Last week, the Senate Foreign Relations Committee held the second hearing this month on U.S. ratification of the Convention on the Right of Persons with Disabilities (CRPD). A year ago, when the Committee first scheduled hearings on the CRPD, a Senate vote that followed fell just a few yeas shy of the 2/3 majority needed to ratify the treaty. At the time, opponents asserted that ratifying the treaty would give UN experts unfettered authority to change U.S. law, particularly in relation to homeschooling and reproductive health. Similar arguments re-emerged in hearings on November 5th of this year, along with federalism concerns.
Yet, a number of rationales for ratification remain. As Senator Bob Dole, Representative Tammy Duckworth and former U.S. Attorney General Dick Thornburgh indicated two weeks ago, and as Secretary of State Kerry reinforced last week, ratification would allow the United States to act as a global leader on this issue by exporting U.S. constitutional values and by guaranteeing the credibility of the United States in promoting disability rights abroad. Although opponents have argued that ratification is unnecessary since the Americans with Disabilities Act served as a model for the Convention’s provisions, in fact participation in the treaty would allow the United States to more tangibly act as a leading voice on equality. Indeed, international law professor Timothy Meyer testified that ratification would provide the United States an opportunity to nominate a U.S. citizen to serve as one of the Committee members tasked with monitoring treaty compliance. In addition, ratification would allow the United States to share the U.S. perspective on the treaty’s provisions in colloquy with the CRPD Committee. (To be clear, as a matter of law, treaty body members serve in their personal capacities and do not advocate the policies of their home states. Nevertheless, states whose citizens are appointed to treaty-monitoring committees are sometimes looked to as leaders on that particular human rights issue.)
Second, by strengthening the treaty, ratification would increase Americans with disabilities’ opportunities to live, work and travel abroad. While ratification proponents have focused on the travel concerns of veterans with disabilities (a timely concern after over a decade at war), in fact increased global accessibility would benefit all citizens venturing abroad. Opponents have argued that the United States’ own treaty ratification would not affect the practice of other states, the majority of which are already bound to the treaty. However, as the Rome Statue demonstrates, U.S. nonparticipation can weaken a treaty’s impact even among its own states parties by implying that the treaty’s provisions are not universally accepted or that they do not apply to powerful states.
Finally, the concept of group-conscious rights has previously proven controversial for U.S. policymakers. Michael Farris, one of the CRPD’s chief opponents, touched on this sensitivity by warning that the CRPD would be one of a number of treaties specifying rights of certain groups that the United States considers ratifying. Indeed, the United States has neither ratified the Convention on the Elimination of All Forms of Discrimination against Women nor the Convention on the Rights of the Child, two prior treaties that paved the way for the CRPD. If the United States’ decision not to ratify those human rights instruments indicates a disinclination towards group-conscious treaties, this could be detrimental to future treaties’ ratification, including a proposed older persons’ rights convention. Nevertheless, applying rights to particular groups is similar to the United States tradition of designating protected classes. Further, the CRPD does not officially create new human rights obligations but rather applies existing rights to this marginalized group.
There may be a middle path to U.S. ratification, as Professor Meyer articulated in his testimony. This middle path would rely primarily on the role reservations, understandings and declarations (RUDs) could play to deflect treaty interpretations that go beyond a clearly articulated U.S. view. Although CRPD Committee recommendations are not legally binding on states parties (and therefore cannot compel changes in U.S. law), he explained that Committee interpretations may affect customary international law if states generally comply with these interpretations and demonstrate that they feel legally compelled to do so. To prevent this, he and others have advised that the United States ratify the treaty with RUDs asserting that current U.S. legislation already comports with the treaty and refusing recommendations interpreting the treaty more broadly.
The remaining question is whether such a compromise would be palatable both to treaty opponents who have demonstrated an aversion to any uncertainty in treaty interpretation and to international lawyers alike who have, on the other hand, criticized the use of RUDs to limit the domestic impact of international human rights law.
A more compelling takeaway from these Senate hearings is the role that persons with disabilities have played in globalizing disability rights and in bringing those rights back home. Under the “Nothing about us without us” mantra, organizations of people with disabilities took an active part in negotiating the CRPD. Their contribution is reflected in treaty provisions giving value to their inclusion and to their lived experiences. This year’s hearings, which may very well constitute first steps towards U.S. ratification of the CRPD, should similarly be seen as a testament to the contribution of disability rights advocates and organizations. Their presence displayed not only in images of the Senate’s packed aisles and overflow rooms but also in the statements witnesses and legislators made referencing their constituent interests. In raising arguments for U.S. ratification—and in presenting themselves as constituents whose interests must be addressed—these voices provide not only substantive rationales for advancing disability rights at home but symbolic ones, too.