[Senate Executive Report 112-6]
[From the U.S. Government Publishing Office]
112th Congress Exec. Rept.
SENATE
2d Session 112-6
======================================================================
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (TREATY DOC. 112-7)
_______
July 31, 2012.--Ordered to be printed
_______
Mr. Kerry, from the Committee on Foreign Relations,
submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany Treaty Doc. 112-7]
The Committee on Foreign Relations, to which was referred
the Convention on the Rights of Persons with Disabilities,
signed on June 30, 2009 (Treaty Doc. 112-7) (the
``Convention''), having considered the same, reports favorably
thereon with three reservations, eight understandings and two
declarations, as indicated in the resolution of advice and
consent, and recommends that the Senate give its advice and
consent to ratification thereof, as set forth in this report
and the accompanying resolution of advice and consent.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Major Provisions.................................................2
IV. Entry Into Force and Amendments..................................6
V. Implementing Legislation.........................................6
VI. Committee Action.................................................7
VII. Committee Recommendation and Comments............................7
VIII.Text of Resolution of Advice and Consent to Ratification........14
IX. Minority Views of Senators Risch, Rubio, Inhofe, DeMint, and Lee17
X. Annex 1.--Hearing of July 12, 2012..............................21
XI. Annex 2.--Material Submitted for the Record During Testimony...117
XII. Annex 3.--Additional Questions and Answers Submitted for the
Record.........................................................129
XIII.Annex 4.--Additional Letters Submitted for the Record in Support
of the Convention..............................................149
I. Purpose
The purpose of this Convention is to promote, protect and
ensure the full and equal enjoyment of all human rights and
fundamental freedoms by persons with disabilities.
II. Background
The Convention on the Rights of Persons with Disabilities
was negotiated from 2002 to 2006, and was adopted on December
13, 2006. It was opened for signature on March 30, 2007. One
hundred and seventeen countries and the European Union are
parties to the Convention.
The United States provides greater legal protections
against discrimination for individuals with disabilities than
most of the rest of the world. Therefore, Americans with
disabilities often face significant and, at times, prohibitive,
barriers when they travel, work, serve, study and reside in
other countries.
Ratification of the Convention will advance our national
interest in multiple ways. Among its benefits, the Convention
will reaffirm and strengthen the global leadership role of the
United States with regard to the rights of disabled persons,
one to which our domestic record already attests. As a State
Party to the Convention, the United States will be in a
position to better promote the fundamental freedoms and
individual autonomy of individuals with disabilities. It will
allow us to more effectively support, assist, and encourage
other countries to bring their domestic laws into compliance
with the Convention and up to and in line with U.S. standards.
Such action will benefit Americans with disabilities, including
our disabled servicemen and servicewomen and disabled veterans,
enabling them to travel, work, serve, study and reside in other
countries without prohibitive barriers.
July 26, 2012 marked the twenty-second anniversary of the
landmark Americans with Disabilities Act. Through this and
other legislation, the United States became a world leader in
the protection of the rights of disabled individuals. Joining
the Convention will be a significant step in continuing this
leadership and will give the United States another tool to
positively impact the lives of the fifty-four million Americans
with disabilities and the one billion disabled individuals
worldwide.
III. Major Provisions
A detailed article-by-article analysis of the Convention
may be found in the Letter of Submittal from the Secretary of
State to the President (``Letter of Submittal''). Key
provisions of the Convention are summarized below.
Scope of the Convention
The Convention is intended to recognize and protect the
rights of individuals with disabilities. Its stated 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.'' Article 3 of the Convention sets out broad
principles of autonomy, acceptance, and accessibility for
individuals with disabilities. Equality and nondiscrimination
are over-arching principles permeating the entire Convention.
All Parties to the Convention agree to ``ensure and promote
the full realization of all human rights and fundamental
freedoms for all persons with disabilities without
discrimination of any kind on the basis of disability.''
Article 4 requires Parties to adopt appropriate legislative,
administrative, and other measures for the implementation of
the rights in the Convention. The Convention's provisions can
generally be grouped into the following categories:
accessibility, education, equality, employment, and health.
Definition of Disability
The Convention does not contain an explicit definition of
``disability.'' Article 1 states that persons with disabilities
``include those who have long-term physical, mental,
intellectual, or sensory impairments which in interaction with
various barriers may hinder their full and effective
participation in society on an equal basis with others.'' As
the Letter of Submittal makes clear, the absence of an express
definition of the terms ``disability'' and ``persons with
disabilities'' was a conscious decision at the negotiating
conference for the Convention. As explained in the letter of
submittal, ``the convention is not intended to supplant
detailed and precise definitions of disability found in
national legislation but is rather intended to afford States
Parties flexibility in defining disability under domestic
law.'' See Letter of Submittal at 5-7. As the U.S. legal
framework demonstrates, this approach is preferable given that
the definition of these terms may vary depending on the purpose
of the law (e.g. employment discrimination or access to health
services). See Letter of Submittal at 3-5.
Accessibility Provisions
One fundamental goal of the Convention is to enable
disabled persons to live independently and participate in all
aspects of life. To that end, Article 9 requires States Parties
to:
take appropriate measures to ensure to persons with
disabilities access, on an equal basis with others, to
the physical environment, to transportation, to
information and communications, including information
and communications technologies and systems, and to
other facilities and services open or provided to the
public, both in urban and in rural areas.
These measures include the removal of obstacles to
buildings, transportation, information, communications, and
electronic and emergency services. Article 18 of the Convention
directs States Parties to recognize the rights of disabled
individuals to ``liberty of movement,'' to provide the freedom
to choose their residence, and to guarantee the right to a
nationality, on an equal basis with others. In particular, it
requires States Parties to ensure that disabled persons are not
deprived of their nationality or their ability to enter their
country, arbitrarily or on the basis of their disability, and
are free to leave any country, without discrimination on the
basis of their disability. It requires children with
disabilities to be ``registered immediately after birth and
[to] have the right from birth to a name, the right to acquire
a nationality and, as far as possible, the right to know and be
cared for by their parents.''
Article 19 emphasizes the right of all persons with
disabilities to live and participate in the community on an
equal basis. States Parties must ensure that people with
disabilities have the opportunity to select their place of
residence on an equal basis with others and access residential
and other community support services, including assistance
necessary for inclusion in the community.
Article 20 emphasizes that States Parties must attempt to
ensure personal mobility for people with disabilities, in part
by facilitating access to assistive technologies and live
assistance.
Education Provisions
Article 24 of the Convention requires States Parties to
``ensure an inclusive education system at all levels.''
Children with disabilities must be offered the same
opportunities for free primary and secondary education as other
children in their communities. Their individual needs must be
reasonably accommodated, and they must receive support ``to
facilitate their effective education.'' Additionally, the
Convention specifically requires that Parties facilitate
methods of communication to assist students with disabilities
in fully participating in the educational process, including
but not limited to the use of sign language, Braille, and other
modes of communication.
Employment Provisions
Article 27 of the Convention recognizes a right of
individuals with disabilities to work in an ``environment that
is open, inclusive and accessible to persons with
disabilities.'' By joining the Convention, Parties agree to
prohibit employment discrimination based on an employee or
applicant's disability. If necessary, the Parties are to adopt
legislation to bar such discrimination in various aspects of
the employment process, including recruitment, hiring,
retention, promotion, and termination. Employees with
disabilities must be reasonably accommodated, permitted access
to training programs, and allowed to exercise labor rights on
an equal basis with others. States Parties must also employ
persons with disabilities in the public sector on a non-
discriminatory basis.
Equality Provisions
Article 5 of the Convention creates a broad prohibition
against discrimination and requires Parties to recognize that
``all persons are equal before and under the law and are
entitled without any discrimination to the equal protection and
equal benefit of the law.'' States Parties to the Convention
must accordingly prohibit discrimination based on disability
and take steps to ensure that reasonable accommodation is
provided to disabled individuals. In Article 10, Parties
reaffirm ``that every human being has the inherent right to
life'' and agree to take all necessary measures to ``ensure its
effective enjoyment by persons with disabilities on an equal
basis with others.''
Articles 12 and 13 mandate equal recognition before the law
for disabled persons. Parties must provide equal access to
justice systems and ensure that measures relating to the
exercise of legal capacity provide safeguards to prevent abuse
in accordance with international human rights law, while
allowing for impartial judicial bodies. In addition, Articles 6
and 7 of the Convention specifically recognize the human rights
of women and children with disabilities.
Article 14 requires Parties to ensure, on an equal basis
with others, that persons with disabilities are not unlawfully
or arbitrarily deprived of liberty. Article 15 states that
persons should not be subjected to torture or cruel, inhuman,
or degrading treatment or punishment. Article 16 requires
States Parties to take measures to protect individuals with
disabilities from all forms of exploitation, violence, and
abuse--including gender-based abuse--as well as provide for the
physical and psychological recovery of victims and
investigation and, where appropriate, prosecution of
perpetrators. Article 21 declares that disabled persons must be
able to exercise their right to freedom of expression and
opinion, through all forms of communication, on an equal basis
with others. It advocates for the provision of information in
accessible formats and technologies, and the facilitation of
sign language, Braille, and other alternative methods of
communication. Article 23 requires Parties to eliminate
discrimination against persons with disabilities in domestic
matters, such as marriage and parenthood. Article 28 requires
Parties to promote realization by people with disabilities of
their equal right to an adequate standard of living and equal
access to food, clothing, and housing. Article 29 requires
Parties to guarantee equal political rights, including
accessible procedures for voting, as well as promote
participation of disabled individuals in public affairs and
nongovernmental organizations, on a nondiscriminatory basis.
Article 30 requires Parties to recognize the rights of disabled
individuals to take part in cultural life and recreational and
sporting activities on a nondiscriminatory basis.
Health Provisions
Under Article 25 of the Convention, the States Parties
recognize that individuals with disabilities have the same
right as others to enjoyment of the highest attainable standard
of health. They must be offered the same range, quality, and
standard of care as that available to other persons. Health
care professionals must provide care on the same basis as they
would provide if the individual seeking care did not have a
disability. Article 25 also prohibits discrimination based on
disability related to the provision of health and life
insurance.
Committee on the Rights of Persons with Disabilities
Article 34 of the Convention creates a Committee on the
Rights of Persons with Disabilities, whose members are elected
by States Parties to the Convention. States Parties are
required to submit periodic reports to the Committee that
detail the measures they have taken to implement their
obligations, as well as progress toward implementation. The
Committee will then return ``such suggestions and general
recommendations on the report as it may consider appropriate.''
These recommendations are advisory only. They are not binding
on States Parties.
IV. Entry Into Force and Amendments
The Convention enters into force for a ratifying or
acceding State on the thirtieth day after its instrument of
ratification or accession has been deposited. For the United
States, this means thirty days after the deposit of the U.S.
instrument of ratification with the advice and consent of the
Senate.
Amendments to articles 34, 38, 39 and 40 (which concern the
Committee on the Rights of Persons with Disabilities) may be
adopted only by a consensus decision of States Parties to the
Convention. If adopted, such amendments enter into force and
become binding on all States Parties thirty days after two-
thirds of all States Parties submit instruments of ratification
for the amendment.
For all other articles of the Convention, amendments may be
adopted by majority vote at a meeting at which at least two-
thirds of States Parties are present. If adopted, such
amendments enter into force thirty days after two thirds of
States Parties submit instruments of ratification for the
amendment. However, such amendments are binding only on those
States Parties that submit instruments of ratification.
V. Withdrawal
Pursuant to Article 48, a Party may withdraw from the
Convention by written notification to the Secretary-General of
the United Nations. This withdrawal becomes effective one year
after the receipt of notification.
VI. Implementing Legislation
The provisions of the Convention are not self-executing.
Accordingly, they cannot be directly enforced by U.S. courts or
give rise to individually enforceable rights in the United
States.
The United States has a comprehensive network of existing
federal and state disability laws and enforcement mechanisms,
including the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. Sec. 12101 et seq.; the Rehabilitation Act, 29 U.S.C.
Sec. 791 et seq.; the Communications Act of 1934, as amended by
the Telecommunications Act of 1996, 47 U.S.C. Sec. 251(a)(2)
and 255; the Fair Housing Act, as amended in 1988, 42 U.S.C.
Sec. 3601 et seq.; the Air Carrier Access Act, 49 U.S.C.
Sec. 41705; the Voting Accessibility for the Elderly and
Handicapped Act of 1984, 42 U.S.C. Sec. 1973ee et seq.; the
Help America Vote Act of 2002, 42 U.S.C. Sec. 15301-15545; the
National Voter Registration Act of 1993, 42 U.S.C. Sec. 1973gg
et seq.; the Civil Rights of Institutionalized Persons Act, 42
U.S.C. Sec. 1997 et seq.; the Copyright Act, 17 U.S.C.
Sec. Sec. 101 et seq.; the Genetic Information
Nondiscrimination Act, 42 U.S.C. Sec. Sec. 200ff et seq.; the
Individuals with Disabilities Education Act, 20 U.C.C.
Sec. 1400 et seq., and the Architectural Barriers Act, 42
U.S.C. Sec. 4151 et seq. In addition, disability
nondiscrimination provisions have been integrated into statutes
of general applicability to federal policies and programs. See
Letter of Submittal at 91.
In the large majority of cases, existing federal and state
law meets or exceeds the requirements of the Convention. The
recommended reservations in the resolution of advice and
consent (discussed in section VIII below) make clear that the
United States will limit its obligations under the Convention
to exclude the narrow circumstances in which implementation of
the Convention could otherwise implicate federalism or private
conduct concerns. As the Department of Justice made clear,
ratification of the Convention with the recommended
reservations will not alter the balance of power between the
federal government and the states.
No additional implementing legislation is necessary with
respect to the Convention.
VII. Committee Action
The committee held a public hearing on the Convention on
July 12, 2012. Testimony was received from the Honorable John
McCain, United States Senator; the Honorable Tom Harkin, United
States Senator; the Honorable Judith Heumann, Special Adviser
for International Disability Rights, U.S. Department of State;
Ms. Eve Hill, Senior Counselor to the Assistant Attorney
General for Civil Rights, U.S. Department of Justice; The
Honorable Richard Thornburgh, Former Attorney General of the
United States and Of Counsel, K&L Gates, LLP; Mr. John Wodatch,
Former Chief of the Disability Rights Section, Civil Rights
Division, U.S. Department of Justice; Mr. Steven Groves,
Bernard and Barbara Lomas Fellow, The Heritage Foundation; Dr.
Michael Farris, Chancellor, Patrick Henry College; and Mr. John
Lancaster, 1st Lt., U.S. Marine Corps (Ret.), and Retired
Executive Director of the National Council On Independent
Living. (The transcript of the Hearing is included in Annex 1.)
On July 26, 2012, the committee considered the Convention
and ordered it favorably reported by a roll call vote of 13-6,
with a quorum present and a majority of those members
physically present and voting in the affirmative. The following
Senators voted in the affirmative: Kerry, Boxer, Menendez,
Cardin, Casey, Webb, Shaheen, Coons, Durbin, Udall, Lugar,
Isakson and Barrasso. The following Senators voted in the
negative: Corker, Risch, Rubio, Inhofe, DeMint and Lee.
VIII. Committee Recommendations and Comments
A. General Comments
The committee recommends that the Senate give its advice
and consent to ratification of the Convention. The committee
believes that the Convention advances important U.S. interests
in a number of areas.
The committee is persuaded by the support of experts in
disability law and advocacy that ratification of the Convention
will enable the United States to more effectively advocate on
behalf of the millions of disabled Americans. These experts
indicate that it will give the United States a more effective
voice in advocating for standards and practices abroad that
comport with the high standards for protection of disabled
persons found in U.S. domestic law and practice. In addition to
our bilateral efforts, ratification will allow the U.S. to
nominate U.S. disabilities experts to sit on the Disabilities
Committee, giving the United States a formal voice and vote in
the Assembly of States Parties to the Convention.
Sustained and effective U.S. leadership in such areas will
have a positive, practical impact on the lives of disabled
Americans. Witnesses before the committee testified that U.S.
ratification will make it more likely that other governments
will adopt standards and regulations concerning the disabled
that conform to U.S. practice, and that the ability of disabled
Americans to travel, work, serve, study, and live abroad will
be enhanced greatly. For example, greater uniformity in
standards such as the width of doorways or the size and pitch
of ramps could advantage Americans who use wheelchairs when
they travel abroad.
Joining the Convention may also benefit American
businesses. If countries adhere to the standards set forth in
the Convention, then foreign businesses may be required to
adopt new standards and practices to conform to new
disabilities laws around the globe. To the extent these
standards are modeled on U.S. law and practice, American
businesses are already equipped to comply and thus have an
advantage over foreign competitors. Moreover, American products
and services that are already accessible to the disabled will
continue to find new markets in countries whose disability
standards move closer to those of the United States.
As discussed in section VI and as explained in detail in
the Letter of Submittal, in light of the reservations included
in the resolution of advice and consent, current federal and
state law meets or exceeds the requirements of the Convention
and no changes to federal or state law will be required as a
result of U.S. ratification.
B. Nature of the Convention as a Nondiscrimination Instrument
The committee notes that the Convention is a
nondiscrimination instrument, requiring that services and
opportunities be made available on an equal basis to persons
with disabilities and those without disabilities. Therefore, as
the second understanding in the resolution of advice and
consent makes clear, with respect to certain economic, social
and cultural rights mentioned in the Convention, States Parties
to the Convention are not obligated to provide new rights by
virtue of accession to the Convention. Rather, the obligations
of Parties to the Convention are to prevent discrimination on
the basis of disability in the provision of such rights only
insofar as they are already recognized and implemented under
domestic law.
This concept includes health services, as Article 25 of the
Convention makes clear. In the course of the committee's
consideration of the Convention, an understanding was added to
the resolution of advice and consent stating that Article 25
requires that health programs and procedures are provided to
individuals with disabilities on a nondiscriminatory basis and
does not address the provision of any particular health program
or procedure.
C. The Disabilities Committee
In the course of the committee's consideration of the
Convention, questions were raised concerning the role of the
Disabilities Committee established under Article 34 of the
Convention. As discussed above, by ratifying the Convention,
the U.S. will have the ability to nominate American citizens to
serve as experts on the Disabilities Committee. The committee
believes that American engagement with the Disabilities
Committee will inure to the benefit of disabled Americans when
they travel, work, serve, study and reside abroad. The
Convention will require the United States to submit periodic
reports to the Disabilities Committee for its review. In these
reports, U.S. officials will have an opportunity to highlight
the effectiveness of U.S. law and practice concerning
individuals with disabilities and demonstrate that our laws and
standards would be a good model for the rest of the world.
The text of the Convention is clear that the role of the
Disabilities Committee is limited. The Disabilities Committee
is authorized under Article 36 to ``consider'' State Party
Reports and to ``make such suggestions and general
recommendations on the report as it may consider appropriate.''
Under Article 37, the Disabilities Committee ``shall give due
consideration to ways and means of enhancing national
capacities for the implementation of the present Convention.''
The Disabilities Committee has no authority to compel
actions by States Parties. While the conclusions,
recommendations, or general comments issued by the Disabilities
Committee could in some instances reflect established customary
international law, the Disabilities Committee has no authority
to create customary international law, and such statements by
the Disabilities Committee do not, in and of themselves,
constitute customary international law, as the sixth
understanding in the resolution of advice and consent makes
clear.
States Parties to the Convention are not required to give
greater weight to the interpretation of the Convention by the
Disabilities Committee than they do their own interpretation.
Further, they are not required to conform their interpretations
or make them consistent with those of the Disabilities
Committee.
D. Parental Rights
The committee closely reviewed the ``best interests of the
child'' standard set forth in Article 7 of the Convention,
including whether U.S. ratification of the Convention could
negatively impact parental rights with respect to disabled
children, including parents who opt to home-school disabled
children. The Department of Justice testified unequivocally
that parental rights would not be hindered in any way. In
response to written questions for the record, Senior Counselor
to the Assistant Attorney General for Civil Rights Eve Hill
stated that ``[i]n light of the federalism and private conduct
reservations, among others, there would be no change to
Federal, State or local law regarding the ability of parents in
the United States to make decisions about how to raise or
educate their children as a result of ratification.'' To
emphasize the unified views of the Senate and the executive
branch on this issue, the committee unanimously agreed to
include the seventh understanding in the resolution of advice
and consent, which makes clear that the term or principle of
the ``best interests of the child'' as used in Article 7(2)
will be applied and interpreted to be coextensive with its
application and interpretation under United States law, and
that nothing in Article 7 requires a change to existing United
States law.
E. Support for the Convention
The President has expressed his strong support for U.S.
ratification of the Convention. In addition, the committee has
received letters of support for the Convention from former
President George H.W. Bush, former Senator Bob Dole, and a wide
range of affected groups and associations, including: ACCSES;
Advocacy Center (Louisiana); African Methodist Episcopal Church
Connectional Health Commission; AHEAD--Association on Higher
Education and Disability; Air Force Sergeants Association; Air
Force Women Officers Associated; Alabama Disabilities Advocacy
Program; Alexander Graham Bell Association for the Deaf and
Hard of Hearing; American Academy of Audiology; American
Association of People with Disabilities; American Association
on Health Disability; American Association on Intellectual and
Developmental Disabilities; American Baptist Home Missions
Societies; American Bar Association; American Council of the
Blind; American Council of the Blind; American Counseling
Association; American Foundation for the Blind; American GI
Forum; American Muslim Health Professionals; American
Psychological Association; American Society for Deaf Children;
American Speech Language-Hearing Association; American Speech-
Language Hearing Association; American Therapeutic Recreation
Association; Americans Association of People with Disabilities;
AMVETS; Anti-Defamation League; Arizona Center for Disability
Law; Association for Assistive Technology Act Programs;
Association of Jewish Family & Children's Agencies; Association
of the United States Navy; Association of University Centers on
Disabilities; Autism National Committee; B'nai B'rith
International; Bazelon Center for Mental Health Law; Blinded
Veterans Association; Brain Injury Association of America;
Chamber of Commerce of the United States of America; Christian
Church of Disciples of Christ (Disciple Home Missions);
Christian Reformed Church in North America (Disability
Concerns); Client Assistance Program and Protection & Advocacy
(American Samoa); Community Legal Aid Society (Delaware);
Conference of Educational Administrators of Schools and
Programs for the Deaf; Consortium for Citizens with
Disabilities; Council for Exceptional Children; Council of
American Instructors of the Deaf Council of Parent Attorneys
and Advocates; Council of State Administrators of Vocational
Rehabilitation; Daniel Jordan Fiddle Foundation; Deaf and Hard
of Hearing Alliance; Disability Law & Advocacy Center of
Tennessee; Disability Law Center (Massachusetts); Disability
Law Center (Utah); Disability Law Center of Alaska; Disability
Law Center; Disability Rights California; Disability Rights
Center (Arkansas); Disability Rights Center (Maine); Disability
Rights Center (New Hampshire); Disability Rights Center of
Kansas;Disability Rights Center of Virgin Islands; Disability
Rights Education and Defense Fund; Disability Rights Florida;
Disability Rights Idaho; Disability Rights Iowa; Disability
Rights Mississippi; Disability Rights Montana; Disability
Rights Network of Pennsylvania; Disability Rights New Jersey;
Disability Rights New Mexico; Disability Rights North Carolina;
Disability Rights Oregon; Disability Rights Texas; Disability
Rights Vermont; Disability Rights Washington; Disability Rights
Wisconsin; Disabled American Veterans; Disciples Justice Action
Network; Division for Early Childhood of the Council for
Exceptional Children; Easter Seals; Epilepsy Foundation; Equal
Rights for Persons with Disabilities International, Inc. Equip
for Equality (Illinois); Family Voices; Georgia Advocacy
Office; Goodwill Industries International; Guam Legal Services
Corporation; Hands and Voices; Hawaii Disability Rights Center;
Hearing Health Foundation; Hearing Loss Association of America;
Hindu American Foundation; IDEA Infant Toddler Coordinators
Association; Indiana Protection and Advocacy Services;
International Hearing Association; Iraq and Afghanistan
Veterans of America Jewish War Veterans; Islamic society of
North America; Jewish Council for Public Affairs; Jewish
Federation of Metropolitan Chicago; Kentucky Protection and
Advocacy; L'Arche USA; Lutheran Services in America Disability
Network; Maryland Disability Law Center; Mental Health America;
Michigan Protection and Advocacy Services; Military Officers
Association of America; Minnesota Disability Law Center;
Missouri Protection and Advocacy Services; Muslim Public
Affairs Council; Nation Council of Jewish Women; National
Alliance of Mental Illness; National Association for Black
Veterans; National Association of Councils on Developmental
Disabilities; National Association of Head Injury
Administrators; National Association of States United for Aging
and Disabilities; National Association of School Psychologists;
National Association of State Directors of Developmental
Disabilities Services; National Association of State Directors
of Special Education; National Benevolent Association of the
Christian Church of Disciples of Christ; National Council of
Jewish Women; National Council on Disability; National Council
on Independent Living; National Council on the Churches of
Christ in the USA; National Court Reports Association; National
Disability Rights Network; National Down Syndrome Congress;
National Down Syndrome Society; National Guard Association of
the United States; National Military Family Association;
National Multiple Sclerosis Society; National Rehabilitation
Association; Native American Disability Law Center; Nebraska
Advocacy Services Nevada Disability Advocacy & Law Center;
NETWORK--a National Catholic Social Justice Lobby; New York
State Commission on Quality of Care & Advocacy for Persons with
Disabilities; North Dakota Protection & Advocacy Project;
Northern Marianas Protection & Advocacy Systems; Office of
Protection and Advocacy for Persons with Disabilities
(Connecticut); Office of the Governor/Ombudsman for Persons
with Disabilities (Puerto Rico);Ohio Legal Rights Service;
Oklahoma Disability Law Center; Paralyzed Veterans of America;
Perkins School for the Blind; Presbyterian Church (U.S.A.)
Office of Public Witness; Protection and Advocacy for People
with Disabilities (South Carolina); Rabbinical Assembly;
Reformed Church in America (Disability Concerns); Registry of
Interpreters for the Deaf; Rhode Island Disability Law Center;
South Dakota Advocacy Services; Special Olympics; TASH;
Telecommunications for the Deaf and Hard of Hearing, Inc.; The
Advocacy Institute; The American Legion; The Arc of the United
States; The Disability Rights Education and Defense Fund; The
Jewish Disability Network; The Jewish Federations of North
America; The Leadership Conference on Civil and Human Rights;
The Legal Center (Colorado); The Rabbinical Assembly; The
Rehabilitation Engineering and Assistive Technology Society of
North America; UJA-Federation of New York; Union of Reform
Judaism; Unitarian Universalist Association of Congregations;
United Cerebral Palsy; United Church of Christ (Justice Witness
Ministries); United Methodist General Board of Church and
Society United Sates International Council on Disabilities;
United Spinal Association; United States International Council
on Disabilities; United States Olympic Committee; United
Synagogue of Conservative Judaism; University Legal Services
(District of Columbia); Veterans for Common Sense; Veterans of
Foreign Wars; Veterans of Modern Warfare; VetsFirst; Vietnam
Veterans of America; West Virginia Advocates; Women's Rabbinic
Network; Wounded Warrior Project; and the Wyoming Protection
and Advocacy System. (Copies of letters received by the
committee are included in Annex 4.)
F. Discussion regarding the Resolution of Advice and Consent
The committee has included a number of reservations,
understandings and declarations in the resolution of advice and
consent. The committee notes that Article 46 of the Convention
makes clear that reservations to the treaty are permitted,
provided that they are not incompatible with the object and
purpose of the Convention.
1. Reservations
Section (a) of the resolution contains three reservations.
Federalism. The first reservation addresses federalism
issues. Article 4(1) of the Convention states that the
provisions of the Convention ``shall extend to all parts of
federal States without any limitations or exceptions.'' Because
certain provisions of the Convention concern matters
traditionally governed by state law rather than federal law,
and because in very limited instances some state and local
standards are less vigorous than the Convention would require,
a reservation is required to preserve the existing balance
between federal and state jurisdiction over these matters.
Non-Regulation of Private Conduct. The second reservation
concerns the extent of the United States obligations under the
Convention with regard to private conduct. Although the United
States generally and broadly applies nondiscrimination laws to
private entities with respect to operation in public spheres of
life, some laws set a threshold before their protections are
triggered. For example, selected employment-related civil
rights laws apply only to employers that have 15 or more
employees. Thus, existing legislation does not extend to
absolutely all private discrimination against persons with
disabilities, such as actions by a sole proprietor or rental of
a single-family home. Further, individual privacy and freedom
from governmental interference in certain private conduct are
also recognized as among the fundamental values of our free and
democratic society. Accordingly, a reservation is required to
make clear that the United States does not accept any
obligation under the Convention to enact legislation or take
any other measures with respect to private conduct except as
mandated by the Constitution and laws of the United States. The
committee notes that in a written response for the record, the
Department of State and the Department of Justice confirmed
that in light of this reservation, ratification of the
Disabilities Convention would not impose any new requirements
on employers exempted by the Americans with Disabilities Act.
Torture, Cruel, Inhumane or Degrading Treatment. The third
reservation concerns the extent of the United States
obligations under Article 15 (Freedom from Torture or Cruel,
Inhuman or Degrading Treatment or Punishment). As Article 15 of
the Convention covers the same subject matter as Articles 2 and
16 of the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment and Article
7 of the International Covenant on Civil and Political Rights,
the third reservation makes clear that the obligations of the
United States under Article 15 of the Convention shall be
subject to the same reservations and understandings that apply
to U.S. ratification of those two treaties.
2. Understandings
Section (b) of the resolution contains eight
understandings.
First Amendment. The first understanding makes clear that
the Convention, including Article 8, does not authorize or
require legislation or other action that would restrict the
right of free speech, expression, and association protected by
the Constitution and laws of the United States of America.
Economic, Social and Cultural Rights. The second
understanding makes clear that with respect to the application
of certain economic, social and cultural rights set forth in
specific articles of the Convention, the United States
understands that its obligations are only to prevent
discrimination on the basis of disability in the provision of
any such rights insofar as they are recognized and implemented
under U.S. federal law.
Equal Employment Opportunity. The third understanding makes
clear that the Convention does not require the adoption of a
comparable worth framework for persons with disabilities. The
committee notes that in a written response for the record, the
Department of State and the Department of Justice confirmed
their view that current U.S. law is consistent with the
language in Article 27 regarding equal pay for work of equal
value.
U.S. Military Departments. The fourth understanding
concerns Article 27 of the Convention and the obligation to
take appropriate steps to afford to individuals with
disabilities the right to equal access to equal work, including
nondiscrimination in hiring and promotion of employment of
persons with disabilities in the public sector. Under current
U.S. law, certain departments of the U.S. military charged with
defense of the national security are exempted from liability
under the Rehabilitation Act of 1973. The understanding makes
clear that the United States understands the obligations of
Article 27 to take appropriate steps as not affecting hiring,
promotion, or other terms or conditions of employment of
uniformed employees in the U.S. military departments and that
Article 2 does not recognize rights in this regard that exceed
those rights available under U.S. federal law.
Definitions. The fifth understanding clarifies that the
terms ``disability,'' ``persons with disabilities,'' and
``undue burden'' (terms that are not defined in the
Convention), ``discrimination on the basis of disability,'' and
``reasonable accommodation'' are defined for the United States
of America coextensively with the definitions of such terms
pursuant to relevant United States law.
Article 34 Committee. The sixth understanding concerns the
Committee on the Rights of Persons with Disabilities,
established under Article 34 of the Convention. It clarifies
with particularity the limited powers of that Committee,
including that it has no authority to compel actions by states
parties, and the United States does not consider conclusions,
recommendations, or general comments issued by the Committee as
constituting customary international law or to be legally
binding on the United States in any manner.
Health Programs and Procedures. The seventh understanding
clarifies that the Convention is a nondiscrimination
instrument, and that therefore nothing in the Convention,
including Article 25, addresses the provision of any particular
health program or procedure. Rather, the Convention requires
that health programs and procedures are provided to individuals
with disabilities on a nondiscriminatory basis.
Best Interest of the Child. The eighth understanding
concerns the ``best interests of the child'' standard set forth
in Article 7(2) of the Convention. It clarifies that the term
or principle of the ``best interests of the child'' as used in
Article 7(2), will be applied and interpreted to be coextensive
with its application and interpretation under United States
law, and that consistent with this understanding, nothing in
Article 7 requires a change to existing United States law.
3. Declarations
Section (c) of the resolution contains two declarations.
Non Self-Executing. The first declaration states that the
provisions of the Convention are not self-executing. This
reflects the shared understanding of the committee and the
executive branch that the provisions of the Treaty are not
self-executing, are not directly enforceable in U.S. courts,
and do not confer private rights of action enforceable in the
United States.
U.S. Law Complies. The second declaration provides 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. As
discussed in section VI above, the committee is satisfied that,
in view of the reservations in the resolution of advice and
consent and the comprehensive network of existing federal and
state disability laws and enforcement mechanisms, no additional
implementing legislation is necessary for the United States to
comply with the Convention.
VIII. Text of Resolution of Advice and Consent to Ratification
Resolved, (two-thirds of the Senators present concurring
therein),
That the Senate advises and consents to the ratification of
the Convention on the Rights of Persons with Disabilities,
adopted by the United Nations General Assembly on December 13,
2006, and signed by the United States of America on June 30,
2009 (``the Convention'') (Treaty Doc. 112-7), subject to the
reservations of subsection (a), the understandings of
subsection (b), and the declarations of subsection (c).
(a) Reservations.--The advice and consent of the Senate to
the ratification of the Convention is subject to the following
reservations, which shall be included in the instrument of
ratification:
(1) This Convention shall be implemented by the
Federal Government of the United States of America to
the extent that it exercises legislative and judicial
jurisdiction over the matters covered therein, and
otherwise by the state and local governments; to the
extent that state and local governments exercise
jurisdiction over such matters, the obligations of the
United States of America under the Convention are
limited to the Federal Government's taking measures
appropriate to the Federal system, which may include
enforcement action against state and local actions that
are inconsistent with the Constitution, the Americans
with Disabilities Act, or other Federal laws, with the
ultimate objective of fully implementing the
Convention.
(2) The Constitution and laws of the United States of
America establish extensive protections against
discrimination, reaching all forms of governmental
activity as well as significant areas of non-
governmental activity. Individual privacy and freedom
from governmental interference in certain private
conduct are also recognized as among the fundamental
values of our free and democratic society. The United
States of America understands that by its terms the
Convention can be read to require broad regulation of
private conduct. To the extent it does, the United
States of America does not accept any obligation under
the Convention to enact legislation or take other
measures with respect to private conduct except as
mandated by the Constitution and laws of the United
States of America.
(3) Article 15 of the Convention memorializes
existing prohibitions on torture and other cruel,
inhuman, or degrading treatment or punishment contained
in Articles 2 and 16 of the United Nations Convention
Against Torture and other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT) and in Article 7 of the
International Covenant on Civil and Political Rights
(ICCPR), and further provides that such protections
shall be extended on an equal basis with respect to
persons with disabilities. To ensure consistency of
application, the obligations of the United States of
America under Article 15 shall be subject to the same
reservations and understandings that apply for the
United States of America with respect to Articles 1and
16 of the CAT and Article 7 of the ICCPR.
(b) Understandings.--The advice and consent of the Senate
to the ratification of the Convention is subject to the
following understandings, which shall be included in the
instrument of ratification:
(1) The United States of America understands that
this Convention, including Article 8 thereof, does not
authorize or require legislation or other action that
would restrict the right of free speech, expression,
and association protected by the Constitution and laws
of the United States of America.
(2) Given that under Article 1 of the Convention
``[t]he purpose of the present Convention is to
promote, protect, and ensure the full and equal
enjoyment of all human rights and fundamental freedoms
by all persons with disabilities,'' with respect to the
application of the Convention to matters related to
economic, social, and cultural rights, including in
Articles 4(2), 24, 25, 27, 28 and 30, the United States
of America understands that its obligations in this
respect are to prevent discrimination on the basis of
disability in the provision of any such rights insofar
as they are recognized and implemented under U.S.
Federal law.
(3) Current U.S. law provides strong protections for
persons with disabilities against unequal pay,
including the right to equal pay for equal work. The
United States of America understands the Convention to
require the protection of rights of individuals with
disabilities on an equal basis with others, including
individuals in other protected groups, and does not
require adoption of a comparable worth framework for
persons with disabilities.
(4) Article 27 of the Convention provides that States
Parties shall take appropriate steps to afford to
individuals with disabilities the right to equal access
to equal work, including nondiscrimination in hiring
and promotion of employment of persons with
disabilities in the public sector. Current
interpretation of Section 501 of the Rehabilitation Act
of 1973 exempts U.S. Military Departments charged with
defense of the national security from liability with
regard to members of the uniformed services. The United
States of America understands the obligations of
Article 27 to take appropriate steps as not affecting
hiring, promotion, or other terms or conditions of
employment of uniformed employees in the U.S. Military
Departments, and that Article 27 does not recognize
rights in this regard that exceed those rights
available under U.S. Federal law.
(5) The United States of America understands that the
terms ``disability,'' ``persons with disabilities,''
and ``undue burden'' (terms that are not defined in the
Convention), ``discrimination on the basis of
disability,'' and ``reasonable accommodation'' are
defined for the United States of America coextensively
with the definitions of such terms pursuant to relevant
United States law.
(6) The United States of America understands that the
Committee on the Rights of Persons with Disabilities,
established under Article 34 of the Convention, is
authorized under Article 36 to ``consider'' State Party
Reports and to ``make such suggestions and general
recommendations on the report as it may consider
appropriate.'' Under Article 37, the Committee ``shall
give due consideration to ways and means of enhancing
national capacities for the implementation of the
present Convention.'' The United States of America
understands that the Committee on the Rights of Persons
with Disabilities has no authority to compel actions by
states parties, and the United States of America does
not consider conclusions, recommendations, or general
comments issued by the Committee as constituting
customary international law or to be legally binding on
the United States in any manner.
(7) The United States of America understands that the
Convention is a nondiscrimination instrument.
Therefore, nothing in the Convention, including Article
25, addresses the provision of any particular health
program or procedure. Rather, the Convention requires
that health programs and procedures are provided to
individuals with disabilities on a nondiscriminatory
basis.
(8) The United States of America understands that,
for the United States of America, the term or principle
of the ``best interests of the child'' as used in
Article 7(2), will be applied and interpreted to be
coextensive with its application and interpretation
under United States law. Consistent with this
understanding, nothing in Article 7 requires a change
to existing United States law.
(c) Declarations.--The advice and consent of the Senate to
the ratification of the Convention is subject to the following
declarations:
The United States of America declares that the
provisions of the Convention are not self-executing.
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 of
America.
X. Minority Views of Senators Risch, Rubio,
Inhofe, DeMint, and Lee
During the foundational years of our country, the leaders
who charted its course warned us about foreign entanglements
that would undermine our sovereignty and threaten our domestic
affairs. So strong was his concern that President George
Washington focused part of his farewell address on this issue.
President Thomas Jefferson, author of the Declaration of
Independence, stated:
Peace, commerce, and honest friendship with all
nations--entangling alliances with none.
The Founders wisely cautioned future generations of
Americans against foreign entanglements such as the U.N.
Convention on the Rights of Persons with Disabilities. The
admirable goal of advancing the interests of disabled people
does not necessitate ascension to an international treaty that
will assume the same legal authority as the Constitution upon
ratification.
The Constitution requires a two-thirds vote of the Senate
for treaty ratification, which demonstrates the seriousness and
concern the framers of the Constitution held for such
international accords. They sought to ensure these agreements
were comprehensively scrutinized, overwhelmingly supported, and
ratified only when vital U.S. national interests were advanced.
The Foreign Relations Committee passed this Convention out
of committee just two months after it was first presented to
the Senate. Members of the Committee were given one opportunity
to discuss the merits of and their concerns with the treaty in
a single hearing that included both proponents of the treaty
and opposition witnesses. We voted on the Resolution of
Ratification shortly thereafter. To say the least, this treaty
has not been properly or thoroughly scrutinized. Furthermore,
not all the members of the committee have full confidence that
the language of the treaty or the Resolution of Ratification
will fully protect the interests or the sovereignty of the
United States.
Language in the Convention that specifically references
domestic issues outside the realm of "disabilities" requires
further explanation. Article 25(a) of the Convention addresses
the range and quality of health care, including "sexual and
reproductive health". The previous Administration found it
necessary to submit statements explicitly declaring that these
terms do not include abortion. Poland, Malta, and Monaco made
similar reservations when they signed the treaty. However, no
language defining sexual and reproductive health has been
placed in the Administration's instrument of ratification, and
an attempt to do so in the Foreign Relations Committee was
defeated. We are particularly concerned about this issue
because Secretary Clinton stated in 2009 in front of the House
Foreign Affairs Committee that:
We happen to think that family planning is an
important part of women's health, and reproductive
health includes access to abortion, that I believe
should be safe, legal, and rare.
Abortion remains a highly controversial issue in the United
States, and we strongly believe it should be determined by
State and local governments, not at an international level.
Through the admission of this Administration we know the
treaty will not improve the rights of the disabled in the
United States. Our country has already set the highest standard
for treatment of and assistance to the disabled; so much so
that the drafters of this Convention used U.S. laws and
regulations to build its framework. As for the disabled in
other countries, there is little evidence available to suggest
this Convention will assist other nations' efforts to improve
their disabilities standards. Of the 117 member countries, the
Convention's committee only has issued recommendations for
improvements to three countries: Tunisia, Spain, and Malta.
The United States Constitution guarantees certain rights to
the American people--rights such as freedom of speech, freedom
of worship, and freedom from slavery. The United States
Constitution does not provide the right to be subjected to an
action of another person or group--nor should any treaty or
alliance to which the United States subjects itself. Should the
United States accede to this treaty, we will be obligated to
write a status report every four years regarding our disability
laws and receive criticism and recommendations from a committee
of representatives from countries that have lower standards for
the disabled than our own. This undermines our sovereignty and
our Constitution. According to Article 35 of the Convention,
this report must include a list and description of measures
taken to fulfill the obligations of the treaty. We do not know
the scope of this report or its financial and labor costs to
the American taxpayer.
As noted in hearing testimony, similar committees born of
other United Nations conventions have an extensive record of
overstepping their authority and making recommendations that
are contrary to the interests and values of the United States.
For example, the Committee on the Elimination of Racial
Discrimination issued a report in 2008 that addressed issues
well beyond the scope of its mandate, such as U.S policies
regarding the death penalty, voting rights, and detention at
Guantanamo Bay. The Committee associated with the Convention on
the Elimination of All forms of Discrimination Against Women
brashly issued recommendations regarding the legalization of
prostitution, gender quotas, and increased termination of
pregnancies.
Proponents of this treaty believe its ratification would
signal to the world our commitment to advancing the interests
of those with disabilities. The U.S. Senate should not ratify
this or any other treaty on these grounds. In this particular
instance, the United States enjoys the moral high ground
because we lead the world in advancing the interests of the
disabled. We rightly reject the idea that our moral authority
in the world is ever derived through ascension to subjective
international conventions.
Article II, Section 2 of the Constitution states:
[The President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties.
The very purpose of a treaty is to advance a specific U.S.
security or economic interest, and the United States should
only join those treaties that make us a stronger or safer
nation. In no way do we take issue with the goal of promoting
higher standards for the treatment of disabled people. However,
this Convention is not essential to the security or economic
interests of the United States. We firmly believe that the
issues concerned in this Convention would be better addressed
in a format that would not require the ratification of a
legally binding international treaty that would carry the same
authority as the Constitution.
X. Annex 1.--Convention on the Rights of Persons With Disabilities
(Treaty Doc. 112-7)
----------
Thursday, July 12, 2012
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 9:05 a.m., in
room SD-G50, Dirksen Senate Office Building, Hon. John F. Kerry
(chairman of the committee) presiding.
Present: Senators Kerry, Menendez, Cardin, Shaheen, Coons,
Durbin, Lugar, Corker, Risch, DeMint, Isakson, Barrasso, and
Lee.
OPENING STATEMENT OF HON. JOHN KERRY,
U.S. SENATOR FROM MASSACHUSETTS
The Chairman. Good morning. The hearing will come to order.
Thank you all very much for being here today.
We are meeting to examine the Convention on the Rights of
Persons with Disabilities. We are very grateful to have a
number of our colleagues who have had a longtime interest in
this prepared to testify. And I know that there will be other
Senators arriving. Senator Lugar has told me he is going to be
a little bit late, but he will be here.
It has been 22 years since the Americans with Disabilities
Act knocked down barriers to employment and Government service
here at home, and Senator Harkin played such a key role, along
with my former colleague Senator Ted Kennedy, in achieving that
goal and many others. Now it is time to do the same for
Americans with disabilities when they travel overseas.
The world obviously faces many competing crises, and all of
them contend for attention and for leadership. But I believe
very strongly that we have a responsibility on this committee
to ensure that issues deserving attention also receive a focus.
As the author and civil rights activist James Baldwin
reminds us, ``Not everything that is faced can be changed, but
nothing can be changed until it is faced.''
I couldn't agree more. All Americans have an inherent right
to be treated as equal citizens of our Nation. But the historic
march toward a better, fairer America can come about only if we
are willing to make those with certain challenges the focus of
our work.
Like most of you, I have witnessed over time firsthand the
challenges and discrimination of people with disabilities and
the many ways in which they are prevented from fully
participating in activities that most of us are privileged to
take for granted.
That is why early on in my career in the Senate, when I
first came here, I served with Senator Lowell Weicker on the
HELP Committee, what is now the HELP Committee. And I was
chairman for a brief period of time of something back then
anachronistically called the Handicapped Subcommittee. And we
actually did the first work that unleashed technology and has
produced assistive devices that help people with challenges to
be able to speak and communicate.
I am proud of that, and I cosponsored the Ending the
Medicare Disability Waiting Period Act to phase out a 24-month
waiting period for individuals with disabilities to become
eligible for Medicare benefits. That is why I happily worked
with Senator Pryor on the 21st Century Communications and Video
Accessibility Act, which improves access to audio and visual
materials for the deaf and the blind.
And it is why I recently introduced the Children's Mental
Health Accessibility Act to provide States an option to serve
children and adolescents on Medicaid with intensive home or
community-based mental health treatment services and also to
replace the also anachronistically term ``mentally retarded''
in the Social Security Act with the more appropriate term
``intellectually disabled.''
So this is a march that goes on for all of us. We all
learn, and we all eventually, I hope, make progress. I have
heard from countless advocates on this issue, the issue we are
here to talk about today, from the Perkins School of the Blind
in my home State to disabled Americans across the country to
veterans groups, all of whom tell me this treaty will make a
difference in their daily lives.
It is not only the right thing to do. It is also the smart
thing to do. And it will extend essential protections and
liberties to millions of U.S. citizens with disabilities when
they travel overseas, including our disabled service men and
women and all veterans.
As I understand it, there really are only upsides to
joining this Convention, which enshrines the principles of the
ADA. The United States is already a leader in domestic
disability rights protection, and joining the Convention will
provide a critical tool as we work with other countries to
advocate what they follow and, hopefully, that they will follow
our lead and ensure that people with disabilities are free to
live and work and travel wherever they want.
This is important. Across the developing world, persons
with disabilities face indignities and prejudice on a daily
basis. They are prevented from attending schools, subject to
discriminatory hiring practices, often unable to enter public
buildings, safely cross a street, or even ride a public bus.
Americans may not witness these discriminatory acts in our
daily lives, but they sting our conscience from half a world
away. Ratifying the Convention would strengthen our hand as we
push for higher standards internationally, standards to which
all of us should aspire.
