3 September 2013

Why should the United States ratify the UN Convention on the Rights of Persons with Disabilities?

Fellow Americans, in 1990, President George HW Bush signed the Americans with Disabilities Act (ADA) into law. Since then, many millions of disabled people in America have established rightful access to employment, to transportation and to public facilities. Our cities are some of the most accessible in the world. Our justice system has produced landmark rulings. In 1999, our Supreme Court ruled that institutionalization constitutes discrimination. The Obama administration has encouraged states to close institutions, and even litigated against those which are being too slow. Every person with a disability has the right to live in the community, in our communities, which are their communities, too.

Sixteen years after the ADA was adopted, we and other members of the United Nations adopted an international Convention on the Rights of Persons with Disabilities. This Convention builds on the ADA, but is broader in scope and in application. Each and every country should work on implementing the Convention: rich and poor, big and small, in the global north and south, from countries in the west to those in the east.

It’s time that the US ratified the Convention, which 133 other countries have already done. Sure, we have the ADA, but as a democracy we can always do better. Ratifying the Convention will enable us to learn from the experiences of other countries and to share our own. There are over one billion people with disabilities in the world, and most live in low-income countries. Ratifying the treaty allows our diplomats to attend and vote at crucial UN meetings about disability rights. We will be able to nominate an American candidate for the 18-person UN committee, and this person will influence how other countries treat people with disabilities.

While we are proud of our achievements in disability rights, people with disabilities in America have pointed out areas in which we have fallen short. These include guardianship regimes and detention for mental illnesses. We need to explore alternatives to both and to listen carefully to those who have different opinions. We will benefit from a global discussion as much as we contribute to it, a discussion in which we can participate with credibility if we ratify the Convention. I urge Senators to distinguish the facts from the myths and pass the bill allowing the United States to take its place at the most important table of global disability rights.

How inspiring would it have been to see this as Secretary of State John Kerry’s op-ed arguing in favour of US ratification of the CRPD. Unfortunately it's not a real op-ed, but my attempt at a Kerry op-ed, a ghost-written alternative to the actual campaign of misinformation, counter-misinformation and increasingly false claims that has come to characterise the debate about ratifying the CRPD in the US, some of which I will address in this blog post.

Secretary of State John Kerry (businessinsider.com)


Why should the US ratify the CRPD?

The US delegation was prominent and helpful in the negotiations leading up to the adoption of the CRPD in 2006. President Obama signed the treaty in 2009 demonstrating his intent to be bound by its legal obligations, pending ratification. But ratification has been more problematic. He has been held back because he needs the permission of the Senate. On 4 December last year, I watched the live webcast of the Senate debate which resulted in defeat for bipartisan CRPD proponents, among them democratic Senator (now Secretary of State) John Kerry and John McCain, a republican Senator and 2008 presidential candidate.

Senators in favour of the CRPD said that the ADA was an inspiration for the CRPD (correct), that ratifying the CRPD would help veterans and tourists travelling abroad (incorrect), and that no American laws would need to be changed (incorrect).  Those against the CRPD said that ratifying the treaty would empower the UN to deploy personnel to the US to take away children (incorrect), that the treaty would promote abortions (incorrect), prohibit home-schooling (incorrect), and threaten US sovereignty (incorrect). Typical of the zany rhetoric was Oklahoma’s Senator Jim Inhofe who lambasted the “cumbersome regulations and potentially overzealous international organizations with anti-American biases that infringe upon American society.”

The bill gained 61 votes for and 38 against (including Inhofe’s), five votes short of the two-thirds majority needed for ratification. Far right republican senators ensured the defeat of the bill. A “shameful day for the United States Senate”, said legendary Senator Tom Harkin, author of the ADA. For him, the defeat was a “triumph of unfounded, unreasonable fear over experience, reason and rational thought.”

Commentator Nancy L. Cohen has noted how false and vile opinions have come out over the CRPD: “The culture war over women's rights, gay marriage, abortion, and birth control continues. And this battle reminds us that America’s holy warriors have always also had international ambitions”. One of these cultural warriors armed with endlessly absurd arguments is columnist Phyllis Schlafly. Her view is that “feminists are using this treaty as an opportunity to promote their abortion agenda.” Actually, the CRPD simply guarantees access by people with disabilities to health care as everyone else, including their “sexual and reproductive rights.” So much for the misinformation surrounding the debate.


Let’s vote. Again.

More than 600 American disability NGOs, nearly 40 faith-based groups, and around 20 veterans organizations support US ratification of the CRPD, and Human Rights Watch has recently called on the Senate to pass the bill. From across the pond, it seems that people on both side of the fence are peddling misinformation (see this webpage of the Home School Defence League for a particularly hilarious/atrocious example). I want to look at two of these false claims: that the CRPD will allow America to export its own ‘high standards’ helping American tourists abroad; and that America doesn’t need law reform. In doing so, I want to emphasise that I am a huge supporter of US ratification because, like all other countries which ratify the CRPD, there is some law reform which needs to take place, and people with disabilities in America stand to benefit from ratification.

Empty chairs at the US Senate (fitsnews.com)


False claim 1: Ratifying the CRPD will allow America to export its own ‘high standards’, and will help American tourists abroad (aka “be more like us”!)

