A bad disabled-rights treaty

Walter Olson Senior Fellow, Cato Institute
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Sen. Majority Leader Harry Reid (D-Nev.) is expected to bring to the Senate floor today the United Nations-drafted Convention on the Rights of Persons with Disabilities, sometimes labeled the “international ADA,” despite 36 conservative senators’ warning that the lame-duck session is not a suitable time to take up a controversial measure that lawmakers had previously shown no rush about ratifying. In response, treaty advocates have mounted a campaign to depict it as not really controversial at all, among sophisticates at least. According to the Associated Press, supporters of the measure “stressed that it was modeled after the 1990 Americans with Disabilities Act and required no changes in U.S. law.” Per Washington Post writer Dana Milbank, the treaty is an “innocuous” measure that “requires virtually nothing of the United States.” Milbank charges that critics led by Sen. Mike Lee (R-Utah) have been drawn into a stance of “opposing the disabled” (and that certainly does sound awful, doesn’t it?) via the “dark world of U.N. conspiracy theories.”

An editorial urging ratification in the Washington Post takes much the same line, claiming the measure “would not require the United States to change its laws” and blaming opposition on the “far right.” Sure, let’s sign away our national sovereignty on questions of how best to accommodate the disabled. What could go wrong?

Plenty, actually. Anyone who claims the CRPD merely codifies existing U.S. disabled-rights law, as distinct from prescribing major new extensions of it, cannot have read its text with care. Beyond that, the treaty would if taken seriously bid to wrest from the control of elected U.S. lawmakers the future course of many important domestic policy issues, from the structuring of Social Security disability benefits to the question of whether prospective law and medical students should have a right to extra time in taking exams to accommodate their learning disabilities. When it’s pointed out that the convention by its own text requires radical revamping of many existing policies, advocates respond with the peculiar argument that, after all, we shouldn’t take its provisions all that seriously; other ratifying countries are already blithely ignoring their obligations under it, and the United States will be free to do so too, especially as the mechanisms for enforcing it are (for the moment) fairly toothless. It is at best a cynical argument that deserves senators’ rejection.

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The convention consists of a preamble and 50 (!) articles. Under Article 4 (1)(b), ratifying states pledge to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities,” and under 4 (1)(d), to “refrain from engaging in any act or practice that is inconsistent” with the convention. Who gets to define whether an existing law, regulation, custom, or practice “constitute[s] discrimination against” the deaf, blind, epileptic, diabetic, or paraplegic? Or — to name a few of the other groups currently deemed disabled — persons afflicted with psychosis, cancer, emotional dysfunction, narcolepsy, learning disability, past alcohol or drug abuse if in rehab, or serious contagious disease? Your guess is as good as the Post editorialists’, except that they seem to have spent no time guessing or so much as thinking about the matter.

Will states and localities have to change their laws, or just the federal government? Glad you asked: Article 4, Section 5 says “The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions.”

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?

But — advocates say — consider how toothless the actual enforcement is sure to be! According to Sen. John Kerry (D-Mass.), “the U.N. committee created by the treaty only has the power to recommend, and cannot force individual nations to change their laws.” The Washington Post editorialists make joining the treaty sound as if it were just a way of getting into an ongoing neighborly chat-and-lend-a-hand process: “ratification would give Americans the standing to lobby other nations to follow the U.S. lead and to offer help to those who want to do so.”

That’s wrong. Obviously, having enacted aggressive disabled-rights statutes of its own already, the U.S. is already in a position if it wishes “to lobby other nations to follow [our] lead and to offer help to those who want to do so.” Who would stop us? After a ratification, however, we will assuredly hear less happy talk about our rights to advise and offer help and more talk about the solemn “treaty obligations” that we have now assumed, and we will be told that refusing to adopt one or another aggressive interpretation of disabled rights makes us willful violators of international human rights law. As the 36 critical senators remind us in their letter: “Under Article 6 Section 2 of the Constitution, treaties that receive the advice and consent of the Senate will become the ‘supreme law of the land.’”

In their own publications disabled-rights advocates, and their cheering section in law schools and the foundation world, often frankly acknowledge that they expect it to have far-reaching effects in this country. New York Law School professor Michael Perlin, who has decried disparate treatment of mentally ill persons as the ill effect of a prejudicial syndrome he calls “sanism,” has argued hopefully that the convention could revolutionize the legal rights of the mentally ill. At present, many states are in litigation with the federal government over whether they can lawfully maintain existing group facilities for the care of the developmentally disabled; the federal Justice Department is negotiating the shutdown of many such facilities even when residents’ families plead for them to be kept open as the safest and most familiar places for their loved ones. Congress might revisit this issue in the future to strike a different balance, but should the convention be ratified in the meantime, we can confidently predict that the treaty will be said to have settled the issue. Some local medical clinics protest that it is overly burdensome to demand they provide sign language interpreters at their own expense for all hearing-impaired comers. Again, Congress would be giving up the future flexibility to set a different course.

Republicans have understandably relied on procedural objections to having such an important measure considered without any obvious necessity during the lame-duck session. But the truth is that whether presented today, next term, or 10 years from now, the convention deserves rejection by the Senate.

Walter Olson is senior fellow at the Cato Institute. He wrote about the new international human rights law in his book Schools for Misrule (Encounter, 2011).