[Senate Executive Report 113-12]
[From the U.S. Government Publishing Office]


   113th Congress  }                              {  Exec. Rept.
                                  SENATE
    2nd  Session   }                              {    113-12
_______________________________________________________________________
 
               CONVENTION ON THE RIGHTS OF PERSONS WITH 
                   DISABILITIES (TREATY DOC. 112-7)





                  July 28, 2014.--Ordered to be printed



         Mr. Menendez, 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, nine 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.................................................3
 IV. Entry Into Force and Amendments..................................6
  V. Withdrawal.......................................................6
 VI. Implementing Legislation.........................................6
VII. Committee Action.................................................7
VIII.Committee Recommendation and Comments............................8
 IX. Text of Resolution of Advice and Consent to Ratification........23
  X. Minority Views of Senators Corker, Risch, Rubio, and Johnson....27
 XI. Minority Views of Senator Flake.................................37
XII. Annex I.--Transcript of Hearing Held on November 5, 2013, with 
     Additional Material Submitted for the Record....................39
XIII.Annex II.--Transcript of Hearing Held on November 21, 2013, with 
     Additional Material Submitted for the Record...................147
XIV. Annex III.--Letters Submitted for the Record in Support of the 
     Convention.....................................................222

                               I. Purpose

    The purpose of the 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 forty-six countries and the European Union are 
parties to the Convention.
    The Convention is based squarely on American constitutional 
values such as equality, the protection of vulnerable 
minorities, and the unalienable right to pursue happiness. The 
Convention is also heavily influenced by the landmark Americans 
with Disabilities Act, which has allowed the United States to 
provide greater legal protections against discrimination for 
individuals with disabilities than most of the rest of the 
world. Without laws like the Americans with Disabilities Act, 
the estimated 1 billion disabled people worldwide are 
vulnerable to discrimination and the deprivation of community 
resources. Ninety percent of children with disabilities in 
developing countries do not attend school, and disabled 
children are sometimes denied even the most basic civil rights, 
such as birth certificates and names.
    Ratification of the Convention will advance America's 
national interest in numerous ways. The United States has 
become a world leader in protecting the rights of disabled 
individuals through the promulgation and enforcement of 
legislation such as the Americans with Disabilities Act, the 
Rehabilitation Act, and the Individuals with Disabilities 
Education Act. Joining the Convention will be a vital step in 
exporting America's leadership on disability non-
discrimination, so as to better promote the fundamental 
freedoms and individual autonomy of individuals with 
disabilities. Ratification would assist in leveling the playing 
field for U.S. companies that are already required to meet 
robust disability-accessible standards, and would open new 
markets for their products.
     Americans with disabilities often face significant and, at 
times, prohibitive barriers when they travel, work, serve, 
study and reside in other countries. This includes millions of 
America's veterans, as well as military family members with 
special needs. Ratification of the Convention will allow the 
United States 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 not just benefit the 1 billion 
disabled individuals worldwide, but will also be of invaluable 
help to the 54 million Americans with disabilities, including 
our disabled servicemen and women and disabled veterans, by 
enabling them to travel, work, serve, study and reside in other 
countries without prohibitive barriers.

                         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 treaty 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 sets out the broad principles of the 
Convention, which include autonomy, acceptance, and 
accessibility for individuals with disabilities. Equality and 
non-discrimination are over-arching principles that permeate 
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.'' 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. Article 18 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.'' This language was placed in 
Article 18 to combat the practice of denying personhood status 
for infants with disabilities, which occurs in certain parts of 
the world and in many cases leads to infanticide.
    Article 19 emphasizes the right of all persons with 
disabilities to live and participate in the community on an 
equal basis. States Parties to the Convention must ensure that 
people with disabilities have both the opportunity to select 
their place of residence on an equal basis with others, and the 
ability to access residential and other community support 
services, including whatever assistance is necessary for 
inclusion in the local 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 forms of 
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 
granted to 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 the learning of methods of communication, such as 
sign language and Braille, so as to assist students with 
disabilities in fully participating in the educational process.

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. There must be reasonable 
accommodations for employees with disabilities, such as access 
to training programs and the ability 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-
discrimination basis.

Equality Provisions

    Article 5 of the Convention creates a broad prohibition 
against discrimination and requires States 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, States 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. States Parties must provide equal access 
to their justice systems, and ensure that measures relating to 
the exercise of legal capacity respect the rights, will and 
preferences of the person, are free of conflict of interest and 
undue influence, are proportional and tailored to the person's 
circumstances, apply for the shortest time possible and are 
subject to regular review by a competent, independent and 
impartial authority or judicial body. In addition, Articles 6 
and 7 of the Convention specifically recognize the human rights 
of women and children with disabilities.
    Article 14 requires States Parties to ensure that persons 
with disabilities are not unlawfully or arbitrarily deprived of 
liberty, while 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 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 States Parties to eliminate discrimination against 
persons with disabilities in domestic matters, such as marriage 
and parenthood. Article 28 requires States 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 States Parties to 
guarantee equal political rights to persons with disabilities, 
including accessible procedures for voting, and to promote 
their participation in public affairs. Finally, Article 30 
requires States Parties to recognize the rights of disabled 
individuals to take part in cultural life and recreational and 
sporting activities, on a non-discriminatory 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. So long as national law permits, Article 25 also 
prohibits discrimination based on disability in 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, and 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, p. 91.
    In the vast 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. 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 first 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 Counsel for 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.) Retired Executive 
Director of the National Council On Independent Living. On July 
26, 2012, the committee considered the Convention and ordered 
it favorably reported.
    The committee held two additional public hearings on the 
Convention on November 5, 2013, and November 21, 2013. For the 
November 5, 2013 hearing, testimony was received from the 
Honorable Kelly Ayotte, United States Senator; the Honorable 
Mark Kirk, United States Senator; the Honorable Thomas J. 
Ridge, Former Secretary of Homeland Security and current 
Chairman of The National Organization on Disability; the 
Honorable Tammy Duckworth, Congresswoman from Illinois and 
Lieutenant Colonel in the Illinois Army National Guard; the 
Honorable Richard Thornburgh, Former Attorney General of the 
United States and Counsel for K&L Gates, LLP; Dr. Susan 
Yoshihara, Senior Vice President for Research and Director of 
the International Organizations Research Group, part of The 
Catholic Family & Human Rights Institute; Mr. Timothy L. Meyer, 
Assistant Professor of Law at The University of Georgia School 
of Law; and Dr. Michael Farris, Chancellor of Patrick Henry 
College. Statements for the record were submitted by Senators 
Ayotte and Kirk, Secretary Ridge, Congresswoman Duckworth, 
Attorney General Thornburgh, Dr. Yoshihara, Professor Meyer and 
Dr. Farris. Also entered into the record was a letter of 
support from former Secretary of State and Chairman of the 
Joint Chiefs of Staff Colin Powell, an article supporting the 
Convention written by former Senate Majority Leader Dr. Bill 
Frist, a Boston Globe article entitled ``The story of 
Washington gridlock seen through the eyes of Bob Dole,'' an 
article entitled ``UN Disabilities Treaty does not create 
abortion rights,'' written by Austin Ruse and Piero A. Tozzi, 
and a legal memorandum prepared by Patton Boggs (now Squire 
Patton Boggs).
    At the November 21, 2013 hearing, testimony was received 
from the Honorable John F. Kerry, Secretary of State, U.S. 
Department of State; Ms. Frances W. West, IBM, Worldwide 
Director of the Human Ability & Accessibility Center; the 
Honorable C. Boyden Gray, former White House Counsel and 
Ambassador, currently of C. Boyden Gray and Associates; Mr. 
Jeremy A. Rabkin, Professor of Law, George Mason University 
School of Law; and Mr. Curtis A. Bradley, William Van Alstyne 
Professor of Law, Duke University School of Law School. 
Statements for the record were submitted by Secretary of State 
Kerry, Director West, Ambassador Gray, Professor Rabkin, and 
Professor Bradley. In addition, statements of support for the 
Convention by Secretary of Defense Charles T. Hagel and 
Secretary of Veterans Affairs Eric K. Shinseki were entered 
into the record, along with all other petitions, letters and 
written statements of support for the Convention. On July 22, 
2014, the committee considered the Convention and ordered it 
favorably reported.

              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 vital 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 stronger, more 
prominent 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 a 
letter to the committee, which was entered into the record at 
the November 5, 2013 hearing, former Secretary of State and 
Chairman of the Joint Chiefs of Staff Colin Powell 
characterized the treaty as ``the most important global 
platform for the implementation of best practices in disability 
rights abroad.'' In addition to America's bilateral efforts, 
ratification will allow the U.S. to nominate U.S. disabilities 
experts to sit on the Disabilities Committee, which will give 
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. Congresswoman Tammy Duckworth testified that, when 
traveling abroad, ``[b]linded veterans have had their guide 
sticks taken away after being mistaken for weapons,'' that 
``[p]eople with artificial limbs have been told to store them 
in overhead bins,'' and that, when visiting U.S. military bases 
in Germany and Italy, she could not take wounded veterans ``off 
post to go see the sights downtown, because they simply were 
not accessible.'' Many 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. standards and practice, and that 
this will greatly enhance the ability of disabled Americans, 
including veterans and military families, to travel and work 
abroad. For example, greater uniformity in standards such as 
the width of doorways or the size and pitch of ramps would be 
of great assistance to Americans who use wheelchairs when 
traveling abroad, not to mention increased opportunities to use 
wheelchair-accessible buses, grab bars for showers, disability-
accessible phones, and many other aspects of the adaptive-
device industry.
    Joining the Convention is also likely to benefit American 
workers and businesses. In a global economy, it is critical 
that all U.S. employees have the opportunity to enhance their 
careers and maintain a competitive edge for their U.S. employer 
by traveling and working abroad freely, unencumbered by 
inaccessibility concerns. Moreover, the accessibility standards 
set forth in the Convention are modeled on U.S. law and 
practice, and U.S. companies are already required to meet these 
robust accessibility standards. The global promotion of 
accessibility standards and regulations that conform to U.S. 
practice will level the playing field for American businesses 
that are already equipped to comply with these standards, and 
will likely give them a competitive edge over any foreign 
competitors. As the disability standards of foreign countries 
move closer to those of the United States, new markets will 
open up for innovative American products and services that are 
already accessible to the disabled, such as assistive 
technologies created by the U.S. consumer electronics industry.
    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 non-discriminatory 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, which was 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. 
American engagement with the Disabilities Committee will 
provide critical expertise and leadership to countries looking 
for the best practices in assisting those with disabilities, 
which will subsequently 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 the opportunity to 
highlight the effectiveness of U.S. laws and practices 
concerning individuals with disabilities, and to demonstrate 
that our laws and standards are an exemplary model for the rest 
of the world.
    The text of the Convention makes 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. Secretary Kerry confirmed this when 
he testified that ``the Disabilities Committee has absolutely 
zero power to change a law, to order a change of law, to compel 
a change of law.'' 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, and are not required to 
conform their interpretations to 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. Former Secretary and Governor Tom Ridge testified 
that the Convention ``does not affect the ability of a parent 
to act in the best interest of the child.'' In the July 2012 
hearing, 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. At the July 22, 2014, business meeting, the 
committee adopted an understanding, offered by Senator 
Barrasso, that explicitly states that ``[n]othing in the 
Convention limits the rights of parents to homeschool their 
children.''

                     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 a wide 
range of affected businesses, groups and associations, 
including: Ability Chicago, Abilities, Inc.; Ablehawks and 
Allies; ABILITY Jobs; AccessABILITY, Center for Independent 
Living; Access Alaska Inc.; Access Concepts and Training, Inc.; 
Access Futures Club (AFC); Access Living; Access, Inc.; Access 
to Independence, Inc.; ACCSES; ACCSES NEW JERSEY; Achievement 
Services for Northeast Kansas, Inc.; Action Against Hunger; 
Actionplay; Action Towards Independence, Inc.; Ada S. McKinley 
Community Services, Inc.; ADHD Aware; ADAPT-Chicago Chapter; 
ADAPT Delaware; ADAPT Missouri; Adobe; Advocacy Center 
(Louisiana); Advocacy Denver; Advocacy Initiative Network of 
Maine; Advocates for Access; Advocates For Children of NY, 
Inc.; Advocating 4 Kids LLC; African Methodist Episcopal Church 
Connectional Health Commission; AgeOptions; AHEAD--Association 
on Higher Education and Disability; Air Force Sergeants 
Association; Air Force Women Officers Associated; Alabama 
Disabilities Advocacy Program; Alameda County Development 
Disabilities Council; Alaska Multiple Sclerosis Center; 
Alexander Graham Bell Association for the Deaf and Hard of 
Hearing; Alliance Center for Independence; Alliance for the 
Betterment of Citizens with Disabilities; Allsup; Almost Home 
Kids; Alpha One; AMC Entertainment Inc.; American Academy of 
Audiology; American Academy of Child and Adolescent Psychiatry; 
American Academy of Pediatrics; American Academy of Physical 
Medicine and Rehabilitation (AAPM&R); American Association for 
Geriatric Psychiatry; American Association of People with 
Disabilities; American Association on Health and Disability; 
American Association on Intellectual and Developmental 
Disabilities; American Association for Psychosocial 
Rehabilitation, American Baptist Churches USA; American Baptist 
Home Missions Societies; American Bar Association; American 
Civil Liberties Union; American Civil Liberties Union of 
Illinois; American Council of the Blind; American Council of 
the Blind; American Counseling Association; American Dance 
Therapy Association; American Diabetes Association; American 
Foundation for the Blind; American Foundation for Suicide 
Prevention; American GI Forum; American Group Psychotherapy 
Association; American Jewish World Services; American Mental 
Health Counselors Association; American Music Therapy 
Association; American Muslim Health Professionals; American 
Network of Community Options and Resources; American 
Occupational Therapy Association; American Psychological 
Association; American Public Health Association; American Red 
Cross; American Society for Deaf Children; American Speech-
Language Hearing Association; American Statistical Association 
American Therapeutic Recreation Association; Americans 
Association of People with Disabilities; AMREF; Anti-Defamation 
League; APSE; ARC Gateway, Inc.; Arc Northland; Arc Rutland 
Area; Arctic Access, Inc.; Arizona Bridge to Independent Living 
(ABIL); Arizona Center for Disability Law; Arizona Disability 
Advocacy Coalition; Assisted Cycling Tours, Inc.; Association 
for Assistive Technology Act Programs; Association for 
Community Living in Boulder County; Association for Education 
and Rehabilitation of the Blind and Visually Impaired; 
Association for Special Children & Families; Association for 
Vision Rehabilitation and Employment, Inc.; Association of 
Community Mental Health Centers of Kansas; Association of 
Jewish Family & Children's Agencies; Association of Programs 
for Rural Independent Living; Association of the United States 
Navy; Association of University Centers on Disabilities; 
Association on Higher Education & Disability; AT&T A3 
Accounting Associates; Attention Deficit Disorder Association; 
AUCD Council on Community Advocacy (COCA); Auditory Sciences; 
Autism National Committee; Autism Speaks; Autism Spectrum 
Counseling Center, Inc.; Autistic Self Advocacy Network; B'nai 
B'rith International; Baha'is of the United States; Basic 
Education Coalition; Bay Area People First; Bay Cove Human 
Services, Inc.; Bazelon Center for Mental Health Law; Becoming 
Independent; Bender Consulting Services, Inc.; Benetech; Best 
Buddies International, Inc.; Best Buddies, University of Kansas 
Chapter; Bethesda Lutheran Communities, Inc.; Better World 
Campaign; Big Lakes Developmental Center; Biogen Idec; 
BlazeSports America; Blind and Vision Rehabilitation Services 
of Pittsburg; Blinded Veterans Association; BlueLaw 
International; Blue Ridge Independent Living Center; Board of 
the Attention Deficit Disorder Association; Bodies of Work; 
Boehringer Ingelheim USA; Boston Center for Independent Living; 
Brain Injury Association of America; BRAC; Brain Injury 
Association of Georgia; Brain Injury Association of Kansas; 
Brain Injury Association of Michigan; Brain Injury Association 
of Mississippi; Brain Injury Association of Nebraska; Brain 
Injury Association of South Carolina; Brain Injury Association 
of Tennessee; Brain Injury Association of South Carolina; Brain 
Injury Association of Tennessee; Brain Injury Association of 
Vermont; Braozoria County Center for Independent Living; Bridge 
II Sports; Bridgewell; Brooklyn Center for Independence of the 
Disabled; Brown County Developmental Services, Inc.; Burton 
Blatt Institute at Syracuse University; Business Roundtable; 
California Association of the Deaf--Riverside Chapter; 
California Communications Access Foundation; California 
Foundation for Independent Living Centers; California State 
Council on Developmental Disabilities; California State Council 
on Developmental Disabilities; California State Council on 
Developmental Disabilities, Area Board 5; Californians for 
Disability Rights, Inc.; Cambria County Association for the 
Blind and Handicapped, CARE USA; CBM; CDC Resources; Caption 
First, Inc.; Cardinal Health; Center for Disability & Elder 
Law; Center for Disability Rights; Center for Independent 
Living of Middle Tennessee; Center for Independent Living of 
South Florida, Inc.; Center for Independent Living Options; 
Center for International Rehabilitation Research Information & 
Exchange; Center for Leadership in Disability; Center for Self-
Determination; Center for the Visually Impaired; Center on 
Disability and Community Inclusion; Center on Disability 
Studies--University of Hawaii; Central Conference of American 
Rabbis; Central Illinois Service Access, Inc.; Cerebral Palsy 
and Deaf Organization; Challenged Conquistadors, Inc.; Chamber 
of Commerce of the United States of America; Chamblee Fences; 
Check and Connect Program--Central Lakes College; Chicagoland 
Chamber of Commerce; Christian Church of Disciples of Christ 
(Disciple Home Missions); Christian Reformed Church in North 
America (Disability Concerns); Chronic Fatigue Syndrome, 
Fibromyalgia & Chemical Sensitivities Coalition of Chicago; The 
Chubb Corporation; Client Assistance Program and Protection & 
Advocacy (American Samoa); Citizens for Global Solutions; 
Citizens for Patient Safety; City of Danbury Commission for 
Persons with Disabilities; Clarement Colleges Disability, 
Illness, and Difference Alliance, Coalition of Citizens with 
Disabilities in Illinois; Coalition of Concerned Citizens for 
Complete Justice; Coastal Bend Center for Independent Living; 
The Coca-Cola Company; Community Access Project Somerville; 
Community Access Unlimited; Community Alliance for the Ethical 
Treatment of Youth; Community Interface Services; Community 
Legal Aid Society (Delaware); Community Renewal Society; 
Community Resources for Independent Living; Community Services 
for Sight; Concerned Transit Riders for Equal Access; 
Conference of Educational Administrators of Schools and 
Programs for the Deaf; Connecticut Office of Protection and 
Advocacy for Persons with Disabilities; Consortium for Citizens 
with Disabilities; Consumer Electronics Association; Cook Ross 
Inc.; Council for Exceptional Children; Council for Health and 
Human Services Ministries United Church of Christ; Council of 
American Instructors of the Deaf Council of Parent Attorneys 
and Advocates; Council of State Administrators of Vocational 
Rehabilitation; Crockett Resource Center for Independent 
Living; CUNY Coalition for Students with Disabilities; Daniel 
Jordan Fiddle Foundation; DAWN Center for Independent Living; 
Deaf and Hard of Hearing Alliance; Deaf Education And Families 
Project; Deaf Equality Accessibility Forum; Deaf Youth USA; Deb 
Dagit Diversity LLC; Delaware Association for the Blind; 
Delaware Developmental Disabilities Council; Delaware Family 
Voices; Depression and Bipolar Support Alliance; Deque Systems, 
Inc.; Detroit Disability Justice; Developmental Disabilities 
Institute, Wayne State University; Directions in Independent 
Living, Inc.; DIRECTV; Disability 411; Disability Concerns, 
Christian Reformed Church; Disability Concerns, Reformed Church 
in America; Disability Connection/West Michigan; Disability 
Funders Network; Disability Help Center; Disability Law & 
Advocacy Center of Tennessee; Disability Law and Public Policy 
Program, Syracuse University; Disability Law Center 
(Massachusetts); Disability Law Center (Utah); Disability Law 
Center of Alaska; Disability Law Center; disABILITY LINK; 
Disability Partners; disABILITY Resource Center; Disability 
Resource Center of Fairfield County; Disability Resource Center 
of Fairfield County; Disability Rights Advocacy Fund; 
Disability Rights & Resources; 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 Coalition; Disability Rights Education, 
Activism and Mentoring (DREAM); Disability Rights Education and 
Defense Fund; Disability Rights Florida; Disability Rights 
Fund; Disability Rights Idaho; Disability Rights International; 
Disability Rights Iowa; Disability Rights Legal Center; 
Disability Rights Mississippi; Disability Rights Montana; 
Disability Rights Nebraska; Disability Rights Network of 
Pennsylvania; Disability Rights New Jersey; Disability Rights 
New Mexico; Disability Rights of New York; Disability Rights 
North Carolina; Disability Rights Ohio; Disability Rights 
Oregon; Disability Rights Texas; Disability Rights Vermont; 
Disability Rights Washington; Disability Rights Wisconsin; 
disABILITY Solutions for Independent Living; Disability 
Services, Johns Hopkins University; Disabilityworks; Disabled 
American Veterans; Disabled in Action of Greater Syracuse Inc.; 
Disabled In Action of Metropolitan NYC; Disabled Rights Action 
Committee; Disabled Sports USA; Disciples Home Missions; 
Disciples Justice Action Network; Diverse Disability Media; 
Division for Early Childhood of the Council for Exceptional 
Children; Division of International Special Education Services 
(DISES) of the Council for Exceptional Children; Dominic 
Foundation; Dorsar Investment Co.; Down Syndrome Association of 
Snohomish County; Down Syndrome Association of West Michigan; 
Down Syndrome Support Network of Stark County; DREAM; Dream 
Ahead the Empowerment Initiative; Dynamic Independence; Earle 
Baum Center of the Blind, Inc.; East Texas Center for 
Independent Living; Easter Seals; Easter Seals Capper 
Foundation; Easter Seals Central Texas; ED101 Inc.; EDC; 
Education Development Center; Effective Success Practices LLC; 
El Valor; Elizabeth Birch Company/Global Out; Employment & 
Community Options; ENDependence Center of Northern Virginia; 
Ensight Skills Center, Inc.; Environmental Justice Coalition 
for Water; Epilepsy Foundation; Equal Rights for Persons with 
Disabilities International, Inc.; Equip for Equality 
(Illinois); EqUUal; Evangelical Lutheran Church in America; 
Family Health Network; Family Voices; Family Voices of ND; 
Fearless Nation PTSD Support; Federal Employees with 
Disabilities (FEDs); Feed the Children; FESTAC-USA (Festival of 
African Arts and Culture); FHI 360; Fiesta Christian foundation 
Inc.; 504 Democratic Club; Flinthills Services, Inc. DBA CDDO 
of Butler County; Florida Association of the Deaf; Fort Bend 
Center for Independent Living; ForwardWorks Consulting, LLC; 
Foundations For Change, PC; Four Freedoms Forum; Fox River 
Industries; FREED Center for Independent Living; Freedom 
Resource Center for Independent Living, Inc.; Friedman Place; 
Friends Committee on National Legislation; G3ict; Gallaudet 
University; Genetic Alliance; Georgia Advocacy Office; Georgia 
Council on Developmental Disabilities; Georgia Power; 
GlobalPartnersUnited; Global Solutions; GoGo; Gompers 
Habilitation Center; Good360; Goodwill Industries 
International; Granite State Independent Living; Great Lakes 
ADA Center; Greater Haverhill Newburyport; Greater Illinois 
Chapter of the National Multiple Sclerosis Society; Guam Legal 
Services Corporation; Hadassah, The Women's Zionist 
Organization of America, Inc.; Handicap International; 
HandReach; Hands and Voices; Harlem Independent Living Center; 
Harvey-Marion County CDDO; Hawaii Disability Rights Center; 
HEAL; Health & Disability Advocates; Health & Medicine Policy 
Research Group; Heards Foundation; Hearing Health Foundation; 
Hearing Loss Association of America; Hearing Loss Association 
of Los Angeles; Heartland Alliance; Heartland Alliance for 
Human Needs and Human Rights; Hellen Keller International; 
HelpAge USA; Helping Educate to Advance the Rights of the Deaf 
(HEARD); Henry Viscardi School; Hesperian Health Guides; Higher 
Education Consortium for Special Education; Highmark; Hindu 
American Foundation; Historically Black Colleges and 
Universities (HBCU) Disability Consortium; Hope Haven Area 
Development Corporation; Horn of Africa Aid and Rehabilitation; 
Houston Center for Independent Living; Housing Action Illinois; 
Human Rights Watch; Hyun & Associated Leadership Consultants; 
IBM; Idaho Federation of Families for Children's Mental Health; 
Idaho Parents Unlimited, Inc.; IDEA Infant Toddler Coordinators 
Association; IFES; Illinois Association of the Deaf (IAD); 
Illinois Assistive Technology Program; Illinois Council on 
Developmental Disabilities; Illinois Iowa Center for 
Independent Living; Illinois Maternal and Child Health 
Coalition; Illinois Network of Centers for Independent Living; 
Illinois Partners for Human Service; Illinois Valley Center for 
Independent Living; IMPACT Center for Independent Living; 
Independence Associates, Inc.; IndependenceFirst; Independence, 
Inc.; Independent Living, Inc.; Independent Living Center of 
the Hudson Valley, Inc.; Independent Living Center of the North 
Shore & Cape Ann, Inc.; Independent Living Council of Georgia; 
Indiana Protection and Advocacy Services; Institute for 
Community Inclusion: U. MA Boston; Institute for Community 
Leadership; Institute for Educational Leadership; Institute for 
Health Quality and Ethics; Institute for Human Centered Design; 
Institute on Disabilities, Temple University; Institute on 
Disability Culture; Institute on Human Development and 
Disability; Institute on Disability and Public Policy (IDPP); 
InterAction; Inter-American Institute on Disability; 
Interdisciplinary Council on Developmental and Learning 
Disorders (ICDL); Interfaith Disability Advocacy Coalition; 
Interfaith Network on Mental Illness; InterHab; International 
Hearing Association; International Medical Corps; International 
Ventilator Users Network; International Youth Foundation; Iowa 
Association of Community Providers; Iowa Statewide Independent 
Living Council (SILC); Iraq and Afghanistan Veterans of 
America; Islamic Society of North America; Jawonio; Jenian, 
Inc.; Jessica Cox Motivational Services; Jewish Community 
Relations Council of Greater Boston; Jewish Council for Public 
Affairs; Jewish Disability Network; Jewish Federation of 
Greater Atlanta; Jewish Federation of Greater Washington; 
Jewish War Veterans of the United States of America; Johnson 
County Board of Services; Johnson County Developmental 
Supports; Joint National Association of Persons with 
Disabilities; Joint National Association of Persons with 
Disabilities of Nigeria in the Diaspora, USA; JPMorgan Chase & 
Co.; Judge David L. Bazelon Center for Mental Health Law; 
Junior Blind of America; Just Advocacy of Mississippi; Kansas 
Assistive Technology Cooperative; Kansas Council for 
Exceptional Children; Kansas Council on Developmental 
Disabilities; Kansas Division for Early Childhood; Kansas Elks 
Training Center for the Handicapped, Inc. (KETCH); Kansas 
Mental Health Coalition; Kansas University Center on 
Developmental Disabilities; Kentucky Protection and Advocacy; 
Kessler Foundation; KEY Consumer Organization, Inc.; Kids 
Included Together; KIDZCARE School; Knowbility; Knowledge-
Creativity-Caring-Development-Dedication (KCCDD); KU Spectrum; 
L'Arche USA; L.E.A.N. On Us; Lake County Center for Independent 
Living; Lakemary Center; Lakeshore Foundation; Lakeside 
Curative Systems, Inc.; Lane Independent Living Alliance; 
Lantos Foundation for Human Rights & Justice; Latino Civil 
Rights Committee; Lawrence B. Taishoff Center for Inclusive 
Higher Education; League of Human Dignity; Life for Relief and 
Development USA; LightHouse for the Blind & Visually Impaired; 
LINC--Living Independence Network Corporation; LINK, Inc.; 
Little Miss Hannah Foundation; Little People of America; Living 
Independence For Everyone (LIFE) of Mississippi; Long Island 
Center for Independent Living, Inc. (LICIL); Loras College Du-
Buddies; Loudon ENDependence; Lupus Foundation of America; 
Lutheran Services in America; Lutheran Social Services of 
Wisconsin and Upper Michigan; Maine APSE; Maine Developmental 
Disabilities Council; Maine Parent Federation, Inc.; Mainstay 
Solutions LLC; MAK Technology Solutions, Inc.; Management 
Sciences for Health; Manos Unidas; ManpowerGroup North America; 
Martin Luther King Jr. Freedom Center; Maryland Disability Law 
Center; Massachusetts Down Syndrome Congress; Massachusetts 
Families Organizing for Change; Matrix Systems and 
Technologies; Medical Care Development; Medical Whistleblower 
Advocacy Network; Medicol Inc.; Mental Health Action; Mental 
Health America; Mental Health Liaison Group; Merck & Co., Inc.; 
Metrolina Association for the Blind, Inc.; Metropolitan 
Community Churches; MI Developmental Disabilities Council; 
Michigan Protection and Advocacy Services; Microsoft 
Corporation; Mid-Minnesota Legal Assistance/Minnesota 
Disability Law Center; Midwest Center on Law and the Deaf; 
Military Officers Association of America; MindFreedom 
International; Minnesota Disability Law Center; Mississippi 
Coalition for Citizens with Disabilities; Missouri Association 
of Rehabilitation Facilities (MARF); Missouri Developmental 
Disabilities; Missouri Protection and Advocacy Services; 
Mobility International USA; Montana Independent Living Project; 
Mosaic in Delaware; MS Family-to-Family Information and 
Education Center; Multiethnic Advocates for Cultural 
Competence, Inc.; Muslim Public Affairs Council; Nascar; Nation 
Council of Jewish Women; National Academy of Elder Law 
Attorneys; National Alliance on Mental Illness; National 
Alliance on Mental Illness--Kansas; National Association for 
Black Veterans; National Association for Children's Behavioral 
Health; National Association for Parents of Children with 
Visual Impairments, Inc.; National Association of Councils on 
Developmental Disabilities; National Association of County 
Behavioral Health and Developmental Disability Directors; 
National Association of Head Injury Administrators; National 
Association of Law Students with Disabilities (NALSWD); 
National Association of Sates United for Aging and 
Disabilities; National Association of School Psychologists; 
National Association of Social Workers; National Association of 
State Directors of Developmental Disabilities Services; 
National Association of State Directors of Special Education; 
National Association of State Head Injury Administrators; 
National Association of State Mental Health Program Directors; 
National Association of States United for Aging and 
Disabilities; National Association of the Deaf; National 
Benevolent Association of the Christian Church of Disciples of 
Christ; National Black Deaf Advocates, Inc.; National Business 
& Disability Council; National Center for Environmental Health 
Strategies; National Center for Learning Disabilities; National 
Coalition for Mental Health Recovery; National Council for 
Community Behavioral Healthcare; National Council of Churches 
USA; 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 Dysautonomia Research Foundation; National 
Education Association; National Federation of the Blind; 
National Federation of the Blind of Utah; National Federation 
of Families for Children's Mental Health; National Guard 
Association of the United States; National Guardianship 
Association; National Health Law Program; National Industries 
for the Blind; National Military Family Association; National 
Minority AIDS Council; National Multiple Sclerosis Society; 
National Organization for Albinism and Hypopigmentation; 
National Organization of Nurses with Disabilities, Inc.--in 
Illinois; National Organization on Disability; National 
Rehabilitation Association; National Respite Coalition; 
National Youth Leadership Network; Native American Disability 
Law Center; Nebraska Advocacy Services Nevada Disability 
Advocacy & Law Center; NETWORK--a National Catholic Social 
Justice Lobby; Neumann Family Services; New Concepts for 
Living; New Hampshire Association for the Blind; New York 
Institute for Special Education; New York State Commission on 
Quality of Care & Advocacy for Persons with Disabilities; New 
York State Independent Living Council (NYSILC); Next Step; Next 
Steps, NFP; NHMH--No Health without Mental Health; Nike; Noble 
County ARC, Inc.; North Dakota Protection & Advocacy Project; 
Northeast Arc; Northern Marianas Protection & Advocacy Systems; 
Northern West Virginia Center for Independent Living, Inc.; 
Northrop Grumman Corporation; Not Dead Yet; Not Without Us! 
Disability in Action; NuVisions Center; NYC LTC Ombudsman 
Program; OCCK, Inc.; OHI Maine; Ohio Association of County 
Boards Serving People with Developmental Disabilities; 
OhioHealth; Ohio Statewide Independent Living Council; Ohio 
Valley Goodwill Industries; Office of Protection and Advocacy 
for Persons with Disabilities (Connecticut); Office of the 
Governor/Ombudsman for Persons with Disabilities (Puerto Rico); 
OfficeMax Charitable Foundation; Ohio Legal Rights Service; 
OhioHealth; Oklahoma Association of Centers for Independent 
Living; Oklahoma Disability Law Center; ONE; Onondaga Community 
Living; Open Doors Organization; Operation USA; Optimal 
Beginnings, LLC; OrangeAbility Planning Committee; Orange 
County Rehabilitative and Developmental Services, Inc.; Orange 
Grove Center (OGC); Osteogenesis Imperfecta Foundation; Oxfam 
America; PACE Inc. Center for Independent Living; PA Mental 
Health Consumers' Association; Palestine Resource Center for 
Independent Living; Paradigm Services Inc.; Paralyzed Veterans 
of America; Paraquad; Parents, Let's Unite for Kids; Parent to 
Parent of NYS; Parent to Parent USA; Parents Educating Parents 
and Professionals, Inc.; Passaic County Community College, 
Office of Disability Services; PEAK Parent Center; PEAL Center; 
Peer Assistance Services, Inc.; Pennsylvania Association for 
the Blind; Pennsylvania Council of the Blind; Pennsylvania 
Society for the Advancement of the Deaf; People First of New 
Hampshire; People with Disabilities for Social & Economic 
Justice--Next Step; Peppermint Ridge; Perkins School for the 
Blind; Perkins International; Perspectives Press; 
PhilanthropyNow; Pineda Foundation for Youth; Plummer & 
Associates; Polio Survivors Association; Post-Polio Health 
Internationl; Prairie Independent Living Resource Center Inc.; 
Pratt Institute; Presbyterian Church (U.S.A.) Office of Public 
Witness; Pride Mobility Products; Progress Center for 
Independent Living; Projects and Intellectual Properties (d/b/
a); Protection and Advocacy for People with Disabilities (South 
Carolina); PsycHealth; Psychological Services of Barlesville; 
Public Advocacy for Kids; Purity Care Investments; PXE 
International; Rabbinical Assembly; Raising Special Kids; REACH 
Resource Centers On Independent Living; ReachScale; 
Reconstructionist Rabbinical College; Recovery Empowerment 
Network; RED Consulting; Reformed Church in America (Disability 
Concerns); Refugees International; Rehabilitation Engineering 
and Assistive Technology Society of North America; 
Rehabilitation International; Registry of Interpreters for the 
Deaf; Religious Action Center; Research and Training Center on 
Independent Living; RESNA; Resource Center for Accessible 
Living (RCAL); RESULTS; ReSurge; RI Family Voices; Rhode Island 
Disability Law Center; RISE Center--Beaumont, TX; Rita Kay 
Foundation; Rolling Start Inc.; Rose F. Kennedy University 
Center for Excellence in Developmental Disabilities; Ruh Global 
LLC; Russell Child Development; Sacred Creations; San Antonio 
Independent Living Services (SAILS); Saint Louis Arc; Sandhills 
Post-Polio Health Group; Save the Children; Schizophrenia and 
Related Disorders Alliance of America; School Social Work 
Association of America; Seaboard Corporation; School Social 
Work Association of America; Second Sense; Seguin Services; 
Self-Advocacy Association of New York State; Self Advocacy 
Council of Northern Illinois; Self Advocates Becoming 
Empowered; Self Advocate Coalition of Kansas (SACK); Self 
Advocates of Indiana; Self Advocates of Washington; SEVA 
Foundation; Shriver Center; Sibling Leadership Network; Signs 
of Self; Sikh American Legal Defense and Education Fund; Sindh 
Disabled Development Society; Skills of Central PA; SKIL 
Resource Center; Small & Associates, Inc.; SoCal APSE; Social 
Assistance and Rehabilitation for the Physically Vulnerable 
(SARPV); Society for Accessible Travel & Hospitality (SATH); 
Society for Disability Studies; Society for Special Persons; 
Socio Economic Development Alliance (SEDA); Sodexo; South 
Dakota Advocacy Services; Southeast Alaska Independent Living; 
Southern Illinois Case Coordination Services; Southern Indiana 
Center for Independent Living; Southern Tier Independence 
Center; Soyland Access to Independent Living (SAIL); Spa Area 
Independent Living Services; SPEAK Consulting LLC Special 
Olympics; Speaking Up for Us; Speaking Up for Us, Maine; 
Special Needs Advocacy Network; Special Olympics; Spina Bifida 
Association; Springfield Center for Independent Living; Sprint; 
Starkey, Inc.; Statewide Independent Living Council; Statewide 
Independent Living Council of Georgia, Inc.; Statewide 
Independent Living Council of Illinois; Statewide Parent 
Advocacy Network; Stone Belt Arc, Inc.; Student Disability 
Access Center, University of Virginia; Student Veterans of 
America; Supportive Housing Providers of Illinois; Symantec 
Corporation; Syntiro; Taconic Resources for Independence; TARC 
(Affiliate of The Arc); TASH; TASH Arizona; TASH Missouri; TCS 
Associates; Team for Justice; Team of Advocates for Special 
Kids (TASK); Teacher Education Division of the Council for 
Exceptional Children; Tech for All, Inc.; Tekmiss; 
Telecommunications for the Deaf and Hard of Hearing, Inc.; 
Tennessee Association of the Deaf; Tennessee Disability 
Coalition; Texas Advocates; Texas Association of Centers for 
Independent Living, TACIL; Texas Association of the Deaf; Texas 
School for the Blind and Visually Impaired; The Ability Center 
of Greater Toledo; The Advocacy Institute; The American Legion; 
The Arc of Adams County; The Arc Arapahoe & Douglas; The Arc 
Baltimore; The Arc of Bristol County; The Arc California; The 
Arc Cedar Valley; The Arc of Colorado; The Arc of Dickinson; 
The Arc of Douglas County; The Arc of Fort Bend County; The Arc 
of Frederick County; The Arc of Georgia; The Arc of Greater 
Boone County; The Arc of Greater Pittsburgh; The Arc Greater 
Twin Cities; The Arc of Houston; The Arc of Howard County; The 
Arc of Illinois; The Arc of Indiana; The Arc of Iowa; The Arc--
Jefferson, Clear Creek & Gilpin Counties; The Arc of Larimer 
County; The Arc of Lucas County; The Arc Maryland; The Arc of 
Massachusetts; The Arc Michigan; The Arc Montgomery County; The 
Arc Mower County; The Arc of New Jersey; The Arc Noble County 
Foundation; The Arc Northern Chesapeake; The Arc of Northern 
Virginia; The Arc of Opportunity in North Central 
Massachusetts; The Arc of Pennsylvania; The Arc of the Pikes 
Peak Region; The Arc Prince George's County; The Arc of 
Rockbridge; The Arc of South Carolina; The Arc of Southern MD; 
The Arc of Southside; The Arc of Tennessee; The Arc of the 
United Sates; The Arc of the US; The Arc of Virginia; The Arc 
of Toombs County; The Arc Western Wayne; The Bibb Cook Group 
LLC; The California Institute for Mental Health; The Center for 
Disability Empowerment; The Center for Financial Independence & 
Innovation; The Center for Rights of Parents with Disabilities; 
The Centered Leadership Project, LLC; The Coca-Cola Company; 
The Disability Rights Education and Defense Fund; The Episcopal 
Church; The Future Work Institute, Inc.; The Hunger Project; 
The Independent Living Center, Inc.; The Iris Network; The 
Jewish Disability Network; The Jewish Federations of North 
America; The Joseph P. Kennedy, Jr. Foundation; The Leadership 
Conference on Civil and Human Rights; The Legal Center 
(Colorado); The Legal Center for People with Disabilities and 
Older People; The National Center of The Blind Illinois; The 
National Council on Independent Living; The Rabbinical 
Assembly; The Reconstructionist Rabbinical Association; The 
Rehabilitation Engineering and Assistive Technology Society of 
North America; The Sikh Coalition; The Starkloff Disability 
Institute; Three Rivers Center for Independent Living; The 
Viscardi Center; 3E Love, LLC; Thresholds; Time Warner Cable; 
Tisano LLC.; TKPSYC After School Services, Inc.; Topeka 
Independent Living Resource Center; Touchpoint Group, LLC; 
Tourette Syndrome Association; Treatment Communities of 
America; Trickle Up; Tri Count4y ILC; Tri-County Association of 
the Deaf, Inc.; Tri-County Patriots for Independent Living; 
Tri-Ko, Inc.; Tri-State Downs Syndrome Society; Tri-Valley 
Developmental Services; Trickle Up Program, Inc.; Trisomy 18 
Foundation; Twin Ports Post Polio Network; Uhambo USA; UJA-
Federation of New York; Union for Reform Judaism; Unitarian 
Universalist Association; Unitarian Universalist Association of 
Congregations; Unitarian Universalist Service Committee; United 
Cerebral Palsy; United Cerebral Palsy of Illinois; United 
Church of Christ Disabilities Ministries Board; United Church 
of Christ (Justice Witness Ministries); United Church of Christ 
Mental Health Network; United Methodist General Board of Church 
and Society; United States 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); U.S. Business Leadership 
Network; U.S. Equal Employment Opportunity Commission; U.S. 
Fund for UNICEF; U.S. International Council on Disabilities; 
U.S. Olympic Committee; Utah Assistive Technology Foundation; 
Utah State Independent Living Council; Valley Association for 
Independent Living; Vermont Center for Independent Living; 
Vermont Family Network; Vermont Statewide Independent Living 
Council; Veterans for Common Sense; Veterans of Foreign Wars of 
the United States; Veterans of Modern Warfare; VetsFirst; 
Virginia Advocates United Leading Together; Virginia 
Association of the Blind; Vision for Equality; Vision Loss 
Resources; VisionServe Alliance; Voices of the Heart Inc.; 
Volar Center for Independent Living; Walmart; Washington State 
Developmental Disabilities Council; Water for South Sudan; 
WaterAid; WellShare International; Wesleyan Students for 
Disability Rights; West Central Independent Living Solutions 
Vietnam Veterans of America; West Virginia Advocates; WFD 
Consulting Inc.; Whirlwind Wheelchair International; WiderNet 
Project; Will-Grundy Center for Independent Living; Wild 
Watercolors; Winrock International; Wisconsin Council of the 
Blind and Visually Impaired Women's Rabbinic Network; Witeck 
Communications, Inc.; Women's Rabbinic Network; Women's Refugee 
Commission; WORK, Inc.; World Concern; World Institute on 
Disability; World Learning; World Neighbors; Wounded Warrior 
Project; the Wyoming Protection and Advocacy System; and 
Verizon. In addition, the committee received letters of support 
from former Secretary of State and Chairman of the Joint Chiefs 
of Staff Colin Powell, former Senator Bob Dole, Chinese human 
rights activist Chen Guangcheng, I. King Jordan, President 
Emeritus of Gallauet University, Admiral Steve Abbott, General 
Wesley K. Clark, General Ronald Fogleman, Admiral Edmund P. 
Giambastiani, Jr., Admiral Charles R. Larson, General Lester L. 
Lyles, General Robert Magnus, General Thomas S. Moorman, Jr., 
General Carl E. Munday, Jr., Admiral Joseph W. Prueher, General 
Henry H. Shelton, General Gordon R. Sullivan, and Loretta 
Claiborne, Special Olympics Athlete. Materials received as of 
November 21, 2013, were entered into the hearing record.

      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.
    The committee notes that it is well-established in American 
jurisprudence that courts must respect the reservations, 
understandings, and declarations to the ratification of 
treaties. In their study of RUDs and human rights treaties, 
Professors Curtis Bradley and Jack Goldsmith concluded that 
``[i]n sum, since the early days of the nation, the President 
and Senate have attached a variety of conditions to their 
consent to treaties. No court has ever invalidated these 
conditions.'' Curtis A. Bradley & Jack L. Goldsmith, Treaties, 
Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 
410 (2000).

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 treaty 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 the 
United States, 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. It also 
clarifies that the United States does not consider the 
Committee's interpretations to be legally binding on the United 
States.
    Health Programs and Procedures. The seventh understanding 
clarifies that the Convention is a non-discrimination 
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 non-discriminatory 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 Federal, State, or 
local law.
    Homeschooling. The ninth understanding states that nothing 
in the Convention limits the rights of parents to homeschool 
their children.

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 
implementing legislation is necessary for the United States to 
comply with the Convention.

      IX. Text of Resolution of Advice and Consent to Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO RESERVATIONS, 
                    UNDERSTANDINGS, AND DECLARATIONS.

    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 section 2, the understandings of section 3, and 
the declarations of section 4.

SEC. 2. 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) The 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 (42 U.S.C. 12101 et seq.), 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, adopted by the United Nations 
        General Assembly December 10, 1984, and entered into 
        force June 26, 1987 (the ``CAT'') and in Article 7 of 
        the International Covenant on Civil and Political 
        Rights, adopted by the United Nations General Assembly 
        December 16, 1966, and entered into force March 23, 
        1976 (the ``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 of the 
        Convention shall be subject to the same reservations 
        and understandings that apply for the United States of 
        America with respect to Articles 1 and 16 of the CAT 
        and Article 7 of the ICCPR.

SEC. 3. 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 
        United States law.
          (3) Current United States 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 (29 U.S.C. 791) exempts United States 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 United States military departments, 
        and that Article 27 does not recognize rights in this 
        regard that exceed those rights available under United 
        States 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 understands that the Committee 
        on the Rights of Persons with Disabilities, established 
        under Article 34 of the Convention, has an important, 
        but limited and advisory role. The United States 
        understands that the Committee has no authority to 
        compel actions by the United States, 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. The 
        United States further understands that the Committee's 
        interpretations of the Convention are not legally 
        binding on the United States.
          (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 Federal, State, or local law.
          (9) Nothing in the Convention limits the rights of 
        parents to homeschool their children.

SEC. 4. DECLARATIONS.

    The advice and consent of the Senate to the ratification of 
the Convention is subject to the following declarations:
          (1) The United States of America declares that the 
        provisions of the Convention are not self-executing.
          (2) 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 Corker, Risch, 
                           Rubio, and Johnson


                               BACKGROUND

    The Convention on the Rights of Persons with Disabilities 
is a multilateral treaty adopted by the United Nations General 
Assembly on December 13, 2006. While the United States joined 
consensus on adopting the Convention, the United States' 
ultimate position on the convention was well known and had 
previously been explained in the ``U.S. Participation in the 
United Nations, 2005'' report to the Congress by the Secretary 
of State:


          Since the beginning of the negotiations in 2003 on 
        the draft Comprehensive and Integral International 
        Convention on the Protection and Promotion of the 
        Rights and Dignity of Persons with Disabilities 
        (Disabilities Convention), the United States has 
        maintained that disability issues are within the 
        purview of domestic policy and law; therefore, the 
        United States had no intention of becoming a party to 
        the treaty. Ralph Boyd, Assistant Attorney General, 
        stated during negotiations: ``Given the complex set of 
        regulations needed to canvass this broad area, and the 
        enforcement mechanisms necessary to ensure equal 
        opportunity for those with disabilities, the most 
        constructive way to proceed is for each member state, 
        through action and leadership at home, to pursue within 
        its borders the mission of ensuring that real change 
        and real improvement is brought to their citizens with 
        disabilities.


    This position was reiterated subsequent to adoption of the 
Convention in the ``U.S. Participation in the United Nations, 
2006'' report, which was delivered to the Congress in 2008.The 
report on U.S. Participation in 2006 also describes the limited 
nature of participation by the United States in negotiations 
over the text of the Convention:


          In 2003, the U.S. delegation intervened during 
        negotiations only to give technical advice on U.S. 
        disability law and practice. In 2004, the delegation 
        expanded its engagement to make interventions on issues 
        or articles in the draft text involving international 
        law or practice. In the January-February 2005 and 
        August 2005 negotiations, the United States engaged on 
        a number of key issues, such as establishment of a 
        treaty monitoring body, family issues, and support for 
        the overarching principle of non-discrimination. During 
        the fall of 2005, the United States expanded its 
        engagement to other issues.


    The United States did have considerable involvement on a 
few specific issues of particular concern. This involvement was 
described in the ``Explanation of Position on the Convention on 
the Rights of Persons with Disabilities'' announced by 
Ambassador Richard T. Miller, U.S. Representative to the UN 
Economic and Social Council on December 13, 2006 upon adoption 
of the Convention by the General Assembly. One such issue was 
the relationship of the Convention to the issue of abortion. As 
the Explanation of Position described:


          the United States understands that the phrase 
        ``reproductive health'' in Article 25(a) of the draft 
        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. We stated this 
        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 this 
        term.


    Having signed the Convention on June 30, 2009, the 
President has twice referred the Convention to the committee 
for consideration, the Senate having voted against granting its 
advice and consent in the 112th Congress. The committee held 
hearings on the Convention on November 5 and 21, 2013.

                                ANALYSIS

Federalism

    Unlike the typical treaty, which governs the relationship 
between nation-states, the Convention on the Rights of Persons 
with Disabilities seeks to set an international standard for 
how nations, including the United States should it ratify the 
treaty, must treat their own citizens. In doing so, the treaty 
requires our democratically-elected legislative and executive 
branches at all levels to adopt extensive legislation and 
regulation governing matters of domestic policy.
    Because the Convention's obligations are so expansive, the 
article by article analysis (the ``analysis'') enclosed in the 
Letter of Submittal cites 13 different federal statutes as well 
as provisions of at least 24 other federal laws that contribute 
to fulfilling them. While the Letter of Submittal is unclear on 
whether the United States would rely on state and local law to 
satisfy our obligations under the Convention, it notes that 
``certain treaty provisions cover matters traditionally 
governed by state law,'' and goes on to assert that ``some 
state and local standards are less vigorous than the convention 
would require.'' While the Administration concludes from this 
that it would be appropriate to adopt a federalism reservation 
to ``preserve the existing balance between federal and state 
jurisdiction,'' it is not evident what this means in practice.
    The Administration's proposed federalism reservation, which 
remains in the present resolution, states:


          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;


    The reservation therefore appears to explicitly assert that 
where the Federal Government does not ``exercise ... 
jurisdiction,'' the Convention ``shall be implemented ... by 
state and local governments.'' This would appear to contemplate 
state and local law accounting for fulfilling some obligations 
of the United States. The reservation then states:


          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.


    By first stating that the Convention ``shall be implemented 
... by state and local governments,'' and then by limiting our 
obligations in those areas where state and local governments 
exercise jurisdiction ``to the Federal Government's taking 
measures appropriate to the Federal system,'' it is unclear 
whether the Administration seeks to limit the scope of our 
obligations under the treaty, or only the means by which our 
obligations will be fully implemented. While similar language 
can be found in understandings submitted by the United States 
with ratification of previous UN human rights conventions, and 
diplomatic ambiguity has its advantages, it also carries 
significant legal risks as discussed below.
    The Letter of Submittal's article by article analysis also 
fails to bring clarity to the issue as it engages in 
significant discussion of relevant state laws throughout. In 
some cases, where it deems state and local law to be consistent 
with the Convention, the analysis appears to claim reliance on 
these state and local laws for United States compliance with 
the Convention. For instance, p. 42 of the analysis describes:


          Various state criminal laws that require protection 
        and reporting of exploitation, violence, and abuse, 
        including of individuals with disabilities, also 
        further compliance with this article [Article 16].


    However, the analysis also suggests that some state laws 
may not comply with Convention standards. For instance, p. 32 
of the analysis states:


          Despite these positive changes in guardianship 
        provisions in most states, many state constitutions and 
        statutory provisions continue to limit the full 
        exercise of civil and political rights of persons 
        deemed incompetent.


    In these instances where state law is not uniform and may 
fall short of the Convention's requirements, the analysis 
indicates that U.S. compliance ``is subject to the federalism 
reservation.'' For instance, p. 31 of the analysis describes:


          Further, as described in detail below, and subject to 
        the federalism reservation described above, there has 
        been a significant trend toward the modernization of 
        guardianship standards, moving most states into 
        conformity with Article 12.


    This selective referral to the federalism reservation in 
instances when state laws may fall short raises again the 
question of whether the present reservation addresses general 
limits on the scope of our accepted obligations under the 
Convention, or only addresses the level of government that will 
be responsible for fully implementing them.
    These statements also raise concerns about Secretary 
Kerry's testimony before the committee that ``ratification 
doesn't require a single change to American law.''
    These questions could have significant legal implications 
for the United States. First, by failing to clearly limit the 
scope of our obligations under the Convention in the federalism 
reservation while noting potential concerns about state level 
compliance, the United States risks the perception (and 
potential reality) of being in violation of our international 
legal obligations on a human rights treaty. This can harm our 
standing with those who share our values, and it can frustrate 
our efforts to encourage those who don't.
    Second, we risk dramatically altering the Constitution. 
Under the Constitution, the federal government has limited 
powers, and much authority over the everyday lives of Americans 
is left to the states. However, in the 1920 Supreme Court case 
of Missouri v. Holland, the Supreme Court is understood to have 
held that the federal government's power can be expanded well 
beyond the Constitution's normal limits through ratification of 
a treaty. Because the Convention deals extensively with matters 
that the Constitution typically leaves to the states, ratifying 
this treaty risks significantly expanding federal authority.
    The committee heard testimony from the Department of 
Justice in the 112th Congress stating that ``the federalism 
reservation would preserve the existing balance of authority 
between the Federal Government and the States.'' However, the 
committee heard testimony in its hearing on November 21, 2013 
of the 113th Congress from Mr. Curtis A. Bradley, William Van 
Alstyne Professor at the Duke University School of Law, that 
none of the reservations adopted by the committee in the 112th 
Congress--which remain in the present resolution--```adequately 
address[] the constitutional concerns.'' Professor Bradley 
explained:


          The federalism reservation refers vaguely to 
        ``measures appropriate to the Federal system,'' but 
        that might include measures allowed under Missouri v. 
        Holland, and the reservation specifically states that 
        the federal government can take enforcement measures 
        against state and local actions that are inconsistent 
        with ``other Federal laws,'' which might include laws 
        that Congress enacts in the future under the authority 
        conferred by Missouri v. Holland.


    Professor Bradley recommended that the committee adopt a 
reservation that ``makes clear that the Convention will not 
expand the authority of the federal government,'' and described 
precedent for such a reservation.
    Professor Bradley also pointed out that a strong federalism 
reservation is critical for another reason. The Convention's 
terms are not coextensive with the Americans with Disabilities 
Act (ADA) and other United States law, and the Convention's 
obligations go much further than the ADA in scope. As Professor 
Bradley noted:


          The Convention refers, for example, to the standards 
        governing the care of children, a family law topic 
        traditionally regulated in the United States under 
        state rather than federal law. In addition, in its 
        accessibility and other provisions, the Convention 
        addresses private as well as governmental conduct, 
        without any of the limitations that would normally 
        apply to federal regulation of private conduct-such as 
        a requirement of a connection to interstate commerce.


    In addition, the Administration's article by article 
analysis recognizes that ``[a] core purpose of the convention'' 
is to eliminate discrimination ``in all sectors of society, 
including by private persons and entities'', saying:


          [D]omestic civil rights legislation does not extend 
        to absolutely all private discrimination against 
        persons with disabilities, such as employment 
        discrimination 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. 
        As a result, a ``non-regulation of certain private 
        conduct'' reservation is recommended[.]


    While the Administration's proposed reservation purports to 
close the gap between the Convention and our laws, Professor 
Bradley explained that the reservation does not accomplish that 
goal due to flaws similar to those he identified in the 
Administration-proposed federalism reservation:


          [T]he private conduct reservation says that the 
        United States is not accepting any obligation to 
        regulate private conduct ``except as mandated by ... 
        laws of the United States of America.'' Those laws 
        could include statutes enacted in the future pursuant 
        to the authority allowed under Missouri v. Holland.


    To address this, Professor Bradley correspondingly 
recommended that the committee adopt a strong federalism 
reservation.
    None of these issues are addressed in the present 
resolution and therefore ratification of the Convention on this 
basis would pose a substantial risk that the United States 
would not be in full compliance with our obligations under the 
Convention and that the Constitution had been altered to 
greatly expand the power of the federal government.

Senate's Advice and Consent to Treaties

    The Treaty Clause of the Constitution provides that the 
United States may not ratify a treaty without the Senate's 
advice and consent. U.S. Const. art. II, Sec. 2, cl. 2. The 
requirement of two-thirds advice and consent by the Senate is 
an important Constitutional check on the treaty power, and is 
an especially important structural protection for our system of 
federalism. Recently, in Bond v. United States, the Department 
of Justice argued both that Supreme Court precedent allows 
ratification of a treaty to expand existing federal power to 
legislate beyond its traditional limits, and that the Framers 
intended for the Senate to enforce federalism limits on 
treaties through its advice and consent power. A brief filed by 
several former Legal Advisors to the Department of State, who 
have served under presidents of both parties, supported the 
government's position, arguing that ``as a matter of both 
constitutional design and practice, the Senate serves as a 
`guardian of state interests.'''
    Thus far, the judicial branch has failed to place any 
federalism limits on the treaty power, and as a result, the 
responsibility falls to the Senate to protect our system of 
federalism from treaties that would inappropriately expand 
federal power, as well as to ensure the Senate's advice and 
consent is not undermined when such a significant change to our 
constitutional structure is at stake.
    Removing any of the conditions of the Senate's advice and 
consent undermines the predicate on which the treaty was 
ratified. Therefore, it is important to ensure that the Senate 
provides its advice and consent again before those RUDs may be 
altered or removed. As Professor Bradley noted:


          In my view, the best interpretation of the U.S. 
        Constitution is that new senatorial advice and consent 
        would be required for such a withdrawal. This action 
        would, after all, undo something that was subject to 
        the senatorial advice and consent process and, 
        depending on what was being withdrawn, could have the 
        effect of increasing U.S treaty obligations, which 
        themselves require senatorial advice and consent.


    Historical practice also supports this view. When the 
United States withdrew its reservation to the Patent 
Cooperation Treaty, President Reagan sought (in 1984) and 
received (in 1986) the advice and consent of two-thirds of the 
Senate. However, as Professor Bradley describes:


          It is possible to imagine a situation, however, in 
        which either the Executive Branch or a majority of 
        Congress would attempt such a withdrawal. In doing so, 
        the Executive Branch might invoke its general authority 
        to act on behalf of the United States in foreign 
        affairs, or Congress might analogize to its well-
        settled authority to override the domestic effects of a 
        treaty under the ``last-in-time'' rule.


    Professor Bradley recommended that the committee adopt a 
RUD ``[t]o help preclude that possibility'' and thereby ensure 
that the Senate's advice and consent would be necessary for a 
reservation, understanding, or declaration to be withdrawn by 
the United States. A withdrawal RUD would make clear that 
neither the Executive acting alone, nor the Congress and 
Executive by passing legislation with a simple majority, may 
alter the terms of the United States ratification of a treaty. 
Were either to do so by withdrawing a strong federalism 
reservation, such action would essentially grant the federal 
government new, extra-constitutional powers under Missouri v. 
Holland, while at the same time bypassing the requirement of a 
two-thirds vote by the Senate, currently the Constitution's 
strongest safeguard for federalism and state interests under 
the treaty power.
    Professor Bradley further recommended a RUD on non-
severability to ``ensure that the United States will not lose 
the benefit of its reservations, understandings, and 
declarations'' should the Committee (or others) assert the 
authority to determine the validity of a United States 
reservation according to Article 46.
    During committee consideration of the Convention, Senator 
Ron Johnson offered two amendments to the resolution proposing 
that the committee adopt RUDs consistent with Professor 
Bradley's recommendations on withdrawal and non-severability. 
While neither amendment was adopted by the committee, these 
issues are very real and must be addressed before the Senate 
acts. For example, Article 46 specifically allows for the 
withdrawal of reservations, and the Committee regularly urges 
States Parties to withdraw all reservations, understandings, 
and declarations that, in the view of the Committee, limit or 
misunderstand the Convention's obligations. Without strong RUDs 
on these issues, therefore, there is the potential for RUDs 
that the Senate relies upon to be withdrawn or otherwise 
undermined while the Convention remains in effect.

Bond v. United States

    The potential for a treaty to expand federal authority 
beyond normal constitutional limits was highlighted during 
committee consideration of the Convention in a Supreme Court 
case, Bond v. United States. In that case, the federal 
government sought to employ a federal law implementing the 
Chemical Weapons Convention in order prosecute a purely 
intrastate crime relating to the use of otherwise lawful 
chemicals. The defendant claimed the statute violated the 10th 
Amendment, providing the Supreme Court a potential opportunity 
to revisit Missouri v. Holland.
    In a 9-0 ruling, the Court avoided the constitutional issue 
entirely, and instead overturned the conviction by interpreting 
the statute narrowly to not apply to the defendant's actions. 
While the Court held that Congress must be clear in its intent 
to intrude into an area of traditional state authority through 
a statute implementing a treaty, the Court did not address 
whether the Constitution, in fact, grants Congress the power to 
intrude into state authority in this way, and did not address 
the use or substance of reservations seeking to guard against 
such an outcome. The Court's decision in Bond left Missouri v. 
Holland intact and therefore did not limit the potential for 
this Convention to alter the Constitution and significantly 
expand federal power beyond its normal limits.

Sexual and Reproductive Health

    As previously described in the Background, Article 25(a) of 
the Convention addresses the provision of health care, 
including ``sexual and reproductive health,'' and the previous 
administration submitted statements explicitly declaring that 
this phrase ``does not include abortion.'' However, no language 
defining sexual and reproductive health has been placed in the 
present resolution, and an attempt to reiterate the United 
States' Explanation of Position from 2006 was defeated. 
Abortion remains a highly controversial issue in the United 
States, and as such, it should be determined through domestic 
processes, not at an international level.

The Committee on the Rights of Persons with Disabilities

    The Convention also establishes the Committee on the Rights 
of Persons with Disabilities, which reviews reports submitted 
by each State Party on the implementation of its obligations 
and makes ``suggestions and general recommendations on the 
report as it may consider appropriate.'' The Committee is 
therefore, in practice, the primary actor in defining State 
Party obligations and seeking to influence domestic policies 
that implement those obligations. While the Committee is 
comprised of 18 members nominated and elected by the States 
Parties, according to Article 34(3), ``members of the Committee 
shall serve in their personal capacity'' and therefore do not 
represent the country or government that nominated them. 
Therefore, while an American might be a member of the 
Committee, it is clear that even having such a representative 
would not fully provide the United States with the opportunity 
to have our national interests represented in the Committee's 
deliberations about the treaty and its recommendations to 
States Parties.
    In practice, the Committee makes very detailed 
interpretations about the treaty's requirements and often makes 
extensive criticisms of State Parties and recommendations for 
modifications to domestic law. Committee recommendations often 
resemble the following example from the Committee's concluding 
observations on Australia:


          The Committee is further concerned that under 
        Australian law a person can be subjected to medical 
        intervention against his or her will, if the person is 
        deemed to be incapable of making or communicating a 
        decision about treatment.


          The Committee recommends that the State party repeal 
        all legislation that authorizes medical intervention 
        without the free and informed consent of the persons 
        with disabilities concerned, committal of individuals 
        to detention in mental health facilities, or imposition 
        of compulsory treatment, either in institutions or in 
        the community, by means of Community Treatment Orders. 
        (emphasis added).


    The Committee has gone further, issuing global guidance on 
May 19, 2014, which stated:


          On the basis of the initial reports of various States 
        parties that it has reviewed so far, the Committee 
        observes that there is a general misunderstanding of 
        the exact scope of the obligations of States parties 
        under article 12 of the Convention. Indeed, there has 
        been a general failure to understand that the human 
        rights-based model of disability implies a shift from 
        the substitute decision-making paradigm to one that is 
        based on supported decision-making [ ... ] 
        Historically, persons with disabilities have been 
        denied their right to legal capacity in many areas in a 
        discriminatory manner under substitute decision-making 
        regimes such as guardianship, conservatorship and 
        mental health laws that permit forced treatment. These 
        practices must be abolished in order to ensure that 
        full legal capacity is restored to persons with 
        disabilities on an equal basis with others.


    While the Committee has no power to enforce its 
recommendations, by seeking to correct an interpretation that 
is apparently widely-held by the States Parties themselves, 
this example demonstrates the authority that the Committee 
claims for itself to interpret State Party obligations under 
the Convention. In addition, this example raises questions 
about the Administration's analysis of United States compliance 
with Article 12, and raises again the questions of reliance on 
state law and the potential expansion of federal authority.


Democratic Legitimacy

    As described above, the Convention covers expansive subject 
matter territory and is almost entirely devoted to domestic 
policy. While some of this territory simply seeks to establish 
the same fundamental rights of liberty, due process, and equal 
protection that our Constitution requires, the Convention also 
reaches considerably further into areas entirely reliant on 
legislative action, often on issues reserved to the several 
states under the United States Constitution. The Americans with 
Disabilities Act is our most significant legal regime governing 
disability protections and typifies the United States approach 
found across federal law. However, as described above, the 
Letter of Submittal references more than three dozen federal 
statutes that serve, at least in part, to fulfill our 
obligations under the Convention, not to mention a range of 
state and local laws. The policies embedded in each of these 
laws, and in the many state legal regimes governing matters 
addressed by the Convention, have been developed over the 
course of decades through the give-and-take of our democratic 
process. They thus represent a legacy of which most Americans 
are proud and believe demonstrates some of our nation's highest 
values.
    Importantly though, our democratic process continues, and 
the history of United States leadership on disability policy is 
not frozen in time. Questions of housing, health care, income 
assistance, accessibility, mobility, communication and access 
to information, and of many other areas remain highly relevant 
in a country experiencing rapid technological change and 
scientific discovery. How to adapt our laws on these matters to 
our changing future will be rightly decided through democratic 
decision-making at the federal and at the state and local 
level, subject to the rights and requirements of the 
Constitution. And the results of that process of self-
government should not be called into question by treaty 
commitments. Rather, the results of that process gain their 
legitimacy because of that very process.

Comments

    The committee's consideration of the Convention has brought 
substantial attention to the significant leadership role the 
United States has played in developing a greater understanding 
of the inherent dignity of every individual, and developing a 
new appreciation of the obligations of society to all its 
citizens. However, the committee's consideration has also 
brought substantial attention to the fact that fundamental 
rights of life, liberty, citizenship, and equal treatment under 
the law go entirely unrealized in far too many places around 
the world. It is one of our core values, and it is in our 
national interest to promote respect for every human life. All 
agree that the United States is uniquely qualified and 
positioned to seek to impact those places to better the lives 
of those with disabilities who reside there, but also to 
enhance the opportunity for Americans abroad. While this treaty 
is not an appropriate vehicle for achieving these goals, 
principally because it has the potential to significantly alter 
the Constitution and because is not an appropriate tool for 
establishing domestic policy, substantial concrete action will 
be needed to bring about actual and tangible progress 
internationally. And the United States should continue to 
bolster those efforts.
                  XI.--Minority Views of Senator Flake

    Under the Constitution, treaties are the ``supreme law of 
the land.'' A critical constitutional prerogative bestowed on 
the United States Senate is that of providing advice and 
consent to treaties and considering resolutions of ratification 
that enable the President to formally ratify them. It is of 
paramount importance that support for a resolution of 
ratification be carefully weighed; including consideration of 
national interests that may or may not be served. These 
decisions should not be made lightly.
    I am persuaded that the adoption of strong reservations, 
understandings, and declarations could address sovereignty 
concerns that have been raised with regard to United Nations 
Convention on the Rights of Persons with Disabilities. I am 
not, however, persuaded that the ratification of this treaty 
would provide the United States with a moral high ground that 
we currently lack. As the United States is the leader on 
disabilities policy in the world, I'm not certain higher ground 
is even a possibility. The Americans with Disabilities Act 
(ADA) has been the law of the land since 1990 and is recognized 
as the gold standard. In fact, it serves as the basis for much 
of this treaty. In addition, the United States Agency for 
International Development already administers programs across 
the globe aimed at helping the disabled.
    I am similarly unpersuaded that, if ratified, this treaty 
will have any substantive impact in other countries. While 
Article 4 of the treaty obligates parties "to take all 
appropriate measures, including legislation, to modify or 
abolish existing laws, regulations, customs and practices that 
constitute discrimination against persons with 
disabilities,"\1\ there is nothing that compels them to act. 
The treaty would require each party to submit a report that 
details progress made on these obligations to the Committee on 
the Rights of Persons with Disabilities established by Article 
34. This Committee is empowered to make ``such suggestions and 
general recommendations on the report as it may consider 
appropriate and shall forward these to the State Party 
concerned,''\2\ but no further actions are required.
---------------------------------------------------------------------------
    \1\United Nations Convention on the Rights of Persons with 
Disabilities, Article 4 (1)(b).
    \2\United Nations Convention on the Rights of Persons with 
Disabilities, Article 36 (1).
---------------------------------------------------------------------------
    In testimony before the Senate Foreign Relations Committee 
on November 21, 2013, Secretary of State John Kerry said that 
ratifying the Treaty would ``provide the leverage--the hook 
that we need in order to push other countries to pass laws or 
improve their laws or raise their standards for the protection 
of people with disabilities up to the standard that we have 
already adopted in the United States of America.''\3\ However, 
countries that are party to the treaty are not actually 
obligated to do anything with regard to disability rights. 
There is little in the way of leverage that would be provided 
that is not already available through bilateral discussions and 
negotiations.
---------------------------------------------------------------------------
    \3\John Kerry, Secretary of State, ``Convention on the Rights of 
Persons with Disabilities,'' Senate Foreign Relations Full Committee 
Hearing, November 21, 2013.
---------------------------------------------------------------------------
    Proponents of the treaty make a compelling argument that 
its ratification by other countries provides grassroots efforts 
there an instrument with which to hold a government's feet to 
the fire with respect to advancing rights for the disabled. 
While I agree that the treaty can serve a useful purpose in 
this regard, it is already doing so in 147 countries. I am not 
persuaded that ratification by the United States will compel 
the few remaining countries in the world that have not yet 
ratified to do so.
    The United States continues to demonstrate its leadership 
in disability policy. This Committee has heard testimony that 
the treaty would not require us to change our laws. It does not 
appear that the treaty would require any legal or policy 
changes in other countries, either. As such, it would appear 
that ratification of this treaty would be little more than a 
symbolic gesture. I remain concerned that ratifying a treaty 
for purely symbolic purposes would dilute the importance and 
integrity of the treaty process altogether.
 XII.--Annex I.--Transcript of Hearing Held on November 5, 2013, with 
              Additional Material Submitted for the Record










                      CONVENTION ON THE RIGHTS OF 
                       PERSONS WITH DISABILITIES

                              ----------                              


                       TUESDAY, NOVEMBER 5, 2013

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:30 p.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Robert 
Menendez (chairman of the committee) presiding.
    Present: Senators Menendez, Boxer, Cardin, Coons, Durbin, 
Kaine, Markey, Corker, Johnson, Flake, McCain, and Barrasso.

          OPENING STATEMENT OF HON. ROBERT MENENDEZ, 
                  U.S. SENATOR FROM NEW JERSEY

    The Chairman. This hearing of the Senate Foreign Relations 
Committee will come to order.
    Let me welcome our panelists and all of our guests, who 
have taken the time to come here today for this important 
hearing on the rights of roughly 1 billion people around the 
world with disabilities.
    Let me quickly welcome three guests: first, Congressman 
Tony Coelho, who has been a longtime champion of the rights of 
the disabled. I appreciate him joining us.
    Let me also recognize Ann Cody, a multiple Paralympic 
medalist representing the United States on three Paralympic 
teams. She has also been nominated to be the vice president of 
the International Paralympic Committee. I think Anne 
understands that it is not enough to just make the stadium 
accessible, you also need to make surrounding restaurants and 
businesses accessible, and we thank you for being here, and for 
your advocacy, as well.
    I also want to recognize Jagoda Risteska, who is a leader 
in the disability community in Macedonia. She is in the United 
States to learn about transportation and independent living 
systems. Here in the United States, having high public 
transportation standards allows her to work and live 
independently. And with the help of American leadership, she 
hopes to make that a reality at home, as well. So, we thank you 
for your work, and we welcome you here. And I hope that what we 
do here will help you in your efforts.
    Ann and Jagoda's presence makes clear what we are here to 
do. Ratifying this treaty will help the United States lead in 
the effort to give every disabled person the opportunity to 
live, work, learn, and travel without undue barriers. There are 
5\1/2\ million American veterans with disabilities, young men 
and women who risked their lives to fight for us, and now it is 
our turn to fight for them to have full access and equal 
opportunity wherever they go.
    One hundred thirty-eight countries have already ratified 
the treaty, but protections will not come automatically. It 
will take U.S. ratification and U.S. leadership to ensure the 
treaty's protections not only become a reality, but reflect 
American values.
    From the U.S. Constitution, the treaty borrows principles 
of equality and the protection of minorities. From the 
Declaration of Independence, it borrows the inalienable right 
to pursue happiness. And from the Americans with Disabilities 
Act and other landmark accessibility laws, the treaty borrows 
the concept of reasonable accommodation. By ratifying this 
treaty, we will be advocating for the adoption of American 
values around the world.
    At the end of the day, if we fail to ratify the treaty, the 
U.S. point of view and U.S. interests will be marginalized. We 
have heard from the State Department that they have gotten 
pushback in their accessibility advocacy because we are not a 
party to the treaty. We have also heard from NGOs who have been 
asked why American experts should be consulted on matters 
pertaining to a treaty we have not ratified. American 
businesses, the greatest accessibility innovators in the world, 
have expressed the fear that our diminished standing on 
disability rights could mean that markets for accessible goods 
might not expand as quickly as they otherwise would and that, 
in the future, our businesses might very well have less success 
advocating for U.S. accessibility standards. This raises the 
possibility that the world will adopt standards incompatible 
with the American standards that have proven so effective. In 
short, we need to ratify this treaty if we are going to lead 
the way in raising worldwide accessibility levels to the 
American standard.
    As we embark on the first of our two hearings on the 
Disabilities Treaty, I ask my colleagues to look past the fear-
mongering some have engaged on in this debate. Ratifying this 
treaty will not mean bureaucrats in Europe will determine how 
many parking spots are in your church's parking lot, as some 
have claimed. Our jobs as Senators require us to see through 
these smokescreens and see clearly that this treaty is about 
putting America in a position to help lead the world so that 
everyone--everyone--has the opportunity to fully achieve their 
dreams and fulfill their God-given talents.
    Let me introduce Senator Corker, the ranking member, for 
his opening remarks, and then we will move toward the first 
panel.

