Monday, December 30, 2013

CRPD and January 2014


Ratification of the CRPD should happen in January 2014. That is the optimal window for action by the Senate Foreign Relations Committee and by the full Senate. In February 2014 and thereafter partisanship will heighten because of the mid-term elections in November 2014. Democrats and Republicans will be invested in drawing distinctions between them, not things on which they agree or could agree. After January 2014 bipartisanship cooperation, even if we pray or look for it, will be highly unlikely. There also will be big issues that will ebb and flow at the top of Congress’ radar that have nothing to do with the CRPD – budget, appropriation, debt ceiling, health care, entitlement, and immigration issues and others. So, what do we do? Work 24-7 in January 2014. Here are a few suggestions.

Contact Senators Menendez and Corker, frequently. They are the Chairman and Ranking Republican on the Senate Foreign Relations Committee, respectively. They control what happens. Urge them to move the CRPD out of committee quickly.

Use personal messages. Senators are probably tired of receiving 100s or more of the same message. 

Volume of contacts continues to be critical. Tell personal stories or concerns. They will stand out. Senators may use them in floor statements and debates.

If you are a person from a state represented on the Senate Foreign Relations Committee, contact your Senator and let him or her know and urge bipartisan cooperation. Ask your Senator to make a special effort to reach to a colleague on the committee from the other party and together work to help Senators Menendez and Corker to find a way to a resolution on the CRPD on which Democrats and Republicans can agree.

Ask questions in messages. These questions will get you answers.

Emphasize in your messages that solutions related to concerns have been identified. Strength of words and clarity of meaning are the only matters left to negotiate. Senators willing to operate in good faith can sort these out.

January 2014 is a key month for us. Please do all you can to make ratification of the CRPD happen. Each of us has to make this 31-day push.

Thank you.
Common Grounder


Saturday, December 21, 2013

Senator Corker and the CRPD



When you watch someone for four plus hours in two hearings, you can't help but develop a sense of who they are. I watched Senator Bob Corker, Ranking Republican on the Senate Foreign Relations Committee, during the committee hearings on the Convention on the Rights of Persons with Disabilities. He appeared to be struggling earnestly to find a way to support the CRPD. So my heart flipped when I learned of his current position -- unable to support ratification -- yesterday in a blog, Chatanoogan.com. Also, many questions raced through my head --
Why now?
What triggered it?
Why a blog?
Why, in conjunction with Senator Lamar Alexander, a fellow Senator from Tennessee, up for re-election in 2014, facing a primary challenge?

I worked for a former Senator, Bill Frist from Tennessee, a physician who became Senate Majority Leader. He does extensive humanitarian work in Africa and elsewhere now. He supports ratification of the CRPD. While working for him I developed a strong sense of the values and beliefs he held and practiced. I met thousands of people from the state who valued independence, opportunity, empowerment, and equality. They understood committing to participation by and inclusion of people with disabilities does not stop at borders. Later, after hurricane Katrina, I worked with these same great Tennesseans when they opened their homes, programs, and hearts to people in Louisiana, Mississippi, Alabama, and Texas impacted by Katrina.

My experiences with so many wonderful people in Tennessee will not let me accept that we have heard the final position from Senator Corker on the CRPD. I believe that if he and Senator Menendez talk, they can find a way to ratification. Please join me in contacting Senator Corker (202.224.3344; Twitter -@SenBobCorker, #SenBobCorker) and ask him to talk alone with Senator Menendez. These are men that understand the importance of the U.S. standing both here and abroad. These are men capable of finding the words to put in a resolution to get the CRPD ratified. Their staffs have tried and are to be commended, but now these two gentlemen must use their experience, skill, intellect, relationship, and good will to get the CRPD ratified in January 2014. They can do it if we show both of them our support and appreciation.

Thank you.
Common Grounder

Friday, December 20, 2013

The Senate January 2014 Schedule and the CRPD

According to Roll Call (a Capital Hill newspaper; http://blogs.rollcall.com/wgdb/senate-democrats-unveil-2014-schedule/) the Senate returns to D.C. on January 6, 2014 and stays in until January 23, 2014, takes 4 days in home states and returns to D.C. on January 27, 2014. Assuming the "first day" and "last day" in a week where a recess occurs is often a "travel day", we could be looking at 11 days in which work could be done with all Senators in DC. (Martin Luther King Day is January 20th, so that's another lost day).  Anther complication is a lot of Senate committee business occurs on Tuesdays and Thursdays. So, that means the Senate Foreign Relations Committee has 5 or 6 days available in January 2014 in which to hold a mark up. The later in January the committee holds a mark up on the CRPD, the fewer days available for the full Senate to vote on the CRPD.

By January 15, 2014 appropriators need to have authorized dollars to correspond to the miraculous, though modest, bipartisan budget deal reached this month. Otherwise, we face the possibility of another government shut down.

In February 2014 election campaigning for the entire House and one-third of the Senate begins in earnest. The little, sweet taste we had of bipartisanship probably will come to a screeching halt.

