Mis- (and Dis-) Information about UN Disability Convention

Tina Minkowitz, Esq.
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The November 5 hearing on the UN Convention on the Rights of Persons with Disabilities in the Senate Committee on Foreign Relations reached new heights of absurdity and opens new ground for concern.  It may be worse for us to ratify with the reservations, understandings and declarations (RUDs) being proposed, and with the legislative record that is being created for the specific purpose of rejecting any application of the treaty’s standards to US law than not to ratify at all.

Treaty opponent Michael Farris, who wants parents to have absolute rights over their children (including adult “children” with disabilities), brought up Article 12 of the CRPD which requires countries to eliminate guardianship and replace it with supported decision-making, which respects the person’s rights, will and preferences.  Not one of the treaty supporters testifying at the hearing, and not one of the Senators on the Committee, deigned to address Article 12, which is one of the revolutionary aspects of the treaty celebrated worldwide.

All the proponents of CRPD ratification who are allowed a voice in these discussions are in agreement that the US ratification is aimed ONLY at giving the US greater influence over other countries and over the development of customary international law, and NOT at improving the enjoyment of human rights by persons with disabilities in the US itself.  This is astounding.  It is hard to imagine any self-respecting group of people that would work so hard for a treaty about their own rights, and yet argue that it won’t apply to themselves but instead is only meant to help their government promote the national “brand” (as per Former Secretary of Homeland Security Tom Ridge).  At the very least, this suggests an unwholesome identity of interest between segments of the disability community and the government, and a monopoly on the information that effectively reaches the remainder of the disability community, which has gone along with this charade.  (Those who go along – who are listed as supporters on the website of the arch-promoter of ratification-with-RUDs USICD – unfortunately include MindFreedom International and the National Coalition on Mental Health Recovery as well as Bazelon Center and NAMI.)

It’s sometimes said that if everybody disagrees with you, you ought to do a reality check yourself.  Why am I a relatively lone voice speaking out against RUDs?  (Not that alone:  a number of human rights organizations and law professors have signed the CHRUSP letters opposing RUDs, and over 660 people have signed the petition of the Campaign to Repeal Mental Health Laws.)  What do I know, that these others don’t?  If you know my work from this blog or elsewhere, you may know that I was one of the drafters of the CRPD, that I still play a role as International Representative of the World Network of Users and Survivors of Psychiatry, and that I have contributed to the work of the Committee on the Rights of Persons with Disabilities, the Office of the UN High Commissioner for Human Rights, and the Special Rapporteur on Torture.  I think that my perspective at least deserves to be presented to the Senate, as well as to the disability community.

Yet I have no expectation that things will change.  The dysfunctional, non-reality-based world of US politics has triumphed.  There are no Senators who have called into question any of the RUDs, on the contrary, the Foreign Relations Committee is welcoming new RUDs to further insulate the US government from the standards that have been created through an international process in which the US reluctantly participated.

Ratification-with-RUDs proponents have peddled misinformation.  It is incorrect and rather alarming to hear (from Senators and from Timothy Meyer, a law professor who testified) that the US may expect to influence the interpretations made by the Committee on the Rights of Persons with Disabilities through the presence of a “US representative” on that Committee.  There are no government representatives on human rights treaty bodies; they are composed of independent experts who are nominated and elected by the group of States Parties but who have no role in consideration of their own countries’ reports and who are expected to be entirely free from influence by their governments.  The CRPD Committee operates with a high standard of ethics; such statements in the US Senate may have a detrimental effect of casting suspicion on any US national who may eventually be elected to the Committee in the event of ratification.

