Opinion

A bad disabled-rights treaty

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Walter Olson
Senior Fellow, Cato Institute
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      Walter Olson

      Walter Olson is a senior fellow at the Cato Institute and the author of the forthcoming Schools for Misrule: Legal Academia and an Overlawyered America (Encounter). He edits Overlawyered.com.

Libertarians, along with all those concerned with the autonomy of the institutions of private civil life, please note: under Article 4, section 1, part (e), states must “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise.” (Yes, “any.”) The employment provisions of the current federal ADA apply to employers with more than 15 employees, but Article 27 (1)(a) would seem to prescribe doing away with any such threshold; it requires states to “Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment.”

New government spending programs going beyond anything presently in federal law? Yes, galore. For example, one provision requires ratifying states to “ensure” access to “affordable” personal mobility technologies. Another new right not embodied in present federal law: that “[p]ersons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community.” How much might all this cost? Another provision explains that with “regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources [emphasis added] and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights.”

Ratifying states are also obliged to undertake what can fairly be described as propaganda operations. Under Article 8, “Awareness-raising,” the convention specifies that states (1) “undertake to adopt immediate, effective and appropriate measures” to (a) “raise awareness throughout society, including at the family level, regarding persons with disabilities…” and (b) “combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life. … Measures to this end include: (a) Initiating and maintaining effective public awareness campaigns … (b) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention.” What if some future administration in Washington, D.C. thinks it’s none of the federal government’s business how “all organs of the media” present this issue? Then it’s non-compliance time, and the U.N.’s standing Committee on the Rights of Persons with Disabilities might need to warn us sternly.

Under the treaty, every four years or more often we (like all ratifying countries) would need to submit a report to this officious panel, which would then respond with admonishments (in practice, at the urging of private pressure groups which find the U.N. human-rights-review process a convenient forum in which to pursue their demands). Would solitary confinement for disabled prisoners, or the exclusion of developmentally disabled persons from juries, or refusal to “mainstream” behaviorally disabled public school students who reduce their classes to chaos, violate the convention? A few years hence, expect the ACLU or other participants in the active disability-rights bar to be exploring exactly such questions before the U.N. tribunal.

The convention’s mandates, often quite burdensome to private actors, roll on and on: a new right of the disabled “to have equal access to bank loans,” live “guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public,” equal access (at whose expense?) to all “information and communications technologies and systems,” a new right to “disability-specific sporting and recreational activities,” and, in Section 25 (e), a new right of disabled persons not to be discriminated against in the provision of life insurance. Under the existing federal ADA, terminal illnesses ordinarily count as disabilities. What does it even mean for a terminally ill person not to be discriminated against in the provision of life insurance?