The United States signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on July 30th, 2009. It must now be ratified by the Senate, which should be a foregone conclusion in the Democratic Party-controlled chamber.
As described on a United Nations website, CRPD is an international treaty that identifies the rights of persons with disabilities as well as the obligations on member states parties to the Convention to promote, protect and ensure those rights. The Convention also establishes two implementation mechanisms: the Committee on the Rights of Persons with Disabilities, which is the body of “independent experts” that monitors implementation of the Convention by the member state parties, and the Conference of States Parties, established to consider matters regarding implementation.
If this Convention, signed to date by 142 member states, were merely a non-binding expression of international aspirations to improve the lives of the disabled and to include them in the mainstream of society whenever possible, it would be unobjectionable. But, unfortunately, it is a legally binding treaty, which will potentially interfere with the United States’ control over its own domestic policy-making process. At the same time, it is fatally flawed in at least one crucial respect - the Convention does not even bother to come up with an agreed upon definition of “disability” or “persons with disabilities”, which is the very subject of the Convention!
One would think that such fundamental definitions would be necessary when it comes to creating programs to deal with the underlying subject matter. But this is the United Nations, after all, which for decades has been unable to define other major terms such as terrorism, much less effectively address the problem. The UN should deal with its own disabled functioning before trying to tackle a problem for the world’s population that it cannot even define.
The United Nations website devoted to explaining the CRPD rationalizes the lack of definition this way:
“First, there is recognition that “disability” is an evolving concept resulting from attitudinal and environmental barriers hindering the participation of persons with disabilities in society. Consequently, the notion of “disability” is not fixed….
Second, disability is not considered as a medical condition, but rather as a result of the interaction between negative attitudes or an unwelcoming environment with the condition of particular persons”.
In other words, “disability” is in the eyes of the beholder. And who will be establishing international norms on interpreting this “evolving concept”, which are intended to become part of the body of international law that each member state party is supposed to incorporate into its own laws? The United Nations, of course.
Although lacking a definition of what “disability” or “persons with disabilities” even means, the Convention nevertheless imposes the obligations upon member states to adopt legislative, administrative and other measures to give effect to the Convention, to nullify or amend any laws or regulations considered inconsistent with the Convention and to “ensure that public authorities and institutions act in conformity with the present Convention.”
All member state parties are obliged to submit regular reports to the Committee on the Rights of Persons with Disabilities concerning how the rights are being implemented. States must report initially within two years of accepting the Convention and thereafter every four years. The Committee examines each report and makes such suggestions and recommendations on the report as it may consider appropriate, which it forwards to the state party concerned who in turn is expected to implement these suggestions and recommendations.
The Optional Protocol to the Convention, which the United States has not signed yet, gives the Committee competence to examine individual complaints with regard to alleged violations of the Convention by member state parties to the Protocol.
The United States already has in place very comprehensive protections for the disabled, which are embodied in the Americans with Disabilities Act of 1990 (ADA). Our legislation, by the way, does include a definition of “disability” in relation to an individual as follows:
“(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment”
“Major life activities”, in turn, are defined in the ADA to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and the operation of major bodily functions.
In other words, the ADA, unlike the UN Convention, defines with some precision whom it intends to cover. It then sets out the rights, protections and remedies for the people intended to be covered. Our courts have had nearly two decades of experience in interpreting this statute within its own bounds.
Now along comes a vaguely worded UN Convention that we have signed, setting up an alternative set of rights and obligations with respect to something that it cannot even define but that it has nevertheless enshrined as a universal human right.
The problem for us is that the majority of the Supreme Court is inclined to make active use of international norms coming out of the United Nations in their judicial decisions. At least four of the current Supreme Court justices have written or concurred in opinions that make significant use of foreign and international laws in the interpretation of constitutional provisions – Justices Breyer, Ginsberg, Kennedy, and Stevens. The newest justice, who has also expressed support for using foreign and international law in U.S. judicial decisions, is Justice Sonia Sottomayor. That makes a solid majority on our Supreme Court that may defer to the United Nations Convention. President Obama’s next nominees will only add to this majority.
Here is an example how the process may play out. The UN Convention on the Rights of Persons with Disabilities makes specific reference to the right to receive “free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes”. The phrase “sexual and reproductive health and population-based public health” has long been interpreted in UN circles as encompassing an unfettered right to abortion.
Let’s assume for the sake of argument that, in making its recommendations to the United States on how to best implement the Convention’s obligations as part of our national legislation, the UN Committee advises that there is now a universal right to abortion for the disabled, which could include any pregnant women claiming short or long term mental problems as a result of their pregnancies under the UN’s “evolving concept” of disabilities. The Obama administration and the pro-choice liberals in Congress are reportedly seeking in their health care legislation to include funding of abortions anyway, as part of their new proposed government-sponsored insurance plan. But if they do not succeed in getting abortion funding included in the final bill, the Supreme Court may well conclude that the UN Convention we signed mandates it in any event as a universal human right. This is but just one example of the mischief that the UN Convention signed by the Obama administration can bring about.
The UN itself is a disabled organization. It should not be permitted to have any influence whatsoever on how our political and judicial systems choose to deal with disabled persons, abortion or any other domestic matter - period.