The best interests of the child language in Article 7 of the U.N. disability rights treaty, Convention on the Rights of Persons with Disabilities (CRPD), is one of the issues that separates some supporters and opponents of the CRPD.
Our Constitution says the Senate must advise and consent on treaties. Ratification has several steps. First, in the case of the CRPD, the State Department, working with other departments, did an analysis and determined that the CRPD was consistent with our Constitution and our laws and prepared a report for the President. The State Department also outlined reservations, understandings, and declarations, called RUDs, in areas or on issues where the U.S. should choose to be more specific or special in its interpretation of the CRPD. The President reviewed the report and sent a transmittal package, also called a ratification package, to the Senate (May 2012). Second, the Senate Committee on Foreign Relations reviewed the package, had a hearing (July 2012) and voted on the package. Third, since a majority of the Senate Foreign Relations Committee voted for it, the ratification package was put up for a vote by all Senators (December 2012). Both in the Committee on Foreign Relations and then when all Senators voted, amendments to the package were offered. Those that passed became part of the final ratification package.
At least 67 Senators must vote for a ratification package in order for a treaty to be ratified. The final vote on the CRPD fell five short of 67. With a new Congress being sworn in January 2013, there is a second opportunity for the CRPD ratification package to be considered, possibly amended, and voted on in the fall of 2013.
If supporters and opponents of CRPD reach a common understanding of what Article 7 does and does not mean, we will be one step closer to ratification this time around. It will help us all if we take the time to read the words in original documents – first, in the CRPD and second, in the ratification package.
Here’s exactly what Article 7 of the CRPD says:
Children with disabilities
1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.
Paragraph 2 of Article 7 is where strong views emerge. Many parents who homeschool their children with disabilities believe that if the CRPD is ratified, paragraph 2 will give the government, and some believe the U.N., the power to decide where and how their children are educated. Supporters of the CRPD do not believe that is what paragraph 2 means.
In the U.S. the best interests of the child is 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.
The ratification package the President sent to the Senate includes three reservations. One of the reservations deals with federalism, the division of authority between the federal and state governments.
Federalism. To the extent that state and local governments exercise jurisdiction over issues covered by the convention, U.S. obligations under the convention are limited to the U.S. government taking measures appropriate to the federal system, such as enforcement under the ADA, with the ultimate objective of full implementation of the convention.
So if the Senate ratifies the CRPD, state laws would not be impacted or need to be changed unless a state’s legislature decides to amend them.
After reading this blog post, if you still have concerns perhaps you should approach a bipartisan group of Senators about what could be stated in the final ratification package to give more detail about what “the best interests of the child” means.