So, unless we advocate with great vigor for ratification of the CRPD by Martin Luther King Day (January 20th), we may lose our last real chance to see the CRPD ratified in 2014. If we face up to these calendar realities, maybe we can push to get the Senate to do what it must -- ratify the CRPD.

Thank you.
Common Grounder

Thursday, December 12, 2013

CRPD and the Fake Deaf Interpreter

At the memorial service for Nelson Mandela, with 100 world leaders very near him, a man with a solemn, fixed expression, made hand and arm gestures. Few of us knew he was making no sense. Those that did, desperately tried to alert authorities, but were unable to get the man removed from the podium area. This was an embarrassing situation. Most television networks picked the story up days later.  In this coverage often security risk and breech were highlighted. What about the thousands of people in South Africa who are deaf? In the U.S. we have captioning. I do not know whether the event was captioned by any or all those covering it here, but I do know our TV remotes have that "CC" button. From now on, I am going to check, every time I watch a major event.

If we ever needed a reason to ratify the CRPD, this unbelievable, blatant example of discrimination, is one of them. If discrimination like this can a occur on the world stage and no one did anything about it, just think what goes on in every day life when no cameras are around? If we ratify the CRPD we will have a seat at the table when others are deciding on standards for interpreters for the deaf. If not, we will be on the sidelines and perhaps no one will pay attention to or hear us.

The U.S. interpreter community has strong standards and protocols. We could share these with the world, so what happened at the Mandela event, never happens again. We owe it to the people who watched in silence and horror, who were prevented from experiencing the moving tributes to Nelson Mandela in real time, to ratify the CRPD. Please contact the Senate Foreign Relations Committee and tell them to mark up the CRPD resolution to advise and consent now.  

Chairman Menendez: 202.224.4744
Ranking Member Corker: 202.224.3344

Thank you.
Common Grounder

Tuesday, December 10, 2013

CRPD: What's the Reason for No Committee Action Yet?



President Obama and his appointees have been vigorously advocating for ratification of the Convention on the Rights of Persons with Disabilities (CRPD), especially in the last week. Senator Menendez, Chairman of the Senate Foreign Relations Committee, strongly supports ratification. Senator Corker, who has been neutral on ratification, has said we need clear reservations, understandings, and declarations (RUDs) to include with a resolution to ratify. Witnesses, selected by Senator Corker, in two hearings (11/5 and 11/21) provided sample RUDs that address outstanding concerns. Most of the background, needed for a Committee report, exists. Democrats AND Republicans, who support ratification, on the Senate Foreign Relations Committee, outnumber committee members who oppose it.  All that is needed is a simple majority vote in committee to get the Senate resolution to the Senate floor. The Democrats, who control the Senate and support ratification, have the power to move things along.  People who support ratification have let their feelings be known over and over again, just recall the need for overflow rooms needed for both hearings. And, it is not easy for many people with disabilities to physically get to a congressional office building for a hearing. The  House has no role in ratification of the CRPD, just the Senate. Members of Congress are waiting to see if a budget deal has been reached. One is needed by this Friday, December 13th. In January 2014 the Senate will have a lot of pressing matters that could easily divert its attention from the CRPD. So, the obvious question is -- what's the reason for the hold up? 

Thank you.
Common Grounder

Sunday, December 8, 2013

The CRPD and Miracles

The Senate breaks on December 20th for the holidays. A lot is riding on the work of Senator Patty Murray and Congressman Paul Ryan, the chairs of their respective budget committees, to reach a bipartisan budget deal. If they don't, we face another potential government shutdown. While waiting to see if a shutdown can be averted, does the Senate Foreign Relations Committee have the will to hand us a gift -- passage of a resolution to ratify the CRPD? Sometimes miracles can happen.

In 1988 the House and Senate, on a bipartisan basis, drafted, then passed and secured an appropriation, for the first assistive technology legislation in one week in August. Where there is will, cooperation, compelling facts, and limitless payoffs good things can and do happen.

With the death of Nelson Mandela we have the opportunity to reflect on what he stood for and strove to achieve -- equality, opportunity, fairness, reconciliation, and empowerment. Ratification of the CRPD, or at least its passage out of the Senate Foreign Rleations Committee, would be one way to honor his legacy.

The year 2014, a new year with new priorities, will expose those of us seeking ratification of the CRPD to new, compelling competitors for Senators' attention. We need to make one more push in the next five days to see if we can pull off a miracle. We know what we need to do, so let's do it.

Thank you.
Common Grounder

Wednesday, December 4, 2013

CRPD Ratification: If Not Now, When?

Those of us in the disability rights community know we must create the right time to make something happen that is important to us. We know when we create momentum magical things happen.

We are fast approaching the holiday season. Everyone, including us, is focused on things other than the CRPD. But, if we care about disability rights and a future with expanding opportunities to help and learn from others with disabilities around the world, we must spend 5 minutes to let Senators Menendez and Corker know we expect a mark up on the CRPD and a full Senate vote before the Senate recesses for the holidays.

