Convention on the Rights of Persons with Disabilities: Breaking the Silence

Tina Minkowitz, Esq.
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It’s time to speak about what is happening with the Convention on the Rights of Persons with Disabilities in the United States.

I have been a supporter of ratification by my own country since the treaty was adopted in the United Nations. My interest has always been to use the treaty to secure and fulfill the human rights of people labeled with psychiatric disabilities: especially to stop the legalized forced psychiatric interventions that keep us oppressed, silenced and traumatized.

Even in the process of seeking ratification, this discrimination and debilitating human sacrifice has played itself out. Disability lobbyists inside the Beltway feared from the beginning that, by speaking openly about these issues that were so “scary” we would derail their efforts at ratification. Come again? Why do we want ratification unless it’s to deal with issues where U.S. laws and practices need to be improved? Well, a lot of folks care about their international projects in other countries… wanting to bring other countries up to American standards so that people with disabilities can travel and work there… and to open up more U.S. international aid for disability-related projects.

Even our disability community allies in other countries commonly buy into U.S. exceptionalism, wanting us to ratify the CRPD so that America will give more money for their projects, even if it comes at the expense of human rights at home.

There is a subtle discrimination here in the silent assumption that “people with disabilities” traveling to other countries aren’t worrying about being locked up in psychiatry there… which has happened to some of my friends. Or that international aid provided by the U.S. has nothing to do with the parts of the CRPD that require abolition of forced psychiatry and the development of support measures that respect the person’s autonomy, will and preferences.

When the package of RUDs proposed by the administration came out, along with a memorandum explaining how they understood U.S. law in light of the CRPD, I wasn’t happy with it but it was workable. There was a federalism reservation designed to carve out issues governed by state law (which of course includes civil commitment, free and informed consent in health care, and legal capacity). But all it said was that the federal government doesn’t take direct responsibility for violations of the treaty’s standards by the states. But it still committed the U.S. government to taking measures appropriate to the federal system such as enforcement of the Americans with Disabilities Act (ADA), with the objective of full implementation. Given the many ways that human rights violations contained in state laws and practices can be addressed by our federal government (including Title II of the ADA itself), this limitation was not an obstacle to my support for ratification.

Now, the Senate Committee on Foreign Relations has finally sent the treaty to a vote on the Senate floor, where it will need 2/3 of the senators (67) to pass. But it has been seriously if not mortally wounded.

Apparently everything else has been sacrificed in the attempt to appease the right wing and prevent the treaty from being derailed over abortion. Abortion is not mentioned in the treaty, but the right wing wants to use this treaty to limit women’s reproductive freedom. For now, reproductive freedom within a narrow margin is still the law of the land, and women’s human rights groups have at least some champions in the Senate. Unfortunately, people with disabilities in the United States do not have such great champions for our rights even though this is “our” treaty.

Most sweeping is a declaration that says,

“The Senate declares that, in view of the reservations to be included in the instrument of ratification, current United States law fulfills or exceeds the obligations of the Convention for the United States.”

Combined with the federalism reservation and other RUDs, this declaration claims that the U.S. is exempt from the core obligation of the treaty to subject itself to the standards the treaty proclaims. Such a declaration is a disguised reservation and is incompatible with the object and purpose of the treaty. Other States Parties to the CRPD should object to this declaration and to the package as a whole, as they have objected to similar RUDs by El Salvador and the Islamic Republic of Iran.

Another new RUD says that Article 7 governing the rights of children with disabilities requires no change to existing U.S. law. Despite this understanding, groups that oppose children’s rights on the ground that this diminishes the rights of parents continue to call for the treaty to be defeated in the Senate vote.

Yet another RUD understands the terms “disability,” “persons with disabilities,” “undue burden,” “discrimination based on disability” and “reasonable accommodation” to be defined according to U.S. law. Discrimination and reasonable accommodation are defined in the CRPD with reference to enjoyment of human rights, so that this limitation on a transversal concept of the treaty also amounts to a reservation incompatible with its object and purpose.

