Hatch: U.N. Disabilities Treaty a Threat to American Sovereignty and Self-Government

In a speech on the Senate Floor, U.S. Senator Orrin Hatch (R-Utah) today outlined his long support for disability rights throughout his service in the Senate, but said he cannot support the pending U.N. Convention on the Rights of Persons with Disabilities (CRPD). The Senate Foreign Relations Committee has indicated it may bring up CRPD, which Hatch opposed when CRPD was voted on by the full Senate last December.

Below are some excerpts that explain the reason for Hatch’s opposition to the treaty:

Mr. President, there is underway an effort to promote the rights and opportunities of persons with disabilities through a treaty rather than through legislation. Advocates of the U.N. Convention on the Rights of Persons with Disabilities, or CRPD, appear to believe that statutes and treaties are simply alternative means to accomplish the same end. Though I have labored with these advocates on disability legislation, I must respectfully but firmly disagree.

My record on disability legislation speaks for itself, but I cannot support the CRPD because the cost to American sovereignty and self-government clearly outweighs any concrete benefit to Americans.

When Alexander Hamilton explained the American system of representative self-government, he famously said that in America “the people govern; here, they act by their immediate representatives.” Those words today are inscribed above an entrance to the House of Representatives in the Capitol, a building that Thomas Jefferson described as “dedicated to the sovereignty of the people.”

That sovereignty certainly includes the authority to elect representatives and the authority of those representatives to enact laws. But it is much more than that. The American people also have authority to define our culture, express our values, set our priorities, and balance the many competing interests that exist in a free society. To put it simply, the American people must have the last word.

The CRPD would undermine that sovereignty, compromise self-government, and give the last word to the United Nations. Let me explain how.

The CRPD is not a treaty with other nations, but a treaty with the United Nations itself. Ratifying it would create a wide range of obligations for the United States and authorize the United Nations to determine whether we are meeting those obligations.

The U.N. website says that the CRPD legally binds any nation ratifying it to adhere to its principles. The treaty applies those principles in more than two dozen areas of national life including education, health, employment, accessibility, and independent living as well as participation in political, public, and cultural life. Article 8 even requires ratifying nations to “raise awareness throughout society, including at the family level, regarding persons with disabilities.”

The treaty also spells out what adherence to its principles in these many areas will require. Ratifying nations must enact, modify, or abolish not only laws and regulations at all levels of government – federal, state, and local – but also social customs and cultural practices. Ratifying nations must refrain from engaging in any acts or practices that are inconsistent with the treaty as well as ensure that all public authorities and institutions act in conformity with it.

The heart of the CRPD is a committee of 18 experts elected by the nations ratifying the treaty that has authority to determine if those nations are in compliance. Each nation must submit to this committee periodic comprehensive reports on measures taken to meet the obligations imposed by the treaty. The U.N. committee dictates the content of these reports, evaluates whether a nation is in compliance, and makes whatever recommendations it chooses.

Under the U.S. Constitution, ratified treaties are the supreme law of the land. Since the United States has long had the most progressive disability laws and policies in the world, we likely are already doing much that the CRPD requires. But that is not the point, and instead highlights the real problem. Ratifying the CRPD would endorse an official ongoing role for the United Nations in evaluating virtually every aspect of American life. Ratifying the CRPD would say that the United Nations, not the American people, has the final say about whether the United States is meeting its obligations in these many areas. And it would impose this cost to American sovereignty and self-government with no concrete benefit to Americans.

Ratifying the CRPD will not establish a single right for a single American, it will not provide for Americans with disabilities anything that American law has not or could not provide. It would not even help Americans with disabilities who travel overseas because their treatment depends on the laws and policies of other countries, not ours.

Treaty advocates argue that the CRPD’s impact on American sovereignty and self-government can be minimized by the many caveats that would accompany ratification. These are commonly referred to as reservations, understandings, and declarations. The legal status of these caveats, however, is unclear. The CRPD itself states that “[r]eservations incompatible with the object and purpose of the [CRPD] shall not be permitted,” a judgment reserved to the U.N. committee. No less an authority than Harold Koh, former State Department Legal Adviser and now Sterling Professor of International Law at Yale, has questioned whether such declarations have “either domestic or international legal effect.”

Treaty advocates also emphasize that the U.N. committee will have no formal authority to interfere domestically in the United States. But as I explained, American sovereignty and self-government are not so narrow that they can be undermined only if we literally let the United Nations run our country. The U.N. and its components hardly need a treaty to opine on aspects of American life or public policy; they already do so. It is, however, something else entirely for the United States formally to endorse the U.N.’s right to do so and subject ourselves to their evaluation.

Treaty advocates say that ratifying the CRPD would give the United States a “seat at the table” to promote the rights and opportunities of persons with disabilities around the world. Ratifying the CRPD will neither create, nor is necessary to maintain, America’s global leadership on behalf of persons with disabilities. We had the most progressive laws in the world decades before the CRPD existed. Individual nations, as well as the European Union, are today modeling their laws after ours even without our ratifying the treaty.

I have not addressed substantive issues with the CRPD as currently drafted but I will mention just one. For more than four decades, American disability law and policy have used an objective, functional definition of disability. A disability is an impairment that substantially limits a major life activity. The CRPD, however, states that “disability is an evolving concept” involving barriers that hinder “full and effective participation on an equal basis with others.” The threat to American sovereignty and self-government I have described would exist even if the CRPD utilized a similar concept of disability. But, at least by the CRPD’s terms, it appears that the U.N. committee will use an evolving concept of disability to evaluate how the United States has implemented its objective concept of disability.

There exists virtually nothing that the United States could do after ratification that it could not, or does not already, do today. The truth is that every argument for ratifying the CRPD applies properly to other countries, not to the United States. The only real benefit of ratification that I can see would be to endorse the principles and policy statements in the treaty. The United States, however, either already do so by law or can do so in ways that do not undermine our sovereignty and self-government.

In the end, the most potent kind of leadership is the kind that America has exercised for decades already – taking real action to protect the rights and promote the opportunities of persons with disabilities. I remain as committed as ever to that ongoing responsibility.

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