In January 2014 the Senate will once again be consumed by budget and debt ceiling issues, and another possible government shutdown. We all remember how October 2013 was a month lost for us when these issues consumed lawmakers. In addition, in January 2014 the campaigning will begin for the fall elections -- all House members face elections and one third of Senators. What is left in December 2013 is a narrow window to become a priority and succeed in reaching ratification. That means 5 minutes a day each of us needs to communicate with Senators and say this -- Ratification of the CRPD resolution must happen now. If not, when?

Thank you.
Common Grounder

Saturday, November 23, 2013

Ratification of the CRPD Is within Our Reach


Curtis Bradley, a legal scholar from Duke University, handed us a gift, in his testimony on the Convention on the Rights of Persons with Disabilities (CRPD) before the Senate Foreign Relations Committee on November 21, 2013. I urge everyone to read it. It is not that long, eight pages, and it is very understandable.

His gift, suggested text for a reservation pertaining to sovereignty and protecting the balance of power distributed between federal and state governments as spelled out in the Constitution. He contends his suggestion is stronger and clearer than the reservation on federalism that was included in the 2012 Senate resolution to advise and consent on the CRPD, which failed to pass by five votes on December 4th.

2012 reservation on federalism

(1)   This Convention shall be implemented by the Federal Government of the United States of America to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the obligations of the United States of America under the Convention are limited to the Federal Government’s taking measures appropriate to the Federal system, which may include enforcement action against state and local actions that are inconsistent with the Constitution, the Americans with Disabilities Act, or other Federal laws, with the ultimate objective of fully implementing the Convention.

Bradley offers in his written testimony – “The federalism reservation (above) refers vaguely to ‘measures appropriate to the Federal system,’ but that might include measures allowed under Missouri v. Holland, and the reservation specifically states that the federal government can take enforcement measures against state and local actions that are inconsistent with 'other Federal laws,' which might include laws that Congress enacts in the future under the authority conferred by Missouri v. Holland.”

Bradley’s point addresses three issues raised by opponents of the CRPD: (1) the CRPD immediately undoing state laws, (2) future Congresses using a treaty to undo state laws, and (3) the impact of the Bond case pending before the Supreme Court.

Bradley’s suggested reservation would provide fixes for these concerns.

Bradley’s suggested text on federalism

The Federal government has substantial authority to regulate issues relating to the rights of persons with disabilities, and it has exercised this authority in connection with a number of important statutes, including the Americans with Disabilities Act. The Federal government’s authority is not unlimited, however, and some matters that relate to the Convention would typically be addressed by state and local law. The United States expects that the combination of existing Federal law and state and local laws will be sufficient to meet or exceed the obligations of the United States under the Convention as ratified by the United States. Because the United States does not intend to alter the existing scope of Federal authority, it is not assuming obligations under this Convention that would exceed the constitutional authority that the Federal government would have in the absence of the Convention, notwithstanding Article 4(5) of the Convention. Furthermore, nothing in the Convention shall be considered as conferring on the Congress of the United States the authority to enact legislation that would fall outside of the authority that it would otherwise have in the absence of the Convention, or as limiting the powers of the several states of the Federal Union with respect to any matters recognized under the United States Constitution as being within the reserved powers of the several states.

Bradley’s proposed text would not only keep the CRPD from being a legal argument for expanding federal power to areas reserved by the Constitution for the states, it would preserve the status quo unless a state legislature or Congress changes existing law – changes either is allowed to make under the Constitution. In plain English this means parents’ rights to home school their children and access to health services of any kind in each and any state are what they are and would not be changed by ratification of the CRPD.

Adoption of Bradley’s text means we would not need separate reservations, understandings, or declarations (RUDs) pertaining to best interests of the child (Article 7 in the CRPD) or health care (Article 25). And, we would not need to wait for a Supreme Court decision in Bond and its potential effect on Missouri v. Holland. Bottom line – with Bradley’s reservation we take care of tough issues that divide us.

In his testimony Bradley offers other fixes as well. Again, I urge everyone to read his full testimony. We are so close. Embracing Bradley’s suggestions will save us time, present us with credible solutions, and give us the opportunity to do the right thing before the holidays so we can enjoy them. After you read Bradley’s testimony, if you agree with me, let the members of the Foreign Relations Committee know how you feel.

Happy Thanksgiving.
Common Grounder

Saturday, November 16, 2013

The CRPD and Timing

Gradually in some cases, but over all, people are seeing the power and value in ratifying the Convention on the Rights of Persons with Disabilities (CRPD). Fears are being set aside or at least reduced, and the meaning of ratification of the CRPD is more widely understood. If all sides, in good faith, work to reach agreement on what we need to say about three things -- U.S. sovereignty, the best interests of the child, and access to health care -- all other reservations, understandings, and declarations (RUDs) from the resolution to ratify the CRPD that were approved last December in the Senate Foreign Relations Committee (but were defeated by the full Senate) could be used again. To give you a frame reference  -- there were three reservations, eight understandings, and two declarations in the CRPD resolution last year.  So that means that much of the work is done, because on nine of the 12 RUDs there is no disagreement.

This means that the Senate Foreign Relations Committee has a manageable number of things to do and much of what they put in the report and resolution on the CRPD last year can be used again. We should use the time we have now wisely and efficiently.