             OPENING STATEMENT OF HON. BOB CORKER, 
                  U.S. SENATOR FROM TENNESSEE

    Senator Corker. Mr. Chairman, thank you. And I appreciate 
you having these hearings so members can more fully understand 
the elements of this treaty. And I appreciate you having a 
diverse group of witnesses. I certainly appreciate my good 
friend, Kelly Ayotte, being here today.
    And I have to tell you, the meetings that we had last year, 
I think one of the most moving moments in time was to have two 
Senators--I think, John McCain and Tom Harkin--talking about 
what they had done together so many years ago to move the ADA 
law into existence. And so many things have occurred since 
then. I know we had a unanimous vote, back in 2008, on the ADA 
Amendments Act, and we have continued to make tremendous 
progress.
    I do think that last year when this was considered, it was 
not considered in its fullness. It was rushed, and we did not 
really have the kind of hearings that it takes to ratify a 
treaty. A treaty has a different standard than most laws, with 
67 votes, for obvious reasons. Again, I am glad that this year 
we are taking a little bit more methodical approach to that.
    I do want to say to the advocates of this piece of 
legislation and this treaty, I am really the--it is tremendous 
to see the effort that is underway to move people along in this 
regard.
    Whenever a bill or a treaty is passed, there are some 
unintended consequences. And I think it is our obligation to 
look at the effects that a treaty like this could have on 
domestic law. I am not one of those folks who thinks there is 
somebody behind every woodpile trying to do something. I just 
want to make sure that we, in fact, pass a treaty and it has 
the relevant RUDs.
    I want to just mention this to those that are here. When a 
treaty passes, there is something called ``RUDs'' on the front 
end. They are the things that we actually act upon to give a 
treaty its life here in the United States. Just today, there is 
a Supreme Court hearing that is taking place. Arguments are 
being argued over a lady in Pennsylvania named Bond, who, 
unbelievably, was convicted of a law under the Chemical Weapons 
Treaty that we put in place back in 1997. And so, sometimes 
when people raise concerns, they are actually legitimate.
    And I would just ask committee members to try to work with 
those of us who understand that we want to advance the rights 
of people who are disabled throughout the world. I want to. I 
think that is a good thing. At the same time, within a treaty, 
unless the RUDs on the front end are put in place in an 
appropriate way, there can be some consequences here, 
domestically, that affect people in various groups.
    So, again, I am neutral. I just proclaim, right now, I do 
not have a position on this treaty. I do appreciate the energy 
that has been put forth toward this treaty. At the same time, I 
want to make sure that we, as a committee and hopefully as a 
Senate, get it right. We have worked some with John Kerry 
already, and his staff, to see if there are some ways of making 
sure that some of those unintended consequences do not come to 
bear.
    Again, we have a real-life scenario today. At the Supreme 
Court, where literally a treaty is taking precedent over the 
laws of Pennsylvania and over the United States as someone that 
has been convicted, believe it or not, under a Chemical Weapons 
Treaty--by the way, that did not work for Assad, but is working 
right now against someone in Pennsylvania.
    So, I thank you for, again, these hearings. I look forward 
to a very vigorous debate. I look forward especially to my good 
friend Kelly Ayotte's testimony. And I look forward to working 
with all to come up with a good outcome here.
    Thank you.
    The Chairman. Thank you, Senator Corker, and we also look 
forward to an open and intellectually honest debate, and we 
stand ready to work with any member who wants to get to 
``yes,'' in terms of finding the opportunity to address their 
concerns in the reservations, understandings, and declarations. 
And I look forward to that opportunity to achieve that goal.
    Our first panel is two of our--well, going to be two of our 
colleagues, and presently only one of our colleagues is here--
Senator Kelly Ayotte, who has been a champion of the treaty, an 
advocate for it, and has worked with us to try to achieve the 
goal of getting the votes necessary. I know she is here in her 
own right, as well as in speaking on behalf of Senator Bob 
Dole, who is a great champion of the treaty and an icon here in 
the Senate.
    And as I recognize you, let me also thank Congressman 
Bartlett, who I understand is here with us from the House.
    Congressman, thank you very much, I appreciate your being 
here with us.
    And, with that, our distinguished colleague, Senator 
Ayotte.

                STATEMENT OF HON. KELLY AYOTTE, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Ayotte. Thank you very much, Chairman Menendez, 
Ranking Member Corker, honorable members of the committee.
    I am deeply humbled to be here today. First of all, my 
primary purpose of being here today is to read the statement of 
Senator Robert Dole, someone who was an extraordinary leader in 
the United States Senate. He is someone who is a role model, in 
terms of what it means to be a public servant. And we all 
appreciate that he is a true American hero with the service 
that he gave to our country.
    And so, I am deeply honored to be here. I personally 
support what this committee is doing. The Convention on the 
Rights of Persons with Disabilities, I think, is very, very 
important for us to work together to get this passed. And so, I 
look forward to working with the chairman and other members of 
the committee to do that and to address any concerns that 
members of the committee may have. But, my primary purpose of 
being here today is to read the statement of Senator Robert 
Dole, and so I will do that right now.
    ``Chairman Menendez, Ranking Member Corker, and members of 
this committee, I urge you to give your support and consent to 
the Convention on the Rights of Persons with Disabilities. 
While I cannot stand before you in person today, I approach you 
in the strong hope that, on your second examination of this 
important treaty, you will again do the right thing and advance 
the rights of disabled individuals from the United States and 
throughout the world.
    ``In so doing, I am privileged to join with over 20 
veterans organizations, 40 religious groups, more than 700 
disability and allied groups, dozens of you on both sides of 
the Senate aisles, and many other prominent Americans who 
recognize the imperative of United States leadership on this 
issue, a leadership that will be imperiled without the United 
States ratification of the Convention on the Rights of Persons 
with Disabilities.
    ``When this treaty came before the Senate last year, it 
fell just five votes short of passage. In debating the treaty's 
merits, treaty opponents expressed concern that the CRPD would 
diminish American sovereignty, that, through U.S. ratification, 
the United Nations would somehow be able to supersede U.S. law, 
even by interfering with American parents' right to homeschool 
their children. Along with Senator John McCain, Secretary John 
Kerry, and others, I could not disagree more strongly with this 
view. This treaty contains reservations, understandings, and 
declarations, otherwise known as RUDs, that explicitly describe 
how the treaty will, and will not, apply to the United States.
    ``At the same time, I respect this institution, its 
provisions for debate, and its tolerance of the opinions and 
conclusions of its 100 members. Today, I urge all of you to 
keep an open mind and recognize another important 
characteristic of this august body, the opportunity it presents 
for policies to evolve and be strengthened as members work 
together in a bipartisan fashion for a greater good.
    ``This treaty, in a way that is both telling and unique, 
enjoys the support of diverse groups serving a variety of 
interests: Republicans and Democrats, veterans organizations 
and disability groups, businesses, and religious organizations. 
Given the broad support, I hope those of you with reservations 
about any aspect of the treaty will work with your colleagues, 
whom I know are ready to work with you to address your 
concerns. If improvements to the RUDs are needed, then I urge 
members from both parties to work together on that.
    ``This treaty is important for America because of who we 
are as a nation. It is particularly important, though, for a 
distinguished group, of which I am a member. As I recalled in 
my statement to this committee last year, I left World War II 
having joined an exceptional group, one which no one joins by 
personal choice. It is a group that neither respects nor 
discriminates by age, gender, wealth, education, skin color, 
religious beliefs, political party, power, or prestige; so, 
therefore, has the importance of maintaining access for 
people''--excuse me--``that group, Americans with disabilities, 
has grown in size ever since, so, therefore, has the importance 
of maintaining access for people with disabilities to be part 
of mainstream American life, whether through access to a job, 
an education, or registering to vote. To me, this is not about 
extending a privilege to a special category of people; it is, 
instead, about civil rights.
    ``When Congress passed the Americans with Disability Act 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.
    ``If not before the ADA, then certainly after its passage, 
our Nation led the world in developing disability public policy 
and equality. In recent years, many countries, including our 
allies in Australia, Britain, Canada, France, Germany, Israel, 
Mexico, and South Korea, have followed our lead.
    ``In 2006, President George W. Bush took U.S. leadership on 
this issue to a new level by negotiating and supporting 
approval of the CRPD. On the anniversary of the ADA in 2009, 
President Barack Obama signed the treaty, a landmark document 
that commits countries around the world to affirm what are 
essentially core American values of equality, justice, and 
dignity. U.S. ratification of the CRPD will increase the 
ability of the United States to improve physical, 
technological, and communication access in other countries, 
thereby helping to ensure that Americans, particularly many 
thousands of disabled American veterans, have equal 
opportunities to live, work, and travel abroad.
    ``In addition, the treaty comes at no net cost to the 
United States. In fact, it will create a new global market for 
accessibility of goods. An active U.S. presence in 
implementation of global disability rights will promote the 
market for devices such as wheelchairs, smartphones, and other 
new technologies engineered, made, and sold by United States 
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. Indeed, as 
President George H.W. Bush informed this committee last year, 
the treaty would not require any changes to U.S. law. It would 
extend protections pioneered in the United States to more than 
1 billion people with disabilities throughout the world.
    ``President Obama has again submitted the treaty to you for 
your advice and consent. I urge you to seize this critical 
opportunity to continue the proud American tradition of 
supporting the rights and inclusion of people with 
disabilities.
    ``Years ago, in dedicating the National World War II 
Memorial, I tried to capture what makes America worth fighting 
for--indeed, dying for. `This is a golden thread that runs 
throughout the tapestry of our nationhood,' I said `the dignity 
of every life, the possibility of every mind, the divinity of 
every soul.' I know many of you share this sentiment, and hope 
you will consider this treaty through that lens. In ratifying 
this treaty, we can affirm these goals for Americans with 
disabilities.
    ``I urge you to support United States ratification of this 
important treaty, and I thank you for the courtesy of your 
consideration. God bless America.''
    The Chairman. Thank you, Senator Ayotte, for your own 
advocacy, and our thanks to Senator Dole for his own long-
standing advocacy in this regard. We appreciate you coming 
before the committee to express his sentiments.
    Senator Ayotte. Thank you, Chairman Menendez, Ranking 
Member Corker. And I am deeply, deeply honored, here, to be, as 
well, with my colleague Senator Mark Kirk.
    The Chairman. Which we are going to turn to next.
    We welcome to the committee a friend, a colleague, Senator 
Kirk. I know that Senator Durbin wanted to be recognized to 
both welcome his colleague from Illinois as well as recognize 
Congresswoman Duckworth.

             STATEMENT OF HON. RICHARD J. DURBIN, 
                   U.S. SENATOR FROM ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman. I will 
be very brief.
    When the history of the United States Senate and Congress 
are written about the year 2013, there are high points and low 
points, but one of the highest points was January 3 of this 
year, because it was on January 3 when our colleague, Mark 
Kirk, returned to the United States Senate determined to climb 
those 45 steps into the Senate. He had endured a life-
threatening stroke, three brain surgeries, hundreds of hours of 
rehabilitation, but he was coming home--coming back to his job 
in Washington. For all of the negative and partisan things that 
are said, if someone could have witnessed that scene on the 
steps and watched your colleagues, Mark, stand and applaud, 
colleagues of both political parties, it was a reaffirmation 
not only of what the Senate really should be about, but also a 
tribute to you, your determination and your courage. I was 
honored to come up those stairs with you, and honored, still, 
to serve as my fellow colleague from Illinois.
    I will introduce Congressman Duckworth when she is--on the 
next panel.
    But, Mark, thank you very much.
    The Chairman. Senator Kirk, the floor is yours.

                 STATEMENT OF HON. MARK KIRK, 
                   U.S. SENATOR FROM ILLINOIS

    Senator Kirk. Mr. Chairman, I want to thank you for----
    The Chairman. If you would just turn your microphone on.
    Senator Kirk. I would like to also say, as a recently 
disabled American, to speak for what I would call my fellow 
broken people, how important it is to adopt this Convention. I 
want to introduce you to a constituent of Senator Durbin's and 
mine, Steve Baskis. He is a veteran of Iraq and lost his sight 
in battle in that country--27 years old. I want you to think 
about him as--too often, you know, we have a problem in 
thinking of our veterans as victims. They are victors. Steve is 
an ardent rock climber. He is one of those victors that Tammy 
and I see all the time--right, Tam? See, we rehab a lot in 
Walter Reed, where, in that room where we are working all the 
time are about 20 legs or arms missing for those guys. But you 
cannot hold those guys back. I would just say that this 
Convention allows people to ``go, man, go,'' and become victors 
instead of victims.
    [The prepared statement of Senator Kirk follows:]

                Prepared Statement of Senator Mark Kirk

    I am honored to come before the committee to express my support for 
the Convention on the Rights of Persons with Disabilities. As you know, 
in January 2012, I suffered an ischemic stroke that left me dependent 
on a cane or wheelchair to get around. I walk slowly, speak slowly, and 
have limited vision on my left side. Thanks to the Americans with 
Disabilities Act and other disability laws and polices we have in place 
here in the United States, I have not been sidelined by my 
disabilities.
    For younger Americans, it may be difficult to imagine a country 
where sidewalk corners don't have ramps or where public buses don't 
have hydraulic lifts--but in many parts of the world these basic 
accessibility measures still don't exist. Throughout the world too many 
persons with disabilities, including innocent children, live in the 
shadows--socially, economically, and politically shunned, solely on the 
basis of their disabilities.
    America must remain the voice for the voiceless--the leader to end 
disability-based discrimination and exclusion throughout the world. We 
now have commitments from many countries to promote and ensure equal 
access for their citizens living with disabilities. The CRPD is the 
mechanism for these commitments to become a reality.
    I understand the skepticism among some of my colleagues with regard 
to United Nations treaties. I remain a critic of several U.N. agencies 
and treaties for their lack of transparency, accountability, and 
distribution of power to tyrants and human rights abusers. But this 
treaty is not about politics, it isn't about pity, it is about 
opportunity and access for those of us living with disabilities.
    Unlike other U.N. treaties, there are really only advantages to 
ratification of the CRPD--and the American people understand these 
advantages. A coalition of more than 700 disability, faith, veteran, 
and business organizations have voiced their support of the treaty. 
They know that the CRPD will help unlock American access abroad--all 
without threatening our sovereignty, changing our laws or spending 
taxpayer money.
    Think about our wounded warriors and other Americans with 
disabilities hoping to travel the world. Will their wheel chair fit 
through their hotel room door? Will their business conference venue 
have an elevator? Will they be allowed to bring their guide stick or 
will it be mistaken for a weapon? Put simply, will they be denied the 
same dignity and access abroad that we now take for granted here at 
home?
    Consider this inspiring story from one of my constituents. Coming 
from a military family, Steve Baskis, from Normal, IL, had always known 
he wanted to serve his country. In January 2007, he enlisted in the 
Army and was deployed to Iraq a year later. His life was forever 
changed when while on combat patrol an explosively formed penetrator 
sent a projectile through his armored vehicle, killing his friend and 
leaving him without vision and control of his left hand. Grateful for 
the second chance at life, Steve has endeavored to live life to the 
fullest, traveling domestically and internationally to compete in 
various sporting events and most impressive, climb mountains. However, 
it is not without challenges--he once said it is ``more difficult to 
navigate through airport security in some foreign countries than it is 
to climb a mountain.'' Despite the barriers, he has not allowed his 
disability to thwart his quest for adventure.
    I regularly go to Walter Reed Medical Center for my own physical 
therapy. Watching our wounded warriors fighting to reenter the world, I 
am constantly inspired by their determination in the face of adversity. 
They, like Steve, fought for our freedom and paid a heavy price; let's 
fight for their freedoms and defend their rights and access when they 
travel abroad.
    In addition to our veterans, the CRPD will help advocate for the 
rights of our disabled athletes that wish to represent the U.S. on the 
international stage--like 15-year-old Brody Roybal from Northlake, IL, 
who is the youngest athlete on the U.S. Sled Hockey national team that 
will soon compete in the 2014 Sochi Paralympics. Brody proudly 
represents the Rehabilitation Institute of Chicago (RIC) Blackhawks, 
the very same facility where I completed my rehabilitation.
    While my stroke prevented me from voting for this treaty in the 
last Congress, I am proud to be here today to lend my support this time 
around. The U.S. Senate should do the right thing and ratify the 
Convention on the Rights of Persons with Disabilities.

    The Chairman. Thank you, Senator Kirk. We appreciate you 
being here with us, sharing those sentiments, and we appreciate 
your advocacy, as well, for the treaty.
    Senator Kirk. Mr. Chairman, could you--sorry--I will point 
out, the explosively foreign projectile that hurt Steve was 
made in Iran.
    The Chairman. Yes. There is no more passionate proponent of 
trying to stop Iran's nuclear weapons, as well as their acts of 
terrorism. So, thank you for that, as well.
    I know you both have busy schedules, so we will--with our 
thanks of the committee, we will excuse you both.
    And let me call up our second panel. We have a large panel 
here, so I ask the witnesses to limit their presentations to 5 
minutes so that the committee can engage in a question-and-
answer session to them.
    The full statements of each and every one of our panelists, 
that were submitted to the committee prior to this hearing, 
will be entered into the record in full, without objection.
    First, we have Tom Ridge, former Secretary of Homeland 
Security and current chairman of the National Organization on 
Disability, to discuss his support for the treaty and the 
importance of ratification. I know that the Secretary changed 
his schedule to be with us today. He is a keynote speaker at a 
disabilities-related event this evening in New York, so we will 
be excusing him around 4:30 or so.
    Mr. Secretary, please join us, and thank you for 
rearranging your schedule to be here today.
    I will leave Congresswoman Duckworth to be recognized by 
Senator Durbin, but we have someone who has done a tremendous 
amount of work at the Department of Veterans Affairs and whose 
personal testimony about her personal experience as a wounded 
warrior is invaluable to the committee.
    I want to ask former Attorney General Richard Thornburgh to 
join us, as he is here to discuss the practical importance of 
ratification.
    And let me also recognize his wife, Ginny, who is 
accomplished in the field of disability advocacy in her own 
right. We appreciate you being here, as well.
    Let me ask Dr. Susan Yoshihara, from The Catholic Family & 
Human Rights Institute, Professor Timothy Meyer, the assistant 
professor of law at the University of Georgia School of Law, 
and Dr. Michael Farris, to join us, as well, as they offer 
their views on the treaty.
    Thank you all.
    Let me turn to Senator Durbin.
    Senator Durbin. Thank you, Mr. Chairman.
    I am really honored that two of the witnesses are from 
Illinois, and especially honored, in addition to saying a word 
about our colleague, Mark Kirk, to say a word about Tammy 
Duckworth, because it is interesting how we came to meet.
    I invited her to be my guest at a State of the Union 
Address in 2005. She came in, in her wheelchair, and I did not 
realize it was only 9 or 10 weeks after she had been shot down 
serving in the Illinois Army National Guard and copiloting a 
Black Hawk helicopter in Baghdad. She had lost both of her 
legs, and there was a question, then, about one of her arms. 
But, she came, with a big smile on her face, in full dress 
uniform, with her husband, also a National Guard officer, 
pushing the wheelchair behind her. And that is when we came to 
meet.
    It is an incredible story. And the most amazing part of the 
story is--to me, is that, in just a week from now, it will be 
an observance of her ninth alive day--ninth anniversary of her 
alive day, of her survival from that helicopter incident and 
the crash that followed. She has led such an amazing and 
inspiring life since. Tomorrow, she celebrates her first 
anniversary as a Member of the United States House of 
Representatives. She has worked so hard for so many people and 
so many veterans and people with disabilities. I am honored to 
count her as a friend and glad that she can join us today.
    The Chairman. Thank you very much.
    Thank you all for joining us. As I said, we will ask you to 
limit your remarks to about 5 minutes. Your full statements 
will be included in the record. And we will start with 
Secretary Ridge.
    Mr. Secretary.
    Mr. Ridge. Well, I was going to defer to Tammy. Ladies 
first?
    The Chairman. We will start with Congresswoman Duckworth, 
then. [Laughter.]
    I never argue with the Secretary----
    Ms. Duckworth. I never argue with the Secretary, either, 
Mr.----
    The Chairman [continuing]. Especially when his testimony is 
along my views. So, you know----
    [Laughter.]
    Mr. Ridge. After that great introduction, it should only be 
that way.
    Ms. Duckworth. Thank you.

STATEMENT OF HON. TAMMY DUCKWORTH, CONGRESSWOMAN FROM ILLINOIS 
     AND LIEUTENANT COLONEL, ILLINOIS ARMY NATIONAL GUARD, 
                         WASHINGTON, DC

    Ms. Duckworth. Thank you. Chairman Menendez, Ranking Member 
Corker, members of the Foreign Relations Committee, thank you 
so much for the opportunity to speak today in support of the 
Convention on the Rights of Persons with Disabilities.
    I believe CRPD ratification is integral to our Nation's 
global leadership role. We set the gold standard in our 
lifelong commitment to our disabled veterans. We have what 
should be the gold standard in disability access, yet our 
legitimacy to lead other nations is weakened because we have 
not yet ratified the CRPD.
    There are over 5\1/2\ million veterans with disabilities in 
the United States, and this number will continue to grow as we 
welcome back our servicemembers from their deployments. We are 
fortunate to have many laws, most importantly the Americans 
with Disabilities Act, that make sure our veterans are welcomed 
back with the dignity and respect they deserve.
    The passage of the ADA showed a United America. Republicans 
and Democrats standing up together for the rights of disabled 
persons. America's leadership inspired many around the world to 
seek justice and fairness for disability communities in their 
own countries. Unfortunately, our laws do not follow 
servicemembers and veterans when they are outside U.S. borders. 
When veterans travel abroad, they are often jolted by leaving 
our Nation, that does everything in its power to support our 
wounded warriors.
    I traveled to Asia earlier this year, and I saw firsthand 
how even countries that are moving forward economically are not 
keeping pace with the necessary protections for disabled 
persons. For example, disabilities groups that I met with told 
me about the challenges they face in trying to make public 
buses wheelchair-accessible. It is a sad fact that, in many 
countries around the world, the disabled are hidden, considered 
to be an embarrassment, and not afforded the accommodations 
they need to lead productive lives. It is not surprising, then, 
that, when disabled Americans travel abroad, we can find 
ourselves mistreated and rejected simply because we are 
physically developmentally, or cognitively disabled. Without 
U.S. ratification of the CRPD, those of us who are disabled and 
active lose the ability to set an example when traveling 
overseas.
    Blinded veterans have had their guide sticks taken away 
after being mistaken for weapons. People with artificial limbs 
have been told to store them in overhead bins. As one blinded 
veteran who ventures around the world climbing its tallest 
peaks recently put it, ``Climbing the mountains is not the 
challenge. Getting there is.''
    Many wounded warriors are returning to Active Duty service. 
They should not be limited by their disability as to where and 
how they can leave their impact on the world. We do want to 
travel, work, and, yes, serve abroad, but our service abroad 
will be limited if we do not start thinking globally about 
accessibility and how the United States can have an impact now 
on this issue.
    The generous benefits provided by the post-9/11 GI bill 
that many on this very committee supported have given almost a 
million Iraq and Afghanistan veterans the opportunity to 
further their education. Many of these veterans are disabled 
and will be unable to enhance their education with study-abroad 
opportunities because of a lack of disability access overseas. 
It is sad that those who fought for our freedoms would find 
their own freedoms restricted now that they are moving on with 
their lives.
    Accessibility abroad also impacts current servicemembers. 
For those that have a child or a family member with a 
disability, the lack of access in the country of their duty 
station can mean limited opportunities for their children or 
employment for their spouses. These servicemembers may have to 
face the very difficult choice between a career-enhancing tour 
of duty or leaving their loved ones behind, here in the United 
States. This is unfortunate, because the Department of Defense 
provides many accommodations for the needs of military 
families. For example, the DOD will pay for homeschooling 
supplies, equipment, and support for servicemembers with 
families in the Exceptional Family Member Program, yet if a 
servicemember fears negative stigma from joining the program, 
they are likely to miss out on a homeschooling benefit that 
might have allowed their childrens with disabilities to 
accompany them on an enriching overseas assignment.
    For all these reasons, the Veterans of Foreign Wars, the 
Iraq and Afghanistan Veterans of America, and the Blinded 
Veterans of America all support ratifying this vital treaty.
    In August, I was thrilled to cheer on the American Legion 
when their membership unanimously voted to support ratification 
of the CRPD at their annual convention.
    We wounded warriors have done our job serving our country. 
Many of us sacrificed a great deal in doing so. We did this 
because we believe in this Nation, we believe our country 
should lead, that the world is a better place when the United 
States steps up to take leadership. And when it comes to 
improving opportunities for disabled Americans who want to 
travel and work abroad, veterans believe we should have a seat 
at the head of the table. It is time that the United States 
reaffirms itself as a leader for fairness and justice. We must 
stand as an example for those with disabilities around the 
world. We have done it before, and we can do it again.
    Thank you so much for your time.
    [The prepared statement of Ms. Duckworth follows:]

          Prepared Statement of Congresswoman Tammy Duckworth

    Chairman Menendez, Ranking Member Corker, and Members of the 
Foreign Relations Committee, thank you for the opportunity to speak 
today in support of the Convention on the Rights of Persons with 
Disabilities. I am a strong supporter of the disability treaty for many 
reasons.
    I believe ratification is integral to our Nation's global 
leadership role. We set the Gold Standard in our lifelong commitment to 
our disabled Veterans. We have what should be the Gold Standard in 
disability access, yet our legitimacy to lead other nations is weakened 
because we have not yet ratified the CRPD.
    The CRPD will allow Veterans with disabilities to have greater 
opportunities to work, study abroad, and travel as countries implement 
this treaty. Veterans, active Service Members and their families who 
are affected by disability will be able to lead active lives around the 
world.
             legacy of the americans with disabilities act
    There are over 5\1/2\ million Veterans with disabilities in the 
United States. And this number will continue to grow as we welcome back 
our Service Members from their deployments in a number of conflict 
zones. We are fortunate to have many laws, most importantly the 
Americans with Disabilities Act, that make sure our Veterans are 
welcomed back with the dignity and respect they deserve.
    The ADA makes life easier for the thousands of wounded Veterans 
returning from Iraq and Afghanistan who face tremendous challenges 
adjusting to civilian life with a new disability. Accommodations like 
curb cuts, accessible entrances, vehicles and public transportation are 
so crucial to allowing these proud men and women to live independent 
lives. The importance of this cannot be understated for our Nation's 
Veterans, including myself.
    The ADA is essential in helping me overcome the obstacles I face as 
a Wounded Warrior and gives me the opportunity to assist other 
Veterans. It allows me to be physically active, resume my pilot 
privileges, and serve in Congress. The ADA gave me the opportunity to 
move forward with my life.
    This historic legislation was a true bipartisan effort. It was 
introduced by Senator Tom Harkin and advocated for by a fellow Veteran, 
Senator Bob Dole. It saw support from President George H.W. Bush and 
Senator Ted Kennedy, among many other Republicans and Democrats. The 
passage of the ADA showed a united America standing up for the rights 
of disabled persons. America's leadership inspired many around the 
world to seek justice and fairness for disabled communities in their 
countries. It is one of the main reasons we now have the opportunity to 
ratify the Convention on the Rights of Persons with Disabilities.
                          international travel
    Unfortunately, our laws do not follow Service Members and Veterans 
when they are outside U.S. borders. When Veterans travel abroad, we are 
often jolted by leaving a country that does everything in its power to 
support our Wounded Warriors. We often travel to places that have no 
idea how to accommodate someone with an artificial limb, guide stick, 
or wheelchair.
    It is a sad fact that in many countries around the world, the 
disabled are hidden, considered to be an embarrassment and not afforded 
the accommodations needed for them to lead productive lives. It is not 
surprising then that when disabled Americans travel abroad, we can find 
ourselves mistreated and rejected simply because we are physically or 
cognitively disabled. Without U.S. ratification of the CRPD, those of 
us who are disabled and active lose the ability to set an example when 
traveling overseas.
    International travel is an obstacle for the disabled. It is 
reflective of a grander global misunderstanding of disability. Blinded 
Veterans have had their guide sticks taken away after being mistaken 
for weapons. People with artificial limbs have been told to store them 
in overhead bins and others have been stranded abroad when one leg of a 
flight accommodates wheelchair users, but the next one does not. As one 
blinded Veteran, who ventures around the world climbing its tallest 
peaks recently put it, climbing the mountains is not the challenge but 
it is the getting there that is.
    The generous benefits provided by the post-9/11 GI bill that many 
on this committee supported, have given almost a million Iraq and 
Afghanistan Veterans the opportunity to further their education. Many 
of these Veterans are disabled, however, and will be unable to enhance 
their education with study abroad opportunities because of a lack of 
disability access overseas. It is sad that those who fought for our 
freedoms would find their own freedoms restricted now that they are 
moving on with their lives.
    I am proud to be the first Member of the United States Congress 
born in Thailand and I traveled there earlier this year. I saw 
firsthand how even countries that are moving forward economically are 
not keeping pace with the necessary protections for disabled persons. 
For example, disability groups I met with in Thailand told me about the 
challenges they face in trying to make public buses wheelchair 
accessible. The U.S. has an opportunity to lead, but to do so, we must 
first ratify this treaty.
    Many Wounded Warriors are returning to active duty, despite having 
a disability. They should not be limited by their disability as to 
where and how they can leave their impact on this world. We do want to 
travel, work and yes, serve, abroad. Our service abroad will be limited 
if we do not start thinking globally about accessibility and how the 
U.S. can have an impact now on this issue.
                        current service members
    When I visit injured service members at bases around the world, we 
are consistently met with the issue that they cannot leave the base for 
lack of accessibility. Last May, I returned for the first time to the 
war zone where I was injured. I am thrilled that Iraq and Afghanistan 
recently ratified the CRPD, but I know that they will need American 
leadership in order to rebuild their communities to be accessible to 
the disabled.
    Accessibility abroad also impacts our current Service Members. For 
those of them that have a child or family member with a disability, the 
lack of accessibility in the country of their duty station can mean 
limited opportunities for children or employment for spouses. These 
Service Members may have to face the difficult choice between a career-
enhancing tour of duty and having to deploy while leaving their loved 
ones behind.
    In order to facilitate a military family's movement abroad, 
families are asked to enroll in the Exceptional Family Member (EFM ) 
program. GAO reports have found that a fair number of families 
intentionally opt not to enroll in the EFM program because they are 
concerned that enrollment may adversely affect Service Members' 
careers. They are afraid that they will only be placed in countries 
with stronger disability protections, laws, and services.
    This is unfortunate since the Department of Defense provides many 
accommodations for the needs of military families. For example, the DOD 
will pay for homeschooling supplies, equipment, and support for Service 
Members with families in the Exceptional Family Member program. Yet if 
the Service Member fears negative stigma from joining the EFM, they are 
likely to miss out on a homeschooling benefit that might have allowed 
their children to accompany them on an enriching overseas assignment.
    The CRPD will allow our Service Members to deploy to more locations 
without concerns that host nations will not be able to accommodate 
their families' needs.
                            u.s. leadership
    For all these reasons, The Veterans of Foreign Wars, Iraq and 
Afghanistan Veterans of America, and Blinded Veterans of America all 
support ratifying this vital treaty. In August, I was thrilled to cheer 
on the American Legion when their membership unanimously voted to 
support ratification of the CRPD at their annual convention. A few 
weeks later, I welcomed their new Commander to the Joint Session of the 
Veterans Committee to thank them for their leadership. I was touched by 
the room full of Legion members who expressed to me through their nods 
and applause what this treaty means to them.
    I know much of the opposition to this treaty comes from a lack of 
information. I strongly disagree that the U.S. might be hurt by 
ratifying the CRPD. Rather, I think this is a tremendous opportunity 
for us to lead in an area where we are clearly the best in the world.
    The treaty needs U.S. leadership and expertise for implementation. 
We have the top medical device manufacturers of disability access 
equipment in the world. Those wheelchair accessible buses that I hope 
will be purchased for use in Thailand should be provided by American 
companies. Thanks in large part to the work of disabled Veterans, we 
have opened the world of competitive athletics to the disabled. Our 
Vietnam Veterans fought successfully to open marathons and the Olympics 
to disabled athletes, and today, many Paralympians are a new generation 
of Warriors wounded in Iraq and Afghanistan. Our educational and 
medical institutions like the Rehabilitation Institute of Chicago and 
the Alexian Brothers' Veterans Mental Health Program in Hoffman 
Estates, Illinois should be the global leaders in their fields. 
However, if we do not ratify this treaty, we open the door for other 
nations with strong rehabilitation programs to take on this global 
leadership role.
    We Wounded Warriors have done our job serving our country. Many of 
us sacrificed a great deal in doing so. We did this because we believe 
in our Nation. We believe our country should lead--that the world is a 
better place when the U.S. steps up to take leadership. And when it 
comes to improving opportunities for disabled Americans who want to 
travel and work abroad, Veterans believe we should have a seat at the 
head of the table.
    It is time that the United States reaffirms itself as a leader for 
fairness and justice. We must stand as an example for those with 
disabilities around the world. We have done it before and we can do it 
again.
    Thank you so much for your time.

    The Chairman. Thank you, Congresswoman.
    Mr. Farris.

  STATEMENT OF MICHAEL P. FARRIS, CHAIRMAN, HOME SCHOOL LEGAL 
    DEFENSE ASSOCIATION, CHANCELLOR, PATRICK HENRY COLLEGE, 
                        PURCELLVILLE, VA

    Mr. Farris. Mr. Chairman, Ranking Member Corker, thank you 
so much for the opportunity to be here today.
    On behalf of Home School Legal Defense Association, I am 
here in opposition to the treaty. There are three reasons I 
would like to cover in the time that I have today.
    First, despite the claims to the contrary, the U.S. 
ratification of this treaty does impose binding legal 
obligations on this country, and it will be the responsibility 
of the United States to comply with international law. The 
statements to the contrary have been based primarily on what I 
would--in the course of litigation, you would call ``naked 
assertions.'' We do not hear citations to legal authority for 
these propositions. You do not hear appropriate citations to 
qualified experts, such as Louis Henkin. Louis Henkin is one of 
the leading experts in the world on international law, and he 
responds to the tenor of the argument that has been raised in 
support of this treaty. He says, in a different context, but 
the principle is applicable, ``The United States apparently 
seeks to ensure that its adherence to a convention will not 
change or require change in U.S. laws, policies, or practices, 
even when they fall below international standards. Reservations 
designed to reject any obligation to rise above existing law in 
practice or of dubious propriety. If states generally entered 
such reservations, the convention would be futile. Even friends 
of the United States have objected to its reservations that are 
incompatible with the object and purpose and are, therefore, 
invalid. The United States, it is said, seeks to sit in 
judgment on others, but will not submit its human rights 
behavior to international judgment. To many, the attitude 
reflected in such reservations is offensive. The conventions 
are only for other states, not for the United States.''
    Professor Henkin has it exactly right. This is a treaty. A 
treaty is a law. It is--if--the emotional and political 
arguments that are in favor of the treaty, no one can disagree 
with these arguments. But, the question is, Will the treaty 
actually have the legal effect that is being proffered by the 
proponents of the treaty? We do not hear citations to articles 
of the treaty. We do not hear consideration of the reports, the 
concluding observations by the Committee on the Rights of 
Persons with Disability. We do not hear the kind of legal 
analysis that would be appropriate for analyzing the legal 
impact of this treaty. And I would submit, it is the duty of 
this committee not to determine simply the policy issues and 
the emotional appeals, but to determine what the legal meaning 
of the treaty is and its legal application in the context both 
in international law and in domestic law of the United States.
    One of the ways that the proponents misrepresent the nature 
of the treaty is on the definition of ``disability.'' 
Proponents argue that the definition of ``disability'' is left 
blank in the treaty so that each nation can decide for itself 
what it believes is the correct definition.
    The Committee on the Rights of Persons with Disability 
firmly disagrees and is in the process of issuing a general 
observation in response to that, but has already issued 
concluding observations to about nine countries: Argentina, 
China, Hungary, Peru, Tunisia, Australia, and Austria. All were 
told that their nation's definition of ``disability'' was 
improper under the treaty's definition of ``disability.'' And 
what is improper about their definitions? They follow a medical 
definition of ``disability'' rather than any human rights 
definition of ``disability.''
    And the difference in that definition is important, 
because, under a human rights definition of ``disability,'' 
according to the committee, a form of disability law that 
permits you to--take the situation of a profoundly 
intellectually disabled adult. Parents, under the human rights 
model of disability, would not be allowed to be appointed the 
guardian of the adult intellectually disabled child, but, 
instead, would have to be only allowed to be--support 
decisionmaking rather than substitute decisionmaking. I cite 
the records from the CRPD Committee that says this explicitly, 
``Nations that allow guardianships for profoundly disabled 
adults that are intellectually disabled are in violation of the 
treaty's definition of what constitutes disability.'' That will 
be a profound change in American law. And if we think we will 
not have to comply with the treaty's standards, they were 
simply making a fake promise to the rest of the world. We're 
making a promise, by our ratification, that we, like all other 
nations, will obey the requirements of the treaty.
    Turning to the issue of homeschooling. I have been 
criticized by many in the press for fear-mongering on this 
topic, but I have never seen anyone write a legal analysis; it 
is just simply conclusions, just assertions that I did not 
correctly analyze the law on this. I have an LLM in public 
international law from the University of London. I have coached 
seven national championship moot court teams that debate 
constitutional law. I have written the legal analysis, and I 
dare anyone to read my legal analysis and answer it with legal 
analysis, not conjecture and raw assertion.
    The legal analysis is based upon the failure of the CRPD to 
include the traditional right of parents to direct the 
upbringing in education of their children that was found in the 
ICCPR, in the ICESCR, and the Universal Declaration of Human 
Rights. Those provisions did protect the rights of parents. The 
Convention on the Rights of the Child began the trend in the 
wrong direction, and it was followed by the CRPD. Article 24 of 
the treaty defines the educational duties, and the word 
``parent'' is not mentioned in the educational provision of 
article 24 of this treaty.
    The best-interests-of-the-child standard has been applied 
in international human rights contexts, including banning 
homeschooling in Germany. The highest court in Germany has held 
that homeschooling is banned under the best-interests-of-the-
child standard. The European Court of Human Rights has upheld 
that ban. And when a German family fled to the United States, 
our administration appealed a successful grant of asylum to the 
Romeike family, that I represent now before the United States 
Supreme Court and the cert petition that is pending. And our 
Justice Department contends that Germany is within its rights--
--
    The Chairman. Mr. Farris----
    Mr. Farris [continuing]. To ban homeschooling----
    The Chairman [continuing]. I have allowed you to go a 
minute and a half over time.
    Mr. Farris. I am sorry. My clock is not working.
    The Chairman. Oh, OK. Well, you are at 6, almost 7-8 
minutes.
    Mr. Farris. Thank you, Senator, I will pause.
    The Chairman. Thank you.
    [The prepared statement of Mr. Farris follows:]

                  Prepared Statement of Michael Farris

    I would like to thank the chairman and members of the committee for 
the opportunity to testify on this very important issue. Article VI of 
the Constitution reveals how important this treaty is in our Nation's 
legal framework. Once ratified, a treaty becomes part of the highest 
law of the land and anything in any state law or state constitution 
that conflicts with the treaty is null and void.
    When the Framers of the Constitution wrote the Supremacy Clause, 
treaty law and customary international law were limited to the arena of 
how nations treat nations. There was no concept that the treaty power 
could be used to impact or control the domestic laws of this Nation.
    Modern human rights laws have only one purpose--imposing binding 
legal obligations on state parties to treat their own citizens and 
other residents in conformance with the legal norms promulgated in the 
treaty.
    Yet, during last year's floor debate on this treaty, then-Senator 
John Kerry said: ``This treaty isn't about American behavior, except to 
the degree that it influences other countries to be more like us. This 
treaty is about the behavior of other countries and their willingness 
to raise their treatment of people with disabilities to our level. It 
is that simple. This treaty isn't about changing America, it is a 
treaty to change the world to be more like America.''
    Professor Louis Henkin, one of the world's leading experts on 
international law, gives the appropriate response to this argument:

          By its reservations, the United States apparently seeks to 
        assure that 
        its adherence to a convention will not change, or require 
        change, in U.S. 
        laws, policies, or practices, even where they fall below 
        international standards. . . .
          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. . . . 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. It is seen as seeking the benefits of participation in 
        the Convention (e.g., having a U.S. national sit on the Human 
        Rights Committee established pursuant to the Covenant) without 
        assuming any obligations or burdens. The United States, it is 
        said, seeks to sit in judgment on others but will not submit 
        its human rights behavior to international judgment. To many, 
        the attitude reflected in such reservations is offensive: the 
        conventions are only for other states, not for the United 
        States.\1\

    While this erroneous form of American exceptionalism has been 
implied in the past, our Secretary of State (when he was the chairman 
of this committee) has explicitly made the very argument that Professor 
Henkin soundly condemns. ``This treaty isn't about changing America, it 
is a treaty to change the world to be more like America.'' Such 
assertions are both legally inaccurate and diplomatically troubling.
    The precise question that the Senate must answer is this: What will 
be the legal effect if the United States ratifies the United Nations 
Convention on the Rights of Persons with Disabilities?
    This is a legal question, not a political question. The answer to 
this question should be determined by an accurate review of all of the 
relevant legal sources. It is not a question of whether we have 
compassion for the disabled. Without the help of any international 
legal source, our Nation leads the world in demonstrating compassion 
for the disabled. We can and should improve our law and policy in this 
regard. But our ability to provide leadership on this issue is not 
dependent on becoming responsible to report our progress to the United 
Nations.
    The proponents of this treaty have relied on pleas for compassion 
and raw assertions of opinion, not proper legal analysis. This 
committee should and must recognize that determining the meaning of a 
treaty is a legal inquiry. The process employed to determine its 
meaning should use the same kinds of sources and points of analysis as 
a serious judicial inquiry. There should be citations of law not mere 
assertions of opinion.
    The basic answer to the legal question I have posed is answered by 
the United Nations Office of the High Commissioner for Human Rights. 
Its Web site accurately summarizes the legal effect of any nation's 
ratification of a human rights treaty:

        A State party to a treaty is a State that has expressed its 
        consent to be bound by that treaty by an act of ratification, 
        acceptance, approval or accession, etc., where that treaty has 
        entered into force for that particular State. This means that 
        the State is bound by the treaty under international law. See 
        article 2(1)(g) of the Vienna Convention 1969.\2\

    The implementation of our international legal obligations requires 
consideration of two distinct legal spheres--the international legal 
system and the domestic legal system.
    Since a treaty is an international obligation, international law 
fully controls the substantive law concerning the nature of our 
obligations. The implementation and enforcement of our international 
legal obligations requires an intersection with both legal arenas--the 
international legal system and our domestic legal system.
    In large part, our domestic legal system must be relied upon for 
the implementation and enforcement of any human rights treaty 
obligation. But our obligation to comply with the treaty's requirements 
is never extinguished by any limitation imposed by our domestic legal 
system. In fact, if our domestic legal system prohibits us from fully 
complying with our international legal obligations, we are 
presumptively in violation of our treaty obligations for which there 
are international legal consequences.
    The international legal system claims preeminence over domestic law 
and national sovereignty.
    A past president of the European Court of Human Rights has 
explained the prevailing view in the international legal system:

        Treaty obligations are in case of doubt and in principle not to 
        be interpreted in favor of State sovereignty. It is obvious 
        that this conclusion can have considerable conclusions for 
        human rights conventions: Every effective protection of 
        individual freedoms restricts State sovereignty, and it is by 
        no means State sovereignty which in case of doubt has priority. 
        Quite the contrary, the object and purpose of human rights 
        treaties may often lead to a broader interpretation of 
        individual rights on one hand and restrictions on State 
        activities on the other.\3\

    The Committee on the Rights of Persons with Disabilities has lost 
no time in asserting the supremacy of the CRPD over the domestic law 
and sovereignty of the state parties--including its supremacy over 
national constitutions.
    In a Communication proceeding before the CRPD Committee, six 
Hungarian citizens filed a formal complaint that Hungary's Constitution 
was in violation of the provisions of the CRPD. All six persons 
``suffer from intellectual disability'' and had been placed under 
partial or general guardianship pursuant to judicial decision. Under 
the Hungarian Constitution, persons placed under guardianship for such 
intellectual disabilities were ineligible to vote.\4\
    The CRPD Committee ruled that Hungary was in violation of its 
obligations under the CRPD. While the Committee did not claim the 
authority to directly order Hungary to amend its constitution, its 
ruling made it clear that in order for that nation to be in compliance 
with its treaty obligations, it should do so.
    The impact of this decision was trumpeted by Human Rights Watch, a 
major NGO in this field: ``The ruling applies to all 137 countries that 
have adopted the international disability rights treaty. These 
governments are required to review their laws and practices to 
eliminate any provisions that prevent people from voting due to their 
disabilities.''\5\
    In making its determination of the meaning of the CRPD's 
provisions, the Committee placed significant reliance on its statements 
concerning the meaning of the treaty in its prior Concluding 
Observations. It is clear that the CRPD Committee considers its so-
called recommendations as authoritative interpretations of the meaning 
of the treaty.
    In the Committee's October 8, 2013, review of El Salvador's 
compliance with the treaty, it expressed concern that El Salvador had 
taken a reservation to the effect that the nation's obligations were 
limited by the provisions of its constitution.\6\ The treaty must not 
be subservient to a nation's constitution according to the CRPD 
Committee.
    One of the most important themes in the CRPD Committee's review and 
conclusions relates to the definition of disability. Important U.S. 
advocates for ratification claim that the lack of a definition of 
``disability'' in the treaty means that every nation has the power to 
define ``disability'' under its own law. The Committee defiantly 
rejects this view in a proposed General Comment.

        In consideration of the initial reports of the different States 
        Parties that have been reviewed so far, the Committee has 
        observed that there is a general misunderstanding of the exact 
        scope of the obligations of States Parties under Article 12. 
        Until now there has been a general failure to understand that 
        the human-rights-based model of disability implies the shift 
        from a substitute decisionmaking paradigm to one that is based 
        on supported decisionmaking. The present general comment has 
        the purpose of exploring the general obligations that are 
        derived from the different components of Article 12.\7\

    China was told that its definition of ``disability'' was improper 
under the treaty because it employed a medical definition rather than a 
human rights definition.\8\ 
Argentina was found wanting for the exact same reason--using a 
definition of disability different from that imposed by the CRPD.\9\ 
Hungary,\10\ Peru,\11\ Tunisia,\12\ Australia,\13\ and Austria\14\ have 
also been informed that their national definitions of ``disability'' 
are contrary to the definition found in the CRPD. It is equally clear 
that the Committee is of the opinion that these nations are obligated 
to conform their definitions to the one the Committee believes is found 
in the treaty.
    We have clearly demonstrated that the U.S. advocates for 
ratification are simply wrong when they assert that our Nation is free 
to adopt our own definition of ``disability'' and still be in 
compliance with our obligations under the treaty.
    However, it is important for the Senate to consider the substantive 
rules that will be imposed if we ratify this treaty. The difference 
between the ``human rights'' definition of ``disability'' and the 
``medical'' definition of ``disability'' profoundly impacts upon our 
laws.
    Important organizations that support the ratification of the CRPD 
agree with our basic contention--the CRPD imposes legal obligations on 
the United States that differ from existing law.

          There's something that may be superior to the ADA. The United 
        Nations came up with their own disability policy: the 
        Convention on the Rights of People with Disabilities (CRPD).
          The U.N. brought up the CRPD to the General Assembly for 
        signatures in December 2006. Now, CRPD is a fully operational 
        policy as of May 2008. The CRPD is like the ADA on steroids; 
        the policy doesn't just cover provisions for employing, 
        accessibility to public place/information, and communication . 
        . . Human rights is deeply integrated with the CRPD, so it 
        covers disabled people's rights to an adequate standard of 
        living, rehabilitation, and to preserve their dignity. With the 
        CRPD's provisions, the mission to form a perfect society is 
        clearly defined.
          In comparison, the ADA is surprisingly restrictive. It only 
        covers our rights to get a job, access public places, and 
        accessible communication. It doesn't discuss how we are all 
        human beings with dignity. It doesn't discuss our right to an 
        adequate standard of living. It doesn't encourage cultivating a 
        sense of identity with our communities.\15\

    Consider the opinion of Ratifynow.org:

        Although the Americans with Disabilities Act (ADA) has been 
        very important to the daily lives of many Americans with 
        disabilities, it does not, and cannot, fully cover all the 
        basic human rights to which people with disabilities are 
        entitled. The CRPD would supplement the power of the ADA to 
        ensure that people with disabilities have stronger access to 
        all the same human rights to which all people are entitled. 
        Also, if the United States signs and ratifies the CRPD, it 
        would help send a strong message to other countries that we, 
        too, support human rights for people with disabilities. This 
        may help inspire more countries to ratify the CRPD so that more 
        people with disabilities around the world can enjoy its 
        protections.\16\

    The jurisprudence of the CRPD Committee, the opinion of legal 
experts such as Louis Henken, and these intellectually honest advocates 
for CRPD ratification join us in our core contention: If the United 
States ratifies this treaty, it undertakes a duty to comply with 
international legal standards which are different from our existing 
law. Some people contend that this diminishment of our sovereignty is 
justified by the increase in protections for the disabled. We disagree. 
Our contention is that the United States should use the process of 
American self-government under the Constitution to continually improve 
our policies which are designed to ensure equality and justice for 
disabled persons.
  the u.n. crpd committee's definition of disability would require a 
                   substantial change in american law
    We have previously quoted paragraph 3 from the draft General 
Comment on Article 12. It proclaims that a nation that employs a 
``substitute decision-making'' model is in violation of the treaty. 
Similar comments may be found in the Concluding Observations previously 
cited. What does this mean in practical terms? The Committee gives us 
its answer:

          Regimes of substitute decisionmaking can take many different 
        forms, 
         including plenary guardianship, judicial interdiction, and 
        partial guardianship. However, these regimes have some common 
        characteristics. Substitute decisionmaking regimes can be 
        defined as systems where (1) legal capacity is removed from the 
        individual, even if this is just in respect of a single 
        decision, (2) a substituted decisionmaker can be appointed by 
        someone other than the individual, and this can be done against 
        the person's will, and (3) any decision made by a substitute 
        decisionmaker is bound by what is believed to be in the 
        objective ``best interests'' of the individual--as opposed to 
        the individual's own will and preferences.
          The obligation to replace regimes of substitute 
        decisionmaking by supported decisionmaking requires both the 
        abolishment of substitute decisionmaking regimes, and the 
        development of supported decisionmaking alternatives. The 
        development of supported decisionmaking systems in parallel 
        with the retention of substitute decisionmaking regimes is not 
        sufficient to comply with Article 12.\17\

    There can be no doubt that this definitional rule and the 
implications that flow from it are based not just on this draft General 
Comment, but on the same holding found in the finalized Concluding 
Observations that have been issued to a number of state parties.\18\
    It is important to understand what this means. The parents of a 
profoundly intellectually disabled adult will not be permitted to be 
named their child's guardian with the ability to substitute their 
judgment for that of their adult child. ``All forms of support to 
exercise legal capacity (including more intensive forms of support) 
must be based on the will and preference of the individual, not on the 
perceived/objective best interests of the person.''\19\
    The Senate Foreign Relations Committee is properly not the venue to 
debate the wisdom of this new approach to the rights of the profoundly 
disabled. But what is absolutely clear is this--the rules under the 
CRPD are different from existing American law and practice. And it is 
also absolutely clear that the U.N. Committee believes the United 
States will be legally obligated to conform our definitions and 
practices to the Committee's standards and not our own.
   domestic law provides no excuse for a failure to fully implement 
                       the provisions of the crpd
    This brings us to the broad question of the domestic impact of the 
ratification of the CRPD. By ratifying the treaty, the United States 
undertakes a solemn legal obligation to implement and follow the treaty 
in good faith.
    Reservations, Understandings, and Declarations can only have impact 
on which agency of government will have authority and responsibility to 
implement the provisions of the treaty. But no RUD can remove the legal 
duty of the United States to comply with this treaty if it is ratified.
    A non-self-executing RUD will only have the effect of ensuring that 
the judiciary will not be the agency to initially implement the CRPD 
into domestic law. In short, Congress and the executive branch will 
have the duty to implement the treaty through statutes and regulations. 
Once such implementing laws are issued, then the courts are also 
permitted to engage in the enforcement of the treaty.
    A non-self-executing RUD does not mean that Congress can avoid its 
duty to implement the treaty. It has the duty to enact law that 
conforms to the requirements of the CRPD.
    A federalism RUD has a similar impact. A properly constructed RUD 
can, at most, ensure that certain of the duties of compliance fall on 
the State governments rather than on the Federal Government. But in 
international law, if the States fail to comply, it is the Federal 
Government that is liable for the failure to properly implement the 
treaty. A federalism RUD does not excuse a national government from 
noncompliance.
    This was made clear by the CRPD Committee in its ruling concerning 
Austria:

          The Committee recalls that article 4, paragraph 5, of the 
        Convention clearly states that the administrative 
        particularities of a federal structure do not allow a State 
        party to avoid its obligations under the Convention.
          The Committee recommends that the State party ensure that 
        federal and regional governments consider adopting an 
        overarching legislative framework and policy on disability in 
        Austria, in conformity with the Convention.\20\
        the crpd threatens the rights of homeschooling families
    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.''\21\ 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. . . .''\22\
    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.
    It is very important to observe what is missing from the CRPD. No 
provision within the CRPD affirms the right of parents to choose the 
form of education for their children. Article 19 protects a right of 
the child to ``know and be cared for by their parents.'' Article 23(1) 
protects the rights of disabled parents--an important provision but one 
that is inapplicable in the case of a nondisabled parent with a 
disabled child. Article 23(4) prohibits the separation of disabled 
children from their parents in most cases.
    It is Article 24 of the CRPD that deals with education. The word 
``parent'' does not appear in this article. Parents are assured of no 
rights in the education of their children.
    It is not just what is absent in the CRPD that is important; what 
is included also substantially impacts parental rights.
    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 
his child, then and only then can the government substitute its view of 
what it best for the child 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 embedded 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.
    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, 
clearly explains the meaning and application of this best interests 
standard.

        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.\23\

    Section 7 of the UNCRPD uses precisely the 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 they know to be best for their children. 
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 that conflict with the treaty are overridden by 
it.
    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 with special needs if the Senate ratifies the CRPD.
    Since the hearings last summer, the American homeschooling 
community has been intensely focused on a case which illustrates the 
dangerous gaps in international human rights law that impact the right 
of a parent to homeschool one's child.
    Uwe and Hannelore Romeike came to the United States from Germany in 
2008. Germany bans all homeschooling and enforces that ban with police 
raids on family homes in which the children are seized and placed into 
government custody. If the parents do not relinquish their desire to 
homeschool their children, they are threatened with the permanent loss 
of the custody of their children. The Romeikes applied for asylum in 
the United States. The initial immigration judge ruled in favor of the 
family, granting them political asylum. The current administration 
appealed this decision to the Bureau of Immigration Appeals. The BIA 
reversed the immigration judge's decision. We appealed that decision to 
the Sixth Circuit, which upheld the decision of the BIA. In one of its 
filings before the Sixth Circuit, the Justice Department recited the 
history of German courts in their determination that the ban on 
homeschooling was legitimate. The Justice Department contends that the 
European Court of Human Rights correctly determined that no human 
rights standards were violated by the German ban on homeschooling and 
its egregious enforcement mechanisms.
    This case in now pending in the Supreme Court, awaiting 
determination of our petition for a writ of certiorari.
    Here is the lesson learned by the homeschooling community 
concerning both international law and the attitude of this 
administration. Despite the fact that the provisions of the ICCPR and 
the ICESCR could not be clearer in their endorsement of the right of 
parents to direct the education of their children, German parents 
cannot find protection for their right to homeschool their children in 
such instruments. The ``best interest of the child'' standard prevails. 
The rights of homeschooling parents are not just diminished; they are 
obliterated.
    It is utterly unreasonable for anyone to believe that this problem 
can be remedied by RUDs. If an actual treaty provision protecting 
parental rights in education is insufficient to protect the right of 
homeschooling both in German and in American asylum claims, then how in 
the world can anyone expect homeschoolers to believe that RUDs will 
accomplish what clear treaty language cannot accomplish?
    This administration has proven to American homeschoolers that 
international human rights law is not just an empty promise when it 
comes to protecting our rights; the best interest of the child standard 
in the more recent U.N. treaties has overcome and supplanted the rights 
of parents.
    We are told that the CRPD will not affect the rights of 
homeschooling. These naked assertions are not based on any viable 
reading of the relevant law. And they come from the same sources that 
told the American public that if we like our current health insurance 
we can keep it.
    Political promises are like morning clouds. They fade away as the 
day progresses.
    The U.N. CRPD will result in the loss of educational freedom for 
all parents in this Nation with disabled children. Government, not 
parents, will decide what form of education is best for children.
    We urge this committee and the Senate to reject this treaty.

----------------
End Notes

    \1\Louis Henkin, ``U.S. Ratification of Human Rights Conventions: 
The Ghost of Senator Bricker,'' 89 Am, J. Int'l Law, 341, 341-44 
(1995).
    \2\http://www2.ohchr.org/english/bodies/treaty/glossary.htm.
    \3\Rudolf Bernhardt, ``Evolutive Treaty Interpretation, Especially 
of the European Court of Human Rights,'' 42 German Y.B. Int'l L. 11, 14 
(1999) as quoted in Louis Henken et al., ``Human Rights: Second 
Edition,'' Foundation Press (New York), 2009, p. 206-207.
    \4\Committee on the Rights of Persons with Disabilities, 
Communication No. 4/2011, Views adopted, 9 September 2013.
    \5\http://www.hrw.org/news/2013/10/01/hungary-change-
discriminatory-voting-laws.
    \6\6 See, para. 6, CRPD/C/SLV/CO/1.
    \7\Draft General Comment on Article 12 of the Convention, Adopted 
2-13 September 2013, para. 6.
    \8\Concluding Observations, China, 15 October 2012, CRPD/C/CHN/CO/
1, para. 9.
    \9\Concluding Observations, Argentina, 8 October 2012, CRPD/C/ARG/
CO/1, para. 19-20.
    \10\Concluding Observations, Hungary, 22 October 2012, CRPD/C/HUN/
CO/1, para. 10.
    \11\Concluding Observations, Peru, 16 May 2012, CRPD/C/PER/CO/1, 
para. 6(a).
    \12\Concluding Observations, Tunisia, 13 May 2011, CRPD/C/TUN/CO/1, 
para. 8-9.
    \13\Concluding Observations, Australia, 21 October 2013, CRPD/C/
AUS/CO/1, para. 47.
    \14\Concluding Observations, Austria, 30 September 2013, CRPD/C/
AUT/CO/1, para. 8-9.
    \15\http://www.thebuffandblue.net/?p=7502. The ``Buff and Blue'' is 
a student publication at Gallaudet University established in 1892. 
Gallaudet is a premier institution of higher learning dedicated to 
education of disabled persons.
    \16\http://www.ratifynow.org/ratifynow-faq/. ``RatifyNow is an 
international nonprofit organization that supports grassroots advocates 
worldwide working to persuade their nation to ratify, implement, and 
enforce the CRPD. Membership is free and open to both individuals and 
organizations.''
    \17\Draft General Comment on Article 12, Para. 23-24.
    \18\See, e.g., Concluding Observations, Austria, op. cit., para. 
28.
    \19\General Comment on Article 12, op. cit, para. 25 (b).
    \20\Concluding Observations, Austria, op. cit., para. 10-11.
    \21\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).
    \22\Marleen Eijkholt, ``The Right to Found a Family as a Stillborn 
Right to Procreate?'' 18 Med. L. Rev. 127, 134 (2010).
    \23\Geraldine Van Bueren, ``International Rights of the Child,'' 
Section D University of London, 46 (2006).

    The Chairman. Thank you.
    Secretary Ridge.

STATEMENT OF HON. THOMAS J. RIDGE, FORMER SECRETARY OF HOMELAND 
 SECURITY AND CURRENT CHAIRMAN OF THE NATIONAL ORGANIZATION ON 
                  DISABILITY, CHEVY CHASE, MD

    Mr. Ridge. Senator, colleagues--distinguished colleagues--
--
    The Chairman. If you would put your microphone on.
    Mr. Ridge. Thank you.
    As many of you know, I have had the pleasure of wearing 
numerous hats in public service of our country: Member of 
Congress, Governor, and the Nation's first Secretary of 
Homeland Security. But, first I want to share with you the 
story of my first public service role, that of a United States 
infantry staff sergeant in Southeast Asia. Frankly, I had poor 
hearing when I went in, worse hearing after, and, because of 
age, diminished hearing since. [Laughter.]
    So, technically, since I wear hearing aids, I am a disabled 
veteran, but I cannot attribute the loss solely to my military 
service. Most of the 5.5 million disabled veterans can, and I 
am proud to represent their cause, as well as my own commitment 
to Americans with disabilities, at this hearing. I hope that, 
after U.S. ratification and a lot of work with other nations, 
Americans with disabilities will no longer face undue burdens 
abroad, either.
    There is no greater example of U.S. leadership than on the 
front lines of armed conflict, where servicemembers fight to 
protect the moral integrity of mankind and the values of 
equality and liberty. If there is one thing you take away from 
my testimony today, I hope it is that the United States 
leadership counts, and we have the opportunity to lead now, and 
to lead well, with the Disability Treaty.
    My fellow veterans recognize this leadership, as evidenced 
by major veterans organizations--obviously, I am a member--
American Legion, Veterans of Foreign Wars, and the Wounded 
Warrior Project--supporting U.S. ratification.
    My initial experience with disability began in grade 
school. One of my dearest friends had a very serious 
disability. We enjoyed her friendship, her smile. We admired 
her courage. Since those early years, my lengthy public service 
career has given me the insight and experience to now sit 
before you, as well, as the chairman of the National 
Organization on Disability.
    I became chairman of NOD in 2005 because I believe we have 
to be more committed as a society to giving people with 
disabilities the opportunity to establish their own self-worth, 
particularly through employment. There was no question that NOD 
would come out in full support of a treaty which echos our own 
constitutional values, U.S. laws, NOD's mission to allow people 
with disabilities to have the same opportunities as their 
counterparts.
    My testimony, which I encourage you to read, will describe 
how the convention advances, I believe, democracy, benefits 
businesses, and ultimately will advance opportunities for 
Americans with disabilities worldwide.
    As a young Congressman, I was proud to support the ADA. It 
was born of a notion where values are grounded in the concept 
that all men are created equal. Whether you are born with one 
arm, with Down Syndrome, or without sight, whether you were 
injured on the job or in service to your Nation, you have the 
right to life, liberty, and pursuit of happiness. Our founders 
did not preserve this notion just because it is the right thing 
to do, but because government is strongest when run for and by 
all of its people. Some countries attempted to follow in the 
footsteps of the United States and created similar but often 
inferior legislation to the ADA in the years following the 
enactment. Many other country has not even attempted to meet 
our standards and do not provide for equal protection of the 
rights of their citizens with disabilities. And, frankly, many 
simply just do not know how to do it.
    I believe strongly that being part of the disability treaty 
benefits the United States and other member nations. This 
treaty will enhance, not lessen, American sovereignty by 
allowing us to export constitutional values abroad. It is not 
bad to export our value system. The United States will continue 
to lead the world in establishing a democratic model for 
participation of all its citizens, including the most 
vulnerable ones.
    I wanted to reference a gentleman behind me from Georgia 
who would tell you that he has established an organization in 
his own country; the country of Georgia. He is a John McCain 
Fellow, and he is working at the National Organization of 
Disability. He would tell you his own country is looking to 
America to validate his presence and his equality. It is about 
American leadership.
    In closing, I urge you to support ratification of a treaty 
that will have a tremendous impact on Americans with 
disabilities, at home and abroad. The treaty advances democracy 
in business, and, above all, validates for the rest of the 
world the value of people with disabilities.
    While I respect the differences of our Nation's leaders on 
many topics, I stand firm that we must come together on the 
topic of disability. Disability does not know a political, 
racial, religious, or other barrier. It is an experience that 
has, or will, touch us all at some point in our lives. As the 
ink may fade on our Declaration of Independence, it is up to us 
to ensure that the words of ``equality'' our country stands for 
are everlasting.
    Although our own laws will not change, U.S. ratification of 
the Disability Treaty will validate that all men are, indeed, 
equal, and that Senators will have a resounding impact on the 
billion persons with disabilities in the United States and 
around the world.
    I thank you for the opportunity to share this testimony 
before the committee, Senator Menendez.
    [The prepared statement of Mr. Ridge follows:]

                  Prepared Statement of Hon. Tom Ridge

    Chairman Menendez and Ranking Member Corker, members of the Foreign 
Relations Committee, thank you for inviting me to discuss the 
disability treaty today as you consider ratification. I was one of many 
who made a public statement of disappointment following last year's 
failure to ratify the treaty. I am pleased that we are here today to 
revisit the issue. I hope that after today's hearing, we move closer as 
a nation to joining this important treaty.
    As many of you know, I have had the pleasure of wearing numerous 
hats in the public service of this great Nation including serving as a 
Member of Congress, Governor, and the Nation's first Secretary of 
Homeland Security. I will touch upon how this treaty is important to 
all of those roles, but first I want to share with you the story of my 
first public service role--that of a United States infantry staff 
sergeant in Southeast Asia. Frankly, I had poor hearing when I went in, 
worse hearing after, and, because of my age, diminished hearing since. 
So, technically, I am a disabled veteran but I can't attribute the loss 
solely to my military service. Most of the 5.5 million disabled 
veterans can and I am proud to represent their cause as well as my own 
commitment to Americans with disabilities at this hearing. I hope that 
after U.S. ratification and a lot of work with other nations, Americans 
with disabilities will no longer face undue burdens abroad either.
    There is no greater example of U.S. leadership than on the front 
lines of armed conflict where service members fight to protect the 
moral integrity of mankind and the values of equality and liberty. If 
there is one thing you take away from my testimony today I hope it is 
that United States leadership counts and we have the opportunity to 
lead now and lead well with the disability treaty. My fellow veterans 
recognize this leadership, as evidenced by major veterans' 
organizations--like The American Legion, Veterans of Foreign Wars, and 
Wounded Warrior Project--support U.S. ratification.
    My initial experience with disability began in grade school. One of 
my dearest friends had a serious disability. We enjoyed her friendship, 
her smile, and admired her courage. My lengthy public service career 
has given me the insight and experience to now sit here before you as 
the Chairman of the National Organization on Disability. I became 
Chairman of NOD in 2005 because I believed we have to be more 
committed, as a society, to giving people with disabilities the 
opportunity to establish their worth.
    Around the same time I became Chairman, the Convention on the 
Rights of Persons with Disabilities was finalized. This treaty is 
important for the 57 million Americans with disabilities to have equal 
access to opportunities the rest of us may take for granted. There was 
no question that NOD would come out in full support of the treaty, 
which echoes our own constitutional values, U.S. laws, and NOD's 
mission to allow people with disabilities to have the same 
opportunities as their counterparts. My testimony today will describe 
how the CRPD advances democracy, benefits business, and ultimately will 
advance opportunities for Americans with disabilities worldwide. 
Finally, I will share with you a few examples of how exactly the U.S. 
is equipped with the tools we need to change the circumstances of 
people with disabilities around the world.
                         democracy and the crpd
    Twenty three years ago I had the incredible opportunity as a 
Congressman for Pennsylvania's 21st district to vote for the Americans 
with Disabilities Act (ADA), one of the most important pieces of civil 
rights legislation in our history. Though today it stands as a 
celebrated piece of American legislation, at the time this was not an 
easy vote for many Members. There was loud opposition to the act, 
mostly fear-based, and there were efforts to abandon the bill 
altogether. Yet I was convinced that when I cast my vote in favor of 
the ADA, this piece of legislation would have a long-term positive 
impact on people with disabilities all over the world.
    The ADA was born of a nation whose values are grounded in the 
concept that ``all men are created equal.'' Whether you are born with 
one arm, with Down Syndrome, or without sight, or you are injured on 
the job or in service to your Nation, you have the right to life, 
liberty, and the pursuit of happiness. Our founders did not preserve 
this notion just because it is the right thing to do, but because 
government is strongest when run for and by all of its people.
    Some countries attempted to follow in the footsteps of the U.S. and 
created similar, but often inferior legislation to the ADA in the years 
following its enactment. Many other countries have not even attempted 
to meet our standards and do not provide for equal protection of the 
rights of their citizens with disabilities. Many do not know how. And 
so, with great input from the U.S. and the community of people with 
disabilities, the disability treaty came into being to create the 
framework for people with disabilities everywhere and Americans with 
disabilities traveling abroad to enjoy the rights they deserve.
    There was a sense of urgency in 2001 when this treaty was created 
because without disability rights legislation many countries, 
regardless of intention, were isolating and segregating people with 
disabilities and creating dire outcomes for the lives of their 
citizens. This meant that children with disabilities were being placed 
into nursing homes and institutions and removed entirely from their 
families, adults with disabilities were being barred from the workplace 
and having to rely on government entitlements to subsist, and in many 
countries being born with a disability was perceived so negatively that 
people began to kill newborns with disabilities or hide their children 
with disabilities in attics and backyard sheds to keep them out of the 
public eye.
    I believe strongly that being part of the disability treaty 
benefits the U.S. and other member nations. This treaty will enhance, 
not lessen, American sovereignty by allowing us to export American 
constitutional values abroad. The U.S. will continue to lead the world 
in establishing a democratic model for participation of all its 
citizens, including its most vulnerable ones. If you don't believe me, 
just ask Giorgi Akhmeteli. Giorgi is a fellow at NOD this year from the 
country of Georgia, visiting with us through the McCain Institute for 
International Leadership. Due to a spinal injury in 2003, Giorgi uses a 
wheelchair and decided he would found a Georgian disability 
organization to fight for the rights of his fellow citizens. Right now 
his organization is working on CRPD ratification in his country. 
However, Giorgi has told me that the decision of the U.S. to ratify the 
CRPD will impact his own country's decision about whether to ratify the 
disability treaty. Further, full U.S. participation in the multilateral 
process will be necessary to help push Georgia to adequately implement 
the treaty after ratification. Giorgi is not naive; he is a talented 
advocate with years of experience in leadership on behalf of Georgia in 
the international arena. Giorgi knows the reality that the U.S. voice 
counts in Georgia and for his country to validate him as an equal, U.S. 
involvement is mandatory.
    As former Secretary of Homeland Security, I had the unique 
experience to understand how the U.S. is perceived by our enemies and 
our allies. I can confidently sit before you and tell you that the 
voice of the U.S. matters to both. The disability treaty seeks to bring 
democracy and equal opportunity to people with disabilities allowing 
them to participate in society, vote, seek public office, and live in 
the community amongst others. We must be a part of this conversation. 
As I travel around the world, I have seen firsthand how with the best 
intentions countries try to address the circumstances of their citizens 
with disabilities, yet fall short. Without U.S. participation, the 
treaty will not reach its greatest potential. Without America, the 
conversation will have a deficit of expertise and experience that only 
our Nation can fill. The CRPD will not change American law, but it is 
important because it provides access to the most important 
international forum on the rights of people with disabilities. If the 
U.S. wants to effectively promote access abroad, we must ratify the 
disability treaty.
                         business and the crpd
    In addition to our democratic principles, there is more at stake 
for U.S. ratification of the disability treaty. Following the failure 
of ratification in 2012, businesses became even more vocal that the 
disability treaty is important to advancing their interests in the 
global marketplace. I have served on the boards of The Home Depot, The 
Hershey Company, and Exelon Corporation. I can attest to the fact that 
advancing the rights of people with disabilities has become an 
important priority for corporate decisionmaking. At NOD, we work with a 
CEO Council including international corporations Coca-Cola, Wal-Mart, 
and UPS who view the employment of people with disabilities as 
advancing their mission and goals and in our increasingly global 
marketplace more and more jobs require international travel. So, 
accessibility abroad is very important to American workers who need to 
be able to access the building to make the sales pitch or have 
accessible transportation in order to present at a conference. American 
businesses understand that accessibility abroad means opportunities for 
their employees and efficiencies for their operations.
    Like the ADA, article 27 of the disability treaty recognizes the 
right of people with disabilities to work and empowers them to be an 
active part of society. As the Chamber of Commerce states in its letter 
of support for the treaty, ``the United States has been an effective 
world leader in developing policy to ensure that individuals with 
disabilities have equal opportunity not only in the workplace but in 
society.''
    As Chairman of the U.S. Chamber's National Security Task Force, I 
can tell you that the Chamber does not take lightly decisions to 
endorse any piece of legislation. Regardless of how a bill may benefit 
people with disabilities, we must give greatest weight to the benefit 
to our 3 million business members. The Chamber determined that 
ratification of the treaty will benefit our members.
    Joining this treaty will promote unprecedented global markets and 
new commerce that will be aimed at 1 billion people with disabilities 
worldwide. As the world follows the U.S. vision of greater 
accessibility, we will have expanded opportunities to export American 
made products and services, increase international employment and 
entrepreneurial opportunities for Americans with disabilities and 
promote U.S. standards internationally. As a representative from Adobe 
Systems Incorporated recently explained, the danger of going about 
accessibility in a bilateral way is that you run the risk of having to 
create different products for each country based on varied standards. 
Companies not only have greater access to broader markets through 
efforts like the disability treaty, but they have the ability to 
harmonize standards and streamline their production. This efficiency is 
critical.
    Ultimately, investment follows opportunity. The treaty requires 
countries to promote accessibility for their citizens. U.S. business 
recognizes the disability treaty as an opportunity to further the 
objectives of their businesses and expand markets of technology, 
mobility devices, and other U.S. made accessible products. Other 
countries party to the treaty, like Brazil and China, are taking 
advantage of the absence of U.S. participation to lead accessible 
technology and provide to this expanding marketplace. This should be 
the role of the United States and will be once we ratify the CRPD.
                   examples of how the u.s. can lead
    I would like to close with a few examples of how the U.S. is 
prepared to advance the disability treaty through already existing 
knowledge and expertise. Within 5 years of the enactment of the 
Americans with Disabilities Act of 1990, I had the honor of becoming 
the 43rd Governor of Pennsylvania and witnessing the many ways that our 
50 States advance the rights of people with disabilities.
    The U.S. supports a system of independent living centers, which are 
available in every state within our country to offer support to all 
people with disabilities to live independently and self-sufficiently in 
the community. Article 19 of the disability treaty recognizes the right 
of all people with disabilities to live in their community. As 
Governor, I appointed an executive director of a regional center for 
independent living to the Board of Vocational Rehabilitation in the 
state. I saw firsthand how employment outcomes for people with 
disabilities were affected by this U.S. created system. The National 
Council of Independent Living in the U.S. is a lead supporter of CRPD 
ratification and looks forward to the opportunity to contribute to the 
global independent living movement.
    As governor I also appointed members of the disability community to 
serve on our State Council on Developmental Disability. Through the 
federal Developmental Disabilities Assistance and Bill of Rights Act, 
which is now celebrating its 50th year of enactment, every State and 
Territory of the U.S. is required to have a Council on Developmental 
Disability to serve as a catalyst for the community toward better 
inclusion of people with disabilities. In Pennsylvania, our Council was 
successful in providing resources to remove people from state-run 
institutions and integrate them into the community, providing 
employment training, and helping people with developmental disabilities 
become self-advocates.
    The United States is also an international example for integrating 
and coordinating emergency preparedness, response and recovery for 
children and adults with disabilities and others with access and 
functional needs before, during and after a disaster. In 2001, I became 
Director of the Office of Homeland Security and later, in January 2003, 
the first Secretary of the Department of Homeland Security, overseeing 
the Federal Emergency Management Agency. In this time it was critical 
for disability to be included in any comprehensive response and 
recovery system. Article 11 of the CRPD supports these actions. It 
states that state parties shall take any measures to ensure the 
protection and safety of persons with disabilities in emergencies and 
natural disasters. We must ensure that, similar to the United States, 
countries around the world are including people with disabilities when 
developing emergency preparedness tools, offering trainings to 
emergency response professionals and, in an emergency, carrying out 
emergency assistance. FEMA's Office of Disability Integration and 
Coordination's mission is to do just that and the CRPD will give us an 
opportunity to enhance our reach and technical assistance in this 
arena.
                                closing
    In closing, I urge you to support ratification of a treaty that 
will have a tremendous impact on Americans with disabilities at home 
and abroad. The treaty advances democracy and business, and above all 
validates for the rest of the world the value of people with 
disabilities. While I respect the differences of our Nation's leaders 
on many topics, I stand firm that we must come together on the topic of 
disability. Disability does not know a political, racial, religious, or 
other barrier. It is an experience that has, or will, touch us all at 
some point in our lives. As the ink fades on our Declaration of 
Independence, it is up to us to ensure that the words of equality our 
country stands for are everlasting. Although our own laws will not 
change, U.S. ratification of the disability treaty will validate that 
all men are indeed equal and that, Senators, will have a resounding 
impact on the one billion persons with disabilities in the United 
States and around the world.