Twenty-two years ago, President George H.W. Bush signed the
ADA into law with the promise of fostering full and equal
access to civic, economic, and social life for individuals with
disabilities. Upon its passage, Senator Ted Kennedy, who played
the role that I described, said, ``The act has the potential to
become one of the great civil rights laws of our generation.
This legislation is a bill of rights for the disabled, and
America will be better and a fairer nation because of it.''
That was the spirit that animated passage of the ADA, and
it is the same spirit that has inspired a bipartisan group of
Senators to work tirelessly in support of this Convention. I
especially want to acknowledge the effort here of three
longtime Senate leaders on disabilities issues.
Senator Harkin, who is here now, who chaired the HELP
Committee and been such an extraordinary leader on this issue
and on the ADA itself. Senator Durbin, who will be here and who
will chair part of this because I have some conflicts, but we
will share that responsibility. And Senator McCain. And we are
grateful for their leadership.
I am also pleased that several other members of this
committee--Senator Barrasso, Senator Coons, and Senator Udall--
are part of this bipartisan group. They are each great
champions for persons with disabilities, and I know that they
are going to work to do whatever it takes to move this process
forward and help deserving Americans enjoy the full measure of
their rights.
To help us explore these issues, we have three excellent
panels of witnesses. On the first panel, we are pleased to be
joined by our friends and colleagues I mentioned, John McCain
and Tom Harkin. In addition to his own views, Senator McCain
will be sharing with us a statement from former majority leader
Bob Dole.
On our second panel, we welcome Judith Heumann, Special
Adviser for International Disability Rights at the State
Department, and Eve Hill, Senior Counsel to the Assistant
Attorney General for Civil Rights at the Justice Department.
And on the final panel, we have Richard Thornburgh, former
Attorney General of the United States and of counsel to the law
firm K&L Gates. We have John Wodatch, the former Chief of the
Disability Rights Section at the Civil Rights Division, the
Justice Department. Steven Groves, the Bernard and Barbara
Lomas Fellow at the Heritage Foundation, and John Lancaster, a
Vietnam veteran, retired executive director of the National
Council on Independent Living, and a respected advocate for the
disabled community.
Rounding out the panel, we have Michael Farris, chairman
and general counsel of the Home School Legal Defense
Association and chancellor at the Patrick Henry College in
Purcellville, VA.
So welcome to all of you, and we look forward to your
testimony.
In the absence of Senator Lugar and with the permission of
Senator Corker, if I may, I want to turn to Senator Barrasso,
who has been advocating for this. And we appreciate his
bipartisan efforts in that regard, and I ask him to make some
opening comments.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman.
I appreciate you holding this hearing today to examine such
an important effort, this Convention.
The United States has opened the door for millions of
Americans to actively participate and contribute to our great
country. Through numerous U.S. laws and enforcement measures,
our Nation has worked to end discrimination and breaking down
barriers that prevent full participation of all members of our
society.
We have raised the conscience of our Nation regarding
disabilities and the impact that they have on people's lives.
The fair treatment of citizens of the United States is
paramount. Every citizen, regardless of obstacles in their
lives, should have this opportunity to work, to live, to fully
take part in our society. These are the ideals of the American
people.
It is important to our citizens and individuals with
disabilities across the globe that these fundamental values are
advanced worldwide. The Convention on the Rights of Persons
with Disabilities is based on the same principles as the
Americans with Disabilities Act.
The general principles embodied in this Convention include
nondiscrimination, equal opportunity, independence,
accessibility, human dignity, and full and effective
participation and inclusion in society. So I strongly support
these principles and believe that they should be promoted by
the international community.
The Convention offers the United States a forum to utilize
our wealth of knowledge and practical experiences to influence
our nations in recognizing the rights of people with
disabilities. It can help in advancing policies so Americans
with disabilities can receive the same protections while
working, studying, and traveling abroad, including, and very
importantly, our veterans.
Ratification of the Convention also demonstrates our
Nation's ongoing commitment to equality and opportunity for
individuals with disabilities.
Chairman Kerry, I do ask that a letter from President
George Herbert Walker Bush expressing his support for U.S.
ratification of the Convention on the Rights of Persons with
Disabilities be placed in the record. I have that letter with
me.
The Chairman. Without objection, it will be.
Senator Barrasso. And Mr. Chairman, I also ask that another
letter I have, signed by 21 veterans and military organizations
in favor of U.S. ratification of the Convention, also be placed
in the record.
The Chairman. Without objection.
[Editor's note.--The two letters mentioned above can be found
in Annex II.]
Senator Barrasso. Thank you, Mr. Chairman.
I welcome our guests. I welcome all those who are here in
attendance and those testifying.
And thank you, Mr. Chairman, for holding this vital
hearing.
The Chairman. Thanks very much.
And it is unusual. I don't usually do this, but since
Senator Durbin has agreed to chair part of this because of my
conflicts, I just want to ask him if he has any opening
comment. He has been particularly involved also in helping to
bring us here.
STATEMENT OF HON. RICHARD J. DURBIN,
U.S. SENATOR FROM ILLINOIS
Senator Durbin. Thanks, Senator Kerry.
I want to thank Senator Barrasso--I caught the end of your
statement here--for his strong support.
Particularly, thanks to our first two witnesses here.
Senator McCain, I have worked with him in putting together a
bipartisan coalition supporting this. And Tom Harkin. On the
Democratic side, there is no person who has a stronger
reputation and history and record when it comes to standing up
for people with disabilities.
Having you here as a lead-off witness, Tom, is a signal to
all of us that this is the real thing. I can think back to when
you and Senator Dole really stepped forward and brought America
into a position of leadership when it came to standing up for
disabled people all around the world.
We now have 153 nations that have signed on to this
Convention or treaty; 117 have ratified. It is time for the
United States to step up and to say that the principles that we
fought for in the Americans with Disabilities Act are worth
fighting for all over the world.
To make sure that when our disabled veterans travel
overseas, they have accessibility and the kind of respect that
they deserve, to make sure that people all around the world
have access to places where they are currently excluded.
You know personally, both of you do, the amazing stories of
people with disabilities. When given a chance and given
accessibility, they have made America a stronger nation and
will make this a better world. I want the United States to be
at the front of the table in talking about leading the world
into the 21st century and into a new generation of thinking.
We can build on the Americans with Disabilities Act. I am
honored that former Senator Dole has become such a major
spokesman in terms of pushing this forward. I am honored that
the veterans groups have stepped up and said this means a lot
to those who risked their lives for America and gave not only
life, but limb many times. They want to see this done.
So thank you, Senator Kerry. I know your busy schedule and
commitment to other issues, but this is historic. And it is
strongly bipartisan, as evidenced by the turnout today and by
the first witnesses. I am honored to be part of putting it
together with Senator McCain.
Thank you.
The Chairman. Thank you very much, Senator Durbin.
Senator Harkin, if you would lead off, by matter of
seniority, and Senator McCain.
STATEMENT OF HON. TOM HARKIN,
U.S. SENATOR FROM IOWA
Senator Harkin. Good morning.
First of all, I want to thank Chairman Kerry and the
committee for holding this hearing, seeking input about the
importance of the U.N. Convention on the Rights of Persons with
Disabilities, or CRPD, as it is known. And I appreciate the
opportunity to testify on an issue that has been a central
priority of mine since I first came to the Congress in 1974 and
the Senate in 1984.
Mr. Chairman, Senators of this committee, one of my
greatest joys in the Senate has been my work over 30 years with
Senators Dole and McCain, Senators Kennedy, Hatch, and many
others on the Americans with Disabilities Act of 1990.
I also saw so many people here that were instrumental in
its passage and its implementation after it was passed.
I would be remiss if I didn't recognize the former White
House counsel Boyden Gray and all the great work he did in
getting people together on this bill back in 1989 and 1990.
Former Attorney General Dick Thornburgh, who was so
instrumental in helping to pass this bill and implementation
afterward. Former Congressman Tony Coelho.
All of them here who just were so instrumental. And I am
glad you mentioned, Mr. Chairman, Lowell Weicker, who may not
be here, but he was one of the most instrumental persons in
pushing this idea of a national civil rights law covering
people with disabilities.
And last, there are so many here that I met when I came in
that were here at the beginning and, as I said, worked so hard
to get this passed and implemented, I don't have the time, I
wouldn't take the time to try to mention them all, Mr.
Chairman. But let me try to honor all of those who are sitting
back here who have been so instrumental in the full
implementation of ADA over the last 22 years by recognizing one
person who is here and one spirit who is here.
That is Yoshiko Dart who is here, and she always carries
Justin Dart's old cowboy hat. So Justin Dart is here also. Oh,
Marca Bristo has his hat, I guess. I thought Yoshiko did.
[Laughter.]
So, again, I just honor all those who are here who were
part of this whole effort over all these years.
As Senator Barrasso said, the ADA stands for a simple
proposition, that disability is a natural part of the human
experience and that all people with disabilities have a right
to make choices, pursue meaningful careers, and participate
fully in all aspects of society. Thanks to the ADA, our country
is a more welcoming place not just for people with a variety of
disabilities, but for everyone.
Twenty-two years ago this month, President Bush gathered
hundreds of Americans with disabilities on the White House lawn
for the ADA signing ceremony. At that time, he noted--and
listen to this exact quote from President Bush: ``This historic
act is the world's first comprehensive declaration of equality
for people with disabilities--the first. Its passage has made
the United States the international leader on this human rights
issue.''
Well, thanks to the ADA and other U.S. laws, America has
shown the rest of the world how to honor the basic human rights
of children and adults with disabilities; how to integrate them
into society; how to remove barriers to full participation in
activities that most Americans take for granted.
Our support for disability rights has inspired a global
movement. Think about that. It has inspired a global movement
that led the United Nations to adopt the CRPD. Our legal
framework influenced the substance of the Convention and is
informing its implementation in 116 countries that I have,
Senator Durbin, and also the European Union who have signed and
ratified the CRPD.
I am very grateful for the long history of leadership on
both sides of the aisle--Senator Dole, Senator McCain--going
way back even before the ADA. I want to acknowledge the
leadership and support of Senators Barrasso and Durbin, Moran,
Coons, and Udall, all of whom have publicly expressed their
strong support for ratification of the CRPD.
I would also like to acknowledge the pro bono work of the
Mayer Brown law firm and Carolyn Osolinik, who many of us
remember was Senator Kennedy's chief aide when we passed the
Americans with Disabilities Act back in 1990.
By ratifying this Convention, the United States will be
reaffirming our commitment to our citizens with disabilities.
As has been said a couple of times by Senators on the dais,
Americans with disabilities, including disabled veterans,
should be able to live and travel, to study, and to work abroad
with the same freedoms and access that they enjoy here in
America.
And as the state parties to the Convention come together to
grapple with the best ways to make progress and remove
barriers, we should be at the table with them, helping them to
learn from our experience.
The administration has submitted reservations,
understandings, and declarations that make clear that U.S.
ratification will not require any changes in U.S. law and will
have no fiscal impact. No fiscal impact. But my hope is that
U.S. ratification will have a moral impact.
My hope is that it will send a signal to the rest of the
world that it is not OK to leave a baby with Down syndrome on
the side of the road to die. It is not OK to warehouse adults
with intellectual and psychiatric disabilities in institutions,
chained to the bars of a cell, when their only ``crime'' is
having a disability.
That it is not OK to refuse to educate children because
they are blind or deaf or use a wheelchair. That it is not OK
to prevent disabled people from voting, getting married, owning
property, having children. It is not OK to rebuild
infrastructures in Iraq and Afghanistan and Haiti or other war-
torn or disaster-stricken areas without improving the
accessibility of the infrastructure at the same time.
So I thank this committee for scheduling today's hearing. I
commend you all for recognizing the long history of bipartisan
support for disability rights in this country.
I urge the committee to report favorably on the treaty and
recommend that the Senate give its advice and consent to
ratification prior to July the 26th of 2012, the 22nd
anniversary of the Americans with Disabilities Act.
Thank you, Mr. Chairman.
[The prepared statement of Senator Harkin follows:]
Prepared Statement of Senator Tom Harkin, Chairman, U.S. Senate
Committee on Health, Education, Labor and Pensions
Good Morning. I would like to thank Chairman Kerry and the
committee for holding this hearing seeking input from others about the
importance of the U.N. Convention on the Rights of Persons with
Disabilities or the ``CRPD.'' I appreciate this opportunity to testify
today on an issue that has been a central priority for me since I was
first elected to the Senate in 1984.
Mr. Chairman, Ranking Member Lugar, and members of the committee,
one of my greatest joys in the Senate has been my work with Senators
Dole, McCain, and others on the Americans with Disabilities Act (ADA)
of 1990. The ADA stands for a simple proposition--that disability is a
natural part of the human experience and that all people with
disabilities have a right to make choices, pursue meaningful careers,
and participate fully in all aspects of society.
Thanks to the ADA, our country is a more welcoming place not just
for people with a variety of disabilities, but for everyone.
Twenty-two years ago this month, President Bush gathered hundreds
of Americans with disabilities on the White House lawn for the ADA
signing ceremony. At the time, he noted: ``This historic act is the
world's first comprehensive declaration of equality for people with
disabilities--the first. Its passage has made the United States the
international leader on this human rights issue.''
Thanks to the ADA and other U.S. laws, America has shown the rest
of the world how to honor the basic human rights of children and adults
with disabilities; how to integrate them into society; and how to
remove barriers to their full participation in activities that most
Americans take for granted. Our support for disability rights has
inspired a global movement that led the United Nations to adopt the
CRPD. Our legal framework influenced the substance of the Convention
and is informing its implementation in the 117 countries that have
signed and ratified the CRPD.
I am very grateful for the long history of leadership of both
Senators Dole and McCain on disability issues, going back to before the
ADA. I also want to acknowledge the leadership and support of Senators
Barrasso, Durbin, Moran, Coons, and Udall, all of whom have publicly
expressed their strong support for ratification of the CRPD.
By ratifying this Convention, the United States will be reaffirming
our commitment to our citizens with disabilities. Americans with
disabilities, including disabled veterans, should be able to live,
travel, study and work abroad with the same freedoms and access that
they enjoy in the United States. And as the state parties to the
Convention come together to grapple with the best ways to make progress
and remove barriers, we should be at the table with them helping them
learn from our experience.
The administration has submitted reservations, understandings and
declarations that make clear that U.S. ratification of the CRPD will
not require any change in U.S. law and will have no fiscal impact. My
hope is that U.S. ratification of the CRPD will have a moral impact. My
hope is that it will send a signal to the rest of the world that it is
not okay to leave a baby with Down syndrome on the side of the road to
die; not okay to warehouse adults with intellectual and psychiatric
disabilities in institutions chained to the bars of a cell when their
only ``crime'' is having a disability; not okay to refuse to educate
children because they are blind or deaf or use a wheelchair; not okay
to prevent disabled people from voting, getting married, owning
property, or having children; not okay to rebuild infrastructures in
Iraq, Afghanistan, Haiti, and other war-torn or disaster-stricken areas
without improving the accessibility of the infrastructure at the same
time.
I thank this committee for scheduling today's hearing. I commend
you for recognizing the long history of bipartisan support for
disability rights in this county. And I urge the committee to report
favorably on the treaty and recommend that the Senate give its advice
and consent to ratification.
The Chairman. Thank you very much, Senator Harkin.
Appreciate that testimony.
Senator McCain.
STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
Senator McCain. Thank you, Mr. Chairman.
And I, after hearing your eloquent statement and Dick's and
John Barrasso's and Tom's, I am reminded of my beloved friend,
Morris Udall, who once said everything that could possibly be
said about this has been said, only not everyone has said it.
So I will try to be brief in my remarks and spend--I am really
here to read a statement by our beloved friend and former
colleague and leader, Bob Dole.
And so, but I also would like just to take a moment to
thank our warriors here who have been with us for the last 22
years not only in the passage of this legislation, but also in
the long process of its implementation.
I want to thank Dick Durbin. I want to thank you, my old
friend, Senator Kerry, and John, and everybody who has been
involved. And Senator Moran and Tom Udall and others.
And this is an example that from time to time, we can
engage in a bipartisan effort in this body.
There are two people who are not here who I think are
really here in many respects, and one is our old friend, Justin
Dart, who we all know was one of the great leaders in this
effort. And his beloved wife is here.
And the other, of course, is my old friend and combatant,
Ted Kennedy, who played an incredibly important role on this
and other issues. I enjoyed working with him, and I enjoyed
working against him.
[Laughter.]
But I think his spirit is here today because he did have
the ability of bringing people together, as we all know.
Tony Coelho and Boyden Gray and Dick Thornburgh are here. I
would like to thank them as well.
I would just like to make two quick points, Mr. Chairman.
One is I am proud to be pro-life. This is a pro-life piece of
resolution, in my view, because too often children, as Tom
pointed out, with disabilities are never allowed to live.
I would also like to point out that it is--finally, I would
like to mention that it is not an accident that literally every
veterans organization in this country supports this legislation
because it is our veterans, many of whom are coming home as we
speak, that needed this legislation. And I think that when you
travel around the world and you see the conflicts around the
world--I just came from Libya, where 30,000 of their citizens
were wounded in the conflict that, thank God, has just been
over. And so many of them with disabilities.
So I would argue that this resolution, this treaty is
probably more important today in the world perhaps than it has
been in the past.
With that, I would like to read a letter from Bob Dole,
which in his own unique way is, I think, rather moving.
``Chairman Kerry, Ranking Member Lugar, and members of this
committee, when I delivered my maiden speech on the Senate Floor on
April 14, 1969, the anniversary of the day I was wounded in World War
II, it was customary to speak about something in which you had a deep
interest, and something about which you could offer some leadership. I
chose to speak about a minority group, as I said then, the existence of
which affects every person in our society, and the very fiber of our
Nation.
``It was an exceptional group I joined during World War II, which
no one joins by personal choice. It is a group that neither respects
nor discriminates by age, sex, wealth, education, skin color, religious
beliefs, political party, power, or prestige. That group, Americans
with disabilities, has grown in size ever since. So, therefore, has the
importance of maintaining access for people with disabilities to
mainstream American life, whether it's access to a job, an education,
or registering to vote.
``When we passed the Americans with Disabilities Act (ADA) in 1990,
it was not only one of the proudest moments of my career, it was a
remarkable bipartisan achievement that made an impact on millions of
Americans. The simple goal was to foster independence and dignity, and
its reasonable accommodations enabled Americans with disabilities to
contribute more readily to this great country.
``Americans led the world in developing disability public policy
and equality and, while there are places that still have no rights for
people with disabilities, many countries have followed our lead. In
1994, I wrote to the Secretary of State to ask that the United States
include the status of people with disabilities in its annual report on
human rights. To its credit, the State Department acted, and, since
then, has included a profile on the rights of people with disabilities
in each country in the world. Some of the news is good, but, in too
many countries, people with disabilities remain subject to
discrimination.
``The United States supported approval of the Convention on the
Rights of Persons with Disabilities (CRPD) in December 2006. On the
anniversary of the ADA in 2009, the U.S. signed the CRPD. This landmark
treaty requires countries around the world to affirm what are
essentially core American values of equality, justice, and dignity. Now
the package has been submitted to the Senate for your advice and
consent. I want to express my personal support for U.S. ratification of
the CRPD and to ask that you continue the proud American tradition of
supporting the rights and inclusion of people with disabilities.
``U.S. ratification of the CRPD will improve physical,
technological, and communication access outside the U.S., thereby
helping to ensure that Americans--particularly, many thousands of
disabled American veterans--have equal opportunities to live, work, and
travel abroad. The treaty comes at no cost to the United States. In
fact, it will create a new global market for accessibility goods. An
active U.S. presence in implementation of global disability rights will
promote the market for devices such as wheelchairs, smart phones, and
other new technologies engineered, made, and sold by U.S. corporations.
``With the traditional reservations, understandings, and
declarations that the Senate has adopted in the past, current U.S. law
satisfies the requirements of the CRPD. The CRPD works to extend
protections pioneered in the U.S. to the more than 1 billion people
with disabilities throughout the world. This is an opportunity for the
U.S. to join its allies--including Australia, Canada, France, Mexico,
South Korea, the United Kingdom, and Germany--in continuing our
historical leadership on disability rights.
``Passage of the ADA constituted a proud moment in U.S. history,
when we joined together as a nation to stand up for a worthy cause. Now
is the time to reaffirm the common goals of equality, access, and
inclusion for Americans with disabilities--both when those affected are
in the United States and outside of our country's borders. I urge you
to support U.S. ratification of this important treaty.''
Mr. Chairman, you know that there is nothing that Bob Dole
would have wanted more than to be here before this committee
today. You also know that he has had his challenges in the past
recent months and years. I hope that all of us will respect
this magnificent American who came and served his country, was
grievously wounded. He and our dear, beloved Senator Inouye
were in the same hospital.
And this is one thing I think that we could do for Bob Dole
that would make him exceedingly proud.
Thank you, Mr. Chairman.
[The prepared statement of Senator McCain follows:]
Prepared Statement of Senator John McCain of Arizona
Thank you for that introduction. I am pleased to come before the
committee to offer my support for the Convention on the Rights of
Persons with Disabilities and to be here on behalf of one of my closest
friends, Bob Dole. Bob asked me to come before you and present his
statement in support of this treaty. As you know, Bob has dedicated
nearly his entire life to this country--through his military service
and following that, many years in public service.
Senator Durbin and I began discussing months ago how we can work
together, in a bipartisan manner and build bipartisan support for
ratification of this treaty. We have been working closely with Senators
Moran, Barrasso, Coons, Tom Udall, and Harkin. The list of bipartisan
supporters continues to grow.
And there's a good reason that the list of supporters is expanding.
Protecting the rights of persons with disabilities, ANY persons, is not
a political issue. It is a human issue, regardless of where in the
world a disabled person strives to live a normal, independent life
where basic rights and accessibilities are available. Disability rights
and protections have always been a bipartisan issue and ratifying this
treaty should be no different.
Ratifying this treaty will continue our global leadership to
protect and recognize the rights of people living with disabilities
that began almost 22 years ago with the enactment of the Americans with
Disabilities Act. In fact, the 22d anniversary of the act is later this
month.
Some may question why the U.S. needs to join the 117 other
countries that have already ratified this treaty.
As I have traveled around the world to many countries and areas of
conflict, I have seen firsthand the many members of our Armed Forces
who have become disabled in their service to our country. I have also
seen the countless numbers of victims in these areas of conflict that
become disabled and must try to return to and assimilate into their own
societies, few of which have anywhere near the basic protections and
opportunities for independence that people living with disabilities
have in our country. In many cultures children born with disabilities
don't even have a chance. Ratifying this treaty affirms our leadership
on disability rights and shows the rest of the world our leadership
commitment continues.
Further, every action that we have ever taken on disability policy
has been bipartisan. Being able to live independently is a basic human
dignity that we support and is a value that we can help advance
internationally through ratification of this treaty.
Many of you have served with Senator Dole and you know that he has
been one of the true leaders on disability issues. And it is truly my
honor to present his testimony in support of the Convention on the
Rights of Persons with Disabilities.
The Chairman. Well, thank you, Senator McCain.
I think the testimony that you have given personally, but
most importantly, that you have just shared with us from
Senator Dole could not be more important and significant with
respect to this.
I would hope that all of our colleagues would read his
letter. We will certainly distribute it to every colleague and
hope that it can have that impact.
I had a wonderful visit with him just a few months ago, and
we reminisced about the efforts that we did together, I think
it was in the late 1980s, when the Little League was barring
young kids with disabilities from actually participating in
Little League. And we created now all across America, there is
a physically challenged Little League, formal Little League
participation.
So Bob Dole has played just a critical role, and he is a
tremendous role model and example as a leader. So I would hope
that people will, in fact, heed that, and we thank you.
Senator McCain, I cannot help but comment how much, as your
good friend--and you and I have been through a lot of things
together--how much it either disturbs me or confounds me that
you take as much pleasure from working against those you enjoy
working with. So we have got to work this out.
[Laughter.]
Let us continue doing that. Thanks for being here with us.
I know you are busy. So you are excused.
We invite the first panel up. If we could have the
Honorable Judith Heumann, SpecialAadviser for International
Disability Rights at the Department of State. And Ms. Eve Hill,
Senior Counselor to the Assistant Attorney General for Civil
Rights.
I am at this point, with your permission, going to turn it
over to Senator Durbin to chair for a while. And then I will be
back because I do want to get some questions in with respect to
some of these things.
Thank you.
Senator Durbin.
Senator Durbin [presiding]. Thank you very much, Chairman
Kerry, and we will proceed with the first panel.
[Pause.]
STATEMENT OF HON. JUDITH HEUMANN, SPECIAL ADVISER FOR
INTERNATIONAL DISABILITY RIGHTS, U.S. DEPARTMENT OF STATE,
WASHINGTON, DC
Ms. Heumann. Thank you, Senator Durbin and members of the
committee.
And thank you for the opportunity to speak in support of
ratification of the Convention on the Rights of Persons with
Disabilities, which both President Obama and Secretary of State
Clinton strongly endorse.
Ratification of the Disabilities Convention by the United
States would, as we have heard before, result in a shining
moment in this Nation's enduring commitment to advancing and
promoting disability rights both at home and abroad.
I ask that my full statement be submitted for the record.
Senator Durbin. Without objection.
Ms. Heumann. As the special adviser for international
disability rights at the State Department, I firmly believe
ratification will help us to advance U.S. interests abroad.
I grew up at a time when our country was just beginning to
realize the value of ensuring equality for persons with
disabilities. At that time, we had only begun the process of
recognizing that societies are stronger when they respect and
promote the dignity and equality and contributions of disabled
individuals.
However, as a child, I did not have the benefit of
accessible communities, inclusive schools, or accessible
transportation. I am 64. I did not attend school until I was 9.
And when I applied for my first job as a teacher, I was
initially denied my certification simply because I could not
walk. This was the official reason.
Today, thanks to strong legislation and decades of
enforcement, such blatant forms of discrimination are no longer
permissible in the United States. Unfortunately, the same
cannot be said for the majority of the 1 billion disabled
people around the world or Americans with disabilities who
live, work, serve, retire, study, and travel abroad.
In developing countries, it is estimated that 90 percent of
children with disabilities do not attend school.
Many disabled children are killed at birth simply because
of their disability. Basic physical access of disabled people
is still a dream in many countries.
In many countries, it is unfathomable that a significantly
disabled person like me would ever leave their home, much less
have a government job, wish to board an international flight,
and where government buildings, hotels, and even bathrooms are
not accessible.
Against this backdrop of exclusion and discrimination is
the vision of what we have achieved in the United States. That
vision inspired the international community to draft this
Disabilities Convention. At its very core, the Convention seeks
to ensure that persons with disabilities enjoy the same rights
as everyone else.
The Disabilities Convention is animated by the principles
underlying U.S. disabilities law--inclusion, respect for human
dignity and individual autonomy, accessibility, and equal
enjoyment of rights. It does not create new rights for disabled
people, and no new legislation would be required to implement
the Convention if ratified with the recommended, reservations,
understandings, and declarations.
Significantly, the United States would implement its
obligations under existing law. Therefore, you may ask why
should we bother to ratify? Simply put, ratification of the
disabilities Convention will strengthen U.S. interests. It will
promote tangible benefits for U.S. businesses and approximately
54 million Americans with disabilities who wish to live, work,
serve, retire, study, and travel abroad.
Only by ratifying the Convention will we put ourselves in
the best position to influence our international partners to
enhance disability rights, especially in such key areas as
education, accessibility, and employment. Improved standards
abroad will open up the world to Americans with disabilities
and their families.
Though I take great pride in the U.S. record, it is,
frankly, difficult to advance the interests of Americans with
disabilities and others when we, as the United States, have not
ratified the Convention. Failure to ratify deprives us of a
crucial tool to secure concrete improvements, such as fewer
architectural barriers and more accessible air travel, in
international practice, improvements that will afford greater
protections, opportunities, and benefits to the millions of
U.S. citizens, civilians and veterans, with disabilities who
currently face barriers abroad.
Ratification would also be good for American business. By
encouraging other countries to join and implement the
Convention, we would also help to level the playing field for
U.S. companies. A U.S. role in shaping international standards
would afford U.S. businesses increased opportunities to export
innovative products and technologies. As accessibility
standards become more harmonized, the competitive edge
increases for U.S. companies even further with the opening of
markets.
In sum, ratification will be a significant step in our
longstanding bipartisan tradition of support for the rights of
disabled people. It will provide the United States with a
critical platform to secure better international disability
standards and promote equality of individuals with
disabilities, including Americans who travel or live abroad.
Quite simply, ratification is good for America and good for
Americans, both for its profound impact on our diplomatic
leadership and for its tangible benefits to everyday Americans.
Finally, in keeping with America's strong longstanding
bipartisan tradition of support for the rights of persons with
disabilities, ratification of the disabilities Convention is
the right, smart, and just thing to do.
Thank you again for the opportunity to testify, and I look
forward to answering any questions you may have.
[The prepared statement of Ms. Heumann follows:]
Prepared Statement of Judith Heumann
Chairman Kerry, Ranking Member Lugar, and members of the committee,
thank you for the opportunity to appear before you this morning to
speak in support of ratification of the Convention on the Rights of
Persons with Disabilities, which both the President and the Secretary
of State strongly endorse. Ratification of the Disabilities Convention
by the United States would be a shining moment in this Nation's
enduring commitment to advancing and promoting disability rights both
at home and abroad. I am privileged to have this opportunity to speak
to you on behalf of the administration, drawing from my life-long
personal and professional commitment to promoting the rights of persons
with disabilities in the United States and abroad.
As the Special Adviser for International Disability Rights at the
U.S. Department of State, I firmly believe ratification will help us to
advance our diplomacy abroad, enabling us to highlight how our advances
have helped improve the lives of millions of disabled people and their
family members. I grew up at a time when our country was just beginning
to realize the value of ensuring the rights of persons with
disabilities. Thanks to unstinting leadership from parents and disabled
people, and the advocacy of many people, including Members of Congress
and disabled veterans, we had begun the process of recognizing that our
society should respect and promote the dignity, equality, and
contributions of disabled individuals. However, as a child I did not
have the benefit of accessible communities, inclusive schools, or
accessible transportation. Without even simple curb cuts, I wheeled in
the streets amongst oncoming traffic. I could not ride our buses or
trains. I was not allowed to go to school until I was 9 years old, and
then received poor quality education segregated from the rest of my
peers. When I applied for my first job as a teacher, I was initially
denied my certification simply because I could not walk.
Today, I am proud to say that such blatant forms of discrimination
are no longer permissible in our society. The United States has been a
leader in this area. With strong legislation and effective enforcement
honed over more than four decades of experience, Americans with
disabilities are respected and included in our society to a degree
unrivalled in our history. We can live, work, and travel with our
fellow citizens, and we see Americans with disabilities serving at the
highest levels of government and industry. Unfortunately, the same
cannot be said for the majority of the 1 billion disabled people around
the world, or Americans with disabilities, including veterans, who
live, work, serve, retire, study, travel, and reside abroad. In
developing countries it is estimated that 90 percent of children with
disabilities do not attend school. Many disabled children are killed at
birth simply because of their disability. I know from my own
international work that basic physical access for disabled people is
still a dream in many countries, and that enduring cultural stigmas
force people with disabilities, who yearn to work and contribute to
their families and societies, into abject poverty. I have also
experienced firsthand the frustration of traveling in places where it
is unfathomable that a significantly disabled person like me would ever
leave their home, much less wish to board an international flight.
Against this backdrop of exclusion and discrimination is the vision
of progress that we have achieved in the United States, made real
through the rule of law, which inspired the international community to
draft the Disabilities Convention. At its core, the Convention seeks to
ensure that persons with disabilities enjoy the same rights as everyone
else and lead their lives as do other individuals, if given the same
opportunities. As with the comprehensive network of U.S. Federal
disability law, the Convention expresses the principles and goals of
inclusion, respect for human dignity and individual autonomy,
accessibility, and equal enjoyment of rights. Equality of opportunity
and nondiscrimination are the primary principles permeating both the
Convention and U.S. domestic disability law. They animate the important
issues addressed by the Convention, including: political participation;
access to justice; respect for home and the family; education; access
to health care; employment; freedom of expression; and respect for
individual autonomy including the freedom to make decisions about how a
person wishes to live their life. By requiring equality of opportunity
and reasonable accommodation for persons with disabilities, the
Convention is reflective of the principles of U.S. disability law,
drawn from such core legislation as the Americans with Disabilities Act
(ADA), the Rehabilitation Act, and the Individuals with Disabilities
Education Act (IDEA). This principle of equality is of course enshrined
in the Fifth and Fourteenth Amendments to the United States
Constitution.
Given that the Disabilities Convention is animated by the
principles underlying U.S. disabilities law, and that it does not
create new rights for disabled people, no new legislation would be
required to implement the Convention if ratified with the recommended
reservations, understandings, and declaration. Significantly, the
United States would implement its obligations under existing law; the
Convention would not give rise to any new individually enforceable
rights. Therefore, you may ask why we should bother to ratify the
Convention? Simply put, ratification of the Disabilities Convention
will strengthen U.S. interests. It will promote tangible benefits for
U.S. business and the approximately 50 million Americans with
disabilities, including the 5.5 million American veterans with
disabilities, who wish to live, work, serve, retire, study, travel, and
reside abroad. By ratifying this Convention we will be putting
ourselves in a position to assist our international partners to do as
much as we have done domestically to enhance disability rights.
Prior to the adoption of the Convention, fewer than 50 countries
around the world had adopted some form of nondiscrimination legislation
to protect the rights of persons with disabilities. Ratification of the
Convention by over 114 countries has since led to a dramatic increase
in international interest in addressing the rights of persons with
disabilities. However, overall standards of protection around the world
typically remain subpar, as does enforcement of the protections that do
exist. Such conditions limit opportunities abroad for Americans with
disabilities. U.S citizens with disabilities frequently face barriers
when they travel, conduct business, study, serve, reside, or retire
overseas. With our extensive domestic experience in promoting equality
and inclusion of persons with disabilities, the United States is
uniquely positioned to help interested countries understand how to
effectively comply with their obligations under the Convention. Indeed,
provision of such technical assistance and knowledge sharing forms an
important part of my work with the Department of State. However, the
fact that we have yet to ratify the Disabilities Convention is
frequently raised by foreign officials, and deflects from what should
be center stage: how their own record of promoting disability rights
could be improved. Though I take great pride in the U.S. record, it is
frankly difficult to make best use of the ``bully pulpit'' to challenge
disability rights violations on behalf of Americans with disabilities
and others, when we have not ratified the Convention. Ratification
would give the United States legitimacy and a platform from which to
push for the adoption and implementation of the Convention's standards
in other countries. This in turn will likely result in concrete
improvements (such as fewer architectural barriers and accessible air
travel) in those nations that bring their national laws into
compliance, thus affording greater protections, opportunities, and
benefits to the millions of U.S. citizens with disabilities who
currently face barriers abroad.
Our failure to ratify has also undermined our advocacy for persons
with disabilities in multilateral and regional fora, where ratification
of the Convention has become a de-facto prerequisite for meaningful
engagement in discussions on promotion of disability rights. For
example, by ratifying we would be able to amplify our voice in the
Disabilities Convention's Conference of States Parties, to which the
United States sends delegations of disability rights experts but
currently only as an observer. This severely curtails the role that the
United States can play in such meetings, particularly as more countries
ratify. By joining the 114 other States Parties to the Convention, we
could help shape the international disability agenda by taking a more
prominent role in future Conferences, shaping and leading Conference
meetings and panel discussions and more actively contributing to the
international disability rights dialogue. We will be a leading force in
the drive to both improve lives and increase understanding and
cooperation among States, as well as to impact the development of
international standards on accessibility. Disability diplomacy will
have a positive effect on overall bilateral and regional diplomacy of
the United States, by allowing us to leverage the shared value of
disability rights to promote dialogue on other issues of importance to
U.S. foreign policy. We have found that inclusion of disability rights
in the work of the State Department amplifies our ability to achieve
our broader foreign policy objectives. However, this work is unduly
hampered by our not having a seat at the table as a State Party.
Ratification would also be good for American business. By
encouraging other countries to join and implement the Convention, we
would also help level the playing field to the benefit of U.S.
companies. It would enhance the competitive edge for our companies
whose operations and hiring already meet accessibility requirements.
Guiding and encouraging improved disability standards abroad would also
afford U.S. businesses increased opportunities to export innovative
products and technologies (such as electronic wheelchairs and other
mobility devices, as well as accessible computers and electronics),
thereby potentially stimulating job creation at home. As accessibility
standards become more harmonized--a business objective that the United
States can more credibly support if it becomes a State Party--the
competitive edge increases for U.S. companies even further with the
opening of markets.
As I travel and meet disabled people from around the world, I am
often reminded of how far we have come in the United States over the
course of my lifetime, and how far so many countries have yet to go in
ensuring that persons with disabilities are full and equal members of
their societies. I also meet Americans with disabilities and their
family members, who talk of the struggles they have faced abroad to
live, work, and study with dignity and respect. Just as the ADA and
related laws have become the gold standard for domestic disabilities
legislation, U.S. ratification of the Disabilities Convention would
represent a paradigm shift in the international treatment of persons
with disabilities. The treaty is anchored in the overarching principles
of inclusion, equality, and nondiscrimination that Americans already
value at home. Ratification would serve both to underscore the enduring
U.S. commitment to disability rights and to enhance the ability of the
United States to promote these rights overseas. U.S. ratification would
better position the United States to exercise its leadership role to
guide and encourage other countries to ratify and implement the
Convention. Leading by example, in what we do and what we say, is a
hallmark of America's principles and policies. Any opportunity that we
have to positively influence the practice of other countries in
respecting the rights of persons with disabilities helps to create a
world in which Americans with disabilities can promote American values
by pursuing travel, work and study abroad unhindered by the barriers
they currently face. Such opportunities can only be enhanced by our
ratification of the Disabilities Convention.
In sum, ratification is good for America and good for Americans. It
will provide the United States with a critical platform from which to
urge other countries to improve equality of individuals with
disabilities, including Americans who travel or live abroad, and
including children with disabilities, whose plight is particularly
neglected in many parts of the world. The transformation which paved
the way in the United States for children with disabilities to grow up
with their families, go to school, and live as full participants in
society has simply not taken place in much of the rest of the world. To
promote the rights of individuals with disabilities overseas more
effectively, the United States can use its ratification of the
Convention as a vehicle to encourage, guide, pressure, and persuade
other States Parties to implement better disability standards and
provide greater disability rights protection in their countries,
including to Americans. Ratification is a win-win, as protections in
the United States would not need to be changed, and joining would not
affect U.S. sovereignty. Ratification would open up opportunities for
U.S. citizens, organizations, and businesses abroad, including our
disabled youth, who rightly expect to be full participants in shaping
our world's future.
Ratification of the Disabilities Convention would mark a momentous
step toward the protection and advancement of the rights of persons
with disabilities wherever they may live. It is a significant step for
both its profound impact on our diplomatic leadership and for its
tangible benefits to everyday Americans. Finally, in keeping with
America's longstanding bipartisan tradition of support for the rights
of disabled people, ratification of the Disabilities Convention is the
right and just thing to do.
Senator Durbin. Thank you, Ms. Heumann.
Eve Hill is the Senior Counselor to the Assistant Attorney
General for Civil Rights in the Department of Justice.
Please proceed.
STATEMENT OF EVE HILL, SENIOR COUNSELOR TO THE ASSISTANT
ATTORNEY GENERAL FOR CIVIL RIGHTS, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Ms. Hill. Good morning, Senator Durbin, Ranking Member
Lugar, other members of the committee.
I am very pleased to be here today. Thank you for holding
this hearing on the United States ratification of the
Disabilities Convention.
I would ask that my full statement be submitted for the
record.
I am here to speak to the relationship between the
Disabilities Convention and our American disability rights
laws, which served, to a great extent, as the inspiration and
model for the Convention.
We in the United States are world leaders in disability
rights. We have developed a panoply of American laws that
protect the rights of people with disabilities to a greater
extent than any other country in the globe. Where many other
countries approach disability rights from an aspirational
vantage, we match our legislation with effective enforcement
mechanisms that have led to notable changes in our society.
Curb cuts, ramps, parking spaces, American sign language
interpreters, service animals--these are just a few of the
groundbreaking changes that we have come to take for granted in
this country. But they are not available when Americans travel,
study, work, or learn overseas.
Federal laws address disability rights discrimination in a
variety of areas. The Americans with Disabilities Act--ADA--
addresses disability nondiscrimination obligations of State and
local government entities, and of private entities, including
stores, restaurants, and other providers of goods and services.
The ADA also prohibits discrimination in employment.
In addition, our Federal Government has been committed to
disability rights in its own programs and services, as well as
those it funds, for decades. We implement domestic disability
rights laws through a variety of means, including education and
guidance, supporting voluntary compliance, mediation, and
litigation. These implementation efforts are driven by domestic
law and practice and would not change with the ratification of
the Disabilities Convention. Therefore, ratifying the
Convention, as proposed, will not require new legislation or
create new rights.
The administration has proposed that the Senate consider a
package of three Reservations, five Understandings, and one
Declaration that will allow the United States to comply with
the Convention without any changes to U.S. law. These are
detailed in the ratification package, but I would like to speak
to three of them today.
First, the package includes a federalism reservation,
similar to the federalism reservations that were taken with the
ratification of the International Covenant on Civil and
Political Rights--ICCPR--and the Convention on the Elimination
of All Forms of Racial Discrimination--CERD. The federalism
reservation would limit the obligations of the United States
under the Convention in areas covered by State and local
government jurisdiction to measures appropriate to our Federal
system.
It would, thus, maintain the current balance and allocation
of authority between the Federal Government and the 50 States.
While we have a network of Federal disability laws, some treaty
articles primarily implicate State laws, such as Article 12,
which address guardianship, and Article 14, which addresses
civil commitment.
In most cases, State and local laws on these issues meet or
exceed the requirements of the Convention. But in some issues
governed by State law, such as legal capacity, some State and
local protections may be less robust than the Convention. In
these cases, the federalism reservation would preserve the
existing balance of authority between the Federal Government
and the States.
I would also like to underscore the recommendation for a
reservation on private conduct. This is similar to a
reservation taken in treaties already ratified, such as the
ICCPR and CERD. The private conduct reservation ensures that
regulation of private parties under the Convention, including
individuals, businesses, and nongovernmental organizations, is
coextensive with such regulation under current domestic law.
U.S. law extensively governs some areas of nongovernmental
activity, such as disability discrimination by public
accommodations. At the same, the U.S. Constitution and laws
recognize a zone of private activity that is not governed by
Federal or State government and, in some cases, expressly
enjoys constitutional protection. This important reservation,
therefore, would limit U.S. treaty obligations regarding
private conduct to be coextensive with such regulation under
the Constitution and laws of the United States.
Third, the proposed non-self-executing declaration would
make it clear that the Convention could not be directly
enforced by U.S. courts and would not give rise to individually
enforceable rights. This is consistent with our practice under
treaties on civil and political rights, racial discrimination,
and torture.
With this Declaration and the other Reservations and
Understandings, the United States would be able to implement
the Convention using the existing network of laws and Federal
enforcement mechanisms that guarantee nondiscrimination to
Americans with disabilities at home. As such, no new
legislation would be required to ratify the Disabilities
Convention.
With the ratification of the Disabilities Convention, we
will greatly enhance our ability to influence other countries
to move toward adopting and implementing effective standards
that are consistent with those that we have established at
home. As a result, we hope that American veterans, business
people, retirees, students, tourists, military, and others will
be able to enjoy the same levels of accessibility and
nondiscrimination protections overseas that they currently
benefit from in the United States.
Protection of disability rights laws has historically been
grounded in bipartisan support, and the principles anchoring
the Convention find clear expression in our own domestic law.
We, therefore, urge this committee to give prompt and favorable
consideration to the Disabilities Convention and that the full
Senate give its advice and consent to ratification, subject to
the proposed Reservations, Understandings, and Declarations.
Thank you for inviting me today, and I look forward to your
questions.
[The prepared statement of Ms. Hill follows:]
Prepared Statement of Eve Hill
Good morning, Chairman Kerry, Ranking Member Lugar, and members of
the Committee. Thank you for holding this hearing about the United
States ratification of the U.N. Convention on the Rights of Persons
with Disabilities (Disabilities Convention). I am here today to speak
to the relationship between the Disabilities Convention and our
American disability-rights laws, which served, to a great extent, as
the inspiration and model for the Disabilities Convention.
We in the United States are world leaders in the effort to protect
the rights of persons with disabilities. Our early initiatives to
protect disability rights and the subsequent decades-long effort to
enhance disability rights have resulted in a panoply of American laws
that protect the rights of persons with disabilities to a greater
extent than any other country on the globe. Where many other countries
approach disability rights from an aspirational vantage, we match our
legislation with concrete, effective enforcement mechanisms that have
led to visible, notable changes in our society in our lifetimes. Curb
cuts, ramps, accessible parking spaces, American Sign Language
interpreters, service animals--these are just a few of the
groundbreaking changes that have swept through our society thanks to
our vigorous enforcement of disability-rights laws.
While we in the United States too often take the tremendous
advances in disability rights for granted, much work remains to be done
and the Department of Justice and other Federal agencies are actively
addressing discrimination on the basis of disability arising in a
variety of arenas. These implementation efforts are driven by domestic
law and practice and this approach would not change with the
ratification of the Disabilities Convention. The Americans with
Disabilities Act (ADA) addresses the disability nondiscrimination
obligations of State and local governmental entities, including
educational institutions, local government offices, parks, libraries,
hospitals, nursing homes, and more, and by private entities, including
stores, restaurants, recreational facilities, banks, and other
providers of goods and services. The ADA also prohibits disability
discrimination by employers with 15 or more employees. Our disability-
rights laws affect more than 6 million businesses and nonprofit
agencies, 80,000 units of State and local government, and 54 million
people with disabilities. In addition, our Federal government has been
committed to disability rights in its own programs and services, as
well as those it funds, for decades through the Rehabilitation Act of
1973, the Architectural Barriers Act, and many other Federal laws.
Along with the Department of Justice, a panoply of other Federal
agencies and entities are engaged in efforts to address discrimination
on the basis of disability, including the Department of Housing and
Urban Development, the Department of Education, the Department of
Veterans Affairs, the Department of Health and Human Services, the
Department of Transportation, the Federal Communications Commission,
the U.S. Access Board, and the Equal Employment Opportunity Commission
(EEOC), each of which takes on significant responsibilities for the
enforcement of our domestic disability-rights laws.
The Disabilities Convention is firmly grounded in, and animated by,
the principles underlying U.S. disabilities laws, including the
Rehabilitation Act of 1973, the ADA, and the Individuals with
Disabilities Education Act. Therefore, ratifying the Disabilities
Convention will not require new legislation and will not create any new
rights, so long as it moves forward with the recommended Reservations,
Understandings, and Declaration (or RUDs). The Convention was finalized
in December 2006 after several years of drafting and negotiations,
during which a U.S. delegation played an active role and joined in the
consensus adoption of the Convention. The influence of U.S. disability
law on the Disabilities Convention is apparent in the way the
Convention mirrors our robust and well-developed U.S. disability-rights
legislation. The Disabilities Convention follows the core principles of
U.S. disability-rights laws--equality of treatment and
nondiscrimination, with an emphasis throughout the Convention of rights
provided ``on an equal basis with others.'' It incorporates concepts
central to U.S. disability-rights law, such as independent living,
inclusive education, and reasonable accommodation, limited, as it is in
U.S. law, by the qualification that an accommodation need not be made
if it entails undue burden or expense.