I urge everyone to do what needs to be done -- look at text in other treaties, we have ratified, related to protecting U.S. sovereignty, it can be used in the new CRPD resolution. Talk to parents, who home school, about how to ensure their rights to home school are protected. And finally, look at the text of RUDs of other countries, which have ratified the CRPD, to see what it says about access to health care. We can find consensus if we take these actions.

We are so close. Let's work together to make ratification of the CRPD happen.

Thank you.
Common Grounder

Monday, November 11, 2013

Veterans' Day and the CRPD

I lost a brother, John, in Vietnam. He was 22. The U.S. has a long history of sending brave young people to restore or preserve the freedom of others. We recognize we are part of a world community. We believe in the principles of freedom, liberty, independence, and equal opportunity. We know when these principles are espoused and celebrated the world is a better place. We know the difference between saying something and doing something. It is no wonder that 20 veterans organizations support the ratification of the Convention on the Rights of Persons with Disabilities (CRPD). To them these principles are tangible and know no boundaries. To them, it is unpatriotic to say the Americans with Disabilities Act is all we need, not the CRPD.

We lose nothing if we ratify the CRPD. However, we gain a great deal. Our friends and allies will breathe a sigh of relief. Our detractors will know we are fully engaged in the business of promoting disability rights everywhere. Our credibility, commitment, and energy will be on display. There will be no doubt about where we stand and what our young military fight for.

For those who oppose the CRPD, please have the willingness to consider and share with those who support the CRPD, words about sovereignty, health care, and parents rights that eliminate your concerns. If you do then we can return to the longstanding bipartisan tradition that has been part of disability policy in the U.S. We can ratify the CRPD with well over 67 votes in the Senate. Vets and many other people are praying and watching to see that vote happen.

Thank you.
Common Grounder

Saturday, November 9, 2013

We Can Meet the Purpose and Effect of the CRPD

Opponents of ratification put forth two arguments that do not hold up. First, they say if we are not committed to complying with everything literally in the CRPD, U.S. ratification is meaningless and empty. Second, they say by allowing reservations, understandings, and declarations (RUDs) to accompany ratification of the CRPD, we violate the purpose and effect of the CRPD, which would be illegal. These two arguments are related, of course. The opponents want to stop and defeat ratification of the CRPD. However, these arguments defy logic and reflect a fundamental misunderstanding of how treaties are constructed and how countries view the ratification process.

There are three types of articles in the CRPD. The first several articles in the CRPD express the general framework of the treaty. That is the CRPD is a non-discrimination treaty related to disabilities. That means nations, which elect to sign and ratify it, promise not to discriminate against people with disabilities. The next group of articles address specific contexts or special groups; such things as -- education, employment, women, children, technology, political participation, and many others. These lay out the substantive parameters or scope of what is covered in the CRPD. They also lay out the limits on the coverage expected. The last group of articles deal with accountability and the need for nations to help each other meet treaty obligations.  So, it is important to consider the whole treaty, not just pieces of it or certain words, to make a point, and possibly, misinform or alarm people.

Many countries included RUDs with their ratification to explain how they will achieve the purpose and effect of the CRPD, not to avoid or violate its provisions. That is what the U.S. Senate will do, as it did last December. 

What we need to do now, as Senators Corker and McCain urged in the November 5th hearing, is sit down and draft RUDs together, which address outstanding concerns. We are almost there. Our Constitution, the Americans with Disabilities Act, the Individuals with Disabilities Education Act, the Rehabilitation Act and other disability-related laws will strongly, clearly, and unequivocally achieve the purpose and effect of the CRPD. People in good faith can resolve the few outstanding issues.

Thank you.
Common Grounder

Friday, November 8, 2013

The CRPD and Irony




Opponents of ratification of the Convention on the Rights of Persons with Disabilities (CRPD or treaty) charge that those of us who support ratification ignore the substance of their arguments. Let’s look at what opponents say about sovereignty.

Any remaining state sovereignty on the issue of disability law will be entirely eliminated by the ratification of this treaty. The rule of international law is that the nation-state that ratifies the treaty has the obligation to ensure compliance. This gives Congress total authority to legislate on all matters regarding disability law—a power that is substantially limited today. Article 4(5) makes this explicit. [Point #1, http://www.hslda.org/docs/news/2012/201205250.asp]
In order to address the concern about sovereignty the Senate Foreign Relations Committee included this text in its resolution to advise and consent to the ratification of the CRPD last December (the resolution failed to pass in the full Senate then):
(a) RESERVATIONS.—The advice and consent of the Senate to the ratification of the Convention is subject to the following reservations, which shall be included in the instrument of ratification:
(1) This Convention shall be implemented by the Federal Government of the United States of America to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the obligations of the United States of America under the Convention are limited to the Federal Government’s taking measures appropriate to the Federal system, which may include enforcement action against state and local actions that are inconsistent with the Constitution, the Americans with Disabilities Act, or other Federal laws, with the ultimate objective of fully implementing the Convention. [Treaty Doc 112-7, VIII (a)(1)]

The Constitution lays out what the federal government has control over and what States have control over. The reservation above recognizes and upholds the division of responsibility and authority between federal and state governments. So through this reservation we preserve the division of power contained in our Constitution. Through this reservation we are saying our existing structure, division of authority that exists now, will allow us to comply with the CRPD. State laws pertaining to disability will not be undone. Federal law pertaining to disability will not be undone. This includes all laws that protect parents’ rights to make decisions about their children with disabilities.