    The Chairman. Thank you, Mr. Secretary.
    Attorney General Thornburgh.

 STATEMENT OF HON. RICHARD THORNBURGH, FORMER ATTORNEY GENERAL 
 OF THE UNITED STATES, OF COUNSEL, K&L GATES, LLP, WASHINGTON, 
                               DC

    Mr. Thornburgh. It is a distinct pleasure for me, Mr. 
Chairman and Ranking Member Corker and other members of this 
committee, to testify once again before this committee in favor 
of the ratification of the Convention on the Rights of Persons 
with Disabilities.
    This treaty is an important component of the worldwide 
effort to advance disability rights. U.S. ratification would 
mark a major step forward in this effort and to promote the 
rights of some 1 billion men, women, and children with 
disabilities around the world who lack recognition of their 
preeminent human rights. It would also serve to confirm 
American leadership in disability rights on the world stage.
    Today, we are witnessing a new era of worldwide recognition 
of disability rights. To date, as you heard, a total of 158 
countries, including the United States, have signed the 
Convention, and 138 have ratified its terms.
    As many of you may know, I have been involved in the 
disability movement for many years. 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 that tragically took the life of his 
mother, my first wife. As Attorney General of the United 
States, it was my great 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 in 1990.
    We find ourselves in a different place today than when I 
testified before this committee last summer. We have had the 
benefit of extensive discussion of the provisions of the 
Disability Treaty and their impact on U.S. domestic law, and on 
the nature of U.S. leadership in the world, and indeed on the 
very nature of the treaty process itself. Most important to me 
was the committee's adoption of a series of reservations, 
understandings, and declarations--RUDs, as we now know--that 
helped to clarify the scope and meaning of the Convention. With 
the inclusion of these reservations, understandings, and 
declarations, the Disability Treaty would require no changes to 
U.S. Federal or State law, and it would have no impact on the 
Federal budget. The important reservation on federalism would 
ensure that the obligations that we undertake under the 
Convention are limited to the authority of the Federal 
Government and do not reach areas of a State and local 
jurisdiction. The reservation regarding private conduct would 
ensure that the United States will not accept any obligation, 
except as mandated by the Constitution and laws of the United 
States.
    I understand that some persons have challenged the long 
accepted practice of using RUDs in treaties. Such claims are 
misguided and, quite simply, extraordinary. When the U.S. 
Senate attaches conditions to any treaty during its advice-and-
consent process, these conditions become part of the treaty and 
have the force and effect of law.
    Significantly, the Disabilities Treaty itself, by its own 
terms, allows nations to add their own reservations during the 
ratification process. The only limitation on the reservation 
process being that such reservation shall not be incompatible 
with the object and purpose of the Convention.
    In article 1, the Convention states that its purpose is to 
promote, protect, and ensure the full and equal enjoyment of 
all human rights and fundamental freedoms by all persons with 
disabilities, and to promote respect for their inherent 
dignity. Because the object and purpose of the Disabilities 
Treaty is to recognize and provide disability rights for 
persons with disabilities, the RUDs included by the committee 
last year fall well within this legal standard.
    The claims that somehow ratification will undermine U.S. 
sovereignty are misplaced. Some have raised alarms over the 
existence of a disability committee created by the treaty. This 
committee would have only an advisory role, and there would be 
no call for its being entered as a law under our Constitution 
and legal standards.
    Nothing in this treaty prevents parents from homeschooling 
or making other decisions about their children's education. The 
Convention embraces the principles of the Individuals with 
Disabilities Education Act, adopted in this country, which 
emphasizes the importance of the role of parents of children 
with disabilities in making decisions on behalf of their 
children. In fact, many of the parents of children with 
disabilities choose to homeschool their children in order to 
provide an appropriate level of care and attention. And the 
Convention specifically recognizes and protects the important 
role of the family, and protects children from being separated 
from their parents on the basis of a disability.
    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 
hundreds of millions of people with disabilities worldwide who 
today have no domestic protection. We must ratify this 
Convention so that we can fulfill the role of world leader that 
is expected of us.
    Thank you for your attention.
    [The prepared statement of Mr. Thornburgh follows:]

                Prepared Statement of Richard Thornburgh

    It is a distinct pleasure for to me to testify once again before 
this committee in favor of the ratification of the Convention on the 
Rights of Persons with Disabilities (the Convention or Disabilities 
Treaty). The Disabilities Treaty is an important component of the 
worldwide effort to advance disability rights. Ratification would mark 
a major step forward in the effort to end discrimination and to promote 
the rights of some 1 billion men, women, and children with disabilities 
around the world who seek recognition of their preeminent human rights. 
It would also serve to confirm American leadership in disability rights 
on the world stage.
    Today we are witnessing a new era of worldwide recognition of 
disability rights. To date, as I last looked, a total of 158 countries 
(including the United States) have signed the Convention and 138 have 
ratified its terms. It is significant that the language of the 
Convention closely follows U.S. law and our own pioneering efforts in 
the recognizing and enforcing disability rights. It is equally 
significant that the United States remains on the sidelines as 
countries around the world ratify and work to comply with the 
Disabilities Treaty. U.S. Senate ratification of the Convention will 
rectify this anomaly and provide a major leap forward in securing equal 
rights around the world for persons with disabilities.
                                   i.
    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 (NOD) 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 injured at the age of 4 months in a 
1960 automobile accident that 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 of working 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 family affair, as my wife, Ginny, whom I 
married in 1963, founded NOD's Religion and Disability Program, 
designed to insure spiritual and religious access to persons with 
physical, mental, sensory 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 many faiths 
to advance the cause of disability rights. As the Convener of the 
Interfaith Disability Advocacy Coalition (IDAC), she has transmitted 
support for the Convention from 41 national religious or religiously 
affiliated organizations to members of this committee. We have thus had 
the great privilege of merging our personal and career objectives in 
this worthy cause.
    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 leaders of 73 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 buses 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. But, 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.
    Fortunately, the Disabilities Convention is an embodiment of the 
nondiscrimination principles developed in the United States. Its 
principles and, indeed, much of its language, come directly from U.S. 
law, adopting the successful and balanced approach of U.S. federal 
disability rights law. It embodies the traditional American ideals that 
form the basis of the Americans with Disabilities Act--the core 
principles of nondiscrimination and equality of opportunity. And the 
Convention adopts the U.S.-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.
    The comprehensive nature of the treaty also mirrors the U.S. 
approach to disability rights. Both U.S. law and the Disabilities 
Treaty 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.
    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.
                                  ii.
    We find ourselves today in a different place than when I testified 
before this committee last summer. We have had the benefit of extensive 
discussion of the provisions of the Disabilities Treaty and their 
impact on U.S. domestic law and on the nature of U.S. leadership in the 
world and, indeed, on the very nature of the treaty process itself.
    Most important to me was the committee's adoption of a series of 
reservations, understandings, and declarations (RUDs) that clarified 
the scope and meaning of the Convention. With the inclusion of these 
reservations, understandings, and declarations, the Disabilities Treaty 
will require no changes to U.S. Federal or State law and it will have 
no impact on the Federal budget. The important reservation on 
federalism ensures that the obligations that we undertake under the 
Convention are limited to the authority of the Federal Government and 
do not reach areas of State and local jurisdiction. The reservation 
regarding private conduct will ensure that the U.S. will not accept any 
obligation except as mandated by the Constitution and the laws of the 
United States, such as the ADA and others like the Individual with 
Disabilities Education Act. Thus, as with our current law, religious 
entities, small employers, and private homes would be exempt from any 
new requirements.
    I also call to your attention the important understanding on what 
are called economic, social, and cultural rights. This understanding 
makes clear that, even if any of the Convention's provisions could be 
read to establish new rights, the U.S. recognizes that its obligations 
under the Convention are limited to those of nondiscrimination and that 
the treaty only requires that the U.S. will guarantee persons with 
disabilities rights under U.S. law to the same extent that such rights 
are recognized with regard to persons without disabilities and will do 
so on a nondiscriminatory basis.
    I understand that some persons have challenged the long-accepted 
practice of using RUDs in treaties. Such claims are misguided and, 
quite simply, extraordinary. When the U.S. Senate attaches conditions 
to any treaty during its advice-and-consent process, these conditions 
are binding on the President and the President cannot proceed to ratify 
a treaty without giving them effect. These conditions become part of 
the treaty and have the force and effect of law. The various courts of 
the United States have upheld the validity of reservations, 
understandings, and declarations.\1\ Further, administrations of both 
political parties have uniformly held this view. In 1995, the United 
States stated that ``reservations are an essential part of a State's 
consent to be bound. They cannot simply be erased. This reflects the 
fundamental principle of the law of treaties: obligation is based on 
consent. A State which does not consent to a treaty is not bound by 
that treaty. A State which expressly withholds its consent from a 
provision cannot be presumed, on the basis of some legal fiction, to be 
bound by it.\2\
---------------------------------------------------------------------------
    \1\See Sosa v. Alvarez Machain, 542 U.S. 692 (2004)(Self-executing 
declaration); Auguste v. Ridge, 395 F.3d 123 (3d Cir. 
2005)(Understanding); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 
2001)(Reservation); Beazley v. Johnson, 242 F.3d 248 (5th Cir. 
2001)(Reservation and self-executing declaration).
    \2\``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, March 28, 1995, p.1.
---------------------------------------------------------------------------
    Significantly, the Disabilities Treaty itself, by its own terms, 
allows nations to add its own reservations during the ratification 
process. The only limitation on the reservation process being that such 
reservations shall not be incompatible with the object and purpose of 
the Convention. In Article 1, the Convention states that its purpose is 
to ``promote, protect and ensure the full and equal enjoyment of all 
human rights and fundamental freedoms by all persons with disabilities, 
and to promote respect for their inherent dignity.'' Because the object 
and purpose of the Disabilities Treaty is to recognize and provide 
disability rights for persons with disabilities, the RUDs included by 
the committee last year fall well within this legal standard. Any 
criticism that the wide-ranging laws of the United States in the 
disability rights arena, recognized even by opponents of the treaty as 
the ``gold standard'' for the world, somehow do not meet the object and 
purpose of the treaty is fanciful at best.
    Similarly the extended body of law on how the Disabilities Treaty 
affects U.S. sovereignty bears revisiting. Exercising our 
Constitution's treatymaking power is itself a declaration of our 
sovereignty. In this instance, where the treaty adopts American ideals 
and legal principles and encourages the nations of the world to follow 
our model of equal opportunity and nondiscrimination, U.S. interests 
and influence is being extended. The Convention embodies the 
traditional American ideals that form the basis of our own ADA--
empowering persons with disabilities to be independent, to claim 
responsibility for their own lives, and to be able to make their own 
choices. Ratification presents us with the opportunity to reaffirm 
these values and to export American ideals around the world.
    The claims that somehow ratification will undermine U.S. 
sovereignty are misplaced. 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 nations 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 treaty provides no vehicle for the U.N. or any U.N. 
officials to interfere in American jurisprudence. Any concern that this 
Committee can have any role other than an advisory one was further 
allayed by the understanding adopted by the Committee last year that 
made clear that the Committee has no authority to compel any U.S. 
actions and that its conclusions, recommendations, or general comments 
were not legally binding on the United States in any manner.
    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.
    As with other treaties entered into by the United States, the 
Disabilities Convention will include a declaration that the treaty is 
not self-executing. Thus, the treaty does not of itself give rise to 
individually enforceable rights and cannot be directly enforced by 
courts in the United States. The fact that the Disabilities Treaty is 
not self-executing actually means something. No one will have standing 
to use the treaty in a court in the United States nor can any U.S. 
court interpret the treaty. Simply put, U.S. sovereignty with regard to 
domestic decisionmaking will be fully respected and preserved.
    Others have raised concerns that the treatymaking power of the 
United States should be limited to matters of national security, that 
somehow we should proscribe entering into treaties on human rights 
issues. I know of no subject matter limitation on our treatymaking 
powers in the U.S. Constitution. Further, the United States has long 
entered into treaties well beyond this suggested narrow reach, 
including, for example, treaties providing for the protections of 
intercountry adoptions, defining the ability of American parents to 
recover child support in foreign countries, protecting intellectual 
property, or recognizing the elimination of racial discrimination. Most 
importantly, such a crabbed view of our treatymaking power will 
seriously undermine our standing as a champion of human rights and 
undercut our credibility to advocate for changes in human rights in 
regimes across the globe that do not adhere to basic American 
principles.
    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. To begin with, 
it has been argued that disability rights are more appropriately 
addressed as 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.
    Nor will the Disabilities Treaty require a national registration of 
all children born with disabilities. Article 18 of the Disabilities 
Convention requires nations to register children with disabilities at 
birth. This provision recognizes the horrible practice of denying 
personhood status for infants with disabilities, which leads directly 
to the practice of infanticide in cultures across the globe that do not 
recognize the value of all human life. In the United States the 
individual states require the registration of each child at birth 
through State and local birth certificate processes. Here the 
Disabilities Treaty and U.S. moral leadership will provide much-needed 
protection in other countries where there is no provision for a birth 
certification process.
    Nothing in this treaty prevents parents from homeschooling or 
making decisions for their children. The Convention embraces the 
principles of our IDEA, the Individuals with Disabilities Education 
Act, which emphasizes the importance of the role of parents of children 
with disabilities making decisions on behalf of their children. In 
fact, many parents of children with disabilities choose to homeschool 
their children in order to provide an appropriate level of care and 
attention. In fact, the Convention specifically recognizes and protects 
the important role of the family and protects children from being 
separated from their parents on the basis of a disability. Last year, 
the Committee included an understanding that made clear that the use of 
the phrase ``the best interest of the child'' would not have the 
purpose or effect of limiting parental authority in making 
homeschooling decisions. While not necessary, inclusion of a similar 
understanding this year would eliminate any concerns on this issue.
    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.
    The Convention provides governments with core, minimum standards 
needed to make essential reforms without locking different countries 
into one particular approach or another. This approach is a strength of 
the Convention, not a weakness. This approach addresses the unwarranted 
criticism that the Convention itself does not contain a specific 
definition of disability. Instead the Convention recognizes in its 
preamble that disability is an evolving concept that results from the 
interaction between a person's impairments and the attitudinal and 
environmental barriers that hinder the full and effective participation 
in society. The Convention then allows each nation state to pursue its 
own definition of disability under this rubric.
    We in the United States have worked over the years to refine our 
own definition of disability for our nondiscrimination laws. The 
original definition in the ADA, which was drawn from the definition of 
disability in the Rehabilitation Act of 1973, was reworked in the ADA 
Amendments Act of 2008. We have a strong, workable definition of 
disability in the United States. This committee recognized this 
definition in an understanding that defined disability for the 
Disabilities Treaty as it is defined and used under the Americans with 
Disabilities Act. This approach is sound and lays to rest any concerns 
about lack of clarity or potential misunderstandings.
    One other issue caused considerable discussion in last year's 
debates on the CRPD, the issue of abortion. The CRPD is a disabilities 
treaty; it is a nondiscrimination treaty; it is not about abortion. In 
fact, the word abortion is not even in the treaty. The CRPD does not 
create new abortion rights nor does it require funding for abortion. 
Instead the treaty recognizes, plainly and baldly, the right of persons 
with disabilities to life. Article 10 reaffirms that ``every human 
being has the inherent right to life'' and calls upon nations to take 
all necessary measures to protect the lives of persons with 
disabilities on an equal basis with all other peoples. The Convention, 
for the first time in the international realm, specifically labels as 
an act of discrimination the denial of medical care or food and fluids 
on the basis of disability. The United States should ratify this 
language and assume a leadership role in ending the all-too-common and 
horrible practice of denying medical attention and food and water to 
newborns with disabilities, even to those with such disabilities as 
spina bifida. The Convention does use the phrase sexual and 
reproductive health programs in the Article on health. This phrase was 
included to dispel the stereotype that persons with disabilities are 
not sexual beings and to ensure that nations will address the practice 
of forced sterilization of persons with disabilities, often those with 
intellectual disabilities. A practice that was used and ratified in 
this country in the 19th century by the Supreme Court in Buck v. Bell, 
274 U.S. 200 (1927).
    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.
    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 that 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 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.

    The Chairman. Thank you.
    Dr. Yoshihara.

    STATEMENT OF SUSAN YOSHIHARA, SENIOR VICE PRESIDENT FOR 
  RESEARCH AND DIRECTOR, INTERNATIONAL ORGANIZATION RESEARCH 
     GROUP, THE CATHOLIC FAMILY & HUMAN RIGHTS INSTITUTE, 
                         WASHINGTON, DC

    Dr. Yoshihara. Chairman Menendez, Ranking Member Corker, 
members of the committee, thank you for inviting me to present 
my views on the Convention on the Rights of Persons with 
Disability.
    I appreciate the high hopes that some of my fellow veterans 
have for this treaty. I am one of many veterans who do not 
share that optimism and, like the group AMVETS, realize that, 
while the treaty might help improve conditions abroad, American 
ratification of the treaty will not help disabled Americans, 
here or abroad.
    Secretary Kerry recently addressed the U.N. High Level 
Summit on Disabilities. He called the ADA the gold standard. 
And, notably, he did not mention this treaty. There, in that 
forum, nations like Russia declared that the United States is 
their role model. This shows that the United States is not only 
at the table, it is at the head of the table. When it comes to 
treaties, other governments will comply with or shirk their 
obligations whether we bind ourselves to them or not.
    Now, I have been asked to address something in particular, 
the controversial term ``sexual and reproductive health'' in 
the treaty. I took part in the last round of treaty 
negotiations when it was inserted, and there is no better 
example of the way U.N. bureaucracies disregard the will of 
nations by routinely misinterpreting international obligations 
and, instead, promote their own agenda.
    First, 23 nations opposed this term throughout the 
negotiation. This large number would usually have ended debate. 
And, to get it into the treaty, proponents had to resort to 
things like secret meetings and venues where not all delegates 
were allowed. Nonetheless, nations were assured during 
negotiations that the treaty created no new rights and that the 
term would not be used to promote abortion. Yet, many nations 
took the additional step of putting this in the record on the 
day of adoption. Fifteen nations, nearly half of all the 
statements made that day, focused on reinforcing this 
understanding, including the American statement. Some 
reiterated that at the time of signature or accession, 
believing that it would be accepted and honored in good faith. 
But, since the time of adoption, their fears have come true. 
Countries are being pressured to change their laws.
    For example, in May, UNICEF announced that it interprets 
the Disabilities Convention and the Convention on the Rights of 
the Child as giving children as young as 10 years old a right 
to confidential reproductive and sexual health services. This 
means that adults who are not the child's parents can supply 
sexual information and medical services without their parents' 
knowledge.
    Now, second, human rights treaty bodies simply ignore the 
consensus of nations. In this case, the agreement that sexual 
and reproductive health does not include a right to abortion. 
Even before the Disabilities Treaty was adopted, in just a 10-
year period, treaty bodies pressured more than 90 countries 
over 120 times to liberalize their laws on abortion, including 
the Human Rights Committee, who told Peru that carrying a 
disabled child to term was cruel and inhuman. These committees 
also pressure countries to remove their reservations, and 
encourage other governments to pressure those countries.
    Now, sadly, the Committee on the Rights of Persons with 
Disabilities has taken up this practice and has already 
pressured Spain and Hungary on their abortion laws. The 
disabilities committees also told countries that they should 
remove all reservations, and this includes reservations that 
preserve the supremacy of national constitutions over the 
treaty if there is a conflict.
    Now, in theory, treaty-monitoring bodies have no authority 
to interpret treaties in ways that create new obligations or 
that alter the substance of the treaties. But, in reality, 
jurists are accepting these interpretations as creating new 
obligations. The high courts of Colombia and Argentina changed 
their abortion laws, citing the U.N. committees as 
authoritative. Spain liberalized abortion in 2010, stating it 
did so because of this treaty and also the World Health 
Organization's definition of ``sexual and reproductive 
health,'' a definition that has been rejected by U.N. member 
states for 20 years.
    Now, third--the main problem with that is that these cases 
could reverberate in U.S. law--the third point I want to make 
is that this is not isolated just to this term. It is a 
systemic problem affecting a wide range of social and economic 
policies that Americans care about. The U.N. Human Rights 
Treaty system is in disarray.
    Now things are so bad, last year the U.N. General Assembly 
launched a process to overhaul the monitoring committees and 
attempt to hold them accountable. Even the United States said, 
in those negotiations, that, before Americans give more money 
to the U.N. Human Rights Treaty system, we have to be sure the 
committees will not be doing business as usual and that the 
reforms will actually have effect.
    Simply put, states' parties and U.N. bureaucracies find 
themselves at loggerheads on the interpretation of the text of 
the treaties and on the very purpose of the U.N. treaty system. 
We would do well to steer clear of lending it further 
credibility or subjecting our own laws to its scrutiny.
    But, even without ratifying this controversial treaty, 
Americans are making life better for disabled persons all over 
the world through their generosity, through 77 programs at 
USAID, and countless other ways, and our example of our own 
laws. And our diplomats should continue to wield American 
credibility when promoting fairness, opportunity for persons 
with disabilities around the world.
    Thank you.
    [The prepared statement of Dr. Yoshihara follows:]

               Prepared Statement of Dr. Susan Yoshihara

    Chairman Menendez, Ranking Member Corker, members of the committee, 
thank you for inviting me to present my views on the Convention on the 
Rights of Persons with Disabilities.
    I appreciate the hopes some of my fellow veterans have for this 
treaty. I am one of many veterans who do not share that optimism, and 
like AMVETS, realize that ratifying this treaty will not help disabled 
Americans here or abroad.
    This treaty is meant to help other nations raise their standards to 
those of the Americans with Disabilities Act. Secretary of State Kerry 
addressed leaders at the U.N. High Level Summit on Disabilities a few 
weeks ago, reminding them that ``in too many countries . . . we still 
see the rights and the dignity that we take for granted are not 
existent in many of those places.'' Yet experience demonstrates that 
other governments comply with, or shirk, their treaty obligations 
independent of whether or not we bind ourselves to them.
    I have been asked to address the controversial term ``sexual and 
reproductive health'' in the treaty. There is no better example of the 
dangers of ratification or the way U.N. bureaucracies disregard the 
will of nations by routinely misinterpreting international obligations 
to instead promote their own agenda.
    I want to make three points. The way that language got into the 
treaty, the dangers of the way it is being used, and how the example of 
sexual and reproductive health illustrates the current crisis within 
the U.N. treaty system.
    This is the first time the term ``sexual and reproductive health'' 
appeared in any U.N. treaty and yet it was left undefined. While there 
may be a perception that the term achieved consensus, that was not the 
case. In fact, 23 nations opposed the term and opposition remained 
throughout the negotiations. I would point out that this is a very high 
number of objectors, and that ordinarily the language would have been 
removed. I included a detailed account of that negotiation in my law 
review article as an addendum to this testimony. In order to get the 
term into the text, proponents had to resort to secret meetings in 
remote venues where not all delegates were allowed.
    On the day this landmark treaty was adopted, nearly half of all the 
statements made by countries struck a note of warning. Fifteen nations 
rose to reject the term, declare it did not include abortion, or to say 
the treaty created no new rights. The United States said the treaty 
``cannot be interpreted to constitute support, endorsement, or 
promotion of abortion.''\1\ Four countries would go on to make such 
statements at the time of signature or accession.
    During negotiations, nations were assured that a footnote in a 
draft of the treaty would clarify the issue, but that footnote does not 
accompany the treaty. It is not a part of the materials provided by 
President Obama for ratification by the Senate. The bottom line is that 
many countries were not satisfied with assurances that the presence of 
this term in the treaty would not be used to promote new rights.
    Since the time of adoption, their fears have come true: countries 
are being pressured to change their laws. For example, UNICEF announced 
in May the Disabilities Treaty and Convention on the Rights of the 
Child give children as young as 10 years old a ``right'' to 
``confidential'' reproductive and sexual health services. This means 
adults who are not the child's parents can supply sexual information or 
medical services (including pharmaceuticals) without their parents' 
knowledge.\2\
    The second point I want to make is how this term is used.
    We should be clear. The Disabilities Treaty includes ``sexual and 
reproductive health'' as a category of nondiscrimination and not as a 
right. But this should not allay the concerns of lawmakers. In 10 
year's time, treaty bodies pressured more than 90 countries over 120 
times to liberalize abortion, even though no U.N. treaty mentioned 
reproductive health or rights, let alone abortion.
    The term ``sexual and reproductive health'' has only been defined 
once in a negotiated document, the nonbinding 1994 International 
Conference on Population and Development Program of Action (Cairo). 
Nations rejected any right to abortion at the Cairo conference; they 
only defined the term as including abortion where it is not against the 
law. Treaty bodies have ignored the agreement of nations at Cairo that 
regulation of abortion laws is the prerogative of sovereign states.
    In just one example, the Human Rights Committee told Peru that its 
protection of an unborn disabled child was ``cruel and inhuman'' and 
therefore violated the treaty.\3\ The following year when the 
Disabilities Treaty was adopted, the Holy See announced it would not 
sign the Disabilities treaty, explaining that ``It is surely tragic 
that . . . the same Convention created to protect persons with 
disabilities  may be used to deny the very basic right to life of 
disabled unborn persons.''
    The Committee on the Rights of Persons with Disabilities has 
already shown the same disregard for the agreement of nations on this 
issue, and it has pressured nations on their abortion laws. The 
committee took Spain and Hungary to task, noting that healthy children 
could be aborted legally through the first trimester and children 
identified to have abnormalities through the second trimester. Instead 
of recommending more protection for these children, the committee 
suggested they simply remove any ``distinction'' in the periods, in 
effect calling for liberalizing the law. Some countries have made 
reservations to the term sexual and reproductive health. The 
Disabilities committee has told countries they should remove all 
reservations. This includes reservations that preserve the supremacy of 
the national constitution over the treaty if they were to conflict. 
This raises concern, since this is precisely the type of reservation 
that the U.S. makes when entering into any treaty.
    In theory, according to the treaties and under international law, 
treaty-monitoring bodies have no authority to interpret these treaties 
in ways that create new state obligations or that alter the substance 
of the treaties.
    In reality, jurists are accepting treaty body interpretations as 
creating new obligations. In 2006, Colombia's high court cited the U.N. 
Convention on the Elimination of All Forms of Discrimination Against 
Women (CEDAW) committee observations in a decision that liberalized 
abortion laws in that country. Last year Argentina's high court made a 
similar decision, citing the treaty body as authoritative. There is 
concern that such cases can reverberate in U.S. law. Some U.S. Supreme 
Court justices approve of considering international jurisprudence in 
U.S. decisions.
    The committees use a notion of ``evolving standards'' to create new 
obligations and then promote their views as binding precedent by 
calling it ``jurisprudence.'' This raises concerns of the emergence of 
an international custom on abortion, which other countries would 
consider binding on the U.S.
    If nations were convinced that there were no danger of new rights 
being imposed on states parties to this treaty, there would be no need 
for these same nations to be taking measures to reject the treaty 
body's broad interpretations of ``sexual and reproductive health,'' and 
to reject similar terms such as ``reproductive rights.'' Yet that is 
what is happening. This is most notable in meetings such as the 2011 
Rio High Level Summit on Sustainable Development, and this year's 
negotiations over the Sustainable Development Goals, which will set the 
agenda for U.N. development spending for decades to come.
    At the same time, U.N. agencies have promoted broad interpretations 
of these terms more assertively than ever in policy documents from the 
Office of the High Commission on Human Rights and the World Health 
Organization. Just weeks ago, the CEDAW committee issued its views to 
states parties that nations are obligated to provide ``sexual and 
reproductive health care'' in situations of conflict that includes 
``abortion services''\4\. This contravenes U.S. law.
    This brings me to my third point: the U.N. human rights system is 
in disarray. The U.N. General Assembly launched a process to overhaul 
the monitoring committees last year.\5\ Backlogs, inefficiency, the 
proliferation of reports--many of which examine domestic laws and 
policies lying far beyond committee mandates--have simply overwhelmed 
states parties and the committee staff. Treaty body members say this is 
the result of new accessions to the treaty and a testament to the 
success of the treaty body system. In reality, the problem is in large 
part the treaty body working methods developed by the committees and 
the Secretariat, the Office of the High Commissioner on Human Rights.
    What was once a straightforward reporting mechanism has become a 
laborious monitoring process where committees instruct parties on how 
to implement treaties. Rather than a forum where countries can seek 
best practices, it has become a venue for upbraiding countries via 
elaborate treaty interpretations that sometimes intrude upon the 
democratic process.
    Even the United States has said during treaty body reform 
negotiations that before Americans invest more money in the treaty 
bodies we must be sure the committees will not be conducting business 
as usual, and reforms will actually have an effect.
    Simply put, states parties and U.N. bureaucracies find themselves 
at loggerheads on the interpretation of sexual and reproductive health 
and at odds on the purpose of the U.N. treaty system itself. This has 
raised the question of whether the United States, or any of the dozens 
of countries who have not ratified the treaty, should lend the system 
credibility or put themselves under its review. They should not.
    The good news is that the U.S. doesn't need to be a party to this 
treaty to promote its best practices.
    As Secretary of State Kerry told the U.N. high-level summit on 
disabilities just a few weeks ago, the Americans with Disabilities Act 
is the ``gold standard.'' He encouraged the ``international community 
to look at, study, and, hopefully, emulate this law,'' and the many 
other laws, policies, and programs Americans have already enacted. 
Notably, other countries rose to recognize American leadership at the 
summit. Russia said the United States remained the model for its own 
efforts.
    As the High Level Summit demonstrates, not only are Americans at 
the table, they are at the head. We can expect that, even without 
ratifying this controversial treaty, U.S. diplomats will continue to 
wield American credibility when promoting fairness and opportunity for 
persons with disabilities around the world.

----------------
End Notes

    \1\Lithuania said: ``the concept of `sexual and reproductive 
health' used in Article 25(a) of the Convention shall not be 
interpreted to establish new human rights and create relevant 
international commitments of the Republic of Lithuania. The legal 
content of this concept does not include support, encouragement or 
promotion of pregnancy termination, sterilization and medical 
procedures of persons with disabilities, able to cause discrimination 
on the grounds of genetic features.'' Malta said: ``the phrase `sexual 
and reproductive health' in Art 25 (a) of the Convention does not 
constitute recognition of any new international law obligation, does 
not create any abortion rights, and cannot be interpreted to constitute 
support, endorsement, or promotion of abortion. Malta further 
understands that the use of this phrase is intended exclusively to 
underline the point that where health services are provided, they are 
provided without discrimination on the basis of disability. Monaco 
said: ``articles 23 and 25 of the Convention must not be interpreted as 
recognizing an individual right to abortion except where expressly 
provided for under national law.''
    \2\UNICEF director Tony Lake asserted in the agency's May 2013 
report, ``Under the Convention on the Rights of the Child (CRC) and the 
Convention on the Rights of Persons with Disabilities (CRPD), all 
children have the right to the highest attainable standard of health. 
It follows that children with disabilities are equally entitled to the 
full spectrum of care--from immunization in infancy to proper nutrition 
and treatment for the ailments and injuries of childhood, to 
confidential sexual and reproductive health information and services 
during adolescence and into early adulthood. Equally critical are such 
basic services as water, sanitation and hygiene.'' UNICEF, State of the 
World's Children 2013, page 23. Emphasis added. (http://www.unicef.org/
sowc2013/files/SWCR2013_ENG_Lo_res_24_Apr_2013.pdf)
    \3\For an example of national courts considering the rights of 
disabled unborn, see the case of Costa and Pavan v. Italy, (No. 54270/
10, 28 August 2012), in which the Italian court took a significant step 
toward the recognition of a right to a genetically healthy child, which 
the Court calls the ``right [of the applicants] to bring a child into 
the world who is not affected by the illness that they carry'' 
(Sec. 65).
    \4\U.N. Committee on the Elimination of Discrimination Against 
Women (CEDAW), General recommendation No. 30 on women in conflict 
prevention, conflict and post conflict situations, 18 October 2013 
Available at (http://www.ohchr.org/Documents/HRBodies/CEDAW/GComments/
CEDAW.C.CG.30.pdf). See also: United Nations, Interim report of the 
Special Rapporteur on the right of everyone to the enjoyment of the 
highest attainable standard of physical and mental health, Aug. 3, 
2011. Available at (http://www.un.org/ga/search/view_doc.asp?symbol=A/
66/254). World Health Organization. Safe abortion: technical and policy 
guidance for health systems. World Health Organization, Geneva, 
Switzerland (2012) 134 pp. ISBN 978 92 4 154843 4 Available at (http://
www.who.int/reproductivehealth/publications/unsafe_abortion/
9789241548434/en/). Office of the High Commissioner on Human Rights, 
Technical guidance on the application of a human rights-based approach 
to the implementation of policies and programmes to reduce preventable 
maternal morbidity and mortality, 2012. Available at (http://
www2.ohchr.org/english/issues/women/docs/A.HRC.21.22_en.pdf).
    \5\See U.N. General Assembly Resolution A/RES/66/254, (http://
daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/474/06/PDF/
N1147406.pdf?OpenElement).

    The Chairman. Thank you.
    Professor Meyer.

STATEMENT OF TIMOTHY L. MEYER, ASSISTANT PROFESSOR OF LAW, THE 
        UNIVERSITY OF GEORGIA SCHOOL OF LAW, ATHENS, GA

    Mr. Meyer. Thank you, Chairman Menendez, Ranking Member 
Corker, and members of the committee, for the opportunity to 
appear before you today.
    Unlike my colleagues, I am not here either to support or 
oppose the Convention. Rather, I am here hopefully to clarify 
the legal status of the work of the Committee on Disabilities.
    I am a professor of international law at the University of 
Georgia, and formerly an attorney advisor at the State 
Department's Office of the Legal Advisor.
    Senators, as you know, the CRPD creates a Committee on the 
Rights of Persons with Disabilities that its purpose is to 
consider reports made by the states' parties and then to make 
suggestions, recommendations, and comments on those reports and 
with regard to the Convention.
    Now, in performing this task, the committee inevitably has 
to interpret the obligations that are created by the 
Convention. These interpretations that are issued by the 
committee are not legally binding, and the committee does not 
have any authority to compel any changes to U.S. law. There is 
no legal authority for that.
    Neither, though, are these interpretations without effect. 
The obligations created by the Convention are vague; and thus, 
no state party is able to form any opinion about whether it or 
any other party is complying with the Convention, unless it 
forms some more specific notion of what constitutes compliance. 
It is, therefore, possible that other states' parties would 
look to the committee, and--possible, and even likely--that 
other states' parties would look to the committee and its 
interpretations of the Convention, informing their view of what 
counts as compliance with the Convention and the Convention's 
obligations.
    This role for expert committees in human rights 
organizations has sometimes led them to claim that their 
interpretations of the Conventions are charged with 
implementing, while not legally binding, are entitled to 
considerable authoritative weight. This is not a term that is 
defined anywhere. Nevertheless, it is an authority that they 
have asserted. When they have asserted it, the State Department 
has always been clear to push back and point out that these 
interpretations issued by these committees are not legally 
binding. Nevertheless, this claim of authority remains out 
there and somewhat unclarified.
    At the same time, declining to ratify the Convention does 
not ensure that the committee's interpretations will not be 
asserted against the United States. The committee's 
interpretations of the Convention are a possible basis for the 
formation of customary international law. Customary 
international laws form from a consistent and general state 
practice, but it does not require the universal assent of those 
governments that can be bound. Therefore, the committee's 
interpretations could be a basis of customary international 
law.
    And moreover, it is the practice of expert committees under 
these human rights bodies to cite to each other's work and each 
other's interpretations of human rights laws when they are 
dealing with overlapping obligations. Therefore, it is possible 
that the United States would find work interpretations from the 
Committee on Disabilities cited against it in other treaty 
ratification human rights treaties bodies.
    Therefore, if the United States does ratify the Convention, 
a strong package of RUDs could make clear that the United 
States does not view the work of the committee as the basis for 
forming customary international law, nor does the United States 
understand that the committee's interpretations are accorded 
any special weight by the states' parties. This would go, 
potentially, beyond the understanding that was incorporated in 
the Resolution for Ratification last year to make clear exactly 
what the United States views are with respect to the 
interpretations that are created by the committee.
    With that, I will stop, and I look forward to your 
questions.
    [The prepared statement of Mr. Meyer follows:]

             Prepared Statement of Professor Timothy Meyer

    Chairman Menendez, Ranking Member Corker and members of the 
committee. Thank you for the invitation to testify today. My name is 
Timothy Meyer, and I am an Assistant Professor of Law at the University 
of Georgia School of Law in Athens, GA. I am pleased to offer my 
thoughts regarding the Convention on the Rights of Persons with 
Disabilities (``CRPD'' or ``the Convention'').
    Like most human rights treaties, the CRPD establishes an expert 
committee, the Committee on the Rights of Persons with Disabilities 
(``the Committee'' or ``the Committee on Disabilities''). I would like 
to focus my testimony today on the Committee on Disabilities' role in 
the implementation of the Convention. The Committee's principal task is 
to consider reports made by parties to the CRPD about their measures 
taken to comply with the Convention. The role of expert committees in 
general and the legal effect of their suggestions, recommendations, and 
comments is a subject of some debate among the various committees, 
member states, and academics. On the one hand, a number of commentators 
have expressed concerns that ratifying the Convention will result in 
unelected officials from multilateral organizations rewriting American 
laws. In response, others have pointed out that the Committee on 
Disabilities does not have the legal authority to compel any action by 
the United States. In my view, neither of these positions fully 
captures the way in which the suggestions, recommendations, and 
comments of human rights committees have effect.
    I wish to make two points today regarding the role of these 
committees in general and the Committee in particular.
    First, while reports of these expert committees are not legally 
binding, they do have legal significance because they influence how 
parties to the Convention perceive what constitutes compliance with 
treaty obligations and customary international law.
    Second, declining to ratify the treaty does not necessarily mean 
that interpretations of human rights norms developed by the Committee 
will not be asserted against the United States. I therefore offer some 
possible understandings to the CRPD that would allow the United States 
to protect and advance its interests while ratifying the CRPD. These 
understandings would clarify that the Committee's interpretations of 
the Convention are not due any deference from parties to the 
Convention.
    With that introduction, I will now elaborate on these points.
             the ``soft'' legal nature of expert committees
    The CRPD requires that each State Party ``submit to the Committee . 
. . a comprehensive report on measures taken to give effect to its 
obligations'' under the Convention. CRPD art. 35(1). The CRPD then 
empowers the Committee on Disabilities to ``make such suggestions and 
general recommendations on the report as it may consider appropriate.'' 
CRPD art. 36(1). The Convention requires States Parties to make its 
reports ``widely available to the public in their own countries and 
facilitate access to the suggestions and general recommendations'' of 
the Committee. CRPD art. 36(4). The Committee on Disabilities is also 
authorized to ``make suggestions and general recommendations based on 
the examinations of reports and information received from the States 
Parties'' to the U.N. General Assembly and Economic and Social Council. 
CRPD art. 39. Moreover, it is common practice for expert committees to 
issue ``general comments'' which elaborate a committee's interpretation 
of the treaty it is charged with implementing. The Committee on 
Disabilities has continued this practice.\1\
    As a matter of international law, the Committee's suggestions, 
recommendations, and comments are not legally binding. Nor does the 
Committee have the power itself to make customary international law. 
Provided that ratification of the Convention is accompanied by a 
declaration that the Convention is not self-executing and a package of 
reservations, understandings, and declarations (RUDs) clarifying that 
the Convention does not impose any obligations on the United States 
beyond those offered under existing state and federal laws, such as the 
Americans with Disabilities Act, the Committee's work cannot be the 
basis for legally compelling any changes to federal law. Finally, the 
United States could ratify the Convention with a reservation to ensure 
that the United States undertakes no obligations that cannot be 
satisfied through federal legislation passed under Congress' 
constitutionally enumerated powers. Where disabilities are concerned, 
congressional power to make federal laws flows primarily from Congress' 
authority to regulate interstate and foreign commerce. U.S. 
Constitution, Art. I, Section 8. The United States could ratify the 
Convention with a reservation to those obligations in the Convention 
that cannot be satisfied under Congress' authority to regulate 
interstate or foreign commerce or under another of Congress' enumerated 
powers.\2\
    Although the Committee's suggestions, recommendations, and comments 
are not legally binding, they nevertheless can have indirect legal 
effect, what might be termed a ``soft'' legal effect.\3\ As with many 
laws, both international and domestic, the substantive commitments 
contained in the Convention are vague and imprecise. Legal scholars 
often make a distinction between ``rules'' and ``standards'' in terms 
of how precise a law is.\4\ As an ideal type, a ``rule'' is a law that 
that can be applied without any interpretation. An example is the speed 
limit. If the speed limit is 65 miles per hour, one only needs to 
answer the factual question of how fast the driver was going to know 
whether he was speeding. By contrast, if the rule is that drivers must 
drive at a ``reasonable'' speed, one must both interpret what 
``reasonableness'' means and then determine factually whether the 
driver's conduct conforms to the law. The commitments made by parties 
to the Convention are more like standards than rules. By this I mean 
that no one--other parties, the Committee, outside observers, etc.--can 
determine whether a state is complying with its obligations under the 
Convention without first forming some more specific notion of what the 
commitments undertaken in the Convention require.
    The implementation of the Convention thus necessarily requires some 
interpretation of the Convention's terms. As the United States has 
consistently maintained, the authority to issue legally binding 
interpretations of a treaty remains with the parties to the treaty 
unless the treaty specifically says otherwise.\5\ But in considering 
the reports made by parties to the Convention, the Committee 
unavoidably has to give some meaning to the Convention's vague 
obligations. It cannot otherwise assess the relationship between 
specific practices described in parties' reports and the vague language 
of the Convention. Moreover, states parties to the Convention may look 
to the Committee for guidance as to how they might interpret the 
obligations created by the Convention. Thus, even though the 
Committee's suggestions, recommendations, and comments are not legally 
binding, they can in some circumstances influence how other actors--
parties to the Convention, including domestic courts and administrative 
agencies, as well as nongovernmental organizations--interpret and apply 
the Convention. In effect, an expert committee's recommendations can 
sometimes become a focal point around which the expectations of a 
treaty's parties coalesce when determining what constitutes compliance 
with vague treaty terms.\6\
    This phenomenon is perhaps easiest to observe among international 
tribunals. Like the Committee on Disabilities' suggestions, 
recommendations and comments, the decisions of most international 
tribunals are nonbinding with respect to states not party to the 
dispute.\7\ There is thus little formal role for precedent in 
international law. In general neither international courts nor expert 
committees can lay down interpretations of treaties that bind the 
parties to the treaty prospectively. Nevertheless, tribunals frequently 
cite to and follow their own precedents, as well as the precedents of 
other tribunals.\8\ The World Trade Organization's Appellate Body has 
justified this practice as follows:

        [It is well settled that Appellate Body reports are not 
        binding, except with respect to resolving the particular 
        dispute between the parties. This, however, does not mean that 
        subsequent panels are free to disregard the legal 
        interpretations and the ration decidendi contained in previous 
        Appellate Body reports that have been adopted by the DSB . . . 
        Dispute settlement practice demonstrates that WTO Members 
        attach significance to reasoning provided in previous panel and 
        Appellate Body reports [emphasis added].\9\

    The mechanism through which international tribunals and expert 
committees have legal effect is thus not through any binding force of 
the decisions themselves, but rather because--and only to the extent 
that--parties to the Convention follow the interpretations and 
reasoning adopted by tribunals. Similarly, the Committee's 
interpretations of the Convention could be given effect when other 
legal actors attach significance to the reasoning or opinions provided 
by the Committee. This indirect effect is observable in the practice of 
U.S. Government agencies. To give but one illustrative example, a 2005 
memo from the Justice Department's Office of Legal Counsel considered a 
report of the Committee Against Torture (a committee created by the 
Convention Against Torture and other Cruel, Inhumane, or Degrading 
Treatment (CAT) with a mandate similar to the Committee on 
Disabilities) alongside opinions of the Ninth Circuit of Appeals and 
the European Court of Human Rights in interpreting federal legislation 
implementing the CAT by prohibiting torture.\10\
    An analogy to domestic lawmaking may help clarify the nature of the 
soft legal effect that these committees have. Domestic legal 
institutions frequently act in ways that do not have binding legal 
effect on other institutions, but nevertheless have indirect legal 
effects. I will highlight two particular kinds of domestic acts that 
are regularly given indirect legal effect but are not themselves law. 
First, congressional resolutions are not binding law. Yet scholars have 
argued that, despite the nonbinding nature of resolutions, they are 
given soft legal effect when courts, administrative agencies, or the 
President incorporate congressional views expressed in resolutions into 
binding policies or rulings.\11\ Similarly, the legislative history of 
statutes is not itself binding law. Nevertheless, courts routinely give 
legislative history legal effect when they use it to interpret 
statutes.\12\ Second, domestic courts routinely cite the decisions of 
other courts as persuasive authority even when they are not bound to 
follow those courts' rulings. Federal circuit courts, for example, 
regularly look to each other's reasoning and analysis in interpreting 
federal law. They are free to, and frequently do, disagree with each 
other. But later courts also frequently adopt the reasoning and follow 
the decisions of earlier courts, even in the absence of a legal rule 
compelling that result. In the same way, nonbinding actions by 
international institutions such as the Committee on Disabilities can be 
given indirect legal effect.
    Just as the Committee's nonbinding interpretations of the 
Convention may in some circumstances influence how parties view their 
obligations under the Convention, so too can parties' reactions to the 
Committee's interpretation shape the development of customary 
international law. It bears repeating that this does not mean that the 
Committee has the authority to make customary international law. It 
does not. But customary international law ``results from a general and 
consistent practice of states followed by them from a sense of legal 
obligation.''\13\ States' interactions with human rights committees 
have at least the theoretical possibility of creating customary 
international law should states begin to act in accordance with a 
committee's interpretations of international law. Notably, customary 
international law does not require that all states participate in the 
practice in order for an obligation to arise.\14\ Thus, a country not 
party to a treaty or interacting with the Committee could nevertheless 
end up bound by the resulting customary obligation. A government can 
protect itself from being so bound--under a doctrine known as the 
``persistent objector'' doctrine--by monitoring the practices of other 
governments and objecting to being bound by a customary rule during the 
time the rule is forming.\15\
    Thus, to simply state that the Committee has no authority to make 
binding determinations or to create customary international law does 
not do justice to the role of the Committee. The Committee 
unequivocally does not have the authority on its own to create legal 
obligations for states or to compel any action by parties to the 
Convention. The Committee cannot direct the United States to take any 
particular action and cannot rewrite American laws. But the Committee 
will play a role in influencing how the vague obligations in the 
Convention are interpreted and understood by States Parties and other 
actors. International law is, in a sense, a sort of common law. It 
develops through an accretion of precedents and through negotiations, 
both implicit and explicit, about the legal significance that should be 
accorded to the nonbinding acts of institutions like the Committee. The 
question is thus how to best promote U.S. interests in light of the 
Convention and the role it affords the Committee.
                  possible understandings to the crpd
    Significantly, not ratifying the CRPD would not necessarily 
eliminate the Committee's role in influencing how other states perceive 
the United States human rights obligations for two reasons. First, as 
discussed above, the Committee's interpretations and its dialogues with 
states are precedential acts that can contribute to the creation of 
customary international law. In its examinations of parties' reports, 
expert committees sometimes opine that particular treaty obligations 
constitute customary international law.\16\ There is no denying that 
expert committees at times issue recommendations that go beyond what 
the parties contemplated when entering into a treaty.\17\ Because the 
formation of a rule of customary international law does not require 
affirmative consent from all nations, failing to object to these 
expansive claims can lead to claims that a country is bound by rules it 
played no role in forming. The U.S. Government officials charged with 
appearing before human rights bodies and monitoring the activities of 
those bodies have ever been vigilant in protecting American interests 
against overreaching interpretations of what international law 
requires.\18\ Having the opportunity to nominate an American to serve 
on the Committee and to appear before the Committee is an effective way 
to ensure that the Committee does not become a vehicle for creating 
customary international legal obligations that are contrary to U.S. 
interests.
    Second, expert committees frequently cite to each other and to 
other human rights treaties in interpreting obligations in human rights 
agreements that overlap.\19\ The CRPD itself expressly authorizes this 
conduct when it provides that: ``The Committee shall, as it discharges 
its mandate, shall consult, as appropriate, other relevant bodies 
instituted by international human rights treaties, with a view to 
ensuring the consistency of their respective reporting guidelines, 
suggestions and general recommendations, and avoiding duplication and 
overlap in the performance of their functions.'' CRPD art. 38(2).
    Not ratifying the Convention thus does not ensure that the United 
States would not face arguments that its conduct is inconsistent with 
human rights obligations as interpreted by the Committee on 
Disabilities. The CRPD includes a number of obligations that overlap 
with rights contained in the International Covenant on Civil and 
Political Rights (``ICCPR''), to which the United States is party. 
Conceivably, the United States could find arguments developed by the 
Committee on Disabilities in its interactions with parties to the CRPD 
also advanced under the ICCPR. Of course, interpretations developed by 
the Committee on Disabilities and advanced as consistent with 
obligations under the ICCPR would not be binding on the United States, 
just as interpretations developed by the Human Rights Committee under 
the ICCPR and the Committee on Disabilities under the CRPD are 
nonbinding. But by not participating in the development of these 
interpretations before the CRPD, the United States may lose some 
influence over how other nations understand the United States 
commitments under those treaties it has ratified.
    In light of these considerations, I have two recommendations on how 
the United States might protect and advance its interests while 
ratifying the CRPD.
    First, American interests at home can be protected through a 
declaration that the CRPD is not self-executing, as well as a package 
of reservations, understandings, and declarations (RUDs) that clarify 
that the United States is not undertaking any commitments that exceed 
the extensive rights available under existing federal and state laws. 
These RUDs signal to the Committee and other States Parties to the 
Convention the limits on the commitments the United States is making by 
ratifying the Convention. They also ensure that the power to change 
federal law remains with Congress. These RUDs are important. As the 
administration has made clear, the United States tends to follow a 
practice of ``compliance before ratification.''\20\ RUDs thus give the 
United States the ability to ratify the Convention knowing we are 
already in compliance with the commitments that we are making, while 
increasing our ability to influence how the Convention's obligations 
are interpreted by parties that ratify before complying.
    Second, the ability of expert committees to influence the views of 
parties as to how to interpret their binding legal obligations (or 
about the existence of a rule of customary international law) has led 
expert committees to claim that they have the ability to make 
``authoritative'' interpretations of the treaties they are charged with 
implementing, even while conceding that their interpretations are not 
legally binding.\21\ To the extent that this claim refers to the fact 
that the parties to a treaty may attach significance to the views of a 
committee, it does little more than make a factual claim about how a 
committee is viewed by the governments that created it.
    Committees might also be understood, however, to be making a claim 
that their rulings have a formal legal status somewhere between 
``binding'' and ``nonbinding.'' That is, expert committees might be 
understood to be arguing that their interpretations of a treaty are 
entitled to greater weight when considered by a treaty's parties than 
are the views of, say, a law professor.\22\
    The United States could use ratification of the CRPD to clarify 
once again that the parties to the Convention are under no obligation 
to accord any weight to expert committee's interpretations. Last year 
when this Committee reported the CRPD to the full Senate, it included a 
proposed understanding stating:

        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.\23\

    This understanding could be supplemented in two ways to make clear 
that the United States does not recognize the authority of the 
Committee to interpret the Convention. First, the understanding could 
include a sentence stating that: ``The United States further 
understands that the Committee's interpretations of the Convention are 
not entitled to any weight apart from that given to them by States 
Parties to the Convention.''
    Such an understanding goes beyond the 2012 understanding by 
clarifying that the Committee's interpretations are not due any 
deference by parties to the Convention. Such an understanding is 
consistent with the text of the Convention, which imposes no 
obligations on parties to adopt or agree with the Committee's views on 
what the Convention requires.
    Second, the understanding could include a sentence making clear 
that the United States preserves its right to consent to any 
interpretations of the Convention, from whatever source, before they 
have any effect whatsoever in the United States. For example, a 
sentence might be added to the understanding stating that: ``Moreover, 
the United States understands that no interpretation of the obligations 
of the Convention issued by the Committee or any other international 
institution can have binding legal effect with regard to the United 
States unless the United States consents to such an interpretation in 
accordance with its constitutionally required procedures.''
    This understanding makes clear that by joining the Convention the 
United States has not delegated any authority to any international 
institution to create legal obligations for the United States. It 
therefore preserves the primacy of the United States domestic lawmaking 
process in determining what international obligations bind the United 
States.
                               conclusion
    In sum, Mr. Chairman, thank you for the opportunity to present 
these views on the CRPD. International institutions such as the 
Committee on Disabilities have proliferated in recent decades and an 
accurate understanding of what they do and do not do is critical to 
engaging with these institutions in a way that protects and advances 
the interests of the United States. A simple binary conception of the 
legal effect--either binding or nonbinding--of the Committee's 
suggestions, reports, and recommendations, does not do justice to the 
ways in which the Committee can have indirect, ``soft'' legal effects. 
A more nuanced understanding of how these institutions works offers the 
possibility of a more effective strategy for ensuring that U.S. 
involvement with these institutions promotes U.S. interests.

----------------
End Notes

    \1\See, e.g., Draft General comment on Article 12 of the CRPD--
Equal Recognition before the Law; Draft General Comment on Article 9 of 
the CRPD--Accessibility.
    \2\For example, in 2005 the United States ratified the United 
Nations Convention on Transnational Organized Crime with a reservation 
providing that: ``The United States of America reserves the right to 
assume obligations under the Convention in a manner consistent with its 
fundamental principles of federalism, pursuant to which both federal 
and state criminal laws must be considered in relation to the conduct 
addressed in the Convention. U.S. federal criminal law, which regulates 
conduct based on its effect on interstate or foreign commerce, or 
another federal interest, serves as the principal legal regime within 
the United States for combating organized crime, and is broadly 
effective for this purpose. Federal criminal law does not apply in the 
rare case where such criminal conduct does not so involve interstate or 
foreign commerce, or another federal interest. There are a small number 
of conceivable situations involving such rare offenses of a purely 
local character where U.S. federal and state criminal law may not be 
entirely adequate to satisfy an obligation under the Convention. The 
United States of America therefore reserves to the obligations set 
forth in the Convention to the extent they address conduct which would 
fall within this narrow category of highly localized activity. This 
reservation does not affect in any respect the ability of the United 
States to provide international cooperation to other Parties as 
contemplated in the Convention.''
    \3\See, e.g., Andrew T. Guzman & Timothy L. Meyer, ``International 
Soft Law,'' 2 J. Legal Analysis 171 (2010); Mark A. Pollack & Gregory 
C. Shaffer, ``Hard v. Soft Law: Alternatives, Complements, and 
Antagonists in International Governance,'' 94 Minn. L. Rev. 706 (2010); 
Andrew T. Guzman & Timothy L. Meyer, ``International Common Law: The 
Soft Law of International Tribunals,'' 9 Chi. J. Int'l L. 515 (2009); 
Kenneth W. Abbott & Duncan Snidal, ``Hard and Soft Law in International 
Governance,'' 54 Int'l Org. ( 2000).
    \4\See, e.g., Louis Kaplow, ``Rules Versus Standards: An Economic 
Analysis,'' 42 Duke L.J. 557 (1992).
    \5\See, e.g., Human Rights Committee, Summary of the 2380th 
Meeting, U.N. Doc. CCPR/C/SR.2380 Sec. 8 (July 27, 2006) (in which the 
United States delegation noted in a colloquy with the Human Rights 
Committee that ``in general, only the parties to a treaty were 
empowered to give a binding interpretation of its provisions unless the 
treaty provided otherwise'').
    \6\See Andrew T. Guzman & Timothy L. Meyer, ``International Soft 
Law,'' 2 J. Legal Analysis 171, 203 (2010).
    \7\See, e.g., Statute of the International Court of Justice art. 
59. (``The decision of the Court has no binding force except between 
the parties and in respect of that particular case.'')
    \8\See Harlan Grant Cohen, ``The Strategy of International 
Precedent,'' in Interpretation in International Law (Andrea Bianchi, et 
al. eds forthcoming 2014).
    \9\``Stainless Steel (Mexico-United States)'' p. 158-160, WT/DS344/
AB/R, 30 April 2008.
    \10\Memo for John A. Rizzo, Senior Deputy General Counsel, Central 
Intelligence Agency, from Steven G. Bradbury, Principal Deputy 
Assistant Attorney General, Office of Legal Counsel, Department of 
Justice (May 10, 2005), available at: http://www2.gwu.edu/nsarchiv/
torture_archive/docs/Bradbury%20memo.pdf.
    \11\Jacob E. Gersen & Eric A. Posner, ``Soft Law: Lessons From 
Congressional Practice,'' 61 Stan. L. Rev. 573 (2008).
    \12\Andrew T. Guzman & Timothy Meyer, ``International Soft Law,'' 2 
J. Leg. Analysis 171 (2010).
    \13\Restatement (Third) of Foreign Relations Law Sec. 102(2) 
(1987).
    \13\Restatement (Third) of Foreign Relations Law Sec. 102, comment 
b (1987) (``A practice can be general even if it is not universally 
followed'').
    \15\Restatement (Third) of Foreign Relations Law Sec. 102, comment 
d (1987). (``[I]n principle a state that indicates its dissent from a 
practice while the law is still in the process of development is not 
bound by that rule even after it matures.'')
    \16\See, e.g., Human Rights Committee, General Comment 24(52) para. 
8, General comment on 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, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994) (asserting that ``a 
State may not reserve the right to engage in slavery, to torture, to 
subject persons to cruel, inhuman or degrading treatment or punishment, 
to arbitrarily deprive persons of their lives, to arbitrarily arrest 
and detain persons, to deny freedom of thought, conscience and 
religion, to presume a person guilty unless he proves his innocence, to 
execute pregnant women or children, to permit the advocacy of national, 
racial or religious hatred, to deny to persons of marriageable age the 
right to marry, or to deny to minorities the right to enjoy their own 
culture, profess their own religion, or use their own language'' 
because provisions in the ICCPR protecting such rights ``represent 
customary international law.'').
    \17\See, e.g., Report of the Committee on the Elimination of 
Discrimination Against Women, U.N. Doc. A/55/38 para. 361 (2000) 
(expressing concern about ``the reintroduction of such symbols as 
Mothers' Day . . .'').
    \18\See, e.g., Response of the United States to Recommendations of 
the U.N. Human Rights Council, November 9, 2010, available at: http://
www.state.gov/s/l/releases/remarks/150677.htm. In his remarks, State 
Department Legal Adviser Harold Hongju Koh described some of the Human 
Rights Council's recommendations as ``plainly intended as political 
provocations [that] cannot be taken seriously.'' See also Observations 
of the United States of America on General Comment 24, in Human Rights 
as General Norms and A State's Right To Opt Out: Reservations and 
Objections To Human Rights Conventions (J.P. Gardner, ed. 1997) (noting 
that paragraph 8 of the Human Rights Committee's General Comment 24 
``asserts in a wholly conclusory fashion that a number of propositions 
are customary international law which, to speak plainly, are not.'').
    \19\See, e.g., Draft General Comment on Article 9 of the CRPD para. 
5 (citing General Comments of the Committees on Economic, Social, and 
Cultural Rights and the Rights of the Child).
    \20\Opening Remarks of Legal Adviser Harold Hongju Koh to the 
United Nations Committee on the Rights of Child Concerning the Optional 
Protocols to the Convention on the Rights of the Child (January 16, 
2013).
    \21\See, e.g., Human Rights Committee, Summary of the 2380th 
Meeting, U.N. Doc. CCPR/C/SR.2380 para. 57 (July 27, 2006) (in which 
the Human Rights Committee asserts in a colloquy with the United States 
delegation that ``its findings, while not legally binding, had 
considerable authoritative status.'').
    \22\See Observations of the United States of America on General 
Comment 24, in Human Rights as General Norms and A State's Right To Opt 
Out: Reservations and Objections To Human Rights Conventions (J.P. 
Gardner, ed. 1997). In its observations, the United States responded to 
General Comment 24 of the Human Rights Committee (``HRC''), which 
arguably asserted that it was contrary to the object and purpose of the 
Covenant on Civil and Political Rights to reject the interpretations of 
the HRC. The United States clarified that ``it is unnecessary for a 
state to reserve as to the Committee's power or interpretative 
competence since the Committee lacks the authority to render binding 
interpretations or judgments.'' Id.
    \23\Report of the Committee on Foreign Relations on the Convention 
on the Rights of Persons with Disabilities Sec. 7 (July 31, 2012).

    The Chairman. Well, that is the first time I have seen a 
law professor not take his full 5 minutes, so----
    [Laughter.]
    The Chairman [continuing]. We compliment you----
    [Laughter.]
    The Chairman [continuing]. For your preciseness.
    Let us start a round of questions.
    Thank you, to all of the witnesses, for their testimony.
    And, very briefly, a claim of authority is different than 
authority itself, is it not?
    Mr. Meyer. That is correct; yes.
    The Chairman. And an understanding or even a reservation in 
understanding, as you describe, would clearly create a nullity 
as to any claim, at least in the context of American law, would 
it not?
    Mr. Meyer. For purposes of domestic law, a very strong 
package of RUDs should be sufficient to ensure that U.S. 
courts--for example, a non-self-execution declaration--would be 
sufficient to ensure that U.S. courts do not recognize, for 
example, private causes of action based upon the Convention. 
But, simply nullifying the claim of authority would not 
necessarily affect the ability of other states' parties to the 
Convention to adopt interpretations of the Convention coming 
out of the committee as coextensive with their interpretations 
of what constitutes----
    The Chairman. Other state parties, meaning other countries.
    Mr. Meyer. Yes, other--yes, sorry, other countries.
    The Chairman. Thank you.
    Secretary Ridge, I understand that you are a strong 
supporter of homeschooling, and I am sure you are aware of the 
arguments that were made last year and some that Mr. Farris has 
made here today. Can you speak to that issue?
    Mr. Ridge. Well, I certainly am. During my time as 
Governor, we saw a rather substantial increase in the number of 
children who were being homeschooled, for a variety of 
different reasons. I think my colleague, Governor Thornburgh, 
Attorney General Thornburgh, addressed this issue in his 
remarks. And frankly, there are some families with children 
with disabilities, for many reasons, choose to provide 
schooling at home. So, I do have a couple of thoughts on that.
    One, relying on the quality legal interpretation that I 
have had an opportunity to review, and also recognizing the 
reservations and the understandings and the declarations that 
the committee worked its will to graft onto the treaty that was 
considered last year, this matter is addressed. This treaty 
does not affect the ability of a parent to act in the best 
interest of the child. And it is--again, according to people 
whose opinions I respect, the fact of the fact of the matter is 
that this treaty cannot be interpreted to bar or prohibit any 
parent from homeschooling their children. For me, it is 
absolutely a nonissue, and I am a strong proponent of 
homeschooling.
    The Chairman. Thank you.
    Congresswoman Duckworth, let me ask you--you come from a 
family of military veterans, and you developed a close 
relationship with Senator Dole, who spent some time with you 
during your recovery. You have served as Assistant Secretary 
for Veterans Affairs. What do you say to the critics who say 
this treaty really does not help U.S. veterans? And what do you 
say to Dr. Yoshihara's assertion that AMVETS speaks for 
veterans and opposes the treaty?
    Ms. Duckworth. Well, Mr. Chairman, I----
    The Chairman. If you would put your microphone on.
    Ms. Duckworth. Mr. Chairman, I would like to start by 
saying that my understanding is, AMVETS neither opposes nor 
supports the treaty. They are neutral on it. But, I will tell 
you that the Iraq and Afghanistan Veterans of America, the 
American Legion, the Blinded Veterans of America all support 
this treaty and recognize the fact that our veterans should 
have the opportunity to travel internationally, especially our 
disabled veterans. They set a wonderful example wherever they 
go. I have mentioned, our post-9/11 GI bill recipients who 
would love to take advantage of foreign study programs so that 
they can spend time in a foreign university. They cannot do 
that. When I have gone to visit Landstuhl, Germany, and 
Vicenza, Italy, our bases there, and visited with our wounded 
warriors, I often could not take them off post to--even on a 4-
hour pass--to go see the sights downtown, because they simply 
were not accessible.
    And so, I think that those who state that this treaty would 
not help our veterans really have to better understand the 
situation for our military men and women and their families. 
Many of these posts are duty stations that are very 
advantageous toward one's career. And if you cannot bring your 
family with you because you have a child with a disability or a 
spouse with a disability, you have to make that tough choice, 
``My career, or do I leave my family behind?'' And that is not 
a choice I want any servicemember to have to make.
    The Chairman. Thank you.
    Dr. Yoshihara, let me ask you--there are many in the pro-
life community who disagree with you that the treaty somehow 
takes a position on the debate concerning abortion. Is that not 
true?
    Dr. Yoshihara. Senator, first, I just want to clarify 
something. I never said that the treaty would not help. I said 
U.S. ratification. I agree with the Congresswoman, that these 
countries do need to----
    The Chairman. Would you answer my question, though?
    Dr. Yoshihara. Yes. Yes, Senator.
    It is true, National Right to Life issued a statement, at 
the time of the adoption of this treaty in 2006, saying that 
this treaty had nothing to do with abortion. And, in fact, we 
found that, after that time, that the treaty body is, in fact, 
interpreting that.
    So, the argument is not really with me so much as it is 
with the committee that is----
    The Chairman. Well----
    Dr. Yoshihara [continuing]. Misinterpreting the treaty.
    The Chairman. In fact, dozens of countries that prohibit or 
restrict access to abortion, including Brazil, Chile, Egypt, 
Argentina, where the Holy Father came from, and El Salvador, 
have ratified the treaty, and some of the most fiercest 
supporters from within the disabilities rights community are 
pro-life.
    Moreover, the president of the Catholic Family and Human 
Rights Institute, who I understand is your boss, penned an 
article entitled ``U.N. Disabilities Treaty Does Not Create 
Abortion Rights.'' The article describes in detail how the 
parties negotiating the treaty made clear, and I quote, ``that 
countries are free to keep their laws protecting the unborn in 
place and urges other pro-life activists to stop arguing about 
the phrase `sexual reproductive health.'''
    So, there is obviously, even from those who employ you, a 
much different point of view.
    And I ask unanimous consent to include that article in the 
record.

    [Editor's note.--The above mentioned letter and any other 
articles submitted for the record during the hearing can be 
found in the ``Additional Material Submitted for the Record'' 
section of the hearing. The ``Ave Maria Law Review'' article 
submitted by Susan Yoshihara and ``CRPD Committee Appendix'' 
submitted by Michael Farris are both too voluminous to include 
in the printed hearing. They will be maintained in the 
permanent record of the committee.]