The administration has proposed that the Senate consider a package
of three Reservations, five Understandings, and one Declaration that
will allow the United States to be in full compliance with the
Convention without any changes to U.S. law. These are detailed in the
transmittal package, but I would like to speak to three of them today.
First, the package includes a federalism reservation, similar to
the federalism RUDs that were taken with the ratification of the
International Covenant on Civil and Political Rights (ICCPR) and the
Convention on the Elimination of All Forms of Racial Discrimination
(CERD). This federalism reservation would limit the obligations of the
United States in areas covered by State and local government
jurisdiction to measures appropriate to the Federal system, maintaining
the current allocation of authority between the Federal Government and
the 50 States. While we have a significant network of Federal
disability laws, some treaty articles would be primarily implemented
under State laws, such as Article 12, which addresses guardianship, and
Article 14, which addresses civil commitment. In most cases, State and
local laws and practices meet or exceed the requirements of Federal law
and thus the Convention. In instances governed primarily by State law
where some State and local protections may be less robust than the
Convention would require, such as regarding Article 12(4), which
addresses safeguards in determinations of legal capacity, the
federalism reservation would preserve the existing balance of authority
between the Federal Government and the States. As we have observed, led
by the advances at the Federal level, the dominant trend in State and
local disability-rights laws has been toward improvement and
modernization. Thus, while the adoption of a federalism reservation
will allow us to adopt the Disabilities Convention without any new
legislation, it in no way will impede us from continuing forward
progress in disability rights protection.
I would also like to underscore the recommended reservation on
private conduct. Similar to a reservation taken in treaties already
ratified, such as the ICCPR and CERD, the private-conduct reservation
is intended to ensure that regulation of the conduct of private parties
under the Convention, including businesses and nongovernmental
organizations, is coextensive with such regulation under existing
domestic law. United States law extensively governs significant areas
of nongovernmental activity, such as disability discrimination by
public accommodations, transport carriers, communications networks, and
employers. At the same time, the U.S. Constitution and laws recognize a
zone of private activity that is not extensively governed by Federal or
State government, and, in some cases, expressly enjoys constitutional
protection. This important reservation, therefore, would limit the
treaty obligations undertaken by the United States respecting
regulation of private conduct to be coextensive with such regulation
under the Constitution and domestic laws of the United States. As the
EEOC has separately confirmed to the committee, with the proposed RUD
package, the United States will rely on existing law to fully comply
with the Disabilities Convention. (See the attached letter from the
EEOC.)
Third, I also would like to address the proposed non-self-executing
Declaration which would make it clear that the Convention could not be
directly enforced by U.S. courts and would not give rise to
individually enforceable rights. This is consistent with our treaty
practice under the ICCPR, CERD, and the Convention Against Torture.
With this Declaration and the other Reservations and Understandings,
the United States would be able to implement its obligations under the
Disabilities Convention using the existing network of laws and Federal
enforcement machinery that afford protection and guarantees of
nondiscrimination to persons with disabilities. As such, no new
legislation would be required to ratify and implement the Convention.
With the ratification of the Disabilities Convention, we will
greatly enhance our capacity to influence other countries to move
toward the vigorous, effective standards we have set at home. In turn,
as other countries move forward, American veterans, business people,
retirees, students, tourists, Active-Duty military, and others will be
able to enjoy the same kinds of accessibility and nondiscrimination
overseas that they currently enjoy in the United States. Thus, with the
ratification of the Disabilities Convention, we will level the playing
field for American businesses that are already complying with
accessibility standards and provide new opportunities for the export of
accessible technology.
Protection of the rights of persons with disabilities has
historically been grounded in bipartisan support and the principles
anchoring the Convention find clear expression in our own domestic law.
We therefore urge that this committee give prompt and favorable
consideration to this Convention, and that the full Senate give its
advice and consent to its ratification, subject to the administration's
proposed reservations, understandings, and declaration.
______
U.S. Equal Employment Opportunity Commission,
Washington, DC, September 19, 2011.
Re Convention on the Rights of Persons with Disabilities
Hon. John F. Kerry,
Chairman,
Hon. Richard G. Lugar,
Ranking Member,
Committee on Foreign Affairs,
Washington, DC.
Dear Chairman Kerry and Ranking Member Lugar: We are writing to
support the ratification of the Convention on the Rights of Persons
with Disabilities (``Convention''), subject to the reservations,
understandings, and declaration (``RUDs'') described in the Executive
Branch's transmittal package. We appreciate this opportunity to express
our views concerning the Convention.
Created by the landmark Civil Rights Act of 1964, the Equal
Employment Opportunity Commission (``EEOC'' or ``Commission'') is a
bipartisan body whose five members are appointed by the President and
confirmed by the Senate. The EEOC is responsible for enforcing federal
laws prohibiting employment discrimination on the basis of race, color,
sex, religion, national origin, age, disability, and genetic
information. The EEOC plays a central role in enforcing the employment
provisions of the Americans with Disabilities Act (ADA), the Genetic
Information Nondiscrimination Act (GINA), and the Rehabilitation Act,
and has recently issued bi-partisan final regulations for the ADA
Amendments Act of2008. As the United States Congress recognized in
enacting the ADA, anti-discrimination protection on the basis of
disability benefits society as a whole by integrating people with
disabilities into the workplace, and we believe that it works well for
both people with disabilities and employers.
In requiring equal treatment for persons with disabilities, the
Convention is anchored in the core concepts of U.S. civil rights law,
which rejects stereotypes about the limitations of persons with
disabilities and instead emphasizes the need for individualized
assessment of a job applicant's or worker's qualifications and
abilities. The Convention, like the federal disability laws, including
those enforced by the EEOC, promotes inclusion, respect for human
dignity, and accessibility.
The EEOC does not usually take positions on international
Conventions. However, we believe that our assessment of the Convention
and the RUDs may be of utility to the Committee on Foreign Affairs as
it considers ratification. Ratification of the Convention will benefit
persons with disabilities in the United States and worldwide by
promoting the extension of the U.S.'s innovative and precedent-setting
approach to accommodating persons with disabilities to foreign
countries. It will help lead to greater protections and benefits for
the millions of U.S. citizens with disabilities who travel, conduct
business, study, or reside overseas, including American veterans.
Additionally, ratification will benefit American businesses by leveling
the playing field and encouraging countries around the world to
harmonize their standards with the Convention (U.S. standards meet or
exceed those of the Convention). Finally, ratification will provide the
United States--an historic leader on disability rights issues--with an
enhanced opportunity to share its interpretations of disability law and
its technical expertise regarding accommodations for persons with
disabilities with foreign governments.
As the Executive Branch's transmittal package has concluded, the
United States will rely on existing law to comply with the Convention,
including its employment-related provisions, as modified by the
recommended RUDs. The Commission therefore has no intention to change
the way it currently enforces the ADA, GINA, and the Rehabilitation
Act. indeed, the Convention's employment-related provisions and
accompanying RUDs are squarely anchored in the principles of U.S.
disability law, including the statutes that EEOC enforces. Similarly,
the treaty transmittal package recommends a federalism reservation to
make clear that ratification would not require changes in the Jaws of
the fifty states, including state employment non-discrimination laws,
and would impose no burden on state legislatures.
Thank you for your attention to this important matter. We hope you
find our assessment of the Convention and the RUDs to be useful as the
Committee on Foreign Affairs considers ratification.
Sincerely,
Jacqueline A. Berrien,
Chair.
Stuart J. Ishimaru,
Commissioner.
Constance S. Barker,
Commissioner.
Chai R. Feldblum,
Commissioner.
Victoria A. Lipnic,
Commissioner.
Senator Durbin. Thank you, Ms. Hill.
Before proceeding with a couple questions for each of you,
I would like to again acknowledge two people and a third who
has not been acknowledged. First, Tony Coelho, who was my
colleague in the U.S. House of Representatives, a leader on
disability issues from the start. And Tony, thank you for your
leadership in bringing us here today.
My former colleague, Steve Barlett from Texas, who joins us
and I know has been a strong supporter of this effort. Thank
you so much.
And if you will give me some home State privilege here, I
am so proud of Marca Bristo. She is my ``shero'' when it comes
to disability issues in the State of Illinois and nationally.
And Marca, thank you for all that you have done. You are just
the very best.
So let us address a couple issues head on. What we hear
about when we open our e-mail on this subject is the question
of children's education. You have raised the point, Ms.
Heumann, that with this, with the passage of this Convention,
that we are opening up educational opportunities for disabled
children in many places around the world where they are
currently denied.
The critics of this Convention argue that we are limiting
educational opportunities for American children, particularly
when it comes to home schooling. So I would like to ask you and
Ms. Hill to address that issue head on.
Ms. Heumann. Well, I would like to state that we believe
that there will be no changes to the ability of families to
home school their children. What is very important to
understand is, when I mentioned in my earlier statement that 90
percent of disabled children are not able to attend school
overseas, we want the United States to be able to lead as an
example of what we have done since the development and
implementation of the Individuals with Disabilities Education
Act when, in 1975, 1 million disabled children in this country
were not attending school.
Today, disabled children are in school. Parents have
significant rights, and play a very important role in the
education of their children. We want our laws to be able to be
a beacon for parents and governments and civil society overseas
so they can learn what it is that we have so successfully done,
which is resulting in more students graduating from high
school, and students with disabilities going to the
universities. And now, many of them in the room today wishing
to work and live and travel abroad.
Ms. Hill. I would add that by its terms, the treaty does
not proceed to undermine the rights of either individual
parents or schools to change the requirements for home
schooling. The Convention doesn't change the ways in U.S. law
governing parental authorities, which is a matter for the
States, and that would be supported by the federalism
reservation that I mentioned before that will not take this
down to the State level.
And where not regulated by State law, that is an individual
decision, again limited by the private action reservation that
I mentioned earlier as well.
Senator Durbin. So, Ms. Hill, let me follow through on
another aspect of this, and the question is whether or not this
new Convention would create any rights of enforcement or legal
rights in courts for American citizens to enforce the
provisions of this Convention. Could you address that?
Ms. Hill. It does not. The non-self-executing declaration
makes clear that the Convention's requirements cannot be
enforced in U.S. courts and do not provide individual rights of
action.
Senator Durbin. Your testimony notes that the panoply of
Federal agencies that play a role in enforcing already existing
U.S. laws ensure access, inclusion, and opportunity include the
Department of Justice, Housing and Urban Development, Veterans
Affairs, Equal Employment Opportunity Commission.
Our country's existing legal framework for protecting those
with disabilities is the best in the world and it has been very
effective. By ratifying the treaty, would the United States be
required to change its current legal framework for protecting
the rights of those with disabilities?
Ms. Hill. It will not. Again, the federalism reservation
makes clear that the Federal level is responsible for
implementation and that the limits of our current federalism
system reduce the ability to carry those obligations through to
any State level.
In addition, the limitations recognizing our zones of
private conduct prevent further extension into those areas.
Senator Durbin. A witness on another panel asserts that the
treaty will violate principles of American sovereignty and
liberty. He asserts that if the United States ratifies this
treaty, our ability to have absolute freedom of choice
concerning public policy on the subject will be extinguished,
in his words.
Do you agree with this assertion that ratifying the treaty
will cede U.S. sovereignty to an international body, or is
there any aspect of this argument that you would find
compelling?
Ms. Hill. I do not agree at all with that assertion. The
body created by the Convention is a committee that is
nonbinding on state parties, that can make recommendations,
that can make suggestions, and that can make its opinions
known. But we have no obligation to follow those
recommendations, and they are completely nonbinding on the
United States.
Senator Durbin. Thank you.
Senator Lugar.
Senator Lugar. Let me ask either of the distinguished
witnesses, how is the committee to deal with the fact that the
Cabinet officers of many other departments of our Government
might assert that they have an interest in this, quite apart
from various other committees of the Senate? It is a wide-
ranging treaty. We are having this in the Foreign Relations
Committee.
But as you advocate on behalf of advice and consent, are
you dealing with other committees, with other branches of the
Cabinet or the Government so that we understand that we are all
on the same page?
Ms. Heumann. Thank you very much for the question, Senator.
The process that the Government undertook in developing
this package was quite exhaustive and involved 16 other Federal
agencies. It was a year and a half process.
So all of the heads of these governmental agencies and
their staff did a very thorough review of the provisions that
are part of the Convention and how it pertains to U.S. law. So
I believe that we have thoroughly done what you have requested
us to do and that we believe that this committee is the
appropriate committee for jurisdiction because of the fact that
it is a treaty.
Senator Lugar. Let me ask, can you give us some idea of the
members of the Convention--or other countries who have ratified
the Convention? I am not asking for an entire encyclopedia. But
are there countries in Europe, in Africa, in Latin America?
Give us some idea of the range of how many countries already
are involved in this situation that you are advocating that we
join.
Ms. Heumann. So, as you may be aware, there are, as of
today, 116 countries that have ratified, plus the U.N. The
committee itself is made up of many very recognized,
prestigious, significantly disabled individuals who in some
cases have actually traveled and studied in the United States.
As an example, there is a woman named Professor Degener,
who is a woman who was born without arms when her mother took
thalidomide, experienced various forms of discrimination in
Germany and got her LLM here at the United States at UC-
Berkeley. She is a noted attorney and scholar, and she is an
indication of the type of person.
The people on the committee themselves are knowledgeable
about disability. As I said, many have personal experience.
They also understand the importance of good law and good
jurisprudence.
And what they are trying to do is to be able to help
advance, working collaboratively with governments, many of
whom, as we have said previously, want to be doing the right
thing but have very limited knowledge and experience about how
to develop good laws in areas of accessibility or education,
have little information about how to implement those laws.
The United States has great experience in this area. Our
ability to be able to sit at the table and help advance this
and the role that the committee can play we think is very
advantageous.
Senator Lugar. So, in fact, the committee or sort of the
governing instance in this case is giving advice to governments
in 118 countries about ways in which they might be more humane
and more thoughtful to disabled people, but the committee is
not able to enforce this. In other words, this is an advisory
function, essentially----
Ms. Heumann. Exactly, Senator.
Senator Lugar [continuing]. Which is the sharing of
experience. Is that your idea of the nature of the Convention,
or is that too narrow a view?
Ms. Heumann. No, the committee is an advisory body. The
committee's expertise is to, as I have been saying, help
facilitate advancement. They will make recommendations, for
example. We believe they are going to be discussing issues of
accessibility with the committee in the future, in the near
future.
And therefore, again, the importance of our being able to
play a role in helping to explain U.S. standards, how our
standards have been developed, the effectiveness of
implementation of those standards, the changes those standards
have made in the United States and can make abroad we believe
is very important.
Senator Lugar. Let me just ask hypothetically, has the
committee been active in Russia, China, or--to take an instance
in Africa--Kenya, or in Brazil? In other words, have they made
recommendations, and have they been accepted? What has been the
progress in any of these countries?
Ms. Heumann. Sir, as you know, the Convention itself is
relatively new. The committee has thus far received three
reports. The way the process goes is once a country has
ratified, it will submit a report 2 years later.
China actually, I think, has now submitted its report, and
it is going to be under review in the fall. And I think this is
a report that we would like to also be paying close attention
to, and our ability to be a member of the body--in ratifying,
it will enable us to seek to have a position on this committee
in the future.
Senator Lugar. Well, when you receive this report from
China, it will--I suppose the Chinese will outline ways they
are helpful to handicapped persons is that thing. Then the
committee takes a look at this report and says how about this
or this or this? Is this the way the conversation is likely to
work?
Ms. Heumann. The committee will gather. It will review the
report. It will put forth a report on recommendations that it
has for the governments. One interesting aspect that is going
on right now also is that civil societies in many of these
countries are also, as you know very well, Senator Lugar,
developing something called shadow reports.
I think what is particularly important about shadow
reports, which are being developed by civil societies around
the world, is that in many countries, the voices of disabled
people have not really been heard. They have not been
organized. They have not been knowledgeable about how, in fact,
to submit such a report.
So I think we are seeing the committee playing a critical
role in articulating what their concerns will be,
recommendations that they will make, and also the voices of
civil society that are coming behind the government's report to
say what they think about the report.
Senator Lugar. Well, thank you.
Hopefully, maybe over the Internet, some of these shadow
reports might be found, and there could be some worldwide
communication of that.
Ms. Heumann. I am sure that the shadow reports are
available, Mr. Senator.
Senator Lugar. Thank you.
Senator Durbin. Senator Menendez.
Senator Menendez. Thank you, Mr. Chairman.
The transmittal package from the administration states that
no new legislation would be required to ratify and implement
the Convention. There are about 50 articles in the Convention
that cover a broad range of topics, including health,
education, work and employment, and so on. Is the
administration confident that there are not any gaps in
compliance if the United States becomes a party to the
Convention?
Ms. Hill. We are confident that to the extent that there
are any gaps, they are addressed by the Reservations,
Understandings, and Declaration. So, for example, if State law,
which is a traditional area left to the States, were in some
case less than what the Convention would require, the
federalism reservation would make clear that the Convention's
requirements did not extend to the State law.
This may lead some to advocate with States to say you may
want to consider moving your State law in this direction, but
there would be no binding effect on that. Again, the non-self-
executing declaration would make clear that in the U.N.
Disabilities Convention, even if someone believed that it
didn't--that our compliance did not meet the standard set out
by the Convention, there would be no binding authority to tell
us to tell us to change it. It would simply be recommendations.
And we, of course, are always open to learning new ideas
from other countries. So there is no way. There is no
enforcement way for the Convention to force us to change new
laws. We are confident that after substantial review by a
number of Federal agencies that any gaps in our compliance with
the U.N. Disabilities Convention would be protected by the RUDs
and that any gaps are very, very minor and that we are by far
the leaders in this ability to comply with the Convention.
Senator Menendez. Fine. I think Senator McCain said in his
statement that there would be no financial obligations upon
ratification of the Convention. Is that State's understanding
as well?
Ms. Heumann. Yes, it is, Mr. Senator.
Senator Menendez. And, with some minor exceptions as you
have noted, it would seem to me that we are largely already in
the lead here. So, it seems to me that, well, one other
question before I make that statement.
Is there any ceding of sovereignty here that will
ultimately take away some of our sovereign rights in this
field?
Ms. Heumann. No, Mr. Senator.
Ms. Hill. There is not. The articles that set up the
commission for the Convention do not give the commission any
authority to bind or to otherwise take any pieces of
sovereignty away from the states parties.
Senator Menendez. And it is my understanding that you
responded to the chairman in terms of the best interests of how
parents would care for disabled children. They would still have
their absolute rights under that?
Ms. Hill. They still have the rights that are consistent
with current State and Federal law.
Senator Menendez. So it seems to me that as a leader in the
world already, it would not only be prudent, but desirable for
the United States to join and help others follow our lead so
that a citizen anywhere in the world would ultimately be able
to enjoy the benefits of these rights.
Ms. Heumann. Yes. And I would also like to say, you know,
we are living in a globalized world, and the changes that have
been made in the United States over the last four decades have
afforded disabled people in this country tremendous
opportunities. And as such, many of those individuals are now
needing to be able to be competitive on the world market.
Those individuals with more significant disabilities who
have studied at universities, have studied in the appropriate
fields for international work, in many cases are being thwarted
by barriers which exist overseas. You will hear from John
Lancaster that in spite of many of these barriers, people are,
nonetheless, going overseas.
But they do want to be able to feel when they are traveling
that they can be able to say that their country has ratified
this treaty. That they can freely speak about the great
legislation that we have in the United States, the
collaborative approaches that government and civil society have
been able to use over the years.
The reality is those of you on the dais today and in
committees across this Congress are the ones who have
promulgated meaningful legislation that has resulted in great
changes for millions of Americans living here and wishing to
work, study, and travel abroad. So I think we should take the
great work that we have done and, with great pride, use it as
an active diplomacy to be able to work with governments and
civil society to help them make the advancements that 1 billion
people need.
Senator Menendez. I think you have summarized it so well
that I will yield back the balance of my time.
Thank you.
Senator Durbin. Thank you, Senator Menendez.
Senator Risch.
Senator Risch. Thank you.
Ms. Hill, I am interested, I want to focus on your
testimony regarding the non-self-executing declaration. How far
back do we reach to find the inception of that in treaties?
When was the first time that was used? Do you know?
Ms. Hill. I believe it was in the International Convention
on the Civil and Political Rights.
Senator Risch. What year would that have been, ballpark?
Ms. Hill. And I am not sure the year of that. Sixty-six.
[The information requested to the question above follows:]
After consultation with the Department of State, attached is a list
that surveys recent examples of the use of declarations in Senate
resolutions of advice and consent regarding the non-self-executing
status of treaties. The attached list is not intended to be exhaustive,
but to provide a useful survey of recent practices.
[Editor's note.--The list mentioned above can be found in Annex II.]
Senator Risch. Then the other question I would have is I
think all of us are familiar with the frustration, I guess,
Congress has had over the centuries trying to restrict the
jurisdiction of another branch of Government. I am familiar
with some of the litigation in that regard, but I am not
familiar with any litigation regarding the non-self-executing
declaration. Has that issue been litigated up through the
highest court?
Ms. Hill. No, not through the highest court. It was brought
to one court. The court found that the non-self-executing
declaration was effective and did not affect the particular
issue in the case.
Senator Risch. Was that a circuit court or a district
court, or do you know?
Ms. Hill. I believe that it was a district court, but I can
get back to you with the details.
Senator Risch. Could you, please? Yes, I would like the
citation on that.
[The information requested to the question above follows:]
Id. In the leading case of Sosa v. Alvarez-Machain, 524 U.S. 692
(2004), the Supreme Court treated a non-self-executing declaration as
dispositive. The Court noted that ``The United States ratified the
[International Covenant on Civil and Political Rights] on the express
understanding that it was not self-executing and so did not itself
create obligations enforceable in the federal courts.'' The Court
accordingly held without any further analysis that the ICCPR is not
directly enforceable.
Thank you very much.
Thank you, Mr. Chairman.
Senator Durbin. Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman.
And let me thank all of our witnesses and those who have
participated. Also I am glad you acknowledged our former
colleagues, Steve Bartlett and Tony Coelho.
When I came to Congress in 1987, it was Tony Coelho who I
think sensitized those of us in Congress to the needs of people
with disabilities, and I remember one person who he had an
incredible impact on, who was my closest friend, and that is
Congressman Steny Hoyer, who took the leadership in the House
in the passage of the ADA law. So I just really want to thank
Tony for his longstanding work here in moving this country
forward.
We are proud of the progress that we have made in the
United States, and I think the points that have been brought up
here about how we can impact what is happening around the world
are important. I remember Steny Hoyer the year after the ADA
law passed, in his capacity as chairman of the U.S. Helsinki
Commission, took the cause of people with disability
internationally.
And in 1991, through Steny Hoyer's leadership, through the
leadership of the United States, we were able to get the OSCE
to pass a declaration on the rights of people with
disabilities, known as the Moscow document, which is somewhat
aspirational since it points out the needs for us to respect
the rights of people with disabilities in the workplace, in the
Government, accessibility, et cetera.
So I just really want to follow up in one respect to the
comments that both our witnesses have made, and that is this,
that you continuously state that the United States laws are the
strongest and that whereas other countries have expressed their
support for the rights of people with disabilities, they have
not followed up with the type of legislative action and support
that would provide effective changes.
You are correct. Americans have the rights here in America,
but they do travel, and we do first have a responsibility for
international leadership, but also to protect our citizens when
they travel to other countries. By the ratification of this
Convention, can you just perhaps expand a little bit further as
to what position the United States would be in to point to the
laws that we have passed and how they have effectively advanced
the rights of people with disability?
I remember very clearly when these bills were moving
through Congress, we heard all the horror stories that it
couldn't be done, et cetera, et cetera. And now, as we have
seen, we have been able to balance the pragmatic concerns with
the needs of our people with disabilities.
And so, what position are we in if we ratify the Convention
to try to get the international community to take a look at our
laws and use them as an international model since we have
advanced the rights of people with disability in a lot more
effective way than other countries around the world?
Ms. Heumann. Senator, ratification will give us the ability
to participate in various international fora where there is a
focus on the Convention. This will enable us to help develop
the agendas for discussion, to participate in those
discussions, and then to participate in working with other
governments to help them get a better understanding of how our
laws have been developed.
Let me give you kind of a very basic example that many of
us who use wheelchairs experience when we are trying to travel
overseas. We have a law called the Air Carriers Access Act,
which is at this point I think about 20-some years old. It
provides great protections for disabled people in the United
States, and it is one that we, since it was passed so many
years ago, many people just take it for granted.
It means simple things like you have to be able to take
your wheelchair to the door of the plane. And when you arrive,
they have to bring your wheelchair to the door of the plane. If
you need assistance on and off the plane, there should be
something like an aisle chair that should have seatbelts so
that you don't fall.
I was traveling in a country once where I needed to bring
my wheelchair to the door of the plane. I have a specially
designed seat. And the staffer said to me, ``I have worked in
this airport for 18 years. I have never allowed someone to
bring their wheelchair to the door, and you are not going to be
the first person to allow that to happen.''
That type of an example of being able to work with their
governments and allow their governments to understand the law
that we have promulgated, how it has been implemented, how it
has been appropriately enforced, and what it means for disabled
people is very important.
One of the colleagues here today from the State Department
and I have recently been traveling, and we continuously have
difficulty in getting our simple pieces of equipment because in
other countries people accept when someone says, ``We will not
bring it to you,'' that they just won't. And they get off the
plane, sitting on aisle chairs without seatbelts, in chairs
that don't fit them, and putting themselves at great risk.
This is kind of a very simple, basic issue, and I believe
that what we have been able to do over these many decades is go
from simple issues to very complex issues like education of
disabled children, and promulgation of regulations.
Our expertise working with governments and civil society in
a meaningful way will help to improve laws overseas because we
can demonstrate with data. We have done great funding in this
Congress on data. Our data can show the progress that has
resulted because of our good legislation.
Senator Cardin. Thank you very much.
Ms. Hill, do you want to add anything?
Ms. Hill. If I could go, return to the question about the
courts upholding the RUDs non-self-executing? There is a
Supreme Court case that did address that issue and found the
non-self-executing declaration to be dispositive. So that has
gone up through the First Circuit to the Supreme Court and has
been found to be dispositive.
Senator Cardin. And I assume you will get that cite to
Senator Risch.
Ms. Hill. And I will.
Senator Cardin. Mr. Chairman, I would ask unanimous consent
that a letter sent to the committee by the Jewish Disability
Network representing the views of the Anti-Defamation League,
the Association of Jewish Families and Children's Agencies,
B'nai B'rith International, Jewish Council for Public Affairs,
Jewish Federation of Metropolitan Chicago. I wanted to make
sure I got that one into the record for the chairman.
[Laughter.]
The National Council of Jewish Women, the Jewish Federation
of North America, the Union of Reformed Judaism, United
Synagogues of Conservative Judaism, and UJA Federation of New
York, all in support of ratification, that that be made part of
our record.
Senator Durbin. Without objection.
[Editor's note.--The letter mentioned above can be found in
Annex II.]
Senator Durbin. Senator Barrasso.
Senator Barrasso. Thank you, Mr. Chairman.
Ms. Heumann, from the cost standpoint, could you explain a
little bit about the financial obligations associated with
ratifying the Convention? How is the committee funded? How do
those things work out?
Ms. Heumann. The committee is funded through the general
funds of the United Nations. We are not given a separate--the
United States is not paying any additional funding for the
committee.
Senator Barrasso. So along those lines, would the United
States be required under this Convention to provide monetary
support for, say, disability programs to other nations that may
not be able to afford them?
Ms. Heumann. No.
Senator Barrasso. OK. I want to ask you about some private
conduct. This is a question I think Senator Durbin got to.
Would the Convention impose obligations on individuals, private
organizations, or religious groups within the United States?
Ms. Hill. Not beyond the extent to which they are regulated
today.
Senator Barrasso. Ms. Hill, can you describe the amendment
process under the Convention? Can the United States be bound by
amendments that we don't agree with?
Ms. Hill. Do you have a better handle on that?
Ms. Heumann. The answer is ``No.''
Senator Barrasso. OK. And Ms. Hill, can the United States
be sued before an international tribunal or court under the
Convention?
Ms. Hill. There is no international tribunal set up to
enforce this Convention.
Senator Barrasso. OK. Thank you.
Thank you, Mr. Chairman.
Senator Durbin. Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
And thanks to each of you for coming and joining us today.
I wanted to start with you, Ms. Hill. I appreciate the
references you made to federalism in the reservations that the
United States has advocated. Can you talk to me for a minute
about how those reservations are upheld, how they remain
intact, whether or to what extent they are honored, and what
impact they would have on a court's interpretation of the
treaty were it to be ratified?
Ms. Hill. I don't know of courts that have rejected RUDs,
and the most important one is the self-executing declaration,
and that has been upheld. So I don't know of any courts that
have rejected a RUD and then expanded their jurisdiction to be
able to enforce anything contrary to a RUD that was adopted
through this process.
Senator Lee. Harold Koh has been at times critical of what
he sometimes describes as Swiss cheese ratification, where he
says--there was a 2003 Stanford Law Review article in which he
wrote that ratification of multilateral treaties with so many
reservations, understandings, and declarations, that these
conditions substantially limit the U.S. acceptance of these
treaties.
Do you share that concern that we sometimes tread into that
zone and create a Swiss cheese ratification? And if so, are we
approaching that here?
Ms. Hill. I don't believe so. We have recommended three
Reservations, five Understandings, and one Declaration, which I
don't think in any way make this a Swiss cheese approach to the
treaty. That is simply adopting the treaty and identifying the
ways that it applies to our system.
Senator Lee. Some have expressed concerns about Article 7
of the Convention, which I am told is patterned somewhat or
contains language patterned somewhat after corresponding
language in the U.N. Convention on the Rights of the Child. And
this language, according to some of the critics, focuses on the
best interests of the child standard.
That is a familiar standard to us in some respects here in
the United States in that that is a standard that is frequently
employed by courts in making custody determinations in the
context of a divorce. And in those rare cases involving the
invalidation of parental rights with an abusive home
environment, it is sometimes a standard that is used to decide
where the child goes then if the parental rights are dissolved.
But the critics would say that Article 7 of this Convention
would inject the best interests of the child standard into
other contexts, contexts in which parents currently enjoy
certain rights, certain--the right to make certain decisions
unencumbered by the decisions of the State. Can you comment on
those?
Ms. Hill. To the extent that that is the concern, that this
would reach into the private home and the private decisions of
parents about how to raise their children, that would be
protected by the private action reservation. So that would
keep, under the U.N. Disability Convention, anything that might
be read to interfere with the private decisions of parents
about their children would be protected. That private action
would be protected by the private action reservation.
Senator Lee. Meaning that because no one has a private
right of action to enforce the terms of the Convention itself,
that that would take care of this concern?
Ms. Hill. No, no. This would be that we interpret, we
interpret the application of the U.N. Disabilities Convention
to respect the distinctions between what we as a Federal
Government can regulate in terms of private action and what we
cannot. And so, in these cases, the home and family
determinations of parents, unless they reach a level of State
law, are within private action and would not be regulated under
the Convention.
If they do reach a level of State law, and State law has
most jurisdiction over things like neglect and so forth, then
you would get into the federalism reservation that would also
say that State law would continue to apply in the way that it
currently does.
Senator Lee. OK. So the reservation, as you understand it,
particularly the federalism reservation makes sure that we
don't have a creep of Federal law into areas currently covered
by State law----
Ms. Hill. Correct.
Senator Lee [continuing]. Which would include most custody
determinations, most determinations regarding eligibility for
educational programs, and things like that. Is that correct?
Ms. Hill. Correct. Things that are beyond the Congress'
power to regulate now.
Senator Lee. OK. There are some critics who have pointed to
provisions of the IDEA and pointed out that parents have
certain rights under the IDEA and that that aspect of Federal
law would be modified by Article 7 of this Convention. Can you
comment on that?
Ms. Hill. Those are interpreted through our
nondiscrimination Understanding, that those would be read as
nondiscrimination obligations rather than as any affirmative
obligations. Those would not inhibit parents' ability to both
participate in the IEP process and make their positions known,
or to make their decisions to reject special education services
that were being proposed by a school.
Senator Lee. So you would agree that without those
reservations, that might be a change to existing law? It might
be a change to the existing law under the IDEA, but with the
reservations, there is not a change.
Ms. Hill. I actually don't believe. I was accepting for the
purposes of the argument that that would be the case.
Senator Lee. OK.
Ms. Hill. But I actually don't believe that this changes
the basic approach of the IDEA, which already includes the best
interests of the child and already includes the participation
of the child, as appropriate, in the decisionmaking.
Senator Lee. OK. There is a Professor Geraldine Van Bueren,
who apparently assisted in the drafting of the corresponding
language in the Convention on the Rights of the Child, who, in
reference to the corresponding language in the Convention on
the Rights of the Child, said that the best interests standard
provides decision and policymakers with the authority to
substitute their own decision for either the child's or the
parents', providing it is based on considerations of the best
interests of the child.
Do you disagree with Professor Van Bueren?
Ms. Hill. She is talking about the Convention on the Rights
of Children, and I am not an expert in the Convention on the
Rights of Children. But the difference--at least one of the
differences between that Convention and this one--is that this
one has a nondiscrimination provision. So this does not add
laws, add benefits, add requirements regarding individuals with
disabilities that are not equal and the same as those added for
children without disabilities.
So if we had adopted the CRC, then those rights would carry
on to children with disabilities. But not having pursued that,
the rights provided to children with disabilities under this
would be nondiscrimination rights.
Senator Lee. So the different context in which similar
language was used in the CRC gives it a different application
there than it would have here since this is in the context of
nondiscrimination?
Ms. Hill. Correct. And then reemphasized by our
interpretation of all economic, social, and cultural rights as
nondiscrimination rights.
Senator Lee. OK. Thank you.
I see my time has expired.
Senator Durbin. Senator Risch, did you want to make a point
before I recognize Senator Shaheen?
Senator Risch. Please. Actually, I wanted to ask a
question.
Ms. Hill, since 1966, can you tell me how many treaties
that we have had where the language, the non-self-executing
declaration has been included in the treaty?
Ms. Hill. I am not sure I know all of them. The ones that I
referred to in my testimony, including the Convention on Civil
and Political Rights and the Convention against Torture, I
believe are----
Senator Risch. Do you think there is more than two? Is it
possible there is more?
Ms. Hill. Three. I think the racial discrimination one as
well included it.
Senator Risch. And is the language precisely the same,
close to the same in each of these treaties? Is it different?
Is it modified for each treaty, or is there boilerplate
language for this particular provision?
Ms. Hill. It is certainly based on the same concept. I
can't swear that, line by line, every word is the same.
Ms. Heumann. We can get back to you with that.
Senator Risch. Would you, please? And also if you could
check and see if there are other treaties than these three that
have such a provision, I would sincerely appreciate it.
And thank you, Mr. Chairman.
Senator Durbin. Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman.
And thank you all very much to the panelists for being
here. I apologize for missing your testimony.
Ms. Heumann, I think I am pronouncing your name correctly?
Ms. Heumann. Yes.
Senator Shaheen. In your testimony, you stated that
ratification of the treaty would give the United States
legitimacy and a platform from which to push for the adoption
among other countries internationally. Can you talk a little
bit about how foreign countries and foreign governments
currently perceive the fact that the United States has not
ratified the treaty and what our failure to ratify the
Convention has meant on our leadership on issues around
disabilities throughout the world?
Ms. Heumann. Thank you very much for the question.
I think people are perplexed, quite frankly, because this
area is one that the United States has led on for so many
decades. And so, there is a real question from disabled people,
why is the United States abandoning us? That word may not be
used, but it is really something that people are concerned
about.
We have got all this expertise. Why are we not freely
sharing it? Why are we not being able to participate at
relevant tables?
I think governments are also questioning why we are not
more actively participating. We go to various fora, but because
we haven't ratified, we are not able to participate.
So last year, for example, we were going to be asked to
speak on a plenary panel in the U.N. when the Conference of
State Parties convenes, which is the body that gets together
every year to discuss the Convention. But we were not allowed
to participate because we hadn't ratified.
It meant that, in my view, the country that has got the
most experience in really grappling with critical issues on
inclusion of disabled children in education, work in
universities, teacher training, we were not allowed to
participate. These are all very missed opportunities from a
foreign diplomacy perspective.
It is something that the President and the Secretary
obviously feel strongly about that we need to ratify so that
we, in fact, can freely be able to participate and advance the
tremendous work that we have done in the United States in an
incredibly bipartisan way.
And I think this is something that is also very important.
What I am hearing from colleagues of mine who are working in
the field around the world is what they are really struck by is
how governments are so sincerely interested in making changes.
I think the adoption of the treaty in 2006 was an amazing
effort which brought hundreds of disabled people from around
the world from some of the poorest countries, who sat side-by-
side with members of their foreign delegations and for the
first time were really able to explain the kinds of problems
that people are facing.
The United States played an important role in those
discussions.
Concepts like reasonable accommodation, which are in the
Convention, are because of the great efforts of the team of
U.S. people who participated.
So our standing in the world, I think, will be enhanced. We
will more freely be able to demonstrate the great work that we
have done. There will be ranges of opportunities where we can
discuss this. And most importantly, at the diplomatic level, I
think we will really be elevating our knowledge and expertise
to be able to advance and elevate the rights of disabled
people.
Senator Shaheen. I don't know which of you would like to
address this question. But as you all know, there is widespread
support for the Convention from a variety of stakeholders. Over
165 disability organizations and 21 major veterans and military
service organizations have supported ratification.
Can you all talk about why this support has been so
widespread?
Ms. Heumann. I think there are a number of reasons. One of
those is that our laws have enabled disabled people in the
United States to achieve a level of success, certainly not yet
for all disabled people, so that people are aspiring to do
more. They are aspiring to participate in the global scene.
Disabled veterans who wish to get jobs overseas or just to
vacation overseas or veterans who have a family member with a
disability or civilians, they are being thwarted. We see that
with Foreign Service officers who cannot take a position
overseas unless they are separated from their families because
they don't have the same services in those countries as we have
here.
I think people see it as the right thing to do. I think
many people in the United States understand the importance of
being able to participate in the global market. We see it as an
opportunity from a business perspective to be able to sell
products that we have designed in the United States--
wheelchairs, information technology, et cetera. These are all
very critical things.
And I think, quite frankly, you know, you look at the
religious community. We have met with many religious
organizations that are doing work in developing countries that
are very much understanding the benefit of taking what we have
been learning here and are taking it overseas to work in very
small rural communities to be able to help advance the rights
of families and children with disabilities.
Senator Shaheen. And can you elaborate a little bit on the
economic benefits? Because you alluded to that just now and in
your testimony, but can you talk about why there would be real
economic benefits to us as a country in ratifying the treaty?
Ms. Heumann. So I think there are a number of ways to look
at economic benefit. From the U.S. perspective, economic
benefit of our being able to take products that we have
developed and look at markets overseas to sell those products I
think is very important. We also see a growing number of
disabled people, as I have been saying, who wish to work
overseas. So it is an economic impact for them.
We know that disabled people around the world are the
poorest of the poor. We know that education is one of the
critical reasons why people are poor, whether they are disabled
or not. We see that as women become educated, and we should,
therefore, believe that if disabled girls are part of that,
they will also be able to become meaningful players in the
economic market.
Families that can earn their own money are less dependent
on other kinds of supports. Many of the countries that we all
work in, in fact, disabled people have no economic supports
they can get from government. So they are a drag on their
families. Family members who don't have disabilities cannot go
to work because they are staying home taking care of people.
There are so many economic reasons from the U.S.
perspective to not only advance from our perspective in the
United States, but to help other countries learn what we have
done to be able to help people with disabilities get the tools
they need to be able to work.
Senator Shaheen. Thank you.
Thank you, Mr. Chairman.
Senator Durbin. Senator DeMint?
Senator DeMint. Thank you, Mr. Chairman.
I want to thank our witnesses as well. Respecting and
recognizing the rights of disabled persons is an important
issue, and the goals of this Convention are admirable.
But I have concerns about how we achieve those goals. The
idea that the United States must join the U.N. Convention to
give ourselves more legitimacy in the world given our extensive
work, which has been pointed out by our witnesses, to protect
the rights of disabled is demeaning to those who have succeeded
in working for the high standards we have in the United States.
Joining this Convention will not enhance the rights of the
disabled in the United States. There is also little evidence to
suggest that joining the Convention will coerce other countries
to improve their protection of disabled people. We can see this
through examples of other U.N. Conventions.
China routinely flouts the Law of the Sea Convention in
South China Sea. Adherence to the Convention on the Elimination
of All Forms of Discrimination against Women, such as Saudi
Arabia, shows slow improvement in guaranteeing basic rights for
women. Furthermore, the Department of State, USAID, and the
Department of Justice are already resources for countries that
are seeking help in improving the treatment of disabled people.
More worrisome, convention committees have a track record
of overstepping their authority and advocating positions that
are contrary to American laws and values. As one of our
witnesses will point out in his testimony, a 2008 report from
the Committee on the Elimination of Racial Discrimination
called on the United States to, among other things, place a
moratorium on the death penalty, restore voting rights to
convicted felons, and ensure that enemy combatants at
Guantanamo Bay have the right to judicial review.
The committee that oversees the Convention on the
Elimination of All Forms of Discrimination against Women, of
which the United States is not a party, has a long record of
promoting abortion, the decriminalization of prostitution,
gender quotas, and reducing parental authority. These
committees have acted far beyond their authority in their
recommendations and by doing so promote polarization and
mistrust among the member nations.
Portions of this Convention also concern reproductive
health and the rights of children. These issues should be
addressed by individual U.S. States and local governments. We
should never cede the authority of these matters to an
international organization.
Our Founding Fathers cautioned us long ago against foreign
entanglements. Many of us know President Washington's warning
in his farewell address where he stated, ``The great rule of
conduct for us in regard to foreign nations is in extending our
commercial relations to have with them as little political
connection as possible. So far as we have already formed
engagements, let them be fulfilled with perfect good faith.
Here let us stop.''
In Thomas Jefferson's inaugural speech, the author of the
Declaration of Independence, stated, ``Peace, commerce, and
honest friendships with all nations, entangling alliances with
none.''
I believe that we have distanced ourselves from the words
of our Founders. Despite the best intentions of the
international agreements we find ourselves considering, these
warnings should resonate today as loud as they did at the
genesis of our country.
Before I get to my questions, I have some concerns with the
timing and process for vetting this treaty that I would like to
address. This Convention was submitted to the Senate less than
2 months ago, and Senators were only informed of the chairman's
desire for consideration before the July 4th recess.
Senators on this committee have already been asked to
consider and debate a highly complicated and controversial
treaty, the Convention on the Law of the Sea, this summer, and
we are continuing to monitor and deal with several issues of
urgency in the Middle East and elsewhere.
I appreciate the chairman's willingness to hold this
hearing and invite witnesses representing a variety of
opinions. But I caution against expediting this Convention and
ask that Senators are allowed to have ample time and
opportunity to review and discuss its merits.
I am going to read directly from Article 25, Section 8 of
the Convention. It says that, ``State parties shall provide
persons with disabilities with the same range, quality, and
other standards of free or affordable health care and programs
as provided to other persons, including the area of sexual and
reproductive health and population-based public health.''
I understand that when the U.N. General Assembly adopted
final text in 2006, the United States issued a statement
stating that reproductive health did not include abortion.
However, this administration has a different understanding of
reproductive health than the previous one. Secretary Clinton
stated in 2009 that we think or, ``We happen to think that
family planning is an important part of women's health, and
reproductive health includes access to abortion that I believe
should be safe, legal, and rare.''
I would just like to ask the panel how does the United
States define reproductive health in this Convention, and does
this administration stand by Secretary Clinton's statement
about reproductive health when it comes to this Convention?
I would also just like you to reflect on why it is that the
United States, who has really set the gold standard for how we
deal with disabilities, why should we submit ourselves to other
nations who have been far less effective and committed to this
cause?
We can certainly be the model. We can be the example. We
can be the light on the hill for the whole world. We can
provide resources. But why should we present ourselves to the
study of those who would scrutinize our work under criteria
that, clearly, they overstep on all of the areas we have been
involved with the United Nations? Why should we submit instead
of lead?
So I will go back to my first question of reproductive
health and then ask any just comments you might have on why the
United States should submit rather than lead.
Ms. Hill. Sure. Thank you for the question.
First of all, the Convention doesn't discuss abortion.
And to the extent that it discusses health services and
reproductive health services, those are nondiscrimination
requirements. So they neither obligate the United States to
increase abortion availability or other reproductive health
service availability.
Senator DeMint. So you disagree with Secretary Clinton that
reproductive health includes abortion?
Ms. Hill. No, I don't disagree with that, with the
interpretation that reproductive health could include abortion.
But the reproductive health provisions of this Convention are
nondiscrimination requirements.
So if reproductive health services are provided to people
in general, all the reproductive health provisions say is that
they also have to be made available to people with
disabilities. They do not create new reproductive health
obligations. They do not create new obligations to fund
abortion or anything else that might be considered reproductive
health.
Senator DeMint. And do you think that our country
submitting ourselves to the scrutiny and criticism of this
international body made up of countries who are far less
effective as we are is going to improve our treatment of the
disabled in this country?
Ms. Hill. Quite simply, we don't submit ourselves to an
international body. The international body has a limited set of
powers laid out in the articles that address those powers. And
they do not have the power to bind us. We do not have any
obligation to follow their recommendations.
We report to them periodically and not that frequently, and
they may give suggestions and recommendations, which we do not
have to adopt in any way.
Senator DeMint. And neither does any other country.
Ms. Hill. And neither does any other country. And so, for
us, the goal of our participation is to be able to influence by
being at the table, other countries incorporation of what we
believe are the gold standards that we have adopted so that our
people can be consistently accommodated and consistently
guaranteed access overseas.
Ms. Heumann. And Senator, I would like to also say that
what we have seen in this country in relationship to the
advancement of the rights of disabled people being done in a
consistent, nonpartisan way is what we are seeing around the
world. So I think in some way this treaty may be different than
some other treaties.
Because, as I have stated throughout my discussions today,
we are seeing governments with various political persuasions,
who frequently we have difficulty speaking with, being willing
to talk with the State Department and others, giving us
opportunities because we are discussing an issue that affects
so many people, regardless of their economic background and
regardless of their political background.
So we have seen this in numerous countries.
Senator DeMint. Well, I agree. I agree. Clearly, good
things are happening. The United States has made tremendous
amounts of progress. The world is copying us in a lot of
respects. As you said, the world is talking to our State
Department.
There is no other table that we need a seat at than the one
we already have, which is a seat at the top where people come
for the gold standard. And it seems like you are basically
contradicting yourself, saying that we are making huge progress
here and around the world. We are interacting with the rest of
the world. They are copying our gold standard, but somehow we
need to submit ourselves to this.
And we are submitting to really a multimillion dollar study
every 4 years, where we will get the basically criticism--and
we have seen it from other conventions--of what we are doing,
instead of what we are doing now, which is setting the example
and creating a process of continuous improvement that benefits
Americans with disabilities, as well as people all over the
world.
Ms. Heumann. I believe, Senator, that our failure to
ratify, in fact, does not give us the prominence that we should
have. The United States has done such fantastic work in this
area. I believe not ratifying, now that 116 countries have
ratified and we know that more countries will be ratifying, we
are being denied opportunities at international fora where
disabled people and governments are sitting down to have
genuine discussions about how to move this issue forward.
