This week the US Senate will put the ratification to the U.N. Convention on the Rights of Persons with Disabilities to the vote. However, the possibility of this legislation becoming the law of the land has rattled many Americans who see the adoption of the Treaty as an attack on US sovereignty. Are they justified in their concerns? Does the Treaty really improve on existing legislative protection for disabled US citizens and at what cost? Frankly, is ratification really such a big deal?
The world’s largest minority
According to the homepage of ‘UN Enable’, the official website of the Secretariat for the Convention on the Rights of Persons with Disabilities, there are over one billion people living in the world today with some form of disability. This equates to fifteen per cent of the entire global population. In short, disabled people represent the “world’s largest minority”.
The U.N. Convention on the Rights of Persons with Disabilities (CRPD) was hailed by many as a great step forward in recognising and upholding the rights of disabled people on an international scale. The CRPD was adopted on 13 December 2006 and entered into force on 3 May 2008. Many countries have already ratified the Treaty. UK ratification took place on 8 June 2009, signifying the commitment of Parliament to safeguarding the rights of the disabled British community.
The US, on the other hand, has yet to do the same. This seems surprising, not least because around 36 million people in the US are living with some form of disability. Last week, it was finally announced that a vote on this matter would finally go to the US Senate – welcome news for many disability rights campaigners. Nevertheless, the prospect of the CRPD becoming enshrined in US law has been met with stiff opposition by certain groups.
One argument, which has gained much support, is that the CRPD attacks US sovereignty. Furthermore, there appears to be a question mark looming over just how much ratification will cost. If that is not enough, others claim that the CRPD actually falls short of protecting the disabled people’s human rights and therefore offers little that is not encompassed by existing US legislation.
An attack on US sovereignty
The fear that the American legislature will somehow lose its independence is baffling. International treaties, such as the CRPD are not designed to undermine national member state laws, but complement them or act as a backstop. To that end, they can only be used when national legal processes have been exhausted. In any case, international laws often allow for certain exemptions, designed to address issues which may arise where they conflict with national policy. Such reservations, have already been made by the US, so to argue that the CRPD will somehow alter or distort existing legislation appears a little misguided.
What makes these concerns seem even more confusing is the fact that the CRPD is founded very strongly on US law. Indeed, the Treaty has its roots in the Americans with Disabilities Act 1990 which formed the basis for many of the provisions of the CRPD. Therefore, would it not seem strange if the American government rejected an international law which was so obviously based on its own national principles?
The cost of the human rights for disabled people
Whether it be in ratifying it, policing it or enforcing it, large pieces of international legislation often face the criticism that they will hit the pockets of the national populace. I have never seen a convincing calculation to persuade me this is true. There is no evidence to suggest that the ratification of the CRPD will require any major overhaul in existing US law at huge administrative expense. Nor is there any indication that, once it is fully recognised, the Treaty will result in a tidal wave of litigation, brought by disgruntled members of the disabled community seeking to unreasonably exploit their new-found rights.
There is no reason to think that the Treaty will somehow increase the financial burden on US citizens. On the contrary the ratification of the Convention may have positive economic effects. For instance it is hoped that the CPRD will encourage more disabled people into the workplace (a resource that still remains comparatively under utilised).
Not another disability law!
A number of critics have pointed to existing US legislation, saying the protection of disabled people is carried out more than adequately by current disability laws. Some go one step further, stating that the Treaty is piecemeal. Far from guaranteeing the human rights of disabled people, they observe, the Convention falls short of giving them any robust safeguards.
One point raised in support of the latter argument concerns the lack of any definition of the term ‘disability’. Paragraph ‘e’ of the Preamble of the CPRD does, indeed, state that signatories to the Convention should recognise “that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers…”.
But disability is an evolving concept. Nowhere is this more evident than in relation to mental illnesses especially bi-polar conditions, which for decades have not been categorised as disabilities at all. Now, thankfully such narrow attitudes are changing. The definition of ‘disability’ cannot ever be rigidly defined. Whether a person is considered disabled is as much a result of the subjective attitudes towards that disability as it is down to objective medical diagnosis.
Far more important is the definition of ‘discrimination’ and this is a term which the Treaty does explain quite clearly. According to Article 2, discrimination is “… any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
That national laws may already provide direct legislative protection for disabled people is all very well. In the UK, disabled people may rely on the Disability Discrimination Act 1995. This does not mean that the international recognition of disability rights is unnecessary. After all, whilst the US may well be a bastion of human rights for the disabled community, other disabled people in other countries are far less fortunate. It is to these vulnerable individuals that the US has an obligation to ratify the CRPD. If it does not and instead prefers to see the Treaty as some sort of power struggle between itself and the UN, what sort of message does this send to the 124 countries that have already ratified its provisions?
US ratification – does is really matter?
One of the key arguments made by journalists and political commentators in favour of US ratification is that America has an opportunity to show other less disability conscious nations that it fully supports and upholds the rights of disabled people. This is a valid point. The world’s super power should always take the lead in demonstrating its desire to protect the most vulnerable members of its society, especially to those countries wishing to follow and improve the lot of their own disabled citizens.
That said, it is also worth noting, especially in the current climate of austerity and budget cuts, that many developed countries could also do with a firm nudge to remind them that the disabled community cannot simply be ignored. The recent overhaul of the UK’s own disability legislation has left many disabled people hopelessly exposed. It is arguable that in revising the Disability Living Allowance the British government is currently in breach of Article 19 of the CRPD which seeks to protect the right of disabled people to live independently and be included in the community.
The ratification of the CRPD is not simply an opportunity for the United States of America to encourage developing legislatures to champion the rights of disabled people. It is also an occasion to remind itself of the promise it made to its own disabled community twenty six years ago and how, even in times of international socio-economic hardship, it still refuses to stray from that commitment.