    The Chairman. Senator Corker.
    Senator Corker. Thank you, Mr. Chairman.
    I think, actually, numbers of witnesses have additional 
materials, and I would like to ask unanimous consent that 
whatever materials they have can be entered into the record.
    The Chairman. Without objection.
    Senator Corker. Yes, thank you.
    Senator Corker. So, I would imagine that every Senator 
here, on the whole idea of having a convention for the rights 
of people with disability--they would want to support that. I 
cannot imagine anybody looks at something that might advance 
the rights of people with disabilities--I think people start 
with a great deal of optimism. And it is my sense that Mr. 
Thornburgh and Mr. Ridge and Ms. Duckworth want to see those 
rights advanced throughout the world, and want to see the 
United States playing leadership in that area. At the same 
time, I would assume that the three of you would not want a 
convention to have any effect whatsoever on domestic law; 
meaning, you would not want a treaty that we have with other--
are all three of you all in agreement with that?
    So, it seems to me that, instead of, you know, maybe taking 
an approach where we try to look at people who have concerns 
like that as enemies, the concern would be to try to figure out 
a way to make sure that you have a treaty that advances the 
effort that the three of you are here about and have done such 
a wonderful job with, and, at the same time, to try to make 
sure that the treaty does not have those unintended 
consequences, like the case--it is pretty phenomenal that, 
today, the Supreme Court is hearing a case where this exact 
thing has occurred.
    So, my question, first, would be, to Mr. Meyer, to ask you 
this question. We have the RUDs issue, which hopefully we will 
be examining over the next few weeks. Is there a way, in your 
opinion, to write RUDs, on the front end of a treaty, that 
would absolutely ensure that there is no way for this treaty to 
affect either the federalism issues that we have to deal with 
or to cause a court to look to the treaty to actually affect 
the individual lives of citizens here in the country? Is there 
a way of us coming together and writing RUDs in that way?
    Mr. Meyer. Senator, thank you for that question. So, I 
think, with respect to the federalism issue, a federalism 
reservation could address the federalism problems that you have 
identified. A federalism reservation could, I think, be drafted 
to be somewhat stronger than the reservation that that was 
attached to the Resolution for Ratification that came out last 
year. Conceivably, such a reservation would make very clear 
what the enumerated powers that Congress possesses are, and 
then, would then reserve out of any obligations that could not 
be satisfied through the exercise of those powers.
    With respect to the interpretation issue, I think a set of 
understandings could be drafted that would make very clear that 
the United States does not accord any significance to the 
interpretations of the Convention afforded by the committee. I 
think this would go a long way toward addressing the concern 
that the Convention might be used to interpret Federal 
statutes, including potentially preexisting Federal statutes, 
like the ADA.
    The current understanding, or the understanding that was 
attached to the Resolution for Ratification last year, spoke 
only to the issue of whether or not there was the authority to 
legally compel changes to U.S. law. The committee clearly does 
not have the authority to legally compel changes to U.S. law. 
But, one could imagine, and my written testimony suggests, some 
language that might be helpful to further make clear that the 
United States accords no weight to the interpretations of the 
committee.
    Senator Corker. So, it is your belief that the RUDs we have 
in place, or the ones that came through the committee last 
year, could more fully be written in such a way, could be 
enhanced, to make sure that these types of issues did not come 
up.
    Mr. Meyer. Yes, I think it is possible to draft RUDs that 
are stronger and would address these concerns more fulsomely.
    Senator Corker. So, to the two witnesses that had very 
specific concerns about very specific issues, do you also agree 
that there is a way to address the concerns that you have by 
writing the RUDs in a different way than they are now written?
    Dr. Yoshihara. I think one of the problems with the 
reservations, as has already been stated, is, they can be 
removed. So, if that was our protection and they are removed, 
then I would assume then----
    Senator Corker. But, they would have to be removed by 
Congress, right?
    Dr. Yoshihara. Right. That is right. I am thinking----
    Senator Corker. Well, I mean, I----
    Dr. Yoshihara. That is right.
    Senator Corker [continuing]. I would like to try to solve 
this problem, but I cannot solve every problem that might come 
up 20 years from now. But, the fact is, we, ourselves, would 
only be passing a law that solved this problem. And my question 
is, Do you think that----
    Dr. Yoshihara. That it would protect us from 
misinterpretation? Well, you know, in the case of Roper v. 
Simmons, the Supreme Court did cite a portion of the civil and 
political rights covenant that we had specifically reserved on. 
So, there is precedent that the reservation may or may not help 
us in that regard.
    Senator Corker. And if I could--Mr. Farris, if you would 
answer the question.
    Mr. Farris. Senator, I cannot imagine a reservation that 
would be legally acceptable. That is, it is consistent with the 
object and purpose of the treaty, that would satisfy the 
reservations that would be needed to comply with the three 
positive witnesses. You would have to write the reservation to 
say, ``This treaty shall not bind the United States to comply 
with the standards of the treaty, and shall have no domestic 
legal effect.'' If you would put that reservation in, that 
would be fine. I would support the treaty at that point in 
time. Because it is meaningless then.
    And what is being argued is that the treaty has no domestic 
meaning. And treaties, when we accept a treaty, the only nation 
in the world that we are binding is us. We do not bind anybody 
else. Our ratification has no external legal effect anywhere. 
What is being argued is external political effect. And there is 
no record shown that our ratification of any other treaty has 
had external political effect that has been effective in 
seeking compliance with other human rights treaties. So, it is 
a shell game and empty promises that are being made.
    We need to determine whether or not we are going to comply 
with this treaty, or not. And if we are not going to comply 
with the treaty, we ought not to ratify it, because the number 
one thing this country should do with its treaty obligations is 
keep them, in good faith.
    Senator Corker. Mr. Chairman, if I could, when I was 
speaking to Dr. Yoshihara and I said we cannot solve all the 
problems that are going to happen 20 years, you know, what I 
meant to say was, we cannot keep another Congress from doing 
something else down the road. That was the point I was trying 
to make.
    And I appreciate the witnesses, and I look forward to 
further conversation.
    The Chairman. As I call on Senator Barbara Boxer, let me 
just make an observation, that if RUDs never have any 
consequence, then what the ranking member did in the Strategic 
Arms Limitation Treaty has no consequence whatsoever. I do not 
think he believes that.
    Senator Boxer.
    Senator Boxer. Thank you, Mr. Chairman. And thank you, 
Ranking Member Corker.
    What an important day this is. And I hope it will be viewed 
as a turning point. I really do.
    You know, we all have our passions on a variety of social 
issues, issues that divide us deeply--really deeply. But, this 
treaty is really only about one thing; it is about improving 
the lives of a billion people worldwide, people with 
disabilities, and 50 million of them who are living in America.
    Ratifying this treaty is about making sure that, when we--
and I think this is something Congresswoman Duckworth stated--
that when we, the United States, encourage a country to improve 
rights and protections, that country cannot say, ``Hey, you 
failed to ratify this disability treaty, so we are not going to 
listen to you.'' And, believe me, that is what is happening. It 
could help encourage countries like Ghana.
    Listen to what the Human Rights Watch said about Ghana in a 
report. Many disabled people live in unregulated camps. They 
are often chained to trees, concrete floors, for weeks or 
months on end. They are beaten, denied food, forced to endure 
involuntary treatment. This treaty is about helping to right 
this terrible wrong.
    And, of course, as far as our veterans are concerned, how 
could we turn away from our veterans? Our veterans are 
unbelievable. I have a Comprehensive Casualty Care Center, 
thanks to Senators Inouye and Stevens, who helped me get that, 
in San Diego. You just cannot keep our veterans down. We see it 
right here. You cannot. And they want to, yes, travel the 
world. They do. And we need to pass this treaty.
    But, let us talk about what this treaty is not about. It is 
not about any particular health care procedure. It is not about 
abortion. It is not about vasectomies. It is not about cancer 
screenings. It is not about dental exams or prostate exams. It 
is about making sure that people are treated equally on all 
fronts, including their need to get health care.
    I want to place in the record a wonderful op-ed piece 
written by Dr. Bill Frist. It came out today--if I might----
    The Chairman. Without objection.
    Senator Boxer. And I am going to ask Congresswoman 
Duckworth to comment on this.
    Here is the title, ``Why the U.S. Must Lead on Disabilities 
Treaty.'' In it, Dr. Frist discusses a part of the treaty that 
addresses protecting the most vulnerable from health-care-
related discrimination, including reproductive health care. He 
correctly points out that, I quote him, I want to be precise; 
this is him--``In many parts of the world, people with 
disabilities, regardless of age, are believed to be sexually 
immature or inactive. The assumption can make them targets for 
rape and other sexual crimes while, at the same time, 
gynecological and obstetrical care are withheld and considered 
inappropriate. In other cases, they're forcibly sterilized or 
they're forced to have abortions simply because they have a 
disability,''
    Dr. Frist concludes that the treaty's sexual and 
reproductive health language is a necessary provision to 
protect--to protect the disabled. He unequivocally states, 
``The treaty does not create any new services not previously 
available or legally sanctioned in an adopting country.''
    So, Representative Duckworth, do you agree with Dr. Frist, 
especially with this assessment that the treaty does not create 
any new services not previously available or legally sanctioned 
in any adopting country?
    Ms. Duckworth. Senator Boxer, yes, I do agree with that 
statement. And, in the case of abortion, the word is never even 
mentioned once in this treaty.
    Senator Boxer. Right.
    Ms. Duckworth. What this treaty will do is provide people 
overseas with disabilities with the rights--the same rights to 
access to health care that the rest of the population in that 
nation----
    Senator Boxer. Thank you.
    Ms. Duckworth [continuing]. Has access to.
    Senator Boxer. I wanted to make that case.
    Now, Dr. Farris, you say you are speaking for the disabled, 
but your statements are directly contradicted by organizations 
that work every day, 24/7, to protect disabled kids, like the 
United States International Council on Disabilities, who 
states, ``This treaty protects parental rights and highlights 
the important role of parents in raising children with 
disabilities.''
    And TASH--you know that organization--says, ``Nothing 
included in this treaty prevents parents from homeschooling. 
This treaty embraces the spirit of Individuals with 
Disabilities Education Act, Americans with Disabilities Act, 
and all disability nondiscrimination legislation.''
    But, you, Dr. Farris, argue the opposite. You once even 
said, and I quote, ``The definition of `disability' is not 
defined in the treaty, and so my kids--my kid wears glasses. 
Now they are disabled. Now the U.N. can get control of them.'' 
Well, the facts say, in my opinion, that is nonsense, if a 
child wears glasses they are considered disabled. So, I wonder 
what is behind your fight. And I just ask this question for the 
record. Have you ever tried to raise funds by telling parents 
this treaty will limit their ability to decide what is best for 
their children?
    Mr. Farris. Senator, our organization is funded by 
membership dues, not by contributions.
    Senator Boxer. So, you have never sent out an e-mail asking 
for funds to fight----
    Mr. Farris. No----
    Senator Boxer [continuing]. Against this treaty.
    Mr. Farris. Home School Legal Defense Association is 
associated also with a group called ParentalRights.org. 
ParentalRights.org has, indeed, sent out fundraising----
    Senator Boxer. Thank you very much. What----
    Mr. Farris [continuing]. But----
    Senator Boxer. Yes.
    Mr. Farris [continuing]. Senator----
    Senator Boxer. Yes.
    Mr. Farris [continuing]. The substantive answer is, the 
treaty does not ban homeschooling; what the treaty does is 
shifts the decisionmaking authority from parents to the 
government. That is what the meaning of the best-interest 
standard is.
    Senator Boxer. Well, that is not something that I agree 
with, nor do any of the organizations.
    Mr. Farris. Well----
    Senator Boxer. Thank you very much.
    The Chairman. Senator Johnson.
    Senator Johnson. Thank you, Mr. Chairman.
    Professor Meyer, are you familiar with the case being 
argued before the Supreme Court today, Bond v. The United 
States?
    Mr. Meyer. I am.
    Senator Johnson. Can you speak to how that is relevant to 
our discussion here today on this treaty?
    Mr. Meyer. Well, sure. To be very brief, Ms. Bond was 
convicted of violating the Chemical Weapons Implementation Act.
    Senator Johnson. It is in Federal court, correct?
    Mr. Meyer. In Federal court, correct. It is the Federal 
statute implementing the Chemical Weapons Convention. What is 
basically at issue is whether or not Congress had the authority 
to pass the Chemical Weapons Implementation Act. Under a case, 
dating back now 90-plus years, called Missouri v. Holland, the 
Supreme Court held that, in at least some circumstances, if the 
treaty power authorizes the Federal Government to make a treaty 
and the treaty is otherwise valid, Congress may have the 
authority to enact a statute that it would not otherwise have 
under any of its enumerated powers.
    Senator Johnson. The authority or the obligation--well, I 
am just going to read out of Article 4 General Obligations of 
the Treaty. It says, ``To this end, Article 4 requires State 
parties to adopt all appropriate measures to implement the 
rights in the Convention, modify legislation and practices that 
discriminate against persons with disabilities.''
    That seems like a rather strong obligation. What am I 
missing here?
    Mr. Meyer. Senator, it seems like a strong obligation. 
They--the--it says, ``The State parties undertake to ensure and 
promote the full realization of all human rights and 
fundamental freedoms.''
    Senator Johnson. So, to me, I am hearing, from supporters 
of the bill, that this does not obligate the United States to 
do anything. It sounds to me like it is a very strong 
obligation.
    Mr. Farris, do you want to comment on that?
    Mr. Farris. Yes, Senator. That is exactly the point. The 
United States is making a solemn promise in international law 
that we will comply with the treaty. And, despite whatever 
federalism reservations or other reservations, those simply 
have the effect of deciding which agency of government has the 
duty of implementing a treaty--the courts or the Congress or 
the States. But, the duty to implement the treaty is never 
extinguished. We have to implement the treaty, or else we are 
in violation of international law.
    Now, does that mean that somebody can actually invade this 
country militarily because we do not comply with a treaty? 
Enforcement of international law is problematic, in a general 
sense. So, can they force us to obey the treaty? No, not 
realistic; they cannot force us to. But, are we going to 
undertake a treaty, knowing that we are going to disobey it? 
That is not right. We ought to undertake a treaty obligation 
only if we intend to fully and fairly and completely obey it, 
in good faith. And what I am hearing today is, we are not going 
to do that, is what Professor Henkin said, that, when the 
United States pretends to ratify a treaty and actually 
undertakes nothing, it diminishes our standing in the world 
community.
    Senator Johnson. Now, Attorney General Thornburgh, I think 
we all kind of recognize that the United States is sort of the 
gold standard on disability rights.
    So, again, what I am trying to grapple with--if we are 
already the gold standard--I mean, I certainly understand why 
it is in our best interests to have other countries obligate 
themselves to meet our gold standard. I am just not quite 
getting why we should be ratifying a treaty that obligates us 
to do things that are still subject to interpretation. I mean, 
that is my concern. I think that is kind of the core concern of 
those that may not be supportive of the treaty currently. Can 
you explain that to me?
    Mr. Thornburgh. I think so. The basic gap, I think, in 
understanding is what the consequences of the RUDs are. The 
treaty that is adopted includes the reservations, 
understandings, and declarations that accompany it, so that, 
when we say we are not going to do something that we have 
specified we do not include within the ambit of the treaty, as 
amended by the RUDs, that does not mean that we are flouting 
the Convention, it means that we are implementing it with the 
RUDs in mind. And that is true, not only of what the United 
States does, but other countries----
    Senator Johnson. If we are the gold standard, what do we 
have to interpret and, you know, implement as a country? What 
do we have to implement?
    Mr. Thornburgh. Nothing new that we are obliged to do under 
this, because, frankly, it draws so completely and thoroughly 
on the Americans With Disabilities Act.
    Senator Johnson. So, again, what is the benefit--why does 
the United States have to do this? I mean, I understand, again, 
why other countries--it is very beneficial----
    Mr. Thornburgh. Yes.
    Senator Johnson [continuing]. To us and our members of 
the--you know, servicemembers, to have other countries ratify 
this and implement it. I am still not quite getting why we have 
to.
    Mr. Thornburgh. The United States is a world leader, 
Senator, in this area, and----
    Senator Johnson. And we passed Americans with Disabilities 
Act----
    Mr. Thornburgh [continuing]. We have to show that 
leadership. In order to preserve that status and maintain its 
credibility as the gold standard manufacturer, we simply have 
to share that insight that we have acquired, and urge the other 
nations of the world, within a structured framework, to follow 
that, in order to assure that those countries and their 
citizens, who we have heard described today in some detail 
suffer from the lack of this kind of statute----
    Senator Johnson. OK.
    Mr. Thornburgh [continuing]. Their right to bootstrap 
themselves into a gold-standard position----
    Senator Johnson. OK. Well, thank you.
    Thank you, Mr. Chairman.
    The Chairman. All right. And I think, Senator, you raise a 
question that many have raised, and I think it deserves a 
considered answer. Let me take a moment simply to say: While I 
and many others believe this treaty will not impose any new 
obligation on the United States, since we already have the 
highest standard in the world, our advocacy has virtue, because 
by signing on to the treaty and ratifying it, it puts us in the 
leadership roll to get the world to move in the direction so 
that Tammy Duckworth or Mark Kirk or anyone similar will be 
able to travel anywhere in the world and have the greater 
likelihood that their access--whether that is in a job, whether 
that is in business, whether that is for travel, whether it is 
for advocacy--will be able to be achieved, and that American 
businesses, who already lead the world in terms of 
accessibility standards, that those standards will be the 
standards that other countries will adopt so that, you know, 
Eric LeGrand, the football player from Rutgers who has this big 
wheelchair--a motorized wheelchair--will be able to travel to 
other places in the world and will likely be able to have 
access.
    And so, that is why ratification of the treaty expands our 
reach and our advocacy to ultimately get the world to raise 
standards, not simply by a reflection of looking at what the 
United States does, but its advocacy.
    I think it is a very good question that has been raised, 
and I think it deserves----
    Mr. Ridge. Mr. Chairman----
    The Chairman [continuing]. A thoughtful answer.
    Mr. Ridge. Mr. Chairman, could I offer a few----
    The Chairman. Let me--if I can, let me----
    Mr. Ridge. All right, very good.
    The Chairman [continuing]. Turn to Senator Cardin, and then 
we will get you to work it in, in one of your answers.
    Mr. Ridge. You bet.
    Senator Cardin. I will try to leave some time for you to 
respond----
    Mr. Ridge. Fine.
    Senator Cardin [continuing]. To that.
    Let me further answer Senator Johnson's point, following up 
with Chairman Menendez. Quoting from General Thornburgh's 
written statement, which I think is very appropriate here, in 
that, ``We should not be so proud as to think that we cannot 
learn from other countries about how to meet the challenges of 
providing even better opportunity for people with 
disabilities.'' I mean, this is a gathering. Does not mean we 
change our laws, but we learn how to do things better. And that 
is part of being part of an international community in an 
effort to help people with disabilities.
    I also wanted to acknowledge my former colleague, Tony 
Coelho, who is here. When I came to the House of 
Representatives he was a great help on this issue and so many 
other issues. And, Tony, it is good to see you.
    I also want to acknowledge Mrs. Rhonda Newhouse, who is in 
the audience, from Silver Spring, MD, attended University of 
Maryland School of Law, my alma mater. Rhonda is also a 
bilateral amputee and wears prosthetic legs. She has traveled 
to over 40 countries for work and study, and knows the barriers 
in study, work, and travel abroad for individuals with 
disabilities. It is nice to have you here.
    Mr. Chairman, and I guess to General Thornburgh or to 
Secretary Ridge--and I will give you the chance to respond to 
this.
    Mr. Ridge. No problem.
    Senator Cardin. We all acknowledge that the treaty is based 
upon, basically, the U.S. law, the ADA. We passed that in 1990. 
I remember, in 1991, Congressman Hoyer, who was then chairman 
of the U.S. Helsinki Commission, traveled to Moscow to become 
part of the Moscow Declaration document, which started the 
international effort to use the U.S. law as the model to 
protect the rights of people with disabilities. So, the United 
States has been a leader on this issue.
    The point that I would raise, the failure to ratify, I 
think, compromises the U.S. ability to advance these standards 
globally. I mean, it weakens our own credibility to participate 
in the development, internationally, of the rights of people 
with disabilities. And, as the chairman pointed out and others 
have pointed out, it also compromises American citizens who are 
in other countries if we have not ratified the treaty.
    Secretary Ridge, your comments, or generally.
    Mr. Ridge. Well, thank you very much, Senator.
    I just wanted to respond to, I thought, a very appropriate 
question from Senator Johnson, if I might.
    I think, regardless of where you are on the political 
spectrum, we all feel very fortunate and grateful that we live 
in the United States of America. It is a very unique place. And 
if America was considered to be a product--and we do try to 
sell our product overseas--what is our brand?
    And I think our brand is the Constitution, the rule of law, 
and our value system. And, under that brand and under that 
value system, there is that notion of ``equal under the eyes of 
the law.'' Under that brand and value system is the ADA and 
trying to elevate the rights of Americans with disabilities. 
And when we have an opportunity to advance America, the 
product, not through the military and not through diplomacy, 
but to be the convener around an issue that is humanitarian in 
nature and that is elevating the rights of people, globally, 
with disabilities, I think we enhance the brand, and we enhance 
the product by enhancing ourselves.
    So, we say to the rest of the world--you know, let us think 
about it from their point of view. We are asking the rest of 
the world to adopt American standard. We have found, from time 
to time, that is pretty difficult to do. But, with the 
ratification of 100-and-plus countries, we see that, at least 
on an issue, regardless of where they are, they like the brand, 
they like the value system, they want to embrace the notion of 
elevating the rights of people with disabilities.
    The gentleman behind me is--as I have mentioned before, is 
from the McCain Institute for International Leadership. He is a 
remarkable young man. He was disabled in 2003. Giorgi 
Akhmeteli. And he established an organization in the country of 
Georgia. And he is working on ratification over there. And he 
will be the first one to tell you, ``You know what the country 
of Georgia is going to look to? They are going to see whether 
or not--among other things, whether America ratifies the 
treaty.''
    So, I suggest that, regardless of where we are on the 
political aisle, all of us have an interest in promoting 
America; and, by doing so and promoting the brand and our value 
system, I think it has as much a lasting impact as anything 
else we can do diplomatically, and there's no better place to 
convene that discussion and lead that discussion globally than 
the United Nations.
    I think it is a very appropriate question, Senator Johnson, 
but I hope you embrace the notion that there is great value, 
globally, internationally. We do not sacrifice sovereignty, we 
do not change any American lives to advance our interest, and 
we advanced our brand, and we advance our value system.
    And I thank you, Senator, for giving me an opportunity to 
share those thoughts with you.
    The Chairman. Thank you.
    Senator Flake.
    Senator Flake. Thank you.
    If I could follow up with regard to the case the Supreme 
Court is currently hearing, the Bond v. U.S. Mr. Thornburgh, 
were you surprised when you heard that the Federal Government 
was actually suing in this--or, using a treaty or a convention 
in order to bring charges against an individual, a chemical 
weapons treaty? Were you surprised that this was used in this 
fashion?
    Mr. Thornburgh. Yes.
    Senator Flake. OK. If you are surprised by that, what can 
reassure us that you will not be surprised that this treaty is 
used for a similar purpose?
    Mr. Thornburgh. Because I think by that time the Supreme 
Court will have thrown out that decision, and the basis for it.
    Senator Flake. Well--but, the fact that it is even brought 
and it has survived one challenge----
    Mr. Thornburgh. Well----
    Senator Flake [continuing]. Gone up one level, as well.
    Mr. Thornburgh. Let me mention that, sad to say, the 
Department of Justice does not always act wisely and that there 
are occasions when mistakes are made in the pursuing of cases 
and controversies that really do not rise to the level where 
they are appropriate.
    There are examples, however, on the other side, as well, 
and that is where the Department has rightfully stretched the 
law to cover situations that clearly were not contemplated. Of 
course, I think of the Rodney King case, for example, where he 
was ultimately convicted under the Federal civil rights laws, 
when--what--or, the police officers were convicted, when what--
people knew what was going on. Here was a police brutality 
case, it was not a civil rights case. But, our laws maintained 
a degree of flexibility that we can use in particular 
situations, where the occasion arises.
    But, I do not anticipate that happening on a day-to-day 
basis under a treaty like the U.N. treaty. I mean, clearly we 
have to put some semblance of confidence in the judgment of our 
lawmakers and those who execute those laws. They are going to 
make mistakes. And I think the mistake in the chemical warfare 
case is a clear example.
    Senator Flake. Governor Ridge, were you surprised to hear 
the Bond case?
    Mr. Ridge. It was brought to my attention a few hours, and 
I, frankly, do not know enough to comment. I would say, 
however, that, based on the experience of an individual I 
respect enormously, and he is seated to my right, I would align 
myself with his response. I think we all know--I mean, we all 
know, from recent experience, that--and we have all questioned 
the judgment of the Department of Justice on several more 
recent occasions. And I do not think there could ever be any 
guarantee that there would not potentially be litigation. We 
live in a litigious society. Somebody out there may take it to 
court. That does not necessarily mean you are going to see the 
conclusion----
    Senator Flake. But, this is the Federal Government----
    Mr. Ridge. Yes.
    Senator Flake [continuing]. Suing and using this. And, I 
mean, I----
    Mr. Ridge. Well, but, I mean--but----
    Senator Flake [continuing]. Think that we should expect a 
little better judgment.
    Mr. Ridge. Well, we should, but, you know, we have a tough 
time legislating a lot of other things, let alone judgment. So, 
we will never be able to do that. [Laughter.]
    But, I think, if you make the perfect the enemy of the 
good, and you conclude that somehow some litigation will 
undermine this--I just have not drawn that conclusion from what 
I have read, but I cannot draw any analogy or comparison 
between the present case before the Supreme Court and this 
treaty.
    Senator Flake. Well, let me just tell you, it surprised the 
heck out of me that the Federal Government was suing----
    Mr. Ridge. Well, it surprised me, as well.
    Senator Flake [continuing]. And using this. It would also 
surprise me if it works its way through the Supreme Court and 
they agree with the Department of Justice here.
    Having said that, I think, when assurances are being made 
in this hearing and elsewhere by those that this would never be 
used as a basis to hold anybody in the United States to account 
for this treaty, then that rings pretty hollow today, when this 
case is being heard by the Supreme Court. I would think that it 
would behoove us at least to see, just as--Mr. Thornburgh, you 
say you are surprised that the case was brought. I think we 
would all be surprised if the Supreme Court ruled this way, as 
well, but it would behoove us, I think, to see how they rule 
before we go ahead with this. That is just the way I feel, 
here.
    And I have tended to discount some of the claims about this 
applying to U.S. law. I have had my own questions about whether 
it is worth it, simply because we are saying, on one hand, it 
matters a lot, and then, on the other hand, we are saying it 
really does not matter. And what is the use of a treaty if it 
is treated like that?
    But, here I think we are all surprised at the action of the 
Department of Justice here, and I think we ought to see how the 
Supreme Court rules before moving ahead.
    Thank you, Mr. Chairman.
    The Chairman. Just an observation. I understand the 
Senator's concern, and I appreciate it. The Justice Department 
has prosecuted cases on Federal statutes, not implementings of 
treaties, that went far afield of what the Federal Government 
intended. And it has nothing to do with a treaty. On the Honor 
Services Act, the Supreme Court turned provisions of what 
prosecutions were. So, you can never totally rely that, you 
know, Justice Department is made up a view that----
    Senator Flake. Well, but the Government----
    The Chairman [continuing]. Judgment will be affected at the 
end of the day. So, that is an example of a nontreaty piece of 
legislation that was used in an inappropriate way for 
prosecution as the Supreme Court determined. So, there is no 
absolute guarantee.
    And I would just say, since the Bond case has been raised 
several times, I think there is a bit of a differentiation here 
that should be considered. You know, Bond involves Congress' 
authority under both the Commerce Clause and the Treaty Power, 
along with the Necessary and Proper Clause. And the Treaty 
Power would not be relevant to U.S. implementation of the 
Disabilities Convention, because the ADA does not rely on the 
Treaty Power. In fact, it was passed before the Disabilities 
Convention had ever been negotiated. And the Commerce Clause 
analysis addressing the Chemical Weapons Convention 
Implementation Act is unlikely to be relevant to the ADA, a 
statute that has already been extensively litigated at the 
Supreme Court. So, I think there is--I understand the concern, 
but I think there are differentiations in this respect.
    Senator Flake. If the gentleman would yield for just a 
second.
    One, the Bond case has nothing to do with the Commerce 
Clause. It is under the treaty, here.
    But, second, I would just say that the certainty with which 
we are all saying this will not apply to us, here, is shaken a 
bit by the Bond case. And that is all I am saying.
    The Chairman. Yes. No, I appreciate that. And I am simply 
saying that, you know, as in that other case under the Honor 
Services Act, that has nothing to do with a treaty. The Supreme 
Court found that elements of how that was used to prosecute 
people was an overreach and unconstitutional. And yet, you 
cannot protect against that until you get to the Supreme Court, 
which is why we have a Supreme Court.
    And I do think that the Bond case has three elements to it. 
It has the Treaty Power, but it also has questions that arise 
under the Commerce Clause and the Necessary and Proper Clause. 
And so, in that respect, it is a little different.
    Senator Durbin.
    Senator Durbin. I want to continue this, because we have 
raised this issue as if it stops us cold. We cannot go forward 
on this Disability Convention until we work out this Bond case. 
And I would say to Professor Meyer, Mr. Thornburgh, I think 
there is a clear distinction here. The Bond case is not being 
raised under the treaty, the Convention, when it comes to 
chemical weapons. This case is being prosecuted under the 
Implementation Act, a separate act of Congress implementing the 
treaty. Two different things.
    So, when we come to the Disability Act, what is the 
Implementation Act under the Convention for Disabilities? There 
is none. The only Implementation Act is the Americans with 
Disabilities Act, which has been on the books for 20 years. 
Have we tested that over 20 years? Has it eliminated 
homeschooling, Mr. Farris? I do not think so. Has it mandated 
abortion across America, Dr. Yoshihara? No, it has not.
    The Americans with Disabilities Act is the implementing act 
that we have adopted ahead of the Treaty on Disabilities. The 
Bond case is dealing with the Implementation Act on the 
Convention Weapons Treaties, two separate actions by Congress: 
one, ratifying the Convention on Chemical Weapons; two, passing 
a law called the Implementation Act, the law of the land. And 
now the Supreme Court will decide if that law is proper.
    So, conflating these two and saying, ``Oh, it's all about 
the same thing''--one of our scholarly colleagues, the junior 
Senator from Texas, said, in a piece in the Washington Post, 
``If the Supreme Court concludes that a treaty can be used to 
prosecute Americans, regardless of their constitutional rights, 
the ramifications could be alarming.'' And then he goes on with 
all sorts of opportunities.
    The prosecution is not under a treaty. The prosecution is 
under the Implementation Act. It is different. It's a law of 
Congress.
    And I am just stopped cold, here, with this argument by Mr. 
Farris that the Americans with Disabilities Act is going to put 
an end to homeschooling in America. Is that your position?
    Mr. Farris. No, Senator, that is not my position. My 
position is that the treaty changes the legal requirements in 
this country, that it is just not correct to say that there is 
no duty to change American law in accordance with the treaty. 
So, since I believe there will be required to be an 
Implementation Act that complies with the requirements of the 
treaty, I think, at that point in time, that's when the 
problems will arise.
    Senator Durbin. So, Mr. Farris----
    Mr. Farris. Not under the ADA itself. The ADA----
    Senator Durbin. Mr. Farris, the fact that the 
administration is not asking for an Implementation Act and made 
it clear that it is not seeking it, because the Americans with 
Disability Act already is controlling and has been extensively 
litigated, sets disability standards in our country which are 
higher than any in the world. You do not find that convincing?
    Mr. Farris. That is the same administration that is 
prosecuting a homeschooling family to try to expel them from 
the United States, who came here----
    Senator Durbin. Under the ADA?
    Mr. Farris [continuing]. Seeking political asylum----
    Senator Durbin. Under the Americans with Disabilities Act?
    Mr. Farris. No, they came here under our law of asylum.
    Senator Durbin. Yes.
    Mr. Farris. But, the question, in the case that is 
pending--that case is also pending before the Supreme Court.
    Senator Durbin. Well----
    Mr. Farris. But, in that--it is for a circuit to----
    Senator Durbin [continuing]. Let me just say, Mr. Farris, I 
do not know what----
    Mr. Farris. Well, I guess you do not want me to answer the 
question----
    Senator Durbin. Well, I do not think you can answer it, 
because you want to talk about something other than the 
Americans with Disabilities Act or the Convention on 
Disabilities, and that is what we are here to discuss.
    Mr. Farris. Well, the Convention with Disabilities has a 
different legal standard than the ADA. There are----
    Senator Durbin. I can tell you----
    Mr. Farris [continuing]. There are numerous disability 
organizations that say, so I include their citations in my 
written testimony.
    Senator Durbin. If we are going to use----
    Mr. Farris. I am not the only one who says that. The CRPD 
Committee agrees with me----
    Senator Durbin. And I would just say to you, Mr. Farris, 
that if we are going to have a battle of the organizations 
supporting and not supporting this, I think we are going to 
prevail, because we have the mainstream disability 
organizations across America who are supporting the adoption of 
this Convention on Disabilities. And I struggle with the notion 
that we are somehow going to stop this effort--this effort to 
extend the rights to the disabled around the world, for fear of 
something which you cannot even clearly articulate when it 
comes to homeschooling.
    As Mr. Ridge says--I do not know whether to call him 
Congressman or Secretary, but we have been friends in both 
capacity--what he has said, he supports homeschooling. I do, 
too. This is not going to affect homeschooling. It is very 
clear that it will not. And the Americans with Disabilities 
Act, for 20 years, has not affected homeschooling.
    I yield back my time.
    The Chairman. Senator McCain, I want to extend my 
appreciation for his advocacy from the last effort and, in this 
effort, has been an invaluable voice in this regard.
    Senator McCain.
    Senator McCain. Well, thank you, Mr. Chairman.
    And I thank all the witnesses. And I especially thank Dick 
Thornburgh and Tom Ridge. I think you prefer ``Governor'' to 
those others, don't you? [Laughter.]
    I want to thank you. And I remember, with great nostalgia, 
the day that the then-President of the United States, Herbert 
Walker Bush, signed the Americans with Disabilities Act on the 
lawn in the White House, and so many of our friends from the 
disabilities community were there to celebrate what has been--I 
don't know anyone who does not believe that the passage of that 
act was not an unqualified success. It gave opportunities for 
some of our disabled community to get ahead in our society, and 
have rights which they previously had been deprived of.
    Mr. Meyer, you have made some very important, constructive 
recommendations, in my view, in this legislation--in your 
statement. And I would just like to ask you a couple of 
additional questions.
    On the issue of abortion, the Resolution of Advise and 
Consent, that this committee passed last year, that contained 
the following understanding on how this treaty relates to U.S. 
law concerning abortion, ``Nothing in the Convention--in this--
in the Convention, including Article 25, addresses the 
provision of any particular health program or procedure.'' Now, 
do you think that that is sufficient to address the concerns 
raised about what effect that this treaty might have on the 
U.S. laws and policies regarding abortion? And, if not, how 
would you recommend that we improve that provision that we 
adopted last year?
    Mr. Meyer. Well, Senator, of course, as I believe it was 
Secretary Ridge mentioned, we live in a litigious country, and 
so, one can't guarantee that there will never be a lawsuit 
asserting that the Convention creates certain abortion rights. 
Nor can one guarantee that the Committee on Disabilities will 
not take such a position.
    Senator McCain. But, do you have suggested language that 
could strengthen that to lessen that likelihood?
    Mr. Meyer. Yes. So, with respect to the role of the 
committee, I think the language that is referenced in my 
written testimony, or similar language, that makes clear that 
the committee's interpretations of the Convention are not 
entitled to any weight whatsoever, would--or any deference 
from, for example, U.S. courts--could go a long way toward 
assuring that Federal courts are not going to be prone to 
following interpretations that the committee might adopt that, 
for example, a Congress would find objectionable.
    Also, the language you referenced--the Convention, in 
general--and the RUDs make this clear--is a nondiscrimination 
Convention, to a very large extent. Therefore, it does not 
reference the particular--the language you read does not 
reference the particular--any particular procedure; it just 
simply states that there shall be no discrimination.
    Senator McCain. Well, I would appreciate it--the specific 
language--if you would submit to us, to lessen--obviously, 
abortion is a huge aspect of this issue with many Americans, 
and may affect the judgment of some members of this committee. 
So, I want to close that as tightly as we can, recognizing that 
there may always be some challenges. But, it--so, I think you 
see my point.
    Mr. Meyer. I do, Senator. I would be happy to read to you 
the language on the understanding that I think might help 
address the role of the committee.
    One might, for example, include language that states that, 
``The United States understands that the committee's 
interpretations of the Convention are not entitled to any 
weight, apart from that given to them by states' parties to the 
Convention.''
    One could imagine modifying that to specifically reference 
Federal courts. Or one could imagine modifying that language to 
specifically reference that the United States understands that 
there should be no weight given within U.S. courts unless the 
United States has adopted an interpretation consistent with its 
domestic procedures regarding the creation of international 
obligations.
    Senator McCain. Mr. Chairman, I hope that maybe we could 
look at that language, as we move forward. And we need to 
assure the pro-life community, obviously, that this would not 
have any effect on present U.S. policy.
    Mr. Meyer, have you seen any serious restriction or 
violation of the rights of parents regarding the education of 
their children as a result of the treaties that we have 
ratified, as you know-- 
the Convention on the Rights of the Child, Children in Armed 
Conflict, Optional Protocol on Children in--I guess, in Armed 
Conflict? Have you seen any serious restriction or violation of 
the rights of parents regarding the education of their children 
as a result of these previously Senate-ratified treaties?
    Mr. Meyer. I am not aware of any.
    Senator McCain. Would you agree that the Senate can ratify 
the CRPD in a way that protects the prerogatives of parents and 
reaffirm the primacy of U.S. law, just as we have in these 
other instances?
    Mr. Meyer. Yes. I think it is possible that there is a 
package of RUDs that would satisfy these concerns.
    Senator McCain. And right now do you see sufficient RUDs, 
or should we have additional language?
    Mr. Meyer. I think some of the additional language with 
respect to the role of the committee would be helpful in 
addressing some of these concerns, going forward. I think, 
also, as I mentioned to Senator Corker, one could imagine, on 
the federalism point, potentially a stronger reservation to 
deal with the federalism issue. But, I think that these RUDs 
are available. I think these RUDs can be drafted.
    Senator McCain. I would just like to--well, I am out of 
time, Mr. Chairman.
    Thank you.
    The Chairman. Thank you.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chair.
    And, to the witnesses, good testimony. And the questions 
have been helpful.
    One of the reasons that I love being assigned to this 
committee as a new Senator is, the mission statement is pretty 
simple. American leadership in the world is really the mission 
statement of this committee. And that is a combination of 
economic, military, diplomatic, and moral leadership. And many 
of the witnesses have spoken to this.
    We have, as a country, shown great moral leadership on the 
issue of rights of folks with disabilities. I was just--off the 
top of my head and with my handy research tool, there, during 
testimony--the Rehabilitation Act, 1973; the Education for All 
Handicapped Children Act, 1975; Individuals With Disability 
Education Act, 1990; Americans with Disability Act, 1990. There 
are others, as well. Those are the four that I thought of, off 
the top of my head. These are significant, and they really do 
set a gold standard for the world.
    But, I think it is appropriate for us to make it part of 
our brand, Governor Ridge, and brag about it in the way you 
mentioned. And I think entering into this treaty will be good 
for our citizens with disabilities, it will be good for 
citizens around the world with disabilities.
    But, I also--just to my colleagues really, this point is 
addressed--I think it will be good for this body--this body, 
the Senate, and our committee--because this is one of those 
issues where I think the Venn diagram overlapping between the 
various partisan positions is near complete.
    I could not help but note, as I was looking at the dates of 
the passage of all four of those seminal statutes with respect 
to disability rights, they were all passed and signed by 
Republican Presidents: 1973, President Nixon; 1975, President 
Ford; the IDA and ADA, President Bush 41. This is an issue 
where it is not what you normally see up here, where Democrats 
want to do something, and Republicans do not; or Republicans 
want to do something, and Democrats do not. This has 
traditionally been about as bipartisan issue as you find in, 
kind of, modern public policy in American life, and I think we 
ought not to sacrifice that.
    I think Senator McCain's questions and some of--both 
Professor Meyer and Attorney General Thornburgh's testimony 
about the--and Ranking Member Corker's questions--about the 
drafting of the RUDs and trying to make sure that we can solve 
some of the internal concerns that are fairly raised through 
that process, we should not--we should really diligently make 
an effort to do that, because this has been such a good example 
of an issue on which we have been together and we have 
exercised leadership in the right way that I do not think we 
should sacrifice an opportunity to continue to lead in this 
particular area.
    And so, again, to the members who have testified today, I 
appreciate it.
    Mr. Chair, I will yield back my time.
    The Chairman. Thank you.
    Senator Barrasso, who has also been a strong supporter of 
the ratification of the Convention.
    Senator Barrasso. Thank you very much, Mr. Chairman. I want 
to congratulate you, as well as Senator McCain, for what I 
thought was an excellent op-ed in USA Today this Monday, 
``Menendez and McCain Ratify Disabilities Treaty.'' So, I 
appreciate your efforts.
    And I just wanted to thank all of you for being here today 
to discuss this important issue.
    As a physician who has practiced medicine for over 25 
years, I have seen firsthand the challenges facing people with 
disabilities. Every individual, regardless of the obstacles in 
their lives, should have an opportunity to work, to live, and 
to fully take part in our society. The United States has been 
the leader in working to end discrimination and to break down 
barriers that prevent the full participation----
    The Chairman. Senator----
    Senator Barrasso [continuing]. Of all members of our----
    The Chairman. Senator----
    Senator Barrasso. Yes, Mr.--go right ahead----
    The Chairman. I want to thank Secretary Ridge for joining 
us. We had acknowledged and agreed that he had a plane to 
catch.
    So, thank you very much. There may be questions in the 
record that follow up, and we would ask you to consider 
answering them.
    Senator Barrasso, I am sorry. We will----
    Senator Barrasso. Thank you, Mr. Chairman.
    The Chairman [continuing]. Restore the time.
    Senator Barrasso. Mr. Chairman, as we know and discussed, 
over 20 years ago, Congress passed the Americans with 
Disabilities Act. This Convention is based on the same 
principles as the Americans with Disabilities Act. The general 
principles include nondiscrimination, equal opportunity, 
independence, accessibility, human dignity, and full and 
effective participation and inclusion in society.
    The people of this great Nation believe in these ideals and 
principles. It is time for our Nation to stand up and show our 
commitment to these principles in the international community.
    I believe the Convention offers the United States a forum 
to utilize our wealth of knowledge and practical experiences to 
influence other nations in recognizing the rights of people 
with disabilities. Our Nation has the opportunity to help 
countries transition from the isolation and segregation of 
persons with disabilities to removing obstacles, to opening 
barriers, which ends up helping our citizens, in the process. 
Ratification also demonstrates our Nation's ongoing commitment 
to equality and opportunity for individuals with disabilities.
    This Convention is supported by more than 760 disability 
groups, 20 veterans service organizations, including the 
American Legion, the Veterans of Foreign Wars, Wounded Warriors 
Project, members of the business community, including the U.S. 
Chamber of Commerce. And a former Secretary of State, Colin 
Power, supports the Convention.
    And, Chairman Menendez, I have an additional--a letter from 
General Colin Powell. And, rather than read the whole thing, I 
asked unanimous consent to have this included in the record.
    The Chairman. Without objection.
    Senator Barrasso. Thank you.
    Senator Barrasso. Just for a couple of quick questions.
    Attorney General Thornburgh, there has been some 
misinformation, I believe, that has been circulated regarding 
the impact of this Convention on children. Does the Convention 
take away parents' rights? Does it allow courts to interfere 
with parents' decisions regarding their children? And in 
Article 6, specifically, does that provision require a national 
registry of children born with disabilities?
    Mr. Thornburgh. The registry that is anticipated by the 
treaty is very similar to the laws we have in this country, 
which require that birth certificates and death certificates be 
taken note of and enrolled.
    Interestingly enough, many countries around the world have 
lacking today that kind of procedure. And it poses a real 
threat, in many of the worst situations around the world, of 
improper abortion techniques or infanticide, even, so that--I 
view this as a very signal advance, not for the United States, 
because I think, at both the Federal and State--local level, we 
have those requirements. But, when you read in the headlines 
about the kinds of things that are going in lesser developed 
countries or dictators flout the law, if such there be, this, I 
think, is a very positive part of the treaty requirements that 
we could support easily.
    Senator Barrasso. Thank you.
    Professor Meyer, in your testimony, it said, ``Having the 
opportunity to nominate an American to serve on the committee 
and to appear before the committee is an effective way to 
ensure that the committee does not become a vehicle for 
creating, you know, customary international legal obligations 
that are contrary to U.S. interests.'' Could you further 
explain why you think it is in the U.S. interests to have an 
American serving on the committee created by this Convention?
    Mr. Meyer. Sure. So, as I suggested in my opening 
statement, one of the ways in which the committee can have a 
legal effect, even though its recommendations are nonbinding, 
is through the creation of customary international law. The 
committee clearly does not have the power to create customary 
international law, but its recommendations, if other states 
react and adopt its interpretations and recommendations, that 
could be the basis for a claim that there is customary 
international law.
    Therefore, the opportunity for the United States to appear 
and to object to the interpretations of the committee that 
might be thought to give rise to customary international law 
obligations potentially could defeat the formation of customary 
international law that the United States would view as 
unacceptable. And there are examples of this occurring in the 
context of, for example, the Human Rights Committee, where the 
Human Rights Committee has, at times, taken positions that 
certain rules are customary international law, and the State 
Department has been able to take the position that they are 
not.
    Now, not ratifying the Convention does not remove the 
ability to object to the formation of rules of customary 
international law, either. And, likewise, there is some--with 
respect to U.S. courts not ratifying, it reduces the likelihood 
that a U.S. court would find there to be a rule of customary 
international law.
    But, the answer to your question is that the ability to 
have an American--to nominate an American to serve on the 
committee, and the ability to actually engage in colloquies 
with the committee, likely affects the committee's work and may 
serve to actually ensure that its interpretations that are 
adopted are consistent with U.S. interpretation.
    Senator Barrasso. Thank you, Professor Meyer.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    Senator Markey.
    Senator Markey. Thank you very much, Mr. Chairman.
    It is great to have Tammy Duckworth here, an American hero. 
And she is in a wheelchair. And in 1990, we passed the ADA, and 
it made sure that there were on-ramps for those wheelchairs 
everywhere in our country. And it would be great if she could 
go anywhere in the world, as well, and know that we were moving 
inextricably in that same direction.
    Back in--and we thank you so much for your service--back in 
1990, when we did the ADA, I was the chairman of the 
Telecommunications Committee, so closed-captioning for TV sets, 
or ensuring that a phone system is available for a deaf and 
blind person, as well. And the 1996 Telecom Act extended that, 
as well. But then, in 2010, I authored, with Cliff Stearns, a 
very conservative Republican in the House side, and Mark Pryor, 
over here on the Senate side with very conservative 
Republicans, were able to pass a law that said that every one 
of these wireless devices had to have an on-ramp for the deaf 
and the blind. And we had to negotiate with the Consumer 
Electronics Association, this massive organization of thousands 
of companies, because they had to sign off on it. And now the 
deaf and blind can use these devices, no matter where they are. 
OK?
    Now, would it not be a good thing if that was true for the 
whole world, that all deaf, all blind had the capacity? But, I 
would like, Attorney General Thornburgh, to come back to you 
and just ask this question. What does it mean for the Consumer 
Electronic Association of the United States to have a market 
open up around the planet for all these devices that would be 
available to hundreds of millions of deaf and blind who would 
be empowered to become part of their economies?
    Mr. Thornburgh. To ask the question is to answer it. 
[Laughter.]
    Senator Markey. But, not in Congress. [Laughter.]
    So, you--actually, the words have to----
    Mr. Thornburgh. That is not my problem. [Laughter.]
    Senator Markey [continuing]. The words have to be spoken. I 
understand what you are saying. You believe it is a self-
evident truth. But, we are having this hearing because----
    Mr. Thornburgh. No, I did not mean to be facetious.
    Senator Markey [continuing]. I--know----
    Mr. Thornburgh. It obviously would open up markets that are 
unavailable now, either because of the ethos of the governing 
process in the country in question or lack of resources or what 
have you. But, once you have got a rolling consensus built 
about the desirability and feasibility of doing these things, 
you can see remarkable advances take place around the world, 
which is in the business we ought to be in.
    Senator Markey. So, the Consumer Electronics Association 
has written a letter of support for the disability treaty, 
stating, ``The U.S. ratification of the treaty would encourage 
greater demand for U.S. companies' skills and services as 
fellow nations begin to adhere to the new international 
standards.'' So, there should be no doubt, in other words, that 
this is a great economic benefit for American companies, as 
well.
    Now, of course, we want to help all of those who are deaf 
and blind. That is the point of my law, you know, to make that 
possible. But, as part of the bargain, we have the lead because 
we passed the law first, and pretty soon there is going to be 
just about every citizen on the planet that has one of these 
devices. And would it not be great if we were ensuring that 
they were accessible to the deaf and blind, as well, because 
those devices that are made in the United States already have 
to comply with that law. And I think that would be something 
that we would think would actually be in our best interest.
    Now, there are several countries, including China, 
Australia, and Argentina, who have already submitted reports to 
the Disabilities Committee. And I understand the Chinese 
admitted that they have a long way to go to protect the rights 
and interests of persons with disabilities.
    Now, if the Chinese got serious about ensuring access for 
disabled persons, that would open up a huge market for the 
United States, would it not?
    Mr. Thornburgh. Indeed.
    Senator Markey. And, given that the Convention will open 
all of those markets, not just in China, but around the world, 
would you not agree that a vote for ratification is a vote to 
support American businesses and to create jobs here in the 
United States?
    Mr. Thornburgh. I think that is perhaps why the Chamber of 
Commerce supports the treaty ratification so----
    Senator Markey. And right now, no one from the United 
States is sitting on the Disabilities Committee. If we had a 
delegate on that committee, do you think that would help U.S. 
businesses to expand their markets overseas?
    Mr. Thornburgh. Yes.
    Senator Markey. And would it not help in creating, then, 
the rules and regulations that, you know, would be used in 
order to expand in other countries?
    Mr. Thornburgh. One would expect that.
    Senator Markey. Congresswoman Duckworth.
    Ms. Duckworth. Well, I think that the extent of opportunity 
for U.S. firms is really underestimated right now. The 
adaptive-device industry is a tremendously large one, and one 
that we certainly dominate the world. We are not talking about 
just the phones, but wheelchair-accessible buses, grab bars for 
showers, homeschooling supplies for parents who want to teach 
their kids at home. The range is tremendous. And if we do not 
do this, and American companies do not gain the credibility as 
being the world's leader, we open the door for other nations 
who are competing with us in these fields--places like Germany 
and Iceland, where they do have industries and companies that 
provide adaptive devices, as well--we will lose the market 
share, and we will lose our role as a leader in the world in 
producing these devices.
    Senator Markey. Yes. So, Annie Sullivan helped Helen 
Keller, deaf and blind, to--using her palm to teach her. But, 
now we have moved from the palm to the Palm Pilot and on to the 
iPhone and the iPad and beyond. And so, that is the way you 
have to empower people in the modern era. Without that, they 
are not empowered.
    And so, we are doing something good across the whole 
planet, as well. We are making sure that we give people the 
ability to maximize their God-given abilities. And, without 
these kinds of devices in a modern world, you are not 
empowered, you do not have the capacity to be able to 
communicate, to be able to work. And so, this is now the 
essential ingredient of citizenship on the planet, if you want 
to be a productive person, and it makes it possible, for the 
first time in history, for every deaf and blind person to be 
able to fully participate in the economy of their country. And 
I think it would be wrong to do that, on a moral basis, but it 
would also be wrong to deny our own companies the ability to 
make these products and to create jobs here in America. So, you 
can do good and do well at the same time by supporting this 
treaty.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Markey.
    I just have some final questions. Mr. Farris, you described 
the Disabilities Treaty as the ideal, ``wedge issue for future 
political campaigns.'' Is it because the treaty is such a good 
divisive political issue for you that you have made some of the 
claims about the treaty that you have made? Is it why you 
stated that the treaty proponents have sort of a Soviet agenda 
and your organization has made some--what many of us are 
saying--are pretty outrageous claims that the U.N. will 
determine how many parking spots are at American churches?
    Mr. Farris. Senator, the wedge-issue comment was--I believe 
that this treaty would be the first in a line of human rights 
treaties that would be coming before this committee. The 
committee--the Convention on the Rights of the Child--Senator 
McCain misspoke, I am sure, earlier--we have not ratified that 
treaty. And so, I think that will be coming next. The 
Convention on the Elimination of all Forms of Discrimination 
Against Women, that would be coming, after that. I think that 
this treaty is the first of many treaties that would be in this 
range. That is what was intended by that comment.
    On the parking-space comment, I coach moot court, and you 
have hypothetical questions in moot court, and you tend to 
argue that way in a lot of venues. That is what I was doing 
there.
    When there is no definition of ``disability'' and you give 
this organization the ability to define ``disability,'' 
anything is possible. I was trying to make an extreme case to 
show that anything is possible.
    The Chairman. I agree with you that you were trying to make 
an extreme case.
    And, by the way, on the wedge issue, you were not talking 
about a whole host of other potential treaties, you were 
talking about this treaty. The source is ``The Story of 
Washington Gridlock,'' in the Boston Globe by author Michael 
Kranish.
    And on the question of the parking-lot reference, which you 
yourself say is an extreme example, your organization, or an 
organization you are affiliated with, ParentalRights.org, has a 
document detailing the 15 issues your organization has with the 
treaty. Reason number two--pretty much at the top--states that 
the number of handicapped spaces required for parking at your 
business, private school, or house of worship will be 
established by the U.N., not your local government.
    And I would like to submit that article for the record, 
without objection.
    So, you know, that is why--you know, I can understand and 
respect your view, although I disagree with it. But, when a 
statement like that is made, I think it undermines the 
credibility of those arguing how far this treaty could be 
taken.
    Let me ask you something else. In Article 7(2) of the 
Disability Treaty, it states that, ``In all actions concerning 
children with disabilities, the best interests of the child 
shall be a primary consideration.'' That seems like an 
incredibly noncontroversial statement to me. So, can you--I 
have read your testimony, and I have read the testimony of last 
year, as well--can you tell me one example where the best 
interests of the child with disabilities should not be a 
primary consideration?
    Mr. Farris. Yes. Because the term ``the best-interest-of-
the-child standard'' is a legal term of art, and it means that 
the government gets to substitute its judgment for that of the 
parent. And so, anytime----
    The Chairman. You believe--that is your interpretation. It 
is not the definitive interpretation.
    Mr. Farris. Well, it--that is the--I quoted Professor 
Geraldine Van Bueren, who is the leading expert on 
international rights of the child----
    The Chairman. But, let us look----
    Mr. Farris [continuing]. In the world.
    The Chairman [continuing]. Let us look at what the 
Convention says. The text says nothing about the state stepping 
into the shoes of the parents. In fact, Article 23 describes in 
detail protecting parental rights and the rights of the 
extended family to care for and to make decisions for children 
with disability. So, I am dumfounded how you can make a 
noncontroversial statement and twist it into something that is 
rather sinister.
    Mr. Farris. Senator, the treaty--the ICCPR protects, 
directly, the right of parents to direct the upbringing and 
education of their children. That language is missing in this 
treaty. If that language was in this treaty, we would be in a 
different position. But, that language is missing. That is the 
historical practice. There is no direct statement about 
parents' rights in education in this treaty.
    And the best-interest standard is a legal term of art that 
has been used by the German high court to take parents' 
children away from them if they homeschool their children.
    The Chairman. Well, this is not the German high court. This 
is----
    Mr. Farris. But, it is the meaning of the----
    The Chairman [continuing]. This is the United States of 
America, and the only high court I care about is the Supreme 
Court of the United States.
    Let me ask you, finally, this. You quoted Professor Henkin 
as a buttress for your arguments, your legal arguments. And I 
appreciate that you have an LLM from London, which, as I 
understand, from a distance learning course----
    [Laughter.]
    The Chairman [continuing]. As a matter of--there are no 
comments permitted before the committee of either approval or 
disapproval.
    But, as a matter of law, the courts have no authority to 
ignore reservations, understandings, and declarations. As a 
matter of fact, some of the most conservative lawyers--
Professors Curtis Bradley and Jack Goldsmith--concluded that, 
``In sum, since the early days of the Nation, the President and 
Senate have attached a variety of conditions to their consent 
to treaties. No court has ever invalidated these conditions.''
    And finally, when you quote Professor Henkin, you know, you 
seem to somehow suggest that he would not have supported 
ratifying this treaty.
    Mr. Farris. No, I think he would support ratification. I 
think that there----
    The Chairman. Well, I am glad we agree on that.
    Mr. Farris [continuing]. A number of internationalists 
would support it. They think it is good that we submit the 
United States to the supervision of the international 
community. I do not. But, we at least agree on the operation of 
international law.
    I do not disagree one whit with Professor Henkin on how he 
sees international law in operation. What we disagree about: Is 
this good, or is this bad? I think American---
    The Chairman. Well----
    Mr. Farris [continuing]. Self-government is the part of our 
brand that we should be exporting----
    The Chairman. And I agree with that. And that is why the--
you know, you argue that the treaty creates obligations others 
do not see, and then you suggest that the United States must 
follow your interpretations in terms of ratifying the treaty.
    And I think that where we have a fundamental disagreement 
here is that, under the Constitution, the President and the 
Senate determine our obligations under international treaties, 
and therefore the reservations, understandings, and 
declarations of the Resolution of Advise and Consent are 
binding.
    I am going to ask unanimous consent to include a legal memo 
prepared by Patton Boggs on this issue, to set the record 
straight on the power and the efficacy of RUDs.
    You know, I will just close on Professor Henkin. He would 
have recognized that, just because the United States law is 
adequate to comply with the treaty is not a good reason not to 
ratify it. He would have supported the treaty, in my view, 
because it advances human rights and makes us full participants 
in the treaty. And the fact is that the Human Rights Institute, 
which he founded, and the Human Rights First organization, on 
which he served on its board of directors, both support the 
treaty. So, we just have a fundamental disagreement about what, 
in fact, will be our obligations and what will be the reach of 
the treaty.
    I believe that homeschoolers will be absolutely fine, and I 
know that, you know, there is money raised on this issue, but 
that is--and, you know, maybe it is a wedge issue, but it is 
not going to affect homeschoolers, because I think there is 
very broad support for homeschoolers here on this committee.
    Senator Coons.
    Senator Coons. Thank you, Chairman Menendez and Ranking 
Member Corker. Thank you, Chairman, for convening this hearing 
to consider the Convention on the Rights of Persons with 
Disabilities, the CRPD.
    Bipartisanship has historically been the hallmark of 
American leadership protecting the rights of persons, and, in 
particular, the rights of persons with disabilities. And I was 
proud to have the opportunity to work with you and with 
others--Senator McCain, Senator Durbin, Udall, Barrasso, 
Harkin, many others--in highlighting our united supported for 
this issue in the last Congress. Ratification of the CRPD, in 
my view, will serve to solidify the American commitment to 
equal opportunity for disabled persons through increased 
access, mobility, and protection of our disabled Americans 
abroad, especially our wounded veterans.
    Promoting the rights of disabled persons has historically 
garnered the support of a very broad range of Americans, and I 
remain hopeful the Senate can come together to protect dignity 
and human rights for all by ratifying the CRPD in this 
Congress.
    Last year, we missed a great opportunity to ratify this 
treaty. It is my hope, shared by many of my constituents and 
Americans throughout the country, as, I think, evidenced here 
today, that we do not make that same mistake again. We cannot 
afford to miss the opportunity--and I encourage my colleagues 
to participate actively in the hearings and to join those of us 
who might vote again to ratify it.
    If I might first--Congresswoman Duckworth--first, thank you 
for your service and for your remarkable and inspiring story of 
perseverance and of engagement and of continued service to our 
country. I am glad to be able to be here for your testimony 
earlier.
    In your view, how has America's failure to ratify this 
treaty actually impacted our leadership on disability issues 
globally?
    Ms. Duckworth. Thank you, Senator. Well, I felt it, myself, 
when I traveled to Asia earlier this year, where I went to talk 
to disability rights groups and talked about what we have done 
in the United States. One of the first questions asked on the 
rank-and-file folks in the room was, ``But, America didn't vote 
to ratify the Convention.'' And sitting in that room as a 
representative of the United States, I had nothing to say, 
except that, ``Well, we're going to work on it and we're going 
to try to ratify it soon. This is how our democracy works.''
    But, I felt it firsthand, because I was in a room full of 
people who looked to me to talk about ADA and all the benefits 
and how it allowed me to recover from my injuries and live this 
life that I live and then to be able to serve my Nation. But, I 
could not do that with authority, because the very--you know, 
one of the first questions I got asked, ``Well, are you guys 
going to ratify it?'' I had egg on my face.
    And if we are going to lead the world, you know, it is--on 
ADA--it is in so many area. Americans dominate the worlds of 
athletics, and, you know, we have the Olympics coming up. Our 
athletes, our Paralympians, are--have now a new infusion of 
veterans--disabled wounded warriors who are now Paralympians, 
and, because of them, we are really elevating the sports around 
the world. Anywhere there's a Paralympics, they must make the 
venues wheelchair and ADA accessible. And so, because of the 
participation of our veteran Paralympians in Beijing, I will 
now someday be able to go and see the Great Wall of China, 
which was never accessible before.
    The way we can touch the world is endless with this, but we 
go into this with a lack of credibility. We have not ratified 
this treaty. We should be at the head of the table, and we are 
not.
    Senator Coons. Mr. Attorney General, thank you for your 
active work in supporting this. What have been some of the 
positive results of the CRPD in those countries that have 
ratified, so far? And has it made notable progress in promoting 
accessibility and equality and establishing disability 
standards? The Congresswoman just spoke to one concrete 
example, but, more broadly, in the many other countries that 
have already ratified, what difference has it made?
    Mr. Thornburgh. It is probably difficult to quantify, at 
this early stage, precisely what differences have been made, 
but you have heard, today, from any number of people, anecdotal 
evidence of the change and the prospects for change that 
clearly will flow from our leadership role on this.
    But, I think a good project for this committee, if I may be 
so bold, would be to catalog the answers to the very question 
that you raised. I do not have any particular insight into 
this, but I think you have able staff who could perhaps put 
together a compilation from around the world of the kinds of 
positive changes. And I would say, with no compunction, that 
that will show a mighty impressive record.
    It is early in the game yet, I think, before--if you use 
that as a basis for judgment, but I would be greatly surprised 
if there were not some marvelous stories that are available to 
share with the public.
    Senator Coons. A last question, if I might, Mr. Chairman.
    Well, Mr. Attorney General and, if I might also, Professor 
Meyer, it was just, in the last exchange, advanced by Mr. 
Farris that, were we to ratify this treaty, we would be 
submitting the United States to the supervision of the 
international community. Does that strike you as an accurate 
characterization of the impact on America and American 
sovereignty, were we to ratify the CRPD, that we would be 
submitting to the supervision of the international community?
    Mr. Thornburgh. I have heard that claim made before, and 
searched the record for any indication that that is either 
intended or possible, given the current posture of the 
deliberations on the Convention in this body. No, I do not 
think that is a realistic assessment. It is a little bit of an 
alarmist and perhaps good propaganda. But, this is not a 
country that is going to submit to any worldwide body. We have 
shown our independence in any number of areas. And why we would 
choose to roll over on an issue where we have such a leadership 
role established already is unthinkable.
    Senator Coons. Thank you, Mr. Attorney General.
    Professor Meyer, just in concluding, in your view, would we 
be compromising our sovereignty by submitting to the global 
community, or, in fact, leading and demonstrating our 
commitment.
    Mr. Meyer. I think the characterization that we would be 
submitting ourself to the supervision of the United Nations or 
the world community would be an overstatement. The committee 
does not have any legal authority to compel any changes to 
Federal law. And, provided that there's an appropriate package 
of RUDs, I think that we would be in a position to say that 
Congress and the United States continues to enjoy the ability 
to decide what Federal law requires.
    Senator Coons. Well, thank you. I would like to thank all 
of the witnesses from the first panel, the Senators who 
testified earlier, and Congresswoman, Attorney General, 
everyone else who's testified today.
    Thank you very much, Mr. Chairman.
    The Chairman. Senator Corker.
    Senator Corker. Thank you, Mr. Chairman. And I appreciate 
you letting me ask a few more questions.
    And, Congresswoman Duckworth, I appreciate your inspiration 
and your comments about being in Asia. And I think one of the 
reasons that we are all concerned about the legalities--I think 
that, you know, the thrust--I do not think there is anybody on 
this committee that does not appreciate deeply the thrust of 
this effort, but it is that we actually--when we pass laws, we 
go by them. And some of the countries that we deal with, that 
is not the case. And I know the General mentioned that we are a 
country of the rule of law. And I think--it seems to me that 
all of the advocates for this treaty would agree that delving 
into the RUDs and getting them right so that we do not end up 
having unintended consequences is a worthy effort as we move 
forward over the next few weeks. Is that correct?
    Mr. Thornburgh. Absolutely. I think that they are the key 
tasks that have to be performed in the drafting of the final 
version of what is voted on, because they are going to spell 
out, if done correctly, the explicit guidelines that will 
endure long past the debate that goes on in this body.
    Senator Corker. And, Mr. Meyer, it seems to me that you 
have offered some really constructive comments relative to some 
of the changes that may be made. And I do want to say, we would 
love to work with you to try to develop those and try to 
address some of the issues that were brought up.
    I know that we talked about the committee, and it is my 
understanding that we would have a representative on that 
committee, but it would be temporary, meaning that they rotate, 
and we would have somebody on, on the front end, and that, over 
time, this committee can do some things to establish customary 
international law.
    And, I guess, is there a way, in your opinion, to inoculate 
ourselves from the evolution that can occur with these 
committees over time--20, 30, 40 years--through the RUDs, that 
would protect us from customary international law that might be 
developed by the committees?
    Mr. Meyer. Senator, there is a doctrine known as the 
persistent objector doctrine that provides that a state that 
objects during the formation of a rule of customary 
international persistently is not bound by that rule.
    One could imagine an understanding that is stated that the 
United States understands that the interpretations of the 
committee are not a basis for the formation of customary 
international law, and objects to any rule of customary 
international law formed on the basis of the committee's 
interpretations alone. I think that that would lay the 
groundwork for a claim that the United States was not going to 
be bound by any emergent rule of customary international law.
    The other thing--and this is the practice of the State 
Department--is to monitor the activities of the committee and 
to make sure that we do object in those cases in which 
interpretations of the Convention or purported rules of 
customary international law emerge which we find objectionable.
    Senator Corker. So, because the committee's sort of a 
living 
organism, some people have said, ``Look, yeah, the ADA 
standards are the gold standard today, but, as the committee 
evolves over time, it could well be that other laws have to be 
developed here within our country.'' But, you believe, per what 
you just said, that customary international law--we could 
inoculate ourselves fully from that evolution. And I see 
proponents of this treaty shaking their heads up and down. That 
would not be objectionable, General, from your standpoint, to 
the advocates?
    Mr. Thornburgh. No. It seems to me that, as was mentioned 
earlier on, that one body cannot make rules that bind its 
successor in the legislature. So, there is going to be a call 
for oversight. Look, the definition of ``disability'' under the 
ADA has already been changed, and it has only been in effect 
less than 25 years. So, experience is a good mentor in that 
respect, and that is why we have the Congress and the courts, 
and not some ultimate executive branch decisions that are going 
to be made.
    Senator Corker. So, Dr. Yoshihara, it seemed to me that you 
agreed that, with stronger RUDs, that the issues that you are 
concerned about could be dealt with. Is that correct?
    Dr. Yoshihara. Well, I have to say, I am not optimistic 
that we could be fully inoculated from customary international 
laws evolving, because it doesn't involve us. This is something 
that is international opinion. So, customary international law 
evolves, internationally, through other court decisions, such 
as the Colombia and Argentina cases, through jurisprudence in 
other countries. We could not inoculate ourselves from what the 
world opinion is. We could certainly make a reservation, or an 
understanding on this. I know that Senator Rubio had a very 
strong amendment, the last time around, that got watered down. 
And if this--you know, I think that that would be a minimum to 
try to protect ourselves from 25(a) in the treaty.
    But, again, I am not optimistic that a reservation would do 
it, because the committee is ignoring those reservations. They 
are already telling countries to remove the reservations. So, 
if we think we are getting pressure now to ratify, wait until 
we have to go every 4 years before the committee. We are going 
to get pressure to remove every one of our reservations.
    So, again, I am not as sanguine, I think, as the Professor 
is.
    Senator Corker. But, to remove those reservations, that 
would require Congress to act to remove those reservations, 
and--I mean, do you think anybody's----
    Dr. Yoshihara. Yes, sir.
    Senator Corker [continuing]. Going to really care----
    Dr. Yoshihara. No, I am----
    Senator Corker [continuing]. That much about a committee--
--
    Dr. Yoshihara. Forgive me, I----
    Senator Corker [continuing]. To put any pressure----
    Dr. Yoshihara [continuing]. Was not clear. As far as 
authority, there are now a lot of folks who have spoken today 
that we are going to lose credibility, mitigate credibility 
altogether, if we do not ratify. We're going to be out of the 
table. I think that is excessive. We will maintain our 
credibility. We have that credibility. One hundred thirty-eight 
countries have already ratified without us ratifying. Great 
Britain, Spain has passed a comprehensive law. African nations 
are making real differences now and embracing this because they 
have ratified it. Even without us ratifying--and time and 
again, I hear, when I am at the U.N., from delegates who tell 
me, ``You are the leaders on this. We understand that you have 
not ratified, but you are still the leader.''
    So, again, I think that if we go down this path and go to 
reservations, if we are already afraid, by ratifying, we've 
gone too far, as far as I am concerned, because we already have 
the authority, the credibility, and the leadership to make a 
difference around the world.
    Senator Corker. Would you work constructively with Mr. 
Meyer and others to do what we can to try to get to a place 
where these RUDs alleviate most of the concerns that you have? 
I know you still have the concern about customary international 
law.
    Dr. Yoshihara. Senator, I would be happy to work with them, 
absolutely.
    Senator Corker. So, if I could, just my final question. You 
know, Mr. Farris seemed to strongly disagree with you, Mr. 
Meyer, as to whether the issues that he is concerned about can 
be addressed through RUDs. And I would like for you, if you 
would, to address that one more time, Mr. Farris, and then, if 
you would, Mr. Meyer, respond to that.
    Mr. Farris. Senator, I think it is possible to write a RUD 
that would address my concerns, but I think that the RUD would 
be illegal under the terms of the treaty, because RUDs that are 
contrary to the object and purpose of the treaty are illegal. 
And so, I think that the RUD that would be needed----
    Senator Corker. And illegal where?
    Mr. Farris. They are--it would--illegal in any court. The 
question becomes whether we have really ratified the treaty. I 
think that the better view is that, if we adopt a treaty with a 
reservation that is contrary to the object and purpose of the 
treaty, then we are not actually a party to the treaty. It is 
not that the RUD falls; our whole ratification or whole 
participation falls, because we are undertaking it--we are 
pretending to undertake the obligation, and we are not really 
doing so.
    So, I do not think that the RUD that would satisfy my 
arguments would be legal, for that reason. Now, could you write 
something that was just on the homeschooling issue? Perhaps. I 
have not seen anything to date that has come close to that. 
But, given the experience of the homeschooling community in the 
last year with this administration on the Romeike case, where 
it was interpretation of international treaty law on the best-
interests-of-the-child standards, the same term of art that are 
concerned about here, we do not trust this--given the fact that 
we are being mistreated by this administration right now on an 
immigration issue on this very term of art in the law. 
Moreover, this is the same administration that told us, ``If 
you can--if you want to keep your insurance policies, you 
can.'' If----
    Senator Corker. Yes.
    Mr. Farris. And so, trusting the source of the promises is 
not at a high level right now.
    Senator Corker. So, if you would respond to that, Mr. 
Meyer, I would appreciate it.
    Mr. Meyer. Thank you, Senator.
    First, I think, to be clear, no U.S. court is going to 
disregard a RUD, regardless of whether or not it is contrary to 
the object and purpose of the treaty. Consistent with Professor 
Goldsmith and Professor Bradley's findings, I am aware of no 
instance in which a Federal court has ignored a RUD.
    The way in which RUDs--the object and purpose rule comes 
into play is mostly that another party might object that a 
reservation the United States made is contrary to the object 
and purpose of the Convention.
    The United States--there is no way, through this procedure, 
that the United States can end up bound by anything to which we 
have not consented, by which I mean, it is not possible that, 
by the virtue of some party objecting, that the reservation 
will be struck and the United States will be bound by the 
treaty without the reservation. Either the treaty simply would 
be deemed not to apply or, more likely, the objection would 
just be answered and everybody would understand that the United 
States had entered this reservation.
    It is also possible that the committee, at some point, 
might opine that a reservation the United States made was 
contrary to the object and purpose of the treaty. But, again, 
as with other interpretations offered by the treaty, that would 
be nonbinding on anybody, and it would be up to, actually, a 
state party to advance that argument.
    Senator Corker. So, we are the country that has the gold 
standard, and advocates would like for us to play a role 
throughout the world in helping develop that gold standard 
around the world. And you are saying that, if we develop RUDs 
that, in our opinion, absolutely inoculate us from any kind of 
outside issue outside our domestic laws, and it is struck down 
as being something that is contrary to the treaty, then the 
whole treaty falls, from our standpoint; we are not bound to 
other portions of the treaty. Is that one point you just made?
    Mr. Meyer. That is correct. The only thing I would add is 
that there is no court that would have jurisdiction to strike 
down a reservation. This treaty does not submit, for example, 
to the jurisdiction of the International Court of Justice. And 
the committee does not have the authority to formally strike 
down a reservation.
    Senator Corker. And I guess one of the advocates, the 
witness, Mr. General, you would say that we would be better off 
with adhering and taking up this treaty and being bound by this 
treaty, with RUDs that did that very thing, and that would be 
acceptable to you, as an advocate, for us having those kind of 
disclaimers relative to our own internal and domestic laws.
    Mr. Thornburgh. I do not think there is really any choice, 
because what we have exemplified historically in this country 
is a commitment to assuring, to the world's people, that 
benefits and advances that we have made in our own country--and 
I do not see disability rights, to which there is an obvious 
strong commitment in this country, going back to and preceding 
the Americans with Disabilities Act, as any different than the 
other important principles that we have fought and died for 
over the years.
    So, I think that, clearly, any strategy on the design to 
gut our ratification to the treaty would be unacceptable. At 
the same time, I think it is entirely possible to draft RUDs 
that are satisfactory to most reasonable people in looking at 
what the problem is.
    Senator Corker. Mr. Chairman, thank you.
    And thank all of you, as witnesses, for your time.
    The Chairman. Thank you, Senator Corker.
    Just one final comment. And since we are developing a 
record here, I cannot let go of a different view than Dr. 
Yoshihara's with regards to her constant references to the 
Colombia case. And I am disappointed that you use it in that 
way.
    With reference to, you know, the assertion that Colombia's 
high court overturned the country's protection of the unborn, 
invoking the nonbinding comments of U.N. treaty bodies as it 
relates to this treaty, the fact of the matter is, the Colombia 
case has nothing to do with the disabilities treaty. It's a 
2006 case. Colombia did not ratify the Disabilities Treaty for 
another 5 years after that decision.
    The Colombia case cites a different Convention, a treaty to 
which Colombia had no reservations, no understandings, no 
declarations. By contrast, our ratification, should we do so, 
of the Disabilities Treaty would be with a declaration that the 
treaty is not self-executing, meaning that the Disabilities 
Treaty could not be used as a basis for lawsuits in United 
States courts. And the U.S. Supreme Court has upheld the 
validity of non-self-executing declarations in the case of Sosa 
vs. Alvarez-Machain.
    So, you know, we need to be clear about the assertions that 
we make when we are creating a record, and I felt the 
responsibility to make that clear.
    Let me thank all of the witnesses----
    Senator Corker. Could she respond to that?
    The Chairman [continuing]. For their----we have given 
everybody plenty of opportunity.
    Let me thank all of the witnesses for their testimony. I 
appreciate all of the members who have attended and the 
thoughtfulness for which they approach the issue.
    I appreciate and want to thank those who have beared with 
us and have watched the hearing from overflow rooms, since we 
did not hold this in the--outside of the traditional hearing 
room. We appreciate your forbearance and your watching of the 
democratic process in the overflow rooms.
    The record will be open until the close of business on 
Thursday.
    And, with the thanks of the committee to all of you, this 
hearing is adjourned.
    [Whereupon, at 5:12 p.m., the hearing was adjourned.]
                              ----------                              


              Additional Material Submitted for the Record


              Responses of Michael P. Farris to Questions 
                    Submitted by Senator Bob Corker

    Question. Can you please explain your view of whether and how U.S. 
ratification of the CRPD could affect the current balance between the 
Federal Government, State governments, and individuals--particularly 
with respect to Congress' power to regulate in areas that understood to 
be reserved to the States or the people under the 10th Amendment of the 
U.S. Constitution? How might we construct Reservations, Understandings, 
or Declarations (RUDs) sufficient to ensure against such an effect?

