This statement has been sent to the Senate Foreign Relations Committee. There will be a second hearing on the Convention on the Rights of Persons with Disabilities on November 21, 2013. Related materials include a petition posted by the Campaign to Repeal Mental Health Laws, urging the Senate to ratify the CRPD without reservations, understandings or declarations (RUDs), and letters previously sent by CHRUSP and others opposing the package of RUDs.
Statement to the Senate Foreign Relations Committee on CRPD
Tina Minkowitz, Esq. November 19, 2013
The United States has been admired as a leader in the field of disability rights because of the ADA. However, the ADA is not the gold standard for comprehensive protection of human rights of persons with disabilities without discrimination in all aspects of life. That mantle belongs to the Convention on the Rights of Persons with Disabilities.
The CRPD drew from many sources, primarily from advocacy coming from the lived experience of people with disabilities in every part of the world. The United States and other governments contributed their own best practices, but the treaty resulted from a strong cooperation between governments and civil society – particular organizations of persons with disabilities. This author has intimate knowledge of the CRPD drafting and negotiations, having been one of the leaders of the International Disability Caucus, which coordinated civil society work under the leadership of disabled people’s organizations, and having been one of the twelve NGO representatives on a forty-member group that was designated to draft the text.
The CRPD innovates beyond existing domestic laws in important respects. It brings together the full range of human rights – civil, political, economic, social and cultural. It refers constantly to a transversal principle of equality and non-discrimination in the exercise and enjoyment of human rights and fundamental freedoms, but it is more than a mere statement that discrimination is to be prohibited; the obligations flowing from non- discrimination are set out in each field. The most transformative vision of the CRPD stems from its extension of the disability rights paradigm to legal capacity and personal liberty. Articles 12 and 14 require the elimination of guardianship, substituted decision- making, involuntary commitment and compulsory treatment – human rights violations which particularly impact people labeled with psychiatric, developmental and cognitive disabilities. This might be termed a “second wave” of the disability rights movement. It is not present in the ADA or as yet in other national legislations, but a number of governments and NGOs throughout the world are working on reform of law and practices to comply with the CRPD standards.
It is therefore disturbing to witness not only the numerous RUDs of unprecedented number and scope, but the intent of the RUDs as apparent from their content and from the statements of both Senators and witnesses in the Foreign Relations Committee hearings. It appears that the intent and effect of the RUDs taken as a whole is to preclude any necessity for action by the US to bring its own law into compliance with international standards that it would claim to ratify. Ratification on these terms violates the core principle of international law that domestic law does not excuse a government from complying with its international obligations1, and its corollary that states parties are expected to conform their domestic law to the requirements of a ratified treaty2. The United States cannot escape this obligation by declaring that its law fulfills or exceeds the requirements of the treaty.
People with disabilities in the United States – including those of us from the most marginalized “second wave” – need the CRPD to be brought into domestic law, including by compliance with the obligation under Article 4(1) to repeal laws which, under the terms of the CRPD, discriminate against persons with disabilities, and to enact legislation that may be required to implement the rights recognized. To reject this central obligation or seek loopholes to avoid it does a sad disservice to persons with disabilities, and is not in keeping with the purpose or principles of the CRPD.
If the US wishes to maintain its reputation as a leader in the field of disability rights, it is not enough to assist other countries in building ramps and developing accessible technology. Those are laudable aims but are at best half of what the CRPD requires. There is a new world in disability rights, and the US risks being left behind unless there is a reversal of course that commits to full domestic implementation in compliance with standards that have been set by the international community with US participation.
Please see www.chrusp.org and contact [email protected] for further information.
1 Article 27, Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980. Provisions of the VCLT reflect customary international law accepted by the United States, see Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 308-309 (2d Cir. N.Y. 2000). See also Restat 3d of the Foreign Relations Law of the U.S., § 115 (1)(b).
2 See objections made by Austria, Denmark, Finland, Netherlands and Sweden to reservations by other states parties to the VCLT. Similar objections have been made to reservations under the CRPD that give broad preference to domestic law.
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