In addition, the Committee resolution in the 8th understanding complements the reservation above:

(8) The United States of America understands that, for the United States of America, the term or principle of the ‘‘best interests of the child’’ as used in Article 7(2), will be applied and interpreted to be coextensive with its application and interpretation under United States law. Consistent with this understanding, nothing in Article 7 requires a change to existing United States law. [Treaty Doc 112-7, VIII (b)(8)]

In the U.S. the best interests of the child are in the hands of parents. In limited circumstances where a state court determines that a child has been abused, neglected, abandoned, or abducted unlawfully according to state law the state court can remove a child from its parent(s) and make decisions for the child. This never happens in situations that deal only with educational matters.

So, if the CRPD is ratified this fall, all the rights parents have will continue, unless altered by a future state or federal law. The Supreme Court and lower federal courts consistently have recognized that reservations and understandings that accompany a treaty are the basis for how things will work legally.

You would think that the opposition to ratification would be relieved and satisfied with what was included in the December resolution, and help us to proceed to a new Senate vote now. Not so. In fact Parental Rights [www.parentalrights.org], affiliated with the Home School Legal Defense Fund, is pushing for an amendment to the Constitution on parental rights.

The Proposed Parental Rights Amendment to the U.S. Constitution
SECTION 1
The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.
SECTION 2
The parental right to direct education includes the right to choose public, private, religious, or home schools, and the right to make reasonable choices within public schools for one's child.
SECTION 3
Neither the United States nor any State shall infringe these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.
SECTION 4
This article shall not be construed to apply to a parental action or decision that would end life.
SECTION 5
No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.

Talk about states rights related to children. They would be wiped off the map! Although, since 3/4th of state legislatures would need to approve the amendment before it would become a Constitutional amendment, it could take a long time. And, since the language in the proposed amendment is very broad, if it were voted into effect, there would probably be a ton of litigation to clarify things. Most likely, its very Constitutionality would be challenged. Do home schooling parents need these legal headaches?

Putting aside the irony of declaring that ratification of the CRPD would undo states rights on the one hand, while calling for a constitutional amendment that would undo states rights on the other hand, why not sit down and talk about text that takes care of parents’ concerns as part of the ratification of the CRPD? Doing so would be a lot faster and not lead to so many legal challenges.

Thank you.
Common Grounder

Wednesday, October 30, 2013

Statistics and the CRPD




Some with strong objections to of the ratification of Convention on the Rights of Persons with Disabilities (CRPD) predict dire consequences if ratification occurs. Here are three examples:

  • Article 7, the Best Interests of the Child (see an earlier blog post: http://www.wecandothisifwetry.blogspot.com/2013_08_11_archive.html), will take away parents’ rights to home school their children.

  • Article 18, which requires the registration of children with disabilities, will result in intrusive, governmental tracking and control.

  • Article 25, which requires that persons with disabilities have access to health services, including reproductive health services, to the extent that people without disabilities do, will create new abortion rights (see earlier blog post: http://www.wecandothisifwetry.blogspot.com/2013/08/0-false-18-pt-18-pt-0-0-false-false_27.html).

If these dire consequences are so likely, following ratification, how have they affected ratification prospects in other countries? Let’s consider three questions. Of other countries, which have ratified the CRPD –

  • How many permit home schooling?  

  • How many register children as a matter of national policy?

  • How many prohibit abortion?

I would assume that the number of countries that permit home schooling and ratified the CRPD would be few. This was not the case. Of the 133 countries, which have ratified the CRPD, 47 of these countries permit home schooling. Another seven countries, which have not made home schooling legal, but allow parents to do it, have also ratified the CRPD. These 54 countries do not seem concerned about Article 7 of the CRPD. What do they know that we don’t?

We have two forms of registry in the U.S. Every child’s birth must be recorded. And, under the Individuals with Disabilities Education Act, children participating in early intervention programs (birth through 2) and other educational programs are registered.  According to UNICEF, sixty-one of the 133 countries, which have ratified the CRPD, register the births of more than 75 percent of children under 5 years of age in urban areas. Many countries register such births in rural areas, but the number is lower. These countries do not seem concerned about Article 18 of the CRPD. What do they know that we don’t?

Finally, the number of countries, which have ratified the CRPD and ban abortion, is even higher. The number is 66. These countries do not seem concerned about Article 25 of the CRPD. What do they know that we don’t?

I would hope we could find a way to resolve concerns of opponents of the CRPD on these three issues. If so many other countries have overcome concerns, we certainly can.