I don't think we have anything to hide. Our laws are good.
We have good ways of monitoring. We find problems. We correct
the problems. We can afford to hear from others where they
believe we are not doing something the right way.
We have no obligation under this treaty to take
recommendations that we think are inappropriate. But there may
be recommendations that come forward that, in fact, may be
fine, that we can learn from, that we can decide whether or not
we want to utilize.
I think in the area of disability, our expertise will be
enabled to be distributed in a more--a more effective way if,
in fact, we take the good work that we have done with pride and
say the U.S. is willing to sit down and be at the table through
ratification.
It will give us an opportunity also to be able to speak to
governments more critically when, in fact, we believe, they are
not appropriately implementing their laws, when they are not
doing budgeting in their own budgets to ensure that disability
be taken into consideration, when they are not, in fact,
looking at how they can educate disabled children when we know
they may be able to do more than they are doing.
It gives us a different opportunity and one which I really
have repeatedly said, our Congresses over many, many years have
continued to reinforce the work that we have done. We use that
issue when we travel overseas. We talk about the bipartisan
work that our Congress is able to achieve, coming together on
this issue of disability.
So I just want to say we don't believe we are submitting.
We believe it would be a very positive effort, and it would be
one which really would, I think, allow benefits both for
Americans here in the United States and would advance the
rights of disabled people around the world.
Senator DeMint. Well, I admire your work and your goals,
and I have the same goals. I just think the history, if we look
at what the United Nations has done with an incredible amount
of U.S. money, I think there is reason to question that they
could actually improve the process we have already begun. But
we clearly disagree on that, but we agree on your goals.
Thank you very much for being here.
Mr. Chairman, thank you for the courtesy of some extra
time.
The Chairman [presiding]. I am delighted to use the extra
time. I think it is important to be able to vet all of this as
adequately as possible.
I would just say to the Senator if he could convince me
that an extra 3 weeks or a month was going to open his mind to
supporting the treaty, I might consider it.
[Laughter.]
The Chairman. I might also add that in all the years I have
been here, never has this Congress been doing as little as it
is doing today. And I have ceased to be sympathetic after 6
months on the super committee of trying to reach an agreement
in a nonnegotiating atmosphere. I am not very sympathetic to
the notion that we all need a lot more time to do things.
Only the United States Congress takes the kind of time it
does to ``consider things.'' And I think the American public
and a lot of people expect us to do our work and do it faster,
do it better. And I hope we are going to do that.
Senator Coons. I have some questions, but Senator Coons was
here. And then I will come back to him.
Senator Coons. Thank you, Chairman Kerry. And thank you for
convening this hearing.
I, with you, believe that the American people expect us to
continue our work and to be diligent and thorough and engaged
in considering important opportunities for us to expand
American leadership at home and abroad, and particularly on an
important and bipartisan issue of civil rights and civil
liberties such as the rights of persons with disabilities.
And I want to thank Senator Durbin for his leadership on
this particular Convention and topic and Senators McCain and
Harkin, who testified earlier. I was honored to join them, as
well as Senators Udall, Barrasso, and Moran, in advocating that
the committee take up the consideration of ratification of this
treaty.
As Senators McCain and Harkin emphasized in their
testimony, bipartisanship has long been the hallmark of
American leadership on protecting the rights of citizens with
disabilities. And today, I believe we need to continue that
proud tradition and extend that leadership globally with the
ratification of the CRPD.
I was particularly moved by Senator McCain's reading of
Senator Dole's letter and think it is important for us to
recognize the very real positive opportunities embedded in
ratification. So if I might first, Ms. Heumann, what would be
the impact of ratification on our veteran community?
I was struck at just how broad and nearly unanimous amongst
the veterans community support was for ratification. How would
ratification specifically help promote access for our wounded
warriors traveling overseas?
Ms. Heumann. First, it would allow our wounded warriors to
be a part of discussions that may take place overseas. They may
be part of businesses that are going overseas to look at issues
of implementation of accessibility standards, possibly selling
products like ramps and other kinds of technology--wheelchairs,
et cetera--that could be used by veterans overseas, non-U.S.
veterans overseas, as well as by others.
I think veterans play a very critical role in those efforts
because a disabled veteran who is then wanting to go out and
work and actively participate in society demonstrates a very
strong message that in the United States, regardless of
disability, we believe people are able to continue with their
life, make advancements, and make major contributions to
society. And veterans really stand in a unique position in that
regard.
So that is one thing that I would say about veterans.
Veterans and civilians also are wishing to study overseas. The
ability to be able to take our knowledge and experience about
what we have done with universities here, great disabled
student services offices that have removed barriers that over
the last 40 years have resulted in people with psychiatric
disabilities, physical disabilities, intellectual disabilities,
blindness, deafness, et cetera, who are now attending community
colleges and universities.
Where in many other countries, I mean, I meet--I visit
countries, and I am astonished by some of the barriers. Blind
people in certain countries not being able to study in the
field of technology. Nobody knows why, but they are not allowed
to study in the field of technology.
A disabled veteran who happens to be blind, who may, in
fact, have studied, being able to go overseas and being able to
show what our universities have been able to do for them and
how they are now in a position of leadership. Those are all
very important areas that we can lead on.
Senator Coons. You mentioned in your previous testimony
that upward of 90 percent of disabled children in the
developing world do not attend school. What might ratification
do to strengthen the efforts of the U.S. Government overseas
either through multilateral institutions or directly or through
bilateral effort or in partnership with NGOs, how might
ratification help strengthen our current efforts to improve the
opportunities for disabled children to fully participate in
education overseas?
Ms. Heumann. It allows us to use our expertise, both for
agencies like the Department of Education and then
international organizations that are doing work overseas in the
area of education, to be more inclusive of taking the knowledge
that we have learned on how to educate disabled children
effectively. It allows USAID and the State Department to do
more than just be looked at as grantmaking agencies, but really
also to be able to sit down and use our expertise.
When I was recently in Ethiopia, we had some very
productive discussions with the Ministry of Education that is
really seriously grappling with many of the issues about how to
educate disabled children, both in urban and rural areas where
they have additional challenges, and some fantastic staff who
have very good experience. But they really want to know the
nuts and bolts.
And we have people in the United States, for example, from
universities who are traveling overseas. In some cases, courses
are being set up that they are teaching. They are working with
universities on some very pragmatic issues that we have learned
about.
For example, universities, when they set up schools of
education, including that issue of education for disabled
children be a part of the general training for teachers in
general, that they can get basic training on how to work with
children who have different types of disabilities. I think
these are some of the very basic mechanisms that we can utilize
to advance the knowledge and expertise that we have here and to
share it with other countries overseas.
Senator Coons. And if I might, last, what sort of--do you
have any quantification of the sort of market opportunities
there might be for the sale of technologies, of equipment and
materials? If we are one of the world leaders in helping with
adaptive technologies and helping with building modifications
and retrofits, with supportive services, what sorts of market
opportunities are there that we might be missing out on because
we are simply observers rather than advocates, supporters,
ratifiers of this important Convention?
Ms. Heumann. I believe that there can be significant
markets that can be developed and are developed. In areas like
information technology, we are seeing--I read in one of the
reports that had come in the other day about how a company, in
fact, is now selling cell phones in Africa that will be
accessible for blind people.
These are things that are happening whether or not U.S.
companies--some of the U.S. companies are obviously taking
advantage of this now. But I think one of the big issues,
especially in business, is that as people see there is a
growing market, business people understand they want to
gravitate to that market.
And one of the issues with the CRPD and 116 countries
having ratified is that disabled people in those countries are
also demanding more. Our ability to demonstrate and show the
products that we can sell to them and, in many cases, also go
into those countries and help learn how to make their own
products. So there are organizations, for example, in this
country, that have been working in Africa and Asia and others,
going in and helping people learn how to make wheelchairs that
can be maintained very simply, training people so that bicycle
makers can also repair wheelchairs.
There are many different ways that we can look at the
business market, but I think we have great opportunities. And
we have great creativity in the business community.
Senator Coons. Well, thank you.
I think this is an opportunity for us to show values
leadership, but also an opportunity for us to explore and
develop both opportunities for education in the developing
world, opportunities for our own veterans to travel and to
represent us, and opportunities for us to fully participate in
the expansion of opportunities for people with disabilities
worldwide.
Thank you for your testimony today.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Coons. And thank
you also for your willingness to chair a little bit as we
balance schedules here.
Let me just ask a couple of questions. We have two other
panels, and everybody is being very patient, and each of the
panels are extraordinarily important. So we will wrap up here
momentarily and seamlessly transition right away into the
second panel.
I just want to ask you very quickly. I want to come back to
Senator DeMint's question a moment ago. I just want to clarify
for the record that Article 25 of the Convention could not be
more clear about the requirements and powers that parties have
with respect to this question of nondiscrimination abortion or
obligation.
And it is with respect to health issues, there is only a
nondiscrimination obligation. There is no requirement to do
something extra or to not do something.
Ms. Heumann. Correct.
The Chairman. And that is correct, is it not?
Ms. Heumann. Yes.
The Chairman. I just want to make that crystal clear on the
record here that Article 25 could not be more clear with
respect to that.
Second, the issue has been asked, and appropriately, by a
number of Senators why--so why do we need it? What are we
really going to get? I don't think that is clear enough for the
record yet, and I want you to really try to bear down on it a
little bit.
If we join the Convention, some people say we can get this
progress no matter what, and the United States will continue to
lead, et cetera. So I really want you to try to give us some
examples, tell us why we need to join the multilateral
Convention, and show us perhaps some specific examples of where
our absence or where our presence on the disabilities committee
would actually improve the performance. Could you do that,
please?
Ms. Heumann. Sure. Our failure thus far to ratify means
that at the upcoming meeting in September, where there will be
a new slate of people running for office, we will not be able
to vote. That means that we will really not be able to also
affect the votes of other individuals.
I think it is important for us at this particular meeting
where these discussions will be going on, that we are able to
critically look at those people who will be on the committee.
Look for the best people. Not only be able to vote for the best
people, but also to be able to help influence those people who
will be serving on the committee.
The committee, we believe, is an important one. It needs to
be a knowledgeable one because it is going to be giving advice
and recommendations to governments around the world. So that is
one critical issue.
I think other opportunities where we can be able to discuss
things like accessible transportation, accessible standards in
general. Elections, a very important issue. Our ability to
really help participate in discussions, to be able to advance
work in the area of elections is also important.
The Chairman. But somebody might sit there and say, well,
you know, that world is going to go on anyway. They can see
what we have done. What do we really gain by being part of
that?
Ms. Hill. I would suggest that there are going to be
discussions at the states parties meetings where we cannot
participate as states parties where individual countries are
deciding what standards and what policies they should be using
going forward.
By not ratifying, we are getting a cloud of questions.
Is there really something wrong with your law that keeps
you from not ratifying? Are you really not committed to this
that keeps you from not ratifying?
That may make countries turn to other countries who have
ratified to say, well, maybe your approach is actually better.
And in those cases, it is very important that our approaches
are in the mix.
So, for example, a veteran comes home with an injury and
receives his or her rehabilitation here and learns how to use a
wheelchair in the situations that we set up here--what a 5-foot
turning radius looks like, a 36-inch ramp, a ramp with a
certain slope--and is prepared to deal with those things. And
then will be expected to go to other countries, and they may
have adopted, because of our absence from the table, other
standards----
The Chairman. So the bottom line is we may not be
protecting our veterans and our people with disabilities rights
as effectively and significantly as we would want to.
Ms. Hill. That is correct.
The Chairman. Is that correct?
Ms. Hill. That is correct.
Ms. Heumann. Absolutely. That is correct.
The Chairman. I would assume also that we are not
necessarily finding best practices put into place because we
have been dealing with this for longer, and we are not at the
table with the kind of credibility that allows us to be able to
affect an outcome that could be either less costly, more
effective, or a number of other positive benefits.
Ms. Heumann. And it also, I think, denies us opportunities
to learn about new ways that we may be working with things like
development of accessibility regulations that other governments
may need to use in places like rural communities.
The Chairman. Now with respect to the federalism
reservation that you are proposing, Ms. Hill, I think this has
been touched on a little bit. But again, I think it is critical
to clarify, and I want the record to be crystal clear on it.
States will not be required to change their laws in any way
in order to comply with the Convention. Is that accurate?
Ms. Hill. States are not covered by the Convention. The
Federal Government is covered by the Convention. And to the
extent that the Federal Government does not have authority
under our Federal system to regulate States or to the extent
that particular issues are left to the States, those States
retain the ability to maintain those issues without changing
our Federal balance between Federal and State power.
The Chairman. So the Convention would not give the Federal
Government any new authority to somehow force a State
government to change their law or regulation with respect to
disabled?
Ms. Hill. That is correct.
The Chairman. And would joining the Convention in any way
shift the balance of power between the Federal Government and
the States----
Ms. Hill. No.
The Chairman [continuing]. With regard to any disabilities
issues?
Ms. Hill. No.
The Chairman. Are there any further questions of this
panel?
Senator DeMint. Mr. Chairman.
The Chairman. Senator DeMint.
Senator DeMint. Just a final comment. Again, I appreciate
the questions. I appreciate the panel. But I think, as we often
do up here, we are confusing our goals with the means to those
goals.
There is no reason that we can't join with other countries
and organizations around the world to develop best practices
and share information on disabilities. But a treaty has a high
standard in a three-quarters vote in the Senate for a very
particular reason. It is something that goes beyond voluntary
cooperation.
And while we are saying this is a treaty with no authority,
can't force us to do anything. In that case, it doesn't need to
be a treaty. It needs to be an association, an organization, a
working group that gets together.
We can accomplish these goals without another entanglement
in a sense that involves some standardization, which I found in
my work in the private sector, when you centralize control, you
standardize certain quality aspects, you generally limit long-
term continuous improvement.
So I don't deny that the goals are good. The cooperation is
good. The best practice is good. But the centralization of
control here, even though we are saying there is no authority
behind it, I think could very well limit our ability to
continuously improve a process that the more I listen to the
witnesses, the more I hear it is already happening.
That the commercial aspect of this is getting involved as
demand around the world improves. Now with the Internet and
people able to find out about these things, it is likely to
move ahead. But a treaty like this is more likely to
standardize certain technologies and protocols that are likely
to limit the innovation and improvement in the future.
That has been my experience not just with the United
Nations, but every effort by major large groups of centralized
control when really the power is going to come from the bottom
up.
Thank you.
The Chairman. Well, with all due respect, Senator, the
power is coming from the bottom up, and it is not centralizing
control. It is, in fact, control lies still within each country
that applies the law. It is applying a broader standard. And we
have applied those broader standards in any number of ways.
With all due respect, when the Senator says we deny long-
term improvement when you standardize, every experience of the
Voting Rights Act, the Civil Rights Act, of the expansion of
rights for people in this country, and the ADA itself, I mean,
you can look at the examples of the numbers of people with
disabilities who are in the workforce today who are educated
and teaching and doing things productively who never would have
been, and they are doing so under a standardized aspiration, if
you will.
And the aspiration is equality of opportunity, which is at
the core of what this country is all about. So I would just
deeply disagree with the Senator's conclusion with respect to
what is being sought here. Not one power of the United States
is given up. Not one power of the United States is given up,
and in fact, to some degree, we wind up handicapping ourselves
by not being party because other folks will set other kinds of
standards and other things which we may not have met or may not
have agreed to or could have affected.
I think Attorney General Thornburgh and others who have had
long experience with this can testify. I am not here to
testify, but I do think that since the Senator didn't ask a
question and made a statement, I wanted to equally make a
statement in disagreement with that.
And I would just ask you both, as you sat there and
listened to the Senator, I mean, he is basically saying we can
do this without it. I mean, that is the bottom line. Can we do
this without it? Can we be as effective? Can we achieve our
goal without this?
Ms. Heumann. I think we have repeatedly stated this morning
that we don't believe that is true. I think we have tried to
lay out this morning the arguments of why it is critically
important that we be at the multiple fora that are available to
us.
But most importantly, I think it is not appropriate to look
at the CRPD as anything which is centralized because as you
have said, Senator, the work that is going to be done to make
changes in the lives of disabled people is done at the country
level. It is done at the village level. It is done at the level
where people are living.
Our ultimate work will be successful when we have been
able, working with the CRPD and the bilateral and
multilaterals, to make the significant changes. That will take
many, many years. This is when we will see opportunities that
will be afforded to many people.
We know that in many of the countries we are dealing in,
these are not simple fixes. But our ability to share our
technical knowledge is critically important and cannot be done
in as meaningful a way when we are not ratified.
The Chairman. And I might remind folks, in the 1980s when I
first came here, I can remember there were still buildings
where people with disabilities couldn't punch an elevator
button, couldn't get to a second floor. Couldn't access a
telephone. Couldn't do fundamental kinds of things.
And the reason they can do those things today is because we
set an aspirational standard, and people sought to achieve it.
So I would urge Senators to look at this very, very carefully.
And it is not complicated. It is not hard to read it. It is
not that big, long, and complicated a thing. And I urge
Senators to look at the de minimis, de minimis, the nonexistent
give-up of any State of any rights, of any current capacity in
our country. And that is why I said in the outset in my opening
comments that I only see the upside. But that is for others to
determine each for themselves.
I want to thank you on this panel very, very much. We
really appreciate your testimony. We will leave the record open
for a week for the submission of questions in writing and
really appreciate you being here today.
The Chairman. If I could ask everybody to sit quietly and
the second panel will just come up and immediately take their
places? We would like to begin their testimony right away, if
we can.
And we have still a third panel, too. So we are going to
continue right through, folks, and we are not going to truncate
anybody. Oh, it is? So we have everybody consolidated on the
one panel, which is great.
Attorney General, if you would? Thank you.
So on this panel, we have the Honorable--who do we have
here? The Honorable Richard Thornburgh, former Attorney General
of the United States, who will lead off. Mr. John Wodatch, the
former Chief of the Disability Rights Section, Civil Rights.
Mr. Steven Groves of the Heritage Foundation and Michael Farris
of Patrick Henry College and Mr. John Lancaster, first
lieutenant in the United States Marine Corps, retired.
So, General, would you lead off, please? Do you mind?
We are delighted to welcome you back here.
Thank you for your patience and thanks for your willingness
to come and testify. And thank you also for your many hats you
have worn in public service. We greatly appreciate your
presence.
STATEMENT OF HON. RICHARD THORNBURGH, FORMER ATTORNEY GENERAL
OF THE UNITED STATES, OF COUNSEL, K&L GATES, LLP, WASHINGTON,
DC
Mr. Thornburgh. Good morning to you all.
Chairman Kerry, Ranking Member Lugar, members of the
committee, as a veteran of almost 50 years in the disability
rights movement and perhaps more importantly as a proud parent
of a son with extreme intellectual and physical disabilities
who has become in this great society of ours a contributing
member, I am delighted to be here this morning to testify in
favor of the ratification of the Convention on the Rights of
Persons with Disabilities.
This is an important component of the worldwide effort to
advance disability rights. Ratification by the United States
Senate would mark a major step forward in the effort to end
discrimination and to promote the rights of as many as 1
billion men, women, and children with disabilities around the
world who seek vindication of their preeminent human rights in
an ever-challenging world.
As you have heard, a total of 153 countries, including the
United States, have signed the Convention, and 116 have
ratified its terms. We literally stand today at the very cusp
of a new era of worldwide recognition of disability rights. A
major leap forward in this effort would be accomplished by
timely U.S. Senate ratification of this Convention.
It is obvious that the world community has chosen to take
an important and long overdue step toward bringing people with
disabilities all over the world into the mainstream of the
human rights movement by adopting this Convention. I must
applaud the disability community for its tireless efforts in
what must have seemed at times to be an uphill battle for
international recognition of these important rights.
The Convention represents important principles that as
Americans we hold dear--basic recognition and equal protection
of every person under the law, nondiscrimination, the
fundamental importance of independent living, and the right to
make basic choices about our lives. We pioneered these
principles under American law through passage of the Americans
with Disabilities Act in 1990.
We in the United States are demonstrating daily that people
with disabilities can participate fully in our democracy. We
are demonstrating that society as a whole is richer and better
off when people with disabilities are included in every aspect
of our lives.
It is my hope and expectation that the United States will
assume an equally important leadership role in helping to
promote these basic principles worldwide by the ratification of
this Convention.
Over 20 years ago while serving as Attorney General, I
testified before House and Senate committees of this Congress
in support of the ADA. During those hearings, I acknowledged
that no piece of legislation could alone change the
longstanding misperceptions that many people have about
disability, misperceptions based largely on stereotype,
ignorance, and fear of what is different.
Any reshaping of attitudes would have to be the gradual
result not of words or ideas in the laws, but of bringing
people with disabilities from the margins of society into the
mainstream of American life. In our schools, in our workplaces,
on buses and trains, in our courthouses, restaurants, theaters,
and congregations where they not only have an absolute right to
be, but where we have an obligation as fellow human beings to
welcome them as equals.
In the years following 1990, we have made remarkable
progress not only celebrated here at home, but recognized
abroad. Because of our adoption of the ADA and other disability
rights legislation, the United States is viewed internationally
as a pioneering role model for disability rights.
Despite progress already made, disability as a global issue
remains near the bottom of the list in many governments when it
comes to setting their priorities. People with disabilities
remain among the poorest, least education, the most abused and
excluded people on earth. We must recognize that the challenges
we face are intimately linked with the very circumstances of
economic, social, and political marginalization that affect
people with disabilities around the world.
It is important to note that ratification of the Convention
will require no new domestic legislation and will impose no new
cost upon U.S. taxpayers. As done in our own ADA, the
Convention simply ensures nondiscrimination on the basis of
disability, guaranteeing that persons with disabilities enjoy
the same rights as other persons.
Some said that because of America's comprehensive domestic
protections a treaty on disability would have no relevance in
our own country. But let us hold on a minute. We are, indeed,
at this time the most progressive country in the world when it
comes to the domestic protection of disability rights.
The universality of rights and fundamental freedoms as
expressed in our own Declaration of Independence is the
foundation on which our entire society is based. Respect for
human rights is also a stated principle of our foreign policy,
precisely because we recognize that stability, security, and
economic opportunity in any society presupposes social order
based on respect for the rights of its citizens.
Given this history and these values, it would seem natural
for the United States to assume a leading role, not a passive
one, in the effort to recognize and enforce an international
treaty of this kind. As you have heard, misgivings expressed by
critics of the Convention have already been addressed in
reservations, understandings, and declarations contained in the
package submitted by the administration.
Ratification of the Disability Rights Convention is an
opportunity for us to export to the world the very best we have
to offer. This is a chance to use our rich national experience
in disability rights, which has gained us the respect of the
world community, to extend the principles embodied in the ADA
to people with disabilities worldwide who today have no
domestic protection.
This is worthy of our leadership. We have everything to
gain and nothing to lose by playing the role the world expects
of us. We must ratify this Convention so that we can fulfill
that role.
Thank you for the opportunity to be with you this morning.
[The prepared statement of Mr. Thornburgh follows:]
Prepared Statement of Richard Thornburgh
It is a distinct pleasure for to me to testify in favor of the
ratification of the Convention on the Rights of Persons with
Disabilities (the Convention or CRPD) as an important component of the
worldwide effort to advance disability rights. Ratification by this
body would mark a major step forward in the effort to end
discrimination and to promote the rights of as many as 1 billion men,
women, and children with disabilities around the world who seek
vindication of their preeminent human rights in an ever-challenging
world.
To date, as I last looked, a total of 153 countries (including the
United States) have signed the Convention and 116 have ratified its
terms. We literally stand today at the very cusp of a new era of
worldwide recognition of disability rights. A major leap forward in
this effort would be accomplished by timely U.S. Senate ratification of
the Convention.
i.
The road to this point has been a lengthy one and I think it may be
useful to review how we have gotten to where we are as a means of
aiding the process of further progress. In another context, a great
American jurist, Supreme Court Justice Oliver Wendell Holmes, Jr., once
observed, ``A page of history is worth a volume of logic,'' and in this
movement as well I suggest that some history is an appropriate starting
point.
As many of you may know, I have been involved in the disability
movement for many years. I was a founding director of the National
Organization on Disability back in 1982 and later served as Vice
Chairman of its international arm, the World Committee on Disability. I
am also the father of a man with intellectual and physical disability--
my son, Peter, who was seriously brain-injured at the age of 4 months
in a 1960 automobile accident which tragically took the life of his
mother, my first wife.
As Governor of Pennsylvania and Attorney General of the United
States, I have had the privilege to work in official capacities for the
inclusion of people with disabilities in all aspects of life. Indeed,
it was my special privilege to serve as the point person for the
administration of President George H.W. Bush in the bipartisan effort
to secure the passage of the Americans with Disabilities Act (ADA) in
1990. This work has become a bit of a family affair, as my present
wife, Ginny, whom I married in 1963, founded the Religion and
Disability Program of the National Organization on Disability, designed
to insure spiritual and religious access to persons with physical,
mental, and intellectual disability. She is now the Director of the
Interfaith Initiative at the American Association of People with
Disabilities coordinating efforts by leaders of all faiths to advance
the cause of disability rights. In her responsibility as Convener of
the Interfaith Disability Advocacy Coalition (IDAC), she enlisted 26
religious or religiously affiliated organizations to send a letter of
support for the Convention to members of this committee. We have thus
had the great privilege of merging our personal and career objectives
in this worthy cause.
It is obvious that the world community has taken an important--and
long overdue--step toward bringing people with disabilities all over
the world into the mainstream of the human rights movement by adopting
this Convention. I must applaud the disability community for its
tireless efforts in what must have seemed at times to be an uphill
battle for international recognition of this important principle.
I know firsthand from my service as an Under Secretary General at
the United Nations in the immediate post-cold-war era of the long
struggle to obtain passage of this Convention. The effort had its
genesis in the 1981 Year of Disabled Persons, followed by the Decade of
Disabled Persons and the promulgation of the World Programme of Action
Concerning Disabled Persons, all providing focal points for efforts to
internationalize concerns about disability rights. I particularly
recall attending the historic gathering in Montreal in October 1992 of
the very first International Conference of Ministers Responsible for
the Status of Persons With Disabilities where 73 leaders of governments
throughout the world met for the first time to exchange ideas and
fashion strategies which ultimately led to the adoption of the
Convention.
The Convention represents important principles that as Americans we
hold dear--basic recognition and equal protection of every person under
the law, nondiscrimination, the fundamental importance of independent
living, and the right to make basic choices about our lives. We
pioneered these basic principles under American law through passage of
the ADA. We in the United States are demonstrating that people with
disabilities can participate fully in our democracy. We are
demonstrating that society, as a whole, is richer and better off when
people with disabilities are included fully in every aspect of life. It
is my hope and expectation that the United States will assume an
equally important leadership role in helping to promote these basic
principles worldwide by the ratification of this Convention.
Over 20 years ago, while serving as U.S. Attorney General, I
testified before House and Senate committees of the U.S. Congress in
support of the ADA. During those hearings I acknowledged that no piece
of legislation could alone change the longstanding misperceptions that
many people have about disability--misperceptions based largely on
stereotype, ignorance, and fear of what is different. Any reshaping of
attitudes would have to be the gradual result not of the words or ideas
in the laws, but of bringing people with disabilities from the margins
of society into the mainstream of American life--in our schools and
workplaces, on busses and trains, and in our courthouses, restaurants,
theaters and congregations--where they not only have an absolute right
to be but where we have an obligation as fellow human beings to welcome
them as equals.
The effort to secure passage of the ADA was difficult. Those of us
who wanted to see it happen were given countless reasons why it
couldn't be done. We were told that the climate in Congress wasn't
right, it would be too expensive, too complicated, ineffective,
impossible to enforce--even that the country in general just wasn't
ready for it. So we discussed, debated, argued, researched, analyzed,
negotiated, pleaded, convinced and, ultimately, drafted and passed the
most progressive disability rights legislation the world had ever seen.
This legislation, with its innovative concepts such as the need for
``reasonable accommodation,'' is changing America. It has truly made us
more representative, more democratic, and more empowering by ending the
unchecked exclusion of 54 million Americans from our daily lives.
Of course we still have a long way to go in our own country. The
ADA isn't perfect and people with disabilities in America continue to
face serious challenges. Court decisions have sometimes hindered the
full implementation of the ADA and required legislative responses such
as the 2008 ADA Amendments Act. Still, in the years following 1990,
we've made remarkable progress that is not only celebrated here at home
but also recognized abroad. Because of our adoption of the ADA and
other disability rights legislation, the United States is viewed
internationally as a pioneering role model for disability rights.
Disability activists from other countries have taken the ADA to their
governments and said, ``This is how it should be done. We need to do
this here in our country.'' And governments around the world have
responded. As one who worked hard to gain protection of these rights in
the United States, I am very proud to see how these basic principles
are now on the way to being established as a part of international law
through the adoption of the CRPD. As we overcame so many barriers to
the enactment and implementation of the ADA, I am confident that we can
be part of an even greater coalition to bring about worldwide support
for this Convention as well.
Despite progress already made, disability as a global issue remains
near the bottom of the list of priorities in many governments and
societies. People with disabilities remain among the poorest, least
educated, and most abused and excluded people on earth. We must
recognize that the challenges we face are intimately linked with the
very circumstances of economic, social, and political marginalization
that affect people with disabilities around the world.
While the adoption of the CPRD represents a truly significant
accomplishment for the international community and a great source of
hope for people with disabilities everywhere, it will obviously not be
enough. Between the adoption of the Convention and the actual securing
of the important rights it seeks to guarantee will no doubt lie a long
and tortuous path which will test the commitment, tenacity, and
political will of the international community--from national leaders to
grassroots advocacy organizations to individual citizens bent upon
justice for all.
However, we must also keep in mind that the Convention can be a
strong tool--as well as an inspiration--for civil society around the
world. NGOs and advocates will have a new legal framework within which
to push for reforms based on legal obligations.
ii.
Let me address for a moment the painful and, I must admit, somewhat
puzzling question of the seeming reluctance of some in our own Nation
to continue our lead role in this international effort. Let's look at
some of the questions and concerns that have been raised about this
Convention as it has reached this body for ratification.
To begin with, it has been argued that disability rights are more
appropriately addressed a solely a domestic concern, given the
complexity of the issues involved. In other words, this really isn't an
appropriate subject for international protection. Certainly, good
domestic legislation in every country would be the ideal solution. But
since many countries don't have such protections, it does not seem
reasonable to expect that this will change dramatically without
international pressure. The fact is, for many countries, international
conventions have already served as a catalyst for the development of
important domestic protections in many other areas.
As a practical matter, the United States will have much more
authority to speak out about these and other forms of discrimination
against people with disabilities worldwide if we agree to abide by the
same international scrutiny at home. We already have laws in place that
are consistent with the CRPD. But, it is correctly noted that by
ratifying the Convention, the United States agrees to report regularly
to an international advisory body. We have nothing to hide. We can only
gain from participating in the process of international review.
Moreover, we should not be so proud as to think that we cannot learn
from other countries about how to meet the challenge of providing even
better opportunities for people with disabilities.
Some have looked at the final text of the Convention and found it
lacking in strict, enforceable protections. Some say that it lacks the
kind of detail that we fought so hard to include in the ADA and that we
have found so essential for the enforcement of basic rights in the
United States. We must keep in mind that a human rights convention is a
legal instrument that must apply consistently around the world--in
countries rich and poor, in countries with widely varying legal
systems, in many countries where the idea of full participation for
people with disabilities may be radically new and untested. The
flexibility of this Convention is its strength--not its weakness. It
lays down the core values and principles that are essential to ending
discrimination against people with disabilities in any society. It
provides governments with guidance and direction now lacking under the
general provisions of international law. Article 9, for example,
requires governments to ``take appropriate measures to ensure to
persons with disabilities access, on an equal basis with others, to the
physical environment, to transportation, to information and
communications . . . and to other facilities and services open or
provided to the public, both in urban and in rural areas.'' Article 24
recognizes the rights of persons with disabilities to education and
requires governments to provide ``an inclusive education system at all
levels . . . [e]nabling persons with disabilities to participate
effectively in a free society.''
The Convention provides governments with core, minimum standards
needed to make essential reforms without locking different countries
into one particular approach or another. As noted, the Convention
creates a Committee on the Rights of Persons with Disabilities that
will review reports of governments and will issue general
recommendations about how to bring about full compliance with the
Convention. Through this process of interpretation, governments at
every level of economic and social development can receive guidance
about steps they can take to bring about enforcement of the Convention.
At the same time, it is important to note that ratification of the
Convention will require no new domestic legislation and will impose no
new costs upon U.S. taxpayers. As does our own ADA, the Convention
simply ensures nondiscrimination on the basis of disability,
guaranteeing that persons with disabilities enjoy the same rights as
other persons.
Finally, some have said that, because of America's comprehensive
domestic protections, a treaty on disability would have no relevance in
our own country. But, let's hold on a minute. We are indeed at this
time the most progressive country in the world when it comes to the
domestic protection of disability rights. The universality of rights
and fundamental freedoms--as expressed in our Declaration of
Independence--is the foundation on which our entire society is based.
Respect for human rights is also a stated principle of our foreign
policy--precisely because we recognize that stability, security, and
economic opportunity in any society presuppose a social order based on
respect for the rights of its citizens. Given this history and these
values, it would seem natural for the United States to assume a leading
role--not a passive one--in the effort to recognize and enforce an
international treaty of this kind.
Misgivings expressed by critics of the Convention have already been
addressed in reservations, understandings and declarations (RUDs)
contained in the package submitted by the administration. By addressing
federalism, providing a zone of private action protected by the
Constitution and declaring the Convention to be non-self-executing,
these RUDs protect U.S. sovereignty and recognize the Convention as a
nondiscrimination instrument, similar to our own ADA.
Ratification of the Disability Rights Convention is an opportunity
to export to the world the very best we have to offer. This is a chance
to use our rich national experience in disability rights--which has
gained us the respect of the world community--to extend the principles
embodied in the ADA to the hundreds of millions of people with
disabilities worldwide who today have no domestic protection. This is
worthy of our leadership. We have everything to gain and nothing to
lose by playing the role the world expects of us. We must ratify the
Convention so that we can fulfill that role.
iii.
Just as in the case of the ADA, we must recognize that the
Convention will not provide instant legal solutions which can effect
immediate changes in attitudes and cultural perceptions; nor will it
dispel the ignorance that leads to discrimination and human rights
abuses of people with disabilities. What it will do is create a
permanent place for disability within the human rights framework. It
will put disability issues on the radar screen of governments and
societies as a legitimate human rights concern to which they must pay
heed. It will provide guidance and standards and create legal
obligations for governments to respect the rights of this sizable
population. It can serve as a powerful advocacy tool for the global
disability movement to promote inclusion and equality of opportunity.
Before closing let me say a word, in particular, about the
developing nations of the world wherein, it is estimated, some 80
percent of the world's disabled population lives. Most of these persons
are at the margin of their respective societies. Priority concerns of
just surviving--combating hunger, securing shelter, and eking out a
daily existence--unfortunately take present precedence over concerns
for people with disabilities.
It is sometimes said that, in nations struggling with a full agenda
of political and economic problems and the effort to achieve basic
human rights for all their citizens, the interests of persons with
disabilities are likely to be set to one side for ``future
consideration,'' i.e., when these other more important matters have
been addressed.
On the contrary, I would suggest that what responsible leaders of
developing nations need to realize is the unique opportunity they have
to embed disability rights in their emerging institutions as part of
their development efforts, to build an infrastructure of government,
economy, and human rights that includes and respects the interests of
persons with disabilities from the very beginning. For it is no
exaggeration to say that the way a society treats its citizens with
disabilities is a valid measure of the quality of life and respect for
human dignity in that society.
Even after ratification and implementation of the Convention,
change will be gradual--and perhaps painfully slow, to be sure, but
these represent important first steps we can take toward promoting
change on a global scale. This Convention can help all of us to focus
world attention on those millions of people worldwide whose rights have
been ignored for far too long. Let's be about the business of seeing
that those rights are honored, and implemented, now and forever more,
by providing timely ratification of this important Convention.
Senator Coons [presiding]. Thank you, Mr. Thornburgh.
Mr. Wodatch.
STATEMENT OF JOHN WODATCH, FORMER CHIEF OF THE DISABILITY
RIGHTS SECTION, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF
JUSTICE, WASHINGTON, DC
Mr. Wodatch. Good morning, Mr. Chairman and members of the
committee.
Thank you for your invitation to present my views this
morning, and I ask that my full statement be submitted for the
record.
Senator Coons. Without objection.
Mr. Wodatch. I come before you this morning to urge you to
support ratification of the Convention on the Rights of Persons
with Disabilities. During my 42-year tenure with the Federal
Government, I worked on disability rights issues for both
Republican and Democratic administrations. I witnessed
firsthand the strong bipartisan support for disability rights
that is our Nation's tradition.
I authored the first comprehensive disability rights
regulations, served as a member of the White House team under
President George H.W. Bush that negotiated the ADA, and then,
with the help of Attorney General Thornburgh, led the
enforcement of the ADA at the Department of Justice, and then
recently served as a member of the U.S. delegation that
negotiated this very disabilities Convention.
The disabilities Convention is modeled on the disability
rights laws of the United States. It adopts the successful and
balanced approach of U.S. Federal disability rights law dating
back to 1973, and it embodies the core principles of
nondiscrimination and equality of opportunity.
The treaty seeks to empower persons with disabilities to be
independent, to claim responsibility for their lives, and to be
able to make their own choices.
In 2001, the George W. Bush administration charged the U.S.
delegation that was going to the U.N. to deal with the ad hoc
committee that was considering the formulation of this treaty
with two main tasks--to provide assistance in the development
of the new treaty and to ensure that the treaty reflects the
basic concepts of American disability law. We successfully
followed President Bush's directions. The disabilities
Convention follows U.S. principles, ensuring that citizens and
persons with disabilities have the same rights as other
citizens.
The package of three reservations, five understandings, and
a declaration proposed by the administration are appropriate
and necessary. These RUDs will ensure that the treaty will
require no new Federal laws and no new or revised State laws.
The compliance with our own disability laws, including the
definition of ``disability,'' will constitute compliance with
the treaty, and the treaty will give rise to no new individual
rights.
These RUDs also ensure that ratification will have no
impact on the Federal budget and will maintain the sovereignty
of the United States and the prerogatives of our States.
Nothing in the treaty undermines U.S. sovereignty. By the terms
of the treaty itself, the disabilities committee, which has
been much debated this morning, is advisory only. Its
suggestions, observations, and opinions are not binding and
cannot compel any action in the United States.
And if the treaty should be amended, any new amendments
will not apply to the United States unless the United States
specifically and formally consents to the changes. Nothing in
the treaty itself also changes or undermines parental rights in
the United States. In fact, the treaty recognizes the primacy
of the family.
It calls the family, and this is a quote from the treaty,
``the natural and fundamental group unit of society'' and says
that ``it is entitled to protection and assistance.''
The reservations on federalism and private conduct ensure
that parental rights in this country, which are established
mostly at the State and local level, remain unchanged. These
reservations are eminently reasonable and are compatible with
the object and purpose of the treaty. And once included in the
Senate resolution of advice and consent, these reservations
will themselves become law.
I also strongly believe that the U.S. ratification of the
disability treaty is in the best interests of the United
States. The result of our ratification over time will be a
benefit to all Americans with disabilities and their families,
including veterans, who work, study, travel, serve, retire, or
live abroad.
Ratification of the treaty will also enable the United
States to provide leadership on disability issues, ensuring
that international implementation hews closely to the balanced
approach of American disability rights law. Our failure to
ratify the Disability Convention, which so clearly follows the
pattern of our own disability rights laws and programs, has
hampered the position of the United States as a world leader on
disability rights issues. Ratification will enable the United
States to share our experiences with other ratifying nations as
they shape emerging disability rights policies and laws in
their own countries.
Further, the United States will seek a place on the U.N.
disabilities committee, which is only open to experts from
ratifying countries, and give us the potential to play a
valuable role in shaping the work of that committee. The
disabilities Convention has been ratified by 116 nations and
the European Union. The time for Senate action to ratify the
treaty is now.
When he signed the ADA on July 26, 1990, President George
Bush said, ``Let the shameful wall of exclusion finally come
tumbling down.'' The words and concepts that he signed into law
that day now form the basis of the disabilities treaty. It is
time for the United States to reposition itself as a world
leader to help bring down these walls of exclusion for all
nations around the globe and help make the world an accessible
place for Americans with disabilities, including our veterans.
I thank you for the opportunity to participate with you
today.
[The prepared statement of Mr. Wodatch follows:]
Prepared Statement of John L. Wodatch
Mr. Chairman and members of the committee, thank you for your
invitation to present my views to the committee. I come before you this
morning to urge you to support ratification of the Convention on the
Rights of Persons with Disabilities.
I have a long history of work on disability rights issues. I have
witnessed firsthand the strong bipartisan support for disability rights
that is out Nation's tradition. I retired last July from service in the
Federal executive branch after 42 years of service. During that time I
was the author of the Federal Government's first comprehensive
disability rights regulations, regulations implementing Section 504 of
the Rehabilitation Act, first issued in 1977. I was fortunate to work
for Attorney General Dick Thornburgh during our Nation's consideration
of the Americans with Disabilities Act and served as a member of the
White House team under President George H.W. Bush that negotiated the
ADA. I then oversaw development of the ADA regulations and served as
the head of the new unit at the Department of Justice that was created
to implement the ADA. I also served as a member of the U.S. delegation
that negotiated the Convention on the Rights of Persons with
Disabilities.
i. the disabilities convention and u.s. disability rights law
The Disabilities Convention is modeled on the disability rights
laws of the United States and adopts the successful and balanced
approach of U.S. Federal disability rights law dating back to 1977. It
embodies the traditional American ideals that form the basis of the
Americans with Disabilities Act and other U.S. disability rights laws.
These include the core principles of nondiscrimination and equality of
opportunity. The treaty seeks to empower persons with disabilities to
be independent, to claim personal responsibility for their own lives,
and to be able to make their own choices.
The Americans with Disabilities Act, or ADA, is a comprehensive
civil rights law protecting the rights of persons with disabilities in
the United States. Since it was signed into law in 1990 by President
George H.W. Bush, it has literally changed the landscape of this
country, opening up everyday American life to persons with
disabilities.
The ADA is, however, just one part of a rich and varied series of
Federal protections of the rights of person with disabilities. The
Architectural Barriers Act of 1968 ensures that Federal buildings will
be accessible according to strict Federal design standards. The
Individuals with Disabilities Education Act ensures that children with
disabilities will receive a free, appropriate education. The Fair
Housing Act ensures that people with disabilities will have accessible
housing. The Air Carrier Access Act opens air travel to persons with
disabilities. The Help America Vote Act, as well as the Voting
Accessibility for the Elderly and Handicapped Act of 1984, provide for
an accessible electoral process, including accessible polling places.
The ADA and Title V of the Rehabilitation Act provide a comprehensive
framework, covering employment, transportation, public accommodations,
telephone service, and all the activities of State and local
governments to persons with disabilities.
These laws have proven to be a success because they are grounded in
nondiscrimination principles, and they provide a balanced approach to
accessibility. Each requirement is tempered by limitations that reflect
the difficulty and costs of achieving accessibility. Thus the
obligation to make reasonable accommodation to employees is limited by
undue hardship. Businesses do not have to make changes to their
programs and services if they are too costly or would fundamentally
change the nature of the program or service. Small employers (under 15
employees) are exempted from all requirements as are churches, other
religious entities, and purely private clubs.
I was fortunate to be a member of the U.S. delegation to the U.N.
Ad Hoc Committee that was considering the formulation of a disabilities
Convention. The committee deliberated from 2001 to 2006, when the
treaty was adopted by the U.N. The Bush administration charged us with
two main tasks--to provide assistance in the development of the new
treaty and to ensure that the treaty reflect the core concepts of
American disability law. We successfully followed President Bush's
directions: the Disabilities Convention follows our U.S. principles.
Its focus is nondiscrimination, ensuring that persons with disabilities
enjoy the same rights as other citizens. Like the ADA, its rights are
tempered by limitations. Reasonable accommodation is required but only
if the modification is necessary and appropriate and only if it does
not impose a disproportionate or undue burden. While the treaty does
not itself contain a definition of disability, its guidelines for what
constitutes a person with a disability conform closely to the
definitions found in U.S law. In fact, the revised ADA definition of a
person with a disability, adopted in 2008 in the Americans with
Disabilities Act Amendments Act, and signed into law by President Bush,
fully comply with the concepts of the treaty.
And the comprehensive nature of the treaty mirrors the U.S.
approach to disability rights. Both recognize that persons with
disabilities will not be able to enjoy equal opportunity unless there
is broad coverage. Having an education loses its meaning if jobs are
foreclosed to students with disabilities. Nondiscrimination in
employment will not be meaningful unless persons can get to work on
accessible transportation. Having a job will lose its meaning if
persons are unable to enjoy the fruits of their labor, from dining at a
restaurant, going to a movie, or traveling across the country. Thus,
then, like U.S. law, the Disabilities Convention is comprehensive in
its approach. It addresses access to facilities, political
participation, access to justice, access to education, employment,
health care, participation in public and cultural life, recreation,
leisure activities, and sports. It upholds freedom of expression,
access to information, the ability to live independently in one's own
community, and freedom from torture and other cruel, inhuman, or
degrading treatment.
In sum, the Disabilities Convention is an embodiment of the
nondiscrimination principles developed in the United States. Its
principles and, indeed, its language, come directly from U.S. law.
ii. reservations, understandings, and declarations
The administration's submission of the Disabilities Convention,
which includes the President's letter of transmittal and the Secretary
of State's report, makes clear that the Convention is exclusively a
nondiscrimination treaty, i.e., the Disabilities Convention seeks to
ensure that persons with disabilities enjoy the same rights as everyone
else and are given the same opportunities to live productive lives. The
Secretary's report includes reservations, understandings, and a
declaration (RUDs) recommended for inclusion in the Senate's resolution
of advice and consent. Inclusion of these RUDs will facilitate
ratification. Under the RUDs, U.S. obligations under the Convention
will go no further than existing U.S. law.
The package of three reservations, five understandings, and one
declaration, contained in the Secretary's report, maintains U.S.
sovereignty and makes clear the extent of our obligations under the
treaty and are thus an essential element of ratification. With the
inclusion of this RUD package:
No new Federal laws will be required to comply with the
treaty;
No State laws will have to be revised;
Compliance with our existing, rich panoply of disability laws
will constitute compliance with the treaty;
Our definitions of disability will continue in force; and
No new individual rights and no individually enforceable
rights will be created. These RUDs also ensure that
ratification will have no impact on the Federal budget. Thus, I
recommend that the Senate Resolution of Advice and Consent to
Ratification contain the nine RUDs proposed in the Secretary's
Report.
Perhaps the two most important reservations are those recommended
on federalism and on private conduct. A number of treaty provisions
cover matters that are the province of State law. For example,
education, the exercise of legal capacity, civil commitment, birth
registration, living in the community, and marriage and family
relationships are areas that are governed in the United States under
State law. While many State and local laws and regulations clearly
comply with the provisions of the Disabilities Convention on these
issues, some state and local standards can be interpreted as less
rigorous than the treaty would require. Thus, a reservation that would
preserve the existing balance between Federal and State jurisdiction
over these matters is appropriate and necessary.
The federalism reservation ensures that the obligations undertaken
by the United States upon ratification would be implemented in a manner
consistent with the existing allocation of authority between the
Federal Government and the 50 states. The federalism reservation would
limit our obligations under the treaty to areas covered by Federal law
and would require no changes to State and local law because of the
Convention's provisions.