Richard Thornburgh, former Attorney General who has emerged as a ratification-with-RUDs proponent, claims that the use of RUDs is an honorable practice summarily dismisses the position that proposed RUDs are contrary to the object and purpose of the treaty without any substantive analysis.  (CHRUSP on the other hand has analyzed both the most objectionable RUDs and the package as a whole as being contrary to the object and purpose of the CRPD.)  Thornburgh characterizes as “fanciful” the notion that US law might not in fact fulfill or exceed the requirements of the treaty (which has also been argued in detail by CHRUSP in the documents linked just above).  It appears that he was prompted to respond to CHRUSP and to the Campaign to Repeal Mental Health Laws, who are the only human rights advocates opposing RUDS to my knowledge.  Treaty opponent Farris adopts the position that RUDs contravene the object and purpose of the treaty opportunistically in order to argue that it is more honest to reject the treaty as he advocates.

Timothy Meyer argues for strengthening the RUDs to make it less possible for people with disabilities to use recommendations by the Committee on the Rights of Persons with Disabilities to actually win greater human rights than the US government is prepared to give us.  No, he doesn’t say it that way.  The discourse is all about US sovereignty and the outrage of any UN body presuming to tell the world leader it is wrong.  People with disabilities in the United States are the ones who are harmed.  Just as African Americans sought federal intervention against segregationist state governments, people labeled with psychiatric disabilities everywhere in the world look to the UN Committee on the Rights of Persons with Disabilities to make specific recommendations to their governments that can serve as a basis for change.  The US Senate, in order to preserve discriminatory state and federal laws, wishes to inoculate itself against recommendations that the RUDs be withdrawn and that it should be expected to fully implement the treaty to the same extent as all other countries.  The US cannot prevent the CRPD Committee from issuing such recommendations, but it can make the Committee’s work more difficult by taking a combative stance rather than a cooperative one, undermining the purpose of the interactive dialogue to improve compliance with the treaty and improve the human rights of persons with disabilities in the country under review.

Meyer even proposes language designed to prevent the US from giving any weight to recommendations of OTHER UN bodies that refer to recommendations of the CRPD Committee.  While even this would not stop the Human Rights Committee, or governments during the Universal Periodic Review, from condemning US RUDs and failure to comply with the CRPD, it would heighten the traditionally combative stance of the US.  This is particularly unfortunate given the Obama administration’s tentative efforts in the direction of increased cooperation with UN human rights mechanisms, and suggests that CRPD ratification-with-RUDs will be at least as much a setback as an advance for human rights in this country.

Furthermore, US ratification may well be detrimental for people with disabilities in other countries.  If, as suggested by Meyer and some Senators, the US will seek to influence the interpretation of the treaty by the Committee on the Rights of Persons with Disabilities along the more restrictive lines of US law, this should give pause to all those who are eagerly anticipating increased US aid to disability projects abroad thanks to its assertion of world leadership by the act of treaty ratification.  Ultimately this is a battle for the soul of the CRPD:  social welfare or human rights?  It does not have to be a choice, but it becomes one when a rich country exempts itself from the operation of human rights provisions and pursues treaty ratification instead to promote its products and its “brand” along with its inferior human rights standards.

Human rights advocates may lose the battle to ratify CRPD without the RUDs.  We lack the political influence and machinery of the groups supporting either ratification-with-RUDs or a far-right anti-human-rights-treaty position.  Ratification-with-RUDs folks are fond of saying to me that the way to change US law is through the political process and not by the use of human rights treaties.  I challenge them to offer a plan for repealing mental health laws, in a political process that on the contrary promotes “parity” for involuntary mental health treatment as a policy that is part of the gun control and violence prevention agenda.  Yet we have to make “a way out of no way” somehow, to bend the arc towards justice and win the war.  Human rights has a way of being irrepressible and eventually winning despite all the odds.

 

11 COMMENTS

  1. Tina, thank you for being the voice of reason in this debate, in which the mainstream disability “rights” organizations have sold the interests of people with psychiatric histories down the river! I have yet to hear a coherent agrument from any of the organziations you cited above as to why they are supporting ratification-with-RUDs, which should be anathema to any “rights” organization.

    I’ve also been very discouraged by reading pro-MH “parity” statements from psych survivor activists today. As you rightly point out, there is no “parity” as long as there is forced treatment.

