[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.
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