The proposed reservation on certain private conduct is also
important. A number of Federal disability rights laws contain
exemptions in their coverage. Title I of the ADA applies to all
employers with 15 or more employees. Title III of the ADA does not
apply to churches and other religious entities and certain private
clubs. The Fair Housing Act does not apply to most individuals' homes
or private home construction. Similarly, the U.S. Constitution and
Federal law recognize areas of private activity that are not governed
by the laws of the United States. It is thus necessary and appropriate
to include a reservation that limits coverage of the treaty and
excludes those areas of private conduct that are protected by the U.S.
Constitution.
Similarly significant is the declaration that the Convention on the
Rights of Persons with Disabilities is non-self-executing. This
declaration ensures that the treaty itself does not give rise to
individually enforceable rights and cannot be directly enforced in the
U.S. courts. It ensures the primacy of U.S. domestic law and remedies
on disability issues.
In the last several weeks, the treaty has been criticized for
undermining U.S. sovereignty and for harming the rights of parents of
children with disabilities. These concerns can be fully addressed by
the terms of the treaty, by the RUDs proposed by the administration,
and by the clarifications contained in the Secretary's report.
Some have raised alarms over the existence of the Disabilities
Committee created by the treaty. This committee, a group of 18 experts
elected by the nation's that have ratified the treaty, meets twice each
year to review the reports submitted by those countries that have
ratified the treaty. By the terms of the treaty itself this committee
is advisory only. The committee is authorized only to respond to
reports with ``suggestions and general recommendations.'' The
committee's suggestions, observations, and opinions are not binding and
cannot compel any action in the United States.
The criticism that the treaty will undermine parental
decisionmaking is misplaced. In fact, the treaty places great value on
the role of the family. The Preamble to the treaty is particularly
eloquent on this issue. It states: ``(T)he family is the natural and
fundamental group unit of society and is entitled to protection by
society and the State, and that persons with disabilities and their
family members should receive the necessary protection and assistance
to enable families to contribute toward the full and equal enjoyment of
the rights of persons with disabilities.''
The treaty specifically requires ratifying nations to provide early
and comprehensive information, services, and support to children with
disabilities and their families. It seeks to maintain the sanctity of
the family unit by requiring that children should not be separated from
their parents on the basis of the disability of either the parents or
the children.
Most importantly, the overarching requirement of Article 23 of the
treaty is one of nondiscrimination. The Convention, like Title II of
the ADA, prohibits discrimination against persons with disabilities in
matters of family and parenthood. Further, the proposed reservation on
federalism ensures that parental responsibility and authority, which
are matters of State and local law, will remain governed by domestic
law in the United States. Also, the reservation on private conduct
ensures that privacy in family matters, which is protected by the U.S.
Constitution, will not be encumbered by the treaty. The Secretary's
report specifically addresses family rights in its discussion of
Article 23 (at p. 53) and notes that freedom from governmental
interference in certain private conduct is among the fundamental values
of our free and democratic society.
One other concern that has been raised warns of a threat of a
national registry of children with disabilities. The treaty does not
require a national registry of births in the United States. Birth
registration is handled by the States, which are subject to the
disability nondiscrimination requirements of Title II of the ADA and
Section 504 of the Rehabilitation Act. State laws on birth registration
require that each child be given a birth certificate at birth--thus
they are recognized as a person, protected by law. The treaty does not
require a separate registration of children with disabilities,
something the United States has consistently refused to support.
Therefore, the treaty will not result in any change in U.S. or State
law or practice. However, the treaty will provide much-needed
protection in other countries where there is no provision for birth
certificates or birth registration for children with disabilities. In
particular, it will help protect against the horrible practice of
infanticide of children born with disabilities (a practice that can be
facilitated through the denial of birth certificates or registration to
disabled babies), and it will require equal access to immunizations,
education, food, and other essential needs for these children.
These reservations are eminently reasonable and are compatible with
the object and purpose of the treaty. And once included in the Senate
Resolution of Advice and Consent, these reservations become the law.
While other ratifying nations may seek to object to a reservation, no
nation nor any international body has the ability or power to sever,
amend, or overturn such a reservation.
One other issue that has raised concerns about the Disabilities
Convention is how it may apply to the issue of family planning and
abortion. The treaty affirms the inherent right to life and recognizes
the ``dignity and worth'' of persons with disabilities. It establishes
for the first time internationally that ratifying nations cannot
discriminatorily deny health care, health services, or food and fluids
on the basis of disability. During the debate at the Ad Hoc Committee
of the U.N., the treaty chairman, Ambassador Don McKay of New Zealand,
stated that the treaty does not create a right to abortion. The
Secretary's report confirms this interpretation at p. 61 and makes
clear that Article 25 does not address the matter of abortion and does
not affect United States law with regard to abortion.
iii. benefits of ratification
So why ratify? I strongly believe that ratification of the
Disabilities Convention is in the best interests of the United States,
provides protections for Americans with disabilities, and promotes U.S.
business interests.
Our failure to ratify the Disabilities Convention, which so clearly
follows the pattern of disability rights laws and programs pioneered in
the United States, has hampered the position of the United States as a
world leader on disability rights issues. While the ADA will continue
to be the linchpin of U.S. domestic nondiscrimination policy, the
international community uses the treaty as the basis for legal and
policy approaches to disability policy. Ratification will enable the
United States to have an official place at the table and share our
experience with other ratifying nations as they shape emerging
disability rights policies and laws in their countries. It will enable
us to seek a place on the Disabilities Committee (which is only open to
experts from countries that have ratified) and focus the efforts of the
committee on fundamental and important issues.
Ratification will also allow the United States to take a more
proactive role in the protection of U.S citizens abroad. Persons with
disabilities, including our veterans, now work, study, travel, serve,
and retire across the world. But our citizens still face limited
opportunities and architectural barriers. An active U.S presence on
implementation of the Disabilities Convention will help ensure that our
citizens and servicemembers will encounter fewer architectural barriers
and a more welcoming environment.
Ratification of the treaty will also help U.S. businesses take
advantage of the potential benefits of the treaty. Estimates of the
number of persons with disabilities across the world now reach 1
billion persons. As these persons receive opportunities in their
countries, they will need accessible devices, from wheelchairs and
other mobility aids and services to new technologies, including smart
phones and accessible software for their computers. Many of these
products are engineered, made, or sold by U.S. corporations, who will
benefit from an active U.S. presence to reach this emerging new source
of revenue.
Ratification and the concomitant reemergence of U.S. leadership
will also help American multinational corporations level the playing
field. For the past 22 years American companies have followed a number
of domestic requirements, including reasonable accommodation for their
workers and accessible facilities for their customers. Unfortunately,
their foreign counterparts did not have to follow such a regimen.
Ratification of the Convention will enable the U.S. more actively to
ensure that other nations that have ratified the Convention actually
take the steps to enforce the treaty's accessibility and employment
provisions and provide a level playing field for American companies.
Additionally, ratification and an active American presence can
result in economies of scale for U.S. companies. Many U.S.
multinational companies, including quick service restaurants and hotel
chains, create and implement standard design plans for their U.S.
facilities, but face different requirements for their building in other
countries. Ratification will enable the United States to push for
consistent accessible standards for buildings and create the ability
for U.S. multinational companies to follow one template for their
accessibility requirements worldwide, resulting in cost savings.
Ratification of the Convention presents an opportunity for the
Senate and the President to reaffirm the traditional American values of
the treaty, nondiscrimination and equality of opportunity, and provides
a forum to advance these values worldwide. The package of RUDs sent
forward by the administration and the specific interpretations found in
the Secretary's report address the concerns that have been identified
by outside observers regarding safeguarding American sovereignty and
U.S. law.
The Disabilities Convention has been ratified by 115 nations. The
time for Senate action to ratify this treaty is now. When he signed the
ADA on July 26, 1990, President George H.W. Bush said: ``Let the
shameful wall of exclusion finally come tumbling down.'' The words and
concepts that he signed into law are now in the laws and constitutions
of countries around the world and form the basis for the Disabilities
Convention. It is time for the United States to reposition itself as a
world leader to help bring down these walls of exclusion for all
nations around the globe and help make the world accessible for
Americans with disabilities, including our veterans, and for American
multinational businesses.
Senator Coons. Thank you, Mr. Wodatch.
Dr. Farris. Dr. Farris. Forgive me.
STATEMENT OF MICHAEL FARRIS, CHANCELLOR, PATRICK HENRY COLLEGE,
PURCELLVILLE, VA
Dr. Farris. Oh, that is OK. Thank you for the honor of
being invited to testify before this committee.
I would ask that my full remarks be submitted for the
record.
Senator Coons. Without objection.
Dr. Farris. I am the chancellor of Patrick Henry College,
where I teach constitutional law. And recently, after finishing
an LLM in public international law with the University of
London, I started teaching public international law as well.
There is no doubt about the appropriateness of the
aspirations of this treaty. My mother has multiple sclerosis,
has been in a wheelchair on a growing basis for about 40 years.
I have pushed her around buildings here in this city and in
France, Switzerland, and Austria, and there is no doubt on a
practical level about the United States leadership on the
access for persons with disabilities.
But the question is whether or not a treaty is being fairly
examined as a treaty here today, as opposed to an aspirational
statement. This is not like the Universal Declaration of Human
Rights, which was an aspirational statement by the U.N. in the
1940s. This is a binding treaty.
We don't have to worry necessarily about this committee
forcing American law to change. We ought to worry about
Americans forcing us to comply with the terms of the treaty
because when we ratify a treaty, we undertake a binding legal
obligation to live up to its terms.
The thing that the United States should lead on in this
area is we ought to be the leading nation in the world in
compliance with treaties--fully, fairly, completely. And if we
don't intend to comply with a treaty in full, we ought not to
ratify it in the first place. If all we are going to do is
king's X and say the only thing we are going to do with this
treaty is follow existing law, we are doing what Professor
Henkin, who is one of the leading experts in the world on this
subject, has said.
And I quote, ``Reservations designed to reject any
obligation to rise above existing law and practice are of
dubious propriety. If states generally entered such
reservations, the Convention would be futile.''
In fact, one nation has entered a reservation to this
treaty that says exactly that. The Islamic Republic of Iran
declares that it does not consider itself bound by any
provisions of the Convention which may be incompatible with its
applicable rules.
Eight nations in the world have objected to that
reservation--Austria, Belgium, Czech Republic, France, Germany,
Latvia, Mexico, and Portugal--precisely because that approach
to treaty laws, ``we are only going to obey what we want to
obey,'' is incompatible with the object and purposes of the
treaty.
Contrary to what the person from the Department of Justice
said, Article 7 will, in fact, require a change of our law if
we are going to live up to the treaty. If we don't have any
intention of living up to a treaty, let us just put a
reservation in and say we don't have any intention of changing
any of our laws.
We have no such reservation, and until we do, we have to
look and see what the treaty says and what do the words mean.
Article 7 changes the law, and we would have a duty to amend
the IDEA to live up to its standards.
And that means today under the IDEA, parents have the final
say for their kids, not the Government. Under Article 7 of this
treaty, the Government has the final say for kids.
The reason the IDEA works to protect children is because
the Government that is often stingy and stubborn and slow in
complying with the needs of special needs kids is because they
know they have got parents with real rights coming after them.
And if they don't like what--the parents don't like what
the Government is suggesting, the parents have real authority.
Article 7 robs them of their real authority. Again, unless we
are just simply going to cross our fingers and say king's X, we
really don't mean what the words of this treaty says.
Article 7, clearly, it is not a nondiscrimination
provision, as claimed by the person from the Department of
Justice. That is just simply not what it says. We ought to read
the language of Article 7. It requires the best interests of
the child standard to be implemented in every decision. What
that means is the Government, rather than parents, get to
decide what is best for children.
And if we think that that is good for children with special
needs and disabilities in this country, we don't understand
what is appropriate for American children. We need parents as
the empowered advocates, and this treaty will take away that
empowerment.
Nothing is going to happen in any other country until those
countries' domestic law incorporates the aspirations of this
treaty. Treaties do not build wheelchair ramps. They won't help
any American traveling. What will help those Americans is when
those other nations implement the provisions in their domestic
law and practice.
Until that happens, this is all a very expensive and very
dangerous exercise in celebrating our aspirations. We will not
do anything of substance, and we will do dangerous things
instead.
Thank you, Your Honor.
[The prepared statement of Dr. Farris follows:]
Prepared Statement of Michael Farris
Mr. Chairman, thank you for the honor of being invited to testify
before this committee.
My name is Michael Farris. I am the Chancellor of Patrick Henry
College where I teach Constitutional Law, Public International Law, and
coach our six-time national champion moot court team. I earned my Juris
Doctorate from Gonzaga University back in 1976 and my LL.M. in Public
International Law just last year from the University of London. I am
also the Chairman and Founder of the Home School Legal Defense
Association--the largest homeschooling advocacy group in the world.
There are three categories of arguments that I bring in support of
the view that the United States Senate should not ratify the U.N.
Convention on the Rights of Persons With Disabilities.
1. The promises made by the supporters of the treaty concerning the
impact both on Americans and on disabled persons in other countries are
clearly false and callously misleading.
2. The changes to American law that will be required to comply with
the provisions of this treaty are profound and utterly unacceptable.
Specifically, the changes regarding the rights of parents who have
children with disabilities--which includes thousands of homeschooling
families--are absolutely inconsistent with the IDEA and the basic
constitutional principles of parental rights.
3. The ratification of this treaty would constitute the most
dangerous departure from the principles of American sovereignty and
personal liberty in the history of the United States Senate.
the proponents of this treaty make false and misleading promises
The advocates of this U.N. treaty promise two kinds of alluring
benefits that will supposedly result from Senate ratification. First,
it will help disabled Americans traveling abroad. Second, it will give
the United States greater moral authority to coax unwilling states into
appropriate treatment of disabled persons within such states.
Neither of these claims have any foundation in law or in fact.
Let me explain why I take these false and misleading claims quite
personally.
My mother has had multiple sclerosis for over 40 years. I have had
the honor of pushing my mother's wheel chair through the Halls of
Congress as well as through museums, castles, and cathedrals in
Switzerland, Austria, and France. There is no doubt that the United
States leads the whole world in providing appropriate access to persons
with disabilities.
We lead--not because international law has required us to do so--
rather; we lead because in the United States we believe that every
single person is endowed by our Creator with certain inalienable
rights. And it is that belief system, and not international law, which
will continue to provide Americans with disabilities with any necessary
changes to the law in the years ahead.
I deeply resent the attempt by the advocates of this treaty to
mislead members of the disabled community with the false promise that
the U.S. ratification of this treaty will lead to material improvements
when Americans with disabilities travel to other nations.
U.S. ratification of this treaty creates absolutely no rights for
Americans with disabilities when they travel abroad. It is an utterly
false contention. If the United States becomes party to a treaty, all
of the legal consequences which flow from this act of ratification will
be limited to the territory of the United States. There are no
extraterritorial rights created for American travelers, businessmen,
servicemembers, or veterans.
This is the nature of this kind of treaty. See, Article 29, Vienna
Convention on the Law of Treaties. It is a promise from the state party
to change its own laws and practices so that disabled persons will have
greater access and equality.
If an American were traveling in Portugal, for example, he or she
would receive no claim whatsoever to improved access from Portugal by
virtue of American ratification of this treaty. Portugal's obligation
to disabled persons arises from Portugal's own ratification of this
treaty--assuming that it lives up to its obligation to enact compliant
domestic law.
It is equally disingenuous to claim that U.S. ratification will
lead to improved treatment for disabled persons from other countries.
This is especially true in light of the package of reservations that
the State Department proposes.
The proponents of this treaty, together with the proposed
reservations, are attempting to lead the Senate to believe that the
United States is already fully compliant with this Convention.
Professor Louis Henkin writing in the American Journal of International
Law criticizes this approach:
Reservations designed to reject any obligation to rise above
existing law and practice are of dubious propriety: if states
generally entered such reservations, the Convention would be
futile. The object and purpose of the human rights conventions,
it would seem, are to promote respect for human rights by
having countries--mutually--assume legal obligations to respect
and ensure recognized rights in accordance with international
standards. Even friends of the United States have objected that
its reservations are incompatible with that object and purpose
and are therefore invalid.
. . . By adhering to human rights conventions subject to
these reservations, the United States, it is charged, is
pretending to assume international obligations but in fact is
undertaking nothing.\1\
In light of this approach, the United States will not be sending
any kind of signal worth sending. The message will not be that other
nations need to match our comprehensive package of state and federal
laws concerning the proper treatment of disabled persons. Rather, the
message will be that treaties are for show and have no more impact than
you want them to have.
The United States should lead the world in only ratifying treaties
with which we intend to fully, faithfully, and vigorously comply. We
should not lead the world in cheap and compromised promises.
The fact that no sensible person would dare to suggest that we
ratify this treaty without this class of reservations is proof that
this treaty is simply too dangerous to ratify.
The way for the United States to continue to lead the world in this
area is to ensure that American law and practice live up to the
promises of the Declaration of Independence rather than the amorphous
standards of a committee of 18 experts in Geneva.
International law that is not translated into domestic law and
practice is nearly worthless.
If International Law actually led to greater rights for the
citizens of other nations, then why are North Koreans still deprived of
any semblance of any human right? That nation has ratified five major
human rights treaties and enforces none of them.
Why do Germany and Sweden ban homeschooling and persecute and
harass homeschooling parents despite their ratification of human rights
treaties which promise that the rights of parents to choose
alternatives to public education are prior to the claims of the state?
How has American leadership and example in ratifying human rights
instruments led to any help for German or Swedish homeschoolers? In
fact, this administration is seeking to deport a German homeschooling
family that was awarded asylum by an administrative law judge. What has
America done of any substance to help those in the concentration camps
of North Korea?
Leadership comes not from ratification of treaties--it comes from
effective action. Human rights treaties are empty promises that do
little more than guarantee the right of a professional class of
international bureaucrats to full employment and their right to travel
to conferences where they shake their heads and ultimately write a
report in diplomatic code that does little good for anyone at all.
U.S. ratification of this treaty has no extraterritorial
application for our citizens whatsoever. It is a fraudulent charade to
claim otherwise.
this treaty requires radical changes to american law
The most basic rule of international law is pacta sunt servanda--
agreements must be kept. Ratification of the UNCRPD requires the United
States to act in good faith--and to conform our law to the standards
set forth in this U.N. treaty.
The proposed declaration that this treaty is non-self-executing
does not change this duty in any way. Such a declaration simply removes
the possibility of direct judicial imposition of the provisions of the
treaty. The United States has made a solemn promise that we will change
our statutory law to conform to the requirements of the treaty. If we
fail to do so, we are in breach of our international legal obligations.
I want to focus on one area of the required changes in American
law--the impact that the UNCRPD would have on the rights of parents
concerning the education of their disabled and special needs children.
The UNCRPD follows the trend of the second generation of human
rights treaties which promote the idea that government, not parents,
have the ultimate voice in decisions concerning their children.
Early human rights instruments were very supportive of the rights
of parents to direct the education and upbringing of their children.
It is beyond dispute that the Universal Declaration of Human
Rights, adopted in 1948 by the unanimous vote of the U.N. General
Assembly arose ``out of the desire to respond forcefully to the evils
perpetrated by Nazi Germany.''\2\ The UDHR's view regarding parents and
children is no exception to this rule. Article 26(3) of the UDHR
proclaims: ``Parents have a prior right to choose the kind of education
that shall be given to their children.'' Numerous human rights
instruments have been drafted in reaction to ``the intrusion of the
fascist state into the family. . . . ''\3\
The rejection of the Nazi view of parents and children was
translated from the aspirational articles of the UDHR into the binding
provisions of the two core human rights treaties of our era--the
International Covenant on Civil and Political Rights (1966) and the
International Covenant on Economic, Social, and Cultural Rights (1966).
Article 18(4) of the ICCPR provides:
The States Parties to the present Covenant undertake to have
respect for the liberty of parents and, when applicable, legal
guardians to ensure the religious and moral education of their
children in conformity with their own convictions.
Article 13(3) of the ICESCR repeats and expands on this same theme:
The States Parties to the present Covenant undertake to have
respect for the liberty of parents and, when applicable, legal
guardians to choose for their children schools, other than
those established by the public authorities, which conform to
such minimum educational standards as may be laid down or
approved by the State and to ensure the religious and moral
education of their children in conformity with their own
convictions.
This pro-parent view of human rights has given way to a decidedly
different view in the U.N. Convention on the Rights of the Child
(UNCRC) and now in the U.N. Convention on the Rights of Persons with
Disabilities.
The UNCRPD incorporates several key elements from the UNCRC that,
as I will demonstrate, lead to the conclusion that parental rights in
the education of disabled children are supplanted by a new theory of
governmental oversight and superiority. In short, government agents,
and not parents, are being given the authority to decide all
educational and treatment issues for disabled children. All of the
rights that parents have under both traditional American law and the
Individuals with Disabilities Education Act will be undermined by this
treaty.
Article 7 is the key. Sections 2 and 3 directly parallel provisions
of the UNCRC.
2. In all actions concerning children with disabilities, the
best interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with
disabilities have the right to express their views freely on
all matters affecting them, their views being given due weight
in accordance with their age and maturity, on an equal basis
with other children, and to be provided with disability and
age-appropriate assistance to realize that right.
Section 2 directly parallels Article 2(1) of the CRC. Section 3
closely follows Article 12(1) of the CRC.
The ``best interest of the child'' standard is a familiar one to
anyone who has ever participated in family or juvenile law in American
courts. However, in that context it is a dispositional standard. This
means that after a parent has been convicted of abusing or neglecting
their child, then and only then can the government substitute its view
of what is best for the child or for that of the parent. Or in the
divorce context, once a judge determines the family unit is broken, the
judge must settle the contest between the competing parents and decide
for herself what she thinks is in the best interest of the child.
In an intact family, where there is no proof of abuse or neglect,
government agents--whether school officials, social workers, or
judges--cannot substitute their judgment of what is best for a child
over the objection of the parents.
This legal principle is firmly imbedded into the Individuals with
Disabilities Education Act. Parents have a great deal of authority
concerning the education and treatment of their children under this
act.
The National Dissemination Center for Children with Disabilities
lists eight particular rights of parents contained in the IDEA\4\:
The right of parents to receive a complete explanation of all
the procedural safeguards available under IDEA and the
procedures in the state for presenting complaints
Confidentiality and the right of parents to inspect and review
the educational records of their child
The right of parents to participate in meetings related to the
identification, evaluation, and placement of their child, and
the provision of FAPE (a free appropriate public education) to
their child
The right of parents to obtain an independent educational
evaluation (IEE) of their child
The right of parents to receive ``prior written notice'' on
matters relating to the identification, evaluation, or
placement of their child, and the provision of FAPE to their
child
The right of parents to give or deny their consent before the
school may take certain action with respect to their child
The right of parents to disagree with decisions made by the
school system on those issues
The right of parents and schools to use IDEA's mechanisms for
resolving disputes, including the right to appeal
determinations
I have litigated an additional right of parents under the IDEA--the
right to pursue private and home education at one's own expense.
For example, in the Eighth Circuit case of Fitzgerald v. Camdenton
R-III School Dist., 439 F.3d 773 (8th Cir. 2006), the court reinforced
important parental rights concepts. ``[The IDEA allows parents to
decline services and waive all benefits under the IDEA. See 20 U.S.C.
Sec. 1414(a)(1)(D)(ii)(II). When parents waive their child's right to
services, school districts may not override their wishes. See id.'' Id.
at 775.
In that case, we contended that parents did not even have to agree
to allow the school district to force the child to go through the
initial IDEA evaluation. The evidence showed that this homeschooling
family had already had their child independently evaluated and the
child was receiving private special needs services at the parents' own
expense. The school district wanted to force the family to undergo its
special needs evaluation even though the school recognized that it
could not force this family to accept the recommended services at the
end of the process.
The Eighth Circuit ruled for the family saying that the school
could not compel this IDEA evaluation under these circumstances.
All of these parental rights will be eviscerated by the mandatory
application of the ``best interest of the child'' standard which is set
forth in Article 7 of the UNCRPD.
Geraldine van Bueren, who is one of the world's leading experts on
the international rights of the child and helped to draft the UNCRC
(and was one of my professors at the University of London), clearly
explains the meaning and application of this best interests standard in
her course material.
Best interests provides decision and policy makers with the
authority to substitute their own decisions for either the
child's or the parents', providing it is based on
considerations of the best interests of the child.\5\
Section 7 of the UNCRPD uses the exact same legal terms as those
contained in the UNCRC.
Accordingly, today, under the IDEA parents get to decide what they
think is best for their child--including the right to walk away from
government services and provide private or home education. Under the
UNCRPD, that right is supplanted with the rule announced by Professor
van Bueren. Government officials have the authority to substitute their
views for the views of parents as well as the views of the child as to
what is best. If parents think that private schools are best for their
child, the UNCRPD gives the government the authority and the legal duty
to override that judgment and keep the child in the government-approved
program that the officials think is best for the child.
Ask virtually any parent who has dealt with school officials in the
IDEA context: Are you willing to give the government the final say on
what it thinks is best for your child's special needs or disability?
School districts have a powerful motivation to do better for
disabled and special needs children precisely because they know that
parents with real rights are looking over their every move and have the
ability to fight for what that parent knows to be best for their child.
Remove parental authority and institutional lethargy will take over in
many cases.
Children are treated much, much better in the special needs setting
whenever their parents have real and certain rights.
Those rights are gone if this Senate ratifies this treaty. There
are two reasons this is true.
First, virtually every state has state law provisions which also
give parents a number of rights in the educational setting. Article VI
of the U.S. Constitution contains our Supremacy Clause which explicitly
states that a ratified treaty is the Supreme Law of the land and all
state law provisions which conflict with the treaty are overridden by
the treaty.
Any and all parental rights provisions in state education laws will
be void by the direct application of Article 7 of this treaty.
Government--not parents--has the authority to decide what is best for
children.
Second, we must analyze the impact of the ratification of this
treaty based on the presumption that we are going to comply with the
treaty in good faith. Accordingly, even with the presumption of the
non-self-executing nature of the treaty, if the Senate ratifies this
treaty, Congress will have the duty to revise the IDEA to comply with
the provisions of the UNCRPD. Therefore, unless we intend to breach our
international legal obligations, Congress will be required to modify
the IDEA to ensure that government decisionmakers, and not parents,
have the final say as to what they believe is best for a child.
Thousands of homeschooling parents have children with special needs
and disabilities. The ratification of this treaty is considered by our
community to be the equivalent of an act of utter betrayal.
As other parents of special needs children come to understand the
meaning of these phrases in the UNCRPD, they too will be aghast to
learn that this Senate is giving serious consideration to a legally
binding international agreement that would undermine their rights as
American parents.
No proposed reservation can cure this problem. And unless we adopt
a reservation that explicitly says: ``We are not serious about any duty
to comply with this treaty and are ratifying only for PR purposes''--I
can think of no means of drafting a reservation that cures this huge
defect.
Here is the plain fact. American law and international law are not
compatible when it comes to parental rights. I can think of no good
reason why we should even try. Americans should make the law for
America--we do not need a committee of experts in Geneva to look over
our shoulders to help us determine what kind of policy we need to best
protect Americans with special needs and disabilities.
Although there are a great number of other difficulties that are
latent in this treaty, I want to focus just on one other issue. This
treaty appears to take sides on the public policy issues concerning
abortion.
Article 25(a) of the UNCRPD requires state parties to:
Provide persons with disabilities with the same range, quality
and standard of free or affordable health care and programmes
as provided to other persons, including in the area of sexual
and reproductive health and population-based public health
programmes;
This provision has led the nations of Poland, Malta, and Monaco to
adopt reservations or declarations that proclaim that these states do
not recognize any right to an abortion or mandatory state-funding for
the same.
Under Roe v. Wade, of course, we live under a regime where it is
proclaimed that women have the constitutional right to abortion. There
is great controversy over that decision--and Congress has generally
avoided federal funding for abortion. It would reasonably appear that
Article 25(a) commits the United States to providing free abortion
services to persons with disabilities. A vote for this treaty is a vote
for abortion funding.
Of course, our State Department has not proposed anything like the
reservations from Poland, Malta, or Monaco. And I doubt that the
omission was a mere oversight.
this treaty would violate the principles of
american sovereignty and liberty
The Founders of this Republic understood treaties to be exclusively
devoted to the subject matter of how nations treat other nations. The
idea that international law would be used to dictate the policies that
our Nation would follow concerning the rights of our own citizens
would, frankly, astonish and bewilder the founding generation.
In the most basic terms, American sovereignty means that Americans
should make the law for America. No foreign power should have the
ability to lay claim to a power to dictate what our internal domestic
law should be.
This treaty would alter that balance. I return to Professor van
Bueren for an explanation of the impact on sovereignty by the
ratification of this kind of treaty. Although her comments were
directed toward the ratification of the UNCRC, they are fully
applicable here.
Underpinning this approach are the legal consequences of states
becoming party to the Convention on the Rights of the Child.
The United Nations Convention on the Rights of the Child moves
the borders for the state of what is political and what can be
subject to a legal challenge in courts, particularly in
resource allocation and budgetary matters. The Convention and
other international laws in effect narrows what were previously
unfettered discretionary powers of governments. Before
governments become party to human rights treaty they are
obliged to ensure that there are the resources, either to
implement the Convention on becoming party or shortly
thereafter, in accordance with international law. Hence, there
is no interference with national sovereignty, the nationally
sovereign decisions on how resources on children's rights to be
expended have already been taken. In essence, the government
has exercised its political powers, and it has to live with the
legal consequences.\6\
There is a once for all decision that effectively exhausts our
sovereignty. If we ratify this treaty, our ability to have absolute
freedom of choice concerning our public policy on this subject has been
extinguished. It is akin to the States being under a Federal mandate.
Sure, the States have a bit of discretion in how the Federal mandate
will be implemented, but their range of policy choices are
circumscribed by the duty to implement the will of Congress. In a
similar fashion, if the Senate ratifies this treaty--the nationally
sovereign decisions will be made once for all. Generations of Americans
will be forced to live with this decision--under a permanent duty to
live under U.N. supervision for compliance with our international legal
obligations.
There is a second, more specific problem with this particular
treaty.
Human rights treaties in general seek to guarantee five sectors of
rights--political, civil, economic, social, and cultural rights. The
Universal Declaration of Human Rights (which was a statement of
altruism and not binding international law) encompassed all five of
these components of international law.
However, in the years that followed, there was a great division
between two sectors of human rights. Political and civil rights are
called negative rights. These rights are what government cannot do to
us or take from us. The United States Bill of Rights is the world's
greatest collection of negative rights.
However, economic, social, and cultural rights are called positive
rights. These rights encompass services that the government must
provide its citizens--the right to health care, the right to food, the
right to employment.
When the U.N. attempted to translate the UDHR into formal treaty
language--this divide between civil and political rights vs. economic,
social, and cultural rights took center stage. The west, led by the
United States, supported the creation and ratification of civil and
political rights. The Soviet Union and its allies, however, opposed
civil and political rights and instead urged the creation of economic,
social, and cultural rights.
The attempt to create a single treaty encompassing all of the
principles of the UDHR failed. Instead, the U.N. promulgated two
separate treaties--the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social, and Cultural
Rights.
The United States ratified the ICCPR. The Soviet Union ratified the
ICESCR.
To this very day, the United States has never ratified a U.N. human
rights treaty that has economic, social, and cultural rights at the
core of the treaty.
Why is this? Professor van Bueren explains:
The essence of economic and social, and to an extent,
cultural rights is that they involve redistribution, a task
with which, despite the vision of human rights, most
constitutional courts and regional and international tribunals
are distinctively uncomfortable.\7\
Like these courts, the United States Senate--up until this present
time--has shared this concern about committing our Nation to the task
of redistribution.
This treaty would break all precedent of this body. It would be the
first time in the history of the Senate that the United States commits
itself to a treaty that requires the redistribution of the resources of
Americans. We must take resources from some Americans and give them to
other Americans.
There is little wonder that the Union of Soviet Socialist Republics
favored this kind of redistributive right. But, up until today, the
United States Senate has never ratified a treaty embracing these so-
called positive rights which are nothing more than the international
entitlement to the redistribution of resources.
You may call it what you will. I see such treaties as a dramatic
loss of American freedom in favor of coercive international socialism.
conclusion
It was American self-government and not international law that led
to the significant advancements that this nation has seen in the
appropriate law and policies concerning persons with disabilities.
International law has no track record of success that could lead
any reasonable person to believe that international law would have any
claim of superiority over American self-government.
We should pass whatever laws we need to ensure proper policies and
practices for Americans with disabilities. But we should not give away
our policy prerogatives to the superintendence of a committee of UN
experts sitting in Geneva.
----------------
End Notes
\1\Louis Henkin, ``U.S. Ratification of Human Rights Conventions:
The Ghost of Senator Bricker,'' The American Journal of International
Law, Vol 89 No 2, 343-344 (Apr. 1995).
\2\Kathleen Renee Cronin-Furman, ``60 Years of the Universal
Declaration of Human Rights: Towards an Individual Responsibility to
Protect,'' 25 Am. U. Int'l L. Rev. 175, 176 (2009).
\3\Marleen Eijkholt, ``The Right to Found a Family as a Stillborn
Right to Procreate?'' 18 Med. L. Rev. 127, 134 (2010).
\4\http://nichcy.org/schoolage/parental-rights.
\5\Geraldine Van Bueren, ``International Rights of the Child,
Section D,'' University of London, 46 (2006).
\6\Geraldine Van Bueren, ``International Rights of the Child,
Section D,'' University of London, 36 (2006).
\7\Geraldine Van Bueren, ``Combating Child Poverty--Human Rights
Approaches,'' Human Rights Quarterly, Vol. 21, p. 680, 680-681 (1999).
Senator Coons. Thank you, Dr. Farris.
Mr. Groves.
STATEMENT OF STEVEN GROVES, BERNARD AND BARBARA LOMAS FELLOW,
THE HERITAGE FOUNDATION, WASHINGTON, DC
Mr. Groves. Thank you, Senator Coons, Ranking Member Lugar,
for giving me the opportunity to testify today regarding
whether the United States should ratify the Convention on the
Rights of Persons with Disabilities.
I had the opportunity to testify before the committee about
a month ago on another treaty, the U.N. Convention on the Law
of the Sea. And while there are no similarities between the two
in terms of scope or subject matter, the central question that
we are dealing with here remains the same, and that is the
question regarding the propriety of U.S. ratification. And that
question is whether membership in the Convention protects and
preserves U.S. national interests.
The Obama administration recognizes that ratification will
not advance the rights of Americans with disabilities here in
the United States. The President's letter of transmittal makes
it clear. It states that Americans with disabilities already
enjoy the Convention's rights at home.
As such, ratifying the Convention merely makes an
international commitment to continue the status quo here in the
United States, which does not seem to be a compelling national
interest since the rights of Americans with disabilities are
well protected in the United States. Disabled Americans are
protected by disability rights laws, such as the historic
Rehabilitation Act of 1973, the Americans with Disabilities
Act, and many more State and Federal laws.
These laws are enforced in American courtrooms nationwide
by a panoply of Federal agencies, led by the Civil Rights
Division of the Department of Justice and by men and women who
have dedicated their lives to the advancement of Americans with
disabilities, men and women like Judy Heumann and John Wodatch.
But U.S. membership in the Convention will not affect the
rights or improve the conditions of Americans with
disabilities.
As such, this committee should question exactly what U.S.
national interest would be met by ratifying because there are
real costs associated with ratification of the Convention.
Every 4 years, the United States Government will be required to
produce a comprehensive report in an effort to prove its
compliance with the provisions of the Convention.
That report must be presented to the 18-member Committee on
the Rights of Persons with Disabilities in Geneva by a large
team of U.S. officials. The actual cost of this reporting
process is not insignificant. But more important are the
potential political costs that come with ratification, and that
is because the United States has endured mixed results, to say
the least, in its interactions with other human rights treaty
committees over the years for the treaties that we are a party
to.
For example, in 2008, the United States presented a 100-
page report to a treaty committee regarding the U.S. record on
implementation of the Convention on the Elimination of All
Forms of Racial Discrimination. That committee gave short
shrift to the U.S. report and instead adopted a damning
appraisal of the U.S. record that was only tangentially related
or utterly unrelated to issues regarding racial discrimination.
Among some of the demands that that committee made, and you
heard Senator DeMint refer to some of these earlier, are to
ensure that enemy combatants held in Guantanamo Bay have the
right to judicial review, to challenge the conditions of their
detention, to prevent U.S. corporations from negatively
affecting the rights of indigenous people living outside of the
United States, to place a moratorium on the imposition of the
death penalty, and to restore voting rights to all convicted
felons, regardless of the heinousness of their crime.
If the United States ratifies the disabilities Convention,
it may be exposed to the same experience that it had with that
committee. That committee and other human rights treaty bodies,
such as the Committee on the Elimination of Discrimination
against Women and the Committee on the Rights of the Child,
have established over the years a pattern of directing states
parties to change their laws in ways that conflict with those
states parties' legal, social, and cultural norms. There is
little reason to believe that the Committee on the Rights of
Persons with Disabilities will act any differently.
In conclusion, as with any other treaty, this committee
should weigh the costs and benefits entailed with ratifying the
disabilities Convention. Neither the United States nor
Americans with disabilities will benefit from a quadrennial
chastisement by a committee of international disability experts
sitting in Geneva.
Instead, the United States should continue to lead by the
example it has set for protecting the rights of Americans with
disabilities through comprehensive legislation and enforcement.
Again, I would like to thank the committee for inviting me
to testify, and I look forward to any questions.
[The prepared statement of Mr. Groves follows:]
Prepared Statement of Steven Groves
Mr. Chairman and members of the committee, thank you for inviting
me to testify before you today regarding the Convention on the Rights
of Persons with Disabilities (CRPD or Convention).
I had the opportunity to testify before this committee a month ago
regarding U.S. accession to the United Nations Convention on the Law of
the Sea. While there are no similarities between the two conventions in
terms of scope or subject matter, the central question regarding the
propriety of U.S. ratification remains the same--whether membership in
the Convention protects, preserves, or advances U.S. national
interests.
The United States should not ratify the CRPD if membership would
not advance U.S. national interests at home or abroad. The
administration concedes that U.S. membership in the Convention would
not advance the cause of persons with disabilities living in the United
States since the United States already has in place comprehensive
statutory, regulatory, and enforcement mechanisms regarding disability
rights.
The question remains whether membership in the Convention would
advance national interests in the international sphere. Joining the
Convention is unlikely to advance U.S. national interests abroad, but
instead would obligate the United States to answer to a committee of
``disability experts'' in violation of principles of U.S. sovereignty.
The United States need not become party to the Convention to
demonstrate its strong commitment to disability rights to the
international community. Nor is there any evidence that U.S.
ratification would enhance the ability of the U.S. Government or
nongovernmental organizations to promote disability rights in foreign
countries.
the convention
On December 13, 2006, the United Nations General Assembly adopted
the CRPD ``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.''\1\
The terms of the Convention are meant to protect the rights of
persons with disabilities in the civil, political, economic, social and
cultural spheres. It recognizes traditional civil and political rights
that are guaranteed under the U.S. Constitution--such as the right to
life and liberty, equality before the law, and the freedom of
expression and opinion\2\--alongside certain economic, social, and
cultural ``positive rights,'' such as the right to education, health,
and ``an adequate standard of living for [persons with disabilities]
and their families, including adequate food, clothing, and housing, and
to the continuous improvement of living conditions.''\3\
The Convention entered into force on May 3, 2008, after 20 nations
had deposited their instruments of ratification. The Convention
currently has 117 parties, and an additional 36 nations, including the
United States, have signed but not ratified the treaty.\4\ U.S.
Ambassador to the United Nations Susan Rice signed the Convention on
July 30, 2009.\5\ President Obama transmitted the Convention, an
article-by-article analysis, and a set of recommended reservations,
declarations, and understandings to the Senate for its advice and
consent on or about May 17, 2012 (Transmittal Package).\6\
If the Senate gives its advice and consent and the Convention is
ratified, it would become the ``Supreme Law of the Land'' on par with
Federal statutes, including statutes relating to disability rights.\7\
When the United States becomes party to a human rights treaty it
obligates itself to the other treaty parties that it will comply with
the terms of the treaty within U.S. territory. Therefore, the United
States needs to take great care when deciding whether to ratify such a
treaty when its terms--or the interpretation of those terms by a treaty
committee--may not conform to existing State and Federal law or to
prevalent American social, cultural, and economic norms.
america's leadership on disability rights
The United States should become party to a treaty only if it
advances U.S. national interests. The U.S. should be especially wary of
international conventions that require domestic enforcement by the
Federal Government. U.S. national interests in the context of the
Convention may be characterized in both foreign and domestic terms:
Would becoming a party to the Convention serve U.S. interests within
the international community or would joining advance the cause of
Americans with disabilities?
From a purely public diplomacy calculus, one can argue that the
United States will enhance its reputation within the international
community by holding itself to a high standard of human rights.
However, in the case of the CRPD, the United States already has
effective legislative measures in place to protect the rights of the
disabled. Those who say that ratification would allow the United States
to claim the moral high ground within the international community--at
least in regard to disability rights--imply that the United States is
deficient in protecting the rights of the disabled. In truth, the
United States has been a leader in protecting the rights of the
disabled. It already holds the moral high ground. Signing a treaty
merely to ``score points'' overseas is not a sound basis for making
policy.
Ratification of the CRPD is unnecessary to end discrimination
against persons with disabilities in the United States. As is made
clear throughout the Transmittal Package, the United States already has
in place a wide range of Federal laws to protect and advance the cause
of Americans with disabilities.\8\ Major pieces of legislation include
the Rehabilitation Act of 1973,\9\ the Americans with Disabilities Act
(ADA),\10\ the Individuals with Disabilities Education Act, Part B,\11\
and the Fair Housing Act.\12\ Other Federal laws that protect persons
with disabilities include the Telecommunications Act of 1996, the Air
Carrier Access Act of 1986, the Voting Accessibility for the Elderly
and Handicapped Act of 1984, the Civil Rights of Institutionalized
Persons Act, and the Architectural Barriers Act of 1968.\13\
These Federal laws, unlike the broad provisions of the CRPD, were
crafted to address the situation of disabled persons living in the
United States, not to address the general opinions of the international
community. As a whole, the legislation is a firm foundation that can be
modified or expanded as necessary through the legislative or regulatory
process.
In addition, U.S. disabilities laws are enforced by a panoply of
Federal agencies, most notably the Civil Rights Division of the
Department of Justice.\14\ Other elements of the Federal Government
have responsibilities under the ADA and other Federal disability
legislation. In addition to Federal law, all 50 States and the District
of Columbia have enacted a wide range of laws to prevent discrimination
against the disabled and provide an array of resources to persons with
disabilities.\15\
In short, the U.S. Government treats disability discrimination in a
comprehensive and exhaustive manner that makes membership in an
international covenant purporting to set standards for the treatment of
the disabled superfluous at best. To allow an international committee
of disability experts to scrutinize the U.S. record every 4 years would
yield little or no benefit in realizing disability rights for
Americans. Any public diplomacy or other possible marginal benefits, if
any, that could arise from ratifying the Convention should be weighed
against the negative consequences of ratification.
ceding authority to an international committee
To monitor implementation, human rights treaties usually establish
a ``committee of experts'' to review reports from states parties on
their compliance. States parties are required to submit periodic
reports (usually every 4 years) to the committee detailing their
compliance with the particular treaty. The CRPD established the
Committee on the Rights of Persons with Disabilities (CRPD Committee),
which is charged with reviewing periodic reports and making ``such
suggestions and general recommendations on the report as it may
consider appropriate.''\16\
Since the Convention entered into force in May 2008, the CRPD
Committee has conducted reviews of a small number of states parties and
has issued final conclusions and recommendations regarding Tunisia,
Spain, and Peru.\17\
Abuses by Treaty Committees. Human rights treaty committees have
been known to make demands of states parties that fall well outside the
scope of the subject matter of the treaty that conflict with the legal,
social, economic, and cultural traditions and norms of states parties.
This has especially been the case with the United States.
For instance, in February 2008, the Committee on the Elimination of
Racial Discrimination reviewed the U.S. record on racial discrimination
and issued a report directing the United States to change its policies
on a series of political causes completely divorced from the issues of
race and racial discrimination. Specifically, the committee urged the
United States to guarantee effective judicial review to the foreign
unlawful enemy combatants held at the Guantanamo Bay detention
facility, prevent U.S. corporations from abusing the rights of
indigenous populations in other countries, place a moratorium on the
death penalty, restore voting rights to convicted felons, and other
matters completely unrelated or only tangentially related to racial
discrimination.\18\
The committees overseeing the enforcement of other human rights
treaties to which the United States is not a party often recommend
changes in policies that are outside of traditional American norms. For
example, the committee that oversees the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW) regularly
advocates that states decriminalize prostitution, expand access to
abortion, devalue the role of women as mothers, reduce parental
authority, and implement strict numerical gender quotas in the
government and private sectors.\19\
The U.S. has reason to expect that the experts on the CRPD
Committee will give short shrift to U.S. sovereignty, laws,
regulations, and norms, and embark on similar forays in pursuit of a
broader agenda of social engineering unrelated to disability rights.
Defining the CRPD Committee's Role. Any debate over U.S.
ratification of the Convention should make it clear through
reservations, understandings, and declarations that the CRPD Committee
has no power--either through its recommendations or by the issuance of
general comments--to provide authoritative or legally enforceable
interpretations of the Convention.
The administrations of Presidents Bill Clinton and George W. Bush
held that position regarding human rights treaty committees. For
example, in 1994 the Human Rights Committee adopted a general comment
which claimed that its ``role under the [International] Covenant [on
Civil and Political Rights] . . . necessarily entails interpreting the
provisions of the Covenant and the development of a
jurisprudence.''\20\ The Clinton administration reacted strongly to
this claim of authority by issuing a lengthy critique, which stated:
[The Committee's] rather surprising assertion . . . would be a
rather significant departure from the Covenant scheme, which
does not impose on States Parties an obligation to give effect
to the Committee's interpretations or confer on the Committee
the power to render definitive or binding interpretations of
the Covenant. The drafters of the Covenant could have given the
committee this role but deliberately chose not to do so.\21\
The Bush administration similarly responded to a fact sheet titled
``The Right to Health'' produced by the Office of the U.N. High
Commissioner for Human Rights and the World Health Organization. The
fact sheet asserted that the general comments and recommendations
adopted by human rights treaty committees ``provide an authoritative
and detailed interpretation of the provisions found in the
treaties.''\22\ The U.S. response was unequivocal:
General comments and other documents issued by treaty
monitoring bodies express the opinions of individuals acting in
their expert capacities; such documents are not the result of
deliberations among States. While the views of treaty
monitoring bodies are entitled to respect and should be
considered carefully by States Parties, they do not create
legal obligations or ``requirements.''\23\
This committee should be equally clear in reaffirming that the CRPD
Committee has no authority to create new international norms or
customary international law that the states themselves have not
deliberated and approved, particularly any that would arguably bind the
U.S. domestically. Such a clarification would reinforce the traditional
understanding of customary international law as the ``law of nations''
that ``results from a general and consistent practice of states
followed by them from a sense of legal obligation,'' not from the
recommendations of a treaty committee.\24\ It would also reaffirm U.S.
sovereignty by demonstrating that the Federal Government will actively
work to prevent the improper imposition of norms to which it has not
given its democratic consent.\25\
The committee should also make clear that the CRPD Committee does
not possess the authority to dictate the meaning of the Convention to
states parties. Its interpretation of the terms of the Convention, the
obligations it imposes, and any recommendations and general comments
are entitled only to respect and consideration by the member states.