  2. Tina, I do think it is amusing that proponents of the CRPD are saying the intention is to improve conditions abroad and not here in the US. Why is it that the U.S. is so interested in bullying other countries while refusing to look at its own flaws. There is such profound moral hypocrisy here that it pretty much takes your breath away. What I see in the government position is this desire to look good, to be seen as supporting the rights of persons with different abilities, while at the same time, underneath many are profoundly prejudiced and absolutely do not wish to accord fundamental human rights to the abilities community. That is a bottom line fact. Among our own people, I tend to think there is a belief that if we can only get the closest possible approximation of what we want, then we might somehow shove our way across the line into the genuine acquisition of our human rights. I tend to think that isn’t happening either. Perhaps rather than accept the CRPD with RUDs and establish a damaging precedent, perhaps we need state our commitment to the CRPD as is, lose, and return to the process of continuing to educate our legislators on these issues until the time is right. I say this, Tina, as a grassroots activist where, for example, I was just speaking to students at a local university who told me that they are struggling to obtain reasonable accommodations under the ADA for eligible students. I know that in the CT Judicial Courts litigants who request ADA modifications have been routinely denied those requests. My daughter who is visually impaired has had to fight the threat of a grade reduction when she has requested a reasonable accommodation. So there is a widespread and broad based ignorance among every day folks that we must address through a campaign of education and reaching our to our communities with our stories and with explanations of how granting human rights to their brothers and sisters with unique challenges which benefit family members as well as enhance the health and wellbeing of our communities as a whole. I believe this particular blogsite is an important step when it comes to reaching out and educating people and has also provided a significant opportunity for folks impacted by the denial of their basic human rights and civil rights to speak–it has given them a voice. We need many more initiatives of this kind. Otherwise, we are a people of mystery and enigma, people considered to have a dangerous potential for causing major harm to others, and I could go more into the stereotypes. But what we must know is that people are afraid of what they do not understand. So if we want our rights, we must help others to understand who we are and why we, like them, have a common humanity and a universal human right to the same privileges that they have. This is the great task that lies before us, in my view.

  3. I just came across this in an article from “In These Times” by Noam Chomsky. I know there have been problems with Chomsky on our issues but I thought his article was pretty accurate. As I was seeing Andy Imparato’s belief about how we shouldn’t expect to change American laws with “outside” treaties, I thought about some of the work we did on nuclear proliferation years ago. Of course, that’s exactly what we did. We pushed the U.S. government to limit its nuclear proliferation in treaties between the U.S. and other countries.

    Anyway, here’s a portion of Chomsky’s article which quotes “Foreign Affairs” which of course, is a very mainstream publication. But, of course, its written by someone who is well-versed in dealing on the international level to create universal standards for all countries which should include the U.S.

    “In the latest issue of Foreign Affairs, the leading establishment journal, David Kaye reviews one aspect of Washington’s departure from the world: rejection of multilateral treaties “as if it were sport.”

    He explains that some treaties are rejected outright, as when the U.S. Senate “voted against the Convention on the Rights of Persons with Disabilities in 2012 and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) in 1999.”

    Others are dismissed by inaction, including “such subjects as labor, economic and cultural rights, endangered species, pollution, armed conflict, peacekeeping, nuclear weapons, the law of the sea, and discrimination against women.”

    Rejection of international obligations “has grown so entrenched,” Kaye writes, “that foreign governments no longer expect Washington’s ratification or its full participation in the institutions treaties create. The world is moving on; laws get made elsewhere, with limited (if any) American involvement.”

    While not new, the practice has indeed become more entrenched in recent years, along with quiet acceptance at home of the doctrine that the U.S. has every right to act as a rogue state.”

  4. This is why I turned away from mindfreedom several years ago. Things have only gotten worse in all these years that they’ve been around and active. Their methods — jamming up phone lines, protesting, etc — have only ever worked to aggravate the psychiatrists and staff and make the MF Shield members drugging worse. Chris Busche is a great example of business as usual at MFI.