    Answer. 1. Like the CRC and CEDAW, if ratified, the Convention on 
the Rights of Persons with Disabilities would become the supreme law of 
the land under the U.S. Constitution's Supremacy Clause in Article VI, 
would trump State laws, and would be used as binding precedent by State 
and Federal judges.
    Article 4(1)(a) demands that all American law on this subject be 
conformed to the standards of the U.N., and Article 4(1)(e) remands 
that ``every person, organization, or private enterprise'' must 
eliminate discrimination on the basis of disability. The State 
Department and the Committee on Foreign Relations both recognize ``that 

by its terms the Convention can be read to require broad regulation of 
private conduct.''\1\
    The rule of international law is that the nation-state that 
ratifies the treaty has the obligation to ensure compliance. This gives 
Congress total authority to legislate on all matters regarding 
disability law--a power that is substantially limited today. Article 
4(5) makes this explicit. Absent an effective RUD, any remaining state 
sovereignty on the issue of disability law will be entirely eliminated 
by the ratification of this treaty.
    2. The very concept of a federalism reservation runs counter to the 
general principles of international law.
    Normally, when a nation-state enters into a treaty, that nation-
state has the obligation to fulfill that treaty and may not justify its 
failure to implement the treaty's provisions based on the failure to 
act of any subsidiary unit of government--even in a Federal system. 
Thus, in Missouri v. Holland, 252 U.S. 416 (1920), the 
Supreme Court held that Congress may pass implementing legislation in 
pursuance of a treaty even in that subject matter had heretofore been, 
by virtue of the 10th Amendment, within the exclusive legislative 
competence of the states. There can be no debate that the ratification 
of a treaty gives Congress all of the power necessary to implement its 
terms--any principle of federalism to the contrary notwithstanding.
    3. Ultimately, the UNCRPD's strong nationalistic approach to treaty 
obligations results in frustration, exasperation, and even outright 
disdain for Federal systems of government.
    To cite just one example, the Expert Committee has specifically 
identified Argentina's Federal structure of government as a 
``challenge'' to the achievement of the Convention's aims: ``The 
Committee is also concerned about the challenge posed by the State 
party's federal structure in terms of the achievement of full 
accessibility for all persons with disabilities in every province and 
municipality in its territory. The Committee recommends that the State 
party establish effective mechanisms for monitoring and evaluating 
compliance with accessibility laws in the State party and that it take 
the necessary measures to facilitate the alignment of the relevant 
federal and provincial legislation with the Convention and the 
development and implementation of accessibility plans.\2\
    The implication of these statements is clear. Under modern 
international law, constitutional federalism--where states have 
meaningful freedom to individualize and customize the laws within their 
own sovereign spheres of authority--is the great challenge and barrier 
to the aims of the treaty. If the treaty's aims are to be fully 
realized, federalism must be curtailed, removed or subsumed entirely. 
There is no reservation which can both recognize and retain vibrant 
federalism, and adequately address this concern.

    Question. In your view, is it conceivable that the CRPD Expert 
Committee could assert obligations of States parties' that would 
implicate parental governance of disabled children and U.S. compliance 
with the CRPD? If your answer is yes, please cite the article(s) of the 
CRPD and/or the operative language that might create this obligation. 
How might we construct Reservations, Understandings, or Declarations 
(RUDs) sufficient to ensure against such an effect?

    Answer. 1. 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.'' Article 26(3) of the UDHR, regarding 
parents and children, is no exception: ``Parents have a prior right to 
choose the kind of education that shall be given to their children.''
    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.
    2. This proparent 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.
    Article 7(2) advances the identical standard for the control of 
children with disabilities as is contained in the U.N. Convention on 
the Rights of the Child. This means that the government--acting under 
U.N. directives--gets to determine for all children with disabilities 
what the government thinks is best.
    The ``best interest of the child'' standard is one used currently 
in American family law, but only if a family is broken by a divorce or 
if a parent is convicted of neglect or abuse. In all other cases, 
current American law rejects the proposition that the government can 
substitute its view of what is best for the child for that of the 
parent.
    In contrast, Article 7, Section 2 of the treaty requires that 
States ensure that ``In all actions concerning children with 
disabilities, the best interests of the child shall be a primary 
consideration.'' The UNCRPD further enjoins States to ensure that 
all actions concerning disabled children are made on the basis of the 
child's best interest.
    In order for States to live up to their treaty obligations, they 
must necessarily make judgments about children's best interests 
continuously. Should the government's assessment of the child's best 
interests differ from that of the parents, the government gets to make 
the decision, not the parents.
    3. The UNCRPD's approach to parental rights leads to the 
inescapable conclusion that parental rights in the education of 
disabled children will be 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. A couple of examples illustrate the 
dangerous trend in the UNCRPD.
    a. Evisceration of IDEA's baseline parental protections: Under 
current American law, the IDEA requires public schools to offer special 
assistance to children with disabilities. No parent, however, is 
required to accept such assistance. Under this section the government--
and not the parent--would have the ultimate authority to determine if a 
child with special needs will be homeschooled, attend a private school, 
or be required to accept the program offered by the public school.
    The National Dissemination Center for Children with Disabilities 
lists eight particular rights of parents contained in the IDEA:

          (1) 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;
          (2) Confidentiality and the right of parents to inspect and 
        review the educational records of their child;
          (3) 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;
          (4) The right of parents to obtain an independent educational 
        evaluation (IEE) of their child;
          (5) 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;
          (6) The right of parents to give or deny their consent before 
        the school may take certain action with respect to their child;
          (7) The right of parents to disagree with decisions made by 
        the school system on those issues; and
          (8) The right of parents and schools to use IDEA's mechanisms 
        for resolving disputes, including the right to appeal 
        determinations.

    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. Speaking of the ``best interest of 
the child'' standard in the UNCRC-- 
a provision that uses the exact same legal terms as those contained in 
Section 7 of the UNCRPD--Geraldine van Bueren, one of the world's 
leading experts on the international rights of the child, clearly 
explains the meaning and application of this best interests standard: 
``Best interests provides decision and policymakers 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.
    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.
    The resulting danger is far from theoretical. To cite just one 
example, the Expert Committee has held that New Zealand's Education Act 
of 1989, which allows the Secretary of Education to force any child 
with special needs into government-run schools ``if the Secretary 
thinks [the student] would be better off,'' conforms to the UNCRPD. If 
the ``best interest of the child'' standard controls, substitution of 
the government's views for that of the parents is all but fait 
accompli.
    b. Directing the Child's Education: Article 24 on Education does 
not repeat the parental rights rules of earlier human rights treaties 
such as the International Covenant on Civil and Political Rights or the 
International Covenant on Economic, Social, and Cultural Rights.
    This is an important omission. Coupling this omission with the 
direct declaration of ``the best interest of the child'' standard in 
Article 7(2), this convention is nothing less than the complete 
eradication of parental rights for the education of children with 
disabilities. Again, New Zealand's approach to this issue--and its 
subsequent approval by the Expert Committee--is illustrative of the 
great danger to familial integrity, autonomy, privacy, and liberty 
posed by the UNCRPD.
    c. Parental Discipline and Corporal Punishment: Similar concerns 
attach to Article 15's call for a ban on ``inhuman or degrading 
treatment or punishment.'' This legal phrase is identical to that used 
in the UNCRC, which has been authoritatively interpreted to ban any 
spanking by parents. It should be noted that Article 15 is not limited 
to persons with disabilities. It says ``no one shall be subjected to . 
. . inhuman or degrading treatment.'' This means that spanking will be 
banned entirely in the United States.
    4. Current reservations are insufficient to protect parental rights 
in education, which are almost universally matters of State law.
    It is true that the Foreign Relations Committee sought to address 
these concerns with an ``Understanding'' that ``nothing in Article 7 
requires a change to existing United States law.'' However, in context, 
the term ``United States law'' is ambiguous. In normal usage, ``United 
States law'' refers to Federal law while State law is described as 
``the laws of the several states.'' Since this Understanding only 
addresses ``United States law'' the supremacy of the treaty over State 
law is still unaddressed.
    Of course, the vast majority of the law concerning the rights of 
parents over the education of their children is found in State law, not 
in Federal law. As such, this Understanding--as currently written--
falls woefully short of providing any assurance to parents that they 
will remain the primary decisionmakers for their children's education.

    Question. In your testimony, you point out that the CRPD Expert 
Committee has criticized some nations' approach to disability rights. 
Do you have concerns that they will do so for the United States, 
despite our being the world leader on these issues? If so, do you think 
that having a ``seat at the table'' would allow us to better protect 
and advocate for American laws and standards?
    1. There is no doubt that the United States leads the whole world 
in providing appropriate access to persons with disabilities.
    But we lead, not because international law has required us to do 
so, but rather because we believe that every single person is endowed 
by our Creator with certain inalienable rights. 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.
    2. Proponents of this treaty who offer RUDs contending that the 
United States is already fully compliant with this convention are 
actually working at cross-purposes to the goal of ``leading'' the 
international community.
    Professor Louis Henkin writing in the American Journal of 
International Law, cautions that ``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.''
    Under such an approach, the United States ratification of the 
UNCRPD will not send any 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. International law that is not 
translated into domestic law and practice is nearly worthless. I can 
think of no means of drafting a reservation that cures this huge 
defect.
    3. 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 the UNCRPD and its Expert Committee.
    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.

    Question. In your testimony, you stated your concern that the CRPD 
does not provide a concrete definition of ``disability.'' Please 
describe whether and how our obligations under the treaty might change 
over time as a consequence. How might we construct Reservations, 
Understandings, or Declarations (RUDs) sufficient to ensure against 
such an effect?

    Answer. 1. Because the UNCRPD provides no definition of 
``disability,'' it is truly impossible to understand the scope of the 
undertaking of this treaty.
    2. The proposed Understanding which attempts to grapple with this 
fact--recognizing disabilities ``insofar as they are recognized and 
implemented under U.S. Federal law''--is ultimately impotent:
    a. At best, this understanding is a futile exercise in semantics. 
The cardinal rule governing treaty reservations, understandings, and 
declarations is that the reservation cannot be incompatible with the 
object and purpose of the treaty.\3\ The UNCRPD's purpose statement is 
intentionally broad and inclusive, and nothing in the treaty even 
suggests--much less States--that the domestic law of States parties are 
a valid basis for defining it. There is no way to tailor this 
understanding which overcomes this difficulty, while preserving its 
essence.
    b. As discussed above, because this understanding only addresses 
``United States law'' the supremacy of the treaty over State law is 
still unaddressed. While Federal statutes exert some level of control 
over certain aspects of disability law, State action is hardly 
preempted, particularly as concerns the rights of parents over the 
education of their children. This Understanding--as currently written--
falls woefully short of providing any assurance to parents that they 
will remain the primary decisionmakers for their children's education.
    c. This ``limitation'' is ultimately no less fluid than the 
nondefinition given in the treaty itself. The limitation promised by 
the Understanding is subject to an exception--disability as recognized 
under ``U.S. Federal law.'' If this exception was limited to ``existing 
U.S. Federal law'' then we would know the extent of the undertaking. 
But since the word ``existing'' is missing from the treaty, we are left 
with an expanding definition of disability that represents a growing 
extent of Federal power over any arguable form of disability that is 
not currently regulated by the Federal Government.
    d. This exception is for ``U.S. Federal law'' not ``acts of 
Congress.'' This administration is pushing the boundaries of the power 
to make federal law via Executive orders and other forms of 
administrative action.
    This ``exception'' robs this Understanding of any meaningful 
limitation on Federal power to enforce this treaty. Any future 
President can simply make an Executive order announcing a new, broad 
definition of disability and the United States would be bound thereby 
according to the terms of this Understanding.

----------------
End Notes

    \1\Executive Report of the Senate Committee on Foreign Relations, 
Recommendation to Ratify Treaty Doc. 112-7, Convention on the Rights of 
Persons with Disabilities with 3 Reservations, 8 Understandings, and 2 
Declarations, 112th Congress, 2d Session (Ex. Rept. 112-6), July 31, 
2012, available at http://www.gpo.gov/fdsys/pkg/CRPT-112erpt6/html/
CRPT-112erpt6.htm (accessed April 10, 2014).
    \2\U.N. Comm. Rights of Persons with Disabilities, ``Concluding 
observations on the initial report of Argentina,'' U.N. Doc. CRPD/C/
ARG/CO/1 (Oct. 8, 2012) at 3-4 para. 17-18.
    \3\Vienna Convention on the Law of Treaties, ``Opened for 
signature'' May 23, 1969, Art. 19, 1155 UNTS 331.
                                 ______
                                 

                Responses of Timothy Meyer to Questions 
                    Submitted by Senator Bob Corker

    Question. 1. The CRPD has an Expert Committee to evaluate whether 
parties are in compliance with the treaty. What role does the Committee 
play through its reporting process in influencing interpretations of 
the treaty's obligations, particularly where it contemplates an 
``evolving'' understanding of certain terms? Does that process pose any 
implications for the United States?

    Answer. As a matter of international law, the Committee on 
Disabilities does not have the authority to issue binding 
interpretations of the Convention on the Rights of Persons with 
Disabilities (``CRPD'' or ``Committee''). Rather, the Committee is 
authorized to ``consider'' reports made by parties to the CRPD about 
measures they have taken to implement the Convention. The Committee may 
also ``make such suggestions and general recommendations on the report 
as it may consider appropriate.'' CRPD art. 36(1). The Committee may 
also ``make suggestions and general recommendations based on the 
examinations of reports and information received from the States 
Parties'' to the U.N. General Assembly and Economic and Social Council. 
CRPD art. 39. It is also common practice for expert committees to issue 
``general comments'' which elaborate a committee's interpretation of 
the treaty it is charged with implementing, a practice the Committee 
has continued.\1\
    These interpretations, while not legally binding, still have what 
is referred to as a ``soft'' (or indirect) legal effect.\2\ This effect 
occurs when the Committee's interpretations are given effect by other 
legal actors. Most obviously, other parties to the Convention may adopt 
the Committee's interpretations of the Convention's obligations as 
their own. Thus, if the United States were to ratify the CRPD, other 
states parties to the Convention might base their view of the United 
States obligations in part on how the Committee interprets those 
obligations. The Committee's interpretations become, in effect, a focal 
point for giving content to the vague obligations contained in the 
CRPD. And the CRPD contains many vague obligations that require 
interpretation before they can be applied. Most notably, the CRPD 
``recognizes'' in its Preamble that what constitutes a ``disability'' 
is ``evolving.'' The Committee thus has a role to play in influencing 
how other parties to the Convention view the definition of a 
disability, and thus the scope of the Convention. The U.S. Government 
will have to respond to and engage with the Committee's interpretations 
to the extent that other parties to the Convention accept those 
interpretations as correct. Moreover, because expert committees do 
provide a focal point for shaping the expectations of parties about 
what constitutes compliance with a treaty, these committees have 
sometimes claimed that their interpretations of the treaties they are 
charged with implementing are entitled to ``authoritative'' weight.\3\
    As set forth more fully below, if the United States ratified the 
Convention, it could cabin the role of the Committee in interpreting 
the United States obligations through a strong package of RUDs. These 
RUDs would achieve two purposes. First, they would clarify that the 
United States does not accept any legal obligations arising by virtue 
of any actions of the Committee. Second, they would clarify that the 
United States does not accept that the Committee's interpretations of 
the Convention have any legal significance. Such a package of RUDs 
would clearly signal to both foreign states and domestic U.S. agencies 
and courts that the United States accepts no commitments with respect 
to, and is not bound in any way by, the Committee's interpretations of 
the Convention.

    Question. 2. What role might the Committee's reporting process play 
in the development of customary international law in matters covered by 
the CRPD?

    Answer. The Committee does not have the power to make customary 
international law. However, just as the Committee's nonbinding 
interpretations of the Convention may in some circumstances influence 
how parties view their obligations under the Convention, so too can 
parties' reactions to the Committee's interpretation shape the 
development of customary international law, at least in principle. 
Customary international law ``results from a general and consistent 
practice of states followed by them from a sense of legal 
obligation.''\4\ States' interactions with human rights committees 
constitute state practice that have the possibility of giving rise to 
rules of customary international law if states in general accept or 
begin to act in accordance with the Committee's interpretations of 
international law. The formation of customary international law thus 
remains with states, but the Committee can use the opportunities the 
Convention gives it to interact with states to influence their views 
about customary international law. In effect, the Committee can act as 
a sort of agenda-setter. At the same time, however, states' 
interactions with the Committee can also disrupt the formation of 
customary international law when the interactions make clear that 
states do not accept the Committee's claims or interpretations of 
international law. The United States has used the opportunity to 
respond to the Human Rights Committee, for example, to make clear that 
it does not accept certain broad claims by the Human Rights Committee 
about the content of customary international law.\5\

    Question. 3. Could such a body of law bind the United States or be 
enforceable in any way?

    Answer. Customary international law does not require that all 
states participate in the practice in order for an obligation to 
arise.\6\ Thus, in theory a country not party to a treaty or 
interacting with the committee could nevertheless end up bound by a 
customary international law obligation that arose based on the 
Convention's obligations as interpreted by the committee.
    These rules of customary international law would still not be the 
basis for an action before an international court such as the 
International Court of Justice unless the United States consented to 
the jurisdiction of the court in some fashion. Moreover, I am aware of 
no legal authority that would provide a cause of action for a U.S. 
national in a suit against the United States or state governments in 
U.S. Federal Court for breaching a customary international law 
obligation.\7\ Finally, a state can protect itself from being bound 
internationally by a rule of customary international law to which it 
objects--under a doctrine known as the ``persistent objector'' 
doctrine--by monitoring the practices of other governments and 
objecting to being bound by a customary rule during the time the rule 
is forming.\8\

    Question. 4. Does U.S. ratification of the treaty provide support 
to the obligations of the treaty, as interpreted by the Committee and 
other countries, becoming customary international law?

    Answer. Yes, it could. Having ratified the Convention, however, the 
United States would be bound by the obligations created therein as 
treaty obligations, and so whether they are also customary 
international law obligations would not affect the United States 
commitments internationally so long as the United States remained party 
to the CRPD.
    Customary international law ``results from a general and consistent 
practice of states followed by them from a sense of legal 
obligation.''\9\ Thus, each additional ratification could be used to 
support a claim that the rules created by a treaty are customary 
international law. Notably, though, customary international law does 
not require that all states participate in the practice in order for an 
obligation to arise.\10\ The CRPD has been ratified by 138 nations, so 
in practice the ratification of the United States may make little 
difference to whether the obligations found in the CRPD are thought to 
be customary international law by other nations.
    Moreover, if the United States ratified the CRPD it would be bound 
by the obligations therein, regardless of whether they are viewed as 
treaty obligations or obligations arising under customary international 
law. There are some instances in which a party to a Convention might 
distinguish between customary international law obligations and 
identical treaty obligations. For example, if a state withdrew from a 
treaty but the treaty's substantive obligations had become customary 
international law, the state would still be bound by the substantive 
obligations in the treaty notwithstanding its withdrawal. Treaties such 
as the CRPD often provide monitoring mechanisms, such as reporting 
requirements, that do not become customary obligations, however. 
Withdrawal would still allow the United States to avoid reporting 
obligations, even if the substantive obligations were binding as 
customary international law.
    If ratified, concerns that the CRPD's obligations would be viewed 
as customary international law by virtue of their inclusion in the 
Convention could be addressed through an understanding stating the 
United States position that the CRPD's obligations are not customary 
international law by virtue of being included in the Convention, and a 
declaration that the United States does not view its ratification as 
created any customary international law obligations. I have provided 
possible language for such a RUD in response to question 6 below.

    Question. 5. Is it fair to say that without very strong and clear 
RUDs on these issues, that the Committee and its work--through courts 
and other parties to the Convention--could put significant pressure on 
U.S. laws, like the ADA?

    Answer. A strong and clear package of RUDs would ensure that the 
committee and its interpretations of the Convention are not the basis 
for a decision by U.S. courts interpreting the ADA or other federal 
statutes. A nonself execution declaration like the one included in the 
Transmittal Package would be sufficient to ensure that the Convention 
does not create a private cause of action in U.S. courts. Moreover, 
RUDs could make clear that the Committee's interpretations are to be 
given no interpretative weight apart from the weight they are accorded 
by the States Parties to the Convention. In question 6 below I suggest 
language for such possible understandings.
    The Committee's interpretations might still influence the views of 
other States Parties, and those Parties might still ask the United 
States to make changes to its laws based the Committee's 
interpretations. The RUDs cannot control what other parties to the 
Convention do; they can provide direction to U.S. courts as to the 
obligations the United States would be undertaking were it to ratify 
the Convention, as well as clarify for other parties to the CRPD the 
commitments the United States is making.

    Question. 6. Could you provide possible RUD language that, if 
adopted, would insulate the United States against changing 
interpretations of our obligations under the treaty, as well as any 
customary international law that flows from the treaty, by anyone other 
than the United States Government?

    Answer. Yes. Last year when this Committee reported the CRPD to the 
full Senate, it included a proposed understanding stating:

        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.\11\

    This understanding could be supplemented in three ways to make 
clear that the United States does not recognize the authority of the 
Committee to interpret the Convention. First, the understanding could 
include a sentence stating that: ``The United States further 
understands that the Committee's interpretations of the Convention are 
not entitled to any legal weight apart from that given to them by 
States Parties to the Convention.''
    Such an understanding goes beyond the 2012 understanding by 
clarifying that the Committee's interpretations are not due any 
deference by parties to the Convention. Such an understanding is 
consistent with the text of the Convention, which imposes no 
obligations on parties to adopt or agree with the Committee's views on 
what the Convention requires.
    Second, the understanding could include a sentence making clear 
that the United States preserves its right to consent to any 
interpretations of the Convention, from whatever source, before they 
have any effect whatsoever in the United States. For example, a 
sentence might be added to the understanding stating that: ``Moreover, 
the United States understands that no interpretation of the obligations 
of the Convention issued by the Committee or any other international 
institution can have binding legal effect with regard to the United 
States unless the United States consents to such an interpretation in 
accordance with its constitutionally required procedures.''
    This understanding makes clear that by joining the Convention the 
United States has not delegated any authority to any international 
institution to create legal obligations for the United States. It 
therefore preserves the primacy of the United States domestic lawmaking 
process in determining what international obligations bind the United 
States.
    Third, the United States could enter RUDs to make clear that it 
does not view any rules contained in the Convention to be customary 
international law by virtue of their inclusion in the Convention, and 
stating that it objects to the formation of rules of customary 
international law based solely on the Committee's interpretations of 
the Convention.

        ``The United States understands that no obligations in the 
        Convention amount to customary international law by virtue of 
        their inclusion in the Convention. The United States declares 
        that it does not ratify the Convention out of any sense of 
        legal obligation to do so or recognition that any obligations 
        contained in the Convention are customary international law by 
        virtue of their inclusion in the Convention or the United 
        States' ratification of the Convention. Moreover, the United 
        States objects to the formation of rules of customary 
        international law based solely on interpretations of the 
        Convention provided by the Committee on the Rights of Persons 
        with Disabilities.''

    Such language makes clear that the United States does not believe 
the Convention affects customary international law. Moreover, it states 
clearly that the United States does not ratify the Convention out of a 
sense of legal obligation. State practice done out of a sense of legal 
obligation is a requirement for the formation of a rule of customary 
international law. This language thus makes clear that ratification by 
the United States should not be viewed as contributing to the formation 
of customary international law. Finally, the last sentence lays the 
foundation for the application of the persistent objector doctrine to 
the United States. As explained below, if the United States 
persistently objects to the formation of rules of customary 
international law, it cannot be bound by such rules. The proposed 
language enters a preliminary objection that could be followed by 
specific objections to interpretations provided by the Committee, as 
necessary.
    For the sake of clarity, I have also collected these possible RUDs 
at the end of this document.

    Question. 7. Please explain in greater detail the persistent 
objector doctrine and how it can be invoked or applied to ensure 
against new legal obligations for the United States from the 
development of customary international law, particularly in the case of 
the CRPD. Do objections have to be maintained against all actions of 
the Committee, or only those directed toward the United States?

    Answer. The persistent objector doctrine is a rule that is widely, 
but not universally, agreed to exist.\12\ It provides that a state may 
avoid being bound by a rule of customary international law if it 
consistently objects to the rule during the rule's formation; i.e., 
prior to the time when the rule becomes firmly established as a rule of 
customary international law. The exception to the application of a rule 
of customary international law created by the persistent objector 
doctrine is a narrow one. As the International Law Association has 
written in an influential study on custom:

        There is fairly widespread agreement that, even if there is a 
        persistent objector rule in international law, it applies only 
        when the customary rule is in the process of emerging. It does 
        not, therefore, benefit States which came into existence only 
        after the rule matured, or which became involved in the 
        activity in question only at a later stage. Still less can it 
        be invoked by those who existed at the time and were already 
        engaged in the activity which is the subject of the rule, but 
        failed to object at that stage. In other words, there is no 
        ``subsequent objector'' rule.\13\

    A customary international law obligation binding on the United 
States can be formed on the basis of a consistent and general state 
practice done out of a sense of legal obligation. There is no 
requirement that the practice in question involve the United States or 
be directed at the United States. Customary international law rules are 
generally thought to bind even states that were not in existence when 
the rules were formed. Thus, if the United States found an 
interpretation by the Committee objectionable, the United States would 
have to object to it even if the interpretation was not directed toward 
the United States.

    Question. 8. Is it your understanding that only the executive 
branch has the ability to fulfill the persistent objector function for 
the U.S. Government, or may the persistent objector function also be 
fulfilled by the legislative branch (for example, via a House, Senate, 
or joint resolution, or even via less formal means)?

    Answer. In my view, Congress can play a role in objecting to the 
formation of customary international law. Congress can do this in 
several ways. First, including RUDs stating that the United States 
objects to the formation of customary international law based on the 
interpretations of the Committee as a condition of ratification would 
make clear the U.S. position regarding the role of the Committee. 
Second, Congress could use legislation to express the view of the 
United States Government that it objects to the formation of a 
particular rule of customary international law. Third, Congress could 
pass resolutions stating its objections to the formation of particular 
rules of customary international law. Such resolutions would likely be 
given less weight than RUDs or legislation, but would still provide 
evidence of the position of the U.S. Government on the formation of 
customary international law. This role for Congress in objecting to the 
formation of customary rules is consistent with the role branches other 
than the executive branch can play in the formation of customary 
international law. Legislation and judicial decisions can be the basis 
for the formation of customary international law, for example.\14\ I do 
not think it likely that less formal means of objecting to the 
formation of customary international law, such as floor statements, 
would be given much weight.

    Question. 9. What is the process in the United States for 
withdrawal of a reservation, understanding, and declaration? Can RUDs 
be drafted in such a way as to prevent their repeal or withdrawal in 
the future?

    Answer. The United States very rarely withdraws RUDs. RUDs can be 
withdrawn either by returning to the Senate for advice and consent to 
withdrawal, or through ordinary legislation passed by both Houses of 
Congress.\15\ In 1984, for example, President Reagan requested the 
advice and consent of the Senate to withdraw a reservation to the 
Patent Cooperation Treaty.\16\ Although President Reagan requested the 
advice and consent of the Senate, Congress responded by passing 
ordinary legislation implementing the portion of the Patent Cooperation 
Treaty that had been excluded by the reservation.\17\
    I am aware of no authority for the proposition that the President 
can unilaterally withdraw a RUD made by the Senate as a condition of 
ratification.\18\ Presidents have withdrawn from treaties entirely 
without seeking the advice and consent of the Senate.\19\ Withdrawing 
from a treaty to which the Senate previously gave its advice and 
consent, and withdrawing a reservation made a condition of the Senate's 
advice and consent to ratification, are fundamentally different acts, 
however. The former terminates treaty obligations. The latter creates 
treaty obligations by removing a restriction made when the U.S. 
initially ratified the treaty. If the advice and consent of the Senate 
is necessary to the creation of an international legal obligation 
through a treaty, the same advice and consent should be necessary to 
its creation through the removal of a reservation.\20\
    I do not believe it is possible to draft RUDs to prevent a future 
Congress and President from withdrawing them. One Congress cannot 
exercise its legislative power to bind a future Congress in how it 
exercises the same power. Likewise, the Senate and the President cannot 
exercise the Treaty Power in a way to bind future uses of that power. A 
RUD that purported to restrict a future Senate's ability to give its 
advice and consent to withdrawal of the RUD, or a future Congress' 
ability to withdraw it through implementing legislation, would restrict 
the use of a constitutionally authorized power (either the Treaty Power 
or Congress's authority to legislate pursuant to one of its enumerated 
powers). RUDs cannot be used to change the constitutional allocation of 
authority, and therefore in my view such a RUD would be 
unconstitutional.

    Question. 10. Would any of the constraints or limitations on our 
obligations conceived in the preceding questions be construed as 
violations of the ``object and purpose'' clause of the CRPD, and thus 
incompatible with our ratification? Is there any body, such as the 
Committee or U.S. courts, that could conceivably have the authority to 
make such a determination? How might we construct Reservations, 
Understandings, or Declarations (RUDs) sufficient to ensure against 
such an effect?

    Answer. In my opinion, all of the RUDs that are part of the 
Transmittal Package and all those suggested here are consistent with 
the object and purpose of the CRPD. To my knowledge no U.S. court has 
ever struck down a RUD on the grounds that it violates the object and 
purpose of the treaty, or indeed for any reason at all.\21\ For the 
purposes of U.S. courts, RUDs are part of the law that the President 
and Senate make in creating a treaty. As such, U.S. courts could strike 
down a RUD as unconstitutional, just as they could strike down ordinary 
legislation. The Constitution prevails over inconsistent federal law, 
including treaties. But U.S. courts could not strike down a RUD as 
violating the object and purpose of the CRPD, because the RUD itself is 
part of the federal law created when the treaty is ratified. Rather, 
the court would be bound by the RUD just as it would be bound by a 
constitutional statute. Moreover, states are bound by the doctrine of 
pacta sunt servanda, which requires that parties to a treaty honor 
their commitments in good faith.\22\ In entering a RUD to a treaty such 
as the CRPD that incorporates the ``object and purpose'' limitation on 
reservations expressly, the United States would be in effect stating 
that it believes in good faith that all of its reservations are 
compatible with the object and purpose of the treaty. A U.S. court 
would honor this judgment by the Senate and the President.
    The Committee would not have the authority to issue a legally 
binding ruling that a U.S. reservation is incompatible with the object 
and purpose of the CRPD. The Committee does not have the authority to 
make legally binding rulings. That does not necessarily mean that the 
Committee would not opine that a reservation is incompatible with the 
object and purpose of the treaty, as other human rights committees have 
done.\23\ And just as other interpretations by the Committee can have 
effect if they are persuasive to other parties to the Convention, so 
too an opinion by the Committee could potentially affect the views of 
other parties. Absent consent to the jurisdiction of an international 
court competent to make a binding determination, no other international 
tribunal would have jurisdiction to make a legally binding ruling.
    Other than drafting RUDs that the United States believes in good 
faith are compatible with the object and purpose of the treaty, I am 
unaware of any way to limit the chances that some entity--another party 
to the Convention, for example, or the Committee--will view U.S. RUDs 
as incompatible with the object and purpose. The United States could 
make clear, however, that its ratification of the Convention is 
contingent on the validity of its reservations. Professor Curtis 
Bradley suggested helpful language in his testimony before the Foreign 
Relations Committee: ``The United States declares that its intention to 
be bound by this Convention depends on the continuing validity and 
effectiveness of its reservations, understandings, and declarations, 
except to the extent that such reservations, understandings, and 
declarations have been withdrawn by the United States pursuant to its 
constitutional processes.''\24\

    Question. 11. In recent years, federal courts, including the U.S. 
Supreme Court, have looked toward international law or other foreign 
courts' decisions to help decide domestic federal cases. Are you 
concerned that the CRPD, and U.S. ratification, could be used to 
interpret domestic law in an inappropriate way? How might we construct 
Reservations, Understandings, or Declarations (RUDs) sufficient to 
ensure against such an effect?

    Answer. No RUD can guarantee that a U.S. court will not cite to 
foreign or international law. A wide range of federal judges and 
members of the Supreme Court have looked to foreign law and to the 
decisions of foreign courts regarding international instruments to 
which the United States is not a party. To provide but one recent 
illustrative example, in his dissent in United States v. Windsor 
Justice Alito cited to the absence of a deeply rooted tradition 
permitting same sex marriage in foreign countries to support his 
contention that same-sex marriage is not deeply rooted in the 
traditions of the United States.\25\
    Having said that, the RUDs I suggest in response to question 6 
above would provide additional direction to U.S. courts that 
preexisting federal laws are not meant to be interpreted in accordance 
with subsequent interpretations of the CRPD by non-U.S. entities.
                        possible additional ruds
Regarding the Committee on Disabilities
    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. The United 
States further understands that the Committee's interpretations of the 
Convention are not entitled to any legal weight apart from that given 
to them by States Parties to the Convention.'' Moreover, the United 
States understands that no interpretation of the obligations of the 
Convention issued by the Committee or any other international 
institution can have binding legal effect with regard to the United 
States unless the United States consents to such an interpretation in 
accordance with its constitutionally required procedures.
Regarding Customary International Law
    The United States understands that no obligations in the Convention 
amount to customary international law by virtue of their inclusion in 
the Convention. The United States declares that it does not ratify the 
Convention out of any sense of legal obligation to do so or recognition 
that any obligations contained in the Convention are customary 
international law by virtue of their inclusion in the Convention or the 
United States ratification of the Convention. Moreover, the United 
States objects to the formation of rules of customary international law 
based solely on interpretations of the Convention provided by the 
Committee on the Rights of Persons with Disabilities.
Regarding the severability of RUDs
    The United States declares that its intention to be bound by this 
Convention depends on the continuing validity and effectiveness of its 
reservations, understandings, and declarations, except to the extent 
that such reservations, understandings, and declarations have been 
withdrawn by the United States pursuant to its constitutional 
processes.

----------------
End Notes

    \1\See, e.g., Draft General comment on Article 12 of the CRPD--
Equal Recognition before the Law; Draft General Comment on Article 9 of 
the CRPD--Accessibility, available at: http://www.ohchr.org/EN/
HRBodies/CRPD/Pages/DGCArticles12And9.aspx.
    \2\See generally Andrew T. Guzman & Timothy L. Meyer, 
``International Soft Law,'' 2 J. Legal Analysis 171 (2010).
    \3\See, e.g., Human Rights Committee, Summary of the 2380th 
Meeting, U.N. Doc. CCPR/C/SR.2380 Sec. 57 (July 27, 2006) (in which the 
Human Rights Committee asserts in a colloquy with the United States 
delegation that ``its findings, while not legally binding, had 
considerable authoritative status.'').
    \4\Restatement (Third) of Foreign Relations Law Sec. 102(2) (1987).
    \5\See Observations of the United States of America on General 
Comment 24, in ``Human Rights as General Norms and A State's Right to 
Opt Out: Reservations and Objections to Human Rights Conventions'' 201 
(J.P. Gardner, ed. 1997). In its observations, the United States noted 
that the Human Rights Committee had ``assert[ed] in a wholly conclusory 
fashion that a number of propositions are customary international law 
which, to speak plainly, are not. It cannot be established, for 
example, that the mere expression (albeit deplorable) of national, 
racial or religious hatred (unaccompanied by any overt action or 
preparation) is prohibited by customary international law.'' Id.
    \6\Restatement (Third) of Foreign Relations Law Sec. 102, comment b 
(1987) (``A practice can be general even if it is not universally 
followed'').
    \7\This assumes that Congress has not passed a statute creating a 
cause of action based on a rule of customary international law, in 
which case the cause of action would be based on the statute, not 
customary international law.
    \8\Restatement (Third) of Foreign Relations Law Sec. 102, comment d 
(1987) (``[I]n principle a state that indicates its dissent from a 
practice while the law is still in the process of development is not 
bound by that rule even after it matures.'').
    \9\Restatement (Third) of Foreign Relations Law Sec. 102(2) (1987).
    \10\Restatement (Third) of Foreign Relations Law Sec. 102, comment 
b (1987) (``A practice can be general even if it is not universally 
followed'').
    \11\Report of the Committee on Foreign Relations on the Convention 
on the Rights of Persons with Disabilities Sec. 7 (July 31, 2012).
    \12\Curtis A. Bradley & Mitu Gulati, ``Withdrawing from 
International Custom,'' 120 Yale L.J. 202, 204 (2010).
    \13\Int'l Law Ass'n, Comm. on the Formation of Customary (Gen.) 
Int'l Law, Statement of Principles Applicable to the Formation of 
General Customary International Law 27 (2000).
    \14\For example, in the Arrest Warrant Case, the International 
Court of Justice examined national legislation and the decisions of 
national courts to determine whether customary international provided 
an exception to the rule granting immunity from criminal jurisdiction 
to certain foreign officials. Arrest Warrant of 11 April 2000 (Dem. 
Rep. Congo v. Belg.), 2002 ICJ REP. 3, 24 (Feb. 14); see also Ingrid 
Wuerth, ``Pinochet's Legacy Reassessed,'' 106 Am. J. Int'l L. 731, 759 
(2012) (noting that ``national court decisions drove much of the change 
from absolute to restrictive immunity'').
    \15\Treaties are subject to the last-in-time rule, meaning that a 
subsequent statute prevails over a conflicting treaty. See e.g., Breard 
v. Greene, 523 U.S. 371, 376 (1998) (noting that ``when a statute which 
is subsequent in time is inconsistent with a treaty, the statute to the 
extend of the conflict renders the treaty null.'')(internal citations 
omitted). Thus, as a matter of U.S. domestic law, subsequent 
legislation can be used to modify treaty obligations.
    \16\Message to the Senate Transmitting a Patent Cooperation Treaty, 
July 27, 1984, available at: http://www.reagan.utexas.edu/archives/
speeches/1984/72784d.htm.
    \17\See Act to authorize the United States to participate in 
chapter II of the Patent Cooperation Treaty, PL 99-616, 100 Stat. 3485 
(Nov. 6, 1986).
    \18\Justice Scalia, concurring in United States v. Stuart, 
described the situation in this way: ``Of course the Senate has 
unquestioned power to enforce its own understanding of treaties. It 
may, in the form of a resolution, give its consent on the basis of 
conditions. If these are agreed to by the President and accepted by the 
other contracting parties, they become part of the treaty and of the 
law of the United States. 489 U.S. 353, 374-75.
    \19\See Text of Diplomatic Notes to Russia, Belarus, Kazakhstan, 
and Ukraine (December 13, 2001) (announcing the United States 
withdrawal from the Anti-Ballistic Missile Treaty); Goldwater v. 
Carter, 444 U.S. 996 (1979) (holding nonjusticiable a challenge to the 
President's withdrawal from a mutual defense treaty with Taiwan).
    \20\Again, as a matter of domestic law Congress could achieve the 
same effect through ordinary legislation.
    \21\See Curtis A. Bradley & Jack L. Goldsmith, ``Treaties, Human 
Rights, and Conditional Consent,'' 149 U. Pa. L. Rev. 399, 410 (2000) 
(``In sum, since the early days of the nation, the President and Senate 
have attached a variety of conditions to their consent to treaties. No 
court has ever invalidated these conditions.'').
    \22\Vienna Convention on the Law of Treaties art. 21.
    \23\Human Rights Committee, General Comment 24 (52), General 
comment on 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, U.N. Doc. 
CCPR/C/21/Rev.1/Add.6 (1994).
    \24\See Testimony of Professor Curtis A. Bradley, Hearing on the 
Convention in the Rights of Person with Disabilities, U.S. Senate Comm. 
On For. Rel. (Nov. 21, 213), available at: http://
www.foreign.senate.gov/imo/media/doc/Bradley_Testimony.pdf
    \25\United States v. Windsor, 133 S.Ct. 2675, 2715 (2013) (Alito, 
J., dissenting) (``Nor is the right to same-sex marriage deeply rooted 
in the traditions of other nations. No country allowed same-sex couples 
to marry until the Netherlands did so in 2000.'').
                                 ______
                                 

              Response of Dr. Susan Yoshihara to Question 
                    Submitted by Senator Bob Corker

    Question. At the conclusion of the hearing on November 5, the 
chairman sought to address certain previous testimony of yours. You did 
not have the opportunity to respond. Would you please do so here?

    Answer. Senator Menendez in his summary said I implied that 
Colombia's 2006 high court decision referred to the Disabilities 
Committee. But my testimony is clear that this decision was prior to 
the formation of the Disabilities Committee. The importance of that 
court's decision is not that any particular U.N. committee was cited, 
but that by citing any of the committees, a court--such as Colombia in 
2006 and Argentina in 2012--lends the nonbinding views of U.N. human 
rights committees the status of jurisprudence, when in fact those views 
have no such authority. This is germane to our discussion on the 
evolution of customary law, and how this treaty and the comments of the 
committee might reverberate in U.S. law.
    When the Colombia Constitutional Tribunal directed a liberalization 
of the national abortion law, the court's majority referred to the 
comments of U.N. human rights treaty bodies regarding abortion (please 
see Constitutional Court of Columbia Decision C-355/06, 10 May 2006). 
What is particularly notable is that the Colombian court cited not just 
one but six committees, referring to ``The obligatory nature of 
international treaties and the recommendations made by international 
organizations in relation to human rights, and particularly, in 
relation to the general criminalization of abortion,'' and stating that 
``the recommendations made by the international authorities in charge 
of overseeing compliance by the States Parties, and particularly the 
recommendations made to the State of Colombia in relation to the 
subject of absolute criminalization of abortions, should be taken into 
consideration.''
    The Colombia court decision cited observations made by the Human 
Rights Committee (ICCPR), Committee on Economic, Social and Cultural 
Rights (ICESCR), The Committee on the Elimination of All Forms of 
Discrimination Against Women (CEDAW), Committee on the Rights of the 
Child (CRC), Committee of the International Convention on the 
Elimination of All Forms of Racial Discrimination (ICERD). Committee of 
the Convention against Torture and other Cruel, Inhuman or Degrading 
Treatment or Punishment (Convention against Torture, UNCAT).
    The Committee on the Rights of Persons with Disabilities was not in 
existence at that time, but in its brief history has already pressured 
two countries on abortion laws. This follows an unfortunate practice by 
the Committee on the Elimination of All Forms of Discrimination Against 
Women which has pressured more than 80 countries to liberalize their 
abortion laws, the Human Rights Committee which has admonished more 
than a dozen countries to liberalize their abortion laws, the Committee 
on Economic and Social Rights which has pressed more than 10 countries 
to liberalize their abortion laws, and the Committee on the Rights of 
the Child and the Committee Against Torture which have also urged 
countries to liberalize their abortion laws.''
    The Argentine Supreme Court also cited the recommendations of 
international treaty monitoring bodies in its March 2012 decision 
partially liberalizing the country's law on abortion (please see F., 
A.L. s/ media autosatisfactiva, F. 259. XLVI (Arg. Mar. 13, 2012), 
available on the Supreme Court of Argentina Web site at http://
www.csjn.gov.ar/om/img/f259.pdf). The Court cited, on page 6 of its 
decision, the ``Concluding Observations'' of both the Human Rights 
Committee, which monitors state party progress under the International 
Covenant on Civil and Political Rights (ICCPR), and the Committee on 
the Rights of the Child (please see CCPR/C/ARG/CO/4 of 22/03/2010, and 
CRC/C/ARG/CO/ 3-4 of 21/06/2010, respectively). What is particularly 
troubling is the way the Argentine Court refers to these committees--
incorrectly--as ``judicial.'' This asserts that the nonbinding 
recommendations have a weight far beyond what was originally intended.
    While one panelist at the hearing asserted that having a U.S. 
representative on the Disabilities Committee might prevent such 
misinterpretations in the first place, history does not support this 
view. When in 2005 the Human Rights Committee incorrectly interpreted 
the ICCPR to tell Peru that its restrictive abortion laws represented 
``cruel, inhuman, and degrading treatment,'' there was an American 
expert on the Committee. Not only that, but the U.S. representative 
chaired the committee at the time. (Please see Human Rights Committee, 
Eighty-fifth Session, ``Views,'' November 22, 2005 (CCPR/ C/85/D/1153/
2003)).
    The United States would do well to avoid lending even more 
credibility to the committees by ratifying this treaty.

 Letter From Catholic Family & Human Rights Institute Submitted by Dr. 
          Yoshihara to Accompany Her Response to the Question

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              Responses of Richard Thornburg to Questions 
                    Submitted by Senator Bob Corker

    Question. During your testimony, you informed the committee that 
you were surprised by the Federal Government's application of the 
Chemical Weapons Convention to a domestic criminal prosecution (in Bond 
v. U.S., OT 2013, Docket No. 12-158, which is currently pending before 
the Supreme Court; see also 681 F.3d 149 (3d Cir. 2012). You also 
stated, however, that you were not concerned about similar 
misapplication or overreach under the CRPD in the event the United 
States were to ratify that treaty, based on your anticipation that the 
Court will use the pending Bond case to reverse Missouri v. Holland, 
252 U.S. 416, the seminal treaty power case that was decided in 1920.

  Given the potential implications of the pending Bond case 
        and the line of case law extending back to Missouri v. Holland, 
        would it be prudent to wait until the Supreme Court renders its 
        decision in Bond, in order to see what limits (if any) the 
        Court places on the current expansive treaty power?
  If it is not overturned, would you still recommend 
        ratification?
  In any outcome, how might we construct Reservations, 
        Understandings, or Declarations (RUDs) sufficient to ensure 
        against unintended consequences like this?

    Answer. While it is difficult to predict how the Supreme Court will 
decide any particular case, it is not necessary to wait until the Court 
decides the Bond case before proceeding to ratify the Disabilities 
Convention. Even in the unlikely event that the Court reaffirms or 
extends its earlier ruling on the nature of the Constitution's Treaty 
Power, we can still proceed to ratification. The basis for this view is 
twofold: (1) the ability of the committee to craft an appropriate 
Federalism reservation; and (2) the fact that no new implementing 
legislation is needed to comply with the Disabilities Treaty, and 
existing implementing legislation--the ADA, the Rehabilitation Act, and 
other disability rights laws--do not rely upon the Treaty Power for 
their constitutional justification.
    I have no objection to revising the Federalism Reservation that 
this committee adopted last year so that it includes language that puts 
to rest any concerns about the potential impact of the Bond case.

    Question. Are you concerned that the concept of disability is not 
clearly defined in the CRPD, but is instead an ``evolving concept'' 
that is subject to change over time? To the extent an evolving concept 
of disability is incompatible with the Americans with Disabilities 
Act's firm, medical definition of disability, how might we construct 
Reservations, Understandings, or Declarations (RUDs) sufficient to 
ensure against conflict between possible future interpretations of the 
definition of disability in the CRPD and our own ``gold standard'' in 
the ADA?

    Answer. I am not concerned about the nature of the approach to the 
definition of disability in the Disabilities Treaty. In fact, I believe 
that the approach of the treaty and the flexibility it provides to 
nation states is a strength, not a weakness.
    In the preamble to the Disabilities Treaty, it ``recognizes'' that 
disability is an evolving concept that comes from the interaction of a 
person's ``impairment'' (the treaty's language) and attitudinal and 
environmental barriers. Thus the treaty is grounded, as is our ADA 
definition, in the concept of impairment. We have a 40-year history 
with the definition of disability for disability nondiscrimination 
legislation, starting with the Rehabilitation Act of 1973 and 
continuing to the ADA Amendments Act of 2008. Our definition covers 
those with a current impairment, those with a history of an impairment 
or those who are regarded as having an impairment, even though they may 
not have one. Thus a woman who has recovered from breast cancer and is 
now cancer-free cannot be discriminated against because of her history 
of breast cancer when she applies for a job. We will be able to use our 
own definition of disability to implement the Disabilities Treaty.
    Last year the committee included an understanding that said that 
the term ``disability'' would be defined under the treaty coextensively 
with the definition under relevant United States law. I believe that a 
similar understanding in this year's ratification package that ties the 
treaty definition of disability to the definition in U.S. disability 
nondiscrimination law should relieve any concerns about the definition 
of disability.
                                 ______
                                 

               November 5, 2013, Op-ed by Dr. Bill Frist 
                   Submitted by Senator Barbara Boxer

             why the u.s. must lead on disabilities treaty
    In an HIV clinic in Africa, a man born deaf holds a single sheet of 
paper with a plus sign. He looks for help, but no one at the clinic 
speaks sign language. In fact, the staff doesn't seem interested in 
helping him at all.
    He returns to his plus sign. These are his test results. They 
dictate he should start antiretroviral drugs immediately and should 
also make changes in his sexual habits. But he doesn't know this. He 
leaves the clinic concluding that the plus sign must mean he's okay, 
that everything is just fine.
    This scenario seems shocking. Yet it continues to play out around 
the world. The Senate will tackle this issue at the November 5 in 
hearings on the Convention on the Rights of Persons with Disabilities 
(CRPD)--the Disabilities Treaty.
    There are nearly 1 billion people worldwide living with a 
disability. For the sake of those individuals, the United States joined 
158 other countries in signing the Convention on the Rights of Persons 
with Disabilities in 2009. The Disabilities Treaty was drafted to 
promote and protect the human rights and fundamental freedoms of 
persons with disabilities--modeled on our own Americans with 
Disabilities Act, but on a global scale.
    Yet the Senate failed to ratify the U.N. treaty last December. As 
is often the case, a bit of politics and a bit of misinformation ruled 
the day.
    First, the timing was bad. The vote was called in a lame duck 
session and many senators said this was an inappropriate time to ratify 
a U.N. treaty, signing a letter to that effect. But this was not the 
entire story.
    Two larger political issues emerged. Republicans exhibited some 
squeamishness around the term ``sexual and reproductive health'' in the 
treaty. While the term is undefined, there were rumblings that it could 
create a global right to abortion.
    The second issue was an impressive fear campaign launched by 
Michael Farris of the Home School Legal Defense Association to convince 
parents that the U.N. treaty would limit their ability to educate their 
disabled children at home.
    The relevant provisions in the treaty regarding sexual and 
reproductive health demand non-discrimination for persons with 
disabilities.
    In many parts of the world, people with disabilities, regardless of 
age, are believed to be sexually immature or inactive. The assumption 
can make them targets for rape and other sexual crimes while, at the 
same time, gynecologic and obstetrical care are withheld and considered 
inappropriate and unnecessary. In other cases, they are forcibly 
sterilized or forced to have abortions, simply because they have a 
disability.
    The treaty's ``sexual and reproductive health'' language is a 
necessary provision to protect these people. It does not define 
services--a ratifying country's existing law provides the definition. 
The agreement simply demands that those with disabilities not be denied 
any treatments based on their disability.
    It does not create any new services not previously available or 
legally sanctioned in an adopting country.
    For the home schooling debate, the story is more complicated. The 
Americans with Disabilities Act--on which the international agreement 
is modeled--has a strong history of Republican support.
    Consider, the disabilities act was signed into law by President 
George H.W. Bush--passed with a 76 to 8 vote in the Senate. President 
George W. Bush negotiated the CRPD treaty in 2006. Senator John McCain 
(R-Ariz.) and former Senate Majority Leader Robert Dole, who had each 
suffered serious war injuries, were significant supporters. Senator 
Jerry Moran, a Republican from Dole's home state of Kansas, also 
initially supported it.
    The tide turned, however, at a Senate Foreign Relations Committee 
hearing on July 12, 2012. Farris, president of the home-schooling 
organization, claimed in testimony that the U.N. treaty was 
``dangerous'' for parents who teach disabled children at home. He 
asserted that it will create a legal basis for the United Nations to 
infringe on the fundamental parental rights of parents of disabled 
children.
    In a radio interview after the hearing, Farris stated ``[t]he 
definition of disability is not defined in the treaty and so, my kid 
wears glasses, now they're disabled; now the U.N. gets control over 
them.''
    It sounded terrifying.
    Then-Foreign Relations Committee Chairman John Kerry dismissed 
Farris's argument out of hand. But the home-schooling organization has 
an impressive grass-roots machinery.
    Within a few weeks, Farris's argument spread. Senator James Inhofe 
(R-Okla.) and then Senator Jim DeMint (R-S.C.) wrote an op-ed article 
for The Washington Times stating the treaty would infringe on U.S. 
sovereignty. Farris's group began a phone campaign to all senators who 
might be a potential nay votes--specifically targeting the Kansas 
senators. Senator Rick Santorum, a parent of a disabled child, adopted 
Farris's argument as well.
    The probable nail in the coffin was when Moran changed his position 
to align with HSLDA.
    But despite the successful political maneuvering of Farris's home-
schooling organization and its capture of many Tea Party senators, 
careful reading of the law reveals their arguments were a 
misinterpretation.
    U.S. ratification of the treaty does make the agreement a U.S. law, 
along with the Senate's reservations, understandings and declarations 
(RUDs). However, these RUDs make it clear that current U.S. law--the 
Americans with Disabilities Act--meets any U.S. obligation under the 
treaty. In fact, the ADA and related disability laws far exceed the 
standards set out in the U.N. treaty. Ratifying the agreement will not 
affect current enforcement of the ADA or create additional causes of 
action under the treaty. The Americans with Disabilities Act would 
remain the controlling U.S. law.
    The U.N. experts committee cannot make international law and 
therefore cannot create new international obligations. The committee 
can make suggestions for improvement during a review process. But these 
recommendations are just that--recommendations. The United Nations will 
have no ability to swoop in and poach parental control over the 
education of children with disabilities in the United States.
    Some still argue that the United States has no need to ratify the 
U.N. treaty. The Americans with Disabilities Act, they insist, already 
protects the rights of those with disabilities at home. But as a global 
leader, we must stand with those struggling for the rights that we hold 
dear.
    These are complicated issues revolving around potentially esoteric 
points of international law. Given this complexity, many senators felt 
the previous hearings were rushed and that they did not have enough 
detail to make an informed decision. The set of hearings scheduled for 
November 5 and 12 will be different. Both witness lists have a deep 
bench of experts--legal, administrative and activist alike. Now is the 
time to really unpack what this U.N. treaty would mean for Americans 
and the world.
    Voting no to this treaty without a specific and compelling reason 
is saying that we do not think the global community deserves an ADA of 
their own.
    U.S. leadership matters. We should be at the table. It is not just 
Americans who deserve healthcare and protection from discrimination. It 
is everyone.
                                 ______
                                 

           Letter Submitted for the Record by Susan Yoshihara

                                                   November 5, 2013
Hon. Robert Menendez, Chairman,
Hon. Bob Corker, Ranking Member,
Committee on Foreign Relations,
Dirksen Senate Office Building,
Washington, DC.

Re United Nations CRPD.
    Dear Chairman Menendez and Ranking Member Corker: We write to you 
today to strongly urge you to oppose U.S. ratification of the U.N. 
Convention on the Rights of Persons with Disabilities (CRPD). There are 
multiple grounds for opposing the Convention.
    First, the CRPD will not help a single American with a disability. 
America already has the best laws in the world protecting the lives and 
rights of our people with disabilities. This treaty adds not a single 
protection not already provided by the Americans with Disabilities Act 
and panoply of other federal laws.
    Proponents of the CRPD are making reckless claims that it will help 
American veterans with disabilities when they travel overseas. The 
proposition is that States Parties to the CRPD are not currently 
implementing it and that they are only waiting for U.S. ratification 
before doing so. In their view, the only thing preventing Ecuador from 
building wheelchair ramps is U.S. ratification. There is absolutely no 
evidence for this assertion. Proponents of the CRPD are making promises 
to our heroic servicemen that they cannot keep. To make such empty 
promises to our wounded warriors is deeply offensive.
    Second, the CRPD does not advance U.S. global leadership on 
disability rights. The U.S. leads the world on the legal protection of 
persons with disabilities and their rights. The U.S. Agency for 
International Development funds and implements programs all over the 
world to advance the protection and rights of persons with 
disabilities. This leadership role has not and will not diminish absent 
U.S. ratification of the CRPD. No other country does as much as we do 
in helping persons with disabilities in other countries. It is 
laughable to suggest that foreign countries will reject our financial 
and technical assistance because we are not a party to the CRPD.
    Third, American manufacturers of products designed for persons with 
disabilities will continue to lead the world regardless of whether or 
not the U.S. joins the CRPD. Proponents' claims that foreign countries 
will reject our technology and products because we have not ratified 
the CRPD are baseless. There is not a scintilla of evidence to suggest 
that U.S. manufacturers are being blocked because the U.S. has not 
ratified the CRPD. In any event, the United States, when it does join 
human rights treaties, does so for the purpose of advancing human 
rights, not to advance its commercial interests.
    Fourth, the U.S. should not submit itself to yet another U.N. 
treaty monitoring body. The U.N. human rights treaty monitoring system 
is a mess. The treaty monitoring bodies have taken it upon themselves 
to radically reinterpret the language of human rights treaties and then 
insist upon compliance by States Parties. These bodies have largely 
been taken over by ideologues that advance a radical agenda often at 
odds with American social, cultural, and legal norms.
    Fifth, Article 7 in the CRPD violates the rights of parents by 
giving bureaucrats the authority to decide what is best for children 
with disabilities.
    Finally, many of us are deeply concerned that the CRPD is the first 
hard law treaty to include the phrase ``reproductive health.'' Though 
the CRPD treats the phrase in terms of nondiscrimination, we are 
nonetheless concerned. The phrase ``reproductive health'' is used by 
U.N. agencies, U.N. treaty monitoring bodies and by pro-abortion 
activists as including abortion. In fact, the World Health Organization 
defines ``reproductive health'' as including ``fertility regulation'' 
which includes abortion. The phrase is dangerous and should be 
rejected.
    We urge you in the strongest possible terms not to give your 
consent to ratification of the CRPD.
            Yours sincerely,

Austin Ruse, President, C-FAM
Alan Sears, President, Alliance Defending Freedom
Tony Perkins, President, Family, Research Council
Michael P. Farris, JD, LLM, Chairman, Home School Legal Defense 
        Association
Senator Rick and Karen Santorum, Cofounders, Patriot Voices
Penny Nance, CEO & President, Concerned Women for America Legislative 
        Action Committee
Melissa Ortiz, Founder & Principal, Able Americans
D. Brian Scarnecchia, M.Div., J.D., Associate Professor, Ave Maria 
        School of Law, President, International Solidarity and Human 
        Rights Institute, Inc., In consultative status with the United 
        Nations
Bob Lalonde, International Director, Priests for Life
Phyllis Schlafly, Founder and President, Eagl Forum
Mathew Staver, Founder and Chairman, Liberty Counsel
John Fonte, Ph.D., Senior Fellow, Hudson Institute
Tom McClusky, Vice President of Government Affairs, March for Life
Bradley Mattes, President, International Right to Life Federation
Dr. Keith Wiebe, President, American Association of Christian Schools
Thomas W. Jacobson, President, International Diplomacy and Public 
        Policy Center
Manuel Gonzalez, M.D., President, Catholics Called to Witness
Karen Malec, President, Coalitionon Abortion/Breast Cancer
Katharine Cornell Gorka, Executive Director, The Westminster Institute
Sharon Slater, President, Family Watch International
Tom Kilgannon, President, Freedom Alliance
Janice Crouse, Senior Fellow, Beverly LaHaye Institute/Concerned Women 
        for America
Nathan Mehrens, President, Americans for Limited Government
Laura Bunker, President, United Families International
Judie Brown, President, American Life League Inc.
Patricia McEwen, Ph.D., Director, Life Coalition International
Ron Pearson, President, Council for America
Jim Backlin, VP for Legislative Affairs, Christian Coalition of America
Jo Brinck, President, Sanctity Life Foundation
Tim Wildmon, President, American Family Association
Maria McFadden Maffucci, President, Human Life Foundation
Dana Cody, President and Executive Director, Life Legal Defense 
        Foundation
Rev. James R. Harden, Founder and COO, Commission for Reproductive 
        Health Service Standards
Jim Martin, Chairman, 60 Plus Association
Brent Bozell, Chairman, ForAmerica
Jo Tolck, Executive Director, Human Life Alliance
Gary Marx, Executive Director, Faith & Freedom Coalition
Joshua Duggar, Executive Director, Family Research Council Action
Jim Bentley, Executive Director, Parentalrights.org
Jeff White, Executive Director, Survivors of Abortion Holocaust
Susa Yoshihara, Ph.D., Senior VP for Research, C-FAM
Adriana Gonzalez, Vice President, Catholics Called to Witness
Donna Harrison, Ph.D., Executive Director and Director of Research and 
        Public Policy, American Association of Pro-Life Obstetricians 
        and Gynecologists
Gerard M. Nadal, Ph.D., Executive Director, Children First Foundation
Leonard Leo, Former U.S. Delegate, U.N. Human Rights Council
Lisa Nancollas, Mifflin County Tea Party Patriots
Paul Caprio, Director, Family Pac Federal
Samuel B. Casey, Managing Director & General Counsel, Law of Life 
        Project
                                 ______
                                 

        Letter Submitted for the Record by Senator John Barrasso

                                                   October 16, 2013
Hon. Robert Menendez, Chairman,
Hon. Bob Corker, Ranking Member,
Senate Foreign Relations Committee,
U.S. Senate, Washington, DC.
    Dear Chairman Menendez and Ranking Member Corker: I am writing to 
urge you and your fellow members of the Senate Foreign Relations 
Committee to report favorably and promptly to the Senate a resolution 
supporting U.S. ratification of the Convention on the Rights of Persons 
with Disabilities.
    The disabilities treaty is a crucial tool for recognizing and 
upholding the rights of one billion people--including our own disabled 
veterans--with disabilities around the world. This is why the American 
Legion, VFW, and many other prominent veteran's organizations have 
called upon your committee to support the treaty. Seven hundred 
disability, faith, and business organizations across the United States 
support it, as well as veterans on your committee. I join them in 
endorsing the treaty--and, in so doing, rejecting claims that U.S. 
ratification will somehow compromise our nation's sovereignty.
    The treaty promotes fairness and equality in education, work, and 
recreation. It calls for the inclusion of people with disabilities in 
the mainstream of society. It also recognizes the importance of keeping 
families, including family members with disabilities, together at home 
in their own communities. Many of these concepts were enshrined in U.S. 
law through passage of the Americans with Disabilities Act in 1990. The 
United States has always been at the forefront of the global movement 
for disability rights. Disability organizations and governments abroad 
look to our disability rights legislation as a model for their 
countries' nascent laws. If the Senate does not approve this treaty, 
the United States will continue to be excluded from the most important 
global platform for the implementation of best practices in disability 
rights abroad.
    To date, 137 countries have ratified the disabilities treaty. In 
New York each September, delegates from these nations participate in 
the annual Conference of States Parties and share new ideas for 
strengthening the rights of people with disabilities around the world. 
The United States should not be missing this vital opportunity to sit 
and play a leadership role at the world's largest table for countries 
trying to improve the lives of their citizens with disabilities.
    I therefore urge the Senate to provide its advice and consent for 
the United States to ratify the disabilities treaty at the earliest 
possible date. Thank you for consideration.
            Sincerely,
                                      Gen. Colin L. Powell,
                                                         USA (Ret).
                                 ______
                                 

             Letters and Articles Submitted for the Record 
                       by Senator Robert Menendez

        U.N. Disabilities Treaty Does Not Create Abortion Rights

Abortion has not been smuggled into international law by hiding under 
the banner of ``sexual and reproductive health.''
                  (By Austin Ruse and Piero A. Tozzi)
    Late week, United States signed the Convention on the Rights of 
Persons with Disabilities--the first binding United Nations treaty to 
mention ``sexual and reproductive health.'' The term has provoked 
concern among pro-lifers, who worry that it creates an implicit right 
to abortion. Let us emphatically state: It does not.
    There is some confusion about U.N. documents related to abortion--
and the proponents of abortion like it that way. Their strategy is to 
claim that terms like ``reproductive health'' mean abortion, and, by 
dint of repetition, get people to believe that it does. Pro-abortion 
groups claim ``reproductive health'' means abortion, and, most 
famously, so does U.S. Secretary of State Hillary Clinton, but that is 
not how the term is used in any negotiated U.N. document.
    Take the Disabilities Convention. The term was debated extensively, 
and it was clear throughout negotiations that ``sexual and reproductive 
health'' did not include abortion. This was recognized repeatedly by 
the Chairman, who said that no new rights--and specifically no right to 
abortion--were created. Indeed, the official report of the proceedings 
stated that ``this phrase was not intended to alter or prejudice the 
general policies of governments,'' thus acknowledging that countries 
are free to keep their laws protecting the unborn in place.
    At least 15 nations made statements that the phrase did not create 
a right to abortion. The U.S. in its closing statement affirmed that 
the term ``cannot be interpreted to constitute support, endorsement, or 
promotion of abortion.''
    Yet this history is sometimes lost. Pro-lifers do the unborn a 
disfavor when they start repeating the talking points of the other 
side. Articles have appeared in the pro-life press recently saying that 
the Disabilities Convention ``establishes an international right to 
abortion.'' It does no such thing, and nothing pleases groups like the 
Center for Reproductive Rights and International Planned Parenthood 
Federation more than to have our side repeat their revisionist 
narrative.
    For rewriting the history of U.N. conferences is part of the 
strategy pro-abortion groups adopt. Take, for example, the 
International Conference on Population and Development, held in Cairo 
in 1994. This conference was a victory for pro-lifers, who beat back a 
concerted attempt by the Clinton Administration and their European 
allies to establish a right to abortion. Yet following defeat, the 
other side has tried to rewrite the story as a victory for abortion 
rights.
    This is false for a number of reasons, and pro-lifers should arm 
themselves with facts to rebut their claims. The document produced at 
Cairo is not a treaty and is not binding. The Cairo document states 
explicitly that it created no new rights, so no ``right to abortion'' 
can be found there. Terms like ``reproductive rights'' and 
``reproductive health'' are indeed mentioned, but their definitions do 
not include abortion. In two places the document states that in ``no 
case should abortion be used as a method of family planning,'' and, 
most importantly, it acknowledges explicitly the sovereign right of 
states to legislate on the subject: ``Any measures or changes related 
to abortion within the health system can only be determined at the 
national and local level according to the national legislative 
process.''
    Does this mean that pro-lifers should be unconcerned about the 
United States signing the Disabilities Treaty, and the planned efforts 
to make it binding on us by ratifying it?
    No, pro-lifers should be concerned with Disabilities as with any 
treaty, because even though the Disabilities Convention does not create 
a right to abortion, it does create a committee to monitor compliance 
with its terms. U.N. compliance committees are often staffed with 
radicals who favor abortion, and, in their nonbinding advisory 
recommendations, will hector countries about changing their laws 
protecting life. They will claim that where the Disabilities treaty 
refers to ``sexual and reproductive health,'' it is referring to 
abortion, though this was emphatically not what countries intended to 
do when they negotiated, signed and ratified the treaty.
    Members of compliance committees should not be reinterpreting the 
meaning of words to claim ``reproductive health'' means abortion when 
that was not the intention. This holds equally true for pro-lifers, who 
should be the last people to want to aid and abet the strategy of the 
other side by repeating their false claims.
                                 ______
                                 

                        Patton Boggs Memorandum

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XIII.--Annex II.--Transcript of Hearing Held on November 21, 2013, with 
              Additional Material Submitted for the Record










                      CONVENTION ON THE RIGHTS OF 
                       PERSONS WITH DISABILITIES

                              ----------                              


                      THURSDAY, NOVEMBER 21, 2013

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:34 a.m., in 
room SD-G50, Dirksen Senate Office Building, Hon. Robert 
Menendez (chairman of the committee) presiding.
    Present: Senators Menendez, Cardin, Shaheen, Coons, Durbin, 
Udall, Murphy, Kaine, Markey, Corker, Rubio, Johnson, Flake, 
McCain, and Barrasso.

          OPENING STATEMENT OF HON. ROBERT MENENDEZ, 
                  U.S. SENATOR FROM NEW JERSEY

    The Chairman. Good morning. This hearing of the Senate 
Foreign Relations Committee on the Convention of the Rights of 
People with Disabilities will come to order.
    Let me first start off by thanking Secretary Kerry for 
being with us today for this second hearing on the ratification 
of the CRPD, and, Mr. Secretary, first, I think you have the 
thanks of all of us on the committee for the incredible work 
that you have been doing on behalf of our country across the 
globe. And your presence here today sends a strong message 
about the importance of this issue. So we appreciate you taking 
the time to come back to the committee that you chaired to 
support the treaty.
    We convened the second hearing on ratification of the 
treaty, having received the enthusiastic support of literally 
thousands of people and organizations, all of whom with 
letters, petitions, and various statements for the record are 
looking for us to finally take the treaty over the finish line. 
We have received compelling letters of support from companies 
like Adobe, Coca-Cola, DirecTV, NASCAR, and the Consumer 
Electronics Association, with over 2,000 member companies, the 
U.S. Chamber of Commerce, and I believe the Chamber is 
represented in our audience here today, as is the U.S. Business 
Leadership Network, which submitted a letter from over 50 
companies in support of the treaty, including Microsoft, IBM, 
AT&T, Merck, J.P. Morgan, and Northrop Grumman, to mention a 
few.
    I also want to recognize former President and CEO of the 
Financial Services Roundtable, Steve Bartlett, who is here. 
When he was in the House, he was a leader of the effort to pass 
the Americans with Disabilities Act, and we appreciate his 
presence.
    And we have received individual letters from 84 nonprofit 
disability and religious organizations like the Red Cross, 
Easter Seals, the National Federation for the Blind, and 
Special Olympics, to name a few, not to mention sign-on letters 
representing over 1,000 different groups.
    We have heard from individuals, some not so well known and 
some very well-known citizens, like Colin Powell; Chinese human 
rights activist Chen Guangcheng; Special Olympics athlete 
Loretta Claiborne; I. King Jordan, President Emeritus of 
Gallaudet University, who wrote: ``Nothing is more American 
that recognizing equal opportunity for all citizens.'' And I 
think at the end of the day, Dr. Jordan's simple but compelling 
statement is the sum and substance of why we must ratify the 
treaty.
    And we have several petitions that have been organized by 
different groups with a total of over 67,000 signatures.
    And let us not forget what this treaty means to veterans. 
We have received letters of support from 15 veterans' 
organizations, including the American Legion, representing 2.4 
million veterans, and the Veterans of Foreign Wars, with 1.5 
million members. And I would also like to recognize the 
National Commander of the American Legion, Dan Dellinger, who 
is here with us today. Everyone who supports the treaty is 
pleased with the resolution the American Legion passed in 
August at your national convention, and we thank you not just 
for that, but on behalf of a grateful Nation to all of you who 
have served, thank you very much.
    We are also deeply honored to have so many of our wounded 
warriors of all generations, including those from the Iraq and 
Afghanistan Veterans of America. Thank you for taking the time 
to show your support. You certainly have ours, which is one 
reason we should ratify this treaty as soon as possible. We 
salute you, and we thank you for your service and your 
sacrifice. And I am told we will soon receive a letter of 
support from several former Secretaries of Defense.
    At the end of the day, the support from the U.S. military 
and veterans' community has truly been overwhelming. And so I 
move that all of the petitions, letters, and written statements 
of support we have received be entered into the record to 
reflect the extraordinary depth of the support for the treaty 
that it has from thousands of Americans on both sides of the 
aisle and every walk of life. Without objection, so ordered.
    Let me conclude by saying that at the end of the day, 
ratification of the Convention of the Rights of People with 
Disabilities is simply the right thing to do. I repeat Dr. 
Jordan's simple message, eloquent nonetheless, is: ``Nothing is 
more American than recognizing equal opportunity for all of our 
citizens.''
    With that, let me turn to the distinguished ranking member 
of the committee. I particularly want to thank him for working 
with me on a process forward to have very substantive 
discussions about what the treaty means, what it can achieve, 
what are some of the concerns of members both of the committee 
and beyond, and it has been an extraordinary effort to work 
with you.
    Senator Corker.

