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,]
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 [], 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
The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.
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.
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.
This article shall not be construed to apply to a parental action or decision that would end life.
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

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