27 September 2012
The UN General Assembly approved the Convention on the Rights of Persons with Disabilities in December of 2006. That event marked a significant milestone in the struggle for disability rights worldwide. Now, nearly six years later, the United States, a leader in disability rights, is nearing formal ratification of the treaty and could soon hand the international disability rights movement a significant victory.
Negotiations on an international treaty on disability rights began with the establishment of an Ad Hoc Committee of the United Nations General Assembly in December 2001. Delegates and representatives from NGOs participating in the Ad Hoc Committee spent countless hours negotiating and crafting a document that sought to tear down barriers to full social participation by persons with disabilities. After eight formal sessions and five years of work, the Committee forwarded a draft to the General Assembly. The General Assembly provided its approval on December 13, 2006 and sent it out to UN member states for consideration.
The treaty seeks 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.” It does so by proscribing discrimination against persons on the basis of disability in employment and public services, promoting accessibility in public building, promoting independent living arrangements, recognizing the right to equal recognition before the law and independent legal decision-making, and requiring equal access to educational resources.
Implementation of the treaty is monitored by a Committee on the Rights of Persons with Disabilities. The Committee is empowered to review and comment on implementation reports submitted by States Parties. If a State Party opts to sign the Optional Protocol to the Convention, the Committee is further empowered to investigate and report on allegations of treaty violations submitted by individuals or groups against a State Party.
The ratification process has moved with astonishing speed. The treaty officially entered into force – meaning it became binding on states that have ratified it – on May 8, 2008 after Ecuador became the 20th country to assent to its terms. Since that time, an additional 97 states have added their names, bringing the ratification total to 117. Of these 117, 71 nations have also assented to the Optional Protocol.
Now, the United States appears poised to join the group of 117. The United States has long been an international leader in disability rights. Landmark U.S. legislation such as the Americans with Disabilities Act, which prohibits discrimination against persons with disabilities in employment, public services, public accommodations, and telecommunications; the Help America Vote Act, which requires the development of accessible electoral processes; and the Individuals with Disabilities Education Act, which ensures that all children with disabilities receive an equal and fair education, have inspired generations of disability advocates and promoted a vision of full integration for persons with disabilities in social, political, and economic life.
The UN Convention is as a natural extension of this movement for self-sufficiency and integration. In fact, many of the concepts in the Convention are drawn directly from U.S. legal protections. Notwithstanding that fact, concerns about the Conventions impact on U.S. legal schemes around mental incapacity (commonly known as “guardianship laws”), parental rights regarding the education of children, and national policy on abortion and assisted suicide have, up to now, prevented the U.S. government from seriously considering ratification.
The Obama Administration came into office promising to promote the Convention. While disability advocates had hoped for a “clean” ratification, the Administration, after several years of studying the Convention’s impact on U.S. law, decided that ratification was only possible if certain reservations and declarations were adopted. These include declarations that the U.S. believes compliance with the Convention consists solely of enforcing existing U.S. disability laws, that no federal laws will be required to comply with the treaty, that no new individual rights or individually enforceable rights are created by the treaty, and that the treaty has no impact on state legal schemes.
The Obama Administration submitted the treaty to the U.S. Senate along with a report detailing its recommended reservations in May of this year. The Senate Foreign Relations Committee, acting with unusual speed, held a formal hearing on the Convention on July 12, 2012 and recommended the treaty, with reservations, for ratification by a bipartisan vote of 13-6 on July 26, 2012.
The reservations adopted by the Foreign Relations Committee, like those supported by the Obama Administration, effectively render the Convention legally meaningless in the United States. However, ratification remains a strong statement of solidarity with the international disability rights movement. As Sen. John McCain (R-AZ) stated at the July 12th hearing, for example, “[p]rotecting the rights of persons with disabilities, ANY persons, is not a political issue...[i]t is a human issue...ratifying this treaty affirms our leadership on disability rights and shows the rest of the world our leadership commitment continues.” John Wodatch, former Chief of the Department of Justice’s Disability Rights Section and a U.S. negotiator on the Ad Hoc Committee, added that, “[o]ur failure to ratify the Disabilities Convention, which so clearly follows the pattern of disability rights laws and programs pioneered in the United States, has hampered the position of the United States as a world leader on disability rights issues...[i]t is time for the United States to re-position itself as a world leader to help bring down...walls of exclusion for all nations around the globe.”
Buoyed by the vote in the Foreign Relations Committee, supporters of the treaty hope to have the Convention formally ratified by the Senate before the annual summer recess in August. Challenges remain, however. Treaty opponents have vowed to continue the fight against ratification and recently enlisted the help of former republican presidential candidate Rick Santorum. Their task is not a difficult one. If treaty opponents can generate sufficient controversy about the Convention, the Senate could easily push a final vote off until after the November elections.
Supporters remain optimistic though. Sen. John Kerry (D-MA), chair of the Senate Foreign Relations Committee, has made ratification a priority and a number of Republican senators have announced support for the treaty. If ratification succeeds, it would mark a major milestone in the international march towards equality and full inclusion for persons with disabilities.
E. Pierce Blue works as a Special Assistant and Attorney-Advisor to Commissioner Chai Feldblum of the U.S. Equal Employment Opportunity Commission. He specializes in U.S. and international disability law. The views expressed in this article are his own and do not reflect the thinking of Commissioner Feldblum or the U.S. Equal Employment Opportunity Commission.
UN Photo by Paulo Figueiras.
This article was originally published in the Diplomatic Courier's September/October 2012 edition.