             OPENING STATEMENT OF HON. BOB CORKER, 
                  U.S. SENATOR FROM TENNESSEE

    Senator Corker. Thank you, Mr. Chairman. I do appreciate 
the tone that you have set in your leadership and the committee 
members have set in separating and ensuring that those things 
we do beyond our shores are done in the most bipartisan way 
possible. And I really do appreciate the way the committee has 
worked together. I want to thank Secretary Kerry for being here 
today.
    And as I mentioned to some of the leading advocates just a 
minute ago, I think the ratification of this treaty really 
rests solely on the administration's willingness to ensure that 
this treaty has no effect on domestic law. No effect. The 
meetings we have had thus far with the administration officials 
have been pleasant but unsatisfying in that as concerns are 
raised, the administration so far has not shown a willingness 
to try to accommodate those. So I am glad that the Secretary is 
here.
    I am really so proud of the people who are here and the 
efforts that they have led over the last several decades to 
advance ADA and so many other significant measures that have 
had such a positive effect on the disability community. It has 
been outstanding. I think the hearing that we had last year may 
have been one of the most moving hearings that I have 
participated in, as we had Senators McCain and Harkin out front 
with many others talking about the many, many strides that have 
taken place. And I really do think that was one of my high 
marks here in the Senate.
    At the same time, people have said that ADA is the 
implementing language, that there are no further steps that 
need to be taken domestically. We just had a case, the Bond 
case--and I know there has been some dispute over its 
implications, but it is a case that significantly points out 
how the Supreme Court or courts can, in fact, take into account 
treaties to affect domestic law. We saw where a woman in 
Pennsylvania actually was being convicted because of a treaty 
that we had relative to chemical weapons. And I know that some 
on the committee have stated that the reason for that was that 
Congress passed implementing language. I thought that was an 
interesting argument.
    But even after this treaty passes, another Congress can 
pass implementing language, and when that occurs, it does 
expand the limits of what we now have at the Federal Government 
level relative to federalism and other types of issues.
    So I will just say to the Secretary, as he begins to 
testify, I would love to see the advancement of rights for the 
disabled. I would love to see that happen. I would love to see 
America continue to play a role in advancing those kinds of 
things. But as I just mentioned, it is absolutely incumbent on 
the administration to agree to very difficult language that 
absolutely assures in every single case that a treaty like this 
will not infringe upon federalism and other kinds of issues 
that are very important, I think, to people on both sides of 
the dais. So I hope that this hearing will be more about 
substance and less about cheerleading, and I hope that the 
Secretary's testimony will reflect that and his answers to the 
questions.
    So I thank you all for being here. I appreciate the 
chairman having this hearing. I look forward to a substantive 
hearing, as he alluded to. I appreciate all the witnesses who 
have come here today.
    The Chairman. Mr. Secretary, the floor is yours.

   STATEMENT OF HON. JOHN F. KERRY, SECRETARY OF STATE, U.S. 
              DEPARTMENT OF STATE, WASHINGTON, DC

    Secretary Kerry. Well, thank you. Mr. Chairman and Ranking 
Member Corker, and members of the committee, thanks very, very 
much for welcoming me here to talk about the disabilities 
treaty, which I am very anxious to do, mindful of the comments 
of the ranking member just now.
    I would just start off by saying we are 100 percent 
prepared, as we have been, to work through what are known as 
RUDs, or the reservations, understandings, and declarations, in 
order to pass this treaty. That is our goal. You know, we begin 
with a place that makes it clear that we do not believe this 
has impact, but we are happy to restate and reassert the law in 
ways that make Senators feel comfortable, obviously. We want to 
pass this.
    It is not lost on any of us that only 11 months ago the 
Senate fell just five votes short of approving this treaty. So 
more than 60 Senators have already resolved in their minds many 
of the questions that are reraised again and again. And we can 
go into them today, as I am sure we will.
    Obviously, that day when we fell those five votes short 
with a number of people who had previously been going to vote 
for it, then changed, so it is even closer--that was a rough 
day for a lot of us who support the treaty, including Senator 
McCain who is hardly a newcomer to this issue and is one of the 
strongest, most eloquent voices for why we ought to be doing 
this, for why, to put it bluntly, this treaty is in America's 
interests.
    In the after-action conversations that I had with many 
Senators, both Republicans and Democrats alike, including a 
number who had voted against the treaty, yourself, Senator 
Corker, and others, I even heard some real regret about what 
had transpired and the unintended message that the outcome sent 
to Americans with disabilities, as well as to other people 
around the world. And I heard from many, not just a 
willingness, but a hope that they would have the chance in a 
new Congress to take up the treaty again and to demonstrate the 
important truth that Senators from both sides of the aisle care 
deeply about the rights of people with disabilities.
    So, thank you, Chairman Menendez, for your comments this 
morning, for your leadership in bringing the first hearing and 
being willing to come back at this important treaty, and thank 
you, Ranking Member Corker, for joining with him in a 
bipartisan way to do exactly what both of you have talked about 
trying to do here. And that is, with an eye to trying to make 
certain that we air all of the concerns so that every Senator 
can make up their own judgment in an atmosphere that is not 
clouded with procedural questions, as we unfortunately were 
last year.
    I think we all approach this renewed discussion--we in the 
administration, having listened very carefully to all of you, 
and we recognize that while many Senators voted ``yes,'' some 
Senators were dissatisfied with the process last year, and that 
several are not prepared to support the treaty until they feel 
that certain concerns are addressed.
    So again, I repeat I am absolutely committed. I have said 
this to the chairman in private conversations. We will work 
with you on an appropriate reservation or understanding or 
declaration, as appropriate, in order to try to clarify 
something if, indeed, it really is begging for clarification 
and we are not able to show adequately through legal cases, 
through precedent, through the reality of the treaty itself 
that it is already addressed.
    I still believe what I believed the first time we tried to 
do this when I was chair, that the ratification of the 
disabilities treaty will advance core American values. It will 
expand opportunities for our citizens and our businesses, and 
it will strengthen American leadership. And I am still 
convinced that we give up nothing, but we get everything in 
return. I will say that again. We give up nothing, but we get 
everything in return.
    Our ratification does not require a single change to 
American law, and it is not going to add a penny to our budget. 
But it will provide the leverage, the hook that we need in 
order to push other countries to pass laws or improve their 
laws or raise their standards for the protection of people with 
disabilities up to the standard that we have already adopted in 
the United States of America, up to the standard that prompted 
President George H.W. Bush and Republican Leader Dole to pass 
the Americans with Disabilities Act and indeed to negotiate the 
treaty.
    Now, I am especially engaged now, obviously, as Secretary 
of State because having traveled to a great number of countries 
these last 9 months since you confirmed me, I have seen 
firsthand the need for this treaty in ways that I never had 
before. It is not an abstract concept. This is not just a nice 
thing to do. It is not something that is for the few. It really 
raises standards for the many, and there are countries where 
children with disabilities are warehoused from birth, denied 
even a birth certificate, not a real person, and treated as 
second class citizens every single day of their lives.
    The United States has the ability to impact that by the 
passage of this treaty. One hundred thirty-eight countries have 
already signed up to this. In too many countries, what we did 
here at home with the Americans with Disabilities Act has not 
even been remotely realized overseas, and in too many places 
what we take for granted here has not been granted at all.
    Now, I will never forget my visit recently to a sports 
rehabilitation center for disabled veterans in Bogota a little 
while ago, a center that we support with funding from USAID. 
And I met police officers who were injured by grenades, 
soldiers wounded by IEDs, volunteers caught in the tragic 
shootouts that take place over their efforts to help us 
together to enforce global international narcotics objectives. 
These brave men and women have risked life and limb and they 
have lost friends in battle, and yet there is a whole world 
that they are unable to access today because of their 
disabilities which they received as they undertook duties 
shared by our hopes and aspirations with respect to the 
enforcement of law.
    Moments like this really clarify for me the work that we 
have to do to export our gold standard. The Americans with 
Disabilities Act is the global gold standard. We should be 
extraordinarily proud of it. We are. But I would hate to see us 
squander our credibility on this issue around the world because 
we are unwilling to embrace what we actually began--this 
initiative. When I tell other countries that they ought to do 
what we have done, I am often reminded that we have not done 
what we said we were going to do. We have not joined the treaty 
ourselves. It is pretty hard to leverage people when you are on 
the outside.
    So those 138 parties to the treaty, when they convene, we 
miss out on the opportunity to use our expertise, to leverage 
what we have done in America and put it on the table. We lose 
out on that. We are not at the table. We cannot share our 
experience and use our experience to broaden theirs. When other 
countries come together to discuss issues like education, 
accessibility, and employment standards for people with 
disabilities, areas where the United States has developed the 
greatest expertise, we have been excluded because we are not a 
party to the treaty. And the bottom line is that when we are 
not there, other countries with a different and, unfortunately, 
often a lower standard, a lower threshold, wind up filling the 
void, and that is the best that people get.
    I do not want to see us continue to take ourselves out of 
the game. No Member of the Senate should want us to voluntarily 
take ourselves out of this. Remaining on the sidelines 
jeopardizes our role in shaping the future of disability rights 
in other countries. And we need to help push the door open for 
other countries to benefit, not just from our example but from 
our guidance and our expertise, our experience.
    Joining the treaty is the most powerful step that we can 
take to gain all of those upsides. And do not take my word for 
it. In a letter to this committee last month, former Secretary 
of State Colin Powell said it best. He wrote: ``If the Senate 
does not approve this treaty, the United States will continue 
to be excluded from the most important global platform for the 
implementation of best practices in disability rights abroad.''
    So this is about something very real. Look at the numbers 
of people who are here today and the numbers of groups 
represented behind me here today. Every one of them represents 
thousands more people for whom this is very real. It is about 
things that you can see and you can touch and that make a 
difference to people's lives. I am talking about sidewalks 
without curb cuts. Try managing that. Public buildings with no 
accessible bathrooms, restaurants, stores, hotels, and 
universities without ramps or elevator access, buses without 
lifts, train platforms without tactile strips that keep you 
from going over onto the tracks.
    We cannot afford to ignore these barriers as problems that 
somehow affect other countries but do not affect us. They are 
present all over the world, including some of the top 
destinations for Americans traveling abroad for work or for 
study or for pleasure. And we are not using all of our power 
and influence to change things for the better if we do not join 
this treaty.
    Now, I ask you just to think about what this treaty could 
mean. It means something for everybody with disabilities. But I 
do particularly want to ask you to think about what it means to 
our veterans with disabilities. Last year, I met a fellow named 
Dan Berschinski. He is a West Point graduate, a retired U.S. 
Army captain, and he is an Afghanistan war veteran. And like 
many of us, Dan never thought that he would one day have a 
disability or be an advocate for people with disabilities. But 
his life changed instantly when he stepped on the trigger of an 
IED and he lost both of his legs.
    Dan speaks in absolutely clear, searing, stark terms about 
the difficulty, the fear, the embarrassment of negotiating 
obstacles abroad as a person with a disability. And he 
experienced those obstacles firsthand when he traveled to South 
Africa. And he told me last year--he told all of us because he 
shared his testimony with this committee, ``The advantages that 
we take for granted here at home that allow people like me to 
live fulfilling, independent lives do not exist in much of the 
rest of the world.''
    Let me tell you the good news. Dan is now a student at 
Stanford Business School, and he wants to be able to take 
advantage of every possible opportunity. He can do that in the 
United States because of the ADA and other disability rights 
laws. But Dan will tell you--not me--he will tell you, as he 
said last year, as he experienced on a trip abroad, his 
opportunities in the increasingly important international 
marketplace are hindered by his disability and it is a 
disability that he acquired while fighting overseas on our 
behalf. He is asking us now to fight for him and a lot of folks 
like him on their behalf.
    There are an estimated 5.5 million disabled veterans just 
like Dan, and many of the veterans and their beneficiaries on 
the post-9/11 GI bill have a disability. And many of them are 
unable to study abroad because of poor accessibility standards 
at schools overseas.
    Now, I have met with recovering veterans at home in 
Massachusetts. I have met with them at Walter Reed. They want, 
very simply, a world where they can be independent, go out and 
fend for themselves, where they can travel abroad to work or 
study or vacation. And they should never have to worry about 
whether the disabilities sustained fighting on our behalf are 
going to prevent them from accessing a classroom, a workplace, 
a hotel, or transportation overseas. Like all people with 
disabilities, they deserve a world where they can fully 
participate in the global economy on equal terms without fear 
of discrimination or loss of dignity.
    Joining the disabilities treaty will also expand 
opportunities for American students with disabilities who need 
to be able to study abroad to prepare themselves to compete in 
the global economy.
    I want you to take the example of Anais Keenon. She is one 
of the outstanding interns at the State Department. She is here 
today. Anais is a graduate student with dreams of a career in 
foreign affairs. She happens to also be deaf. Two years ago, 
she traveled to Ghana. It was the opportunity of a lifetime, 
but the obstacles she faced from the absence of written 
directions on how to proceed through customs at the airport to 
the absence of fire alarms with flashing lights in public 
buildings made the demands of everyday life much more difficult 
for her to sustain. And she managed to travel despite the 
obstacles in her way that would stop others from traveling at 
all. Anais is exceptional, but it should not be the exception. 
It ought to be the rule.
    And America has more students with disabilities in higher 
education than ever before, partly by virtue of what we have 
accomplished with the ADA. So students with disabilities 
participate in study abroad programs unfortunately less than 
half as often as those without disabilities. And our joining 
this treaty will help change those numbers.
    I would just ask you very quickly and then I will wrap up 
to consider just a few concrete examples. We are talking about 
joining a treaty that will strengthen our hand as we push for 
fire alarms with flashing lights so people who are deaf or hard 
of hearing will know when there is an emergency or when they 
need to evacuate. We are talking about joining a treaty that 
gives us leverage to push for other countries to have sidewalks 
with those curb cuts so people who use wheelchairs can safely 
cross the street or the tactile strips at the train platform so 
people who are blind do not fall into danger.
    Our joining the treaty means that we will lead the way for 
other countries to raise their standards, and it means that we 
will lead the way for other countries to adopt our standards, 
for all of these things, accessible bathrooms, tactile strips, 
fire alarms, flashing lights, all of the advancements that have 
made an enormous difference in the lives of Americans with 
disabilities.
    Now, I will admit to you change is not going to just happen 
with the passage of the treaty. It is not going to happen 
overnight. When we passed the ADA, sidewalks with these curb 
cuts and bathrooms that were accessible did not appear the next 
day, nor did all of the businesses that make accessible 
products that serve people with disabilities. But the 
disabilities treaty, just like the ADA is a process. And our 
joining the treaty, followed by a very important ingredient--we 
pass this treaty. I will send a message to every embassy in the 
world, and we will begin to engage a protocol that will have 
our people reaching out to every country and every government, 
and we will use our presence in this treaty to leverage these 
changes in these other countries, to encourage these changes, 
to use the voice that you will give us by actually joining it, 
a voice that we are not able to exercise today for our absence 
as a member.
    If we join, we can ensure that vets like Dan Berschinski 
and a lot of others like him have the same opportunities abroad 
as other Americans. That is why the American Legion, our 
Nation's largest wartime veterans' service organization, which 
I am proud to be a lifetime member of, and the VFW, likewise, 
and many other veterans groups support the ratification of 
this.
    If we join, I ask you to think about this. Why is the 
American Chamber of Commerce supporting this? Why are so many 
businesses, Coca-Cola, which is I think in something like 198-
200 countries plus--why do they support it? Because this will 
open new markets. It will level the playing field for our 
businesses who already meet accessibility standards. As other 
countries rise to meet our standards and need our expertise, 
guess what. They are going to look to American companies that 
already produce these goods, and we will be able to help them 
fill the needs and this means jobs here at home. That is why 
IBM and the Consumer Electronics Association and many other 
businesses support ratification.
    So I think this is the single most important step that we 
can take today to expand opportunities abroad for the more than 
50 million Americans with disabilities. This treaty is not 
about changing America. This treaty is about America changing 
the world.
    And I hope that each of you will put yourselves in the 
situation if you were disabled. One of our colleagues, Mark 
Kirk, as we all know, who supports this treaty, has 
unfortunately found himself fighting back against things that 
happened unexpectedly. And so while our circumstances might 
change, our rights and our opportunities should never change. 
And with the passage of this treaty, we have an opportunity to 
guarantee that for all Americans. And we also have an 
opportunity to change lives for the better for a lot of people 
in the world. That is what America is all about. And I hope we 
will ratify this treaty.
    Thank you, Mr. Chairman.
    [The prepared statement of Secretary Kerry follows:]

         Prepared Statement of Secretary of State John F. Kerry

    Chairman Menendez, Ranking Member Corker, thank you for welcoming 
me back here to talk about the Disabilities Treaty.
    It's not lost on any of us that 11 months ago the Senate fell just 
five votes short of approving this Treaty. It was a tough day for many 
of us who supported the Treaty, including Senator McCain who is a new 
member of the committee but hardly a newcomer to this issue. In fact, 
he is one of the most eloquent voices about precisely why this Treaty 
is in America's interests.
    In the after-action conversations I had with many Senators, 
Republican and Democrat both, including many who had voted against the 
Treaty, I heard some real regret about what had transpired and the 
unintended message the outcome sent to Americans with disabilities. And 
I heard from many not just a willingness, but a hope, that they would 
have the chance, in a new Congress, to take up the Treaty again--to 
demonstrate the important truth that Senators from both sides of the 
aisle care deeply about the rights of people with disabilities. 
Chairman Menendez and Ranking Member Corker are doing exactly that, 
with an eye toward airing every concern, so that Senators can make 
their own judgments in an atmosphere that is not clouded with 
procedural questions and I'm glad they are.
    I think we all approach this renewed discussion having listened 
closely to all of you. We recognize that while many Senators voted yes, 
some Senators were dissatisfied with the process last year and that 
several are not prepared to support the Treaty until certain concerns 
are addressed. I want you to know that I am committed to helping find 
the common ground so that this Treaty moves forward with the broad 
bipartisan support it deserves.
    I still believe what I believed the first time--that ratification 
of the Disabilities Treaty will advance core American values, expand 
opportunities for our citizens and businesses, and strengthen American 
leadership. And I am still convinced that we give up nothing by joining 
but get everything in return. Our ratification doesn't require a single 
change to American law, and it won't add a penny to our budget. But it 
will provide the hook we need to push other countries to raise their 
laws and standards for the protection of people with disabilities to 
the standard we set at home under President George H.W. Bush and 
Republican Leader Dole when we passed the Americans with Disabilities 
Act.
    And I am especially engaged now as Secretary of State, because, 
having traveled to a great number of countries these last 9 months 
since you confirmed me, I have seen firsthand the need for this Treaty 
in ways I never had before. It's not an abstract concept. There are 
countries where children with disabilities are warehoused from birth, 
denied even birth certificates, treated as second class citizens every 
day of their lives.
    In too many countries, what we did here at home through the 
Americans with Disabilities Act hasn't been remotely realized overseas. 
In too many places, what we take for granted hasn't been granted at 
all.
    I'll never forget my visit to a sports rehabilitation center for 
disabled veterans in Bogota earlier this year--a center that we support 
with funding from USAID. I met police officers injured by grenades, 
soldiers wounded by IEDs, volunteers caught in the crosshairs of a 
tragic shoot-out. These brave men and women have risked life and limb 
and lost friends in battle. And yet, there's a whole world that they're 
unable to access today because of their disability.
    Moments like this clarify for me the work we must do to export our 
gold standard--the American standard. I hate seeing us squander our 
credibility on this issue around the world. When I tell other countries 
that they should do what we've done, I'm often reminded that we haven't 
joined the Treaty ourselves. When the 138 parties to the Treaty 
convene, we miss out on the opportunity to speak or to share our own 
experience. When other countries come together to discuss issues like 
education, accessibility, and employment standards for people with 
disabilities--areas where the United States has the greatest 
expertise--we've been excluded because we're not a party to the Treaty. 
And the bottom line is that when we're not there, other countries with 
different, and often lower, standards fill the void.
    I don't want to see us continue to take ourselves out of the game. 
Remaining on the sidelines jeopardizes our role in shaping the future 
of disability rights in other countries. We need to help push open the 
door for other countries to benefit, not just from our example, but 
from our guidance and expertise.
    Joining the Treaty is the most powerful step we can take to make 
that happen. Don't take my word for it. In a letter to this committee 
last month, Former Secretary of State Colin Powell said it best. He 
wrote, ``If the Senate does not approve this Treaty, the United States 
will continue to be excluded from the most important global platform 
for the implementation of best practices in disability rights abroad.''
    This is about something very real. It's about things you can see 
and touch that make a difference. I'm talking about, sidewalks without 
curb cuts; public buildings with no accessible bathrooms; restaurants, 
stores, hotels, and universities without ramps or elevator access; 
buses without lifts; and train platforms without tactile strips. We 
cannot afford to ignore these barriers as problems affecting other 
countries but not us. They're present all over the world, including in 
some of the top destinations for Americans traveling abroad for work or 
study. And we're not using all of our power and influence to change 
things for the better if we don't join the Treaty.
    Just think about what this Treaty can mean to our own veterans with 
disabilities. Last year, I met Dan Berschinski. He's a West Point 
graduate, retired U.S. Army captain, and Afghanistan war veteran. Like 
many of us, Dan never thought that he would one day have a disability. 
But his life changed instantly when he stepped on the trigger of an IED 
and lost both his legs.
    Dan speaks in searing terms about the difficulty, fear, and 
embarrassment of negotiating obstacles abroad as a person with a 
disability. He experienced those obstacles firsthand when he traveled 
to South Africa. As he told me last year, ``the advantages we take for 
granted here at home that allow people like me to live fulfilling, 
independent lives, don't exist in much of the rest of the world.''
    Dan is now a student at Stanford business school. We all want him 
to take advantage of every possible opportunity. He can do that in the 
United States because of the ADA and our other disability rights laws. 
But as Dan will tell you, his opportunities in the increasingly 
important international market are hindered by his disability--a 
disability he acquired fighting overseas on our behalf.
    There are an estimated 5.5 million disabled American veterans just 
like Dan. Many of the veterans and their beneficiaries on the post-9/11 
GI bill have a disability--and many of them are unable to study abroad 
because of poor accessibility standards at schools overseas.
    I've met with recovering veterans at home in Massachusetts and at 
Walter Reed. They want and deserve a world where they can travel abroad 
to work, study, or just vacation. They should never have to worry about 
whether the disabilities sustained fighting on our behalf will prevent 
them from accessing classrooms, workplaces, hotels or transportation 
overseas. Like all people with disabilities, they deserve a world where 
they can fully participate in the global economy on equal terms without 
fear of discrimination or loss of dignity.
    Joining the Disabilities Treaty will also help expand opportunities 
for American students with disabilities, who need to be able to study 
abroad to prepare themselves to compete in the global economy. Take 
Anais Keenon, one of our outstanding interns at the State Department. 
Anais is a graduate student with dreams of a career in foreign affairs. 
She also happens to be deaf.
    Two years ago, she traveled to Ghana. It was the opportunity of a 
lifetime. But the obstacles she faced--from the absence of written 
directions on how to proceed through customs at the airport to the 
absence of fire alarms with flashing lights in public buildings--made 
the demands of everyday life so much more difficult for her. She 
managed to travel despite obstacles in her way that would stop others 
from traveling at all. Anais is exceptional. But it shouldn't be the 
exception--it should be the rule. America has more students with 
disabilities in higher education than ever before. But students with 
disabilities participate in study abroad programs less than half as 
often as those without disabilities. Our joining the Treaty will help 
change those numbers.
    Consider a few very concrete examples:
    We're talking about joining a Treaty that will strengthen our hand 
as we push for fire alarms with flashing lights so people who are deaf 
or hard of hearing know when there's an emergency and they need to 
evacuate. We're talking about joining a Treaty that will give us the 
leverage we need to push for other countries to have sidewalks with 
curb cuts so people who use wheelchairs can safely cross the street, or 
tactile strips on train platforms so people who are blind don't fall 
off the edge.
    Our joining the Treaty means that we lead the way for other 
countries to raise their standards, and it means we lead the way for 
them to adopt our standards--for curb cuts, ramps, bus lifts, 
accessible bathrooms, tactile strips, fire alarms with flashing lights 
and all of the other advancements that have made an enormous difference 
in the lives of Americans with disabilities.
    Now, we all know that change will not come overnight or through 
joining the Treaty alone. When we passed the ADA, sidewalks with curb 
cuts and accessible bathrooms didn't appear the next day; nor did all 
of the businesses that make accessible products to serve people with 
disabilities.
    The Disabilities Treaty--just like the ADA--is a process. Our 
joining the Treaty, followed by our sustained engagement with Treaty 
partners, will help other countries move forward in that process. By 
helping them, we help ourselves.
    If we join, we will put ourselves in the strongest position to push 
other countries to make systemic changes in how they treat persons with 
disabilities, changes which will help more students--like Anais--study 
abroad. That's why hundreds of disability rights groups, faith-based 
organizations, and businesses support this Treaty.
    If we join, we will help ensure that our wounded warriors from 
Afghanistan and Iraq--vets like Dan Berschinski--have the same 
opportunities abroad as other Americans. That's why the American 
Legion--the Nation's largest wartime veterans service organization--the 
VFW, and many other veterans groups support ratification.
    And if we join, we will open new markets and level the playing 
field for our businesses, who already meet robust accessibility 
standards. As other countries rise to meet our standards and need our 
expertise, they will look to our businesses for accessible products and 
technologies. That's why the U.S. Chamber of Commerce, IBM, the 
Consumer Electronics Association, and many other businesses support 
U.S. ratification.
    So what's really at stake? Joining the Disabilities Treaty is the 
single most important step we can take right now to expand 
opportunities abroad for the more than 50 million Americans with 
disabilities. This Treaty isn't about changing America. It's about 
America changing the world.
    The way we treat people of all backgrounds--including how we treat 
our brothers and sisters with disabilities--demonstrates our values and 
defines who we are. That's our greatest export, and this is our chance 
to make sure that we leave no one behind. The principle here is simple: 
Any one of us could become disabled tomorrow. And though our 
circumstances might change, our rights and opportunities must never 
change. That is what is at stake, and that is why I hope that we can 
get past the division, reason together, and find a way forward this 
year.
    Thank you, and I look forward to your questions.

    The Chairman. Thank you, Mr. Secretary, for very 
substantive, very vivid examples of why the treaty is so 
important for the lives of Americans with disabilities 
traveling abroad, the lives of their accompanying families, and 
the lives of our veterans.
    Let me start a round of questions and try to get to some of 
the issues that I have heard. I am sure you have heard them 
from your past effort in this regard, and we have heard it in 
the first round of hearings and individual conversations. Some 
argue that the United States should not enter into treaties 
that do not involve matters of national security. What would 
you say to those who espouse the view that treaties like this 
are unnecessary?
    Secretary Kerry. Well, Mr. Chairman, I think I have just 
given you a fairly strong description of why this is necessary. 
I mean, we join treaties because they are in our national 
interest. I mean, if you think about the treaties that the 
Senate has passed on occasion that possibly impact the lives of 
people, we have passed treaties that promote religious freedom. 
We have passed treaties that allow for intercountry adoption. 
We have passed treaties for the international recovery of child 
support. We passed treaties that enforce intellectual property 
rights. I mean, we do this because it is in the interest of the 
United States.
    And as I have said in this particular case, it is in the 
profound interest of everybody with disabilities, and I find it 
very hard to see why we could ask people to go abroad, fight, 
sustain an injury, fight for our values, and not reinforce 
those values by allowing them then to travel abroad, work 
abroad, study abroad with the same rights they have here in 
America. That is what is at stake. That is what makes this in 
our interest.
    The Chairman. Now, another argument that I have heard is 
that ratification would subordinate the United States to the 
U.N. and allow our laws and actions to be guided by the United 
Nations, the Disabilities Treaty Committee, foreign courts and 
judges. I personally disagree with that view, and I think we 
have tried to explore it in our first hearing. But I would like 
to get your take. Would ratification violate principles of 
American sovereignty?
    Secretary Kerry. No, Mr. President, on the contrary. There 
is no impact whatsoever on the sovereignty of the United 
States. In fact, you all are exercising our sovereignty right 
now by doing what the Framers of the Constitution envisioned, 
which is ratifying a treaty. And the treaty, if it does not 
have any negative consequence on the United States--it does not 
require us to do anything. There is no subjugation to any 
entity outside. There is no cause of action created here. There 
is no access to American courts. There is no enforceability. 
There is no self-execution in here. So there is no cause of 
action as a consequence that allows people to go to court.
    So in fact, joining this treaty does not require a change 
to U.S. law, and there is no reach whatsoever by any committee 
or any entity outside. The one committee that exists within the 
framework of this treaty is allowed to suggest things, but they 
have no power to enforce, no power to compel, no power to do 
anything except put an idea on the table. Nothing can change 
unless the U.S. Senate were to reratify whatever suggestion the 
U.S. Senate might engage in subsequently. But there is no 
change.
    The Chairman. And finally, I appreciate the comments that 
you made here today in public, as well as the ones you have 
expressed to me and, I believe, other colleagues in private 
about our openness and willingness to consider reservations, 
understandings, and declarations that would amplify, possibly 
clarify and assuage concerns that members have in terms of 
voting for ratification of the treaty. And I just want to 
create a framework for that.
    I think myself as the chair and other Senators are very 
open to working with you on that process. However, we can also 
have requests of RUDs that go beyond an appropriate balance. So 
while we want to work very deeply with those who want to get to 
a ``yes'' on the treaty and find a way for them to do so, it is 
my hope that the requests that we get for reservations, 
understandings, and declarations are fair and balanced so that 
we can take care of the concerns that exist, and at the same 
time not undermine the very essence of our standing with the 
treaty. Is that a fair statement of how we seek to balance 
this?
    Secretary Kerry. It is a very fair statement, Mr. Chairman. 
It is exactly our point of view. I mean, last year when we did 
this process, we entertained--and I was happy to entertain as 
chair--a number of reservations, a number of understandings, et 
cetera. I thought we did a pretty good job, but we can maybe 
hone them and do some more. We are willing to work with you.
    But we do not need to fill this thing up with a stack of 
restatements of things that absolutely do not need to be 
restated. I think we have to exercise a little bit of restraint 
and judgment as to what is really a case in controversy and 
what is not. I am absolutely prepared--and I said this 
originally to both you and to the ranking member. We want 
Senators to feel comfortable. So we are prepared to address 
legitimate concerns, and we will work with you to do it.
    The Chairman. Senator Corker.
    Senator Corker. Thank you, Mr. Chairman. I think you know, 
Mr. Secretary, I typically do not read from notes, but I am 
going to do that today just to ask the questions in a specific 
way. And I do want to say to all of the people here advocating 
on behalf of the treaty I do not think there is anybody up here 
that disagrees whatsoever with the thought of advancing this 
cause. And I know that is why so many letters have come in in 
support of this. I mean, I do not think that is in question.
    When people look at these kinds of issues, sometimes they 
forget that there is a whole body of law out there that affects 
people domestically in ways that were never intended. And so my 
goal here and I think a number of people on the committee's 
goal and others is to make sure that the best of what this 
treaty is about is preserved, but at the same time you end up 
in a situation where inadvertently you have not done things 
that affect us domestically in ways that we never intended for 
that to occur.
    So let me just ask you a series of questions. In the 
Supreme Court case Bond v. The United States, the Department of 
Justice argued both that ratification of a treaty can expand 
existing Federal power to legislate beyond its traditional 
limits and that the Framers intended for the Senate to enforce 
federalism limits on treaties through its advice and consent 
power. Do you agree with the argument that your administration 
has put forth?
    Secretary Kerry. I do not believe that Bond applies here, 
so it is not a question of whether I agree or disagree with the 
argument they put forward. The question is, does Bond have any 
impact on the passage of the disabilities treaty and the fact 
that it is a case in controversy at the moment before the 
Supreme Court. And the answer is Bond involves a challenge to 
an implementing statute that was passed after the Senate gave 
its advice and consent to a treaty, in other words, after the 
Chemical Weapons Treaty was passed. Then the implementing 
language was passed.
    In this case, the implementing language has not only been 
passed, it has been found constitutional by the Supreme Court 
and has been put in practice for years. We are talking about 
the ADA. That is the implementing language. So in contrast, 
here no new legislation is required. Even former Senator DeMint 
recognized that and accepted that fact.
    So the constitutionality of our domestic legislation, which 
was passed entirely independently of the disabilities treaty, 
has repeatedly been sustained by the courts. So we do not have 
the potential of a Bond crisis here. And I think it is being in 
appropriately applied to this treaty.
    Senator Corker. So can you confirm then that no further 
legislation--I think you just did. I want all of this for the 
record, if I could. Can you confirm that no further legislation 
is necessary to meet our obligations under the CRPD and that 
there will not be a need in the future for any further 
legislation to satisfy the Convention's requirements?
    Secretary Kerry. I can confirm that no legislation is 
required to implement this. Whether a Congress 20 years from 
now thinks it has to tweak something, I cannot speak to that. 
But, obviously, nothing----
    Senator Corker. But not to satisfy this Convention.
    Secretary Kerry. Nothing is required to be passed to 
satisfy this treaty, no.
    Senator Corker. Very good. So the United States is clearly 
not accepting any obligations under the treaty to regulate 
beyond the federalism limits reflected in the ADA and other 
Federal laws.
    Secretary Kerry. That is accurate.
    Senator Corker. And there will certainly be no need for 
additional authority beyond the current limits of Federal power 
for the Federal Government to implement the CRPD. Is that 
correct?
    Secretary Kerry. That is correct.
    Senator Corker. Since we have established that the CRPD 
comes with no additional Federal obligations and requires no 
additional authority, you would support strong federalism RUDs 
to eliminate both of those possibilities. That is a yes or no.
    Secretary Kerry. I would support an appropriate RUD, yes, 
with respect to federalism.
    Senator Corker. That addresses these issues, one that 
affirmatively and declaratively addresses these issues.
    Secretary Kerry. That clarifies the federalism reservation 
and how it would work. I think that is appropriate.
    Senator Corker. Obviously, we have attempted to work with 
your staff----
    Secretary Kerry. In other words, that restates the fact 
that the treaty would only obligate us to take action that we 
can take under Federal law. That is the reservation. We have a 
right to have a RUD appropriately stating that.
    Senator Corker. OK. I think it is very important that this 
is a very clear statement, and we look forward to working with 
you.
    Secretary Kerry. Absolutely.
    Senator Corker. A range of concerns have been raised about 
whether RUDs we adopt today could be invalidated or otherwise 
rendered ineffective by a future Congress, by a court, or by 
the U.N. Disabilities Committee. I think any Senator would want 
to make sure we can be confident that our RUDs will stand the 
test of time and would take the view that their advice and 
consent was conditioned on the package of RUDs adopted by the 
Senate. Do you agree with that?
    Secretary Kerry. I do agree.
    Senator Corker. Will you support a nonseverability RUD that 
ties our treaty obligations to the continuing validity of the 
RUDs? Very important. A very important answer.
    Secretary Kerry. Say that again. Would I support a 
nonseverability----
    Senator Corker. Will you support a nonseverability RUD that 
ties our treaty obligations to the continuing validity of the 
RUDs?
    Secretary Kerry. I do not know if I can. I would just have 
to be able to make sure that we have the power to do that and 
that it can be done. But there is no way the RUDs can be 
dropped. They become part of the treaty. They are embraced in 
the treaty, and you would have to pull out of the treaty or the 
treaty would have to be changed altogether for the RUD not to 
be enforceable. Can we look at the language so that I am not 
committing something that----
    Senator Corker. Obviously, I want you to look at the 
language.
    Secretary Kerry. Again, we will work with you on the 
language. I just want to make certain that that is----
    Senator Corker. If for some reason your staff decides that 
this is not something that can be done or is not a serious 
concern, will the Department of Justice provide in writing 
confirmation of its legal review that the Senate RUDs cannot be 
invalidated or otherwise rendered ineffective for either 
domestic or international legal purposes?
    Secretary Kerry. Well, here is what I would commit to you, 
Senator. First of all, my staff is not going to decide on its 
own. I am going to decide. And I will take a look at it and see 
where we are. And you and I will talk and we will see what our 
options are.
    Secondly, I will certainly engage with the Justice 
Department in order to find out what is possible. But I think 
we ought to be able to find a way in the language to 
appropriately reflect what you are trying to do. We want to act 
in good faith to try to answer the question so the RUDs that 
you enter into, you are not somehow feeling like you are 
entering into a quicksand deal.
    Senator Corker. I agree. And if I could ask one more 
question. Thank you for the time.
    In addition, the treaty allows for the withdrawal of RUDs. 
And in fact, State parties are often encouraged by monitoring 
committees and others to withdraw their RUDs in order to come 
into what they consider to be full compliance with the treaty. 
Could a future Congress or executive withdraw a RUD either 
through the normal legislative process or a unilateral 
executive action, thereby circumventing--and remember, a treaty 
is ratified by two-thirds--the constitutional protection 
provided by a two-thirds majority requirement of the Senate 
advice and consent? You understand what I am asking.
    Secretary Kerry. I am told that this has never happened, 
that we would not do it without a fair amount of process 
engaged in it. No foreign country can invalidate a U.S. RUD. I 
will tell you that. And no disability committee or anybody 
could invalidate a U.S. RUD. So we would be the only ones who 
could do it. I presume it would take--I think it would take an 
entirely new resolution, et cetera. I would have to find out 
for you, Senator.
    Senator Corker. More specifically, then could the 
federalism RUD be withdrawn in this manner, thereby eliminating 
the limits that the Senate has put in place, and pass 
legislation that uses expanded Federal authority under the 
treaty to intrude on the powers of the States?
    Secretary Kerry. I do not believe it could, no, because 
that would be in contravention of the federalism----
    Senator Corker. So I take that to mean that you would 
support a RUD to protect our RUDs from withdrawal without a new 
resolution of advice and consent from the Senate.
    Secretary Kerry. On the surface, that would appear to be a 
good thing to do. I would want to check with my counsel and 
everybody and run it through, but in quick blush, why not?
    Senator Corker. I thank you, and I thank the chairman for 
his patience. And I would just say to the community of people 
here that are advocating for the passage of this treaty all the 
things that I just asked about today have nothing to do with 
helping other countries around the world deal with these issues 
that are so important to especially the people who are 
advocating today. They are about ensuring that this treaty does 
not have the unintended consequences that sometimes can occur 
here in our country. And I would just ask all of those who are 
advocates here to help push the administration and others to 
resolve these issues with us if, in fact, you believe this 
treaty is something important to pass. And I thank you for the 
time.
    The Chairman. Thank you, Senator Corker. Now, I have 
extended the time for the ranking member because he plays a 
very important role. Because there is going to be action on the 
floor that might obviate our timeframe here, I am going to have 
to ask members to stick to their time, and I am going to adhere 
to it strictly.
    So with that, Senator Cardin.
    Senator Cardin. Well, thank you, Mr. Chairman. And, 
Secretary Kerry, thank you for your extraordinary leadership 
and thank you for what you have done as Secretary of State. You 
have been an incredible voice for America, and we thank you for 
that service.
    I want to acknowledge the presence of Dr. Seth Morgan. He 
is a Commissioner of the Maryland Commission on People with 
Disabilities. Dr. Morgan is a retired neurologist with 28 years 
of experience in the field of neurology, psychiatry, and 
diagnostic radiology. He is a tireless advocate working as a 
volunteer for the National MS Society. He is a person who lives 
with MS. I just would like to quote one of the statements that 
Dr. Morgan made, and that is, as a person with a family living 
abroad, I would be able to visit my siblings, nephews, and 
extended family without the uncertainty accessible that has 
plagued prior visits, just underscoring what you have said, Mr. 
Secretary, about how important this treaty is for Americans who 
are traveling abroad.
    Mr. Chairman, I would ask consent that the statement by 
Secretary Hagel in support of the legislation on behalf of the 
military families and the 5.5 million American veterans that 
have disabilities be made part of the record.
    The Chairman. Without objection, so ordered.
    Senator Cardin. Mr. Secretary, I often write you letters 
asking you in your visits abroad to raise issues of concern on 
human rights. I have asked you to raise issues concerning 
religious freedom, the concerns about corruption in other 
countries, concerns about how police activities occur in other 
countries, and occasionally will write to you about issues 
concerning people who have challenges and disabilities.
    Now that you are the Secretary of State, you are in those 
meetings. The fact that we have not ratified this treaty, does 
that affect your credibility in advocating on behalf of basic 
core values that we believe in, the rights of all people, 
including people with disabilities, when you raise these issues 
of concerns that we have in other countries?
    Secretary Kerry. Well, Senator, I am not going to tell you 
that in every conversation I have had, somebody has raised the 
disabilities treaty because they have not. But the generic 
breadth of our rights absolutely comes up. And often you wind 
up with people pushing back on one thing or another about our 
absence from the table either not having signed up to a 
particular treaty. I will tell you this has happened 
frequently, for instance, on the Law of the Sea, though that is 
not the issue in front of us.
    But with respect to human rights and other things--let me 
just say up front. I never go anywhere--any meeting I have 
anywhere, we discuss the question of rights, human rights, the 
question of what is happening in the country, its 
transformation, its reforms. We always run into some kind of a 
debate about the differences, cultural differences here.
    But on this kind of thing, I have raised this issue on 
occasion in certain places, and people indicate a readiness and 
a willingness to try to do things but they are not particularly 
versed in it. They do not know what the options are. They are 
not sure how much it costs or how long it takes or what the 
complications are. That is the virtue of our being able to put 
the ADA on the table, but also be a member of this so we go to 
the 138 member countries and start to engage them on it. And 
the answer is, you know, it is the old clean hands doctrine of 
the law. If you come in and you are not a member and you are 
not part of it, of course you lose leverage.
    Senator Cardin. There is no question that the ratification 
of this treaty strengthens the U.S. position internationally in 
advocating on behalf of basic rights for people with 
disabilities. And it is interesting. When you look at basic 
human rights and the advancement of basic human rights, when 
the United States is missing in those debates, it is much more 
challenging to get the type of progress that we need.
    Secretary Kerry. Absolutely, without any question. And, you 
know, when you sort of run through the list and you look at the 
countries that are signed up to it, you see incredible 
opportunities here--Saudi Arabia, South Korea, Yemen, Zambia, 
Tanzania, the United Kingdom actually, Jordan. You run around 
any of these countries--Israel actually is a signatory and 
Israel did a reservation with respect to one thing to abide by 
their laws, but they are comfortable.
    So I think our legitimacy as the full advocate that we have 
the power to be because we are the ones who initiated this, 
that we are the ones who negotiated it, we are the ones who 
went to countries and said come on board, and now we are not 
there, the result is that the committee, frankly, is not as 
energized and engaged as it could be. So there is a lot that 
could be done by our joining up.
    Senator Cardin. I would make an observation that the United 
States has been a leader in advancing the rights of people with 
disabilities. In 1991 in the Moscow document under the OSCE, it 
was U.S. leadership, Congressman Hoyer and Tony Coelho, were 
very much involved in taking the work that we did in the ADA 
here and bringing it to that regional organization. And it is 
frequently cited now as a document that is used to advance 
rights for people with disabilities at international meetings 
to make sure that proper accommodations have been made.
    The ratification of this treaty--as you point out, 
countries that are so, so far behind us in accommodating people 
with disabilities have already signed and ratified this treaty. 
So it gives us a seat at the table to advance their laws that 
protect people with disabilities. It is a golden opportunity 
for us, and it is interesting that these countries have already 
ratified and approved and we are still in the process of doing 
it.
    Thank you, Mr. Chairman.
    Secretary Kerry. Thank you very much, Senator.
    The Chairman. Thank you.
    Senator Rubio.
    Senator Rubio. Thank you, Mr. Chairman. I am going to be 
brief. We have been notified that there might be significant 
measure taken on the floor here at 10:30. So thank you, Mr. 
Secretary, for being here.
    My grandfather was severely disabled by polio as a young 
child. He struggled his whole life to provide for his daughters 
and his family. So I am extremely sympathetic to the goals 
here. I am getting a lot of e-mails and letters about people 
that have concerns about what they are reading and hearing 
about this. So I just have two quick questions.
    The first involves a statement we made in 2007 when the 
General Assembly approved the final text. The United States 
issued an official statement that clarified our understanding 
of the phrase ``reproductive health'' in article 25 does not--
and I am quoting. It 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. Would the administration support the inclusion of 
an understanding that reaffirms this policy?
    Secretary Kerry. Well, as you know, Senator, last year we 
had a debate about this here in the committee, and I thought we 
came up with a pretty good RUD that dealt with this question by 
making sure that it did not include any language regarding any 
medical procedure. I think we used the word ``any medical 
procedure,'' that it did not refer to that whatsoever because 
there was some back and forth on the issue, the always volatile 
issue, obviously, about pro-choice, pro-life. And I thought we 
had thread that needle fairly effectively.
    Now, if there is a conviction by the committee that that 
does not or has not, then we ought to sit down and try to work 
through the language. But I do want to make it absolutely 
clear. Nothing in article 25 or anywhere else in this treaty 
creates a right to abortion. That is a domestic legal issue and 
nothing in this treaty changes that. And that was in the 
transmittal. The transmittal letter to the Congress made it 
very clear that that is true, and I thought the language we had 
last year helped clarify it. But we are happy to work with you 
to make sure it is clarified.
    Senator Rubio. OK, thank you. And also, we have gotten a 
lot of letters and e-mails about home schooling. The written 
testimony, which I am sure he will deliver here in a moment, by 
Mr. Gray talks about an idea that I want to get your opinion 
on, and that is the inclusion of an understanding this year 
that merely said that nothing in the treaty limits the ability 
of parents to homeschool their children.
    Secretary Kerry. Let me make it clear. First of all, we all 
value the right of parents to make decisions for their 
children, including the decision to homeschool. And second, 
nobody is seeking to weaken or believes there is anything in 
here that weakens or eliminates those rights. And third, U.S. 
ratification of this treaty will have absolutely no impact on 
parental rights, homeschooling, or any other aspect of U.S. 
law.
    Now, we added during the markup last year RUDs that 
included an understanding proposed by Senator DeMint to allay 
the concerns of homeschoolers. I continue to support such an 
understanding, if that will help address Senate concerns. And 
we are happy to try to work with you again to make sure the 
language is adequate to do that.
    Senator Rubio. And last but not least, off the topic for a 
second, but I want to give you an opportunity to address this 
because it has been in the news this morning. And this is my 
last question.
    Yesterday it appears Ayatollah Khomeini in an address to 
paramilitary forces referred to Israel as a rabid dog and 
accused the United States of launching a nuclear attack on 
Japan after the country had surrendered in World War II. 
Apparently an American official called that language--I think 
the right term he used is ``unacceptable.'' Would you just 
comment on that statement?
    Secretary Kerry. Well, obviously, we disagree with it 
profoundly. You are asking the obvious. It is inflammatory and 
it is unnecessary. And I think at this moment when we are 
trying to negotiate and to figure out what can and cannot be 
achieved, the last thing we need are names and back and forth. 
I do not want to exacerbate it now sitting here.
    But our good friends in Israel know full well that we 
defend their concerns. They are threatened existentially by 
what is happening in that part of the world and particularly by 
the potential of a nuclear weapon. We stand by our friends in 
Israel completely. And obviously, we do not believe that 
anything is served with names that challenge everybody's sense 
of propriety and justice and rectitude.
    We have been through this before. We heard, as you know, 
prior very disturbing assertions regarding the Holocaust and so 
forth. I think we need to move away from that, and our hope is 
that the process of the next months and years would enable us 
to do that.
    The Chairman. Senator Coons.
    Senator Coons. Thank you, Chairman Menendez, and thank you 
for convening our second hearing to consider the Convention on 
the Rights of Persons with Disabilities. And thank you, 
Secretary Kerry, for your ongoing leadership both in your 
previous role as chair of this committee and now as our 
Secretary of State.
    Protecting the rights of disabled persons has historically 
garnered the support of all Americans, and ratification of the 
CRPD would serve to solidify a strong U.S. commitment to equal 
opportunity for disabled persons through increased access, 
mobility, protection for disabled Americans abroad, in 
particular our wounded veterans. Last year, I think we missed a 
great opportunity and it is my sincere hope, shared by many of 
my constituents, that we do not make the same mistake again.
    And at the risk of asking you to repeat things that have 
been asked and answered, Mr. Secretary, but this entire hearing 
strikes me as revisiting important fundamental issues that need 
to be asked and answered to reassure those of my constituents 
who have not quite heard ``yes'' yet. In your view, what is the 
response to critics who charge the CRPD would violate U.S. 
sovereignty and that somehow the Disabilities Committee would 
be empowered under this treaty to dictate how the United States 
treats people with disabilities here at home?
    Secretary Kerry. Well, with respect to sovereignty, as I 
said earlier, there is absolutely no ability whatsoever for any 
country or any entity through this treaty to gain any legal 
redress or capacity to compel the United States to do anything. 
There is no oversight. There is a committee that works on 
issues, but the most that they can do is make a suggestion. 
There are 18 members of it. They are elected on a global basis. 
They issue a report. But they cannot compel us to do a thing. 
So there is zero give-up or loss of any sovereignty of the 
United States. In fact, as I said earlier, we are exercising 
our sovereignty by deciding whether or not we want the rest of 
the world to be importuned by us over the course of the next 
years as a member of this party to rise to our standards rather 
than stay static or rise slower or come to a lower standard. So 
I think the United States gains entirely by this.
    And secondly, on the Disabilities Committee, the 
Disabilities Committee has absolutely zero power to change a 
law, to order a change of law, to compel a change of law. They 
cannot have any impact. There is no power in this treaty, also 
in the committee. The committee has no ability to create any 
customary international law. No decision, memo, anything that 
they utter can have an impact on the United States and what we 
reserve to ourselves through our Constitution and even through 
our declarations and understandings and reservations in this 
treaty.
    Senator Coons. So given that, Mr. Secretary, if, as I 
believe and as you have asserted, the treaty does not compel us 
to do anything except to continue to follow our own law in our 
own way, why then ratify it? If you would just briefly remind 
us what harm is being done to our ability to advocate for 
disability rights by being the empty seat at the table or 
merely in observer status of the committee for the Convention 
on the Rights of Persons with Disabilities. How does this harm 
our ability to advocate for Americans, Americans with 
disabilities, and America's standard for how we should treat 
citizens with disabilities around the world?
    Secretary Kerry. Well, there are a whole series of things 
that this treaty actually does require other countries to do. 
We have already done them. So that is why it does not have an 
impact on us. We are already meeting those standards. But it 
does compel other countries or requires other countries to 
provide accessibility, to provide nondiscrimination in things 
that they do like a birth certificate for kids. You know, you 
cannot deny somebody a birth certificate because they are 
disabled. It creates a set of rights about standards for 
education, for transportation, for all of the things that 
matter to us under the ADA and basically takes each of those 
components and gives a legal obligation to other countries to 
live up to that standard, our standard.
    Senator Coons. Well, thank you, Mr. Secretary. Thank you 
for your testimony and for your hard work. I think this 
Convention is a great opportunity for us to demonstrate the 
high standard that the United States has made the gold standard 
for treatment of our citizens with disabilities. And thank you, 
Mr. Chairman, for convening this hearing.
    The Chairman. Thank you.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chair. Before I have a 
comment and a question for Secretary Kerry, I do want to do an 
introduction. I think Gen. Gale Pollock is here with us today, 
and I just wanted to bring her to the attention of the 
committee. She was the first woman nonphysician commander of 
the U.S. Army Medical Command and acting Surgeon General of the 
Army with a nearly $8 billion annual budget in 2007. She has 
extensive experience in the military.
    But she was challenged by Senator Inouye when he made 
comments about caring for blinded troopers and led an effort 
that resulted in the establishment of a DOD/VA Center for 
Excellence for Vision. Following her experience in that regard 
and a program at Harvard, she established, Elevivo, Inc., a 
sole-source information solution provider for anybody concerned 
about vision loss. And we are very happy that General Pollock 
is here today and for all the work that she does to advocate 
for folks around the world who suffer from vision loss. So 
thank you, General Pollock.
    And thank you, Secretary Kerry. Today is a big day. There 
is a lot going on in the world today and that you have chosen 
to be here with us a tribute to you, to how importantly you 
view this priority. In listening to your testimony, I was 
reminded of the great Senator William Proxmire who believed so 
deeply in the United States need to ratify the Genocide Treaty 
that every day the Senate was in session for 19 years he took 
to the floor of the Senate and advocated that the U.N. Genocide 
Treaty, which had been ratified by the U.N. and activated in 
1951--it was not ratified by the United States until 1986. He 
gave over 3,200 floor speeches over the course of 19 years 
until the United States ratified the Genocide Treaty. I hope 
you are not here that often. [Laughter.]
    And I hope we do it quicker than 48 years. This treaty came 
before the U.N. and was ratified in 2006. But thank you for 
sticking with it and sticking with us.
    I only have one question for you. The last time you were 
before us, we were debating a very difficult issue that remains 
difficult, and that was Syria and whether to authorize use of 
military force in Syria. The committee voted to do that 
authorization. Shortly thereafter, in your diplomatic 
discussion with Syria and others, Syria agreed to do something 
that it had not done, which is it agreed to become a signatory 
to the U.N. Chemical Weapons Convention.
    What moral leverage would the United States have had to 
insist that Syria become a member and sign on to those treaty 
agreements under the Chemical Weapons Convention if the United 
States had not been a signatory to that Convention?
    Secretary Kerry. Well, Senator, first of all, thank you for 
your reflections on Senator Proxmire. I was here when we passed 
that finally, and I remember listening to many of those 
comments. Look, your question answers itself.
    We never could have achieved it and we would have had no 
standing whatsoever to be able to try to argue it.
    Senator Kaine. Thank you, Mr. Chair. Thank you, Mr. 
Secretary.
    The Chairman. Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much. Can we 
talk about something in addition to the obvious benefits that 
will flow to people with disabilities, and that is that which 
will flow to American businesses if we have an international 
standard? So there are about 56 million people in the United 
States with disabilities, but there are about a billion people 
in the world with disabilities.
    So, for example, if we just take something like a U.S. law, 
a standard that says that all of these devices have to be now 
accessible to the deaf and the blind, and you multiply that by 
the thousands of companies in the United States that now have a 
part of this communications revolution, what could it mean for 
American business if these standards are adopted in countries 
all across the world? What could it mean in terms of practical 
benefits for the U.S. economy if we joined the rest of the 
world in ratifying a treaty that they are all ready to go on in 
terms of what that additional benefit would be for our country?
    Secretary Kerry. Senator, you have hit the nail on the 
head. I mentioned it in my opening comment about the benefit to 
business and why the American Electronics Association and IBM 
and others are supportive of this.
    A billion people is a big market. The market that drove the 
wealth creation of the 1990s where every quintile of American 
income earners saw their incomes go up--every quintile--and the 
greatest wealth in the history of our Nation was created, that 
market was a 1-billion-person market. Actually it grew quickly 
into about a $1 trillion market but it began smaller. And the 
result is this market is just waiting for us to tap into.
    We have electronic assisted devices that help people to 
speak, that can print. I mean, there are extraordinary gains 
through technology and we will be able to sell it. Different 
kinds of wheelchair accessibilities, lifts, all kinds of 
benefits in communications and in transportation. So there are 
huge, huge benefits for our companies, and the bottom line is 
it means jobs.
    Senator Markey. I agree with you, and not a small number of 
jobs, tens of thousands, maybe hundreds of thousands of jobs in 
the United States directly related to a standard being 
established across the rest of the world.
    And I agree with you that it does not require any change in 
U.S. law. It is really going to be a benefit for the disabled 
around the world and for businesses here in the United States 
to be able to service that new market that has been created. 
And we can be the leader in distributing those technologies as 
well while profiting here in the United States. So I thank you 
again, Mr. Secretary, for your great good work.
    Secretary Kerry. Well, we agree completely. Thank you, 
Senator.
    The Chairman. Well, Mr. Secretary, I know that there are a 
series of members who would have liked to have engaged with 
you, and I think the challenge is there are procedures that are 
about to take place on the floor that will probably take about 
an hour of time. I assume that your schedule would not permit 
you to have that period of time.
    Secretary Kerry. I regret, Mr. Chairman, that it does not, 
I am afraid.
    The Chairman. I did not think so considering what is 
happening in the world and your pressing schedule.
    We will keep the record open extensively so that questions 
can be submitted, and if there are any specific members in 
another setting that have some specific questions maybe in the 
future, we can work with you toward getting----
    Secretary Kerry. Mr. Chairman, why do I not agree to do 
this? I really want this to pass and I want to try to expedite 
it and I want to be as helpful as we can at the Department. So 
recognizing there is a difficulty on the floor, why do we not 
try to arrange a meeting at the State Department for those 
Senators who did have some of those questions? We would be 
happy to meet. And obviously, we are prepared to answer 
questions for the record in short order.
    The Chairman. So between the record for those who want to 
have something on the record and for those who want to have a 
conversation about some of their concerns and how the State 
Department and the administration should react to them, I think 
that is a fair offer and I appreciate it. I appreciate your 
testimony here today. I think it has been substantive, very 
compelling. I just want to share two final concerns.
    One is that we can try to create an environment in which we 
want to be as airtight as possible--and I get that--for those 
who have concerns. However, I think that looking at future 
Congresses 5 years, 10 years, 20 years from now on, of course 
anything that the U.S. Congress does and passes could be 
changed. Of course, it would seem to me that a U.S. Congress 
would have to change it, and so there would be full debate and 
the opportunity to do so. I do not envision that, and as has 
been stated, that has never happened as it relates to RUDs, and 
I would not expect that this would be the first time ever in 
history that that would take place. But I think there has to be 
a balance here as to what expectations are of what one can 
guarantee about future Congresses. So that is just an 
observation for the record.
    The second is, as you and the Department work with any of 
the members as it relates to RUDs, I would urge you to also 
share your deliberations with us because at the end of the day, 
I will have to be willing to support a set of RUDs and bring it 
before the committee when we get to that point. I am sure that 
is the way we will work together. With the thanks of the 
committee----
    Secretary Kerry. Can I just say, Mr. Chairman----
    The Chairman. Yes.
    Secretary Kerry. I just want to thank you for your 
leadership on this. There is a lot going on here too. But this, 
as you know, is a priority and I appreciate your making it one.
    And I also want to thank Senator Barrasso who was an early 
supporter of this some time ago and has stuck with it. We are 
very appreciative for the bipartisan effort here with Senator 
McCain and others.
    The Chairman. Yes. We have a series of colleagues who have 
joined us in this effort. You have mentioned Senator McCain, 
Senator Barrasso, Senator Ayotte, Senator Kirk, as well as 
members on the Democratic side. So our goal is to get us the 
type of strong bipartisan support that will pass the treaty. 
There are few times I think in our lives in public service that 
you can affect the lives of millions of your fellow Americans 
in a powerful way that can make equality of opportunity and 
access to that opportunity a reality, whether they are the 58 
million Americans who face some form of disability or the 5.5 
million veterans who served their country and now face some 
sort of disability. This is an opportunity to do that, and that 
is why this is so important and that is why we appreciate your 
presence here today in the midst global challenges.
    Thank you very much.
    With the appreciation of the committee, the Secretary is 
excused.
    Secretary Kerry. Thank you.
    The Chairman. I am going to apologize to our next panel in 
terms of wait time, and I hope that you can hang in there with 
us. I am not in control of exactly what time will be required 
on the floor. It may be shorter, but it is likely to take about 
an hour. To the audience members as well, we will reconvene 
upon that final vote that takes place on the Senate floor. But 
I believe it will be sometime within an hour, and until that 
time the committee stands in recess.

    [Recess.]

    The Chairman. This hearing of the Senate Foreign Relations 
Committee will come to order. First, let me say to our 
distinguished panel that we regret that issues on the floor 
have created challenges to us conducting the hearing. As a 
matter of fact, we are not finished on the floor. But in order 
to listen to your incredibly important testimony, what I have 
asked the ranking member, with his concurrence, is to proceed 
during these votes and hopefully rotate, ask members to take 
the chair when it is necessary in order to get the testimony in 
the record, and then hopefully have an opportunity for Q&A at 
the end.
    I know that Mr. Gray has to leave and we want to definitely 
get his testimony in, and I appreciate your willingness to do 
so. So, after we start with you, we will excuse you, and of 
course the record will be open, and we urge you to answer any 
questions.
    Our second panel today we have Ms. Frances West, the 
Worldwide Director for Human Ability and Accessibility Center 
for IBM. Ms. West is responsible for promoting advanced 
research technologies as part of IBM's efforts to enable 
everyone to achieve their full potential through innovation. 
Ambassador Boyden Gray is former White House Counsel to 
President George H.W. Bush, and a member of the board of 
directors of the Atlantic Council, the European Institute, and 
various other organizations, and served as Special Envoy for 
European Affairs and U.S. Ambassador to the European Union. I 
understand his daughter, Eliza, a staff writer for Time 
magazine, was married Saturday, so congratulations to the proud 
father of the bride.
    Jeremy Rabkin is a professor of law at George Mason 
University. Professor Rabkin serves on the Board of Academic 
Advisors of the American Enterprise Institute and the Board of 
Directors of the Center for Individual Rights, and we welcome 
you. And Curtis Bradley is a professor of law, Public Policy 
Studies, Senior Associate Dean for Faculty Research at Duke 
University. Professor Bradley, early in his career, clerked for 
Supreme Court Justice Byron White, and has written many 
articles on international law, constitutional law, and U.S. 
foreign relations. So, Professor, you are at the right 
committee. Welcome to you all.
    With that, let me ask Mr. Gray to go first. All of your 
statements will be fully entered into the record. We would ask 
you to synthesize it in about 5 minutes so hopefully we will be 
able to go forward and ask some questions.
    Mr. Gray.

     STATEMENT OF HON. C. BOYDEN GRAY, C. BOYDEN GRAY AND 
 ASSOCIATES, FORMER WHITE HOUSE COUNSEL, AND FORMER AMBASSADOR 
             TO THE EUROPEAN UNION, WASHINGTON, DC

    Ambassador Gray. Mr. Chairman, thank you very much for the 
opportunity to appear, and also thank you for your 
accommodation for my schedule. I wish I could stay here for the 
entire conversation. It is very important and also very 
interesting. But I hope I can answer questions in the record if 
it is appropriate.
    I was involved with the architecture and structure of the 
Americans with Disabilities Act almost from the very beginning, 
starting with work that then-Vice President Bush did with the 
Task Force on Regulatory Relief under President Reagan, who was 
very supportive always of disability rights. And the ADA grew 
out of work that had been done during the Reagan 
administration.
    The statute has been very durable. It has been a great 
success. It has really changed for the better the lives of a 
great many Americans. And as I enter as a leader of the baby 
boom cohort, as many people have said, there really is no basic 
difference between the rights of the disabled and the rights of 
the aging. And this has been a great success in the United 
States.
    We are at an inverted situation basically with the way this 
has proceeded. Normally you have a treaty and then an 
implementing statute. Here, not quite the reverse, but close to 
it where we had an implementing statute 25 years ago and a 
treaty that has come out of that. There is nothing that is 
binding on this country, and that is, I think, the most 
important point that I can make.
    The Bond case has become an issue, which was argued just 
recently. Senator Kerry, I think, dealt with that 
comprehensively. The case was brought under the implementing 
legislation, not under the treaty itself. There will be no 
implementing legislation here. Of course, as Senator Kerry 
observed, there is no way to bond some future Congress from 
amending the ADA. It has already been amended once. But that is 
for the future, and that is not at issue here.
    There is discussion of whether for federalism purposes and 
for purposes of severability, to take two examples that were 
raised earlier with Senator Kerry, do there need to be stronger 
reservations. A couple have been suggested in testimony that 
will be given a few minutes. I see no difficulty with making 
these strengthened reservations, but I also do not think that 
they are absolutely essential. Why? Because as Professor 
Bradley acknowledges and what is clearly understood, the 
Convention--the Congress has already adopted a reservation that 
has--or declaration that has the Convention being non-self-
executing, which he acknowledges will have the effect of 
preventing the Convention from judicially enforceable on its 
own terms. Therefore, it cannot be used to justify legislation 
that would not be ordinarily justified under our Constitution. 
And it cannot be used to justify interference with our system 
of federalism beyond what would ordinarily be possible under 
the Constitution in the absence of this treaty.
    So I do not think it is absolutely essential, but I also 
think since it has already been done by this very strong 
reservation of nonexecution, I think there is no difficulty in 
adopting these stronger statements.
    I think on homeschooling, which has been an issue in the 
past, I think it has been dissipated thankfully. I want to just 
express my own support for school choice. I think I am probably 
well known for this. Home schooling has blossomed under the 
regime of the ADA and other disabled education legislation. I 
do not see really any way in the world a treaty, which is 
nonenforceable, can do anything to hurt the growing movement or 
the vibrant movement of home schooling here in America.
    So at that point, I will be quiet.
    [The prepared statement of Ambassador Gray follows:]

            Prepared Statement of Ambassador C. Boyden Gray

    It is a pleasure for me to testify in favor of the ratification of 
the Convention on the Rights of Persons with Disabilities (the 
Convention or the Disabilities Treaty). Ratification of the 
Disabilities Treaty will constitute a major step forward in the effort 
to end discrimination against more than 1 billion persons with 
disabilities around the world. It will protect the rights and dignity 
of all people with disabilities and export core American values that 
have been codified in U.S. law in the Americans with Disabilities Act. 
It will serve Americans well. Our active participation in the 
implementation of this Convention will continue strong American 
leadership; it will assist the ease with which Americans with 
disabilities, including our wounded warriors, travel, work, and study 
abroad; and it will help American businesses expand their role in the 
international, global economy.
    My direct involvement on disability rights issues began with my 
bridge partner, Evan Kemp, a disability rights leader, head of the EEOC 
during the administration of George H.W. Bush, and a friend. At the 
start of the Reagan administration I worked with the Presidential Task 
Force on Regulatory Relief, which was considering the scope and nature 
of government regulations required by the 1978 amendments to section 
504 of the Rehabilitation Act of 1973. That Act required all Executive 
branch agencies to issue regulations implementing the nondiscrimination 
requirements of section 504.
    During this time, the Reagan administration engaged in extensive 
outreach and negotiations with the disability community, led by Mr. 
Kemp and his cohorts at DREDF, the Disability Rights Education and 
Defense Fund. Together with the Justice Department, then under the 
leadership of Edwin Meese and with the Civil Rights Division under 
William Bradford Reynolds, we hammered out the basic and balanced 
concepts of what constitutes discrimination on the basis of disability.
    We introduced the concepts that the disability law did not require 
actions that resulted in undue financial and administrative burdens and 
that entities covered by the law would not have to engage in conduct 
that resulted in a fundamental alteration of the nature of their 
programs. We also worked out an appropriate definition of disability 
for the implementation of the law, giving significant regulatory 
guidance to the statutory definition. We provided a fair, effective 
approach to disability nondiscrimination, carefully balancing the 
rights and needs of persons with disabilities with the costs to 
businesses and government agencies of providing access. In the ensuing 
years, each Federal agency issued disability rights regulations 
adopting these principles and worked to open their own programs to 
persons with disabilities. Programs at the National Parks Service 
became accessible and local Social Security offices began the necessary 
steps to make their offices and programs accessible.
    Several years later, while serving as the Legal Counsel to 
President George H.W. Bush, I was once again involved with disability 
rights issues. The project this time in the development of what would 
become the Americans with Disabilities Act, one of the premiere 
achievements of the Bush administration. Not surprisingly, we turned to 
the terms and concepts that we had first adopted in section 504 and 
turned them into a new comprehensive disability rights law, the 
Americans with Disabilities Act.
    I recount this history today because the concepts and principles 
that were developed during the Reagan administration and then codified 
in the ADA during the Bush 41 administration are now at the heart of 
the Convention on the Rights of Persons with Disabilities. The U.S. 
delegation that worked at the U.N. during the administration of 
President George W. Bush made sure that the new Disabilities Treaty 
followed the time-tested approaches of American disability law. The 
Disabilities Treaty is the next logical step after the ADA.
    Thus, the concepts of equality of treatment and nondiscrimination 
are the primary principles of both U.S. domestic law and the 
Disabilities Treaty. The Disabilities Treaty seeks to ensure that 
persons with disabilities enjoy the same rights as everyone else and 
are able to lead their lives as do other individuals, if given the same 
opportunities. By requiring equal treatment and reasonable 
accommodation for persons with disabilities, the Convention is rooted 
in the principles of U.S. disability law. 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 and choice, accessibility, and equal enjoyment of 
rights--including political participation, access to justice, respect 
for home and the family, education, access to employment and health 
care, and freedom from torture and other cruel, inhuman or degrading 
treatment.
    Now I am aware that the Disabilities Treaty is an expansive, 
sometimes hortatory document that does, in some instances, go beyond 
what we have developed here in the United States. Thus, it is essential 
that we include reservations, understandings, and declarations, or 
RUDs, to tailor this treaty to our concepts of equal opportunity and 
nondiscrimination. Last year the Obama administration included just 
such a series of RUDs in its submission of the Disabilities Treaty to 
the Senate. And this committee wisely added additional RUDs to the 
treaty. These RUDs are an appropriate and needed addition to the 
Disabilities Treaty and I encourage this committee to include similar 
RUDs in this session of Congress. In doing so, the committee must 
remember that no matter what RUD language you develop, the underlying 
and most important principle here is that this is a nondiscrimination 
treaty. Any new RUD language must not undermine the principles of U.S. 
disability law: nondiscrimination and equality of opportunity.
    Perhaps most significant are the proposed reservations on 
Federalism and private conduct and the declaration that the treaty is 
non-self-executing. I note with approval that the Obama administration 
made its Federalism provision a reservation, rather than an 
Understanding. In this country's earlier human rights treaties, for 
example, the Convention on the Elimination of Racial Discrimination, or 
CERD, the Federalism provision was an understanding. Making this 
provision a reservation means the United States is only undertaking 
obligations to the extent consistent with our Federalist system. Those 
powers and responsibilities that are the province of the individual 
States will remain so under this Convention. The important reservation 
on federalism ensures that the obligations that we undertake under the 
Convention are limited to actions within the authority of the Federal 
Government and do not reach areas of sole state and local jurisdiction.
    The reservation regarding private conduct is equally important. It 
will ensure that the U.S. does not accept any obligation except as 
mandated by the Constitution and the laws of the United States, such as 
the ADA and others like the Individual with Disabilities Education Act. 
Thus, as with our current law, religious entities, small employers, and 
private homes would be exempt from any new requirements.
    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. Simply put, no one will be able to use the 
Disabilities Treaty to bring an action in the U.S. courts. If persons 
in this country seek a redress of what they perceive to be violations 
of their rights, they must continue to use the tools that are in place 
for them now, including the ADA, the civil rights provisions of the 
Rehabilitation Act, the disability provisions of the Fair Housing Act, 
and the many other laws that we have put in place to protect Americans 
with disabilities at home.
    With these reservations, understandings, and declarations, the 
Senate will ensure that ratification of the Disabilities Treaty will 
require no new federal laws, and will not require the individual States 
to revise their own laws. Inclusion of these RUDs will confirm that the 
United States will rely on its compliance with our existing, rich 
panoply of disability laws to constitute compliance with the treaty and 
that we can continue to use our expansive and recently amended 
definition of disability. 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 and no nation nor any international body 
has the ability or power to sever, amend, or overturn such 
reservations.
    I understand that some persons have challenged the long-accepted 
practice of using RUDs in treaties. Such claims are not correct and, 
quite simply, extraordinary. When the U.S. Senate attaches conditions 
to any treaty during its advice-and-consent process, these conditions 
are binding on the President and the President cannot proceed to ratify 
a treaty without giving them effect. These conditions become part of 
the treaty and have the force and effect of law. The various courts of 
the United States, including the Supreme Court, have upheld the 
validity of reservations, understandings, and declarations. Further, 
administrations of both political parties have uniformly throughout our 
history upheld this view.
    The claims that somehow ratification of the Disabilities Treaty 
will undermine U.S. sovereignty are simply false. Some have raised 
alarms by mischaracterizing the role of the Disabilities Committee 
created by the treaty. This Committee, a group of 18 experts elected by 
the nations that have ratified the treaty, meets twice each year to 
review the reports submitted by those countries that have ratified the 
treaty. The persons on this Committee are not employees of the 
governments that they represent. They are civilians, ordinary citizens 
from around the world with extensive expertise on disability rights. 
Among the 18 Committee members, 15 are themselves persons with 
disabilities.
    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 treaty provides no vehicle 
for the U.N. or any U.N. officials to interfere in American 
jurisprudence.
    Further, the concerns that Committee's interpretations of the 
Disabilities Treaty will become customary international law and thus be 
binding on the United States are misplaced. The Committee's nonbinding 
recommendations by themselves do not rise to the level of international 
law. Even if the nonbinding recommendations of the Committee are 
adopted by other nations, they cannot and will not become binding on 
the United States if the United States consistently objects to any such 
interpretations during their emergence. The persistent objector 
doctrine ensures that the United States will have a say in any future 
treaty interpretation. Of course, the one way to ensure that the United 
States has a role in the interpretation of the treaty is to ratify the 
treaty and seek to serve on the Convention's Disabilities Committee.
    Any concern that this Committee can have any role other than an 
advisory one was further allayed by the understanding adopted by the 
Committee last year that made clear that the Committee has no authority 
to compel any U.S. actions and that its conclusions, recommendations, 
or general comments were not legally binding on the United States in 
any manner.
    I would also like to address what has become known as the 
homeschooling issue. I myself am a longtime advocate for parental 
choice in education decisions. I note that homeschooling has blossomed 
in the United States at the same time that we have embraced the 
concepts of the ADA and of the parental role in education decisions in 
the Individuals with Disabilities Education Act (IDEA). In fact, many 
parents with children with disabilities have chosen homeschooling as an 
option to provide an appropriate education for their children.
    I would align myself with the testimony before this committee of 
former Attorney Gen. Dick Thornburgh. I agree that nothing in this 
treaty prevents parents from homeschooling or making other decisions 
for their children. As I understand the concern, it rises from the 
inclusion of the phrase ``best interests of the child'' in the 
Disabilities Convention. While I do not believe considering the best 
interests of the child is threatening to parental rights, last year, 
the Committee included an understanding that made clear that the use of 
the phrase ``the best interest of the child'' would be interpreted in a 
manner consistent with use of that concept in U.S. law, a result that 
would have the purpose or effect of maintaining parental authority in 
making homeschooling decisions. While not necessary, Inclusion of an 
understanding this year that merely said that nothing in the treaty 
limits the ability of parents to homeschool their children would 
eliminate any legitimate concerns on this issue.
    Some have found it troubling that the Disabilities Convention does 
not contain a definition of disability and that it recognizes that 
disability is an evolving concept that results from the interaction 
between a person's impairment and the physical and environmental 
barriers around them. The implication of this criticism is that it is a 
weakness in the Convention that each Nation State will have to adopt 
its own definition in its national legislation. The flexibility that 
the Convention allows here is its strength, not its weakness; and it 
follows our own precedent on the definition of disability. We in the 
United States have moved away from the medical model to the integration 
model of disability in our own definition of disability. The medical 
model defines individuals with disabilities as sick and focuses on 
medical treatment and health services. The integration model recognizes 
the abilities of individuals with disabilities and emphasizes removing 
barriers to full participation in society for individuals with 
disabilities. The culmination of this 40-year history, which started 
with 1973's Rehabilitation Act, was the ADA Amendments Act of 2008, 
signed by President George W. Bush. We will be able to use our own 
definition of disability to implement the Disabilities Convention.
    An argument made by some opponents of U.S. ratification of the 
Disabilities Convention is that we should not enter into treaties that 
do not directly enhance national security. The U.S. has ratified 
numerous treaties, including multilateral trade agreements, that do not 
bear directly on national security. The benefits to Americans from 
ratification of the Disabilities Convention are significant. In our 
global economy, U.S. employees need to travel and work abroad freely, 
unencumbered by inaccessibility. Every U.S. worker starting a career 
now and in the future should expect to be called upon to travel abroad 
to enhance his own career and to maintain a competitive edge for his 
U.S. employer. There is no better way for our government to support the 
long-term economic self-sufficiency of the millions of Americans with 
disabilities than to participate in the global commitment to 
accessibility that is enshrined in the Disabilities Convention.
    U.S. business supports the Disabilities Convention because the 
globalization of disability nondiscrimination and accessibility will 
promote U.S. business in international markets and advance equal access 
and opportunity for employees. Business groups that favor U.S. 
ratification include the Chamber of Commerce, the U.S. Business 
Leadership Network, and the Information Technology Council. The 
Disabilities Treaty can level the playing field abroad for U.S. 
industries that have been required by the ADA since 1990 to design and 
manufacture accessible products. The Disabilities Convention provides 
the pre-eminent forum for disability rights and accessibility 
internationally. If we are not there, the leadership vacuum will be 
filled by other countries in Europe or Asia. This could result in less 
clout for Americans in standard setting bodies and multiple, 
incompatible accessibility standards. If the world follows standards 
based on European or Asian accessibility standards, it could limit 
access for Americans, including vets working, studying, or traveling 
abroad. It could also hurt American businesses trying to sell their 
accessible products abroad. There are at least 1.2 billion persons 
outside the U.S. who can benefit from these goods and services.
    The U.S. owes a duty to our wounded veterans to ratify the 
Disabilities Convention. There are approximately 5.5 million disabled 
American veterans, more than 3.5 million of whom are receiving 
compensation for a disability. There are also at least 126,000 military 
family members with special needs. More than 325,000 American 
servicemembers and their families are stationed abroad, many in 
countries with accessibility standards significantly lower than our 
own. Our disabled veterans and military families want to work, study, 
serve, and travel abroad with the same dignity and opportunity as other 
Americans. Doing so can be difficult, if not impossible, in countries 
with poor accessibility standards.
    Of the nearly 1 million veterans and their beneficiaries who have 
taken advantage of the Post-9/11 GI bill since its inception 4 years 
ago, about 20 percent have a disability. In general, students with 
disabilities participate in study abroad programs less than half as 
often as those without disabilities. Disabled veterans and military 
servicemembers are among America's most elite athletes. Ten veterans 
and servicemembers represented the U.S. at the 2013 International 
Paralympic Committee World Championships and more will compete for Team 
U.S.A. at the 2014 Paralympics Winter Games. International competition 
often poses significant obstacles for many of these athletes because of 
inaccessibility in overseas venues, lodging, transportation and related 
facilities. Ratification of the Disabilities Treaty will help enable 
the United States to export its gold standard for nondiscrimination and 
accessibility worldwide and make it easier for all our wounded 
warriors, disabled veterans, Active Duty members, and their families to 
take advantage of important opportunities abroad.
    Some question why the U.S. should ratify a disabilities treaty that 
is modeled on American law that has been on the books for more than 20 
years. As one who has been at the center of the development of domestic 
disability law and policy for 40 years, I can tell you that the U.S. 
achieved its current position as the standard setter in the world for 
nondiscrimination and equal access for individuals with disabilities 
through a long, painstaking process. We navigated through that process 
with a balanced approach to disability nondiscrimination that has been 
and continues to be supported by strong, bipartisan majorities of 
Congress and the American public and Presidents of both parties. It is 
time for the U.S. to export the model of the ADA to other countries as 
a leader of the official global initiative on disability 
nondiscrimination. There is nothing more important to the ability of 
Americans with disabilities, including veterans and their families, to 
become full participants in the world economy than the leadership that 
the U.S. can provide only if it ratifies the Disabilities Convention. 
What are we afraid of? The Disabilities Convention is modeled on our 
existing domestic law. The U.N. Committee for the treaty is advisory 
only.
    Our official imprint on the implementation of the Disabilities 
Convention is critical to our ability to give our citizens the 
protections they need to thrive in the 21st century. I wonder how many 
Senators on this committee have a son or daughter who has benefited 
from travel abroad as part of his or her education? Students with 
disabilities often are excluded from these opportunities for lack of 
accessibility in the destination country. Approximately 4 out of 10 
American travelers or their travel companions are people with 
disabilities that still face constant barriers and discrimination 
abroad.
    There is another important reason for the U.S. to ratify the 
Disabilities Convention. Without laws like the ADA abroad, millions of 
children and adults are housed in institutions without the enrichment 
of family life, community resources, or access to the most basic civil 
rights like a birth certificate or even a name. Until the U.S. ratifies 
the Disabilities Convention, it is a bystander on these critical 
matters. Our leadership in fighting against these unconscionable 
practices can make an enormous difference.
    At this committee's previous hearing on ratification of the 
Disabilities Convention, some suggested that the case of Bond v. United 
States, recently argued and currently pending in the Supreme Court, 
should be decided before the Senate consents to ratification of the 
Disabilities Convention. I am familiar with the time-honored tactic of 
using a vaguely related court case as a basis for delaying 
congressional action on something that some Members would rather avoid. 
The Bond case is an 
unnecessary distraction from the important task of U.S. ratification of 
the Disabilities Treaty. The Bond case is a red herring. The outcome of 
the Bond case will not 
impact the Disabilities Convention nor the obligations of the U.S. to 
implement the treaty.
    The Bond case involves a challenge to the legislation implementing 
the Chemical Weapons Convention. U.S. compliance with the Disabilities 
Convention will result from already existing laws, laws that were 
passed entirely independently of the Disabilities Convention, laws that 
do not rely upon the Constitution's treaty power but have already been 
found to have a constitutional basis by the Supreme Court. No 
implementing legislation will be necessary for the Disabilities 
Convention. This is confirmed in a declaration this Committee inserted 
into its proposed resolution of advice and consent last year, which 
states ``The Senate declares that, in view of the reservation 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.''
    I said earlier that the Disabilities Treaty was the logical next 
step after the Americans with Disabilities Act. On July 26, 1990, when 
President Bush signed the ADA on a sun-drenched ceremony on the White 
House lawn, he saw that we were entering a ``bright new era of 
equality, independence, and freedom.'' It is time for the United States 
to stand with the rest of the world in fostering the core American 
values of equality, independence, and freedom. I urge you to ratify the 
Convention on the Rights of Persons with Disabilities and give 
international meaning to President Bush's call: ``Let the shameful 
walls of exclusion finally come tumbling down.''