    Chronology:
    1) Admitted to hospital, will be out in 1-2 weeks.

    2) Phone lines jammed with calls from MF Shield volunteers, Chris transferred to a state hospital for 18 MONTHS.

    3) They finally let Chris go and transfer him to a group home, for no other reason but because after 18 months they thought his “treatment” should be over.

    4) MFI announces victory in newsletter and celebrates.

    Absolutely pathetic.

  5. (Quoting directly from my FB page) The US is up for a review in 2014 (UN human rights review). It wants to export (to countries allegedly “looking to the US as a role model”) the influence of the US’s involvement with the treaty with RUDs (reservations, understandings, and declarations) that weaken the treaty. The US “brand” of “disability rights” is not, in fact, the standard to be imported overseas…and we are in the process of: a) putting disabled people overseas at risk; and, b) turning our backs on the human rights of disabled people here on our shores. The SCFR was a FARCE when we needed leadership; in the best instances, our politicians were reading from staff memos seeming without even having read the treaty; at worst, those of us who don’t believe in abusive medicine and forced psychiatry were being called abortionists and other names. The UN has asked for more input on Article 12, the area in which I specialize. Article 12 bans legal (“mental health”) capacity determinations (as it should: everyone should be viewed as having equal capacity under the law, and no one should be conveyed into locked-ward psychiatric torture and confinement). My comments to the UN will likely concern the dimensions of politics-as-usual as it occurs on both sides of the aisle. The Right doesn’t understand that this was its Golden Opportunity to stop over-reaching Big Government: eliminating “capacity determinations” is a solid, conservative idea; the Left myopically (and discriminatorily) continues to attribute violence to the disabled population (as D. Engster and others have stated) and fails to see that Obamacare should be stopped because it puts wide groups of people at an increased risk of locked-ward torture and confinement. The SCFR co-opted veterans’ issues as an opportunity to endorse RUD-based ratification but nobody discussed the UN’s central concern which is the danger of forced psychiatry tantamount to torture. People who support disability rights need to get off the bandwagon that Obamacare is anything other than a discriminatory and monumentally dangerous behemoth. My point: nobody should be forced to participate in health care, ESPECIALLY IF the UN has condemned forced treatment as torture. How dare we? We’ll see what happens in March, but Atty. Minkowitz is right: the US has no business exporting its “brand” of disability rights overseas while leaving domestic psychiatric abuse survivors to rot. My addition to the UN: We’re in a morass of abuse-based entitlement programs that will not have the opportunity to improve as a result of the Treaty (as a result of the RUDs and US obfuscation of our internal problems as problems that only really occur overseas). If you believe in disability rights and also rights of the survivors of torture and medical crimes? Obamacare really has to be stopped. Nationalizing “health care” during a period in which the best thinking on torture and even the Constitution is coming from the UN???? a really monumentally stupid idea. The Left claims to love the Bill of Rights; the Right claims to eschew the overreaching of Big Government…and yet neither political inclination does the right thing with respect to legal capacity determinations and the dangers of forced medicine. We have to re-trench. I figured that many of the UN lawyers (lawyers within NGOs that have consulting status at the UN) would be FOR passing the Treaty even though the US is forcing it to carry RUDs, but the US’s human rights standards are SO SUB-STANDARD that we’re saying: “No, don’t pass it”… The fight’s not over yet, however; and we don’t appear to be going anywhere. but oh, my: the SCFR needed the Carrie firehose (in a major way).

    • Mostly I reposted my remarks in their entirety to extend my point that passage of the UN CRPD is a political/semantic problem; I think the NGOs responsible for getting Article 12 on the books have done a fantastic job. However, the UN is going to have to tailor a message to the American public and it is not appealing to the Bill of Rights and torture (“forced treatment”) as a question of Constitutionality AND human rights.