Thank you.
Common Grounder




Wednesday, October 23, 2013

Scare Tactics and the CRPD


When I began writing blog posts on August 9, 2013, I was guided by one assumption. People that supported ratification of the Convention on the Rights of Persons with Disabilities (CRPD) and those who did not were intelligent, thoughtful people. I thought if I outlined differences in a fair, honest, and accurate way, that some people on both sides would read what I wrote, and then sit down and draft clarifications together on how the CRPD would work in the U.S. They would offer their consensus-based recommendations to all members of the Senate Foreign Relations Committee. Their recommendations would be voted on and passed. And as a result, the CRPD would be ratified.

I am not naive. I know doing what I just described would not be easy or quick. But, I believed it could be done if everyone operated in good faith. Why? I spent the better part of 30 years negotiating language – that became law – related to disability rights. In every case we overcame differences and crafted legislation, like the Americans with Disabilities Act, which became models for the rest of the world.  I saw it happen over and over again.

The CRPD is a non-discrimination treaty. It is family friendly. It is progressive. It would work with our Constitution and laws. It would not alter the balance between federal and state governments. Some, in the anti-CRPD corner, twist and turn or omit information so the CRPD is equivalent to an imminent nuclear threat, especially to homeschoolers. An even bigger threat is that some homeschoolers, people engaged in preparing young minds for the future, believe what the anti-CRPD forces are spreading.

Here is a link to a video I watched this afternoon -- http://www.youtube.com/watch?v=Pe38o_ftOfI. It was the catalyst for this post. Please, if you are a homeschooler, read my posts. I will be glad to send them to you as a PDF file. Share them with your friends. My email address is AmDreamBelongstoEveryone@comcast.net.  I would like to hear from you and hear about your family.

I have cerebral palsy, the result of a birth injury. My Mom was the guiding light and force in my life. She made sure I received a good education. In my professional life I have witnessed the wisdom and power of parents, who played and continue to play a central role in shaping U.S. disability rights policy. Please consider joining with those of us who support ratification of the CRPD, so it will become what it could and should be. And short of that, keep an open mind, ask tough questions, demand answers, then make up your mind on the CRPD. But most of all don’t let anyone scare you.

Thank you.
Common Grounder

Friday, October 18, 2013

Basic Civics and the CRPD

If you are old enough to remember VHS, there was a video called, "I Am Only a Bill". It was a civic lesson on how a bill becomes a law. In fact, just last week CNN featured it during the government shutdown. It is a straightforward and candid little video. It points out that it is not easy to go from an idea to a law. Why do I bring this up? The people opposed to the CRPD are concerned that even if the ratification resolution that comes out of the Senate has reservations, understandings, and declarations that address their issues in a way they like, that future Senates could undo what they like.  Well, that is true, but the same could be said for anything that the Senate passes.

The House of Representatives does not deal with treaties.

Here's the process that would be required to change a treaty that has already been ratified.

1. A Senator or Senators would draft a resolution to change the treaty. It could be their idea, the President could suggest it, or the Supreme Court could have rendered a decision that said part of a ratified treaty was unconstitutional.
2. The new resolution idea would be referred to the Senate Foreign Relations Committee. The committee would hold a hearing or hearings. The resolution may be handled by a subcommittee.
3. If a resolution is handled by a subcommittee, after hearings, the subcommittee would hold a mark up, where amendments to the resolution could be offered.
4. If a majority of the subcommittee votes for the  amended resolution, it would then be considered by the full Senate Committee on Foreign Relations, which could amend it further.
5. The committee would write a report on the treaty containing the treaty, the resolution as amended, and testimony.
6. If  a majority of the full committee voted for it, the resolution would be put on the Senate calendar. Usually resolutions to ratify a treaty or amend a ratified treaty are not put on the Senate calendar until or unless the Senate Majority Leader is assured it would pass by the required minimum of 67 votes.
7. The President may elect to sign or not sign the resolution to ratify the Senate sends him or her.

The process I just described can take a very long time and in fact a second swipe at a treaty already ratified may NEVER happen. Therefore, it makes sense, for those who object to certain things in a treaty being considered for the first time, to work with others to develop reservations, understandings, and declarations that address their concerns.

Thank you.

Common Grounder

Saturday, October 12, 2013

Do Reservations, Understandings, and Declarations in a Treaty Have Legal Weight?



One of the things, separating supporters of the Convention on the Rights of Persons with Disabilities (CRPD) from some of those who oppose it, is the different value each side puts on reservations, understandings, and declarations (RUDs). RUDs are attachments put on an international treaty, like the CRPD, that lay out how a treaty will be interpreted under the Constitution and U.S. laws, once a treaty is ratified. Supporters of the CRPD see RUDs has having legal weight. RUDs mean something. Some opponents of the CRPD see RUDs as of questionable value. Recent court decisions, although addressing multiple, complex issues have upheld the legal strength of RUDs.

Three have been brought to my attention by legal experts:  One Supreme Court case, Sosa v. Alverez-Machain (542 U.S. 692 (2004)) and two federal appellate court cases, Auguste v. Ridge (395 F. 3d 123 (2005)) and Beazley v. Johnson (242 F. 3d 248 (2001)). In these cases the courts rendered decisions, involving human rights treaties the U.S. has ratified (United Nations Convention against Torture, International Covenant on Civil and Political Rights). The courts held that specific RUDs in these treaties had legal value and affirmed the legal nature of if and/or how the U.S. does or does not need to comply with a particular part of a treaty. Legal scholar, Jack Goldsmith, in 2005 wrote that developed countries like the U.S. and other countries, such as those which make up the European Union, include RUDs in their ratification of a treaty. They do so because they take ratification of a treaty very seriously. They want to be very clear about what they will and will not comply with in a treaty. They want to make clear how they will and how they will not comply with a treaty. Goldsmith points out that many countries, which do not have a good human rights record, ratify treaties without adding RUDs.