The committee should serve a technical, administrative role as opposed
to a substantive, adjudicatory, or quasi-lawmaking role. The United
States, not a committee of international disability experts, retains
the final authority to interpret the terms of the Convention and
determine its international obligations.
This committee has in the past proposed an understanding regarding
the authority of a human rights expert committee. Specifically, a
committee report in 2002 proposed the following understanding as a
condition to ratification of CEDAW: ``Accordingly, the United States
understands that the Committee on the Elimination of Discrimination
Against Women has no authority to compel actions by States
Parties.''\26\
non-self-execution
U.S. ratification of the Convention would make it ``the Supreme Law
of the Land'' under the supremacy clause of the Constitution.\27\
Although ratification would constitute a commitment under international
law, the text of the Convention gives no indication that its drafters
intended its provisions to be automatically enforceable under the
domestic law of the states parties.\28\
Nevertheless, to protect against any assertion to the contrary and
as recommended in the Transmittal Package, this committee should submit
a declaration that the Convention is not self-executing, meaning that
its provisions would not be enforceable in U.S. courts. Private causes
of action or other new avenues of litigation would thus require passage
of Federal legislation specifically implementing the Convention's
terms.\29\
``Non-self-executing'' declarations are common. In fact, the United
States has entered such declarations as a condition for ratifying the
three major human rights treaties to which it is a party: the
International Covenant on Civil and Political Rights (ICCPR),\30\ the
International Covenant on the Elimination of Racial Discrimination
(ICERD),\31\ and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT).\32\ The non-self-
executing declaration has also been proposed as a condition for CEDAW
ratification.\33\
Of course, the United States would be fully justified in entering
such a declaration. Existing State and Federal legislation already
provide private causes of action for the disabled in the United States,
including for instances of discrimination in employment, public
accommodations, transportation, telecommunications, housing and other
areas.\34\
The Transmittal Package recommends the inclusion of a non-self-
executing declaration, but for some reason includes a proviso that ``it
is not necessary that such Declaration be included in the instrument of
ratification deposited by the President.''\35\ Excluding the
declaration would be a departure from U.S. past practice, as the non-
self-execution declaration has been included in the U.S. instrument of
ratification in connection with the ICCPR, ICERD, and CAT.
``reproductive health''
For many years there has been a heated debate within the U.N.
system regarding abortion ``rights.''\36\ Apparently unwilling to use
the term ``abortion'' in the debate, the proponents of establishing
abortion as a human right use phrases such as ``reproductive rights''
and ``sexual and reproductive health'' as euphemisms for ``abortion
rights.'' The use of one such euphemism in the text of the Convention
has extended the abortion debate into the realm of disability rights.
Specifically, Article 25 of the Convention requires states parties to
``[p]rovide persons with disabilities with the same range, quality and
standard of free or affordable health care and programmes as provided
to other persons, including in the area of sexual and reproductive
health and population-based public health programmes.''\37\
Within the context of the debate over abortion rights, Article 25
of the Convention could be interpreted as ensuring that persons with
disabilities are provided access to free or affordable abortions,
assuming such access is provided to nondisabled persons by the state
party.
When the U.N. General Assembly approved the final text of the
Convention on December 13, 2006, more than one dozen nations, including
the United States, made official statements regarding their
interpretation of the phrase ``reproductive health.''\38\ The pertinent
part of the U.S. statement reads:
In that regard, the United States understands that the phrase
``reproductive health'' in subparagraph (a) of article 25 of
the draft Convention does not include abortion, and that its
use in that article does not create any abortion rights and
cannot be interpreted to constitute support, endorsement or
promotion of abortion. We stated that understanding at the time
of adoption of the Convention in the Ad Hoc Committee, and note
that no other delegation suggested a different understanding of
that term.\39\
However, that statement conflicts with the opinion of Secretary of
State Hillary Clinton regarding the meaning of ``reproductive health.''
On April 22, 2009, Secretary Clinton testified before the House Foreign
Affairs Committee, ``We happen to think that family planning is an
important part of women's health, and reproductive health includes
access to abortion, that I believe should be safe, legal, and
rare.''\40\
Due to this apparent conflict in the interpretation of
``reproductive health,'' this committee should clarify the nature of
the Convention regarding that phrase and its relationship to
abortion.\41\
Similar issues arose in this committee in 1994 and 2002 in the
context of CEDAW. In these instances, Senators raised the question of
whether abortion rights were to be inferred from certain language in
CEDAW that related to ``family planning.'' This committee issued two
reports (in 1994 and 2002) submitting understandings that the U.S. will
``determine which health care services are appropriate in connection
with family planning, pregnancy, confinement and the post-natal period.
. . .'' Moreover, in the 2002 report the committee required as a
condition to the Senate's advice and consent an understanding
explicitly stating that nothing in CEDAW ``shall be construed to
reflect or create any right to abortion and in no case should abortion
be promoted as a method of family planning.''\42\
Abortion remains one of the most heated social issues being debated
in the United States among activist groups, State and Federal
legislatures, and courts at all levels, including the U.S. Supreme
Court. Introducing an ``international'' opinion on the matter from a
group of disability experts ensconced in Geneva is unlikely to resolve
or advance the debate in the United States.
defining the convention's terms
It stands to reason that an international treaty designed to end
discrimination on the basis of ``disability'' should provide a working
definition of that term, yet the Convention provides none.\43\ In fact,
the treaty clouds any legally workable definition of disability by
stating in its opening paragraphs that ``disability is an evolving
concept.''\44\ Such ambiguity invites abuse by persons or groups who do
not suffer from a recognized medical disability, yet seek resources and
protection under the authority of the Convention. This would also
complicate implementation of the Convention in the United States, in
which the definition of ``disability'' is still regularly contested by
activists, litigants, and judges.
Under the Americans with Disabilities Act, a person is considered
disabled if he has ``a physical or mental impairment that substantially
limits one or more . . . major life activities,'' has ``a record of
such an impairment,'' or has been ``regarded as having such an
impairment.''\45\ Recent amendments to the ADA further clarified that
definition by defining ``major life activities'' to include ``caring
for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and
working'' and ``[m]ajor bodily functions.''\46\
Absent a definition or an ``evolving'' definition, ratification may
result in conflict between U.S. law and the Convention. The
administration has recognized the potential for conflict between the
definitions (or lack thereof) of ``disability'' and ``persons with
disabilities'' and has recommended an understanding to address the
issue.\47\
But that understanding falls short. To ensure that the United
States is not seen to consent to other key definitions the
understanding should be broadened to include the terms ``discrimination
based on disability,'' ``reasonable accommodation,'' and ``major life
activity.'' The CRPD Committee may interpret these terms differently
than Congress or U.S. courts would interpret them. For instance, a
committee of experts recently questioned the United States on whether
the definition of ``racial discrimination'' under U.S. law comported
with the terms of the ICERD.\48\
The United States has similarly qualified terminology in previous
treaties. For example, when the United States ratified the United
Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, it entered an understanding that
substituted its own definition of ``torture,'' which differed from the
Convention's definition.\49\ The United States also entered a
reservation that limited the treaty's definition of ``cruel, inhuman,
or degrading treatment or punishment'' to prohibit only those acts
considered cruel, inhuman, or degrading treatment or punishment under
the U.S. Constitution.\50\
U.S. membership in the Convention would produce, at best, an
intangible, incalculable, and marginal public diplomacy benefit in the
international community. The United States need not become party to the
Convention to demonstrate its commitment to the rights of persons with
disabilities or to advance the cause of the disabled in other nations.
Any nation that questions U.S. dedication to protecting Americans with
disabilities need only review the architecture of State and Federal
laws and the network of State and Federal agencies that enforce those
laws.
On the domestic front, persons with disabilities in the United
States would be better served by a continual review of the
implementation of existing State and Federal laws. The U.S. Congress,
American civil society, and special interest groups are far better
positioned to conduct such reviews than a committee of disability
experts from Bangladesh, China, Qatar, and Tunisia, which are current
members of the CRPD Committee.
In addition to the reservations, understandings, and declarations
(RUDs) included in the President's Transmittal Package, this committee
should include additional RUDs in its resolution of advice and consent
to ratification. At a minimum, the following RUDs should be made:
Definitions. The Transmittal Package recommends an
understanding in regard to the definition of ``disability'' and
``persons with disabilities,'' but there are several other
crucial definitions, including some that are defined by the
Convention, that should be addressed. An understanding along
the following general lines would make clear that the United
States is not obligated to accept the CRPD Committee's
interpretation of these terms:
The United States would consider itself bound by the obligations
of the Convention only insofar as the terms ``disability,''
``persons with disabilities,'' ``discrimination based on
disability,'' ``reasonable accommodation,'' and ``major life
activity'' are defined coextensively with the definitions of
such terms pursuant to the relevant laws in the United States.
The Authority of the CRPD Committee. An understanding along
the following general lines would make clear that the United
States considers the role of the Committee on the Rights of
Persons with Disabilities to be technical and advisory, as
opposed to authoritative or adjudicatory:
The United States understands that the Committee on the Rights of
Persons with Disabilities has no authority to compel actions by
states parties, and the United States does not consider
conclusions, recommendations, or general comments issued by the
committee as constituting customary international law or
legally binding on it in any manner.
``Reproductive Health.'' To remain consistent with the U.S.
understanding of the term ``reproductive health'' at the time
that the Convention was adopted in 2006, an understanding along
the following lines should be included in the resolution of
advice and consent:
The United States understands that the phrase ``sexual and
reproductive health'' in Article 25(a) of the Convention does
not include abortion, and its use in that Article does not
create any abortion rights, and cannot be interpreted to
constitute support, endorsement, or promotion of abortion, and
in no case should abortion be promoted as a method of family
planning.
These RUDs, in addition to those recommended in the Transmittal
Package, could limit, although not eliminate, the danger that the
Convention would pose to U.S. law and American sovereignty. Regardless,
even with the inclusion of the aforementioned RUDs, U.S. ratification
will not advance its national interests. Nor will it advance the cause
of Americans with disabilities.
Current U.S. law meets or exceeds the provisions of the Convention,
and mere membership in the Convention will not convince the
international community that America protects the rights of its
disabled citizens. Moreover, ratification of the Convention may harm
U.S. national interests because human rights treaty committees
increasingly view themselves as the legislators of binding
international norms, instead of as experts fulfilling the technical
roles they were intended to perform.
----------------
End Notes
\1\Convention on the Rights of Persons with Disabilities, art. 1.
\2\Ibid., arts. 10, 12, 14, and 21.
\3\Ibid., arts. 24, 25, and 28.
\4\U.N. Office of Legal Affairs, Treaty Section, ``Status:
Convention on the Rights of Persons with Disabilities,'' United Nations
Treaty Collection,'' at http://treaties.un.org/pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en (July 10, 2012).
\5\Edith M. Lederer, ``US Signs Disabled Rights Treaty,'' ABC News,
July 30, 2009, at http://abcnews.go.com/US/wireStory?id=8215921 (April
15, 2010).
\6\Message from the President of the United States transmitting the
Convention on the Rights of Persons with Disabilities, 112th Cong., 2d
Sess., Treaty Doc. 112-7, May 17, 2012, at http://www.gpo.gov/fdsys/
pkg/CDOC-112tdoc7/pdf/CDOC-112tdoc7.pdf (July 10, 2012).
\7\U.S. Constitution, art. VI, cl. 2.
\8\Transmittal Package, Tab 1-2, pp. 83-93.
\9\29 U.S.C. Sec. 791 et seq.
\10\42 U.S.C. Sec. 12101 et seq., later amended by the ADA
Amendments Act of 2008, Public Law 110-325 (enacted on September 25,
2008).
\11\20 U.S.C. Sec. 1400 et seq. The Education for All Handicapped
Children Act, the predecessor legislation to IDEA, was enacted in 1975.
\12\42 U.S.C. Sec. 3601 et seq.
\13\42 U.S.C. Sec. Sec. 255, 251(a)(2); 49 U.S.C. Sec. 41.705; 42
U.S.C. Sec. Sec. 1973ee et seq.; 42 U.S.C. Sec. Sec. 1997 et seq.; 42
U.S.C. Sec. Sec. 4151 et seq. See also U.S. Department of Justice,
Civil Rights Division, Disability Rights Section, ``A Guide to
Disability Rights Laws,'' September 2005, at http://www.ada.gov/
cguide.htm#anchor64984 (April 15, 2010).
\14\U.S. Department of Justice, Civil Rights Division, ``Disability
Rights Section Home Page,'' at http://www.justice.gov/crt/drs/
drshome.php (April 15, 2010). See also Americans with Disabilities Act,
``ADA Home Page,'' at http://www.ada.gov (April 15, 2010).
\15\For example, see Cancer Legal Line, ``State Disability
Discrimination Laws,''http://www.marrow.org/PATIENT/Support_Resources/
Patient_Teleconferen/PDFs/Aug.6.08.Handout-State_Disability_Laws.pdf
(April 15, 2010); Disability.gov, ``Information by State,'' at http://
www.disability.gov/state/index (April 15, 2010).
\16\Convention on the Rights of Persons with Disabilities, art.
36(1).
\17\Committee on the Rights of Persons with Disabilities,
``Concluding observations,'' Tunisia, CRPD/C/TUN/CO/1, May 13, 2011, at
http://www2.ohchr.org//SPdocs/CRPD/5thsession/CRPD-C-TUN-CO-1_en.doc
(July 10, 2012); Spain, CRPD/C/ESP/CO/1, October 19, 2011, at http://
www.ohchr.org/Documents/HRBodies/CRPD/6thsession/CRPD.C.ESP.CO.1_en.doc
(July 10, 2012); Peru, CRPD/C/PER/CO/1, May 9, 2012, at http://
www.ohchr.org/Documents/HRBodies/CRPD/7thsession/CRPD.C.PER.CO.1-
ENG.doc (July 10, 2012). The Committee may have completed reports on
Argentina, China, and Hungary, but if so the reports are not yet
available online.
\18\Steven Groves, ``The Inequities of the U.N. Committee on the
Elimination of Racial Discrimination,'' Heritage Foundation
Backgrounder No. 2168, August 7, 2008, at http://www.heritage.org/
Research/InternationalOrganizations/bg2168.cfm. See also Committee on
the Elimination of Racial Discrimination, ``Concluding Observations of
the Committee on the Elimination of Racial Discrimination: United
States of America,'' CERD/C/USA/CO/6, February 2008, at http://
www.universalhumanrightsindex.org/documents/824/1310/document/en/
text.html (April 15, 2010).
\19\Patrick F. Fagan, ``How U.N. Conventions on Women's and
Children's Rights Undermine Family, Religion, and Sovereignty,''
Heritage Foundation Backgrounder No. 1407, February 5, 2001, at http://
www.heritage.org/Research/Reports/2001/02/How-UN-Conventions-On-Womens;
Grace Melton, ``CEDAW: How U.N. Interference Threatens the Rights of
American Women,'' Heritage Foundation Backgrounder No. 2227, January 9,
2009, at http://www.heritage.org/Research/Reports/2009/01/CEDAW-How-UN-
Interference-Threatens-the-Rights-of-American-Women; and Wendy Wright,
``CEDAW Committee Rulings,'' Concerned Women for America, August 27,
2002, at http://www.cwfa.org/articledisplay.asp?id=1870 (April 15,
2010).
\20\U.N. Office of the High Commissioner for Human Rights,
``General Comment No. 24: Issues Relating to Reservations Made upon
Ratification or Accession to the Covenant or the Optional Protocols
Thereto, or in Relation to Declarations Under Article 41 of the
Covenant,'' CCPR/C/21/Rev.1/Add.6, November 4, 1994, at http://
www.unhchr.ch/tbs/doc.nsf/(Symbol)/69c55b086f
72957ec12563ed004ecf7a (April 15, 2010).
\21\Observations by the Governments of the United States and the
United Kingdom on Human Rights Committee General Comment No. 24 (52)
relating to reservations, U.N. document A/50/40, p. 1, March 28, 1995,
at http://www.iilj.org/courses/documents/USandUKResponses.pdf (April
15, 2010).
\22\Office of the U.N. High Commissioner for Human Rights and World
Health Organization, ``The Right to Health,'' Fact Sheet No. 31, June
2008, p. 10, at http://www.ohchr.org/Documents/Publications/
Factsheet31.pdf (April 16, 2010).
\23\U.S. Department of State, ``Observations by the United States
of America on `The Right to Health, Fact Sheet No. 31,''' October 15,
2008, at http://www.globalgovernancewatch.org/docLib/
20081222_Health_USG_Paper.pdf (April 16, 2010).
\24\Restatement (Third) of the Foreign Relations Law of the United
States Sec. 102(2) (1987), and Curtis A. Bradley and Jack L. Goldsmith,
Foreign Relations Law, 2nd ed. (New York: Aspen Publishers, 2006).
\25\For a critique of the ``modern position'' that customary
international law is applicable or enforceable within the United
States, see Curtis A. Bradley and Jack L. Goldsmith, ``Customary
International Law as Federal Common Law: A Critique of the Modern
Position,'' Harvard Law Review, Vol. 110, No. 4 (February 1997), p.
815.
\26\Convention on the Elimination of All Forms of Discrimination
Against Women, Senate Exec. Rept. 107-9, 107th Cong., 2d Sess.,
September 6, 2002, p. 13. Citing a July 8, 2002, letter from Secretary
of State Colin Powell, the report stated, ``State Parties have always
retained the discretion on whether to implement any recommendations
made by the Committee.''
\27\``This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.'' U.S. Constitution, art. VI, cl. 2.
\28\``This Court has long recognized the distinction between
treaties that automatically have effect as domestic law, and those
that--while they constitute international law commitments--do not by
themselves function as binding federal law.'' Medellin v. Texas, 552
U.S. 491, 504 (2008).
\29\``International agreements, even those directly benefiting
private persons, generally do not create private rights or provide for
a private cause of action in domestic courts.'' 2 Restatement (Third)
of Foreign Relations Law of the United States Sec. 907, Comment a, p.
395 (1986).
\30\``That the United States declares that the provisions of
articles 1 through 27 of the Covenant are not self-executing.''
International Covenant on Civil and Political Rights, December 16,
1966, in United Nations, Treaty Series, Vol. 999, p. 171 and Vol. 1057,
p. 407, ``Declarations and Reservations,'' United States, Declaration
(1), at http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (April 16, 2010).
\31\``That the United States declares that the provisions of the
Convention are not self-executing.'' International Covenant on the
Elimination of Racial Discrimination, Declarations and Reservations,
United States, III, at http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&
mtdsg_no=IV-2&chapter=4&lang=en#EndDec (April 19, 2010).
\32\``That the United States declares that the provisions of
articles 1 through 16 of the Convention are not self-executing.''
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, New York, 10 December 1984, United Nations,
Treaty Series, vol. 1465, p. 85, ``Declarations and Reservations,''
United States, III, at http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (April 19,
2010).
\33\``The United States declares that, for purposes of its domestic
law, the provisions of the Convention are non-self-executing.''
Convention on the Elimination of All Forms of Discrimination Against
Women, Senate Exec. Rept. 107-9, p. 13, September 6, 2002.
\34\Americans with Disabilities Act (ADA), 42 U.S.C.
Sec. Sec. 12101 et seq.; Rehabilitation Act of 1973, 29 U.S.C.
Sec. 794; and ADA Amendments Act of 2008, Public Law 110-325.
\35\Transmittal Package, p. 82.
\36\See Douglas Sylva and Susan Yoshihara, ``Rights by Stealth: The
Role of UN Human Rights Treaty Bodies in the Campaign for an
International Right to Abortion,'' International Organizations Research
Group White Paper No 8, reprinted 2009, at http://www.c-fam.org/docLib/
20100126_IORG_W_Paper_Number8FINAL.pdf (April 16, 2010).
\37\Convention on the Rights of Persons with Disabilities, art.
25(a) (emphasis added).
\38\See Susan Yoshihara, ``UN Adopts Disabilities Treaty, Many
States Reiterate Rejection of Abortion,'' Catholic Family & Human
Rights Institute Friday Fax, December 14, 2006, at http://www.c-
fam.org/publications/id.492/pub_detail.asp (April 16, 2010).
\39\U.N. General Assembly, 61st Session, 76th plenary meeting, U.N.
Doc. A/61/PV.76, December 13, 2006, p. 7 (July 10, 2012).
\40\Hearing, New Beginnings: Foreign Policy Priorities in the Obama
Administration, Committee on Foreign Affairs, U.S. House of
Representatives, 111th Cong., 1st Sess., April 22, 2009, at http://
foreignaffairs.house.gov/schedule.asp?showdate=4/22/2009&adj=4/22/2009
(emphasis added) (April 16, 2010).
\41\Article 10 of CRPD, titled ``Right to life,'' requires that
``States Parties reaffirm that every human being has the inherent right
to life and shall take all necessary measures to ensure its effective
enjoyment by persons with disabilities on an equal basis with others.''
This provision is seemingly inconsistent with an interpretation of
``reproductive health'' that requires access to abortion.
\42\Convention on the Elimination of All Forms of Discrimination
Against Women, Senate Exec. Rept. 103-38, 103d Cong., 2d Sess., October
3, 1994, and Convention on the Elimination of All Forms of
Discrimination Against Women, Senate Exec. Rept. 107-9.
\43\There is no definition of ``disability'' in the operative
definition section of the Convention (Article 2 ``Definitions''). The
failure to reach consensus on the definition of ``disability'' was the
result of a dispute concerning whether the term ``disability'' should
be a medical concept or a social concept. Language describing
disability as an ``evolving concept'' certainly leans toward a more
social definition. See Susan Yoshihara, ``The Quest for Happiness,'' in
Brett D. Schaefer, ed., ``ConUNdrum: The Limits of the United Nations
and the Search for Alternatives'' (Lanham, Md.: Rowman & Littlefield
Publishers, 2009), p. 182.
\44\Convention on the Rights of Persons with Disabilities,
Preamble, para.(e).
\45\Americans with Disabilities Act, 42 U.S.C. Sec. 12102(2).
\46\Public Law 110-325, Sec. 4(a)(2)(A) (September 25, 2008).
\47\Transmittal Package, p. 8.
\48\The CERD Committee rapporteur questioned the U.S. definition of
racial discrimination in regard to the necessity to prove intentional
discrimination versus practices that are facially neutral but have an
unlawful disparate impact upon members of a protected class. Committee
on the Elimination of Racial Discrimination, ``Questions Put by the
Rapporteur in Connection with the Consideration of the Combined Fourth,
Fifth and Sixth Periodic Reports of the United States of America (CERD/
C/USA/6),'' March 7, 2008, pp. 13-15, at http://www.state.gov/
documents/organization/107362.pdf (April 19, 2010).
\49\Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, December 10, 1984, in United
Nations, ``Treaty Series,'' Vol. 1465, p. 85, ``Declarations and
Reservations,'' United States, II(1), at http://treaties.un.org/Pages/
ViewDetails.aspx?src=
TREATY&mtdsg_no=IV9&chapter=4&lang=en (April 19, 2010).
\50\Ibid., I(1).
Senator Coons. Thank you, Mr. Groves.
Mr. Lancaster.
STATEMENT OF JOHN LANCASTER, FIRST LIEUTENANT, U.S. MARINE
CORP, RET., RETIRED EXECUTIVE DIRECTOR OF THE NATIONAL COUNCIL
ON INDEPENDENT LIVING, WASHINGTON, DC
Mr. Lancaster. Thank you. Thank you, Senator Coons, Senator
Lugar, other members of the distinguished Foreign Relations
Committee. Thank you for the opportunity to testify on the
Convention on the Rights of Persons with Disabilities.
I, too, ask that my full testimony be entered into the
record.
I join 21 veterans organizations and over 165 disability
organizations in supporting the CRPD. I request that you
support ratification of this treaty and move it to a floor vote
in the Senate as soon as possible.
I have served the United States in a variety of capacities,
first as a second lieutenant in the Marine Corps during the
Vietnam war, and then as a veteran on disability issues both
within the Government and private sector. I have focused my
entire career on the rights of people with disabilities.
My firsthand experience with disability began east of Hue
City in Vietnam. I had been commissioned as second lieutenant
United States Marine Corps upon graduation from the University
of Notre Dame. In 1968, I had orders to Vietnam. Five months
into my service, I was shot and injured in a fire fight.
Although my friends and family welcomed me home as a
disabled veteran, society did not receive me so well. While
there were tensions around the politics of the Vietnam war, it
was the inaccessibility of my environment that made me feel
unwelcome. I returned to a country not ready to accept a man
who now used a wheelchair.
I experienced denial of the simplest pleasures, such as
going to a restaurant with my family. My alma mater even wanted
to deny my law school application based on the campus's then
inaccessibility.
I struggled with needless environmental obstacles and
barriers ever present in my daily life. That is, until the
United States enacted our disability laws. I can tell you that
today our returning servicemembers with disabilities are
welcomed home to a country that will not deny them any
opportunity or freedom.
As George H.W. Bush said when signing the ADA, let the
shameful walls of exclusion finally come tumbling down. I am so
pleased to see that President Bush is an advocate for the CRPD,
as we heard earlier, and is able to now see the global impact
the ADA is making.
I tell this story of the ADA because it is the disability
movement in the United States that has sprouted similar
movements abroad and inspired the global treaty that we are
here to discuss. In 2001, the drafting of the CRPD answered our
call for a global framework on this important issue.
Civil society contributed in an unprecedented way. Drawing
from the ADA, the CRPD seeks to ensure that people with
disabilities are accepted in society, receive reasonable
accommodations, and are guaranteed options for community living
and rights to a family life. The adoption of the treaty in 2006
was an incredible accomplishment and has led to the development
of disability rights around the world.
If the United States has accomplished so much, then why
ratify, you have been asking. For one, I believe that U.S.
participation on the treaty implementation will yield even more
progress and will offer expertise and technical knowledge that
many other countries do not have in the area of disability
rights.
From a veteran's perspective, I think we have much to gain
from improved accessibility in the world. Accessibility is a
major challenge for American athletes--or I want to back up a
second.
Today, some disabled soldiers and Marines remain on Active
Duty in spite of their disability, continuing to serve. These
servicemembers and their families should be afforded the same
opportunities outside the United States as they enjoy here.
Many veterans like myself are engaged in international work
in some capacity. In 2000, a project funded by the U.S. Agency
for International Development on which I worked, I spent 4
years in Hanoi as an adviser to the Vietnamese Government on
disability law, policy, and programs. In Hanoi, accessible
transportation was rare. So rare that I would have to hold onto
a cyclo or bicycle rickshaw to get around.
Following its signing of the CRPD in 2007, Vietnam began
planning for an accessible rapid bus system in Hanoi, and that
system is now under development. And I submit that Vietnam is
waiting to see what we, the United States, do before it
ratifies this treaty.
The CRPD is a wonderful tool to help ensure sustainability
of U.S. aid dollars spent overseas on disability-related
issues, while also expanding access for Americans with
disabilities who may choose to work abroad.
Accessibility is also a major challenge for American
athletes with disabilities, many who are veterans, who
frequently travel internationally to compete. As this committee
considers this treaty, the world will be turning their eyes to
London for the Paralympics and the Olympics. As we send our
teams off to compete, we should do so with a favorable vote on
the CRPD.
As the treaty package reveals, the United States has an
incomparable set of laws that protect the rights of people with
disabilities. Looking around the room today, you can see
prosthetics, wheelchairs, software, and communications
technologies developed by the United States. Many of these
products are engineered, manufactured, or sold by U.S.
corporations that can meet the new demands of parties seeking
to implement their own disability legislation.
The United States has valuable information on law and
technology to share with the rest of the world, not only for
the benefit of the world's 1 billion people with disabilities,
but specifically for 54 million Americans who may wish to work,
serve, study, and travel abroad.
In 2012, 22 years after the passage of the ADA, it is
unacceptable that many Americans with disabilities still cannot
leave their own borders without the fear of stigma, barriers,
and denial of the opportunity to participate in the place that
they are visiting.
Ratifying the CRPD costs nothing. It requires no changes in
law, as we have heard today. It provides us the leadership
opportunity to advance and sustain disability rights globally.
Not joining this treaty comes with a grave cost--the
inability of the United States to participate and lead and the
loss of the opportunity to take a stand for what is right.
Forty-two years after serving my country in Vietnam, I still
believe in the liberty and freedom we enjoy in the United
States and, frankly, our responsibility individually and
collectively as a nation to serve and participate not only here
at home, but globally.
I am proud of this country and our laws, and I urge you, on
behalf of 21 veterans organizations and 165 disability
organizations, to support ratification of this treaty so that
we can contribute and continue to contribute America's noble
history of leadership.
Senators, make us proud. Thank you.
[The prepared statement of Mr. Lancaster follows:]
Prepared Statement of John Lancaster
Senator Kerry, Senator Lugar, and members of the Foreign Relations
Committee, thank you for the opportunity to testify on behalf of
American veterans and civilians with disabilities on an issue extremely
important to us, the Convention on the Rights of Persons with
Disabilities. As a disabled veteran, I join 21 veterans service
organizations and over 165 disability organizations in supporting the
CRPD. I respectfully request that you support U.S. ratification of this
disability treaty and move it to a floor vote in the Senate.
Let me provide some background on my career and experience. I have
served the U.S. in a variety of capacities. First, as a Second
Lieutenant in the Marine Corps during the Vietnam war, then as an
attorney for the Board of Veterans Appeals, and later as an Executive
assistant to the Chairman and then Executive Director of the
President's Committee on Employment of People with Disabilities. I am
currently a Board Member of the U.S. Institute of Peace. As a private
citizen, I have also served as the Executive Director for the National
Council on Independent Living, worked with Paralyzed Veterans of
America, and sit on the boards of Handicap International, the United
States International Council on Disabilities and the World Institute on
Disability.
As you can likely surmise, I have focused my entire career on the
rights of people with disabilities. My firsthand experience with
disability was early in my youth. I was commissioned a Second
Lieutenant in the Marine Corps upon graduation from the University of
Notre Dame and the Naval ROTC program in June 1967. After additional
training, I had orders to Vietnam. I joined the Marine Corps because of
a firm belief in the liberty, freedom, and opportunity our United
States Constitution ensures. I believed then, as I do now, in our
responsibility to serve our great country and what, at its best, we
represent to all mankind. In 1968, I arrived in Vietnam during the Tet
Offensive, assigned to the 1st Battalion, 27th Marines as an Infantry
Platoon Commander. Five months later, I was shot and injured in a
firefight. After months of rehabilitation, I arrived back home in
western New York a disabled veteran. Although my friends and family
welcomed me home, society did not receive me quite as well. While there
was certainly tension around the politics of the Vietnam war, it was
the inaccessibility of my environment that made me feel the least
welcome. I returned to a country not ready to receive me as a man who
now used a wheelchair. Let me give you some examples. Buses were not
equipped for wheelchair users, neither were trains. Airline companies
at the time did not want to deal with wheelchairs. Most buildings,
including government buildings, were not accessible. I experienced
denial of the simplest pleasures such as going to a restaurant with my
family. Even my own alma mater wanted to deny me the opportunity to
advance my education. When I applied for law school at Notre Dame, I
was told that although I qualified they could not accept me because the
school was inaccessible. It was only when I agreed to make my own
arrangements and bring my own chair that they accepted me. I graduated
in 1974 with a law degree in spite of these unfortunate barriers. The
employment discrimination I experienced as a young attorney was
unbelievable. The only ones who would hire me were the VA's Board of
Veterans Appeals.
For many years, I struggled with needless environmental obstacles
and barriers ever-present in my daily life. That is, until the U.S.
enacted, in what I believe one of its proudest moments, the Americans
with Disabilities Act under President George H.W. Bush. This law led
the way for people with disabilities to be accepted in society. It
removed people from isolation and segregation, and allowed us to enjoy
the fruits of our country with our family and friends without having to
bear the shame and stigma of being born with or having acquired a
disability. In 1991, a year after the ADA passed, I had the pleasure to
serve as an assistant to Justin Dart, the Chairman of the President's
Committee on Employment of People with Disabilities under the George
H.W. Bush administration. When President Clinton assumed Presidency,
the committee's new Chair, Tony Coelho, appointed me as the Executive
Director. In my 9 years with the committee, I traveled to every state
in the country several times assisting business and government leaders
in the ADA's implementation. I witnessed the historic changes brought
about by the ADA. I can tell you that today our returning
servicemembers with disabilities are welcomed home to a country that
will not deny them any opportunity or freedom. As President George H.W.
Bush had intended, this law crumbled the shameful walls of exclusion. I
am so pleased to see that that President Bush is an advocate for the
CRPD and is able to now see the global impact that this law is making
22 years later.
I tell this story of the ADA in our country because it is the
movement of the United States disability community that has sprouted
similar movements abroad and has inspired this global treaty that we
are here to discuss today. The American disability community as a whole
worked tirelessly to see the ADA passed, including veterans, the deaf
community, people with developmental disabilities, and parents of
people with disabilities. Following its enactment, we saw an incredible
rise in the development of disability civil society abroad taking
similar action to achieve their rights. As we all began to work
together and informally share ideas and experiences, we decided that it
was time for a global framework that would pave the way for a world
that would protect the dignity and freedom of people with disabilities.
The U.S. disability community was eager to participate.
In 2001, the drafting of the Convention on the Rights of Persons
with Disabilities began. Civil society contributed in an unprecedented
way. Many of those in the room with us today were part of the
disability community weighing in on the key principles of this
important treaty. Drawing from the ADA, the CRPD seeks to ensure that
people with disabilities are accepted in society, receive reasonable
accommodations (a concept invented by the United States), and are
guaranteed options for community living and rights to a family life.
The adoption of the treaty in 2006 was an incredible accomplishment and
has led to the development of disability rights around the world. For
the record, let me name a few. Kenya, who ratified the treaty in 2008,
worked to specifically include the rights of persons with disabilities
in their new 2010 Constitution. Nigeria, a country that has a history
of serious discrimination against children with albinism, has created a
ministerial committee on albinism since their ratification of the
treaty in 2010. Moldova, who also ratified in 2010, is currently using
the CRPD to develop a roadmap for new methods to approach disability
domestically with a particular focus on de-institutionalization. The
United Arab Emirates, since ratifying the CRPD, has enacted a new law
that focuses on promoting positive attitudes toward disability and
improving building codes to provide accessibility. These are just a few
examples, but the reality is that the CRPD is beginning to have a
significant impact around the world.
If the United States has accomplished so much then why ratify, you
might ask. For one, I believe that U.S. participation on treaty
implementation will yield even more progress and will offer the
expertise and technical knowledge that many of these countries do not
have in the area of disability rights. From a veteran perspective, I
think we have much to gain from the improved accessibility of the
world. Today, some disabled soldiers and Marines remain on Active Duty
in spite of their disability, continuing to serve their country. These
servicemembers should be afforded the same rights outside the United
States as they enjoy here. For a disabled veteran working abroad, the
adoption of disability rights and implementation of disability laws
allows them to do their jobs more effectively and reaffirms what they
served for: liberty and the opportunity to participate. Let me add,
that I speak also for the many servicemembers and veterans abroad who
travel with their children with disabilities. A more accessible
environment in the countries where they are stationed will no doubt
serve these children well. Many veterans, like myself, are engaged in
international work in some capacity. From 2000 to 2004, I worked in
Hanoi as an advisor to the Vietnamese Government on disability law,
policy, and programs. The project was funded by the U.S. Agency for
International Development. In Hanoi, accessible transportation was rare
so I would hold onto a cyclo, a bicycle rickshaw, to get around.
Following their signature of the CRPD in 2007, Vietnam began planning
for an accessible rapid bus system in Hanoi. This system is now under
development. The CRPD is a wonderful tool to help ensure the
sustainability of USAID dollars spent overseas on disability related
issues while also expanding access for veterans with disabilities, like
myself, who choose to work in these countries.
Veterans with disabilities have contributed to the American
disability movement in many ways, including through participation in
sport and recreation. This has destroyed stereotypes and created
positive messages about equality, dignity, and worth. Accessibility is
a major challenge for American athletes with disabilities during these
international trips. From being compelled to deal with air travel
regulations that force them to sit in the back of an airplane and crawl
to the aircraft bathroom, to pilots who refuse to take them or their
gear onboard, to hotel accommodations that have limited or no
accessibility, to competition facilities with inaccessible bathrooms,
showers, and locker rooms--American athletes face countless
discriminatory and inaccessible obstacles abroad.
Despite these challenges, the 2012 Paralympic Games later this
summer demonstrates the growth and interest in sport for athletes with
disabilities. As this committee considers this treaty the world will be
turning their eyes to London for both the Olympics and Paralympics. The
International Paralympic Committee has confirmed that 165 countries--19
more than in Beijing 4 years ago--will send more than 4,200 competitors
to the Games making it the largest Paralympic competition to date. The
U.S., a leader in sport for people with disabilities, sends one of the
largest teams, and our athletes are some of the best trained and
coached in the world. This year's delegation will also feature many new
athletes with disabilities--veterans and Active Duty service men and
women--who are finding success competing in Paralympic sport.
Regrettably they are subjected to the same inhospitable conditions
created by the lack of accessibility in the international travel and
sporting environments found in other countries. As we send our teams
off this summer, and celebrate their success in international
competition, we should do so with a favorable vote on the CRPD behind
us. Ratification of the CRPD is a must for the U.S. to remain
competitive since our athletes must compete in international
competitions to obtain and maintain their international rankings.
These are just a few examples of why it is in the United States
interest to ratify the CRPD. As the treaty package presented to the
Senate reveals, the U.S. has an incomparable set of laws that protect
the rights of people with disabilities. Looking around this room today,
you can see the prosthetics, wheelchairs, software and communications
technologies developed by the United States. As more countries ratify
at an unprecedented pace, the need for accessible devices and software
steadily increases for people with disabilities around the world. Many
of these products are engineered, manufactured, or sold by U.S.
corporations that can meet these new demands. Indeed, the CRPD is good
for all American businesses. It will level the playing field for
foreign businesses. They will now have to comply with the employment
rights and the accommodation requirements that U.S. businesses already
meet. The United States has valuable information to share with the rest
of the world, not only for the benefit of the world's 1 billion people
with disabilities, but specifically for the 54 million people with
disabilities who may wish to work, serve, study, and travel abroad. In
2012, 22 years after the passage of the Americans with Disabilities
Act, it is unacceptable that many Americans with disabilities cannot
leave the borders of the United States without the fear of stigma,
barriers, and denial of their rights.
Ratifying the CRPD costs nothing, will require no changes in law,
and provides us the leadership opportunity to effectively guide a
framework for countries to advance and sustain disability rights in
their own country. Not joining this treaty, however, comes with a grave
cost: the inability of the U.S. to participate and the loss of an
opportunity to take a stand for what's right. Forty-two years after I
served our country in Vietnam, I still believe in the same principles
of why I first enlisted: I stand behind a firm belief in the liberty
and freedom we enjoy in the United States and our responsibility to
serve and participate. I am proud of this country and our laws and I
urge you, on behalf of 21 veterans service organizations and 165
disability organizations, to support ratification of this treaty so
that we can participate and continue America's noble history of
leadership.
Senator Shaheen [presiding]. Thank you very much, Mr.
Lancaster.
As you can see, we have had a little bit of a revolving
gavel this morning. I will be, hopefully, chairing until the
end of the hearing. I am the person with the most flexible
schedule this morning, apparently.
And with that in mind, I would like to ask Senator Durbin
to go first with his questions.
Senator Durbin. Thanks, Senator Shaheen.
I think Senator Kerry saved the best for last in terms of
your chairing this hearing.
Senator Shaheen. That is very nice. Thank you.
Senator Durbin. Thank you.
General Thornburgh, thank you for being here, and your
testimony I reviewed.
Mr. Wodatch, thank you for your continuing work in this
area on disability rights.
And Mr. Lancaster, thank you for serving our country so
nobly and for speaking on behalf of the 20-plus veterans
organizations that have endorsed this Convention. But thank you
for being here and explaining why it is so important from the
veterans' point of view.
Dr. Farris, politicians are often accused of saying one
thing and then contradicting it with something else. And I am
going to give you a chance to clear up something in your
testimony which I think is contradictory.
You have bold print here in reference to this treaty,
calling it ``false'' and ``misleading.'' ``This treaty requires
radical changes to American law,'' and you go so far as to say
this treaty would, ``violate the principles of American
sovereignty and liberty.'' That is, I think, almost as strong
as I have ever read. It suggests that this treaty is a
blockbuster change in terms of law and sovereignty.
But then, then in the same statement, you quote Professor
Louis Henkin, who says that when you put reservations on a
treaty, you are pretending to assume international obligations
but, in fact, undertaking nothing. And then you go on to say
the message will be that treaties are for show and have no more
impact than you want them to have.
Dr. Farris, you can't have it both ways. This can't be the
end of American sovereignty as we know it and still be some
pretend effort that has no impact whatsoever. So which is it?
Dr. Farris. Senator, I think you misunderstand the nature
of my argument from Professor Henkin. What Professor Henkin is
addressing is the approach of ratification that says we are not
going to do anything more than existing law. He says that is
inappropriate.
I don't think that that is what is going on here, but that
is what we have heard all day long, that we are doing nothing
more than just simply ratifying, recommitting ourselves to
obeying existing American law. And if that is what the treaty
is about, if that was true, then the treaty does nothing and is
callous and misleading.
But it is not what the treaty does because I enter this
with the assumption that the United States is going to obey the
treaty in good faith. And if we are going to obey the treaty in
good faith, then we have the obligation to conform our law to
the principles of it.
In legal terms, Senator Durbin, I have argued in the
alternative, which often happens. And if one thing is true,
then one critique applies. If something else is true, if the
other alternative is true, then the other critique applies. I
assume that we are going to be complying with the treaty and
not doing what Iran has done and said, we are going to obey the
treaty when we want to and we are not going to obey the treaty
when we don't want to.
Senator Durbin. Dr. Farris, we have ample testimony that
the Americans with Disabilities Act already is in full
compliance with the principles of this treaty. Let me address
one issue that has arisen several times.
Senator McCain made a point early on that he is proud of
his pro-life status when it comes to voting and is also
sensitive to the fact that many babies with disabilities
overseas are denied life. And if they are allowed to live, are
denied access, education, opportunities.
And this may change in other countries. We certainly hope
that it does. And now the argument comes in your testimony
that, in fact, this is somehow going to promote abortion.
I would like to call your attention to several things. In
2006, the National Right to Life Committee stated, quote, and
this is in reference to the same treaty as adopted by the
United Nations. And I quote from the National Right to Life
committee, ``Even though the treaty includes the undefined and
controversial term `reproductive health,' its inclusion cannot
legitimately be misinterpreted to include abortion or to create
any new rights, such as a right to an abortion.''
So said the National Right to Life Committee in 2006. The
National Right to Life Committee, the Holy See, and pro-life
countries that have signed the treaty all concluded that there
is no right to an abortion set forth in this treaty. Isn't it
true that the only folks to disagree with these leading pro-
life voices are you and Mr. Groves?
Dr. Farris. No, Senator. Three nations--Poland, Malta, and
one other that I mentioned in my testimony--have taken
reservations to Article 25 on the question of abortion. Those
nations were convinced that it was necessary, too. They read
the treaty the same way that I read the treaty.
And it is not a question of whether they have the right to
an abortion. The question is whether they have a right to
abortion funding. That would be the nature of Article 25.
Senator Durbin. Well, let me say, Dr. Farris, that what I
think was made clear in earlier testimony from the Department
of Justice is that we are ending discrimination. The existing
laws of the country will prevail in this circumstance, whatever
those laws may be, on controversial issues like this.
But I think that earlier statement raises some serious
questions about your conclusion.
Thank you.
Dr. Farris. Senator, may I respond briefly to that?
Senator Durbin. Sure.
Dr. Farris. What the Department of Justice was relying on
was simply the language of subsection (b) of Article 25. That
is not what all is in Article 25.
Article 25 contains other provisions beyond the
nondiscrimination provision. And the preamble and other
subsections of the treaty require the provision of full health
services. And there's no reason to believe that the provision
of full health services as defined by the treaty would
include----
Senator Durbin. Dr. Farris, there is an express statement
in the reservation that this does not create any personal cause
of action or right in the courts of the United States. Now,
unless you just reject that out of hand and don't want to read
it, I don't think you can take that position.
Thank you very much.
Dr. Farris. Senator, I am not taking----
Senator Durbin. I get the last word. I'm a Senator. Thank
you.
Senator Shaheen. Senator Lugar.
Senator Lugar. Without being too repetitious, let me just
say that, as I have heard the testimony from both of our
panels, essentially, we have had reservations to this treaty.
And they are meant to protect our laws, or various aspects that
were meant to be protected.
But the administration is advocating that we ratify the
treaty, because we would join a committee which serves as a
forum for reforms throughout the world, so that we have a place
around the table.
And we are able, on behalf of Americans who go to other
countries, as well as citizens of those countries, to bring
about changes that we believe would be constructive,
recognizing that the other countries with whom we are
discussing this may have reservations and decide that even
though we have very good will, in terms of humanity, they would
disagree on certain particulars as to what is going to occur in
their countries.
So essentially, the treaty provides for this forum that
brings about a worldwide discussion. And our thought is that
the example we present, and maybe other countries feel the same
way, would lead to humanitarian changes that were constructive,
and we would applaud those and feel that is valuable to have.
Now, some are arguing that we could participate in
international conversations in any event, and at least profess
the things we believe, and other countries might be moved to do
those things. And, therefore, that treaty is not necessary for
all of this.
My question, I suppose, is to ask the panel, why is the
treaty, the committee we have heard discussed today, that we
are not around the table with as it stands, important in the
form of a treaty, as opposed to our attempting to take the
initiative and maybe finding other fora in which our advocacy
for change is made and we try to be persuasive?
Would anyone like to volunteer as to why the treaty forum
is preferable?
Mr. Thornburgh.
Mr. Thornburgh. I think, Senator, what we have to recognize
as a leader in the area of disability rights is that we must
use every opportunity we have to spread the gospel, I guess one
might say, and at the same time recognize that this is a very
dynamic area.
Disability rights is a work in progress, and we have a lot
to contribute to the dialogue that ensues in the discussion of
that work in progress. And I am not prepared to say that we
couldn't learn from others' experience as time goes on.
The fact that it is a work in progress is evident by your
own experience in the Congress. As much as we revere the
Americans with Disabilities Act and have praised it rightfully
in our discussions today, in 2008, we needed the ADA Amendments
Act to adjust to certain court decisions and actions that had
taken place, to update, upgrade, if you will, that important
legislation.
That kind of dynamic is going to ensue one way or another
under this Convention as time goes on. And for us to turn our
back on the opportunity to make constructive contributions to
that dialogue, and to foster those improvements and changes
that might be necessary, would seem to me to be foolhardy in
the extreme if our commitment really is to the widest and
fullest enjoyment of disability rights.
None of this would involve us, in any of these changes, in
any change in our domestic law, necessarily, because, clearly,
to the point of exhaustion, I think we have made clear that
there is no sanction authority, no real capability on the part
of this committee or on the U.N. itself to force the United
States to make changes.
It is merely, I think, an important avenue for us to pursue
in seeing that our voice is heard and that we listen to others.
Senator Lugar. In essence, this Convention is an important
enough forum, as opposed to other committees or other fora we
might find somewhere in the world, this particular one is
important enough that it deserves this attention, because the
118 countries are there or because of the prestige now attached
to it.
