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.