlier human rights treaties such as the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social, and Cultural Rights. This is an important omission. Coupling this omission with the direct declaration of “the best interest of the child” standard in Article 7(2), this convention is nothing less than the complete eradication of parental rights for the education of children with disabilities.
The topic of Education is actually addressed in Article 24 of the Convention on the Rights of Persons with Disabilities.
Article 24 does not repeat the provisions of the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social, and Cultural Rights because these covenants are explicitly acknowledged in the Preamble of the Convention on the Rights of Persons with Disabilities.
Furthermore, Article 4(4) of the Convention provides this explicit assurance: "Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent."
The members of the Oklahoma City chapter of the United Nations Association urge all our neighbors and friends to examine the text of the Convention of the Rights of Persons with Disabilities:
We ask you to review the provisions of the treaty. Evaluate them based on your own experience with respect to the needs of people who struggle with a disability.
Then, contact our Oklahoma senators (Sen. Coburn and Sen. Inhofe) and share your independent judgment with them.