December 10, 2012

Any post-mortem on the failure of the U.S. Senate to ratify the Convention on the Rights of Persons with Disabilities on December 4 will point to the efforts of people like Rick Santorum to keep enough Senators from voting in favor of the treaty to miss the requirement for two-thirds approval.

Santorum expressed several concerns with the treaty language, including a clause protecting the “best interests of the child.” Before the vote, Santorum wrote a column headlined “This Treaty Crushes U.S. Sovereignty” in which he raised what he saw as the potential impact of the treaty on his daughter: “In the case of our 4-year-old daughter, Bella, who has Trisomy 18, a condition that the medical literature says is ‘incompatible with life,’ would her ‘best interest’ be that she be allowed to die? Some would undoubtedly say so.”

Santorum was not alone in opposing the CRPD on grounds of threatened sovereignty. The Home School Legal Defense Association argues that ratifying the treaty will allow the United Nations to determine the number of handicapped spaces required for parking at one’s church. Others claim that the treaty requires mandatory monitoring of children with disabilities and will “force America to sanction sterilization or abortion for the disabled – at taxpayer expense.”

Opponents had a clear and united message: the CRPD “poses a threat” to U.S. sovereignty. They portrayed themselves as protecting the U.S. from walking through the door of the international human rights treaty system and its concomitant obligations. The problem with that line of argument is that the U.S. already walked through that door 20 years ago, when the Senate ratified the International Covenant on Civil and Political Rights (ICCPR), a core international human rights treaty.

Two years later the U.S. ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Convention on the Elimination of All Forms of Racial Discrimination. The U.S. has been reporting on its human rights records to these UN committees for almost two decades. There is nothing new (or frightening) about it.

So opponents of the CRPD actually have 20 years of history to show how the US, bound to these and other human rights treaties, has been “crushed” by the treaty obligations. But the record shows there’s no truth to the claim.

The truth is much more mundane.

As a party to the ICCPR, every five years or so, the United States must report to the U.S. Human Rights Committee on its compliance with the treaty. The Committee looks at this official report, and at reports from nongovernmental organizations like Human Rights Watch, and then makes “concluding observations,” authoritative interpretations of the state’s obligations under the treaty. The process is no secret: you can see the 2006 US submission, as well as the Committee’s observations, here.

The Committee’s concluding observations can be specific (such as “The [United States] should ensure that any revision of the Army Field Manual only provides for interrogation techniques in conformity with the international understanding of the scope of the prohibition contained in article 7 of the Covenant”) or more general (such as “The [United States] should continue and intensify its efforts to put an end to racial profiling used by federal as well as state law enforcement officials” followed by a data request).

The U.S. then responds to these observations, sometimes documenting progress toward meeting the recommendations – many times, unfortunately, politely brushing them off. And then the process begins anew.

Ratification of the CRPD would result in a similar process.

When it ratified the ICCPR, as well as the other core human rights treaties, the United States made a declaration that its provisions are not judicially enforceable without implementing legislation. The US Supreme Court also said as much four years ago in Medellin v. Texas. So it is up to the executive powers of the president, congressional lawmaking, and state governments to see that US international legal obligations are met. Too frequently, sadly, they are not.

But international human rights treaties are valuable in other ways, through their symbolism and persuasive power. Currently 166 other countries are parties to the ICCPR. Members of this and other treaties, including the treaties against torture and against racism, must put their human rights record down on paper and present that record to the community of nations. And they must be prepared for the criticism of civil society and international experts.

One might hope that by ratifying the CRPD American policymakers would see the value in putting their record on protecting the rights of people with disabilities on paper. The U.S. has much to be proud of in that regard, having enacted the Americans with Disabilities Act in 1990, the first major national legislation in the world addressing discrimination against persons with disabilities. One might also hope that by ratifying the CRPD, American policymakers would be driven to adopt other measures and pass laws that would further protect people with disabilities, taking the advice of the experts and civil society who play a role in making states aware of their obligations under the treaty.

When the Senate returns to this treaty in the new Congress, it should approach arguments against ratification with caution. The U.S. is already committed to protecting human rights through its ratification of important human rights treaties. Opponents to CRPD missed that boat many years ago.

Ginatta is the U.S. advocacy director at Human Rights Watch.