I am trying to find specifically why this route is the
preferable one.
Mr. Wodatch. Let me add to the discussion. The disabilities
committee is one venue that the Convention sets up. There is
also an annual meeting at the U.N., a conference of state
parties. It was alluded to earlier by the State Department.
This is the meeting where the countries of the world who
have ratified come together to share their best practices, to
understand how they should move their laws, what their policies
should be, what their regulations should say.
I think if we ratified the treaty, we are able to
participate and bring U.S. expertise to those meetings. We can
bring discussions of how we have complied with the ADA in this
country in a low-cost manner, the importance of having
accessibility building codes that are meaningful, the
importance of enforcement mechanisms and how they can work in
their cultures and their legal systems.
Unless we have ratified the treaty, we don't get a place at
the table.
Senator Lugar. Thank you very much.
Thank you, Madam Chairman.
Senator Shaheen. Senator DeMint has requested that, since
he has to leave, he could go next.
So, Senator DeMint.
Senator DeMint. Thank you, Madam Chairman.
And I want to thank Senator Kerry and everyone. It has been
a great discussion. I appreciate all our panelists, all the
folks who have come today.
I think what we have done with disabilities in America is
probably one of those areas that makes us really proud to be an
American. We made incredible progress.
And as our panels have said today, we really inspire the
world to do better, and we helped to create the global
framework for what to do with disabilities. So what we have
done with the ADA has basically been codified by the United
Nations, and being shared all over the world, is something that
we should be proud of.
But one of the things I learned in my years in the private
sector, working with continuous quality improvement, is that we
can never accept the status quo. The United States can do even
better than we are doing.
And all of you know, being involved with veterans and
disabilities, that throughout the year, every year,
disabilities groups, veterans groups, are meeting. They're
talking. They're discovering ways to help the disabled more,
using new technologies. They're advocating with local, state,
Federal officials.
Some things are being done by governments. More things are
being done voluntarily by industry and builders and those who
are just trying to be more accommodating.
We cannot accept where we are.
And now, after we have inspired the world, to come in today
and say, well, we have to be a part of a legally binding
international treaty in order to lead the world, I know what's
going to happen after working in quality improvement. All of
these agencies and groups that are involved with disabilities
are going to be working to be prepared for this 4-year study.
Just like our teachers teach the test, we're going to see
our disabilities community preparing for the status quo, rather
than continuing what is happening. They have to please this
international committee with what we have already codified.
I am just convinced that aspirational goals are important,
but standards have to continuously improve. Protocols,
technologies, and, folks, there are so many ways, voluntarily,
through associations.
I know how qualities improve with peer groups, industry
groups around the country, coming together, voluntarily sharing
best practices, just continuing to raise those standards.
So I'm not advocating for no standards. I'm just advocating
for no status quo, because we need to continue to lead the
world.
In submitting to an international treaty, on one hand
saying it has no enforcement power and it is not legally
binding, and the other hand saying we have to be involved with
a legally binding international treaty, it's just completely
inconsistent.
We need to lead the world. We need to continue to make
progress in this area. But, folks, submitting ourselves--and
you can't say it's not submitting; we are signing a legal
document to be a part of something--I think it is going to lock
us into a status quo that is far beneath where the United
States needs to end up.
So this cause is too important. I want to be much further
than where we are 5 years from now, not trying to comply with
existing standards that we have today. And that is what is
going to happen under an international agreement, because, as
Dr. Farris has said, the United States follows the rules. If we
sign here that we are going to follow the rules of this treaty,
we will adapt our laws to what is in it.
So again, I thank everyone. I think it is important to
continue to bring it up.
Mr. Chairman, I appreciate the give-and-take that you have
allowed today. You have been very fair with the time.
I hope we can continue to progress with this.
But I hope we will all question whether or not we need to
be a part of a legal situation around the world, when what is
going on now, that everyone is saying is working, has been
because we set the standard for the world and they are
following us. We need to continue to raise that standard.
Thanks for allowing me to go out of turn.
Senator Shaheen. Senator Kerry.
The Chairman. Madam Chairman, thank you.
And thanks very much, Senator DeMint. I appreciate your
comments of a moment ago.
And I happen to agree with you, Senator.
I guess he is leaving. It's too bad, because I was about to
welcome him to the ranks of being the strongest proponent for
the rights of those with disabilities and wanting to advance it
faster.
But there is something incongruous in the notion that he
wants to do that--and I am not diminishing his genuine intent
to do it. There's just something fundamentally incongruous if
all of the advocates of day-to-day lifetime endeavor are saying
they need this treaty in order to best be able to do that.
So if you are talking about not being able to have two
things at the same time, he says you can't sign onto a treaty
and not accept the notion that there are real obligations
there. I happen to agree with him. I don't think anybody should
diminish that. I want real obligations there. And I think that
is what we are signing onto. And they are clear what they are.
So he is absolutely correct. You can't have it both ways
and say it doesn't mean anything, it's not going to have any
impact.
What it doesn't mean is that it requires something
different of the States or that the Federal Government is going
to impose something on the States. I mean, there's a whole
series of things that it doesn't mean.
But it does mean, we are trying to establish a standard
that is a high standard on a global basis, and the United
States happens to be further along in that, and it is not going
to require changes in our laws.
Now, I think we have to frame this accurately as we go
along here.
But, similarly, you can't say I want to advance the cause
for those with disabilities more than anybody else when
everybody in the community believes you have to have this
treaty to do it.
So I think the record has to show more clearly why the
members of the community specifically have come to that
conclusion that differs with someone like Senator DeMint or
others who oppose the treaty. What is it that really comes
through here?
Now, I have a number of questions to try to flesh that out
a little bit.
In your statement, Dr. Farris, you say that you deeply
resent the attempts by advocates of the treaty to mislead
members of the disabled community with a false promise, that
U.S. ratification will lead to material improvements when
Americans with disabilities travel to other nations.
Now, I want to give the advocates of the treaty an
opportunity to respond to that. I don't know if that happened
previously.
But I first want to make sure I understand why you are so
resentful of those advocates. Is your point that there is no
mechanism by which an American under this treaty could sue
Vietnam or the United Kingdom or whatever country they are
traveling in?
I mean, what is the point of how they are being misled
here?
Dr. Farris. The impression is being given by the
administration's materials and by the testimony today that if
we ratify these treaties, suddenly, when Americans travel to
other nations, it is going to be a more accessible environment.
The Chairman. OK, let me stop you there.
Mr. Wodatch, can you speak to that?
Mr. Wodatch. Certainly.
I believe the State Department testified earlier that
ratification, the results of ratification, will bring about
changes in the laws of other countries because of our
leadership and intervention with them. There will be changes in
their laws when we sit down with them and teach them and work
with them to develop an accessibility code that has the right
slope for a ramp, that has the right width for the door.
The Chairman. So is it the ``suddenly'' that you disagree
with, Dr. Farris? Or is it what Mr. Wodatch just said? He says
there will be changes.
Dr. Farris. There will be changes that are effective only
when there is domestic law at each level. American
ratification--the question is, does American ratification lead
to new laws in, let's say, Portugal relative to wheelchair ramp
levels and angles and so on.
And it is basically the argument, because we gain a seat at
this international table primarily for diplomats, we will
suddenly--that will translate into better laws in Portugal.
If that was true, if human rights treaties lead to improved
laws in other nations, and there was a track record for that,
we'd see it in other areas.
Take, for example, North Korea has ratified the ICCPR. Does
anybody in their right mind think that North Korea is living up
to international standards?
Sweden has ratified multiple international treaties,
including the ICCPR and the ICESCR, both of which have parents'
rights and education provisions. Yet Sweden kidnaps kids off of
planes who are on their way to another nation, where they are a
dual citizen, because they were homeschooling. They flaunt
their international obligations.
The point is, international obligations do not lead to
national legislation. What leads to national legislation are
political movements within those countries.
The Chairman. Will you speak to that, Mr. Wodatch?
Mr. Wodatch. I attended the sessions that developed this
Convention. And it was clear the United States has a different
view toward treaties. We will only ratify a treaty if we know
that we can comply with that treaty. The other nations of the
world do not follow that.
It became very clear, the countries of South America--
Ecuador and Mexico--who were very strong proponents of this
treaty, Chili, other countries came to us and said we need--to
get domestic law, we need a statement from the U.N. that this
is important. They need leadership from the United States to
say this is how it works when you ratify it.
The Chairman. You mean from the United States?
Mr. Wodatch. A statement from the United States, that we
will come and work with them.
And that has begun to happen already. If you look at the
countries that have ratified, they are making changes to their
domestic law.
Spain has brought about a new comprehensive law. Great
Britain has, for the first time, attempted to cover its private
sector to make it accessible. There are changes that will come
about. There will be more. And the ability of the United States
to work with those countries and have them develop disability
laws that are effective and pragmatic will bring about positive
results for not only the people of those countries with
disabilities, but for American citizens who travel and work and
live in those countries.
The Chairman. I think, Dr. Farris, one thing I would say to
you is, look, I mean, in all of our perfection here in the
United States, we have a lot of laws that we fall short on.
I used to be a prosecutor. We spent years and years trying
to deal with whether it is drugs or prostitution or gambling or
whatever. And we are not as effective as we like to think we
are in a lot of things. We fall short, but we are aspirational.
We have a standard. And we try to apply it as evenly as
possible. That is true among nations also.
And I think you are inevitably going to find one nation or
another that may not apply something as well. It doesn't mean
that you are not moving upward, ratcheting upward.
But let me just ask you, Mr. Lancaster, in your statement,
I don't see anywhere in it that you assert that Americans are
going to be given individual and enforceable rights under this
treaty when they travel abroad.
I understand that your point, and I have a stack of letters
from every conceivable disabilities and veterans advocacy group
making the same point, and that is that the Convention will
give the United States an additional tool by which we can
encourage other governments to adopt their own laws and improve
conditions for the disabled.
Now, No. 1, do I understand your point correctly, Mr.
Lancaster? And No. 2, do I understand that you have examples of
where, when you traveled abroad, you faced disability
challenges? And you believe this will, in fact, address some of
those?
Mr. Lancaster. Yes, you do understand me correctly,
Senator, and the points that I was making.
And yes, I do know of significant impact that the treaty is
already beginning to have on a number of countries. Let me give
you some quick examples.
The often-troubled country of Kenya, in 2010, has adopted
many of the principles that are contained in the treaty in
including people with disabilities in their new Constitution in
2010.
United Arab Emirates is making big moves around
architectural barrier standards, so that they can remove those,
and new buildings and facilities will be modified and new ones
will come online appropriately, so that they are accessible to
people with disabilities.
They have also put into law something that is a problem,
frankly, in many countries of the world, in many cultures, but
a law that is now encouraging the people in the society to look
differently at disability and to be accepting of people with
disabilities in a variety of walks of life. A very significant
move and something that in our culture we may not totally
understand but in their culture has huge impact.
Moldova is making significant change in their laws to make
sure that they aren't going the route of institutionalizing
people and putting kids away in special schools.
I know from the work that I have done in Vietnam and from
the years that I lived over there and continuing to follow it,
that since this treaty was passed, Vietnam is starting to make
moves in a variety of areas--transportation, the removal of
architectural barriers.
They are, frankly, looking to see how the United States is
going to do with this treaty. And I am not going to speak for
the Government of Vietnam, but I bet you they are waiting to
see whether we ratify before they ratify and really embrace
this movement. And they have done a lot of work, including
starting to refine their own disability law so that it does
comply with all the aspects of the Convention.
The Chairman. Let me just interrupt you there, if I can,
because I have gone over my time.
I have one more question. And I ask for indulgence to do
it, and then I will stop.
As I said, the record will remain open for a week.
But one other thing I would like to just get on the record,
if I can, and leave this question out there.
Dr. Farris, in your written statement, you say that the
treaty is going to require radical changes in American law. I
would like you to say what those radical changes would be and
particularly given the testimony to the effect that there would
be no changes required.
We can't have it both ways. It just can't require radical
changes and at the same time not require any, which is what we
have been told. And so I would like both Mr. Wodatch and
Attorney General Thornburgh to bear down on this question.
I would like you to answer first, Dr. Farris, and then I
would like both of you to bear down on, since the treaty is not
self-executing in the United States, it is hard for me to
understand, given the reservations and declarations and
understandings, there would be a change needed.
I would like Mr. Thornburgh, if you would also, General
Thornburgh, if you would point out to us the bottom line as to
why it is so critical to ratify this to advance the rights of
disabled people measured against what Dr. Farris is saying.
Dr. Farris. Senator Kerry, I, frankly, just don't accept
the conclusions by the State Department and the Department of
Justice concerning the effects of the reservations.
If you examine the details of the reservations, there was a
comparison of the federalism reservation in this treaty with
what was purported to be a federalism reservation in the ICCPR.
It is actually a federalism understanding in the ICCPR. The
language is different, and that difference is significant. We
have to drill down on specific language.
None of the testimony that has been proffered today--excuse
me. Most of the testimony that has been proffered today is at a
35,000-foot level. There's been very little drilling down on
the exact meaning of terms and articles. And because I proceed
on the premise that the United States will live up to its
obligations in good faith for ratifying the treaty, we have a
binding international obligation.
That doesn't mean some committee forces us to do it. We
force ourselves to live up to the international law that we say
we are going to live up to. And so the non-self-executing
provisions of the treaty doesn't mean we don't have to change
our laws. It only specifies which agency of government is
responsible for changing our law.
And the answer is, because of the virtue of that
declaration, Congress is responsible. The federalism provision
doesn't mean that there is no shifting in power between the
States and the Federal Government. That is not what it says.
That is not what it means. That is not what it will mean in
actual practice.
Congress will gain additional power, because under the
necessary and proper clause under the Constitution, Congress
has all the authority it needs to implement any duties that it
has. Once the United States ratifies a treaty, Congress, the
Nation, has the duty to comply with the treaty.
And so any law that is necessary and proper to comply with
that treaty is fair game and it is within our constitutional
prerogative. And that fits within the federalism reservation.
Basically, Congress will help plenary authority over all
these subjects, whereas the States currently have at least some
semblance of authority on these things.
The Chairman. So you believe that President George Herbert
Walker Bush and Attorney General Thornburgh and Majority Leader
Robert Dole, and a bunch of other people, just don't understand
the Constitution or can't read the law?
Dr. Farris. I believe they reached incorrect conclusions
about the meaning of the reservations.
The Chairman. You have your opportunity to defend
yourselves, gentlemen.
Mr. Wodatch. The treaty, as ratified, that the
administration is proposing, would include a series of
reservations, understandings, and declarations. But I think we
start with the treaty first.
And the treaty first is a nondiscrimination treaty. Its
core is equal opportunity. Its core is to give people with
disabilities in the country that ratifies the treaty the same
rights that people without disabilities have.
We start from that premise. Even Article 7 about children
that Dr. Farris talked about, the first Article 7 provision 1
talks about ``on an equal basis with others.'' It, by its own
terms, is a nondiscrimination provision.
But the administration's very careful package of
reservations, understandings, and declarations takes the treaty
further. And once they are included in the treaty, they become
the treaty.
Therefore, the reservation on federalism talks about the
allocation of responsibility between State and local government
and Federal Government, and says that the United States is
undertaking its obligations under this treaty with an
understanding that it will follow the laws of the Federal
Government and not change the laws of the State or local
governments. That becomes part of the treaty.
Therefore, the State law on civil commitment, on
guardianship, on parental rights, will remain unchanged by this
treaty.
The same thing with the reservation on private conduct is
very important, because it will exclude that zone of private
activity that is protected by the United States Constitution,
as well as give meaning to the U.S. laws that we enforce.
For example, Title I of the ADA applies to employers, but
it applies to employers with 15 or more employees. What the
private conduct reservation says is, our understanding of our
obligation under this treaty will be to follow the laws that we
have.
Therefore, the treaty will not by its operation change the
U.S. law or the exemptions in the U.S. law for covering
churches, for covering private homes, or for covering small
businesses.
The understanding that talks about economic, social, and
cultural rights, that is a very important understanding, says
that there will be no new rights. You can read some of the
provisions of this treaty as creating rights that we have not
recognized. That understanding is very important. It says that
our understanding of how we will comply with this treaty is by
looking at the laws of the United States. And the package the
administration sent forward includes a very comprehensive list
of those laws that I think we have all agreed are the gold
standard for the world to follow on what are disability rights
for people with disabilities.
And then the non-self-executing declaration makes clear
that no one--there are no individually enforceable rights, and
no one can take this treaty and enforce it in the United
States.
The Chairman. In the interest of time, if I could ask you
to give a quick answer, and then we can get the full answer.
Mr. Thornburgh. I will give you a very quick answer,
because I am not as good a lawyer as John Wodatch is.
[Laughter.]
Mr. Thornburgh. I see nothing in this proposed treaty and
its reservations, understandings, and declarations as part of
the administration package that would oblige the Government of
the United States at the Federal, State, or local level to
undertake any action whatsoever. Nor do I see any limitations
upon what the governments of the United States at the Federal,
State, or local level can do in the ordinary pursuit of their
constitutional responsibilities.
The Chairman. Well, I thank you for that very much. When I
hear the former Attorney General of the United States, who I
know is a terrific lawyer, saying you are not as good a lawyer,
it is that old, ``I'm just a country lawyer'' routine.
[Laughter.]
We've heard that before a few juries in our lifetime.
Thank you very much, all of you. I really appreciate you
being here very, very much.
Madam Chairman, thank you.
Senator Shaheen. Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
And thanks to each of you for joining us today. I am
honored by your presence and appreciate your insight into these
matters.
Mr. Groves, I wanted to start with you. And I would like to
turn, if we can, to Article 46 of the Convention, with regard
to reservations.
It says that reservations incompatible with the object and
purpose of the present convention shall not be permitted. I
don't know whether you can answer this for me or not, but I am
curious as to who is the arbiter of this? Who decides whether
or not there is a compatibility problem with the reservation,
between a reservation and the Convention itself?
Mr. Groves. Thank you, Mr. Lee.
I mean, the Committee on the Rights of Persons with
Disabilities will certainly and definitively believe that they
are the arbiter of what is and what is not the object and
purpose of the Convention.
This would be just the latest in a continuing pattern of
treaty rights bodies over in Geneva who have said, over the
objections of U.S. officials in both the Clinton and Bush
administrations, that they are the final say on what the terms
of a treaty mean. They are the ones who have the final say on
how the treaty shall be applied and whether your domestic laws
are in compliance or in violation of the norms and values that
the committee has interpreted.
So make no mistake about it. And the United States is
regularly requested by treaty body committees to remove
reservations and understandings and declarations that we have
submitted when we have ratified these treaties.
So my view is that the committee would believe themselves
to be the definitive judge on that.
Senator Lee. OK, OK.
One of the reasons that that provision, Article 46, caught
my attention was because I started noticing some interesting
language throughout the Convention that Dr. Farris referred to
in his written remarks.
Dr. Farris, I was wondering if you could just tell us
briefly about the dichotomy between what you referred to in
your written statement--on the one hand, civil and political
rights, as they're recognized under the rubric of international
conventions, and on the other hand, economic, cultural, and
social rights?
Dr. Farris. Yes, Senator Lee, thank you for the chance to
explain that.
In human rights laws, they are basically five segments of
human rights--civil, political, economic, social, and cultural
rights. That division is most celebrated in the two treaties,
the ICCPR, the International Covenant on Civil and Political
Rights, and the ICESCR, the International Covenant on Economic,
Social, and Cultural Rights.
Nondiscrimination is a civil or political right. It is what
government cannot do to you. It cannot discriminate against
you. It cannot deny you freedom of speech. It cannot deny you
the freedom of religion.
The American constitutional rights that we know, including
the equal protection clause, including the Bill of Rights, are
all negative rights in terms of the rubric of international
human rights laws.
Positive rights--economic, social, and cultural rights--are
what the government must to do for you. If you just think of
the word ``entitlements,'' you understand the nature of an
economic, social, and cultural rights.
And the reason the United States has never joined the
International Covenant on Economic, Social, and Cultural Rights
is because of a longtime understanding in international law
that commits us, essentially, to a program of socialism.
Senator Lee. And do we have any treaty currently enforced
that the United States has ratified that embraces economic,
social, and cultural rights?
Dr. Farris. There is no treaty that the United States is a
party to today where economic, social, and cultural rights are
a chief feature. There may be some stray references here or
there in other treaties.
But as a core feature, treaties like CEDA or the CRC, the
Convention of Rights for Children, and other economic, social,
and cultural rights treaties, we have not ratified them
precisely because it commits our Nation to a program of
internationally monitored socialism, what the government must
furnish the people.
This would be the first treaty in U.S. history where we--
and that's the reason I said it was so radical, is that it
would be the first treaty to commit us to international
government programs of socialism through the ESC, or the
economic, social, and cultural rights provisions.
And I don't believe that the understanding--first of all, I
don't place too much weight in understandings. I'd rather have
reservations. The understanding the United States has written
in this regard doesn't say we're not going to do this. It just
says we are going to do it pursuant to Federal law, which on
the one hand, the treaty creates the obligation to engage in
these economic, social, and cultural rights. And the ESCR
understanding just says we are going to do it according to
Federal law.
It doesn't say insofar as such rights are recognized and
implemented under existing U.S. Federal law. If it said that,
then OK. Then it means what everybody has been purporting it to
mean.
But it doesn't say existing Federal law. It just means
Federal law has got to comply with the treaty relative to these
matters.
Senator Lee. So you don't see that understanding with
respect to economic, social, and cultural rights as an opt-out
by the United States of an effort by this Convention to embrace
economic, social, and cultural rights?
Dr. Farris. I read that understanding to assign
jurisdiction to Congress to comply with it. That's it. It
doesn't give that responsibility to States. It gives that
responsibility to Congress.
It is an assignment of jurisdiction. It is not a denial of
any duties of the United States to comply with the rights
created under the ESC rubric of the treaty.
Senator Lee. And there are some affirmative duties under
that, as far as I can tell. Unless I am reading it incorrectly,
I see Article 4 of the Convention, which deals with general
obligation of states' parties to the Convention.
Article 4, Section 2 says with regard to economic, social,
and cultural rights, each state party undertakes to take such
measures to the maximum of its available resources and, where
needed, within the framework of international cooperation, with
a view to achieving progressively the full realization of those
rights.
So you would interpret that there to say of those rights,
meaning those economic, social, and cultural rights.
Dr. Farris. There is no doubt that that is what that means.
If you would write any other answer on an exam in my class in
public international law, I would fail you for failing to
understand the meaning of a treaty.
You absolutely correctly said, if we are going to comply
with the treaty--now, all of my testimony is presumed that
America is going to comply with the treaty. If we are not going
to comply, then all my concerns go away.
But if we're going to comply with the treaty, we have a
duty to comply with the provisions relative to economic,
social, and cultural rights. And under the rubric of the
understanding, all it does is assign jurisdiction to Congress
to do the complying.
And so, yes, there are lots of things. The private action
provision in that same Article 4 says that no person shall
discriminate against any person on the basis of disability,
which, setting aside the RUDs for a second, and just taking the
treaty on its face, that means the traveling salesman comes to
my front door and wants to get into my house and he is in a
wheelchair and I don't have accessibility for him, then I am in
violation of the treaty.
The United States has a responsibility to pass laws to make
me make my house and every homeowner in America make their
house accessible, because no person can discriminate on the
basis of disability. ``No person'' is very broad. It means
everybody. It is every business, every home, everybody.
Now, the question is----
Senator Shaheen. Dr. Farris and Senator Lee, I am going to
cut you off at this point, because, Senator Lee, your time has
expired.
And I would still like to ask some questions, so given that
we're at the end of this hearing, I am going to reserve the
right to do that.
Senator Lee. Thank you, Chair.
Senator Shaheen. Thank you.
Mr. Lancaster, I want to go back to you, because I think
your effort to address the question about traveling and the
challenges that we face, and the difference that this treaty
might make for Americans in that respect got cut a little
short. So I want to go back and ask you, as the only person on
this panel who has personally had to experience the challenges
that members of our disabilities community face when they
travel here in America or abroad, if you could, again, address
why you think this treaty would make a difference for people
with disabilities?
Mr. Lancaster. Thank you, Senator.
I do think it will make a huge difference for us. And it is
not going to do it immediately. It takes a long time to change
attitudes and infrastructure. But it is already happening in a
number of areas in the world.
If you look at the European Union, they are making great
advances in terms of transportation, architectural barriers,
inclusive education, many things that we have been advocating
for years.
And it is the impotence of this Convention that has them
really stepping up. Countries like--I keep referring to
Vietnam, but it is a country that I have much experience with.
Vietnam, I know Thailand, are places where they have already
made significant changes to mass transit systems and are
working on making more and the build environment.
Again, inclusive education is another area where certain
countries in Southeast Asia are now starting to make steps,
because of this CRPD. And I think that that's a major, major
reason why we should join in ratification of that, is to give
further impetus to these changes, not only for our benefit, but
for the rest of the world.
And frankly, if I could just take a second here, Senator,
to tell you, I am appalled with some of the conversation that
has been going on here today, as a veteran, and as someone who
volunteered, laid my life on the line for freedom, rights,
dignity. And now to have this whole debate that we are not
willing to espouse that to the rest of the world, that we are
not willing to walk the talk in international circles, to step
up in a forum to advocate these things and to say we are not
afraid to sign this thing.
We aspire to what is in this Convention. This is what we
are about as a nation, including people, giving them freedom,
giving them rights, giving them the opportunity to work, to
learn, to participate.
Isn't that what we're about? Isn't that what we want the
rest of the world to be about? Well, if we aren't willing to
say this is a good thing, and to say it formally, what are we
about, really?
Senator Shaheen. I couldn't agree more fully. Thank you
very much, Mr. Lancaster.
Thank you all for testifying. This hearing is closed.
[Applause.]
[Whereupon, at 12:35 p.m., the hearing was adjourned.]
XI. Annex 2.--Material Submitted for the Record During Testimony
Letter From the Jewish Disability Network
Letter From the National Association of Councils
on Developmental Disabilities
Letter From President George Herbert Walker Bush
Supplemental List Provided by Eve Hill in Answer to a Question From
Senator James Risch During Her Testimony
______
______
Letter to Senator John Kerry and Also Sent to Richard Lugar From
Veterans and Military Organizations
May 30, 2012.
Hon. John Kerry,
Chairman, Senate Committee on Foreign Relations,
Washington, DC.
Dear Chairman Kerry: We the undersigned veterans and military
organizations are writing to urge the Senate Foreign Relations
Committee to favorably report the Convention on the Rights of Persons
with Disabilities (CRPD).
The CRPD is important to veterans and servicemembers with
disabilities because it embodies the principles of the Americans with
Disabilities Act (ADA). Like the ADA, the CRPD supports equal treatment
and non-discrimination in access to rehabilitation, employment and
educational opportunities. We support the principles of the ADA because
it promotes empowerment of our nation's veterans and servicemembers
with disabilities by providing the opportunity to achieve independent
living and inclusion into all aspects of society.
As organizations that represent veterans and servicemembers and
their families, we believe that the CRPD would remove barriers and
allow American servicemembers and veterans with disabilities to work,
serve, study, and live abroad. In part, barriers will be diminished due
to changing attitudes around the world regarding people with
disabilities. As a result of the changes occurring through the CRPD,
servicemembers and veterans with disabilities will be able to continue
leading active lives within the global community.
The United States must ratify the CRPD to reinforce our leadership
in the promotion of opportunities for veterans and servicemembers with
disabilities in the world community. Our nation established its
leadership on disability rights through the passage of the ADA. In
order to continue that leadership, the United States must once again
act to promote the rights of people with disabilities.
We appreciate your leadership on this issue and urge swift
ratification of the CRPD to ensure global disability rights. If you
have any questions, please contact Heather Ansley, Vice President of
Veterans Policy for VetsFirst, a program of United Spinal Association,
at (202) 556-2076, ext. 7702 or by e-mail at [email protected].
Sincerely,
AMVETS; Air Force Sergeants Association; Air Force
Women Officers
Associated; American GI Forum; Association
of the United States Navy; Blinded Veterans
Association; Disabled American Veterans;
Iraq and Afghanistan Veterans of America;
Jewish War Veterans; Military Officers
Association of America; National
Association for Black Veterans; National
Guard Association of the United States;
National Military Family Association;
Paralyzed Veterans of America; The American
Legion; Veterans for Common Sense; Veterans
of Foreign Wars; Veterans of Modern
Warfare; VetsFirst, a program of United
Spinal Association; Vietnam Veterans of
America; Wounded Warrior Project.
XII Annex 3.--Additional Questions and Answers Submitted for the Record
Responses of Judith Heumann to Questions Submitted
by Senator John F. Kerry
Question. Article 46, paragraph 1 of the Convention states that
``[r]eservations incompatible with the object and purpose of the
present Convention shall not be permitted.'' Does the administration
believe that the three reservations it has proposed are compatible with
the object and purpose of the Disabilities Convention?
Answer. Yes. The United States has a comprehensive network of
existing Federal and State disability laws and enforcement mechanisms.
In the majority of cases, existing Federal and State law meet or exceed
the requirements of the Convention. The proposed reservations make it
clear that, in the narrow circumstances that federalism or private
conduct concerns are implicated, the United States has limited its
obligations on the international plane to those that can be implemented
under existing law appropriate to our Federal structure.
Question. The administration has proposed three reservations to the
Convention. Article 46, paragraph 1 of the Convention states that
``[r]eservations incompatible with the object and purpose of the
present Convention shall not be permitted.''
Have any Parties to the Convention joined the Convention
subject to reservations similar to those that the
administration has proposed? If so, please describe them.
Have other Parties to the Convention lodged objections to
those reservations? If so, please describe how, if at all, this
impacts the legality under international law of the reservation
that the administration has proposed.
Answer. Other States Parties have not taken reservations similar to
those proposed by the administration.
______
Responses of Eve Hill to Questions Submitted by Senator John F. Kerry
Question. In his written testimony submitted to the Committee, Dr.
Michael Farris asserts that if the United States were to become party
to the Disabilities Convention, it would ``require[] radical changes to
American law.'' Does the administration agree with this assertion?
Answer. No. With the proposed reservations, understandings, and
declaration, the United States would be able to implement its
obligations under the Disabilities Convention using the existing laws,
regulations, and Federal enforcement mechanisms that afford protection
and guarantees of nondiscrimination to persons with disabilities.
Therefore, no new legislation, regulation, or enforcement mechanisms
would be required to ratify and implement the Disabilities Convention.
Question. In his written testimony submitted to the Committee, Dr.
Michael Farris asserts that, ``[t]oday, under the IDEA parents get to
decide what they think is best for their child--including the right to
walk away from government services and provide private or home
education. Under the UNCRPD, that right is supplanted with the rule
announced by Professor van Buren. Government officials have the
authority to substitute their views for the views of parents as well as
the views of the child as to what is best. If the parents think that
private schools are best for their child, the UNCRPD gives the
government the authority and the legal duty to override that judgment
and keep the child in the government-approved program that the
officials think is best for the child.'' Does the administration agree
with this interpretation of the Convention?
Answer. No. In light of the federalism and private conduct
reservations and the nondiscrimination understanding, no changes to
Federal, State or local law regarding the ability of parents in the
United States to make decisions about how to raise and educate their
children would be required as a result of ratification. Furthermore,
the recommended understanding on economic, social, and cultural rights
makes clear that in the context of the education of a disabled child,
the obligation of the United States under the Convention with regard to
consideration of the principle of ``best interests'' is limited to
nondiscrimination.
Question. In his written testimony submitted to the Committee, Dr.
Michael Farris asserts that, ``[a]ny and all parental rights provisions
in state education laws will be void by the direct application of
Article 7 of this treaty. Government--not parents--has the authority to
decide what is best for children.'' Does the administration agree with
this assertion?
Answer. No. Parental rights provisions in Federal and State
education laws will not be voided by Article 7 of the Disabilities
Convention. In light of the federalism and private conduct reservations
and the nondiscrimination understanding, no changes to Federal, State
or local law regarding the ability of parents in the United States to
make decisions about how to raise and educate their children would be
required as a result of ratification.
Question. In his written testimony submitted to the Committee, Dr.
Michael Farris asserts that, ``[e]ven with the presumption of the non-
self-executing nature of the treaty, if the Senate ratifies this
treaty, Congress will have the duty to revise the IDEA to comply with
the provisions of the UNCRPD. Therefore, unless we intend to breach our
international legal obligations, Congress will be required to modify
the IDEA to ensure that government decisionmakers, and not parents,
have the final say as to what they believe is best for a child.'' Does
the administration agree with this assertion?
Answer. No. Ratification of the Disabilities Convention will not
require Congress to modify existing law to provide that government
decisionmakers, and not parents, have the final say regarding the best
interests of a child. With the proposed package of reservations,
understandings, and a declaration, ratification of the Disabilities
Convention will not require any revision of the Individuals with
Disabilities Education Act or any other U.S. law or regulation. In
light of the federalism and private conduct reservations and the
nondiscrimination understanding, no changes to Federal, State or local
law regarding the ability of parents in the United States to make
decisions about how to raise and educate their children would be
required as a result of ratification.
In addition, the non-self-executing declaration is not a
``presumption'' but, as stated in the Secretary's Report (Treaty Doc.
112-7, pp. 3 and 82), provides that the Convention would not be
directly enforceable by U.S. courts or itself give rise to individually
enforceable rights. The Supreme Court treated a non-self-executing
declaration as dispositive in the case of Sosa v. Alvarez-Machain, 542
U.S. 692, 728, 735 (2004).
Question. In his written testimony submitted to the Committee, Dr.
Michael Farris asserts that, ''Article 25(a) [of the Convention]
commits the United States to providing free abortion services to
persons with disabilities.'' Does the administration agree with this
interpretation of the Convention?
Answer. No. The Convention is a nondiscrimination instrument that
simply provides what the Americans with Disabilities Act already
requires in the United States: that any health care programs and
benefits that are provided under domestic law, including those related
to ``sexual and reproductive health,'' also be afforded to persons with
disabilities on a nondiscriminatory basis. As the Secretary's report
makes clear (Treaty Doc. 112-7 page 59-61), the Convention does not
make any statement about abortion, does not create a right to abortion,
and does not promote abortion as a method of family planning. The
Convention leaves the matter to domestic law. Furthermore, the United
States is not bound to implement the Convention through any particular
program or funding mechanism.
______
Responses and Supplemental Responses of Judith Heumann and Eve Hill to
Questions Submitted by Senator Richard G. Lugar
Question #1. If the United States became party to the Convention,
would the Convention's obligations apply to conduct of the United
States that occurs outside the territory of the United States?
Answer. We do not read the Convention's obligations to apply to
U.S. conduct outside the United States, except insofar as the
Convention reaffirms such existing extraterritorial obligations as in
Article 11. The Convention additionally envisions international
cooperation measures under Article 32 (which addresses international
cooperation programs intended to assist foreign governments and
individuals with disabilities abroad, which the United States has
already established through USAID and the State Department). U.S.
ratification, moreover, would have positive effects outside the United
States. For example, it would give the United States a critical tool in
its bilateral and multilateral work to promote the rights of persons
with disabilities around the world, and it would enable the United
States to use treaty mechanisms (such as the Conference of States
Parties) to exchange best practices and to guide other States Parties
in their adoption of laws, policies, and practices to implement the
Convention.
Question #2. Apart from the provisions of Article 27 of the
Convention, with respect to which the administration has proposed an
understanding, would any aspect of the convention apply to military
operations conducted by the United States? What is the assessment of
the Department of Defense of the impact of any such application of the
convention's provisions?
Answer. Article 11 simply reaffirms existing obligations under
international law to protect persons with disabilities.
(Clarification): This is not a sufficient answer to Question 2.
Please provide more detail including an assessment from the Department
of Defense.
(Supplemental Response): The Department of Defense concurs that
application of the Convention's provisions, including Article 11, would
not have an effect on the Department's military operations conducted
outside the United States. Article 11 reaffirms existing obligations
under international law to protect persons with disabilities.
Question #3. Subsection (w) of the convention's preamble states
``Realizing that the individual, having duties to other individuals and
to the community to which he or she belongs, is under a responsibility
to strive for the promotion and observance of the rights recognized in
the International Bill of Human Rights.''
What is the ``International Bill of Human Rights'' referred
to in this subsection?
Does the administration believe that States have a legal
obligation to recognize the rights contained in the
``International Bill of Human Rights?'' If so, what is the
source of this obligation?
Does the administration interpret the convention to impose
legal obligations on individuals to strive for the promotion
and observance of the rights recognized in the International
Bill of Human Rights?
Does the administration interpret any other body of
international law, including customary international law, to
impose legal obligations on individuals to strive for the
promotion and observance of the rights recognized in the
International Bill of Human Rights?
Answer. The International Bill of Rights refers to the Universal
Declaration of Human Rights (from which the quoted language in Question
3 is drawn in part), which is not a legally binding instrument; the
International Covenant on Civil and Political Rights, to which the
United States is a party; and the International Covenant on Economic,
Social and Cultural Rights, which the United States has signed but not
ratified. States Parties to the legally binding instruments have an
obligation to recognize the rights contained in such instruments, as
ratified by them. Neither the Disabilities Convention nor any other
body of international law imposes legal obligations on individuals to
strive for the promotion and observance of the rights recognized in the
International Bill of Human Rights.
Question #4. What function do the ``General Principles'' contained
in Article 3 of the convention serve? Do the provisions of Article 3
give rise to any legal obligations independent of the convention's more
specific provisions directed to the conduct of States Parties?
Answer. As stated in the Secretary of State's Report (page 9 of
Treaty Doc. 112-7), the General Principles in Article 3 set forth the
overarching and animating objectives of the convention. Article 3 does
not give rise to any legal obligations independent of the convention's
more specific provisions directed to the conduct of States Parties.
Question #5. Article 4 provides that ``States parties undertake to
ensure and promote the full realization of all human rights and
fundamental freedoms for all persons with disabilities without
discrimination of any kind on the basis of disability.'' What are the
particular ``human rights and fundamental freedoms'' to which the
obligations in this article apply?
Answer. Article 4 imposes an obligation of nondiscrimination on the
basis of disability with respect to the human rights and fundamental
freedoms set out in human rights treaties ratified by the United
States. These include the International Covenant on Civil and Political
Rights, the Convention for the Elimination of All Forms of Racial
Discrimination, and the Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment.
Question #6. The Message from the President transmitting the
convention describes a number of existing U.S. Government programs that
promote the development and dissemination of mobility aids, devices,
and assistive technologies. The Message indicates that these programs
are consistent with the obligations contained in Articles 4(1)(f), (g),
and (h) of the convention. Would the convention obligate the United
States to continue these programs in their current form or prohibit the
United States from eliminating or reducing funding for them?
Answer. No. The United States is not bound to implement the
convention through any particular program or funding mechanism.
(Clarification): The above response was given for each of the
listed questions (#s 6, 15, 22, 24, 27). More explanation is required
for each of these questions.
(Supplemental Response): As stated in the Secretary of State's
Report (page 12 of Treaty Doc. 112-7), Article 4(1)(f), (g) and (h) are
implemented through a variety of programs and mechanisms. Ratification
of the Convention would not bind the United States to implement through
these or any other particular program or funding mechanism. For
example, a wide variety of U.S. programs provide funding for the
acquisition of assistive devices. These programs include the Department
of Health and Human Services' (HHS) Medicare and Medicaid programs,
ED's Centers for Independent Living programs, and the Social Security
Administration's SSI/SSDI programs, as well as vocational
rehabilitation programs, educational programs under IDEA, and programs
offered by the Department of Veterans Affairs (VA). In addition, the
HHS-backed Protection and Advocacy (P&A) Assistive Technology program
provides support and advocacy services to individuals with disabilities
on assistive technology issues. Other key Federal agencies, including
the EEOC and DOT, conduct extensive training efforts to diverse
audiences. ED's NIDRR relies on its Disability and Business Technical
Assistance Centers network to conduct technical assistance and operates
the ADA National Network, a national network of 10 regional ADA
Centers, to provide training, referrals, and resources to businesses,
employers, government entities, and individuals with disabilities, as
well as media and news reporters.
Question #7. Under Article 4(2), States undertake to take measures
``to the maximum extent of [their] available resources . . . with a
view to achieving progressively the full realization of'' economic,
social and cultural rights. Other articles of the convention address
specific economic and social rights, including with respect to
education, health, work and employment, adequate standard of living and
social protection, and participation in cultural life, recreation,
leisure and sport.
The administration has proposed an understanding regarding these
articles to the effect that the obligations of the United States in
respect of such economic, social, and cultural rights ``are to prevent
discrimination on the basis of disability in the provision of any such
rights insofar as they are recognized and implemented under U.S.
Federal Law.''
What particular economic, social, and cultural rights does
the administration understand to be recognized and implemented
under U.S. Federal Law such that the United States would
encounter treaty obligations in relation to them if the
convention were ratified subject to the proposed understanding?
To the extent that the United States does not recognize or
implement particular economic, social, or cultural rights
referred to in the convention, would the United States be
obligated to report to the Committee on the Rights of Persons
with Disabilities on its policies or practices with respect to
such nonrecognized rights?
Answer. The obligations of the United States under the convention
with respect to these rights would be limited to nondiscrimination,
similar to the obligation already undertaken by the United States in
Article 5(e) of the Convention for the Elimination of All Forms of
Racial Discrimination (CERD). CERD Article 5(e) provides that States
Parties undertake to ``eliminate racial discrimination . . . in the
enjoyment of the following rights:
(e) Economic, social and cultural rights, in particular
(i) The right to work, to free choice of employment . . . ;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social
security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural
activities;''
The Disabilities Convention would create no new rights in the
United States nor would it require the United States to recognize any
new rights. Under the recommended nondiscrimination Understanding,
ratification would not require any changes in the provision of, or
access to, education, housing, health care, employment, social security
and other social benefits, and cultural activities in the United
States.
With regard to reporting, Article 35 obliges a State Party to
submit a comprehensive report on measures taken to give effect to its
obligations under the convention. The United States would address its
implementation of the convention's nondiscrimniation obligation in its
report.
Question #8. The Message from the President transmitting the
convention states that ``the United States has not yet become a party
to the [Covenant on Economic, Social, and Cultural Rights].'' Does the
administration support U.S. accession to the Covenant on Economic,
Social, and Cultural Rights?
Answer. As indicated in the current Treaty Priority List, the
administration does not seek action on the Covenant on Economic, Social
and Cultural Rights at this time.
(Clarification): What is the administration's position on the
Covenant, and will the administration use the Disabilities Convention
to bolster the case for becoming a party to any treaty or agreement
referenced therein to which the United States is currently not a party?
(Supplemental Response): The administration does not seek Senate
action on the International Covenant on Economic, Social, and Cultural
Rights. As to treaties which the United States has not ratified, the
administration assesses each treaty on its own merits, and lists in its
Treaty Priority List those treaties for which the Department seeks
action at this time. Because the administration seeks the Senate's
advice and consent to ratification of treaties on a case-by-case basis,
ratification of the Disabilities Convention does not bolster the case
for ratification of other treaties.
Question #9. Article 4(3) provides that ``States Parties shall
closely consult with and actively involve persons with disabilities,
including children with disabilities, through their representative
organizations'' in the development and implementation of laws and
policies to implement the convention and in other decisionmaking
processes concerning issues related to persons with disabilities.
(9a) Would this provision apply to Congress so as to require
it to follow particular procedures when drafting and acting on
legislation related to persons with disabilities?
Answer. No. Ratification of the convention will not require
Congress to alter its procedures when drafting and acting on
legislation related to persons with disabilities. The United States
democratic legislative process affords disability rights organizations,
family members, concerned citizens and persons with disabilities an
opportunity to make their voices heard at the Federal, State, and local
levels of government throughout the legislative process.
(9b) Is the United States currently a party to any treaty
that contains similar obligations to consult with specific
groups when making laws, policies, or other governmental
decisions?
Answer. Yes. The United States has become a party to agreements
that require consultations with or participation by stakeholders. For
example, the United States is a party to the United Nations Convention
to Combat Desertification. Article 5 of this advice and consent treaty
provides, in part:
In addition to their obligations pursuant to article 4,
affected country Parties [which include the United States]
undertake to:
* * * * *
(d) promote awareness and facilitate the participation of
local populations, particularly women and youth, with the
support of nongovernmental organizations, in efforts to combat
desertification and mitigate the effects of drought. . . .
The International Convention Relating To Intervention On The High
Seas In Cases Of Oil Pollution Casualties, which concerns oil spills
from ships, provides another example. Article I of this advice and
consent treaty provides that States Parties may take necessary measures
on the high seas ``to prevent, mitigate or eliminate grave and imminent
danger to their coastline or related interests from pollution or threat
of pollution of the sea by oil, following upon a maritime casualty or
acts related to such a casualty, which may reasonably be expected to
result in major harmful consequences.'' Article III then provides, in
part:
(b) the coastal State shall notify without delay the proposed
measures to any persons physical or corporate known to the
coastal State, or made known to it during the consultations, to
have interests which can reasonably be expected to be affected
by those measures. The coastal State shall take into account
any views they may submit. . . .
In addition, free trade agreements, which are approved by the
Congress, and bilateral investment treaties, which are advice and
consent treaties, generally contain transparency provisions that call
on States Parties to provide interested persons a reasonable
opportunity to comment on proposed laws, regulations, procedures and
administrative rulings.
Moreover, as described in the Secretary's report transmitted to the
Senate with the convention, the U.S. democratic legislative process,
Americans with Disabilities Act requirements on public organizations,
and the public notice and comment process for regulations would all
provide for U.S. compliance with Article 4(3) of the convention without
the need to alter U.S. laws, regulations or practice.
Question #10. The administration has proposed a reservation to the
convention indicating that, to the extent that U.S. State and local
governments exercise jurisdiction over matters governed by the
convention, the obligations of the United States under the convention
would be limited to ``the Federal Government's taking measures
appropriate to the Federal system, which may include enforcement action
against State and local actions that are inconsistent with the
Constitution, the Americans with Disabilities Act, or other Federal
laws, with the objective of fully implementing the convention.''
The President's Message transmitting the convention observes that,
in some areas covered by the convention that are governed by U.S. State
and local law, ``some State and local standards are less vigorous than
the convention would require.''
(10a) Please describe the particular instances in which the
administration believes that relevant State and local standards
``are less rigorous than the convention would require.''
Answer. This answer responds to Question 10 as well as Questions
18, 20, 23, 25, and 26.
The areas in which State and local standards may be less rigorous
than the convention's requirements are narrow. The administration's
principal questions regarding State and local standards relate to
Articles 12, regarding guardianship, and Article 14, regarding civil
commitment. See Treaty Doc. 112.7 at pages 31 through 34 (regarding
Article 12) and pages 36 through 39 (regarding Article 14). The
Secretary's Report also identifies questions regarding Article 23 on
respect for home and the family, including those arising from
guardianship determinations. See id., at pages 53 through 55 (regarding
Article 23). With respect to Article 19 on living independently and
being included in the community and Article 24 on education, the
administration did not specify in the Secretary's Report concerns
arising regarding State or local laws because the requirements of
Federal law on nondiscrimination under the Individuals with
Disabilities Education Act and the administration's Olmstead v. L.C.,
527 U.S. 581 (1999) enforcement largely obviate resort to State law for
convention implementation.
(10b) With respect to the instances identified in response
to the question above, please describe the measures the
administration would intend to take consistent with the
proposed federalism reservation to give effect to the
convention's requirements.