The last of the new RUDs says that the U.S. does not consider the conclusions, recommendations or general comments issued by the Committee on the Rights of Persons with Disabilities (the international expert committee selected by States Parties that monitors implementation of the treaty) to be legally binding or to constitute customary international law. This is both disrespectful of the treaty’s authority to interpret the treaty and unnecessarily limiting to the process of development of customary international law.

The RUDs proposed originally by the administration are, in addition to the federalism reservation:

– a reservation against taking measures to regulate private conduct beyond what is required by U.S. law
– a reservation on the obligations related to torture and ill treatment, incorporating RUDs made to the Convention Against Torture and the International Covenant on Civil and Political Rights
– an understanding that the CRPD does not require any limitation of speech, expression or association protected by U.S. constitution and laws
– an understanding that people with disabilities are protected from discrimination with respect to economic, social and cultural rights, insofar as these rights are recognized or implemented under U.S. law
– an understanding that CRPD does not require a comparable worth framework for persons with disabilities (in employment)
– an understanding that CRPD does not exceed rights available under federal law in relation to hiring and employment of uniformed military personnel
– an understanding that “disability” and “persons with disabilities” are defined as in U.S. law [this understanding is now expanded to include additional terms, as described above]
– a declaration that the treaty is non-self-executing, cannot be enforced by the courts or give rise to individual rights

Many of these RUDs (versions of the federalism reservation, the reservation on torture, the understanding on first amendment freedoms, and the non-self-executing declaration in particular) are standard and have been attached to other treaties in the past. All of them are aimed at limiting the potential for human rights treaties to be used productively to improve the lives of people in this country. (Even the understanding on freedom of speech and association represents a tradeoff between those freedoms and the right of oppressed people to be free from hate speech and from organized hate groups.)

It’s time to educate ourselves and our communities about human rights. “Know them. Demand them. Defend them.” People with disabilities and human rights defenders everywhere need to hold the United States to the same human rights standards as other countries and not pretend that this country is above the law.

The struggle for human rights is not over until we win. CRPD ratification with or without RUDs is a tool, no more than that. Once we have woken up to our human rights we can’t go back to sleep and we can’t be satisfied until the changes are made to abolish oppressive laws and practices. We will use all the tools we have under international and domestic law to fulfill our human rights, including the standards of the CRPD, and including the Committee on the Rights of Persons with Disabilities if it becomes available to us. This is not a moment of defeat, it is a moment for people with disabilities to stay strong, proud, fierce and independent.

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4 COMMENTS

  1. Tina,

    I don’t mean to take this off-topic, but I’m wondering if there’s been any effort to have Congress pass an amendment to the ADA that would protect people diagnosed with severe mental health conditions… allowing them to opt-out of conventional tratment (especially by force), in lieu of “least restrictive”, “most therapeutic” and “most inclusive options”.

    Maybe this would serve as a starting point for later Congressional legislation, an international treaty, U.N. actions, etc.

    Duane

  2. The ADA was Congress overstepping both their implied and enumerated powers. However, the High Court had begun to consider the possibility of prevalent discrimination in regards to mental illness which would have elevated us to a suspect class with protected rights. It would have been a substantial cut in donations from washington’s most avid supporters: Pharmaceutical companies. I have to assume it was self serving, because the ADA’s immediate actions were to deny and hide their statistical data that showed not a possibility of prejudice, but the clear and rampant abuse of people with mental illness. Then, they lied, noting that no such bigotry could possibly exist. They even alluded to it being a manifestation of our “narcissistic” tendencies (reinforcing the existing stigma) But what totally confuses me is when has it ever helped to combat oppression and persecution by creating a generalization, establishing a label, and then created special circumstances for them in society? There seems to be a general consensus of stripping us of any rights or equality ever since. If we had known then, I think we could have at least made an attempt with a 1983 pleading. Instead, Prozac became the new wonder drug, and it’s side effects made it necessary for the mentally ill to either disappear, or become disposable. At this point, the concept of rights is too simplistic to protect any one. We need to move forward with the assumption of relative equality instead of carefully formulated disparity.