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November 01, 2013

ABA supports ratification of U.N. disabilities treaty

ABA President James R. Silkenat urged the Senate Foreign Relations Committee this month to favorably report the Convention on the Rights of Persons with Disabilities (CRPD), a treaty that he said “would send a clear message to the world of our support for the human rights principles of the treaty, as well as our role in the world as a leader for the rights of people with disabilities.”

The CRPD, which fell just five votes short of the 66 votes required for approval in the last Congress, sets forth globally accepted standards on disability rights and clarifies the application of human rights principles to persons with disabilities.

According to a letter from Silkenat for the record of a Nov. 5 hearing on the treaty, approximately 650 million people − 10 percent of the global population − are living with disabilities, and a vast majority of those individuals face discrimination in education, employment, housing, health care and other areas.

 “As the world’s historic leader in disability policy, the United States has a responsibility to join the international effort to promote, protect and ensure the full and equal enjoyment of human rights and fundamental freedoms by persons with disabilities around the world,” Silkenat wrote.

Committee Chairman Robert Menendez (D-N.J.) noted at the hearing that 138 countries have already ratified the treaty, but he said protections won’t come automatically. He emphasized that it will take U.S. ratification and leadership to ensure that the treaty’s protections not only become a reality but also reflect American values. “At the end of the day, if we fail to ratify this treaty, the U.S. point of view and U.S. interests will be marginalized,” he said.

Silkenat said that CRPD ratification will not require changes in domestic law or create opportunities for new lawsuits as opponents have claimed. He explained that the Supreme Court held in Medellin v. Texas in 2008 that a treaty is not binding as a matter of domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and ratified on that basis. Silkenat said the proposed resolution of ratification for the CRPD includes a declaration that the CRPD provisions are “non-self-executing,” meaning that the treaty will not be judicially enforceable and will not create a private right of action in the U.S. courts.

He also emphasized that CRPD ratification will not change the definition of “disability” under U.S. law. The treaty allows countries to apply their own definition through domestic law and policy. 

Silkenat addressed another concern that the CRPD would infringe upon U.S. sovereignty, explaining that the U.N. Committee on the Rights of Persons with Disabilities, established by the treaty to develop non-binding recommendations, has no authority to require or compel action by the United States.

The ABA, he said, agrees with a Nov. 4 memorandum prepared by the law firm of Patton Boggs LLP that concluded that there is “no authority in the text of the Constitution or the decisions of the Supreme Court for the proposition that the CRPD can restrict existing constitutional rights and freedoms of citizens, and the proposed RUDs (reservations, understandings and declarations) conform the government’s international obligations under the convention to its constitutional obligations.”

Among those testifying in favor of CRPD ratification was Rep. Tammy Duckworth (D-Ill.), a disabled veteran who said she has seen firsthand that even countries that are moving forward economically are not keeping pace with the necessary protections for disabled persons. “The United States has an opportunity to lead,” she said, “but to do so we must first ratify this treaty.” U.S. ratification, she testified, will allow veterans with disabilities “to have greater opportunities to work, study abroad and travel as countries implement this treaty.”

Others supporting the CRPD included former secretary of Homeland Security Tom Ridge, who chairs the National Organization on Disability, and former Attorney General Dick Thornbugh.

More witnesses, including Secretary of State John F. Kerry, testified in support of the treaty when the committee convened another hearing on Nov. 21. The committee is expected to schedule markup of the treaty for the week of Dec. 9.

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