August 20, 2012
UN Treaty Dangers are Real: A Response to Sen. Rockefeller
Michael Farris, J.D., LL.M
HSLDA Chairman and Founder
Editor’s note: This article is adapted from a letter by HSLDA Chairman and Founder Mike Farris written in response to U.S. Sen. Jay Rockefeller’s views concerning the UN Convention on the Rights of Persons with Disabilities.
Please Act Now
Senator Rockefeller is not alone in holding these views. Several senators likewise wrongly believe that the reservations, understandings, and declarations adopted on July 26 have made the CRPD safe for America. We need your help to notify them of their error while we still can. Please contact your senators with this simple message:
“The UN Convention on the Rights of Persons with Disabilities surrenders U.S. sovereignty to unelected UN bureaucrats, and will threaten parental decision making for children with disabilities.”
In a recent letter to his constituents, Senator Jay Rockefeller of West Virginia made several claims about the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). One of our members has asked us to analyze the legal claims in his letter. Since I have recently earned an LLM in Public International Law from the University of London, I was deemed to be the proper person from HSLDA to respond.
Every discussion of a treaty must begin with Article VI of the United States Constitution in mind. It provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” A ratified treaty is equal in status to the U.S. Constitution and federal statutes, immediately voiding any contrary state laws or constitutional provisions.
With this in mind, let’s take Senator Rockefeller’s statements one by one. Seeking to calm his constituency’s apprehension about the UNCRPD’s interpretation, the senator says, “Experts report that the treaty reflects the nondiscrimination provisions of the existing ADA and other U.S. disability laws.” In that the treaty condemns discrimination against disabled persons, it bears some similarity to U.S. laws. This similarity, however, cannot accurately be described as reflection. Rather, because of the legal status assigned to treaties by the Supremacy Clause in Article VI, every provision of the treaty that deals with the same subject matter as current American legislation will serve as a replacement. There are some parallels between American law and the UNCRPD but, to the extent that there are differences, the treaty would prevail. This is especially troubling since the UNCRPD provides no specific definition of “disability.” Without this crucial definition, it cannot be said with certainty exactly how broadly the treaty will apply.
Undermining Current Laws
Furthermore, this statement by the senator leads the reader to believe that the primary function of the UNCRPD is to prevent discrimination. While the treaty does contain many anti-discriminatory provisions, it is full of other requirements, including rules for public and private entities about developing new technologies in a manner conscious of all disabilities, providing education and health services, ensuring rights to movement and expression, and much, much more. In short, this treaty removes the majority of public policy decisions concerning the disabled from the purview of American representatives, subjecting those decisions instead to international law. Such a concession does not serve the interests of disabled Americans—they deserve to be protected by American laws made by American representatives, not by UN bureaucrats. Signing this treaty is not necessary to preventing discrimination against the disabled in America. The Senate Foreign Relations Committee, upon its review of the treaty, concluded, “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.” Current laws already do as much or more for the disabled than the convention would require. We have nothing to gain but much to lose by ratification.
Senator Rockefeller also wrote:
“The treaty does not change existing State law on parent-child relationships; parents will still be able to make final decisions on whether their child is home-schooled, attends a private school, or goes to public school.”
This is simply not true. 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 “best interest of the child” standard is one used in American family law. Under current law, however, only if a family is broken by a divorce or if a parent is convicted of neglect or abuse can the government substitute its view of what is best for the child for that of the parent. Parental rights are primary—the government’s judgment is only called upon when it becomes clear that parents are incapable of making decisions for the benefit of their children.
In contrast, the UNCRPD 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. In contradiction to Senator Rockefeller’s claim, Article 24 specifically tasks states with the responsibility to make sure that disabled children are educated in environments “which maximize academic and social development.” If the government determined that public schooling spurred social and academic development more than private or homeschooling, it would be required to see that the disabled child went to public school. There is no reading of the treaty that can sustain the senator’s claim that “parents will still be able to make final decisions” about their child’s schooling.
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. This understanding—as currently written—falls woefully short of providing any assurance to parents that they will remain the primary decision-makers for their children’s education.
Expanded Abortion Rights
Finally, Senator Rockefeller asserts that “The treaty also does not create any new abortion rights and an amendment was added to the legislation to explicitly state that it does not change U.S. law on abortion.” The senator’s first phrase is both misleading in its terminology and inconsistent with the terms of the treaty. His argument is based solely on Article 25, a non-discrimination provision concerning the provision of reproductive health services (read: abortion). The treaty is not limited to non-discrimination, however. Article 23(1)(b) also addresses reproductive health services, providing that:
“The right of all persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided.”
According to Article 23, the disabled have a right to make reproductive health and family planning decisions and a right to be educated about those decisions and given the means to carry out those decisions. Simply put, the government must pay for Planned Parenthood-style education and then fully fund all medical services needed for such matters.
Senator Rockefeller alludes to an “amendment” that resists any changes that the treaty might otherwise make in U.S. abortion law. The reference to an amendment is highly misleading because no such amendment exists. What does exist is an “understanding” drafted by the Senate Foreign Relations Committee. An amendment to a treaty is a binding alteration which applies to all ratifying states. When individual states ratify a treaty, they sometimes include their own reservations, understandings, and declarations (RUDs) which explain their interpretation of the treaty as it is ratified and apply only to the state which drafted the RUD. These clarifying RUDs must not be confused with binding amendments, since they bear neither the weight nor the breadth of actual amendments.
The understanding cited by the senator is not capable of preventing the abortion rights of Article 23 from applying to the U.S. The understanding states that the United States interprets the treaty as “a non-discrimination instrument” which does not address “the provision of any health program or procedure.” This understanding is consistent with Article 25, which is focused entirely on preventing discrimination.
Article 23, however, establishes the right of disabled persons to abortion education and procedures. Article 46 of the treaty states “Reservations incompatible with the object and purpose of the present Convention shall not be permitted.” The Senate’s RUDs could fall within the prohibition described in Article 46 for two reasons. First, the entire purpose of the convention is to ensure that disabled persons receive the rights that are described in full. If a state chooses, through RUDs, to attempt to pick and choose which rights are provided, then Article 46 will invalidate the offending RUD. So, even if the Senate’s understanding adequately addressed the breadth of Article 23, it would not successfully prevent the creation of a new abortion right. Second, the Senate concluded that, “in view of the reservations to be included … current United States law fulfills or exceeds the obligations of the Convention ….”
But, according to international law scholar Louis Henkin:
“The object and purpose of human rights conventions, it would seem, are to promote respect for human rights by having countries—mutually—assume legal obligations to respect and ensure recognized rights in accordance with international standards.”
According to Henkin, when states include reservations which claim that the state has already met the requirements of a human rights convention, the entire purpose—calling states to rise to a mutual legal standard through the treaty—is undermined. The Senate’s conclusion suggests that, in fact, the collection of RUDs they composed will be considered “incompatible with the object and purpose of the present Convention” and, therefore, will not be permitted by Article 46. Senator Rockefeller’s claim, that the treaty creates no new abortion rights and that, even if it did, an “amendment” protects the United States from recognizing those rights is absolutely false. The convention does create abortion rights for the disabled and seems able to impose them upon the United States over any RUDs included in our ratification.
Providing for the disabled and protecting them from discrimination is a worthy goal that is accomplished admirably by the Americans with Disabilities Act. If the Senate believes that more can and should be done for the disabled, then it should exercise its proper legislative function, not surrender parental liberty and American legislatures’ prerogative for domestic policy-making by signing a treaty which, by the Senate’s own finding, fails to accomplish anything which we have not accomplished on our own.