Secretary of State John Kerry wrote an op-ed for USA Today a few weeks ago, entitled, “Our disabled deserve access abroad”. He argues that what is required is “American leadership in the world so that our wounded warriors and Americans with disabilities can travel, serve, study and work anywhere in the world with the same dignity and respect they enjoy here at home”.

This argument is flawed, because when a country ratifies the CRPD that country is bound under international law to implement the Convention to all persons within its own jurisdiction. So an American vacationing in Tuscany relies on Italy’s ratification to ensure that the pizzeria in Pisa is accessible: America’s ratification is irrelevant. The arguments about American leadership in the world, and American tourists, are a reaction to hard-line anti-UN activists who claim that the CRPD will “undermine US sovereignty,” presumably because the US will have to abide by the treaty.

Kerry is correct in a very soft sense. It does matter for country A that countries B to Z have ratified. Quantity of ratifications indicates a global consensus. If the US wants to call for other countries to respect rights laid out in the CRPD, it had better ratify the CRPD too. Other countries’ ratifications seem to be important for the judiciary too. In the UK last year a court looked at the number of European ratifications when considering how much weight to accord the CRPD in that particular case (see paragraphs 98 to 108). It did not mention the USA’s non-ratification because its focus was Europe. But in this very weak sense, ratification by other countries can influence the regard that courts, and other important bodies, have for the CRPD as such (thanks to Lucy Series for making this point to me).

Rather than acknowledging the real benefits of ratifying the Convention, pro-CRPD leaders resort to neo-colonial claims which I find particularly cringe-worthy but which more important people hopefully find attractive. Secretary Kerry argues that ratification will aid in “projecting U.S. leadership.” It will “help create new markets for our accessible technologies products”, despite the fact that right now US companies are permitted and able to buy and sell accessible technologies, irrespective of the status of America’s ratification. “The treaty says to other countries that don’t respect the rights of disabled people: Be more like us,” writes Secretary Kerry. Let’s look more closely at the claim that other countries should be more like America.


False claim 2: America doesn’t need law reform after ratification

“The whole point of the treaty is to encourage other nations to match the standards set by the United States in the Americans With Disabilities Act,” claimed the New York Times in an editorial last month. John Kerry echoes this erroneous view, asserting that the purpose of the CRPD, “is the same as our ADA: to prevent discrimination on the basis of disability.” Actually, you can read in Article 1 of the CRPD that its purpose is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. The CRPD goes way beyond non-discrimination; its scope is far wider than the ADA.

Kerry’s echoes his USA Today point in a video he recently released: the CRPD “won't change American laws one bit, alter the balance between the federal government and the states, or infringe on parental rights in the US,” he says. Even the pro-CRPD United States International Council on Disabilities (USICD) argues in its publicity material that law reform won’t be needed. But the fact that there is a need for law reform has already been accepted by the Obama administration in the President’s communication to the Senate (see here for the embarrassingly non-accessible transmission bundle). Three examples should make this clear:

1.      Guardianship. Page 34 of the bundle says that some States have made developments to move towards respecting legal capacity and people’s autonomy. “Despite these positive changes in guardianship provisions in most states”, the document goes on to say, “many state constitutions and statutory provisions continue to limit the full exercise of civil and political rights of persons deemed incompetent. In many states, presumptions of incompetency linked to the appointment of a guardian may result in restrictions on voting, holding office, servicing on a jury, testifying, or bearing arms. State laws also may reach into the realm of family and privacy, with termination of parental rights or the right to refuse medical treatment.” That’s quite an admission, because Article 12 of the CRPD requires legislation to be amended so that people with disabilities have legal capacity and are supported to exercise it. The CRPD clearly allows no room for denying the vote on the basis of disability. So if America ratifies the CRPD, many states will need to amend their guardianship laws to bring them in line with Article 12 of the CRPD.

2.      Involuntary psychiatric treatment. In all states, people can be deprived of their liberty on their basis of a diagnosis of a psycho-social disability (mental illness) and some form of risk assessment. In many states outpatient commitment exists where the person is compelled to take their medication, in fear of being dragged to and drugged in a clinic. All US states allow involuntary commitment. According to the CRPD Committee, civil commitment is problematic in and of itself because it breaches Article 14 of the CRPD which prohibits law from using disability (including mental health) as a reason for detention. Although the Committee should explain how this would work, it has already made it clear to countries that they should “repeal” laws which allow for involuntary detention on the basis of a diagnosis, and in line with Article 25(d) of the CRPD, to ensure that mental health care services are based on the informed consent of the person concerned. Tina Minkowitz is surely correct to assert that if America ratifies the CRPD, many if not all states will need to re-think their mental health laws so as to bring them in line with the CRPD.

3.      Abusive treatments. These include electro shock of children with disabilities and “Ashley treatment”, which means stunting growth of girls with disabilities and excising their nipple buds. Amazingly, these so-called treatments have their proponents, but – in my view - there’s a serious case to be made that they breach CRPD provisions setting out the right to be free from torture and ill-treatment (Article 15), from abuse (Article 16) and the right to mental and physical integrity (Article 17). If America ratifies the CRPD, states will need to amend their laws and practices to bring them in line with these provisions.

It is vital that the misinformation on the CRPD is not allowed to get in the way of truly progressive change and realisation of the human rights of people with disabilities in the US. I hope that Senators find it within themselves to raise the level of debate when they next debate the CRPD, and vote for ratification.