Answer. The administration's questions about State and local law
being less rigorous than the convention's requirements have arisen with
respect to narrow areas of law and in limited circumstances. In most
cases, Federal law, which will implement the requirements of the
Disabilities Convention if ratified, requires State and local
governments to take remedial measure to bring their laws into
compliance with Federal law, such as the Federal Government's efforts
under Olmstead. The administration proposes a federalism reservation to
address the small gaps in implementation at the State and local level
that are currently beyond the reach of Federal enforcement. The
federalism reservation protects our Federal system, ensuring that the
Federal Government is not required to adopt any new laws or engage in
any new enforcement efforts to fill these gaps.
Question #11. Upon ratifying the convention, El Salvador made the
following reservation: ``The Government of the Republic of El Salvador
signs the present Convention on the Rights of Persons with Disabilities
and the Optional Protocol thereto, adopted by the United Nations
General Assembly on 13 December 2006, to the extent that its provisions
do not prejudice or violate the provisions of any of the precepts,
principles and norms enshrined in the Constitution of the Republic of
El Salvador, particularly in its enumeration of principles.''
Several other parties to the convention have objected to El
Salvador's reservation as being inconsistent with the object and
purpose of the convention.
(11a) What is El Salvador's status as a party to the
convention in light of its reservation and the objections to
it?
Answer. El Salvador is a party to the convention and has treaty
relations with all of the States Parties to the convention. Although
some States Parties to the convention have objected to El Salvador's
reservation, none of these States Parties has declined to enter into
treaty relations with El Salvador.
(11b) Does the administration regard El Salvador's
reservation as inconsistent with the convention's object and
purpose, or with international law regarding reservations to
treaties?
Answer. International law provides that States Parties may object
to other Parties' reservations to treaties, including on the basis that
such reservations are incompatible with the object and purpose of the
treaty. The convention itself provides in Article 46(1) that
reservations incompatible with the object and purpose of the convention
are not permitted. The convention also provides that reservations may
be withdrawn at any time. Because the United States is not a party, we
have not taken a position on El Salvador's reservation. If the Senate
grants its advice and consent to ratification, the United States will
have an opportunity to do so upon ratification.
Question #12. Article 6(1) provides that States shall take measures
to ensure the full and equal enjoyment by women and girls with
disabilities ``of all human rights and fundamental freedoms.'' What are
the particular ``human rights and fundamental freedoms'' to which the
obligations in this article apply?
Answer. Article 6(1) prohibits discrimination against women and
girls with a disability with respect to the human rights and
fundamental freedoms set out in human rights treaties ratified by a
State Party. For the United States, these include the International
Covenant on Civil and Political Rights, the Convention Against Torture,
and the Race Convention.
Question #13. Article 7(2) provides that ``In all actions
concerning children with disabilities, the best interests of the child
shall be a primary consideration.''
In discussing the implementation of this provision, the President's
Message transmitting the convention observes that ``Titles II and III
of the ADA protect children with disabilities from discrimination by
public entities and public accommodations,'' and describes enforcement
of these laws by the Department of Justice.
Does the administration interpret the reference in Article
7(2) to ``all actions concerning children'' as applying only to
situations involving discrimination? If not, please indicate in
what other contexts Article 7(2)'s requirements have potential
application and describe the measures the administration
believes would be necessary to give effect to Article 7(2) in
such contexts.
Answer. Any United States obligation under Article 7(2) would be
limited to nondiscrimination, including with regard to education, where
nondiscrimination is guaranteed under U.S. law by the Individuals with
Disabilities Education Act and the Americans with Disabilities Act. The
recommended Understanding on economic, social, and cultural rights
makes clear that in the context of the education of a disabled child,
the obligation of the United States under the convention with regard to
consideration of the principle of ``best interests'' is limited to
nondiscrimination.
(Clarification): Please provide more information in response to
this question.
(Supplemental Response): In light of the proposed federalism and
private conduct reservations and the nondiscrimination understanding,
no changes to Federal, State or local law regarding the ability of
parents in the United States to make decisions about how to raise and
educate their children would be required as a result of ratification.
With the proposed RUD package, ratification of the Disabilities
Convention will not require any revision of the Individuals with
Disabilities Education Act or any other U.S. law or regulation. In
particular, ratification will not require Congress to modify existing
law to affect consideration of the principle of best interests or to
provide that government decisionmakers, and not parents, have the final
say regarding the best interests of a child. In short, existing Federal
State and local law provide adequate protection to the interest of
parents to do what they think is best for their children and the
Convention will not disturb that complex of laws.
Question #14. Article 7(3) provides that ``States Parties shall
ensure that children with disabilities have the right to express their
views freely on all matters affecting them, their views being given due
weight in accordance with their age and maturity, on an equal basis
with other children.''
What actor or actors are responsible for determining the
weight to be given to the views of children with disabilities
as described in Article 7(3)?
Answer. In light of the proposed federalism and private conduct
reservations, to the extent that under domestic law actors determining
the weight of views of children with disabilities include State or
local governments or parents, there would be no change to Federal,
State or local law as a result of ratification.
Question #15. The Message from the President transmitting the
convention describes a number of existing U.S. Government programs that
promote the design, development, and distribution of accessible
information and communications technologies and systems. The Message
indicates that these programs are consistent with the obligations
contained in Article 9(2)(h) of the convention. Would the convention
obligate the United States to continue these programs in their current
form or prohibit the United States from eliminating or reducing funding
for them?
Answer. No. The United States is not bound to implement the
convention through any particular program or funding mechanism.
(Supplemental Response): As stated in the Secretary of State's
Report (page 25 of Treaty Doc. 112-7), Article 9(2)(h) is implemented
through a variety of programs and mechanisms. Ratification of the
Convention would not bind the United States to implement through these
or any other particular program or funding mechanism. For example, with
respect to promoting access to, and development of, new information and
technologies, Section 508 of the Rehabilitation Act, which requires
Federal agencies to make their electronic and information technology
accessible to persons with disabilities, has resulted in the
development of new technologies for accessible information. The Access
Board has issued ``Electronic and Information Technology Standards,''
see 39 C.F.R. Sec. Pt. 1194. The ATA targeted the removal of
environmental barriers and increased access to assistive and
universally designed technologies. See 29 U.S.C. Sec. 3001(b)(1). Other
government initiatives, e.g., the Interagency Council on Disability-
Related Statistics, promote public-private partnerships and research
opportunities to develop and make available assistive technologies. The
Communications Act of 1934, as amended by the Telecommunications Act of
1996, 47 U.S.C. Sec. Sec. 251(a)(2) and 255, requires manufacturers of
telecommunications equipment and providers of telecommunications
services to ensure that such equipment and services are accessible to
and usable by persons with disabilities, if readily achievable. The FCC
oversees five programs that help to ensure access to assistive
technology, including: closed captioning of video programming; access
to emergency information in video programming; Telecommunications Relay
Services; access to telecommunications services and equipment; and
hearing aid compatibility for telephones.
Question #16. Article 11 provides that ``States Parties shall take,
in accordance with their obligations under international law, including
international humanitarian law and international human rights law, all
necessary measures to ensure the protection and safety of persons with
disabilities in situations of risk, including situations of armed
conflict . . . ''
Does the administration interpret the convention to apply to
the conduct of U.S. military personnel participating in armed
conflict in Afghanistan or elsewhere? If not, why not?
Answer. Article 11 reaffirms existing obligations of States Parties
under international law. In this regard, Article 11 is also consistent
with DOD Directive 2311.01E, The Department of Defense Law of War
Program, which requires that members of DOD components comply with the
law of war during all armed conflict, and in all other military
operations.
Question #17. Article 12(4) provides that ``States Parties shall
ensure that all measures that relate to the exercise of legal capacity
provide for appropriate and effective safeguards to prevent abuse in
accordance with international human rights law.''
What are the relevant rules of ``international human rights
law'' referred to in Article 12(4) and what is the source of
these rules?
Answer. For the United States, the International Covenant on Civil
and Political Rights would be relevant as well as the Convention
Against Torture.
Question #18. The Message from the President transmitting the
convention states in connection with its discussion of Article 12 that
``many State constitutions and statutory provisions continue to limit
the full exercise of civil and political rights of persons deemed
incompetent.''
(18a) Please identify any State constitution or statutory
provisions in this regard that the administration believes
would be inconsistent with the obligations contained in the
convention.
Answer. The response to Question 10 also applies to Question 18.
The administration closely studied measures of implementation of
the Disabilities Convention, and identified that its principal
questions regarding State and local compliance relate to Articles 12,
regarding guardianship, and Article 14, regarding civil commitment. The
Secretary's Report identifies specific concerns regarding State law
arising under those Articles, including discussion of particular
States. See Treaty Doc. 112.7 at pages 31 through 34 (regarding Article
12) and pages 36 through 39 (regarding Article 14). The Secretary's
Report also identifies concerns regarding Article 23 on Respect for
home and the family, including those arising from guardianship
determinations. See id., at pages 53 through 55 (regarding Article 23).
With respect to Article 19 on Living independently and being included
in the community and Article 24 on Education, the administration did
not specify in the Secretary's Report concerns arising regarding State
or local laws because the requirements of Federal law on
nondiscrimination under the Individuals with Disabilities Education Act
and the administration's Olmstead v. L.C., 527 U.S. 581 (1999)
enforcement largely obviate resort to State law for convention
implementation.
(18b) With respect to the provisions identified in response
to the question above, please describe the measures the
administration would intend to take consistent with the
proposed federalism reservation to give effect to the
convention's requirements.
Answer. The administration's concerns about State and local law
being inconsistent with the obligations in the convention's have arisen
with respect to narrow areas of law and in limited circumstances. In
most cases, Federal law, which will implement the requirements of the
Disabilities Convention if ratified, requires State and local
governments to take remedial measure to bring their laws into
compliance with Federal law, such as the Federal Government's efforts
under Olmstead v. L.C., 527 U.S. 581 (1999). The administration
proposes a federalism reservation to address the small gaps in
implementation at the State and local level that are currently beyond
the reach of Federal enforcement. The federalism reservation protects
our Federal system, ensuring that the Federal Government is not
required to adopt any new laws or engage in any new enforcement efforts
to fill these gaps.
Question #19. Article 14(2) provides that ``States Parties shall
ensure that if persons with disabilities are deprived of the liberty
through any process, they are, on an equal basis with others, entitled
to guarantees in accordance with international human rights law and
shall be treated in compliance with the objectives and principles of
the present convention, including by provision of reasonable
accommodation.'' What are the relevant rules of ``international human
rights law'' referred to in Article 14(2) and what is the source of
these rules?
Answer. The relevant rules of international human rights law are
contained in the treaties on human rights ratified by the State Party.
For the United States, the provisions of the International Covenant on
Civil and Political Rights and the Convention Against Torture would be
relevant.
Question #20. The Message from the President transmitting the
convention states in connection with its discussion of Article 14 that
``Although State laws generally have adopted heightened due process
protections for persons with disabilities facing deprivations of their
liberty, gaps remain.''
(20a) Please identify any State laws in this regard that the
administration believes would be inconsistent with the
obligations contained in the convention.
Answer. The response to Question 18 also applies to Question 20.
The administration closely studied measures of implementation of
the Disabilities Convention, and identified that its principal
questions regarding State and local compliance relate to Articles 12,
regarding guardianship, and Article 14, regarding civil commitment. The
Secretary's Report identifies specific questions regarding State law
arising under those Articles, including discussion of particular
States. See Treaty Doc. 112.7 at pages 31 through 34 (regarding Article
12) and pages 36 through 39 (regarding Article 14). The Secretary's
Report also identifies questions regarding Article 23 on respect for
home and the family, including those arising from guardianship
determinations. See id., at pages 53 through 55 (regarding Article 23).
With respect to Article 19 on living independently and being included
in the community and Article 24 on education, the administration did
not specify in the Secretary's Report questions arising regarding State
or local laws because the requirements of Federal law on
nondiscrimination under the Individuals with Disabilities Education Act
and the Administration's Olmstead v. L.C., 527 U.S. 581 (1999)
enforcement largely obviate resort to State law for convention
implementation.
(20b) With respect to the laws identified in response to the
question above, please describe the measures the administration
would intend to take consistent with the proposed federalism
reservation to give effect to the convention's requirements.
Answer. The administration's questions about State and local law
being inconsistent with the obligations in the convention have arisen
with respect to narrow areas of law and in limited circumstances. In
most cases, Federal law, which will implement the requirements of the
Disabilities Convention if ratified, requires State and local
governments to take remedial measure to bring their laws into
compliance with Federal law, such as the Federal Government's efforts
under Olmstead v. L.C., 527 U.S. 581 (1999). The administration
proposes a federalism reservation to address the small gaps in
implementation at the State and local level that are currently beyond
the reach of Federal enforcement. The federalism reservation protects
our Federal system, ensuring that the Federal Government is not
required to adopt any new laws or engage in any new enforcement efforts
to fill these gaps.
Question #21. The Message from the President transmitting the
convention proposes a reservation to Article 15, which addresses
freedom from torture or cruel, inhuman, or degrading treatment or
punishment. The proposed reservation would make the obligations of the
United States under Article 15 subject to the same reservations and
understandings that apply for the United States with respect to
provisions of the Convention Against Torture and the International
Covenant on Civil and Political Rights that contain comparable
obligations.
Apart from the substantive obligations under Article 15
addressed by the administration's proposed understanding, will
the United States incur obligations to report on its compliance
with Article 15 to the Committee on the Rights of Persons with
Disabilities separately from reporting it currently makes to
committees under the Convention Against Torture and the
International Covenant on Civil and Political Rights?
Answer. The United States would address Article 15 in its report
submitted under Article 35 of the Disabilities Convention, and would
expect that any discussion of Article 15 in that report would rely
heavily on relevant sections of any recent reports submitted pursuant
to the Convention Against Torture and the International Covenant on
Civil and Political Rights.
Question #22. The Message from the President transmitting the
convention describes a number of existing U.S. Government programs that
monitor facilities and programs designed to serve persons with
disabilities with a view to preventing exploitation, violence, or
abuse. The Message indicates that these programs are consistent with
the obligations contained in Article 16(3) of the convention.
Would the convention obligate the United States to continue
these programs in their current form or prohibit the United
States from eliminating or reducing funding for them?
Answer. No. The United States is not bound to implement the
convention through any particular program or funding mechanism.
(Supplemental Response): As stated in the Secretary of State's
Report (page 42 of Treaty Doc. 112-7), Article 16(3) is implemented
through a variety of programs and mechanisms. Ratification of the
Convention would not bind the United States to implement through these
or any other particular program or funding mechanism. For example,
Article 16(3) requires effective monitoring by independent authorities
to prevent freedom from exploitation, violence, and abuse. DOJ's
enforcement of CRIPA allows it to independently monitor persons with
disabilities held in a wide variety of institutional settings, identify
any ongoing abuses, and mandate corrective measures to address any
abuse, exploitation, or violence. Additionally, Protection and Advocacy
(P&A) systems in each state are created by Federal law to monitor,
review, and protect rights of individuals to be free from exploitation,
violence, and abuse. HHS funds and monitors this comprehensive network
of Protection and Advocacy programs in each state that are authorized
to investigate incidents of abuse and neglect of persons with
disabilities and follow up reports of incidents or investigate if there
is probable cause to believe that such incidents have occurred. HHS's
Administration on Aging operates a number of Vulnerable Elder Rights
Programs that provide important protections against exploitation and
abuse of seniors, including those with disabilities. HHS's Substance
Abuse and Mental Health Services Administration (SAMHSA) has initiated
efforts to reduce and ultimately eliminate seclusion and restraint
procedures in behavioral health care settings through evaluation of
effective reduction practices, planning and implementation grants, and
policy development.
Question #23. The Message from the President transmitting the
convention states in connection with its discussion of Article 19 that
``although individual States and localities are in varying degrees of
compliance with the array of Federal laws that address Article 19,
there continues to be progress and refinement in approaches to achieve
full compliance, and DOJ along with other Federal agencies remain
vigilant in ensuring such compliance.''
(23a) Please identify any State or local practices in this
regard that the administration believes would be inconsistent
with the obligations contained in the convention.
Answer. The response to Question 18 also applies to Question 23.
The administration closely studied measures of implementation of
the Disabilities Convention, and identified that its principal
questions regarding State and local compliance relate to Articles 12,
regarding guardianship, and Article 14, regarding civil commitment. The
Secretary's Report identifies specific concerns regarding State law
arising under those Articles, including discussion of particular
States. See Treaty Doc. 112.7 at pages 31 through 34 (regarding Article
12) and pages 36 through 39 (regarding Article 14). The Secretary's
Report also identifies questions regarding Article 23 on respect for
home and the family, including those arising from guardianship
determinations. See id., at pages 53 through 55 (regarding Article 23).
With respect to Article 19 on living independently and being included
in the community and Article 24 on education, the administration did
not specify in the Secretary's Report questions arising regarding State
or local laws because the requirements of Federal law on
nondiscrimination under the Individuals with Disabilities Education Act
and the administration's Olmstead v. L.C., 527 U.S. 581 (1999)
enforcement largely obviate resort to State law for convention
implementation.
(23b) With respect to the laws identified in response to the
question above, please describe the measures the administration
would intend to take consistent with the proposed federalism
reservation to give effect to the convention's requirements.
Answer. The administration's questions about State and local law
being inconsistent with the obligations contained in the convention
have arisen with respect to narrow areas of law and in limited
circumstances. In most cases, Federal law, which will implement the
requirements of the Disabilities Convention if ratified, requires State
and local governments to take remedial measure to bring their laws into
compliance with Federal law, such as the Federal Government's efforts
under Olmstead v. L.C., 527 U.S. 581 (1999). The administration
proposes a federalism reservation to address the small gaps in
implementation at the State and local level that are currently beyond
the reach of Federal enforcement. The federalism reservation protects
our Federal system, ensuring that the Federal Government is not
required to adopt any new laws or engage in any new enforcement efforts
to fill these gaps.
Question #24. The Message from the President transmitting the
convention describes a number of existing U.S. Government programs that
provide funding for the acquisition of assistive devices. The Message
indicates that these programs would give effect to the obligations
contained in Article 20 of the convention.
Would the convention obligate the United States to continue
these programs in their current form or prohibit the United
States from eliminating or reducing funding for them?
Answer. No. The United States is not bound to implement the
convention through any particular program or funding mechanism.
(Supplemental Response): As stated in the Secretary of State's
Report (page 49 of Treaty Doc. 112-7), Article 20 is implemented
through a variety of programs and mechanisms. Ratification of the
Convention would not bind the United States to implement through these
or any other particular program or funding mechanism. For example, a
wide variety of U.S. programs provide funding for the acquisition of
assistive devices. These programs include Federal Medicaid, Medicare,
and Social Security SSI/SSDI programs, vocational rehabilitation
programs, which provide a variety of services and devices for the
purpose of assisting adults with disabilities to become independently
employed, and programs under IDEA, which require school districts to
provide assistive technology in the context of ensuring that a child
with disabilities receives a free appropriate public education,
regardless of ability. In addition, the United States has many programs
that promote the development and dissemination of mobility aids,
devices, and assistive technologies. For example, the National
Institute on Disability and Rehabilitation Research (NIDRR), a Federal
agency part of ED, was established to generate, disseminate, and
promote new knowledge to improve the options available to disabled
persons.
Question #25. The Message from the President transmitting the
convention observes that many of the issues addressed by Article 23 of
the convention (regarding respect for the home and family) are governed
by U.S. State law. The message does not clearly indicate, however,
whether the administration believes that relevant U.S. State laws are
in full compliance with the requirements of Article 23.
(25a) Please identify any State laws in this regard that the
administration believes would be inconsistent with the
obligations contained in the convention.
Answer. The response to Question 18 also applies to Question 25.
The administration closely studied measures of implementation of
the Disabilities Convention, and identified that its principal
questions regarding State and local compliance relate to Articles 12,
regarding guardianship, and Article 14, regarding civil commitment. The
Secretary's Report identifies specific questions regarding State law
arising under those Articles, including discussion of particular
States. See Treaty Doc. 112.7 at pages 31 through 34 (regarding Article
12) and pages 36 through 39 (regarding Article 14). The Secretary's
Report also identifies questions regarding Article 23 on respect for
home and the family, including those arising from guardianship
determinations. See id., at pages 53 through 55 (regarding Article 23).
With respect to Article 19 on living independently and being included
in the community and Article 24 on education, the administration did
not specify in the Secretary's Report concerns arising regarding State
or local laws because the requirements of Federal law on
nondiscrimination under the Individuals with Disabilities Education Act
and the administration's Olmstead v. L.C., 527 U.S. 581 (1999)
enforcement largely obviate resort to State law for convention
implementation.
(25b) With respect to the laws identified in response to the
question above, please describe the measures the administration
would intend to take consistent with the proposed federalism
reservation to give effect to the convention's requirements.
Answer. The administration's questions about State and local law
being inconsistent with the obligations contained in the convention
have arisen with respect to narrow areas of law and in limited
circumstances. In most cases, Federal law, which will implement the
requirements of the Disabilities Convention if ratified, requires State
and local governments to take remedial measure to bring their laws into
compliance with Federal law, such as the Federal Government's efforts
under Olmstead v. L.C., 527 U.S. 581 (1999). The administration
proposes a federalism reservation to address the small gaps in
implementation at the State and local level that are currently beyond
the reach of Federal enforcement. The federalism reservation protects
our Federal system, ensuring that the Federal Government is not
required to adopt any new laws or engage in any new enforcement efforts
to fill these gaps.
Question #26. The Message from the President transmitting the
convention observes that education in the United States is provided
largely by State and local governments. The message does not clearly
indicate, however, whether the administration believes that relevant
U.S. State and local laws and policies are in full compliance with the
requirements of Article 24 of the convention, regarding education.
(26a) Please identify any State or local laws or policies in
this regard that the administration believes would be
inconsistent with the obligations contained in the convention.
Answer. The response to Question 18 also applies to Question 26.
The administration closely studied measures of implementation of
the Disabilities Convention, and identified that its principal
questions regarding State and local compliance relate to Articles 12,
regarding guardianship, and Article 14, regarding civil commitment. The
Secretary's Report identifies specific questions regarding State law
arising under those Articles, including discussion of particular
States. See Treaty Doc. 112.7 at pages 31 through 34 (regarding Article
12) and pages 36 through 39 (regarding Article 14). The Secretary's
Report also identifies questions regarding Article 23 on respect for
home and the family, including those arising from guardianship
determinations. See id., at pages 53 through 55 (regarding Article 23).
With respect to Article 19 on living independently and being included
in the community and Article 24 on education, the administration did
not specify in the Secretary's Report concerns arising regarding State
or local laws because the requirements of federal law on
nondiscrimination under the Individuals with Disabilities Education Act
and the administration's Olmstead v. L.C., 527 U.S. 581 (1999)
enforcement largely obviate resort to State law for convention
implementation.
(26b) With respect to the laws identified in response to the
question above, please describe the measures the administration
would intend to take consistent with the proposed federalism
reservation to give effect to the convention's requirements.
Answer. The administration's questions about State and local law
being inconsistent with the obligations contained in the convention
have arisen with respect to narrow areas of law and in limited
circumstances. In most cases, Federal law, which will implement the
requirements of the Disabilities Convention if ratified, requires State
and local governments to take remedial measure to bring their laws into
compliance with Federal law, such as the Federal Government's efforts
under Olmstead v. L.C., 527 U.S. 581 (1999). The administration
proposes a federalism reservation to address the small gaps in
implementation at the State and local level that are currently beyond
the reach of Federal enforcement. The federalism reservation protects
our Federal system, ensuring that the Federal Government is not
required to adopt any new laws or engage in any new enforcement efforts
to fill these gaps.
Question #27. The Message from the President transmitting the
convention
describes a number of existing U.S. Government programs that provide
funding for habilitation and rehabilitation services and programs for
persons with disabilities. The Message indicates that these programs
would give effect to the obligations contained in Article 26 of the
convention.
Would the convention obligate the United States to continue
these programs in their current form or prohibit the United
States from eliminating or reducing funding for them?
Answer. No. The United States is not bound to implement the
convention through any particular funding program.
(Supplemental Response): As stated in the Secretary of State's
Report (page 63 of Treaty Doc. 112-7), Article 26 is implemented
through a variety of programs and mechanisms. Ratification of the
Convention would not bind the United States to implement through these
or any other particular program or funding mechanism. For example, the
United States has a comprehensive set of habilitation and
rehabilitation programs, including the Vocational Rehabilitation (VR)
State Grants, State Independent Living (IL) Services, Centers for
Independent Living (CIL), and Independent Living Services for Older
Individuals Who are Blind (OIB) programs, which are authorized under
Titles I and VII of the Rehabilitation Act, 29 U.S.C. Sec. 720 et seq.,
Sec. 796 et seq. The primary purpose of the VR, IL, CIL, and OIB
programs is to provide the services necessary to enable individuals
with disabilities, especially those with the most significant
disabilities, to become self-sufficient and independent in education,
employment, and community settings.
Question #28. The Message from the President transmitting the
convention states that the ``conclusions and recommendations of the
Committee [on the Rights of Persons with Disabilities] with regard to a
State Party's treaty report, General Comments, Reports, and other
documents of the Committee on Disabilities are not binding on the
States Parties, and the Committee has no authority to require or compel
action by the United States under the convention. The United States may
accord to Committee views and reports and to other Committee documents
the weight that the United States considers appropriate.''
In its 2010 judgment in the Case Concerning Ahmadou Sadio Diallo
(Republic of Guinea v. Democratic Republic of the Congo), the
International Court of Justice addressed the weight to be given to the
interpretation of a human rights treaty issued by the Committee
established pursuant to that treaty.
In explaining its interpretation of the International Covenant on
Civil and Political Rights in that case, the Court stated:
``66. The interpretation above is fully corroborated by the
jurisprudence of the Human Rights Committee established by the
Covenant to ensure compliance with that instrument by the
States parties (see for example, in this respect, Maroufidou v.
Sweden, No. 58/1979, para. 9.3; Human Rights Committee, General
Comment No. 15: The position of aliens under the Covenant).
Since it was created, the Human Rights Committee has built up
a considerable body of interpretative case law, in particular
through its findings in response to the individual
communications which may be submitted to it in respect of
States Parties to the first Optional Protocol, and in the form
of its ``General Comments.''
Although the Court is in no way obliged, in the exercise of
its judicial functions, to model its own interpretation of the
Covenant on that of the Committee, it believes that it should
ascribe great weight to the interpretation adopted by this
independent body that was established specifically to supervise
the application of that treaty. The point here is to achieve
the necessary clarity and the essential consistency of
international law, as well as legal security, to which both the
individuals with guaranteed rights and the States obliged to
comply with treaty obligations are entitled.''
(a) Does the administration believe that, as a matter of
international law, States Parties to the convention on the
Rights of Persons with Disabilities must accord great weight to
the interpretations of the convention issued by the Committee
on the Rights of Persons with Disabilities in their own
interpretation and application of the convention?
(b) Does the administration believe that, as a matter of
international law, States Parties to the convention on the
Rights of Persons with Disabilities are obligated to conform
their interpretations of the convention to those issued by the
Committee on the Rights of Persons with Disabilities?
(c) Does the administration believe that individuals with
rights guaranteed by the Convention on the Rights of Persons
with Disabilities are entitled as a matter of international law
to ``essential consistency'' in the convention's application by
all States Parties?
(d) Does the administration believe that States Parties to
the Convention on the Rights of Persons with Disabilities are
entitled as a matter of international law to ``essential
consistency'' in the convention's application by all other
States Parties?
Answer. The administration does not believe that the decision of
the International Court of Justice requires the United States to accord
``great weight'' to the Committee's interpretations and views, or to
conform its interpretations of the convention to those of the
Committee. The cited decision of the International Court of Justice is
not binding on the United States, which was not a party to the
proceeding. Nor is the United States subject to the jurisdiction of the
Court with regard to interpretation or application of the convention.
Further, while consistency in application of a convention may be
desirable, the administration does not believe that either States
Parties or individuals have a legal right to ``essential consistency''
in the application of the convention's provisions by other or all
States Parties.
Question #29. Article 38(a) of the convention provides that the
Committee on the Rights of Persons with Disabilities may invite the
specialized agencies of the United Nations and other competent bodies
as it may consider appropriate to provide expert advice on the
implementation of the convention in areas falling within the scope of
their respective mandates. What does the administration consider to be
the appropriate scope for participation by U.N. specialized agencies in
matters relating to the interpretation and application of the
convention by States Parties?
Answer. By the terms of Article 38 of the convention, U.N.
specialized agencies and other competent bodies may provide expert
advice and submit reports on implementation of the convention in areas
falling within the scope of their mandates and activities. As with the
Committee on the Rights of Persons with Disabilities, such agencies or
bodies have no authority to require or compel action by the United
States under the convention. The United States may accord to such
advice or reports the weight that the United States considers
appropriate.
______
Response of Judith Heumann to Question Submitted
by Senator Robert P. Casey, Jr.
Question. The United States has been a global leader in promoting
disability rights, and in sharing our expertise gained over decades of
pioneering work in improving the lives of disabled persons. Given our
already prominent position in this field, why is it necessary to become
a party to the U.N. Convention on the Rights of Persons with
Disabilities in order to improve disability rights throughout the
world?
Answer. With our extensive domestic experience, the United States
is uniquely positioned to help interested countries understand how to
effectively comply with their obligations under the Convention and
improve their domestic protections for persons with disabilities.
However, the fact that we have yet to ratify the Disabilities
Convention is frequently raised by foreign officials in bilateral
discussions as a reason to question the legitimacy of our guidance.
This undermines our efforts to promote disability rights abroad and
deflects from what should be center stage: how other nations' records
of promoting disability rights could be improved.
Ratification of the Convention is increasingly becoming an
important factor in the U.S. Government's ability to have meaningful
international engagement to promote the rights of persons with
disabilities. At present we are only able to act as observers at the
Disabilities Convention Conference of States Parties. This treaty
mechanism offers the most effective vehicle to influence the 116 States
Parties to improve their protection of disabled people, including
disabled Americans abroad. Such an approach is also much more efficient
than pursuing 116 or more separate bilateral arrangements. Our
inability to participate as a States Party severely curtails our
ability to advance U.S. interests.
Additionally, without ratification we cannot participate in the
Committee on the Rights of Persons with Disabilities. Although the
committee serves in a nonbinding, advisory capacity, it has the
potential to provide helpful guidance for States Parties with little
experience in these issues. Through a U.S. citizen presence, we would
be able to fully leverage expertise in U.S. domestic law and practice,
to influence and guide the work of the committee. The next election of
committee members occurs at the Conference of States Parties in
September, but unless the United States ratifies it will not be able to
participate in the selection process.
Ratification would also be good for American business. By
encouraging other countries to join and implement the Convention, we
would also help level the playing field to the benefit of U.S.
companies that already comply with higher disability standards in the
United States. Guiding and encouraging improved disability standards
abroad would afford U.S. businesses increased opportunities to export
innovative products and technologies. As accessibility standards become
more harmonized--a business objective that the United States can more
credibly support if it becomes a State Party--the competitive edge
increases for U.S. companies even further with the opening of new
markets that will need accessibility products provided by U.S.
suppliers with expertise in the field.
______
Responses of Eve Hill to Questions Submitted
by Senator Robert P. Casey, Jr.
Question. As a pro-life Senator, I am aware of concerns regarding
the applicability of language in the U.N. Convention on the Rights of
Persons with Disabilities to abortion. How would U.S. ratification of
this Convention affect issues related to abortion in the United States
or abroad?
Answer. The Convention is a nondiscrimination instrument that
simply provides what the Americans with Disabilities Act already
requires in the United States: that any health care programs and
benefits that are provided under domestic law by a State Party,
including those related to ``sexual and reproductive health,'' also be
afforded to persons with disabilities on a nondiscriminatory basis. As
the Secretary's report indicates (Treaty Doc. 112-7 page 59-61), the
Convention does not make any statement about abortion, does not create
a right to abortion, and does not promote abortion as a method of
family planning, leaving the matter to domestic law.
Question. I have become aware of concerns regarding the potential
impact of the U.N. Convention on the Rights of Persons with
Disabilities on parental decisionmaking. Would U.S. ratification of the
Convention affect the rights and ability of parents in the United
States to make decisions about how to raise their children?
Answer. No. In light of the federalism and private conduct
reservations, among others, there would be no change to Federal, State
or local law regarding the ability of parents in the United States to
make decisions about how to raise or educate their children as a result
of ratification.
______
Responses of Judith Heumann and Eve Hill to Questions Submitted
by Senator Bob Corker
Question. Article 7, section 2 states--``In all actions concerning
children with disabilities, the best interests of the child shall be a
primary consideration.'' This language closely resembles Article 3,
section 1 of the U.N. Convention on the Rights of the Child.
(a) To better understand the impact of this language in
Article 7 of the UNCRPD, has the Committee on the Rights of the
Child--the committee established under that Convention--adopted
in any way an interpretation or understanding of this parallel
language in Article 3 of UNCRC and what is that understanding?
Answer. The United States has not ratified the United Nations
Convention on the Rights of the Child (CRC). Even if the United States
had ratified the CRC, because it is a different instrument, adopted in
a different context, the administration would not treat the CRC or its
committee's views as more pertinent as guidance than other views on
interpreting or implementing Article 7 of the Disabilities Convention.
(b) If so, could that understanding of the meaning of
Article 3 of the UNCRC be reasonably expected to also apply to
Article 7 of the UNCRPD, or is there a substantive distinction
to be drawn between the meaning of this similar language in
these two conventions?
Answer. As noted above, Article 3 of the CRC is not more pertinent
to the administration's interpretation of Article 7 of the Disabilities
Convention than other international sources.
Question. Can the conclusions, recommendations, or general comments
issued by the Committee on the Rights of Persons with Disabilities
become legally binding in any manner through customary international
law?
Answer. Customary international law reflects the widespread and
general custom and practice of states adhered to out of a sense of
legal obligation (``opinio juris et necessitatis''). The committee is
not composed of States, and the views of the committee as such, which
are nonbinding on States Parties, would not become binding under
customary international law. Only if a rule reflects the widespread and
general custom and practice of States, adhered to out of a sense of
legal obligation, does it become binding on States as a matter of
customary law, with the exception of a persistent objector.
Question. If the Patient Protection and Affordable Care Act were
repealed, would the United States still meet our obligations under the
articles of CRPD or would more legislation be required?
Answer. The United States is not obligated to implement the
Convention through any particular program or funding mechanism and the
United States would not need to change U.S. legislation to meet the
Convention's requirements. The recommended Understanding on Economic,
Social, and Cultural Rights, which specifically references the
Convention's Article 25 on Health, makes clear that in the context of
health care, the obligation of the United States is limited to
nondiscrimination on the basis of disability. Even before this act was
passed by Congress, the United States was in a position to be in
compliance with the Convention, if ratified subject to the
Reservations, Understandings, and Declaration in the Secretary's
Report.
Question. Does ratification of the CRPD create maintenance of
effort for our current health care laws?
Answer. No. The recommended Understanding on Economic Social and
Cultural Rights, which specifically references the Convention's Article
25 on Health, makes clear that in the context of health care, the
obligation of the United States is limited to nondiscrimination on the
basis of disability, and the United States is not obligated to
implement the Convention through any particular program or funding
mechanism.
Question. With the Supreme Court decision narrowing the Medicaid
requirement for States and if some States decide not to expand their
Medicaid coverage, will the United States still meet all the
requirements under the articles of the Convention or will more
legislation be necessary?
Answer. The United States would meet the requirements under the
Convention, if ratified subject to the Reservations, Understandings,
and a Declaration in the Secretary's Report. No additional legislation
is necessary because the United States is not obligated to implement
the Convention through any particular program or funding mechanism. The
recommended Understanding on Economic, Social, and Cultural Rights
underscores that any references in the Convention related to health
care and services do not create new rights and simply require
nondiscrimination on the basis of disability in health care.
______
Response of Dr. Michael Farris to Question Submitted
by Senator Jim DeMint
Question. Why do you believe that it is inaccurate to say that the
United States will not have to enact any new laws or engage in any new
spending if we ratify this Convention with the administration's
recommended RUDs?
Answer. It is important to understand the nature of a treaty
obligation to come to a correct answer to this question. If the United
States becomes a party to the UNCRPD, it is undertaking a solemn and
binding legal obligation to conform its laws and actions to the terms
of the treaty. ``Every international agreement in force is binding upon
the parties to it and must be performed by them in good faith.''
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 321 (American Law Institute 1986).
Article 4(1)(a) of the UNCRPD provides:
1. States Parties undertake to ensure and promote the full
realization of all human rights and fundamental freedoms for
all persons with disabilities without discrimination of any
kind on the basis of disability. To this end, States Parties
undertake:
a. To adopt all appropriate legislative, administrative and
other measures for the implementation of the rights recognized
in the present Convention
Thus, it is beyond debate that if the United States becomes a party
to the UNCRPD, we will be required to conform our laws to the
requirements of this treaty. This fact is true notwithstanding the non-
self-executing declaration that
has been proposed by the administration. The sole effect of that
declaration is to remove the possibility that the judiciary could
directly enforce the provisions of the treaty without implementing
legislation. It does not in any way relieve the United States from its
obligation to live up to the terms of the treaty. See, Medellin v.
Texas, 128 S.Ct. 1346, 1363 (2008). ``The point of a non-self-executing
treaty is that it `addresses itself to the political, not the judicial
department; and the legislature must execute the contract before it can
become a rule for the Court.''' ``The responsibility for transforming
an international obligation arising from a non-self-executing treaty
into domestic law falls to Congress.'' Id. at 1368.
Medellin makes it clear. The United States (through Congress not
the courts) must comply in good faith with its treaty obligations.
Once the United States becomes a party to the treaty, the options
for Congress have been constrained. Assuming that we intend to comply
with our treaty obligations, Congress will have some range of choices
in how we comply with the terms of the treaty but it will no longer
have the lawful ability to determine whether we should comply with the
terms of the treaty.
As Professor Geraldine van Bueren stated: ``The Convention and
other international laws in effect narrows what were previously
unfettered discretionary powers of governments. Before governments
become party to a human rights treaty they are obliged to ensure that
there are the resources, either to implement the Convention on becoming
party or shortly thereafter, in accordance with international law.
Hence, there is no interference with national sovereignty, the
nationally sovereign decisions on how resources on children's rights to
be expended have already been taken. In essence, the government has
exercised its political powers, and it has to live with the legal
consequences.\1\
We should not be confused by the relative inability of the United
Nations to forcibly enforce a breach of a treaty obligation with our
duty of compliance. It is true that the Committee on the Rights of
Persons with Disabilities has no compulsory powers which can truly
force a member state to comply with its pronouncements. However, all
such U.N. tribunals consider their pronouncements to be authoritative
interpretations of the meaning of their relevant treaty and any failure
to comply with their determinations is considered to be a breach of an
international legal obligation.
It should be remembered that the argument for entering into this
treaty is so that the United States can be a good example to other
nations on how to comply with the treaty. If our attitude is ``we
comply if and when we want to,'' then we will show the rest of the
world that compliance with the dictates of this treaty is truly
optional. If we promise nothing more than we want to do, then the other
nations gain the same ability to comply with only so much of the treaty
as they wish to obey.
The hearing before the Senate Committee on Foreign Relations paid
almost no attention to the detailed requirements of this treaty. The
hearing focused on the altruist goals of the treaty--which no one
denies are worthy goals. But, virtually no attention was given to the
detailed requirements of a 50-article treaty.
Any serious examination of our duty to expend funds would require,
for example, an examination of the provisions of Article 32. The
multiple requirements of this Article include ``international
development programmes'' and ``technical and economic assistance.''
These obligations are echoed by the provision of Article 4(2) which
provides:
With regard to economic, social and cultural rights, each State
Party undertakes to take measures to the maximum of its
available resources and, where needed, within the framework of
international cooperation, with a view to achieving
progressively the full realization of these rights, without
prejudice to those obligations contained in the present
Convention that are immediately applicable according to
international law . . .
All of this constitutes a binding international obligation to spend
as much money as possible for disability programs in the United States
and around the world. It is one thing for us to desire to help other
nations in their fulfillment of their obligations, it is quite another
to become legally obligated to do so.
Consider this analogy. If Person A has a Neighbor B with hungry
children, A may be quite willing to help B with food for his family on
occasion. It would be quite a different matter for A to enter into a
legally binding contract to feed B's children to the maximum extent of
his available resources.
The Committee on the Rights of the Child (a parallel group for a
long-established treaty) routinely finds fault with nations for failing
to spend enough for the needs of children as required by the UNCRC.\2\
That committee specifically criticized Egypt and Indonesia for spending
a disproportionate share of its resources on military expenditures as
compared to its spending on children's needs.\3\
There was also scant attention paid to the issue of the need to
conform our law to the dictates of the treaty. For example, there was
no serious effort by any witness to answer my argument that the ``best
interest'' standard contained in Article 7 is contrary to the parental
rights provisions of the IDEA. IDEA gives ultimate authority to parents
to determine what is in their child's best interest. Article 7
transfers ultimate authority to government.
The presence of the non-self-executing declaration does not answer
this concern. That only means that Congress rather than the Court must
pass new laws to repeal or modify the parental rights provisions of
IDEA. This treaty requires Congress to make such modifications if it is
going to act in good faith compliance with its treaty obligations.
At the end of the day, those who argue that the United States
undertakes no duty to conform its laws to the dictates of the treaty
are relying on the callous observation that the U.N. does not have
sufficient raw power to force the United States to do something we do
not want to do. That is true enough. But it reveals a great deal about
the inability of these kinds of treaties to actually force any nation
to comply with its terms.
But, if we are going into this treaty for the purpose of being an
example to the rest of the world, we have to start with the full
intention to actually obey the treaty ourselves. When we agree to
comply with the treaty, we are agreeing that America is giving up its
free choice of policy options with regard to disability law. We are
promising that we will conform our laws to the dictates of this U.N.
treaty.
The Senate has little idea of the full scope of the potential
changes we must make to comply with this treaty. Detailed inquiry on an
article by article basis is needed. At a minimum, I have demonstrated
we will become obligated to modify the IDEA and we will become
obligated to spend our resources to the maximum extent possible to aid
other nations in their disability programs. No one can offer a serious
argument as to why it is necessary for American parents with disabled
children to give up their rights in order to encourage other nations to
build greater forms of accessibility.
The United States Constitution says that treaties are a part of the
highest law of the land. This is no mere set of altruistic promises and
goals. We are being asked to give our sacred promise to obey the law of
the United Nations concerning the domestic policy of the United States.
----------------
\1\Geraldine van Bueren, ``International Rights of the Child,
Section D,'' University of London, 36 (2006). Although Professor van
Bueren was discussing the meaning of the UNCRC, she is stating a
general legal principle fully applicable to the UNCRPD.
\2\See, e.g., Paragraph 46, Concluding Observations of the
Committee on the Rights of the Child: Austria, Committee on the Rights
of the Child, 38th sess., U.N. Doc. CRC/C/15/Add.251 (2005); Paragraph
17 and 18, Concluding Observations of the Committee on the Rights of
the Child: Australia, Committee on the Rights of the Child, 40th sess.,
U.N. Doc. CRC/C/15/Add.268 (2005); Paragraphs 18 and 19, Concluding
Observations of the Committee on the Rights of the Child: Denmark,
Committee on the Rights of the Child, 40th sess., U.N. Doc. CRC/C/DNK/
CO/3 (2005); Paragraph 10, Concluding Observations of the Committee on
the Rights of the Child: United Kingdom of Great Britain and Northern
Ireland, Committee on the Rights of the Child, 31st sess., U.N. Doc.
CRC/C/15/Add.188(2002); and Paragraph 24 and 25, Concluding
Observations of the Committee on the Rights of the Child: Ireland,
Committee on the Rights of the Child, 43rd sess., U.N. Doc. CRC/C/IRL/
CO/2 (2006).
\3\Geraldine Van Bueren, ``Combating Child Poverty--Human Rights
Approaches,'' 21 HUM.RTS. Q. 680, 694, 705 (1999).
______
Responses of Judith Heumann and Eve Hill to Questions Submitted
by Senator Johnny Isakson
Question. The United States has successfully undertaken a
comprehensive effort to protect the rights of persons with
disabilities. However, some of the U.S. laws offering these protections
contain important nuances and exceptions. For example, Title I of the
Americans with Disabilities Act does not apply to employers with fewer
than 15 employees. The Convention does not appear to contain a similar
exception. It is my understanding that the administration believes that
the proposed reservation concerning ``non-regulation of certain private
conduct'' in conjunction with the declaration that the Convention is
not self-executing would make it clear that ratification of the treaty
would not impose a new mandate on employers exempted by the ADA. Can
you confirm this understanding?
Answer. Ratification of the Disabilities Convention will not impose
any new requirements on employers exempted by the Americans with
Disabilities Act. The proposed reservation on nonregulation of certain
private conduct would ensure that the treaty obligations undertaken by
the United States with respect to regulating private conduct are
coextensive with the requirements of existing U.S. law. The
Constitution and laws of the United States recognize a zone of private
activity that is not extensively governed by the United States. For
example, employers with fewer than 15 employees that are not covered by
Federal domestic disability legislation would continue to maintain that
status, and ratification of the Convention would impose no additional
legal obligations. The non-self-executing declaration would make clear
that the Convention cannot be directly enforceable by U.S. courts and
thus, would not give rise to individually enforceable rights.
Question. Article 27 of the Convention calls on State Parties to
``protect the rights of persons with disabilities, on an equal basis
with others, to just and favorable conditions of work, including equal
opportunities and equal remuneration for work of equal value . . . ''
(emphasis added). This phrase has raised some concern as it could be
construed to imply that the Convention contemplates comparable worth.
The administration has recognized this by proposing an Understanding
clarifying that ratification of the Convention would not require
adoption of a comparable worth framework for persons with disabilities.
However, the description of this Understanding in the Executive
Summary, is not clear. Can you confirm that the proposed Understanding
does not require the adoption of a comparable worth framework?
Answer. Yes. The proposed Understanding (page 67 of Treaty Doc.
112-7) makes it clear that the Convention does not require the adoption
of a comparable worth framework for persons with disabilities. Current
U.S. law is consistent with the language in Article 27 regarding equal
pay for work of equal value because it provides strong protections for
persons with disabilities against unequal pay, including the right to
equal pay for equal work.
Question. Some have raised concern that the Convention contemplates
that employers undertake affirmative action measures with respect to
employment of individuals with disabilities. The Rehabilitation Act
requires certain Federal contractors and subcontractors to undertake
affirmative action efforts, but private sector employers who are not
Federal contractors or subcontractors are not subject to such
affirmative action requirements. Article 27 of the Convention requires
State Parties to ``promote the employment of persons with disabilities
in the private sector through appropriate policies and measures, which
may include affirmative action programmes, incentives, and other
measures.'' Is it the administration's view that this language does not
impose an affirmative action mandate on private sector employers?
Answer. Yes. The Disabilities Convention does not impose an
affirmative action mandate on private sector employers. The proposed
reservation on nonregulation of certain private conduct would ensure
that the treaty obligations undertaken by the United States with
respect to regulating private conduct are coextensive with the
requirements of existing U.S. law. The Constitution and laws of the
United States recognize a zone of private activity that is not
extensively governed by the United States. For example, entities such
as private sector employers that are not Federal contractors or
subcontractors would not be subject to an affirmative action mandate.
The non-self-executing declaration would make clear that the Convention
cannot be directly enforceable by U.S. courts and thus, would not give
rise to individually enforceable rights.
XIII. Annex 4.--Additional Letters Submitted for the Record in Support
of the Convention