What are the distinctions among reservations, understandings, and declarations? Well, although there is broad agreement in the federal courts that RUDs have legal clout, the definitions of these three terms in the media are muddy. Some written statements suggest that “reservations” have a lot of legal clout, “understandings” have medium clout, and “declarations” have the least clout. Sometimes the statements are circular; for example, use the word “understanding” in a definition of the term “reservation”.

Let's sort things out. RUDs should be distinguished by their purpose.  A “reservation” deals with potential U.S. actions. A reservation is a clear statement that the U.S. reserves the right not to be bound by a specific aspect of a treaty. An “understanding” addresses how the U.S. potentially will act. An “understanding” is how the U.S. interprets a specific aspect of a treaty. A “declaration” is for the domestic audience, how a specific aspect of a treaty affects the potential actions of individuals.
Let’s take a look at one reservation, one understanding, and one declaration as explained in the Senate Report on the CRPD from December 2012. First a reservation on federalism (the division of power between federal and state governments as defined in the Constitution):

Article4(1) of the Convention states that the provisions of the Convention ‘‘shall extend to all parts of federal States without any limitations or exceptions.’’ Because certain provisions of the Convention concern matters traditionally governed by state law rather than federal law, and because in very limited instances some state and local standards are less vigorous than the Convention would require, a reservation is required to preserve the existing balance between federal and state jurisdiction over these matters.

In plain language this means the federal government will not take over authority that is reserved for state governments under the Constitution.

Now let’s look at an understanding on the best interests of the child:

The eighth understanding concerns the ‘‘best interests of the child’’ standard set forth in Article 7(2) of the Convention. It clarifies that the term or principle of the ‘‘best interests of the child’’ as used in Article 7(2), will be applied and interpreted to be coextensive with its application and interpretation under United States law, and that consistent with this understanding, nothing in Article 7 requires a change to existing United States law.

This understanding means that whatever laws we have at the federal and state levels that apply to parents’ rights pertaining to their children’s best interests remain in effect and will remain in effect unless we amend them.

Last, let’s look at a declaration that says the CRPD is not self-executing:
The first declaration states that the provisions of the Convention are not self-executing. This reflects the shared understanding of the committee and the executive branch that the provisions of the Treaty are not self-executing, are not directly enforceable in U.S. courts, and do not confer private rights of action enforceable in the United States.

This declaration means that no one can use the words in the CRPD to take action against someone in court.

My take is that RUDs are important and do make a difference. That is why I hope that supporters and opponents of the CRPD will sit down together to draft recommended RUDs for the Senate Foreign Relations Committee that address many of their differences. If the two sides do, the CRPD will be ratified.

Thank you.
Common Grounder






Saturday, October 5, 2013

A Parents’ Saga and the CRPD


Talking and reading about what separates those who support Senate ratification of the Convention on the Rights of Persons with Disabilities (CRPD) from those who do not is an interesting and sometimes a sad journey. Recently, I have developed a better understanding about why some parents, who home school their children, some of whom have disabilities, fear ratification of the CRPD. It involves the Romeike family from Germany.

This family was home schooling their children. They obtained visas and moved from Germany to Tennessee. They did so because it is illegal in Germany to home school children. When the family’s U.S. visas expired, it appealed to a U.S. immigration court. The court granted the family asylum; that is the right to stay in the U.S. The U.S. Department of Justice (DOJ) determined that the likely prosecution for home schooling their children, if the family returned to Germany, was not a legitimate basis for asylum in the U.S. The DOJ took the family back to court. The family has lost every round in court. Their lawyer, Michael Farris, founder of the Home School Legal Defense Association has asked the U.S. Supreme Court to hear the Romeike’s case. If the Supreme Court declines, the Romeike family will be deported. Here’s a link that contains a video that gives the family’s story: http://www.hslda.org/legal/cases/romeike.asp.

What’s the connection between the Romeike’s circumstance and the ratification of the CRPD? Some U.S. parents, who home school their children, believe that if the CRPD were ratified, that it would trump all current U.S. law, and strengthen the power of authorities to prohibit home schooling and to remove children from parents if the parents did not stop homeschooling.

As I explained in another blog post, “Best Interest of the Child”, what some of these parents fear, would not happen in the U.S. All states allow home schooling. States, not the federal government, have authority over educational and child protection policies. At the federal level, the Individuals with Disabilities Education Act gives parents powerful rights with regard to educational decisions that would affect their children with disabilities. And, in the Senate resolution on ratification of the CRPD that did not pass December 2012, there was clear language that said the CRPD would not or could not change things on these matters.