    The Chairman. Well, I appreciate your testimony and your 
forbearance with us in this process. Let me just ask you, since 
you are going to have to be excused, and maybe Senator Corker 
may have a question for you before we go to the rest of the 
panel. I just want to focus on one part of your testimony, and 
that is if you were still the White House Counsel, as you were 
under President Bush, there are some who have suggested that we 
have to wait for the Supreme Court to decide in the Bond 
decision before the Senate would make a decision on this 
treaty. Do you think there is any reason that the Bond case 
should delay Senate consideration of the Disabilities Treaty?
    Ambassador Gray. I do not on the merits. I was not at the 
argument, but I am told that Justice Breyer was more skeptical 
than perhaps anybody else. And so, I think it is pretty clear 
what the result is going to be, but I also think the result is 
irrelevant for reasons Senator Kerry stated and for the reasons 
that I just mentioned, that there is a clear congressionally 
approved RUD that makes this treaty non-self-executing and 
nonreviewable in the courts. So I see no way how the Bond case 
can be relevant.
    Again, to point out that it was the prosecution under an 
implementing statute. There will be no implementing statute 
here. What is relevant for purposes of the courts is the ADA 
itself and not this treaty.
    Senator Corker. Listen, I understand you have to leave, so 
I am going to go ahead and ask you some questions, and thank 
you.
    I would--first of all, I respect you very much and I 
appreciate being here today, and I want to ask you a couple of 
specific questions. I will say relative to your last statement, 
Congress can always pass implementing legislation 2 years from 
now, 4 years from now. So the fact is that it is not 
necessarily even that that could happen, but the fact that when 
you ratify a treaty, that itself can, in fact, create some 
issues here for us to domestically. So let me just ask you a 
couple of questions.
    As an advocate for the ratification of the treaty, do you 
agree that there are significant questions about whether a 
treaty can expand Congress' power into areas historically 
reserved to the States under the Supreme Court current case 
law? You agree with that, right?
    Ambassador Gray. As a general proposition, that is probably 
right. The Bond case will clarify that. But we do not have that 
issue presented here because of what I have already mentioned, 
which is the RUD you have already adopted, which means that the 
Convention is not judicially enforceable on its own terms.
    So the only thing that the Congress can do constitutionally 
is what it could do constitutionally in the absence of a 
treaty. And you have already, one, submitted the ADA, and you 
may again choose to do so, whenever, to amend it again. But it 
will be bound and constrained by the limits of the Constitution 
and not enabled in any way by the treaty because that cannot be 
judicially enforced.
    Senator Corker. But you would have no issue, as you just 
stated, since what I just made was a statement of fact, it can. 
I am talking about just treaties in general. You would have no 
opposition to us trying to clarify those very specifically with 
a set of RUDs that have no impact on us being able to advocate 
in other countries, but would keep this treaty from affecting 
us here domestically. You do not have opposition----
    Ambassador Gray. I do not, and I just so testified, I 
think, about that I do have no objection to clarifying those 
severability issues and federalism issues.
    Senator Corker. Why thank you, and I hope you can help us 
do that through your advocacy. Do you agree that it is 
important for the Senate to adopt a strong package of RUDs that 
protects the appropriate balance of power between State and 
Federal governments?
    Ambassador Gray. Well, as I----
    Senator Corker. I think the answer is yes, but I----
    Ambassador Gray. Yes. Yes.
    Senator Corker. OK. You have made some statements on the 
record in the past, and since the record of these hearings can 
have a bearing on future issues that arise, I just wanted to 
re-ask those. And again, I respect your advocacy. I respect 
your service to our country, and I thank you very much for 
coming.
    Ambassador Gray. Thank you, Senator Corker.
    The Chairman. Thank you, Mr. Gray, and I know you are going 
to have to leave. So we appreciate your willingness to answer 
questions on the record as we move ahead.
    Ambassador Gray. Well, I am happy to do that, and I really 
do appreciate your understanding about my having to leave. And 
I am sorry to my fellow panelists, with whom I would love to 
have a robust discussion assuming there was time. But it is 
not--I just cannot stay. So thank you very much, Mr. Chairman.
    The Chairman. Thank you.
    Ms. West.

STATEMENT OF FRANCES W. WEST, WORLDWIDE DIRECTOR, HUMAN ABILITY 
          AND ACCESSIBILITY CENTER, IBM, CAMBRIDGE, MA

    Ms. West. Good afternoon, Chairman Menendez, Ranking Member 
Corker, and members of the committee. My name is Frances West. 
I am the Worldwide Director for the IBM Human Ability and 
Accessibility Center. In this role, I am responsible for 
advancing IBM's accessibility leadership by driving inclusive 
people-focused technology solutions. I currently serve on the 
board of directors for the World Institute on Disability and 
the U.S. Business Leadership Network. I am honored to provide 
IBM's point of view and would like to ask for your support to 
ratify the CRPD.
    Global understanding and demand for accessibility continues 
to grow, driven in part by an entirely new set of disruptive 
trends, including the growing aging population, mobile and 
smart devices, social networking, and emerging technologies, 
such as smart TVs and wearable devices. These innovations are 
creating unprecedented demand for inclusive technologies that 
enhance user experiences and create more fulfilling 
interactions for any individual--anytime and anywhere. As a 
result, accessibility has become a mainstream requirement for 
the society.
    Ratification of the CRPD would help advance the marketplace 
for accessible information and communication technologies, 
benefiting the U.S. economy, businesses, and individual 
citizens. We believe by unifying the ratifying countries, the 
CRPD can accelerate two critical business imperatives that are 
foundational to market and job creation. First, the adoption of 
harmonized international technology standards, and second, the 
execution of meaningful policies, procurement regulations, and 
technology research agendas.
    First, on standards. It plays a critical role in ensuring 
the interoperability of technology and the acceleration of 
innovation upon a common foundation. Without harmonized 
international standards, an employee with a disability in any 
of the 96 countries IBM operates will have difficulties in 
using airport kiosks, accessing ATMs, using teleconferencing 
facilities, or obtaining multimedia digital content through 
their computer or cell phone--any time and any place.
    So standards harmonization is absolutely vital to the 
United States and U.S.-based companies, and we can see three 
reasons how CRPD can help. First, the CRPD embraces standards 
of inclusion outlined in the ADA and, by extension, U.S. 
accessibility standards. So for U.S. companies, it is familiar 
to implement. Second, these harmonized standards protect our 
investments in accessible technology and help us achieve 
economies of scale, ensuring a positive return on investment. 
Finally, it helps preserve the U.S.'s ability to continue to 
lead innovation worldwide as CRPD countries are investing in 
accessibility technology leadership, and our ability to 
influence them is diminishing.
    Now, onto the policy benefit. It is no exaggeration to say 
that in many cases policies make markets. The U.S. Section 508 
of the Rehabilitation Act is a great example. Prior to the 
enactment of this Federal procurement policy, the accessibility 
marketplace was small, niche-oriented, and not an investment 
priority. However, section 508 and the buying power of the U.S. 
Government have transformed the marketplace and played a major 
role in defining it as a mainstream government and business 
requirement. U.S. ratification of CRPD will have a similar 
effect.
    In addition, by prioritizing both equal education and 
technology access for people with disabilities, the CRPD will 
create a larger talent pool of knowledge workers with 
disabilities, enabling companies like IBM to hire the best 
talent and meet the requirements associated with emerging 
policies, such as section 503 of the Rehabilitation Act.
    It is for these policy and harmonized standards reasons 
that IBM believes the United States can solidify technology 
leadership in the burgeoning marketplace through CRPD 
participation. We believe that failure to act will produce 
quite the opposite effect over the long term, stifling the 
ambition and dreams of people with disabilities, limiting 
market opportunities, and jeopardizing the U.S.'s ability to 
influence the global accessibility community.
    In conclusion, IBM is confident that U.S. ratification of 
the CRPD will create global marketplace pull for accessible ICT 
and reinforce the U.S. legacy leadership position as a champion 
for full societal inclusion of people with disabilities.
    I thank you for your attention.
    [The prepared statement of Ms. West follows:]

                 Prepared Statement of Frances W. West

    Good morning, Chairman Menendez, Ranking Member Corker, and members 
of the committee. My name is Frances West. I am the worldwide director 
for the Human Ability and Accessibility Center at the IBM Corporation. 
In this role, I am responsible for advancing IBM's accessibility market 
leadership by driving inclusive, human-centric technology innovation 
and solution development. I currently serve on the Board of Directors 
for the World Institute on Disability and the U.S. Business Leadership 
Network.
    As an information technology (IT) executive who has dedicated a 
decade of my career to advancing the equal technology access rights of 
people with disabilities, I am honored to appear before this committee 
to discuss IBM's point of view on the United States proposed 
ratification of the Convention on the Rights of Persons with 
Disabilities (CRPD).
    Today, I will discuss the current global marketplace for 
accessibility, the opportunities created by the CRPD, and the potential 
business impact of U.S. ratification of this important human rights 
treaty. I will conclude with IBM's recommendation for the committee's 
consideration. It is our hope that the committee will vote favorably on 
the treaty and the Senate will ratify it during this congressional 
session.
     the current global marketplace for accessible information and 
                      communications technologies
    Global demand for accessibility continues to grow, due in part to 
the strengthening voice of more than 1 billion people with disabilities 
worldwide; the organizations that advance their interests; and 
influential human rights treaties like the CRPD. However, other 
parallel, disruptive trends are also driving unprecedented marketplace 
demand, making accessibility a mainstream requirement for governments 
and businesses around the globe.
    For example, today a significant percentage of the world's 
population--more than 800 million people--are over the age of 60.\1\ By 
2025, individuals in this age bracket are expected to comprise 20 
percent of the population in most industrialized nations. And while 
half of people over the age of 65 have some form of age-related 
disability--such as diminished sight, hearing or mobility--they 
typically do not consider themselves disabled. As a result, they are 
less likely to proactively seek technology accommodations, driving the 
need for governments and businesses to create more adaptive, intuitive, 
and usable technology solutions from the outset.
    From a technology perspective, mobile and smart device adoption is 
transforming how, when and where we communicate. It is also enabling a 
new paradigm for work, allowing us to connect to clients, partners, and 
colleagues, anytime, anywhere. Last year, mobile phone subscriptions 
worldwide surpassed 6.4 billion.\2\ These users--more than 1 billion of 
whom are mobile workers--are impacted by environmental challenges that 
render them ``situationally disabled.'' For example, workers taking 
conference or client calls in public spaces with loud ambient noise, 
like that in airports and coffee shops, are situationally disabled. So 
too, are employees who need hands- and eyes-free access while driving 
to e-mail, SMS messages, and other text-based communications.
    As a result, mobile technology leaders are seeking new ways to 
address these situational challenges to capture or sustain market 
leadership. In many cases, the solution involves integration of 
assistive technologies originally designed to enable 
access for people with disabilities.
    Social networking and social businesses are also playing a 
significant role in mainstreaming accessibility worldwide. Upending 
traditional customer segmentation and collaboration models, the social 
revolution has generated intense demand for preference-based content 
and services. It has also enabled individuals as change agents and 
created empowered consumers with new demands for highly personalized 
service experiences.
    Finally, emerging human-centric technologies such as smart TVs, 
wearable devices and next-generation augmented reality--a technology 
that is expected to grow from about 6 million users\3\ to 2.5 billion 
by 2017\4\--will continue to transform the technology landscape. 
Enabling widespread access to and innovation for these technologies 
will depend in large part, on the ongoing integration of flexible, 
adaptive, intuitive and accessible technology capabilities.
    Based on these and other disruptive trends, it is clear that moving 
forward the demand for accessibility will continue to increase.
     global government response to rising demand for accessibility
    In response, governments around the world are taking steps to 
ensure equal access to technology for everyone, including people with 
disabilities. As you know, the United States Government has assumed a 
leadership role in this area with the refresh of Section 508 of the 
U.S. Rehabilitation Act and the Americans with Disabilities Act 
Amendment, as well as the passage of laws such as the 21st Century 
Communications and Video Accessibility Act.
    However, other governments are also taking clear and significant 
action. In Canada, the government of the province of Ontario in 2005 
passed the Accessibility for Ontarians with Disabilities Act. This 
domain-based law impacts public and private sector organizations and, 
in part, includes requirements that all new Web content and user 
interfaces be accessible by January 2014.
    In Europe, the EU Mandate 376 requires the three standards bodies 
in that region to harmonize and facilitate the procurement of 
accessible information and communications technologies (ICT). The 
European Accessibility Act currently under development will also define 
new procurement requirements for government entities and significantly 
impact the private sector mobile market in Europe.
    In China, a national Web Accessibility standard has been 
established that harmonizes with key principles outlined in the World 
Wide Web Consortium's Web Content Accessibility Guidelines, ensuring 
that more people with disabilities in China can access and use the 
Internet.
    Notably, all of these countries have ratified the CRPD and only the 
U.S.--the leader in disability and accessibility policy--has not.
                    scope and importance of the crpd
    As of October 2013, 158 countries worldwide have signed the CRPD. 
Of these, 138 countries have also chosen to ratify the Convention based 
on the clear understanding of its broad intent to advance the full 
societal inclusion of people with disabilities. The CRPD quite simply 
mandates that people with disabilities should have the full rights and 
freedoms enjoyed by all other citizens worldwide, including equal 
access to employment, health care, education, transportation and 
technology, to name a few.
    Importantly, it also establishes the first universal framework for 
accessible ICT. Understanding that technology is the great equalizer 
for underserved populations, the CRPD authoring committee adopted this 
framework to provide governments and businesses worldwide with a clear 
roadmap toward inclusive ICT that can benefit all individuals, 
including people with disabilities.
           ibm point-of-view on u.s. ratification of the crpd
    It is for these reasons, that IBM--which for 100 years has embraced 
accessibility as a diversity initiative and has been consistently 
recognized for its leadership in the employment and accommodation of 
people with disabilities--supports the CRPD and its underlying 
principles.
    It is our view that the CRPD does more than any single government 
or business entity could do on its own, and that U.S. ratification of 
the CRPD will advance the marketplace for accessible ICT, ultimately 
benefiting the U.S. economy, businesses, and individual citizens.
    Indeed, by unifying ratifying countries in collective commitment to 
providing people with disabilities with, in part, equal access to 
employment, education, and technology, the CRPD accelerates a number of 
critical business imperatives, including:

   The adoption of globally harmonized accessible information 
        technology standards;
   Technology research innovation and agendas;
   Policy-driven market growth;
   Public and private sector procurement policies;
   A larger, accessibility informed U.S. talent pool; and
   The development of more U.S. knowledge workers with 
        disabilities.

Adoption of globally harmonized accessible information technology 
        standards
    In the IT industry, standards play a critical role in ensuring the 
interoperability of technology and the acceleration of innovation upon 
a common foundation. Through the Global Initiative for Inclusive 
Information and Communications Technologies (G3ict), the CRPD advocates 
for accessible ICT standards harmonization among ratifying countries. 
This is vital to the U.S. and U.S.-based technology companies for a 
number of reasons:

    1. The Convention itself is based on the Americans with 
Disabilities Act (ADA). As such, it embraces standards of inclusion 
outlined in the ADA and by extension, U.S. accessibility standards.
    2. For U.S.-based technology companies like IBM, global 
accessibility standards that are harmonized with U.S. standards protect 
our investments in accessible technology and help ensure return on 
investment over the long term.
    3. As the global IT market grows with more participation from every 
corner of the globe, the U.S.'s ability to influence overseas IT 
manufacturers is diminishing. The G3ict focus on harmonizing 
international standards to those developed here in the U.S., like the 
World Wide Web Consortium's Web Content Accessibility Guidelines, will 
enable the IT industry to achieve economies of scale and preserve the 
United States ability to continue to lead change worldwide.

    The implications of unharmonized technology standards are 
potentially enormous. Without standards harmonization, the availability 
of accessible ICT could be greatly diminished because the market would 
fragment. Essentially, the costs of solutions and services would 
increase due to the need for customization for each individual market; 
and, conversely, access to lucrative markets ripe for accessible 
solutions and services will decrease because of these divergent 
requirements.
    Take for example, a piece of technology I'm sure most of us in this 
room have with us today: our mobile smartphone. Due to massive global 
adoption rates, device manufacturers and service providers are under 
intense marketplace pressure to continually deliver new and better 
products. As a result international standards development has not been 
able to keep pace and countries are, in some cases, setting divergent 
requirements for mobile accessibility.
    Today mobile accessibility is like the Wild West, with every 
country sheriff trying to determine how to set and enforce laws in the 
mobile territory. In this space, the U.S. has led by setting some 
standards through FCC regulation but we are seeing other countries 
begin to establish divergent requirements. What does this mean? If we 
are not at the policy and standards tables to ensure that mobile and 
all ICT accessibility rules are globally harmonized, market barriers 
will be created for technology products and solutions. The trickle-down 
effect for all users that require accessible mobile devices is that 
they will not be able to use their mobile technology in foreign 
countries. For global citizens, for IBM's employees in 96 countries, 
and all persons with disabilities who rely on these devices as an 
essential enabler of work and life, this could be a major barrier to 
work and societal inclusion. The U.S. needs to lead and continue to 
share our expertise in order to keep open markets and our global 
relevance.
    By promoting globally the standardized development of accessible 
ICT the CRPD will drive awareness of the importance of using 
international accessibility standards in all industries and 
environments. By not having a ``seat at the table'' in standards 
development, U.S. businesses' ability to quickly develop and innovate 
new solutions will be slowed and our capacity to keep up with the speed 
of change, especially in the mobile space, will be hampered.
    The ripple effect for people with disabilities will be significant 
not only in terms of the increased availability of accessible ICT, but 
also with respect to jobs creation, and employment opportunity.
    For instance, innovation in accessibility technology that benefits 
people with disabilities also benefits the general population that are 
``situationally disabled,'' as mentioned previously. Aligning around 
harmonized standards will allow businesses, such as IBM, to address 
accessibility needs into their product development and be better 
positioned to lead a market when an assistive technology garners the 
attention of the mass market.\5\ Thus, expanding the market opportunity 
will create an entrepreneurial wave of activity that creates jobs and 
promotes accessible ICT.
    As U.S. businesses gain a greater understanding of the need for 
accessible, standards-based solutions and incorporate best practices 
into their procurement and development processes, they will over time 
become better equipped to support the competitive employment of 
existing employees with disabilities and create new opportunities for 
prospective employment candidates with disabilities.
Policy-driven market growth
    In the U.S. and worldwide, the actions of governments have long 
played a key role in driving business opportunity. It is no 
exaggeration to say that in many cases, policies make markets. The 
U.S.'s Section 508 of the Rehabilitation Act is a prime example. Prior 
to the enactment of this federal procurement policy, the accessibility 
market was small. Indeed, most technology companies would have 
classified it as ``niche'' and therefore not an investment priority.
    However, Section 508 and the buying power of the Federal Government 
has transformed the marketplace for accessibility, generating new 
demand for accessible ICT from government agencies and the countless 
companies that provide products and services to those agencies. As a 
result, this single U.S. policy action has played a major role in 
defining accessibility as a mainstream government and business 
requirement. U.S. ratification of the CRPD will have a similar effect 
across many other industries vital to the socio-economic inclusion of 
people with disabilities, including education, health care, and 
transportation.
Public and private sector procurement policies
    In recent years, IBM added an accessibility statement to our 
procurement policy to encourage the acquisition of products, services, 
and solutions that are usable by all of our 430,000 employees 
worldwide. This action prompted change among our vendors and suppliers, 
increasing integration of accessibility into their products and 
services.
    The CRPD promotes the use of accessible technology. Public and 
private sector adoption of procurement requirements for accessible 
technology will increase the marketplace for accessibility innovations 
on a broad scale, increasing technology access for individuals in every 
country where accessibility innovators do business.
A larger, accessibility informed U.S. talent pool
    One of the primary challenges to widespread accessible ICT adoption 
is the dearth of accessibility expertise across all lines of business. 
Post-secondary and professional education curriculums have simply not 
kept pace with increasing marketplace demand for accessibility. As the 
CRPD drives increased awareness and adoption of accessibility best 
practices, knowledge and skills of individuals in key job roles--
including executive management, human resources, and IT development--
will naturally increase. Accessibility innovation, research agendas, 
and procurement rules in the U.S. and worldwide will advance as a 
result.
More knowledge workers with disabilities
    Equally as challenging as the lack of mainstream accessibility 
expertise is the shortage of people with disabilities with the skills 
necessary for IBM and companies like us to hire them. For IBM, a 
diverse workforce that includes people of different cultural 
backgrounds, heritages, ages, and abilities has proven to be a 
significant competitive differentiator. In our experience, diversity of 
thoughts, perspectives, and viewpoints drives innovation. Unfortunately 
today, too many prospective job candidates with disabilities lack the 
necessary science, technology, engineering, and math skills to even 
qualify for employment consideration at IBM. By prioritizing both equal 
education and technology access for people with disabilities, the CRPD 
will in turn, create a larger talent pool of knowledge workers with 
disabilities, enabling IBM and like companies to hire the best talent 
and meet requirements associated with emerging policies such as Section 
503 of the Rehabilitation Act.
                               conclusion
    In conclusion, IBM is confident that U.S. ratification of the CRPD 
will generate new opportunities for U.S. businesses. It will also 
create marketplace ``pull'' for accessible information and 
communications technologies and reinforce the United States legacy 
leadership position as a champion for full societal inclusion of people 
with disabilities.
    Failure to act, will produce quite the opposite effect over the 
long term: stifling the ambition and dreams of people with 
disabilities; choking marketplace opportunities; and jeopardizing the 
United States ability to influence the global accessibility community. 
IBM wants the full backing of the U.S. Government to influence the 
development of emerging standards and policies that drive an important 
market for us.
    As we look toward the future of technology and its increasing 
emphasis on delivering personalized, intuitive, adaptive, and 
accessible experiences for every individual, governments, and 
businesses that prioritize accessibility and take necessary steps to 
create or maintain leadership will be at a distinct advantage. I can 
tell you that IBM has already seen increased interest in its accessible 
solutions in countries that have ratified the CRPD.
    Ratification of the CRPD by the U.S. would enhance our 
opportunities here and abroad. The business community has signaled its 
support for the ratification of the treaty with letters from the U.S. 
Chamber of Commerce, the Information Technology Industry Council and 
the U.S. Business Leadership Network. IBM includes its support as a 
member of these organizations.
    Finally, for nearly a half century, the U.S. has worked to ensure 
that people with disabilities can enjoy the same rights and freedoms as 
the rest of our citizens. This administration in particular, has set 
aggressive goals to strengthen health care access, expand educational 
opportunities and increase employment of people with disabilities.
    As with many other societal issues, the U.S. has served as a model 
for the rest of the world. Ratifying the CRPD is the next logical step 
in our journey toward full societal inclusion of Americans with 
disabilities. It will also preserve our leadership role in promoting 
the rights and employment of persons with disabilities worldwide, and 
create new global market opportunities for U.S. businesses.
    However, I believe there is perhaps an even larger benefit to be 
realized by U.S. ratification of the CRPD. As the widespread creation, 
availability, and use of accessible technology increases, we have a 
unique opportunity to transform not only the way we do business, but 
our society as a whole. Because widespread accessibility integration 
cannot be achieved by any one public or private entity, by necessity 
new cross-industry partnership models will emerge to speed innovation 
and decrease time to market. Through these public-private partnerships, 
IBM and like-minded government, business, and technology leaders can 
affect real and significant change for people with disabilities, the 
aging population and others on a broad scale.
    By partnering together, government, advocacy, health care, 
education, telecommunications, transportation, technology and other 
industry leaders can maximize value creation for even more people. The 
end result will be smarter, more connected, inclusive and accessible 
societies for all of us. That, I believe, is an outcome worth aspiring 
to and a goal worth pursuing together.
    Mr. Chairman and members of the committee, I hope my insights into 
IBM's point of view on U.S. ratification of the Convention on the 
Rights of Persons with Disabilities are helpful.
    Thank you for the opportunity to testify before you today. I look 
forward to answering any questions you may have.

----------------
End Notes

    \1\``Ageing in the 21st Century: A Celebration and A Challenge,'' 
Chapter 1. 2012. U.N. Population Fund, http://unfpa.org/ageingreport/.2
    \2\Source Digit. http://sourcedigit.com/1264-global-mobile-
penetration-q3-2012/.
    \3\Los Angeles Times. http://articles.latimes.com/2011/oct/13/
business/la-fi-augmented-reality-20111013.
    \4\Juniper Research. http://www.juniperresearch.com/
viewpressrelease.php?pr=334.
    \5\Gartner, ``Market Trends: New Technologies Benefit Employees and 
People With Disabilities'' (Published: 20 September 2013).

    The Chairman. Thank you.
    Professor Rabkin.

JEREMY A. RABKIN, PROFESSOR OF LAW, GEORGE MASON UNIVERSITY OF 
                  SCHOOL OF LAW, ARLINGTON, VA

    Mr. Rabkin. Thank you for inviting me, Mr. Chairman. I want 
to make three basic points, and they respond to what Secretary 
Kerry was saying, that this treaty will not require us to do a 
thing. He repeated that over and over again, ``will not require 
us to do a thing,'' but it will give us a lot of leverage on 
other countries.
    So my first point is we should stop and pause over this. 
How could it be that although they do not get any leverage on 
us, we get a lot of leverage on them? That just on the face of 
it seems a little bit implausible. If it were true that our 
ratifying a treaty like this gives us a lot of leverage on 
other countries, then our having ratified the Covenant on Civil 
and Political Rights, which we have ratified, would give us the 
leverage to make sure that there is free speech in countries 
like North Korea and Cuba, both of which are parties to the 
Covenant on Civil and Political Rights. It would allow us to 
make sure there is freedom of religion in China, Egypt, and 
Pakistan, countries which are part of that Convention.
    We should remind ourselves that if we can make a promise 
saying, ``We are promising, but it does not mean anything 
because you cannot force us,'' they also can make the same 
promise in the same spirit. They can say, ``Oh, yeah, we signed 
onto this, but you cannot force us to do anything.'' So I think 
this is a little bit optimistic to think just because people 
have signed this Convention, that means they are going to 
implement it.
    The only way in which there can be American leverage is if 
we actually lean on these countries, we twist their arms. We 
say, ``Now, come on, now we really expect you to do it.'' And I 
think we should pause over that, too. A lot of countries in the 
world have really serious problems. Hundreds of millions of 
people do not have access to clean water, and, therefore, they 
get all kinds of intestinal parasites, and their children get 
sick. And we are saying, ``No, forget about that, what you need 
are tactile strips. That is the most urgent priority. And that 
is the most urgent priority because Americans want to feel 
totally comfortable when they visit your country.''
    Around the world there are countries that have real 
problems with malnutrition, that have real problems with 
illiteracy, and we are saying that is not important. Your 
highest priority should be buying equipment from IBM and other 
American countries that have made advanced equipment to deal 
with the problems of a small subset of your population. And a 
lot of the discussion today was not even about their 
population; it was about our population.
    I really think we are going to find it difficult to lean on 
other countries and say do this so that Americans when they 
briefly visit your country will be more comfortable. So that is 
the first thing. I think the leverage on other countries is 
really exaggerated.
    The second thing is, Secretary Kerry said no problem for 
America. We are not obligated in any way. There are a lot of 
things in this Convention which are not parallel to the ADA. 
Let me just tick off a few. The ADA has a bunch of exceptions 
for private clubs, for religious institutions, for private 
residences. The Convention does not acknowledge any of those 
exceptions. If we sign the Convention, we are obligating 
ourselves in our good faith to implement it, but the ADA is 
more restrictive than the Convention.
    Now, it is true that we can say to the implementing 
committee, ``We are not listening, we are America, we do not 
care.'' But I think, inherently, when you sign a treaty, you 
are making a promise in good faith to implement it, which means 
we are promising, in fact, to do more than we already do with 
the ADA. There are a lot of questions that can arise down the 
road. What do you mean by ``disability''? The treaty does not 
define it. Is alcoholism a disability, drug addiction? You can 
go through a whole series of things, which we have disputes 
about. Do we want the right to decide that entirely for 
ourselves, or are we going to commit, which this treaty would 
do, to say, ``Yes, we will take advice from the implementing 
committee there?''
    Equal remuneration for work of equal value. That is in 
article 27. That is a big change over what we have done. We do 
not have anything like that in the ADA. It is not even in our 
civil rights legislation. Are we going to implement that? The 
Convention has provisions about making sure that laws 
protecting intellectual property rights do not conflict--do not 
constitute an unreasonable barrier to access to persons with 
disabilities. That seems to me to say you should not enforce 
intellectual property rights if it gets in the way of helping 
people with disabilities get access to maybe IBM products. Why 
should IBM insist on its patent since the Convention is saying 
you should not do that?
    The last thing I want to say is, we have previously not 
ratified human rights conventions of this kind. The human 
rights conventions that we have ratified up until now have been 
on very basic American style constitutional rights like freedom 
of religion and freedom of speech or opposing torture. This is 
a big step beyond that. This is much more like the Covenant on 
Economic and Social Rights, which we have said through a 
succession of Presidents that, no, we are not going there. That 
is too ambitious. That is not what we understand by human 
rights.
    If we ratify this Convention, we are saying that anything 
and everything could be something brought to us in the name of 
human rights, and we could commit to it, and we could share 
with other countries what decisions we make about how to 
regulate our economy, how to take care of poor people, old 
people, any kinds of people in the country. That is a very, 
very big step, and we should think about that before we say, 
``Yes, sure, we will just cross that bridge now without 
worrying about it, because we want to help the disabled.''
    I think everybody in America--almost everybody--does want 
to help people who have disabilities. The question is, Do we 
want to do it in partnership with 138 countries? And I think we 
ought to have the self-confidence to say we can decide these 
matters for ourselves, and we respect their right to decide for 
themselves.
    Thank you.
    [The prepared statement of Mr. Rabkin follows:]

                  Prepared Statement of Jeremy Rabkin

    Most Americans want to help people with disabilities. So a treaty 
promising to do that generates immediate sympathy. But a treaty is a 
solemn international commitment. We should not embrace a new 
international commitment on the basis of emotional identification with 
its aims. Ratifying this Convention would commit the United States to 
obligations we cannot now foresee. An international treaty is a bad 
vehicle for determining what we should do to help people with 
disabilities.
    Let me start with the most general premise of this Convention, that 
a coordinated global policy in this area is a good thing in itself. Our 
own Constitution rests on the opposite premise--that centralizing and 
standardizing our public policies is not a good thing. Our Constitution 
confers special responsibilities on the Federal Government, then leaves 
broad areas of policy to states and localities. We call this system 
federalism. It rests on the common sense premise that we will have 
better policy and more effective implementation of policy, if we let 
people decide matters locally, where immediately affected communities 
know more about their own problems, their own resources, their own 
competing needs. If we insisted on ``one size fits all,'' we would end 
up with a lot of ill-fitting policy, because circumstances vary from 
place to place.
    Of course, we still have a lot of debate about which policies can 
be left to State and local government and which need to be directed by 
the Federal Government. That has been a large part of the current 
debate on how to improve our system of health insurance. And the same 
concerns apply to protections for persons with disabilities: if 
Washington can't manage the regulation of health insurance, why suppose 
that Geneva can be trusted to oversee a global scheme of protections 
for people with disabilities? When you agree to have your policies 
regulated by some higher authority, you inevitably risk losing control 
of your own policies.
    When it comes to protection for people with disabilities, there 
have been undeniable benefits to national regulation. Among other 
things, national programs, like the Americans with Disabilities Act and 
the Rehabilitation Act, won greater attention and more funding for 
disability rights. That does not mean, however that we can expect to 
secure even better results by now pushing policy responsibility from 
the national to the international level.
    We certainly won't get international funding for American programs 
to help people with disabilities. If there is sharing of resources, we 
will end up as net contributors to programs in other countries. We 
can't even expect that participation in an international program will 
deliver visibility and prestige for efforts to assist the disabled in 
this country. Our own national government--home to institutions and 
personalities we see on the news every day--has far more visibility 
than any U.N. forum in Geneva or even at Turtle Bay in New York. Our 
own national government has the prestige of an entity that we depend 
on, in the last resort, to secure our freedom and independence. 
Americans won't be more impressed by admonitions from international 
bureaucrats or second rank diplomats.
    So, taking direction from international officials won't elevate our 
own efforts to help persons with disabilities. It will simply 
complicate our own efforts, entangling them in remote international 
deliberations, which will be far less informed than our own domestic 
debates about proper policy. We have no reason to embrace the 
underlying premise here, that global policies are inherently better 
than national or local policies.
    This brings me to my second point. This is not just any 
international convention but precisely the type of convention that the 
United States has, until now, generally eschewed. Advocates for 
ratifying this Convention often say the United States has long been a 
leader in the movement for international human rights, so embracing 
CRPD now will honor our own traditions. Framing the issue in this way, 
however, leaves out some important qualifications.
    Since the late 1940s, when the United Nations first began proposing 
international human rights standards, there has been a debate about how 
to define human rights. Some advocates emphasized restraints on 
government to protect individual liberty--the sorts of restraints 
enshrined in our own Bill of Rights. Others disparaged such limiting 
principles as outdated. They called for expanding the powers of 
government to assure economic security and well-being to the people at 
large. People who urged such viewpoints often said that the Soviet 
Union and other socialist countries provided more meaningful human 
rights guarantees than countries with capitalist economies, where 
individuals had to worry about unemployment and material deprivation.
    The U.N. responded to this debate by proposing two different 
conventions on fundamental human rights. One addressed ``Civil and 
Political Rights'' (free speech, religious freedom, due process, and so 
on); the other dealt with ``Economic and Social Rights'' (guarantees of 
employment, health care, higher education, etc.). The United States has 
ratified the first Convention but not the second. Our government has 
advocated for civil and political rights in various ways and in various 
international forums. Advocacy for ``economic and social rights'' is 
most often the cry of repressive governments, which boast of food 
subsidies but can't tolerate personal freedoms.
    In a similar spirit, the United States has ratified the Convention 
Against Racial Discrimination and the Convention Against Torture. We 
have thus endorsed the basic principle that respectable governments can 
never engage in torture, never perpetrate race discrimination. The 
United States has not, however, joined the Convention on the 
Elimination of Discrimination Against Women (CEDAW) nor the Convention 
on the Rights of the Child. These Conventions don't just prohibit 
discrimination but go on to demand a series of government commitments 
to remake society in the service of particular egalitarian agendas.
    Our past practice has a sound logic behind it. It is fine (most of 
us think) for government to help the most vulnerable with particular 
programs. But as soon as you turn from fundamental limits on government 
to considering such additional commitments, you have opened a very 
different kind of debate. The question is no longer, ``Should 
government have this power at all?'' To that sort of question, you 
might give a concise, clear answer, set out in the charter of 
government. When you turn to specialized programs of public assistance 
for vulnerable groups, you must instead ask, ``How much should we spend 
and regulate for this benefit and how should we do it?'' We have not 
previously regarded such programs as proper subjects of international 
human rights commitments.
    We set down basic constitutional limits on governmental power--
civil and political rights--for generations to come, ``for ourselves 
and our posterity'' as the Preamble to the Constitution says. We might 
think that international human rights treaties on those subjects simply 
reaffirm our longstanding constitutional commitments. When, by 
contrast, our legislatures enact particular protective programs to help 
particular groups, we expect there will be debate and ongoing 
compromise and adjustment. So, for example, most of us may agree that 
government should do more to help people with chronic diseases--but 
that doesn't necessarily mean we embrace the Affordable Care Act in its 
current form. We reserve the right to change our minds, to adjust and 
improve that new program--perhaps to repeal large parts of it, if they 
do not function as advocates for it had hoped.
    The Convention on the Rights of Persons with Disabilities is not a 
treaty that simply elaborates fundamental limits on government, akin to 
those set out in the International Covenant on Civil and Political 
Rights. Instead, the CRPD exemplifies the activist governing philosophy 
behind the International Covenant on Economic and Social Rights. The 
CRPD explicitly echoes general provisions of the International Covenant 
on Economic, Social and Cultural Rights. The latter imposes an 
obligation on states to protect the ``right of everyone to an adequate 
standard of living for himself and his family, including adequate food, 
clothing and housing and to the continuous improvement of living 
conditions.'' (Art. 11, Par. 1) In just these same terms, the CRPD 
demands that governments ``recognize the right of persons with 
disabilities to an adequate standard of living for themselves and their 
families, including adequate food, clothing and housing and to the 
continuous improvement of living conditions . . .''. (Art. 28, Par. 1)
    If we acknowledge that government has this obligation toward 
persons with disabilities, why not toward others? Why not for 
``everyone,'' as the Covenant on Economic and Social Rights has it? If 
we embrace international supervision of our efforts to help persons 
with disabilities, why not accept international supervision for all 
other policies? Surely, we will have forfeited the capacity to say that 
any other convention extends to policies outside our own understanding 
of human rights. If we support this convention, we say helping people 
with disabilities is good and we aim to do good. We thus endorse the 
premise that if something is good, it should rightly be managed, 
directed or supervised on a global basis.
    Advocates for CRPD may reply that it does not really commit us to 
anything because we are already in compliance with all its 
requirements. Therefore, they say, subscribing to this treaty just 
gives us an opportunity to encourage others to emulate us. In fact, our 
own laws are not so sweeping and comprehensive as the CRPD. And we 
cannot now know what this convention may be interpreted to require down 
the road. I will come back to that objection in a moment. But let us 
stipulate, for the sake of argument, that the Convention will not 
constrain us, but only impose new obligations on other nations. Even if 
that were true, ratifying this Convention would not be at all wise, 
given the kind of convention it is.
    As with other human rights conventions, the CRPD makes no provision 
for enforcement, in the sense of formal sanctions for noncompliance. 
Some parties to this treaty may disobey all its requirements, as brutal 
governments have done with other human rights conventions. Saudi Arabia 
is a party to the Convention on the Elimination of All Forms of 
Discrimination Against Women. The Soviet Union subscribed to the 
Covenant on Civil and Political Rights. If there is hope for 
enforcement, it must come from third parties who hector or cajole non-
compliant states.
    We did do some of that to the Soviet Union, in its last years--
regarding free speech and religious freedom. Secretary of State John 
Kerry recently made clear we are not prepared to do that against Saudi 
Arabia, regarding its treatment of women. Asked about the Saudi law 
prohibiting women from driving cars, he said, ``I think that debate is 
best left to the Saudi Arabian people.'' But the United States is not a 
party to CEDAW.
    If we ratify CRPD, we would be taking on the moral responsibility 
to help enforce it. Are we really prepared to hector and admonish other 
countries to implement all the provisions in this very ambitious 
treaty? We would then be demanding that even very poor countries expend 
considerable resources to make public transportation and public 
buildings accessible to wheel chairs, schools equipped to accommodate 
blind people, factories to accommodate people with limited mobility. 
Such 
accommodations often require very large sums of money. Advocates say 
that if CRPD requirements are implemented everywhere, Americans with 
disabilities will find it easier to navigate wherever they travel. But 
money for this purpose may mean less money for schools in countries 
with limited literacy, less money for inoculation programs in countries 
still facing epidemic disease, less money for food programs in 
countries with mass malnutrition.
    Do we really want to badger poor countries to cut spending on these 
other things in order to make life more comfortable for American 
tourists, who will probably be few in number and brief in their visits? 
Do we really want to insist that convenience for traveling Americans 
must take priority over basic human needs in developing countries--just 
because there happens to be an international convention addressing 
``rights of persons with disabilities''? If we say that, we say that 
what international diplomats think is most important must be taken as 
such by all the world, even when it comes to matters of internal 
governance. Why would we want to sign up for that view of global 
policy?
    But now I want to address the claim that the United States is 
already in full compliance, so the Convention makes no demands of us. 
That view rests on the very questionable assumption that you can scan a 
legal document and know from your own initial reading what it will mean 
in the future. Americans should be the last people to accept that naive 
view. We are often enough surprised by what our own judges tell us is 
in our own Constitution. Who knew, before last year, that our 
Constitution prohibited the Federal Government from forcing people to 
buy health insurance--unless the forcing was implemented by something 
which judges could categorize as a tax?
    Many commentators openly affirm that our Constitution is a ``living 
document,'' constantly evolving to meet new concerns. Is the CRPD more 
fixed? The Preamble actually proclaims that ``disability is an evolving 
concept'' (Par. e). Unless the Convention is simply a collection of 
empty platitudes, advocates will surely insist that it is meant to 
function as something like a global constitutional standard--which can 
be made to answer precise questions despite the seeming generality of 
its language. The drafters evidently thought the Convention would be 
subject to precise interpretation. It establishes a committee of 
``experts'' to hand down such interpretation. (Art. 34)
    What is the status of the committee's determinations? The 
Convention is sketchy about that. It says, for example, that 
reservations contrary to ``the object and purpose of the convention 
shall not be permitted.'' (Art. 46) The Convention does not say who 
will determine which reservations do and which do not meet that test. 
The parallel committee for the International Covenant on Civil and 
Political Rights (the so-called ``Human Rights Committee'') claimed it 
had the authority to rule on which reservations are and which are not 
valid. It then claimed that invalid reservations should simply be 
treated as void, reinstating any provision of the Covenant which might 
otherwise have been suspended by a reservation. The Clinton 
administration disagreed, but the Human Rights Committee did not 
abandon its claims.
    At minimum, we should expect the CRPD committee to assert its own 
authority to say which reservations are valid and which can be 
discounted as improper. The Human Rights Committee claimed this 
authority even though the ICCPR makes no provision for limiting 
reservations. The CRPD goes to the trouble of making such limitation 
explicit--after setting up the committee to monitor each signatory 
state's compliance. Maybe a future American administration will 
challenge the authority of CRPD rulings and refuse to comply with their 
admonitions. But that will now be harder in future years than it was in 
the 1990s. In that era, we had only subscribed to a few basic 
principles which we could see as analogous to our Bill of Rights. In 
ratifying the CRPD we will have taken a long further step toward 
committing to international supervision of the whole range of our 
domestic policies.
    In its present form, the CRPD does not provide for a right of 
individual appeal to the committee. That is provided in an optional 
protocol, as it has been in optional protocols to other human rights 
conventions. The United States has always rejected such protocols, even 
for conventions we have embraced (as with the ICCPR). If the monitoring 
committee can hear personal complaints from named individuals, it is 
hard for the affected nation to say the committee is just offering 
speculative advice. Why allow individual complaints if decisions on the 
merits of those complaints can be entirely disregarded? Yet the CRPD 
provides that two-thirds of the signatory states can make amendments, 
binding on all the others, for specialized topics--among which are the 
role of the committee in hearing reports (Art. 47, Par. 3). So we might 
think we had signed up for a general discussion of general policies and 
then discover that we were committed to a quasi-judicial procedure 
generating a whole new body of case law.
    And it's not as if the Convention doesn't extend to disputed 
policies. Our own federal laws were the outcome of careful political 
bargaining, so they make provision for limits and exceptions. The 
Americans with Disabilities Act, for example, requires public buildings 
to provide access for wheelchairs, but the requirement does not apply 
to purely residential buildings. There are also ADA exemptions for 
private clubs and religious institutions. Schools receiving federal 
financial assistance are regulated under Sec. 504 of the Rehabilitation 
Act, but homeschooling is not. The CRPD acknowledges none of these 
limits or exceptions. It thus threatens to overturn all these 
jurisdictional compromises, subjecting everyone and everything to its 
demands.
    Then there will be knotty questions on the substance of policy. 
What counts as a disability? Should alcoholism count? Drug addiction? 
Sexual addictions? Can employers take into account that a job applicant 
has been convicted of unlawful behavior (regarding drugs or some form 
of sexual abuse)? Or should propensity to such conduct be considered a 
disability, so that employers would be guilty of discrimination if they 
did take this into account? The Convention says employers must provide 
``equal remuneration for work of equal value'' (Art. 27, Par. 1b). Who 
determines whether a particular job, performed by a person with a 
disability, does or does not have the same financial ``value'' as a 
different job, which could not be performed by that person? Employers 
must provide ``reasonable accommodation . . . in the workplace'' to 
``persons with disabilities'' (Art. 27, Par. 1i). How much extra cost 
must an employer bear before ``accommodation'' would no longer be 
``reasonable''? Would a full-time personal assistant to read or 
translate directives into sign language be ``reasonable accommodation'' 
for an unskilled blind or deaf person?
    The CRPD says states have an obligation to ``promote the 
participation, to the fullest extent possible, of persons with 
disabilities in mainstream sporting activities.'' (Art. 30, Par. 5a) 
Does that mean professional sports teams must allow disabled athletes 
to ``participate'' with motorized devices, even if that gives them an 
unfair advantage? Does it mean schools must allow students with 
disabilities to participate in contact sports, even if medical experts 
caution that such participation might pose special risks of injury? The 
Convention admonishes, ``In all actions regarding children with 
disabilities, the best interest of the child shall be a primary 
consideration.'' (Art. 7, Par. 2) Does that mean state authorities 
should always be empowered to override parental decisions regarding 
schooling or proposed surgical intervention or pharmacologic treatment?
    The CRPD imposes a state obligation to ``adopt immediate, effective 
and appropriate measures . . . to combat stereotypes, prejudices, and 
harmful practices relat- 
ing to persons with disabilities.'' (Art. 8, Par. 1b) Neither here nor 
elsewhere does the Convention provide exemptions for religious 
institutions. So far from exempting journalistic institutions, it 
admonishes states to adopt ``measures . . . encouraging all organs of 
the media to portray persons with disabilities in a manner consis- 
tent with the purpose of the Convention.'' (8, 1c, emphasis added) So 
it might be understood to mean that states must compel even religious 
broadcasters or actual churches to disseminate particular ``messages'' 
at odds with their own religious views, as on such questions as the 
propriety of mixed sporting activities between male and female students 
when some are disabled. (See Art. 8, Par. 1b, imposing a duty to 
``combat stereotypes, prejudices and harmful practices . . . including 
those based on sex and age, in all areas of life'' [emphasis added]).
    The CRPD also imposes a duty to ensure that ``laws protecting 
intellectual property rights do not constitute an unreasonable . . . 
barrier to access to persons with disabilities.'' (Art. 30, Par. 3) 
That might require that patents and copyrights be waived whenever doing 
so would help disabled persons gain readier access to otherwise 
protected products. The Convention requires states to take ``all 
necessary measures to ensure the protection and safety of persons with 
disabilities in . . . situations of armed conflict''. (Art. 11) That 
might impose very considerable extra burdens on our military.
    My point is not that absurd or intolerable consequences will 
necessarily follow once we commit to the Convention. My point is that 
many provisions are open to a range of possible interpretations. We 
have no reliable way of predicting how the CRPD committee will 
interpret the Convention in future years. And we can't now predict 
whether the United States Government will feel able or willing to 
reject those interpretations. If we start by insisting we will never be 
influenced by the committee's interpretations, we make the whole 
project appear to be pointless symbolism. If we are not influenced, why 
suppose any other country would be? Then what is the point? But if we 
say we are open to influence, we may find it hard to resist particular 
rulings, especially if domestic constituencies embrace them and demand 
that we ``honor our solemn treaty commitments'' and show ``due respect 
to the consensus of the international community'' or defer to 
``internationally acknowledged experts in this field.''
    Nor can we assume that the CRPD monitoring committee will only 
offer interpretations acceptable to most of the world at that moment 
and therefore always quite modest. The Human Rights Committee of the 
ICCPR read sexual liberty into the ``privacy'' guarantee of that 
Convention as long ago as the mid-1990s, when many states (including 
most American states) still had laws against same-sex sexual practices. 
The U.S. Supreme Court subsequently cited that ruling in interpreting 
the U.S. Constitution. No Muslim country seems to have felt compelled 
to follow nor has the U.N. made an issue of their restrictive 
regulation in this area. Even international conventions that seem to 
indicate universal prohibitions are, in practice, understood to apply 
differently to different countries. When it comes to costly adaptations 
to complicated social policy aims (such as assuring accessibility of 
public transportation to people in wheelchairs), differential 
requirements will be taken for granted. The Committee is quite capable 
of imposing requirements on the United States and other affluent 
countries which it does not press on less developed states.
    Again, I am not saying the results will necessarily be onerous or 
outrageous. But I return to my initial point: why commit ourselves to a 
global partnership when deliberating on our own policies in this area? 
Why assume that a group of international ``experts'' (as the CRPD calls 
the committee) will necessarily know better than democratically elected 
representatives in countries that already have much experience with 
these policy questions?
    Of course, we may still have things to learn from other countries. 
Let us, by all means, study their experience. Let us give grants to 
scholars to write up what they have learned from studying the 
experience of other countries. But why commit ourselves to do the same 
things they do and in the same way? Why is it so important for all 
nations to follow the same policy standards in this area?
    What about liberty? What about independence? What about pursuing 
happiness in our own varied ways? Aren't those fundamental American 
commitments? To embrace this Convention is to confess that we don't 
think we can decide these matters for ourselves. It is to confess that 
we don't think ourselves worthy of self-government. It is not, then, a 
fulfillment of our Declaration of Independence but a repudiation of its 
central premise--that we have a right, as an independent nation, to 
decide for ourselves how we will be governed.

    The Chairman. Thank you.
    Professor Bradley.

 STATEMENT OF CURTIS A. BRADLEY, WILLIAM VAN ALSTYNE PROFESSOR 
       OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NC

    Mr. Bradley. Chairman Menendez, Ranking Member Corker, 
thank you for this opportunity to appear before the committee. 
I want to emphasize at the beginning that I consider myself a 
strong supporter of protecting the rights of the disabled. I am 
quite proud of the laws that the Congress has enacted in this 
area, including, of course, the Americans with Disabilities 
Act.
    I come here not as an opponent of the Convention, but 
rather as someone who strongly believes that when the United 
States ratifies treaties, it should be attentive to how the 
treaties relate to U.S. constitutional standards and 
traditions, something I know the Senate is always concerned 
about. And this is a particular issue when it comes to human 
rights treaties, which by their nature focus much more 
internally than traditional treaties, and, thus, pose 
additional issues for the U.S. legal system.
    Of particular concern, in my view, is that the broad and 
vague terms in the Disabilities Convention, some of which you 
have heard about today, could be used in a manner that would 
undermine the Federal nature of the U.S. constitutional system. 
To give you a couple of examples, the Convention refers, for 
example, to standards governing the care of children. This is a 
family law topic, traditionally regulated in the United States 
under State rather than Federal law. In addition, the 
Convention addresses private as well as governmental conduct 
without any of the limitations that would normally apply to 
Federal regulation of private conduct, such as a requirement of 
a connection to interstate commerce.
    Although Congress has broad authority in the absence of 
this treaty to protect the rights of the disabled and has used 
that authority, there are limits in our system to how far 
Congress can go with respect to the regulation of matters 
normally addressed by State and local governments. Because of a 
1920 Supreme Court decision, Missouri v. Holland, Congress is 
allowed, however, to expand its normal legislative authority 
when it is passing legislation to implement a treaty. A concern 
has been raised, therefore, that Congress at any future time 
could use the Disabilities Convention, if it is ratified, as a 
basis for legislation that would intrude in new ways on State 
and local authority beyond what Congress could normally enact. 
The United States commitment to federalism, I think, depends on 
maintaining a national government of limited and enumerated 
powers, and I believe, therefore, that this issue should be 
addressed.
    I do think, fortunately, that it is possible to adequately 
address this issue with an appropriate reservation. I have 
looked at the reservations proposed by the administration, 
however, and I think they are clearly not adequate. When you 
read those reservations closely, what you find is that they 
merely state that the government is not required to intrude on 
State and local authority, but they in no way prevent the 
government from doing that. Those who have expressed concerns 
about the potential reach of the Convention understandably want 
more assurance than that.
    It is not enough--and this is a rare disagreement between 
myself and Mr. Gray--it is not enough to point to the non-self-
execution declaration, which is certainly an important one. All 
that does is prevent the Convention right now from being 
litigated. It has no effect at all on the issue of the scope of 
congressional authority, starting the day after the treaty is 
ratified, to invade State and local authority. It is simply a 
different issue. The proper way to address the congressional 
authority issue is instead by crafting an appropriate 
federalism reservation that expressly disavows expanding the 
government's authority beyond what it could do, which is quite 
expansive already, in the absence of the Convention.
    As I discuss in my written testimony, this would not be the 
first time the Senate would adopt such a reservation. I found 
several examples in which the Senate has quite properly 
attached a similar reservation, starting, for example, in the 
1951 ratification of the charter of the Organization of 
American States, and I give some other examples in my 
testimony. These reservations make clear, unlike what the 
administration has proposed--just to quote one of the 
reservations in my testimony--nothing in the Convention confers 
any power on the Congress to take action in fields previously 
beyond the authority of Congress. That is from a prior 
reservation, from a different treaty. Something like that I 
think is quite clearly needed here.
    The administration--and I was quite encouraged by Secretary 
Kerry's testimony this morning--should not be opposed to this 
idea. And, indeed, if I am interpreting what the Secretary said 
correctly, he seemed quite receptive to adding reservations 
along the lines that I am suggesting here. Of course, the 
administration maintains that existing law is satisfactory to 
meet the obligations of the United States under the treaty, so 
it should not claim the need not only for new laws, but laws 
that would expand Congress' authority beyond what it currently 
has. And my sense is that Secretary Kerry was acknowledging 
that.
    I address some other issues in my written testimony about 
the role of the Disabilities Committee and the need for 
nonseverability language.
    Thank you for your attention.
    [The prepared statement of Mr. Bradley follows:]

                Prepared Statement of Curtis A. Bradley

    Thank you for this opportunity to appear before you. I am a strong 
supporter of protection for the rights of the disabled, and I am proud 
of the strong laws that Congress has enacted in this area, including 
most notably the Americans with Disabilities Act. I have no doubt that 
the United States will continue to be a world leader on these issues 
regardless of whether it joins the Disabilities Convention. I come here 
not as an opponent of the Convention, but rather as someone who 
believes that when the United States ratifies treaties it should be 
very attentive to how the treaties relate to U.S. constitutional 
standards and traditions.
    I have studied this relationship during almost 20 years of 
teaching, and also during my service as Counselor on International Law 
in the Legal Adviser's Office of the U.S. State Department. I have also 
written extensively about issues relating to treaties and their 
implementation in law journal articles as well as in my recent book, 
``International Law in the U.S. Legal System'' (Oxford University Press 
2013). In addition, I currently have the privilege of serving as one of 
the Reporters for the treaty portion of the American Law Institute's 
new Restatement (Fourth) project on U.S. foreign relations law.
          potential for intrusion on state and local authority
    The Disabilities Convention, like other human rights treaties, was 
negotiated among a large group of countries and thus is not focused on 
the constitutional standards and traditions of the United States. It 
should not be surprising, therefore, that there might be 
discontinuities between the approach of the Convention and the overall 
framework of American law. Of particular concern, in my view, is the 
potential that the broad and vague terms in the Convention could be 
applied in a manner that would be inconsistent with the federal nature 
of the U.S. constitutional system. The Convention refers, for example, 
to the standards governing the care of children, a family law topic 
traditionally regulated in the United States under State rather than 
Federal law. In addition, in its accessibility and other provisions, 
the Convention addresses private as well as governmental conduct, 
without any of the limitations that would normally apply to federal 
regulation of private conduct--such as a requirement of a connection to 
interstate commerce.
    The Federal Government already has broad authority in the absence 
of the Convention to protect the rights of the disabled, most notably 
under its power to regulate commerce and its power under Section 5 of 
the Fourteenth Amendment to address certain state-sanctioned 
discrimination, and it has already enacted a number of important laws 
that protect such rights. Nevertheless, there are constitutional limits 
to how far Congress can go with respect to the regulation of matters 
normally addressed by State and local governments or left to private 
decisionmaking. As a result of the Supreme Court's 1920 decision in 
Missouri v. Holland, 252 U.S. 416 (1920), however, Congress is allowed 
to exceed its normal legislative powers, including its commerce power, 
if it is implementing a treaty. A concern has therefore been raised 
that Congress could in the future invoke the Disabilities Convention as 
a basis for intruding on State and local authority beyond what would be 
permitted in the absence of the Convention. I believe this is a 
legitimate concern.
    The importance of this issue was highlighted recently during the 
Supreme Court argument in Bond v. United States. In that case, the 
Federal Government prosecuted a local poisoning case--something 
normally within the province of State law--under the statute that 
implements the Chemical Weapons Convention. A number of the Justices on 
the Supreme Court were surprised that the government had decided to use 
the statute in this way, given that the case did not concern the United 
States international affairs and was of no particular interest to the 
other parties to the treaty. When the Solicitor General told the Court 
that it would be ``unimaginable'' that the Senate would agree to a 
treaty allowing the Federal Government to exercise a general police 
power, Justice Kennedy replied that ``[i]t also seems unimaginable that 
you would bring this prosecution.''\1\ Justice Breyer also expressed 
concern that the government's broad reading of the treaty power ``would 
allow the President and the Senate, not the House, to do anything 
through a treaty that is not specifically within the prohibitions of 
the rights protections of the Constitution,'' something that Breyer 
``doubt[ed] . . . the Framers intended to allow.''\2\
    It is possible, in my opinion, to address the federalism concern 
that is raised by the Disabilities Convention by including an 
appropriate reservation in the Senate's resolution of advice and 
consent. The two reservations that were proposed last year, however, 
are not adequate. Those reservations state:

          (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\

    In my view, neither of these reservations adequately addresses the 
constitutional concerns. The federalism reservation refers vaguely to 
``measures appropriate to the Federal system,'' but that might include 
measures allowed under Missouri v. Holland, and the reservation 
specifically states that the Federal Government can take enforcement 
measures against State and local actions that are inconsistent with 
``other Federal laws,'' which might include laws that Congress enacts 
in the future under the authority conferred by Missouri v. Holland. 
Similarly, the private conduct reservation says that the United States 
is not accepting any obligation to regulate private conduct ``except as 
mandated by . . . laws of the United States of America.'' Those laws 
could include statutes enacted in the future pursuant to the authority 
allowed under Missouri v. Holland.
                    proposed federalism reservation
    To adequately address the constitutional concerns, I believe that 
the Senate should instead include a reservation with its advice and 
consent that makes clear that the Convention will not expand the 
authority of the Federal Government to regulate matters that would 
otherwise fall outside of Congress's regulatory authority. The 
reservation could refer specifically to Article 4(5) of the Convention, 
which states that ``[t]he provisions of the present Convention shall 
extend to all parts of federal states without any limitations or 
exceptions.'' I am including an appendix with my testimony that 
proposes language for such a reservation. By limiting U.S. obligations 
to matters that fall within the constitutional authority of the Federal 
Government in the absence of the Convention, this reservation would 
ensure that the Convention does not change either the Federal-State 
balance or expand the ability of the Federal Government to regulate 
private conduct.
    There is precedent for what I propose. During the mid-2000s, the 
Senate included with its advice and consent to two treaties--the U.N. 
Convention Against Corruption and the U.N. Convention Against 
Transnational Organized Crime--a reservation that withheld consent to 
certain obligations that would normally be addressed by State and local 
law. In that reservation, the Senate made clear that Federal criminal 
law applies only to conduct that involves ``interstate or foreign 
commerce, or another federal interest,'' and that the United States was 
not assuming obligations to address ``highly localized activity.''\4\ 
An even closer precedent occurred in connection with the U.S. 
ratification of the Charter of the Organization of American States in 
1951, when the Senate included with its advice and consent a 
reservation stating that none of the Charter's provisions ``shall be 
considered as enlarging the powers of the Federal Government of the 
United States or limiting the powers of the several states of the 
Federal Union with respect to any matters recognized under the 
Constitution as being within the reserved powers of the several 
states.''\5\ A similar example is the statement issued by the Senate 
when giving its advice and consent to the Convention on the 
Organization for Economic Cooperation and Development in 1961, which 
makes clear that ``nothing in the Convention . . . confers any power on 
the Congress to take action in fields previously beyond the authority 
of Congress.''\6\ A reservation with comparable language is needed 
here.
    If issued as a reservation, and included in the Senate's resolution 
of advice and consent, I believe that what I am proposing would be 
viewed as binding by U.S. courts if the Federal Government ever 
attempted to implement the Convention in a way that exceeded Congress' 
preexisting constitutional authority. In addition, the package of 
proposed reservations, understandings, and declarations for the 
Convention already includes a declaration of non-self-execution, which 
will have the effect of preventing the Convention from being judicially 
enforceable on its own terms. Such a declaration has been issued by the 
Senate in connection with its ratification of a number of other human 
rights treaties, and courts have consistently deferred to the 
declaration.
    In order to obtain the requisite two-thirds senatorial advice and 
consent, proponents of the Convention should be willing to accept this 
proposed reservation. The Obama administration has stated that existing 
U.S. law is sufficient to meet the obligations that the United States 
would have under the Disabilities Convention. For example, in 
transmitting the treaty to the Senate in May 2012, President Obama 
stated that ``the strong guarantees of nondiscrimination and equality 
of access and opportunity for persons with disabilities in existing 
U.S. law are consistent with and sufficient to implement the 
requirements of the Convention as it would be ratified by the United 
States.''\7\ Similarly, this committee concluded last year, as 
reflected in one of its proposed declarations for the Convention, 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.''\8\ As 
a result, proponents of the Convention should not be in a position to 
claim that the Federal Government needs authority to enact not only new 
laws, but also laws that exceed the normal (and quite broad) regulatory 
powers of Congress. In any event, in order to protect the U.S. Federal 
system, it is my view that the Senate should not give its advice and 
consent to the Convention without a reservation along the lines of what 
I am proposing.
                              other issues
    Another concern that has been expressed about the Convention 
relates to its establishment of the Committee on the Rights of Persons 
with Disabilities. Monitoring committees established under the 
Disabilities Convention and other U.N. human rights treaties are 
authorized to issue nonbinding conclusions, recommendations, and 
general comments to states parties. These committees have sometimes 
issued statements that appear to assume new authority or that reflect 
expansive interpretations of the underlying treaty. In at least one 
instance, a committee purported to have the authority to determine 
whether reservations attached by the United States to its ratification 
of the treaty were valid. In addition, the positions taken by these 
committees are sometimes cited as evidence of ``customary international 
law'' that might bind the United States without its express 
agreement.\9\ As a result, the Senate should consider including an 
``understanding'' with its advice and consent that confirms the limited 
authority of the Disabilities Committee.
    Last year, the Senate Foreign Relations Committee sought to address 
concerns relating to the Disabilities Committee with this proposed 
``understanding'':

        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.\10\
    If something like this is included, it could be redrafted to 
address more specifically what I understand to be the relevant 
concerns. For example, the understanding does not currently mention the 
concern about the Committee passing judgment on reservations. In 
addition, technically the United States cannot control the development 
of customary international law, so merely saying that the Committee's 
positions do not constitute customary international law may be 
ineffective. Professor Timothy Meyer testified earlier this month about 
the role of the Disabilities Committee and usefully suggested some 
language that could be used to supplement the understanding that was 
proposed last year.\11\
    In any event, regardless of what the Senate ultimately says about 
the role of the Committee, I believe that it would be desirable for the 
Senate to emphasize the nonseverability of its reservations, including 
the federalism reservation proposed above. The United Nations 
International Law Commission has concluded that if a reservation is 
found by a monitoring committee to be invalid (for example, because it 
is inconsistent with the object and purpose of the treaty), the 
ratifying nation continues to be bound to the treaty without the 
benefit of the reservation, unless it is clear that the reservation was 
integral to the country's ratification.\12\ To ensure that the United 
States will not lose the benefit of its reservations, understandings, 
and declarations, the Senate should consider including a declaration in 
its resolution of advice and consent stating something like the 
following: ``The United States declares that its intention to be bound 
by this Convention depends on the continuing validity and effectiveness 
of its reservations, understandings, and declarations, except to the 
extent that such reservations, understandings, and declarations have 
been withdrawn by the United States pursuant to its constitutional 
processes.''
    It would still be open to the United States to decide voluntarily 
at some point to withdraw a particular reservation, understanding, or 
declaration. In my view, the best interpretation of the U.S. 
Constitution is that new senatorial advice and consent would be 
required for such a withdrawal. This action would, after all, undo 
something that was subject to the senatorial advice and consent process 
and, depending on what was being withdrawn, could have the effect of 
increasing U.S treaty obligations, which themselves require senatorial 
advice and consent. It is possible to imagine a situation, however, in 
which either the Executive branch or a majority of Congress would 
attempt such a withdrawal. In doing so, the Executive branch might 
invoke its general authority to act on behalf of the United States in 
foreign affairs,\13\ or Congress might analogize to its well-settled 
authority to override the domestic effects of a treaty under the 
``last-in-time rule.''\14\ To help preclude that possibility, the 
Senate might want to include a declaration in its resolution of advice 
and consent stating something like the following: ``These reservations, 
understandings, and declarations may not be withdrawn by the United 
States without passage of a new resolution that receives the advice and 
consent of two-thirds of the Senators present.'' Although I am not 
aware of any specific precedent for this sort of declaration, a number 
of scholars have concluded that a somewhat analogous declaration 
requiring senatorial advice and consent for the termination of a treaty 
would be constitutionally valid,\15\ and this committee itself stated--
during the debate over President Carter's termination of the Taiwan 
defense treaty--that it was ``clear beyond question'' that the Senate 
could validly limit the President's authority to terminate a treaty by 
placing a condition on such termination in the Senate's advice and 
consent to the treaty.\16\
                               conclusion
    The United States commitment to federalism depends on maintaining a 
national government of limited and enumerated powers. Human rights 
treaties, because they concern the internal relationship of a nation to 
its own citizens, pose unique challenges to this constitutional 
structure. These challenges are especially apparent with respect to the 
Disabilities Convention in light of its overlap with matters 
traditionally regulated by State and local law and its failure to 
distinguish sufficiently between public and private spheres of action. 
The possibility that human rights monitoring bodies such as the 
Disabilities Committee will seek to expand their authority naturally 
raises additional concerns. Nevertheless, I believe that a well-crafted 
set of reservations, understandings, and declarations would allow the 
United States to join the Convention while preserving its 
constitutional values.