Yet, in spite of these facts parents remain fearful. Well, as I understand it, Attorney General Eric Holder has the power to grant the Romeike family asylum. If he did that perhaps the fears of parents who home school their children could be reduced. They may be willing to sit down with those of us, who support ratification, and talk about text that could be put in a new Senate resolution on the ratification of the CRPD that affirms parents’ rights strongly and clearly.

There are those in government who fear setting a precedent that would open the flood gates to thousands of home schooling families if asylum was granted to the Romeikes. I say, so? Ratification of the CRPD is important. We must remove barriers and eliminate fears. Both sides could have a thoughtful discussion of how to make ratification of the CRPD happen if this particular barrier went away.

How about if we send tweets to Eric Holder (@realericholder, #ericholder) asking for asylum for the Romeike family? How about if we send tweets to Secretary of State John Kerry (@StateDept (the ones Secretary Kerry sends have "_JK" at the end of the tweet), #StateDept) asking him to support asylum for the Romeike family? We have nothing to loose and, who knows, they may choose to do the right thing.

Thank you.
Common Grounder

Thursday, September 19, 2013

The Big Picture

Sometimes we need clarity. It is not easy to see the connection among an international treaty like the Convention on the Rights of Persons with Disabilities (CRPD), why the Senate should ratify it pronto, and us.  Well here's my take. We have the Americans with Disabilities Act. It is recognized by people with disabilities and their advocates everywhere as the gold standard on disability rights. People, local elected officials, and businesses want to be able to learn from us, to access our experience and expertise. Right now they can. A total of 133 countries (134 if you count the European Union) has ratified the CRPD. In these countries people with disabilities, through their organizations, are using the CRPD to push change. These organizations often depend in part on their national governments for funding. At some point these 133 + 1 governments may decide that these organizations may continue to receive money as long as they use it for expertise that comes from other countries that have RATIFIED the CRPD.

In the U.S. we are at a critical juncture. In good conscience can we say the U.S. stands for freedom and equality worldwide and yet not join other nations and ratify the CRPD? With ratification of the CRPD the doors around the world stay open to us and the tables where decisions are made have a seat marked U.S. If we don't ratify the CRPD the doors will slowly close, our seats will be taken by others, and our voice for freedom, dignity, equality, and respect will be heard less and less until it is not heard at all.

Any differences we have we can workout if we make a good faith effort.

Thank you.
Common Grounder

Monday, September 16, 2013

The Business Case for Ratification of the Convention on the Rights of Persons with Disabilities


Supporters of the ratification of the Convention on the Rights of Persons with Disabilities (CRPD) emphasize the great advantages that U.S. business would have overseas if ratification happens. Opponents of ratification say there is no connection. U.S. business will do just fine without ratification. As with so many things, the devil is in the details. Let’s look at some things that would happen if we were to ratify the CRPD.

First off, U.S. business would have a seat at the table when international standards are being set on all types of products that affect its bottom line. That would happen as soon as we ratify the CRPD. Other benefits may emerge over time. When potential international customers of U.S. products and services start putting CRPD stipulations in their requests for bids, and that will happen, U.S. business would be given a fair, and perhaps, a favored position.  This especially would be true in the area of assistive technology, where the U.S. is the most prolific and successful. When challenges emerge overseas on how to address accessibility issues, and that will happen, it will be easier for foreign governments of countries that have ratified the CRPD to request U.S. assistance without fear of negative political fallout. When U.S. business operating overseas encounters barriers for its employees or customers with disabilities, resolution or removal of barriers will occur more quickly and amicably.

Let’s drill down a bit. Since the enactment of the Americans with Disabilities Act in 1990, U.S. business has adopted a solid appreciation of the skill, expertise, and dependability of employees with disabilities. This appreciation has extended into all segments of our economy from the service sectors to all types of manufacturing. Hiring and retaining employees with disabilities has been accompanied by increased recognition of the need to be well versed in how to ensure basic accessibility and maximum productivity. A common sense approach to reasonable accommodation, which includes openness to diverse forms of assistive technology, has resulted in workplaces that are more user-friendly to employees with and without disabilities. Many foreign countries have not had the same wealth of experience. Thus, when those countries, with new mandates driven by the CRPD, are looking for answers they may well turn to U.S. business. A whole new technical assistance market for U.S. business may emerge.

A similar point could be made when we consider U.S. business’ experience with customers with disabilities. In the U.S. people with mobility impairments have access to scooters in many stores. Retailer websites are accessible to potential customers who cannot see. The hospitality industry provides rooms and activities that incorporate universal design – that is accessibility for all. Foreign retailers of all kinds may turn to their U.S. counterparts for tested solutions for expanding their markets to customers with disabilities. These disability-related exchanges between U.S. business and foreign markets may lead to the discovery of foreign approaches to things that could be marketed in the U.S.

These opportunities will come about because of the U.S. joining the international community committed to the CRPD –new markets for U.S. services and products overseas and new services and products for the U.S. market here. With an estimated one billion people with disabilities worldwide in need of accessibility, assistive technology, and products of daily living, I see a bright future for the U.S. business community if the U.S. ratifies of the CRPD.

Thank you.
Common Grounder