----------------
End Notes

    \1\Transcript of Oral Argument, Bond v. United States, No. 12-158, 
at 28 (Sup. Ct., Nov. 5, 2013).
    \2\Id. at 48.
    \3\See S. Exec. Rep. 112-6, Convention on the Rights of Persons 
with Disabilities, 112th Cong., 2d Sess. 14-15 (July 31, 2012).
    \4\For each of these two treaties, the federalism reservation was 
included by the Senate at the request of the Executive branch. It 
appears from the U.N. treaty database that these reservations triggered 
only one objection from another country. The Netherlands objected to 
the U.S. reservation to the U.N. Convention Against Corruption, noting 
that the reservation left it ``uncertain to which extent [the United 
States] accepts to be bound by the obligations under the treaty,'' 
while also making clear that its objection ``does not constitute an 
obstacle to the entry into force of the Convention between the Kingdom 
of the Netherlands and the United States.''
    \5\The Senate Foreign Relations Committee explained in its report 
on the OAS Charter that the reservation was designed ``to make 
perfectly clear that the provisions of the Charter do not enlarge the 
authority of the Federal Government with respect to the reserved powers 
of the States.'' Report of the Comm. on For. Rel., Exec. A 81st Cong., 
1st Sess. 12 (Aug. 24, 1950).
    \6\The Senate Foreign Relations Committee explained that it wished 
to make clear that ``nothing in the Convention enlarges, diminishes, or 
alters the powers of the President or the Congress in respect to any 
substantive actions taken or that may be taken by the Organization for 
Economic Cooperation and Development.'' Report of the Comm. on For. 
Rel., Exec. E 87th Cong., 1st Sess. 13 (Mar. 8, 1961).
    \7\Letter of Transmittal from President Obama to the Senate (May 
17, 2012).
    \8\S. Exec. Rep. 112-6, supra note 3, at 17.
    \9\Customary international law is the law of the international 
community that ``results from a general and consistent practice of 
states followed by them from a sense of legal obligation.'' Restatement 
(Third) of the Foreign Relations Law of the United States Sec.  102(2) 
(1987).
    \10\S. Exec. Rep. 112-6, supra note 3, at 16.
    \11\See Testimony of Professor Timothy Meyer, ``Hearing on the 
Convention on the Rights of Persons with Disabilities,'' U.S. Senate 
Comm. on For. Rel. (Nov. 5, 2013), at http://www.foreign.senate.gov/
imo/media/doc/Meyer_Testimony.pdf.
    \12\See Report of the International Law Commission, 63d Session, 
ch. IV: Reservations to Treaties, Section 4.5.3 (2011).
    \13\See, e.g., United States v. Curtiss-Wright Export Corp., 299 
U.S. 304, 319 (1936) (referring to ``the very delicate, plenary and 
exclusive power of the President as the sole organ of the federal 
government in the field of international relations'').
    \14\See, e.g., Whitney v. Robertson, 124 U.S 190, 194 (1888) 
(``[I]f there be any conflict between the stipulations of the treaty 
and the requirements of the law, the latter must control.'').
    \15\See, e.g., Restatement (Third) of the Foreign Relations Law of 
the United States, supra note 9, Sec.  339, reporters' note 3; Michael 
J. Glennon, Constitutional Diplomacy 156 (1990); Kristen E. Eichensehr, 
``Treaty Termination and the Separation of Powers,'' 53 VA. J. INT'L L. 
247 (2013). See also Curtis A. Bradley, ``Treaty Termination and 
Historical Gloss,'' 92 Tex. L. Rev. (forthcoming 2014).
    \16\Treaty Termination Resolution, S. Rep. No. 119, 96th Cong., 1st 
Sess. 11 (1979).
              apppendix to testimony of curtis a. bradley
Proposed Federalism Reservation for the Disabilities Convention
    The Federal Government has substantial authority to regulate issues 
relating to the rights of persons with disabilities, and it has 
exercised this authority in connection with a number of important 
statutes, including the Americans with Disabilities Act. The Federal 
Government's authority is not unlimited, however, and some matters that 
relate to the Convention would typically be addressed by State and 
local law. The United States expects that the combination of existing 
Federal law and State and local laws will be sufficient to meet or 
exceed the obligations of the United States under the Convention as 
ratified by the United States. Because the United States does not 
intend to alter the existing scope of Federal authority, it is not 
assuming obligations under this Convention that would exceed the 
constitutional authority that the Federal Government would have in the 
absence of the Convention, notwithstanding Article 4(5) of the 
Convention. Furthermore, nothing in the Convention shall be considered 
as conferring on the Congress of the United States the authority to 
enact legislation that would fall outside of the authority that it 
would otherwise have in the absence of the Convention, or as limiting 
the powers of the several states of the Federal Union with respect to 
any matters recognized under the United States Constitution as being 
within the reserved powers of the several states.

    The Chairman. Thank you all for your testimony. There is a 
vote pending on the floor. What I am going to do is ask Senator 
Shaheen to proceed with her questions and to take over the 
chair. Senator Corker and I are going to vote, and we will come 
back because we think your testimony is very important, and we 
want to explore it with you. So thank you very much.
    Senator Shaheen.
    Senator Shaheen [presiding]. Thank you very much, Mr. 
Chairman. Thank you to all of the panelists who are here 
testifying today. I apologize for having missed your testimony, 
and I very much appreciate your being here.
    I want to, just before I get to my questions, recognize all 
of the veterans who are in the audience today. Thank you for 
your service, for attending this hearing. And I hope that in a 
time when more veterans such as you are returning home with 
injuries and disabilities, that we can stand up and support 
your rights and protections, not only here in America, but 
around the globe.
    I want to quote the words of another veteran from this 
treaty hearing in the last Congress when I was here, John 
Lancaster, who is the former Director of the National Council 
on Independent Living. And what he said at the last hearing 
that I think is very powerful is that 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. 
Is that not what we are about? Is that not what we want the 
rest of the world to be about? Well, if we are not willing to 
say that this is a good thing and to say it formally, what are 
we about really?'' For me that sentiment captures what I think 
this treaty should be for, not just the United States, but for 
the rest of the world.
    So I wonder if I can ask each of the panelists, starting 
with you, Ms. West, if you can explain how you think U.S. 
ratification of the Convention would help to advance the goal 
of making sure that people throughout the world have the same 
kinds of protections that people with disabilities have here in 
the United States.
    Ms. West. Because we are a technology company and also a 
for-profit company, we look at the world from the perspective 
that whatever we bring to the market has to be better for our 
customers and also for the business. And in the area of 
accessibility, we are evolving the technology to be very much 
human-centric, which means that everybody can benefit from 
accessibility. It is not just a small group of people. For 
example, the aging population and people who cannot speak 
languages can all benefit from this. So when we look at this, 
it is actually doing something good for the business and not 
just good for a small segment of our population, but actually 
for the entire population around the globe.
    And I do want to make a comment about some of the emerging 
countries. Yes, they do face a lot of issues, like clean water. 
But I think you would be surprised that the governments 
understand they actually have many people with disabilities in 
their population. So they actually appreciate having 
technologies and technology from countries like the United 
States to help them deal with it. So it is not an either/or 
situation. We really see this as beneficial both for the 
citizens of the world and also for business.
    Senator Shaheen. Thank you. Can you elaborate a little bit 
on the impact on U.S. businesses if we choose not to ratify the 
treaty and have a seat at the table? What will happen on issues 
around standards and standards development, as you mentioned? 
Is it accurate to say that we would be forced to play a more 
reactive role than be proactive?
    Ms. West. Absolutely. The adoption rate of the 21st Century 
Human Rights Convention has been very, very fast. We have seen 
firsthand the countries that have adopted CRPD come together, 
in many cases forming committees, and studying standards in 
various areas. In the technology area, we have already 
witnessed a different kind of thinking, and right now we still 
enjoy our leadership and technology standards leadership. So we 
are still able to apply some of our influence.
    But over time, as you know, especially in the area of 
technology, it evolves very quickly. And by not being there, I 
think we will very quickly lose our ability to impact. And if a 
new standard is not harmonized based on U.S. standards, for 
example, then all businesses will suffer because that means we 
potentially have to create different sets of products and 
different sets of services that will adversely impact our 
ability to really expand commerce.
    Senator Shaheen. Thank you very much. Do either of the 
other panelists want to comment on that?
    Mr. Rabkin. Yes. I know John Lancaster. We are colleagues 
together on the board of directors of the United States 
Institute of Peace. And I do not mean at all to put words in 
his mouth, but I think one thing on which we would both agree 
is there are limits to what the United States can expect to do 
in terms of influencing other countries. One of the ways in 
which we can hope to secure a more peaceful world is if we 
understand that other countries do not have to be exactly what 
we would like them to be.
    I am a little bit uneasy about having this openly said: 
``We need to have international standards which will force 
other countries to buy American products.'' First of all, I am 
very skeptical that that is going to work, but second of all, 
if it does work, I do not think it is going to make us more 
popular. I think there is going to be a lot resentment that we 
are basically saying to poor countries, do not spend your money 
on things that you think are most important. Spend your money 
on American exports because there is an international treaty. 
It does not require us to do anything, but it requires you to 
buy our stuff. And I think that is kind of a problem, and we 
should all be a little bit more uneasy about that than we seem 
to be.
    Senator Shaheen. Gee, that was not my interpretation of 
what I understood Ms. West to be saying. Would you like to 
respond to that?
    Ms. West. Yes. Standards actually come about from best 
practices. So in many cases, especially American standards 
because we are a free society where people come together 
sharing their best practices, and that becomes a de facto 
standard, eventually becoming an international standard.
    Other countries actually look to these kinds of standards 
because they know it is a combination of best practices, so it 
is not a force issue. It is not an action that you impose on 
people, especially in the technology industry. It is a welcomed 
standard because that means they do not have to spend time to 
go through the trial 
and error that other companies in the world or other industries 

have gone through. So I would say that this is not an 
adversarial 
kind of a situation. It is usually welcomed very much by the 
global community.
    Senator Shaheen. Thank you. Mr. Bradley, did you want to 
comment?
    Mr. Bradley. Thank you. My view is probably in between 
these positions to some extent. My guess is that the United 
States will continue to be a leader in the area of disabilities 
protection in the future even if it does not join the 
Convention. Why would that be the case? It has some of the best 
laws in this area on the planet, and I imagine that Congress 
will continue to ensure that this is the case. And that would 
allow the United States to continue doing what it has done 
already, which is to serve as a good model regardless of 
whether it happens to be party to the treaty.
    Having said that, I agree with Secretary Kerry that the 
United States is likely to gain at least some additional 
leverage both on the Committee and more generally if it is a 
party to the Convention. So I do think that is an advantage 
potentially of joining the Convention. And so, the emphasis of 
my testimony is simply that we should only do that if we are 
satisfied that we are doing it in a way consistent with U.S. 
law and particularly constitutional standards.
    Thank you.
    Senator Shaheen. Thank you. One of the issues that was 
raised before at the previous hearing on this treaty had to do 
with concerns that have been raised by some groups about 
homeschooling their children. And last year, the Justice 
Department testified before this committee that the Convention 
including the phrase ``best interests of the child'' would be 
applied consistent with current U.S. law and would not require 
a change to existing law.
    I wonder if--as I have looked at the treaty, I do not see 
that there is a threat here to parents who would like to 
homeschool their children. And I just wondered if that was a 
concern, Mr. Bradley, that you have heard about the treaty and 
what your thinking is about whether that is an issue with the 
current wording.
    Mr. Bradley. Yes, thank you. I believe I do understand that 
concern. One of the issues that arises whenever you have a 
treaty like this, it is negotiated among a large group of 
countries. By definition, therefore, the language can be very 
vague and broad. Its implications can be unclear.
    Communities in the United States like the homeschool 
community, quite understandably want some assurance about what 
the implications of this treaty will be. And you are absolutely 
right that the main assurance that they have gotten is an 
assurance that the Convention will not require a change to 
existing practice and law. What I am urging is that the Senate 
can give more assurance than that and make clear that the 
Convention will not allow a change from what our Constitution 
permits in terms of the regulation of issues in the family and 
in terms of home schooling.
    In my view, if the community had that greater reassurance, 
that should be sufficient to address the concerns as I 
understand them.
    Senator Shaheen. So are you suggesting express language 
that would address that? Is that what you are suggesting?
    Mr. Bradley. In my view, it would be enough if the Senate 
were to endorse the federalism reservations that I have 
suggested, which make clear that the Convention cannot be used 
by the government to expand its authority in any local, 
traditionally State domain. That would include the 
homeschooling issue, but would not be limited to it.
    I think that should address those concerns by taking off 
the table the possibility that I think they are worried about, 
which is that after the Convention would be put into force 
there would be some intrusion by the Federal Government that 
would not normally have been allowed, but would now be allowed 
under the Convention, even though not required.
    And so, I think the general reservations I am suggesting 
should address the concern as I understand it, and you would 
not need an additional one for home schooling, although some 
kind of an understanding that has already been proposed that 
says that this does not affect homeschooling would certainly be 
also quite welcome.
    Senator Shaheen. Thank you. Ms. West, you talked somewhat 
about how foreign countries perceive the fact that we have not 
ratified the Convention. And I wonder if what you have heard 
from business leaders around the world is further concerns 
about U.S. leadership on the issue of disabilities, and the 
extent to which you think that might continue to be eroded if 
we are not able to pass the treaty in this session of Congress 
or of the Senate.
    Ms. West. Well, we see the Convention as a means for us to 
really have a very efficient way of understanding market 
requirements whether it is in a developed country or developing 
countries, and by not signing the CRPD we see cases where we 
could be excluded from some of these discussions which could 
lead to new solutions. And for the business community, it is 
all about being able to understand the customer's requirement 
whether it is by country or by industry.
    So we think it is very important that we be at the table 
and be able to glean from these discussions about different 
industries, whether it is transportation, or banking, or the 
retail. That will allow United States companies, especially 
companies that have global interests, to be able to continue 
that leadership in the world market.
    And also we think, at least in the technology area, that we 
enjoy tremendous leadership with harmonized international 
standards. And these standards are very, very important because 
they really allow the continued leadership of U.S. companies in 
global settings.
    Senator Shaheen. Thank you. I have just gotten notice that 
they have called another vote in the Senate. And so, I think we 
should take a short recess. Hopefully Senator Menendez and 
Senator Corker will be back because they will be able to vote 
now. But because I am going to vote, let us recess for 15 
minutes, and hopefully by then they will return.
    Thank you.
    The Chairman. Here we are.
    Senator Shaheen. Very fast. Thank you.
    The Chairman [presiding]. Thank you, Senator Shaheen. And I 
am sure you got more time than you normally can get. 
[Laughter.]
    I am sure you made good use of it, too. But our thanks to 
you for chairing in the interim, and thank you to the panel. I 
thought the testimony was all very interesting.
    Let me explore a couple of things. Dr. Rabkin, you know, I 
listened to your testimony. I understand that you are in 
opposition to the treaty, which I respect. But I think you 
minimized in your testimony the notion of what the treaty can 
do. In your testimony, you seem to disparage the idea of asking 
other countries to make facilities accessible to disabled 
people in order to make life more comfortable for American 
tourists ``who will be few in number and brief in their 
visits,'' is the exact quote from your testimony.
    Do you not think as America, for a moment, that it is 
important for our country and for our government to try to 
create the opportunity for Americans to be able to visit a 
dying relative abroad, to be able to do a sales pitch in 
another country, or have a member of our Armed Forces abroad 
who has a family member with a disability, to be able to have 
these Americans fulfill their God-given potential without the 
challenges, the impediments that individuals with disabilities 
find globally, and increasingly less in the United States, but 
occasionally still in the United States even with the ADA law?
    Mr. Rabkin. Look, I am very sympathetic to people who----
    The Chairman. I am not asking about your sympathy.
    Mr. Rabkin. I understand.
    The Chairman. I am asking you whether or not you believe it 
is--should the power and the advocacy of the United States not 
be used on behalf of its citizens to be able to enjoy abroad 
what they enjoy and access to opportunity here to become a more 
global norm?
    Mr. Rabkin. I think we cannot make everything that we like 
into a global norm, and I am skeptical that this is the right 
priority for us. And if I could, Senator, I would just give you 
another example. A lot of Americans have difficulties with 
foreign languages, and so I will include myself there. We would 
find it a lot easier if everyone spoke English, or if they did 
not speak English, at least----
    The Chairman. If other----
    Mr. Rabkin. Let me just finish--if every country would 
provide us----
    The Chairman With all due respect, that is not a 
disability, though. That is----
    Mr. Rabkin. It is a limitation. I am not saying it is a 
severe limitation. The point I am making is we cannot get every 
country to do exactly what we would like them to do.
    The Chairman. Well, that is true. We cannot get every 
country to be a democracy, although we----
    Mr. Rabkin. That is right. That is right.
    The Chairman [continuing]. Although we do not stop from 
seeking to promote democracy globally. We do not----
    Mr. Rabkin. We do not have a treaty that requires that.
    The Chairman. We do not ultimately wish that certain 
countries would act in a way that creates a security challenge 
to the United States, but we send our sons and daughters abroad 
when we think the national security of the United States is at 
stake. So if I were to take your argument to a logical 
conclusion, then I would, in essence, abdicate the U.S. role in 
so many different dimensions in a way in which we would not 
pursue our national interests. But that is your point of view. 
I respect that.
    Let me turn to Professor Bradley. I want to thank you for-- 

I read your testimony as a whole, in addition to listening to 
your synthesized version, and I think it is considered 
testimony. And I look forward to hopefully engaging you, as I 
am sure Senator Corker might, on the RUDs package.
    In your testimony, you raise concerns about the reach of 
future implementing legislation for the treaty, even if there 
is broad agreement that existing U.S. law is sufficient to 
implement the treaty. And you raised concerns that the advisory 
committee the treaty creates could somehow invalidate U.S. 
RUDs, even though the treaty does not grant them the power to 
do that.
    Now, in the last Congress, we adopted a set of RUDs to 
address these federalism and advisory committee power concerns. 
And I think last year my description of it is we used the belt 
and suspender approach to address these concerns. But now we 
are in the territory of three belts and three pairs of 
suspenders and a team of engineers to supervise the whole 
operation. But I think if that is what is necessary, I 
certainly want to entertain it.
    So my point here is I get the expression of your concerns, 
and I want to ask you this, though. Assuming that we could 
adopt a set of RUDs that would satisfy your concerns, which may 
be the concerns of others as well, and I am optimistic that we 
can, do you think that we need to wait until the Bond case is 
decided to consider this treaty, as some have suggested we do?
    Mr. Bradley. Thank you, Senator. In terms of what has been 
proposed before, my view is they are not belt and suspenders. I 
have already indicated, for example, that the RUDs that were 
previously proposed simply say that Congress is not required to 
invade State and local authority. It does not take it off the 
table, and I think that would be helpful.
    As for the Disabilities Committee, it is not fanciful to 
think that it might try to invalidate the reservations. The 
Human Rights Committee of the Civil Rights Covenant already 
said they have that authority. That was not in the treaty 
either. That is not a fanciful proposition. And it was not 
addressed in the proposed RUD last year on the committee. So 
those are two examples that I think----
    The Chairman. Now you cannot invalidate the RUDs in such a 
way to enforce something domestically.
    Mr. Bradley. The invalidation would apply internationally, 
and so then the question would be what the United States would 
do if it has been found not to have those RUDs available 
internationally. But your more general question is, if we could 
fashion a set of RUDs--and by the way, I am optimistic that we 
can. And listening to the Secretary of State this morning, I 
thought he sounded optimistic that we could. And he seemed 
quite willing to add additional belts and suspenders along the 
lines of what you were just asking about.
    If that were done, my view is that that would be sufficient 
as long as the language is really tight in the way that I 
talked about in my written testimony.
    The Chairman. So let me get to the core of my question, 
which is, I hear what your concerns are, and you have 
reiterated them, and I get it. My question is, Assuming that we 
did, that we even worked with you and got to language that 
through you would satisfy some of our colleagues on these 
critical issues, do you really think that we need to wait for a 
decision on Bond in order to accomplish this goal?
    Mr. Bradley. I do not. It is possible that the Bond case 
would cut back on some of the treaty power concerns that have 
been raised. The Supreme Court is not going to add additional 
concerns in my view. So as long as the RUDs we are talking 
about address those concerns fully, then whatever happens in 
Bond should not change the picture.
    The Chairman. That is very helpful. Let me just say--make 
one comment on one of your observations with reference to the 
Human Rights Committee, which attempted to expand the scope of 
its authority. The United States successfully pushed back, and 
we have made it clear before, the committee does not have the 
authority under international law to invalidate RUDs, and 
neither does the Disabilities Committee.
    So, look, any entity--any entity, including the U.S. 
Congress--now, I know that there is a concern about binding 
future Congresses, and although the RUDs have never been 
invalidated, to our knowledge, in the history of the Congress--
look, a future Congress as, Mr. Gray said, can go ahead and 
amend the Americans with Disabilities Act. It has once. We 
constantly see there is a great desire to change the 
President's health care law. That is under--you know, that is 
just one of a hundred examples I could give.
    Now, there are a lot of things that Congress could do--a 
number of hypothetically bizarre things, you know. They could 
seek to ultimately sell the Capitol for scrap. They could 
disband----
    [Disturbance in the audience.]
    The Chairman. Expressions of approval or disapproval are 
not in order in the committee. I am trying to get to a point 
here, which is that I have great faith, despite our challenges 
sometimes, in the institution and the American people, who 
would say, wait a minute, that is way off of base.
    And so, I just think that in suggesting that--you know, we 
can look at whatever language is necessary, but I do not think 
this Congress wants to bind itself in its actions by what the 
previous Congress decided, as is evidenced by those who want to 
undermine the President's health care law. So if a present 
Congress wants to change what a previous Congress did, that is 
part of the nature of the essence of government.
    Now, I do not think--I think that only a Congress might be 
able to change a future RUD or change the Americans with 
Disabilities Act. That would go through the same robust debate 
that takes place in the Congress. It would have to get the 
appropriate majority votes in the Congress, and then it would 
have to be signed by our President. So I think just creating 
some balance in that as a reality of any future issue is just a 
realistic view.
    Mr. Bradley. May I respond to that, Senator?
    The Chairman. Yes, absolutely.
    Mr. Bradley. I largely agree with what you said. If 
Congress decided at some future point to amend the ADA, 
obviously it could consider doing that. We need to recall that 
Congress used its regular commerce clause and other powers to 
enact the ADA, and I am simply suggesting it should return to 
those powers if it wanted to amend the ADA.
    All I am suggesting to take off the table is the claim that 
some Congress might try to expand its authority beyond even the 
broad commerce clause in ways that would address very local, 
traditionally State law issues. That is the only issue I am 
talking about taking off the table, not the ability of Congress 
to legislate. I agree with you.
    The Chairman. And that would be a concern beyond the 
question of this treaty.
    Mr. Bradley. It is a concern for treaties because of this 
old case that says if you have a treaty, Congress can then ramp 
up its authority beyond even the commerce clause.
    The Chairman. So outside of treaties you do not have that 
concern?
    Mr. Bradley. The courts would hold Congress to the commerce 
clause outside of the treaty context. And another thing, in the 
Bond case, although I do not think we need to wait for it--the 
Solicitor General said, do not worry, the Senate would not do 
anything crazy like invade the prerogatives of the States. And 
immediately Justice Kennedy responds, ``then why do I see this 
prosecution here of a local poisoning case?'' His response 
suggests that we should not just assume that Congress will not 
do things we are concerned about. Let us instead take them off 
the table.
    The Chairman. Yes, except that, let us be clear. In that 
case, the basis under which Federal action took place--in this 
case the Justice Department pursued--it was under an enacting 
statute. It has been clearly stated here time and time again by 
all the relevant parties that the Americans with Disabilities 
Act is our enacting statute. It has been constitutionally 
upheld, and to the extent that the government would have to 
prosecute, it would have to prosecute under the ADA. So 
whatever is prosecuted, it has already prosecuted for those who 
may violated the ADA.
    Mr. Bradley. But as you pointed out, Senator, it could be 
amended.
    The Chairman. Of course--well, anything we do here can be 
amended. But in Bond--I think it is just a little absurd, and I 
do not want to prolong it. But it just a little absurd to think 
that somehow we are not going to ever allow a future Congress 
to change anything that a previous Congress does because as 
Americans change majorities, for example, they do that for a 
reason. They want to see a different course of action. So I am 
not quite sure that that can be full proof. But I get your 
concerns.
    Senator Corker.
    Senator Corker. Thank you, Mr. Chairman. And just for those 
looking on, I know that someone raised the issue of the Bond 
case being heard before we act. I just want you to know I am 
not the person who did that. I want to make sure that people 
understand I am not that person. And second, I know that----
    The Chairman. You always have a more considered view.
    Senator Corker. OK, thank you. The second thing I would 
like to mention is I know a number of our members obviously 
have not been able to be here, but are reading the testimony. 
And I know that some of them would like to have until Monday 
afternoon to ask questions, if that is OK, for the record. I 
know that is not the norm.
    The Chairman. Without objection, so ordered.
    Senator Corker. And I think the point, and again, I know 
that you yourself are a legal scholar, and I know these 
gentlemen are. I think the point that he is trying to make on 
this issue is not that a future Congress cannot change laws. We 
all understand that. But it is that a treaty's ability to 
affect the commerce clause changes dramatically the norms that 
Congress acts under. And I think that is a point that was 
missed as you all talked past each other a little bit, I think, 
in this last conversation. And I hope it is something that we 
are able to resolve. It is just a point that I am observing.
    So I am going to walk through a very bland set of 
questions, and I apologize because, again, we are trying to 
work through all the legalities here, and I know your testimony 
spoke to some of these things. But, Professor Bradley, I want 
to just walk through these in order to build the record so that 
if something happens down the road, we have that hearing 
committee.
    Can you describe the CRPD might alter the constitutional 
balance of power between Federal and State governments, 
particularly in the areas that have long been reserved to the 
States?
    Mr. Bradley. Yes, thank you, Senator. As I have indicated 
in my written testimony, the treaty, unlike existing U.S. law, 
addresses some matters that have always been left to State and 
local regulation or to private decisionmaking. It is not really 
the fault of the Convention. The Convention is written to try 
to accommodate more than 100 legal systems over the entire 
world. It does not focus on U.S. law, so it addresses issues of 
care of the children and family law that primarily in the 
United States are under the domain of State and local law.
    It also does not distinguish between private housing 
decisions and public accommodations. And obviously U.S. law 
often makes those sorts of distinctions, in part because of 
limits on the Federal Government's authority to regulate 
private decisions or things that are quite local. And, you 
know, maybe the Bond case will or will not change this picture. 
And I thank you very much, Senator, for clarifying my exchange 
that I had before. You are absolutely right about that. The 
issue is not whether Congress could change the laws. It could 
always use its regular powers to do that, and that is just a 
different Congress.
    We have case law, though, that says if there is a treaty, 
Congress does not need to worry about any of its normal limits 
on its legislative authority. There is allegedly nothing too 
local for Congress under this old case, Missouri v. Holland. 
Once you have a treaty in place, you can regulate local housing 
decisions or private action in ways that Congress could never 
do. And without some protection here, there is at least a 
danger--we can talk about how probable it is that the 
Convention could be used in that sort of way. And I do think it 
is a danger that could be fully addressed by the appropriate 
reservations, but I do think it is quite important that we do 
that.
    Senator Corker. Are the administration's proposed RUDs on 
federalism sufficient to address these concerns? And if not, 
how would you modify those RUDs?
    Mr. Bradley. Thank you. And as I have testified, I think 
the proposed understandings, declarations, reservations are not 
sufficient, and I will not go through all of them at the 
moment----
    The Chairman. Could I just interrupt you a minute----
    Mr. Bradley. Yes.
    The Chairman [continuing]. And ask the ranking member, are 
you referring to the previous RUDs that were--because as far as 
I know, there are no new RUDs that are--we are talking about 
the previous RUDs.
    Senator Corker. Yes, that is correct.
    Mr. Bradley. And I am referring to the ones----
    Senator Corker. And they were never adopted. I assume they 
are proposed.
    Mr. Bradley. The ones proposed last year, and I think they 
are not sufficient. For one thing, the federalism and private 
decisionmaking RUDs simply say, if you read them carefully, 
that the Convention is not requiring that we invade State and 
local law, and not requiring that we take over some private 
decisions. They do not in any way stop Congress from using this 
Missouri v. Holland idea to expand Congress' authority at any 
time it would like to do so in the future. And I sense that a 
lot of people are OK with making it clear that that is not 
going to happen, and I think that needs to be fixed.
    Another issue not addressed by the previously proposed RUDs 
is the problem that the Disabilities Committee might try to 
strike down our reservations, which some committees have tried 
to do before. As Senator Menendez pointed out, the United 
States pushed back on that. However, the U.N.'s International 
Law Commission, which is the key lawmaking arm of the U.N., has 
come out against the U.S. position and reasoned that, in fact, 
if a monitoring body finds that reservations are not good, the 
background assumption is that the country is still bound 
without the benefit of those. We may push back on that as well, 
but it does argue for clarifying this point, I think, in the 
RUDs.
    Senator Corker. Does the fact that the Supreme Court 
recently heard a case assessing whether treaties may expand the 
power of the Federal Government legitimize these concerns about 
federalism, even if that case may be decided on other grounds?
    Mr. Bradley. I think certainly the Bond case highlights 
some of the concerns that get raised when you have a treaty and 
then implementing legislation. And, you know, Senator Menendez 
is correct that we do not yet have that because we have earlier 
legislation. But the issue that people are afraid about is what 
if we have new legislation? And the Senator pointed out that we 
obviously do not know whether that will happen.
    In the Bond case, a lot of people were surprised that a 
treaty that was supposed to deal with issues like the one in 
Syria is now being used for really local crimes within a state. 
The Justices on the Supreme Court, I think, were surprised. I 
would not be shocked if the Senate were surprised that that was 
what it had agreed to in the Chemical Weapons Convention 
because that treaty, like many treaties, is not very specific 
about what it is requiring. And you may find down the line that 
Congress or the executive branch applies treaties in ways that 
the Senate never intended. And another argument for RUDs is to 
prevent that from happening down the line.
    Senator Corker. And again, I know many of these questions 
have been answered in other ways, and I just want to have these 
for the record today. But is it possible that the RUDs adopted 
by the Senate could be altered or overwritten in the future, 
for instance, the reservations against expanded Federal power? 
If so, how would you recommend to ensure the RUDs we adopt are 
protected?
    Mr. Bradley. Thank you, Senator. We fortunately do not have 
examples of where Congress or the Executive, as far as I am 
aware, have tried to go back on the RUDs. I hope that would be 
unlikely since it is a condition of the Senate's advice and 
consent. I am assuming these would be included in the 
resolution of advice and consent. But if we were worried about 
that, I talk about in my written testimony that it could be 
made very clear in the RUDs that these are nonseverable and 
that the way to withdraw them--and I think Secretary Kerry was 
asked about it this morning--would be to go back to the Senate.
    I was understanding the Secretary to be receptive to 
clarifying that one would need to go back to the Senate in 
order to alter the RUDs. And I would certainly support that 
idea.
    Senator Corker. Thank you very much. Professor Rabkin, can 
you describe your specific concerns with the CRPD with respect 
to sovereignty, the specific concerns?
    Mr. Rabkin. I do not know if this will be specific enough 
for you, but I think we ought to have a strong presumption that 
we get to decide for ourselves. I understand the meaning of a 
treaty is that we promise another country, OK, we are with you 
on this. I think there have to be some basic limits about what 
we can promise. We cannot have every aspect of domestic public 
public policy up for grabs, and we just hand it off to some 
international entity or international process.
    I cannot think of a treaty that is at all analogous to the 
CRPD, that covers a whole range of things about how American 
Government or American private entities treat other Americans, 
and we are promising the world that we are going to do what the 
world thinks should be done. We have crossed a real bridge when 
we start making those kinds of promises.
    And if I could just briefly add this point, in relation to 
the discussion you have been having with Curt Bradley here. I 
think the danger of the RUDs is not that some court will say, 
``Ah, ha, gotcha, no, we are overriding your reservation.'' I 
think the danger is more direct. And it is totally foreseeable. 
It is likely. The monitoring committee and other countries will 
say, ``No, wait, you promised to honor the Convention, and 
since you promised, you have got to live up to your promise. 
And you cannot just say, ``Oh, no, we had our fingers crossed 
behind our back on this, this, and this.''
    So I think we will experience moral and political pressure 
to abandon the RUDs. And I think it will be hard for anybody to 
say, ``Oh, no, no, no, there was a reservation, so forevermore 
we have that reservation.'' If we think that we have leverage 
on other countries, we should expect that they will have 
leverage on us, and it may make it hard for us to stick to the 
exceptions that we have tried carve out with the RUDs. And I 
think that is a problem.
    Senator Corker. So you may have answered my followup to 
that, but do you think the issues that you have raised can be 
fully addressed through the RUDs, other than--I know this last 
point cannot. But do you think the legal points could be----
    Mr. Rabkin. I think there are two different issues here. 
One is, can we anticipate every possible difficulty and provide 
for it in advance with the RUDs? Maybe we can, if we are real 
imaginative and work hard. But even then there is the question, 
what does it mean to ratify a treaty when we say, ``Well, we 
have 28 or 32 exceptions that we are taking, but otherwise we 
really want to be a party to this Convention.'' I mean, 
basically if we take exception to this provision, this one, 
this one, and that one--dozens of times--we have not really 
ratified the treaty. So if we are not a party to it, why are we 
pretending to be a party to it? I think there is that problem.
    And then there is the second problem, which is on any 
particular one of these exceptions, if the monitoring 
committee, the committee of experts, says, ``No, you are wrong, 
that is not a valid reservation,'' do we have the self-
confidence to say, ``We do not care what you said, we are 
America, we are doing what we want to do.'' Do we have the 
confidence to speak the way Secretary Kerry did? And I have to 
say I was uncomfortable. I think I am at least as nationalist 
as he is. I cannot speak French, for example. But I did think 
it was very awkward that he said we do not have to do a thing--
not one thing. He several times repeated that, we do not have 
to do one thing.
    I just think you cannot in good faith enter into a treaty 
and then say to the world, ``You cannot complain about our 
compliance, we are not doing anything beyond what we already 
happen to have done.'' We routinely have disputes in the WTO. 
It does not change our law, but when the Appellate Body of the 
WTO says, ``No, what you are doing in America is wrong,'' we do 
change our law. We feel obligated to do so.
    I do not think we would find it so easy to just shrug off 
international criticism about our compliance with the CRPD, 
particularly when the criticism comes from the official 
committee that is set up to decide whether we are in 
compliance. So I think with any one of these RUDs we may find 
ourselves down the road saying, ``Oh, OK, sorry, we are not 
supposed to do that, OK, then we will change that law.'' That 
is what bothers people about relying on RUDs to protect us.
    Senator Corker. Thank you for your testimony, all of you. 
And, Mr. Chairman, thank you for having this hearing.
    The Chairman. Thank you, Senator Corker. I just have a 
couple of questions for Ms. West, and after all the time you 
spent here, we need to use your expertise.
    I know the main focus of the reason for this treaty is 
obviously to extend the rights for 58 million Americans, 5\1/2\ 
million veterans, to make it more likely than not that they 
will travel some place in the world for business, for 
education, for pleasure, and more likely than not find 
themselves having standards of accessibility as we enjoy in the 
United States, which is the world's leader in this regard. That 
is the overwhelming compelling reality.
    But I think that your testimony, I think, is important. You 
know, for example, the technologies at IBM--this is not about 
what Professor Rabkin said, you know, American business, you 
know. That is not the compelling reason. But, my god, 
everything we think about has pretty much an economic dimension 
to it. And I think there is nothing wrong at looking at 
American leadership, to the private sector, in creating in the 
world standards that will have the citizens of those countries 
enjoy higher standards for their own accessibility, as well as 
for ours.
    So are technologies that provide access to people and 
disabilities a small niche market or a potentially large 
business opportunity?
    Ms. West. It is a huge market, and we think it is just at 
the 
beginning of a growing market. I think in the past few years 
with the proliferation of, for example, smart phone devices, 
really puts accessibility at the center of technology 
discussions. Sometimes people think of accessibility as just 
for people with disabilities, such as vision or hearing 
impairment. But a cell phone really brings to play that every 
one of us can be situationally disabled. You could be driving 
the car, but still want to read your e-mail. You need some kind 
of technology to read the e-mail through speech.
    So we see that accessibility is becoming what we call 
human-centric technology. Think about the aging population. In 
the United States, we have 76 million people who are baby 
boomers. In China, they will have 365 million people over the 
age of 65 by the middle of the century. So when people age, 
they naturally will acquire disabilities.
    So the market is just at the beginning of growth. This is 
one of those areas that we really, truly believe that you can 
do good while you do well. And we have seen that play out in 
IBM's history in the past 100 years, and we think the CRPD 
really gives a forum and opportunity for all businesses to 
partake and really do well while doing good.
    The Chairman. You also talk in your testimony about the 
importance of harmonization of international standards when it 
comes to furthering the interests of the United States in the 
global market for accessible products. Now, there has been some 
testimony here about entanglement in remote international 
deliberations. Are we not in so many different sectors very 
active in international bodies that are promoting standards so 
that we can try to move them closer and closer to American 
standards that will open opportunities for our people as well 
as our businesses to be globally competitive?
    Ms. West. Yes. The standards are very important not just 
for technology, but for many consumer electronics devices. 
Harmonized standards, especially based on, in many cases, 
American standards, is definitely a positive and also a very 
preferred position for U.S. companies to ensure that we have a 
leadership position. It helps to reduce the cost of goods sold. 
And also in many cases, especially in accessibility, it really 
gives us an extra moral benefit because the technology, in this 
case, does help people with disabilities better their lives and 
better their employment opportunities. So it is really a great 
example of American innovation that brings benefit to the 
entire world.
    The Chairman. Well, thank you. Thank you. I am glad we have 
that perspective for the record. Let me close with some final 
observations.
    I think, Professor Rabkin, you seem to be missing a major 
point of Secretary Kerry's testimony. You stated several times 
that the Secretary said the United States does not have any 
obligations under the treaty. He did not say that. What he has 
testified to is that we have already met our obligations under 
the treaty, so we need to take no additional action to comply. 
I think that is a very significant difference than to say there 
are no obligations whatsoever. We have already undertaken those 
obligations.
    Secondly, let me just say that the administration, both 
today and at other times, has repeatedly stated before this 
committee that all legislation necessary to implement the 
treaty already exists. So, therefore, the conversation that we 
have had about the RUDs look like are important both to amplify 
that and to make sure that there are no views that would 
undermine that reality.
    Now, the concern that the treaty committee could suddenly 
declare itself the arbiter of RUDs simply does not, in my mind, 
hold water in the context of some of our history here. For over 
20 years, we have been a party to the International Covenant on 
Civil and Political Rights, or what is called the ICCPR, which 
created the Human Rights Committee. We have ratified the treaty 
with a number of RUDs, many of which were similar to those we 
are seeking to include for the Disabilities Treaty. Despite any 
effort by the Human Rights Committee to expand its authority, 
our ICCPR RUDs remain valid both internationally as well as 
domestically. And time and again, our courts, including the 
Supreme Court in Sosa v. Alvarez-Machain, have affirmed the 
validity of our RUDs to the ICCPR, as well as other RUDs in 
general. So I just, you know, think it is important as members 
read this testimony, and as I am sure many will as they make a 
considered judgment, that they know some of that reality.
    Finally, I have a statement from Secretary Shinseki on the 
Disabilities Treaty, in support of it. And I would ask 
unanimous consent that it be entered into the record.
     With the thanks of the committee for your testimony, and 
there may be some followup questions because of the nature of 
what took place here, we will keep the record open until the 
close of business on Monday for members to submit any questions 
that they have.
    I thank you for bringing us your individual expertise and 
insights. And this committee stands adjourned.
    [Whereupon, at 1:34 p.m., the hearing was adjourned.]
                              ----------                              


              Additional Material Submitted for the Record


           Responses of Secretary John F. Kerry to Questions 
                  Submitted by Senator Robert Menendez

    Question. Do you believe that the Senate should wait for the 
Supreme Court's ruling in Bond v. United States before it considers the 
Convention on the Rights of Persons with Disabilities? Why or why not?

    Answer. No, there is no reason for the Senate to delay action on 
the Disabilities Treaty until after the Supreme Court issues a decision 
in Bond v. United States. The Bond case involves a challenge to the 
constitutionality of an implementing statute that was passed after the 
Senate gave its advice and consent to a treaty (the Chemical Weapons 
Convention). In contrast, the United States will implement the 
Disabilities Treaty with existing law; no new legislation will be 
required. The committee recognized this fact last year when it adopted 
a declaration offered by Senator DeMint. Our relevant domestic 
legislation was passed entirely independently of the Disabilities 
Treaty and its constitutionality is not in question.

    Question. Article 46 of the Disabilities Treaty states that 
reservations ``contrary to the object and purpose'' of the treaty shall 
not be permitted. Does the Disabilities Committee have the authority to 
determine whether reservations are contrary to the object and purpose 
of the treaty?

    Answer. No, the Disabilities Treaty does not give the Disabilities 
Committee any authority to determine whether reservations by States 
Parties are contrary to the object and purpose of the treaty. The 
Disabilities Committee may only issue nonbinding ``suggestions and 
general recommendations'' to parties to the treaty.

    Question. In his testimony, Professor Rabkin pointed out that the 
committee created by the International Covenant on Civil and Political 
Rights (the Human Rights Committee), to which the United States is a 
party, claimed that it had the authority to rule on which reservations 
are, and are not, valid, and stated that invalid reservations should be 
treated as void. Was the United States Government aware of this claim 
and what was its response to it?

    Answer. The United States forcefully objected to the Human Rights 
Committee's position in 1994 that it could invalidate RUDs and that 
invalid RUDs should be treated as void. We explained to the Human 
Rights Committee that it lacked authority to determine the validity of 
RUDs, and we reiterated that we would never be bound by a treaty 
obligation to which we reserved, even if another state objected to our 
reservation. The Human Rights Committee has never ``invalidated'' a 
U.S. RUD, and the fact remains that no international body, including 
the Human Rights Committee and the Disabilities Committee, could 
somehow do so to a RUD on this treaty.

    Question. Does the administration believe that it is necessary to 
include a nonseverability declaration in the RUD package for the 
Disabilities Convention, as Professor Bradley suggests? Why or why not?

    Answer. No, we do not believe that a nonseverability declaration is 
necessary as a legal or practical matter. Such a provision would, to 
our knowledge, be unprecedented in U.S. treaty practice. Even in cases 
like the Disabilities Treaty, where federalism concerns are addressed 
through RUDs (e.g., the International Covenant on Civil and Political 
Rights, the Convention on the Elimination of Racial Discrimination, and 
the U.N. Convention on Transnational Organized Crime), the RUD packages 
did not include nonseverability provisions.
    We do not consider there to be a realistic risk that U.S. RUDs 
could be invalidated. Internationally, there is no body that has the 
power or authority to take such action against a RUD to the 
Disabilities Treaty. Further, it is the longstanding position of the 
United States that we could never be bound by a treaty obligation to 
which we have reserved, even if another state party objected to our 
reservation. Nor could another state party invalidate a U.S. 
understanding or declaration. Domestically, while we cannot completely 
eliminate the possibility that a U.S. court could take such action, it 
is highly improbable that could happen with regard to this treaty are. 
We base this assessment on two key factors: First, U.S. courts have 
routinely upheld the validity and enforceability of Senate RUDs (see 
e.g., Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001), and Auguste v. 
Ridge, 395 F.3d 123 (3d Cir. 2005)). Second, if the Senate ratifies 
this treaty, we understand that it would do so with a declaration that 
the treaty is not self-executing. The effect of such a declaration is 
that the treaty will not be enforceable in U.S. courts and, as a 
result, could not be used as the basis for a lawsuit in U.S. courts. 
The Supreme Court upheld such a declaration in Sosa v. Alvarez-Machain, 
542 U.S. 692 (2004). Accordingly, we see no realistic basis for a U.S. 
court to strike down a RUD related to this treaty.
    Inclusion of a nonseverability declaration for the first time in 
U.S. treaty practice could arguably weaken our position that no 
international body or other country can invalidate a U.S. RUD, by 
implying that the United States believes such international action 
could be possible absent a RUD to the contrary. If the Senate decides 
to include this type of provision with regard to the Disabilities 
Treaty, we would recommend crafting the provision in a way to minimize 
that risk and other potentially negative consequences.

    Question. In his testimony, Professor Bradley suggested that the 
Senate might want to include a declaration regarding withdrawal of 
reservations. Is the administration aware of any case in which the 
executive branch has withdrawn a reservation to a treaty without the 
advice and consent of the Senate to its withdrawal?

    Answer. No. We are aware of only one case in which the United 
States has withdrawn a reservation to a treaty, and in that case the 
Executive sought and received the advice and consent of the Senate 
prior to withdrawing the reservation. In 1975, the United States became 
a party to the Patent Cooperation Treaty of 1970, which simplified the 
filing of patent applications on the same invention in different member 
countries. In 1984, the President requested the advice and consent of 
the Senate to withdraw a reservation to the treaty that the United 
States had made when it became a party. The Senate gave its advice and 
consent to that request in 1986.
    Additionally, a provision addressing the process to withdraw a RUD 
would, to our knowledge, be unprecedented in U.S. treaty practice. Even 
in cases like the Disabilities Treaty, where federalism concerns are 
addressed through RUDs (e.g., the International Covenant on Civil and 
Political Rights, the Convention on the Elimination of Racial 
Discrimination, and the U.N. Convention on Transnational Organized 
Crime), the RUD packages did not address a process for withdrawing a 
RUD.

    Question. Article 36 of the Disabilities Treaty provides that 
``[e]ach report'' by States Parties to the Disabilities Treaty ``shall 
be considered by the [Disabilities] Committee, which shall make such 
suggestions and general recommendations on the report as it may 
consider appropriate and shall forward these to the State Party 
concerned.'' Does this provision empower the Disabilities Committee to 
issue authoritative interpretations of the Disabilities Treaty? Does 
this provision or any other provision in the Disabilities Treaty 
empower the Disabilities Committee to compel any action by States or by 
individuals?

    Answer. Article 36 of the Disabilities Treaty empowers the 
Disabilities Committee to ``consider'' reports by States Parties on 
implementation of the treaty and to make ``appropriate'' ``suggestions 
and general recommendations on'' those reports. Nothing in Article 36 
or elsewhere in the Disabilities Treaty gives the committee the power 
to issue authoritative, i.e., binding, interpretations of the treaty or 
compel any action by states or individuals.

    Question. In his testimony, Professor Rabkin expressed concern 
regarding a lack of clarity on what will count as a disability under 
the Disabilities Treaty. What is your response to this concern?

    Answer. The fact that the treaty does not contain a definition of 
disability is a strength--it is a recognition that different countries 
have different definitions and that deference should be paid to States' 
domestic law in this area. There are multiple definitions of disability 
in U.S. law. Joining the treaty will not impact or require changes to 
any of those definitions. To remove any doubt on this point, an 
understanding on the definition of disability would make clear that the 
term is defined for the United States coextensively with how it is 
already defined under existing U.S. law. The Senate Foreign Relations 
Committee adopted such an understanding last year, and I continue to 
support it.
                                 ______
                                 

          Responses of Ambassador C. Boyden Gray to Questions 
                  Submitted by Senator Robert Menendez

    Question. Professor Curtis Bradley stated during the committee 
hearing that a ratification vote on the treaty need not wait on the 
Supreme Court's decision in Bond v. United States so long as the 
committee adopts RUDs satisfying his federalism concerns and concerns 
about the advisory committee created by the treaty.

  Do you agree with Professor Bradley that there is no need to 
        delay consideration of the treaty until the Bond case is 
        decided?

    Answer. Yes, I agree that it is appropriate for the Senate to 
proceed to ratification before the Supreme Court issues an opinion in 
the Bond case. While I believe that the Supreme Court will decide this 
case on terms that will make a reservation unnecessary, it is prudent 
to craft a Federalism reservation that limits congressional authority 
to draft any future implementing legislation to the authority that it 
otherwise has in the Constitution and not rely on the Constitution's 
Treaty Power. Of course, with the reservations, understandings, and 
declarations that the Senate Foreign Relations Committee adopted last 
year, no new implementing legislation is needed to carry out U.S. 
responsibilities under the treaty. Further, because of the declaration 
that the treaty is non-self-executing, the treaty cannot be used for a 
cause of action in U.S. courts so there is no way for any court in the 
United States to review the treaty or sever any of its provisions. 
Nevertheless, I agree that a Federalism reservation can maintain our 
current balance of powers between the Federal Government and the 
States.
    Ratification of the treaty with a Federalism reservation will not 
freeze disability rights law in the United States as it now exists. 
Future Congresses may choose to amend the Americans with Disabilities 
Act and other Federal disability rights laws or even craft new laws to 
advance the rights of persons with disabilities. However any such 
future legislative action would be based on the authority of the 
Federal Government exclusive of the Treaty Power.

    Question. Some have proposed a ``non-severability'' reservation for 
the Disabilities Treaty to assure that RUDs adopted by the Senate 
cannot be stripped after ratification, either by U.S. Courts or any 
international body.

  Is such a reservation necessary?

    Answer. I do not believe that such a reservation is necessary. The 
concept of ``non-severability'' comes from our domestic law and is a 
device that allows Congress to ensure that the statutes that they enact 
can stand or fall on its own complete terms or, in the alternative, 
that the law can continue to stand even if one of its provisions has 
been found unconstitutional. For example, the ADA itself has a 
severability provision. This concept is necessary in Federal 
legislation because the U.S courts have the authority to review Federal 
statutes and declare them invalid. U.S. courts have no jurisdiction to 
review U.S. treaties nor does any U.S., U.N,. or international 
authority or body have the authority to strip the reservations from a 
U.S. treaty. The manner in which a reservation can be deleted from a 
ratified treaty is through the ratification process itself; i.e., if 
the President and a two-thirds majority of the U.S. Senate decides to 
do so.

    Question. During the hearing, Professor Rabkin expressed his 
skepticism as to whether ratification of this treaty is the right 
priority for the United States, and whether we should hector, admonish, 
and badger other countries to improve accessibility and eliminate 
discrimination for what he calls a small subset of other countries' 
populations.

  As someone with a long history of involvement in disability 
        rights issues, what is your perspective?

    Answer. The CRPD takes traditional and core American values and 
raises them to the level of international law. Based on our Federal 
disability laws, the Convention expresses the principles of inclusion, 
respect for human dignity, individual autonomy and freedom of choice, 
nondiscrimination, accessibility, and equal enjoyment of all rights and 
freedoms. I believe that it is in the best interests of the United 
States and also to countries around the world for the United States to 
export these values and share our experiences in implementing our 
disability rights laws.
    There is nothing crass in recognizing the significant benefits to 
Americans from ratification of the Disabilities Convention. In our 
global economy, U.S. employees need to travel and work abroad freely, 
unencumbered by inaccessibility. Every U.S. worker starting a career 
now and in the future should expect to be called upon to travel abroad 
to enhance his own career and to maintain a competitive edge for his 
U.S. employer. There is no better way for our government to support the 
long-term economic self-sufficiency of the millions of Americans with 
disabilities than to participate in the global commitment to 
accessibility that is enshrined in the Disabilities Convention.
    Just as important are the benefits to the countries around the 
world. Without laws like the ADA abroad, millions of children and 
adults are housed in institutions without the enrichment of family 
life, community resources, or access to the most basic civil rights 
like a birth certificate or even a name. Eighty percent of persons with 
disability live in developing countries and 20 percent of the world's 
poorest people have some kind of disability and are the most 
disadvantaged in their own communities. Ninety percent of children with 
disabilities in developing countries do not attend school. Until the 
United States ratifies the Disabilities Convention, it is a bystander 
on these critical matters. Our leadership in fighting against these 
unconscionable practices can make an enormous difference
    We are the leader of the official global initiative on disability 
nondiscrimination. We are not hectoring, admonishing, or badgering 
other countries when we join with them in assisting them in providing 
rights to their citizens with disabilities. And, at the same time, we 
support the ability of Americans with disabilities, including veterans 
and their families, to become full participants in the world economy. 
U.S. leadership can best be provided only if it ratifies the 
Disabilities Convention.

    Question. Do you agree that the Convention is a nondiscrimination 
treaty?

    Answer. The Disabilities Convention is a nondiscrimination treaty. 
In requiring equal treatment and reasonable accommodation for persons 
with disabilities, the Convention is anchored in the principles of 
United States domestic disability law, including the landmark Americans 
with Disabilities Act, the Rehabilitation Act, and the Individuals with 
Disabilities Education Act. At its core the Convention seeks to ensure 
that persons with disabilities enjoy the same rights as everyone else 
and are able to lead their lives as do other individuals, if given the 
same opportunities.
    The understanding that the committee included last year, one that 
was first suggested by the Obama administration, on economic, social, 
and cultural rights confirms that the treaty does not create new rights 
or programs. It just ensures that persons with disabilities will be 
given the opportunity to enjoy the same rights and programs that are 
already offered by the countries that ratify the treaty. Thus, the test 
for this treaty and for any new reservation, understanding, or 
declaration is to preserve equal opportunities for persons with 
disabilities; i.e., to ensure that persons with disabilities are not 
treated differently than persons without disabilities.
                                 ______
                                 

            Response of Professor Jeremy Rabkin to Question 
                    Submitted by Senator Bob Corker

    Question. At the conclusion of the hearing on November 21, the 
Chairman sought to address certain previous testimony of yours. You did 
not have the opportunity to respond. Would you please do so here?

    Answer. At the close of the Senate Foreign Relations Committee 
hearing on November 21, Senator Menendez disputed my characterization 
of Secretary Kerry's testimony. According to Menendez, Secretary Kerry 
did not mean to say that ratifying the CRPD would impose no obligations 
on the United States. Rather, Senator Menendez insisted, Secretary 
Kerry only meant to say that the CRPD imposes no additional 
obligations, because the United States has already fulfilled all its 
obligations by enacting the Americans with Disabilities Act.
    I fully agree with Senator Menendez on what Secretary Kerry meant 
to say. But I believe the underlying claim is incorrect. The ADA 
includes many exemptions and restrictions. For example, by its own 
terms the ADA does not apply to religious institutions, to private 
clubs, to private residences. The CRPD does not make provision for any 
of these exemptions or exceptions. To cite another example, the CRPD 
requires employers to provide ``equal remuneration for work of equal 
value.'' The ADA has no provision requiring employers to adjust pay 
scales to the intrinsic ``value'' of different jobs. These examples 
could be readily multiplied. The point is beyond dispute: by its own 
terms, the CRPD is a much broader or more comprehensive regulatory 
charter than the ADA. So it is simply not true that the ADA already 
regulates everything on which the CRPD calls for state regulation.
    It can be argued that the CRPD only means to establish a general 
standard and does not require every state to conform to every one of 
its requirements in every last particular. It can be argued that 
current American law already does conform to the general spirit of the 
CRPD, so much so that we would not be required to implement any 
additional measures. But the question is, ``required'' by whom? Surely 
it is not sufficient to say, ``We think we are in compliance, therefore 
we are.'' If such unilateral assertions work for us, they must work for 
every state and then the Convention becomes so much empty rhetoric.
    The more reasonable reading of the treaty is that it obligates each 
participating state to conform to promptings of the ``experts'' on the 
monitoring committee--unless a state has very substantial reasons for 
insisting on an alternate view. But neither Secretary Kerry nor Senator 
Menendez (nor anyone else, that I know of) has explained how we can 
know that all current discrepancies between the ADA and the CRPD will, 
in the future, be judged acceptable under the treaty. The ADA was 
enacted before the CRPD existed. How likely is it that the drafters of 
the ADA just magically intuited everything that the subsequent treaty 
would genuinely require, while simultaneously intuiting what 
compromises with the letter of the CRPD would still be judged 
consistent with its ``object and purpose''? Unless they have access to 
some infallible diplomatic Ouija Board, Secretary Kerry and Senator 
Menendez have no grounds for claiming that we already know what will be 
eventually required to comply with the CRPD.
    In his closing statement, Senator Menendez also sought to refute 
another point I made in my testimony. I had warned that poor countries 
might find it difficult to provide all the accommodations--ramps, 
lifts, tactile strips and so on--required by the CRPD and such 
countries might think it more urgent to invest in infrastructure to 
provide clean drinking water or provide inoculations against infectious 
diseases. I therefore cautioned that such countries might resent 
American pressure to comply with the CRPD--all the more so when 
American business stood to gain by export of specialized products to 
assist persons with disabilities. In his concluding remarks, Senator 
Menendez pointed out that Congress frequently legislates in ways that 
help American business, so there is no problem with saying the United 
States wants to help people with disabilities around the world--while 
also helping American business.
    I do not think the remarks of Senator Menendez answer the challenge 
here. I would be happy to stipulate that every Member of the U.S. 
Senate cares more about helping people with disabilities than about 
helping American business. But the relevant question is not how 
senators answer to their own consciences, but how American policy will 
be viewed in poor countries around the world. It is actually very hard 
to explain why the claims of disabled people should take priority over 
the claims of the vastly larger number of people suffering malnutrition 
or infectious disease. Our insistence that we only want the best for 
these people rings hollow when we say--in public testimony before 
Senate committees--that we are particularly concerned with benefits to 
visiting Americans or profits to American manufacturers.
    None of this would matter if there were some central authority 
empowered to enforce this treaty. But there is not. It will be enforced 
only to the extent that major states cajole others to comply. If we 
ratify the CRPD, we would be committing ourselves to lean on all other 
signatories to implement the treaty. It cannot be helpful to start by 
proclaiming to the world that none of these obligations actually 
require the United States itself to do anything--because we are already 
perfect in our compliance, as Secretary Kerry proclaimed at the 
hearing. It is even more awkward for us to insist that countries with 
massive problems devote more of their limited resources to buying 
American gadgets to help visiting Americans with disabilities and to 
help American exporters--because our Congress always likes to do more 
than one thing, when it sets out to do good.
    Perhaps we will say different things to other countries than we say 
to our own people. But that means, we are trying to get the CRPD 
ratified with arguments to our own people that we don't dare repeat to 
foreigners. If we cannot say what we really mean in front of 
foreigners, can Americans be sure what it is we really mean?
                                 ______
                                 

      Responses of Secretary of State John F. Kerry to Questions 
                    Submitted by Senator Jeff Flake

    Question. I have heard from different sides on this issue and it 
seems to be widely accepted that ratification will not require any 
changes to U.S. law. I have further been told that even if the 
Committee on the Rights of Persons with Disabilities were to somehow 
find U.S. policy toward disability rights inadequate, and issue a 
report with recommendations to that effect, the recommendations are not 
binding and the United States would still not have to make any changes 
to its laws.

  a. If that is true for the United States, then it must be 
        true for any other party to the treaty, correct?
  b. Doesn't it stand to reason then, that ratification of 
        this treaty by any country does not guarantee any changes in 
        disability policy at the domestic level?
  c. How, then, does U.S. ratification help disability rights 
        abroad?

    Answer. While the United States already fulfills all obligations it 
would have under the Disabilities Treaty as ratified, there are many 
countries around the world, including States Parties to the 
Disabilities Treaty, which will need to make systemic changes and 
improvements to their laws and practices to comply with the treaty. The 
Disabilities Treaty provides the necessary hook we need to engage most 
effectively with the 138 States Parties and to push them to make the 
types of systemic changes that we have made over the past few decades, 
most notably with passage and implementation of the Americans with 
Disabilities Act in 1990. It also provides the best opportunity we have 
to influence other countries so that they adopt an approach and 
standards on core disability rights matters that are consistent with 
our standards.
    Our status as a nonparty to the treaty deprives us of this powerful 
tool. It has already resulted in the exclusion of the United States 
from opportunities to share our expertise when other countries come 
together to discuss issues like education, accessibility, and 
employment standards for people with disabilities--areas where the 
United States is the leader--because we are not a party to the treaty. 
When we are excluded from such opportunities, other countries with 
different, and often lower, standards fill the void.
    It is accurate that the Committee on the Rights of Persons with 
Disabilities can issue only nonbinding recommendations and has no power 
to compel action by the United States or other States Parties. While 
the Committee is a feature of the treaty--and will give the United 
States a platform to showcase to the rest of the world the full extent 
of our gold-standard disability laws--our expectation is that the 
benefits of U.S. ratification will not be derived primarily from the 
existence of, or our interaction, with the Committee. Rather, as noted 
above, U.S. ratification provides the mechanism we need to engage most 
effectively with the 138 states parties and to push them to make 
systemic changes necessary for their compliance and implementation of 
the treaty in a manner that is consistent with our approach to 
disability rights.
    Finally, we recognize that U.S. ratification of the treaty must be 
coupled with a sustained diplomatic effort to engage future treaty 
partners to implement their treaty obligations. As I indicated in my 
testimony before the Senate Foreign Relations Committee, when we ratify 
the treaty, I ``will send a message to every embassy in the world, and 
we will begin to engage a protocol that will have our people reaching 
out to every country and every government, and we will use our presence 
in this treaty to leverage these changes in these other countries, to 
encourage these changes, to use the voice that you will give us by 
actually joining it, a voice that we're not able to exercise today for 
our absence as a member.''

    Question. China ratified the CRPD in 2008, and yet a Human Rights 
Watch report issued in July of this year makes a number of findings 
which demonstrate that, despite its ratification of the treaty, China 
still has a long way to go to implement policies that would safeguard 
the rights of the disabled.

  a. If the United States were to ratify this treaty, would 
        that increase any leverage we have over China--or any other 
        nation that has ratified, but not yet complied with CRPD 
        standards--to implement the recommendations of the Committee or 
        otherwise improve life for its disabled population?

    Answer. The Disabilities Treaty is the center of gravity for 
international disability rights. Officials from nations including China 
regularly question why we have not yet ratified the treaty. Our failure 
to do so weakens our ability to engage effectively with these countries 
on disabilities rights and diminishes our credibility and leverage in 
this area.
    The Disabilities Treaty provides the necessary mechanism we need to 
engage most effectively with the 138 states parties and to push them to 
make the types of systemic changes that we have made over the past few 
decades, most notably with passage and implementation of the Americans 
with Disabilities Act in 1990. It also provides the best opportunity we 
have to influence other countries so that they adopt an approach and 
standards on core disability rights matters that are consistent with 
our standards.
    Our status as a nonparty to the treaty deprives us of this powerful 
tool. It has already resulted in the exclusion of the United States 
from opportunities to share our expertise when other countries come 
together to discuss issues like education, accessibility, and 
employment standards for people with disabilities--areas where the 
United States is the leader--because we are not a party to the treaty. 
When we are excluded from such opportunities, other countries with 
different, and often lower, standards fill the void.

  b. Couldn't the United States raise the issue of disability 
        rights with China, or any other nation, bilaterally, without 
        having to ratify the CRPD? Answer:

    Answer. The Disabilities Treaty is the center of gravity for 
international disability rights. While the United States does raise the 
issue of disability rights bilaterally, including with China, our 
status as a nonparty to the Disabilities Treaty has diminished our 
credibility and leverage with other countries and has resulted in our 
exclusion from opportunities to influence other countries as they 
consider different possible approaches to implementation of the treaty. 
When we are excluded from such opportunities, other countries with 
different, and often lower, standards fill the void.
    U.S. ratification will be a ``force-multiplier'' in relationship to 
our current bilateral diplomacy. It is the most effective way for the 
United States to engage with the most countries possible and it will 
ensure that we have the leverage and credibility we need to do so.

    Question. According to CRS, ``Supporters of CRPD contend that U.S. 
ratification would enhance the United States credibility as it 
advocates the rights of persons with disabilities globally.'' Yet, 
according to USAID the United States has spent more than $33.5 million 
since 2005 in support of disability programming for 108 projects in 65 
countries. I have heard stories of the good these programs are doing 
across the globe.

  a. What other nations operate international disability 
        programming on par with what USAID offers?
  b. Has the United States needed to ratify the treaty to 
        operate these programs or otherwise advocate in a bilateral 
        fashion support for disability rights?
  c. Are these programs not a sign of American leadership on 
        this issue?

    Answer. There is no doubt that USAID has some of the strongest 
disability-inclusive programming among international development 
donors, and that there is much for Americans to be proud of in this 
work. However, by their nature, USAID programs are typically bilateral, 
project-specific, and necessarily limited in scope. By contrast, U.S. 
ratification of the Disabilities Treaty offers the best possible 
opportunity to engage other countries and push them to undertake 
systemic reform across a range of issues, akin to the work that was 
done in the United States following passage of the Americans with 
Disabilities Act. By ratifying the Disabilities Treaty, the United 
States will be best positioned to champion the kinds of systemic 
reforms that we know from our domestic experience are needed to raise 
standards and improve the lives of persons with disabilities globally, 
which will expand opportunities abroad for the millions of Americans 
with disabilities. Joining the Disabilities Treaty is also the most 
effective and efficient way for the United States to engage with the 
most countries possible, rather than having to rely solely upon 
country-by-country engagement. Accordingly, ratification will amplify 
and enhance the ongoing work of USAID, all without any budgetary 
impact.
                                 ______
                                 

           Responses of Secretary John F. Kerry to Questions 
                   Submitted by Senator John Barrasso

    Question. Would the United States ratifying this Convention require 
any changes to current laws or regulations at the State or Federal 
level?

    Answer. No. While our ratification of the Disabilities Treaty will 
help expand opportunities abroad for the over 50 million Americans with 
disabilities, it will not require any change to domestic law, at the 
Federal or State level. The United States already fulfills all 
obligations it will have under the Disabilities Treaty as ratified with 
reservations, understandings, and declarations.

    Question. Would the Convention impose new obligations on 
individuals, private organizations, or religious groups?

    Answer. No. While our ratification of the Disabilities Treaty will 
help expand opportunities abroad for the over 50 million Americans with 
disabilities, it will not impose any new obligations on individuals, 
private organizations, or religious groups. Individual privacy and 
freedom from governmental interference in certain private conduct are 
fundamental values of our free and democratic society, and our 
ratification will safeguard those values. The administration continues 
to support a private conduct reservation, like that included in last 
year's Senate resolution of advice and consent, which will ensure that 
the United States does not accept any obligation under the Disabilities 
Treaty with respect to private conduct except as mandated by the 
Constitution and laws of the United States. Additionally, as would be 
reflected in a declaration, the treaty is not self-executing, and 
therefore cannot serve as the basis for a lawsuit in Federal or State 
court and does not give rise to individually enforceable rights in the 
United States.

    Question. Does the Convention impose any new costs upon U.S. 
taxpayers?

    Answer. No. While U.S. ratification of the Disabilities Treaty will 
help expand opportunities abroad for the over 50 million Americans with 
disabilities, our ratification will not impose any new costs on U.S. 
taxpayers.

    Question. Does the Convention create any legal rights for 
individuals to bring lawsuits in U.S. Courts?

    Answer. No. While our ratification of the Disabilities Treaty will 
help expand opportunities abroad for the over 50 million Americans with 
disabilities, it will not create any legal rights in the United States. 
Additionally, as would be reflected in a declaration, the Disabilities 
Treaty is not self-executing. Therefore, it cannot serve as the basis 
for a lawsuit in Federal or State court and does not give rise to 
individually enforceable rights in the United States.

    Question. Does the administration believe that the three 
reservations it has proposed are compatible with the object and purpose 
of the Convention?

    Answer. Yes. The object and purpose of the Disabilities Treaty is 
to promote and protect the rights of people with disabilities and to 
ensure nondiscrimination and equality of treatment. Our ratification of 
the treaty will help expand opportunities abroad, including for the 
over 50 million Americans with disabilities, so that they enjoy the 
same opportunities as their nondisabled peers.
    As a result of our constitutional protections and gold-standard 
disability rights laws, the United States already acts consistently 
with the object and purpose of the treaty. The three reservations 
proposed by the administration clarify our relationship with the 
treaty. They do not change Federal or State law in the United States, 
and they are consistent with the object and purpose of the treaty.

    Question. Is there anything in the Convention that would take away 
parents' rights and allow courts to interfere with parents' decisions 
regarding their children?

    Answer. No. In the United States, it is incontrovertible that 
parents decide how to raise and educate their children, including 
deciding whether to homeschool children, so long as such decisions are 
consistent with Federal and State law. The Disabilities Treaty also 
embraces the paramount role of parents in the care and upbringing of 
children with disabilities. Nothing in the treaty or our ratification 
of the treaty will change or detract from the right of parents to make 
decisions regarding their children, including the decision to 
homeschool children with disabilities.
    Additionally, the executive branch continues to support 
reservations, understandings, and declarations that will ensure that 
our ratification of the Disabilities Treaty will not have any impact on 
a parent's right to make decisions regarding their children, including 
the decision to homeschool children with disabilities. For example, 
last year the Senate Foreign Relations Committee adopted the private 
conduct reservation proposed by the executive branch. That reservation 
will ensure that the United States does not accept any obligation under 
the Disabilities Treaty with respect to private conduct, including 
parents' decisions about their children, except as mandated by the 
Constitution and laws of the United States.

    Question. Would the Convention in any way limit the ability of 
parents to homeschool their children?

    Answer. No. In the United States, it is incontrovertible that 
parents decide how to raise and educate their children, including 
deciding whether to homeschool children, so long as such decisions are 
consistent with Federal and State law. The Disabilities Treaty also 
embraces the paramount role of parents in the care and upbringing of 
children with disabilities. Nothing in the treaty or our ratification 
of the treaty will limit the ability of parents to homeschool their 
children.
    Additionally, the executive branch continues to support 
reservations, understandings, and declarations that will ensure that 
our ratification of the Disabilities Treaty will not in any way limit 
the ability of parents to homeschool their children. For example, last 
year the Senate Foreign Relations Committee adopted the private conduct 
reservation proposed by the executive branch. That reservation will 
ensure that the United States does not accept any obligation under the 
Disabilities Treaty with respect to private conduct, including parents' 
decisions about their children, except as mandated by the Constitution 
and laws of the United States.

    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 proposed reservation 
concerning ``nonregulation 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. Yes, this understanding is accurate. The treaty is not 
self-executing, and therefore cannot serve as the basis for a lawsuit 
in Federal or State court. Further, a private conduct reservation would 
ensure that the United States does not accept any obligation under the 
treaty 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. With these reservations, the Disabilities Treaty would 
impose no new mandate on employers, including those employers exempted 
by the ADA because they have fewer than 15 employees.

    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 . . .''. 
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. Ratification of the Disabilities Treaty would not require 
U.S. adoption of a comparable worth framework. The understanding 
adopted by the Senate Foreign Relations Committee last year, which the 
executive branch continues to support, makes it clear that the treaty 
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. The Disabilities Convention does not impose an affirmative 
action mandate on private sector employers. The United States fully 
satisfies the treaty's requirement to promote the employment of persons 
with disabilities in the private sector through appropriate policies 
and measures, including laws such as the ADA and programs such as the 
Department of Labor's America's Heroes at Work program, which addresses 
the employment challenges of returning service members and veterans. 
These laws and programs effectively satisfy the treaty's obligations by 
promoting the employment of persons with disabilities in the private 
sector.
    Even though nothing in the treaty imposes an affirmative action 
mandate on private employers, the Senate Foreign Relations Committee 
has previously adopted federalism and private-conduct reservations and 
a non-self-executing declaration, which would further ensure that our 
ratification of the treaty does not infringe on constitutionally 
protected private conduct and that the treaty cannot serve as the basis 
for a lawsuit in Federal or State court and does not give rise to 
individually enforceable rights in the United States.
                                 ______
                                 

        Prepared Statement of Secretary of Defense Chuck Hagel 
                       on the Disabilities Treaty

    On behalf of America's service members, DOD civilians, and military 
family members with disabilities, I urge the United States Senate to 
approve the Convention on theRights of Persons with Disabilities.
    One of the legacies of the past 12 years of war is that thousands 
of young Americans will carry physical wounds for the rest of their 
lives. These wounded warriors deserve to have the same opportunities to 
live, work, and travel as every other American, and to participate 
fully in society whether at home or abroad. Joining this treaty will 
allow the United States to help shape international practices for 
individuals with disabilities that are consistent with our own high 
standards for access and opportunity. It will also help personnel who 
have family members with disabilities, who often have to choose between 
their families and their careers when considering assignments in other 
countries.
    Treating people with respect and dignity is one of the fundamental 
values of the United States Armed Forces. It is a value that our men 
and women in uniform fight for around the world. Failing to approve 
this treaty would send the wrong message to our people, their families, 
and the world. Approving it would help all people fulfill their 
potential. That's why I strongly support swift Senate action.
                                 ______
                                 

  Prepared Statement of Eric Shinseki, Secretary of the Department of 
              Veterans Affairs, on the Disabilities Tready

    Washington.--Ratification of the Disabilities Treaty is important 
to our Nation's 5.5 million disabled Veterans. Ratification of the 
Disabilities Treaty is not about changing America. It's about helping 
the rest of the world raise their accessibility standards to the gold 
standard the United States has set through our ADA. Ratification will 
help reinforce America's global leadership role and reputation, putting 
us in the strongest position to advance disability rights worldwide. By 
joining the treaty, we will be helping the 5.5 million Veterans with 
disabilities and the 50 million Americans with disabilities study and 
work with dignity and pursue greater opportunity abroad with the same 
access they enjoy at home.
    I served for roughly 10 years in Europe as a disabled Soldier 
following my tours in Vietnam. During that time, I had to learn to walk 
and run again. I had to convince the Army that I could continue to 
serve, and learn to adjust to a new reality. I recall the absence of 
aids for the disabled in many places where I served--ramps, lifts, 
automatic door openers, among other devices that are commonly available 
in this country. Our disabled Veterans and service members have put 
their trust in our country. Now, it's time for our country to put its 
trust in them. It's time to ratify the Disabilities Treaty.
    I urge the Senate to approve the treaty this year.
 XIV.--Annex III.--Letters Submitted for the Record in Support of the 
                               Convention

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]






             Transcribed Petition Submitted for the Record

    In addition to the many letters submitted in support of the 
Convention, the committee received a transcribed version of a 
petition signed by individuals supporting the Convention. That 
document will be maintained in the committee's permanent files.

                                  [all]
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