Tuesday, September 2, 2014

CRPD and Senator Hatch

On July 10, 2013 Senator Hatch made a statement on the Senate floor that took a lot of us by surprise – he opposed ratification of the Convention on the Rights of Persons with Disabilities (CRPD). He has always been a stronger supporter for and an influencer of U.S. disability policy. He was one of the first Senators, if not the first, to have a standing committee of disability experts and advocates back home in Utah, led for a long time by Dr. Marvin Fifield, which advised him on disability policy. Senator Hatch had a staff member, Chris Lord, who was directly involved in much of the major disability legislation, including the Americans with Disabilities Act. Committee staffers, like me, saw Senator Hatch, as a smart man who could be counted on to find the words to resolve many legislative impasses. He was like Smith-Barney (an investment firm) that had as its tag line – “When Smith-Barney speaks everyone listens.”

Recently there has been pressure on Senator Hatch to join the pro-CRPD ratification team (http://www.sltrib.com/sltrib/opinion/58293709-82/treaty-disabilities-veterans-support.html.csp). This is for two reasons. First, he understands and has helped draft most disability law that is on the books. Second, as a legal expert, with extensive experience on the Senate Judiciary Committee, including as its Chairman in the past, he knows inside and out how our Constitution, laws, and system of government work.

Well, he’s given us another surprise. He had an op-ed piece in the Salt Lake Tribune on August 29, 2014 -- Disabilities treaty would put U.N. in control of U.S. (http://www.sltrib.com/sltrib/opinion/58348861-82/treaty-crpd-disabilities-nations.html.csp).

Senator Hatch says –

Actions speak louder than words. For more than 40 years, the United States has led the world in protecting the rights of persons with disabilities by enacting and implementing laws that set real standards and help real people. Countries around the world have adopted legislation modeled after American statutes such as the Americans with Disabilities Act. We should continue to lead by example.
I agree with that. Although, it will be increasingly difficult “to lead by example” going forward if we do not join the CRPD ratification club. One hundred and forty plus nations, which have ratified the CRPD, aren’t afraid of losing by joining together to promote disability rights.

Senator Hatch says –

Some advocates are urging… the United States to go down a different path by ratifying the U.N. Convention on the Rights of Persons with Disabilities, or CRPD. According to the U.N., nations that ratify the CRPD are legally bound to implement domestically the treaty’s "global legal standards" for the "civil, political, economic, social and cultural spheres." The CRPD creates a committee of "experts" to interpret the treaty and tell ratifying nations what they must do to implement its global standards.

Multiple federal departments analyzed the CRPD and U.S. laws and determined that U.S. laws, federal and state laws, are sufficient as they are. In essence, our current domestic laws allow us to meet the standards in the CRPD. This fact is outlined in excruciating detail in the report President Obama sent to the Senate Foreign Relations Committee in May, 2012.

As for the U.N. CRPD Committee, the CRPD resolution that was passed by the Senate Foreign Relations Committee on July 22, 2014 includes an understanding that flat out says “…does not consider conclusions, recommendations, or general comments issued by the Committee [the U.N. CRPD Committee]…to be legally binding on the United States in any manner.” You can’t get much clearer than that. Senator Barrasso, a Republican member of the Foreign Relations Committee, proposed this text, which was approved by the Committee.

So no new laws are required. No U.N. Committee is going to tell us what to do.

Senator Hatch says –

Ratifying the CRPD would be a mistake for three reasons. First, the cost to American sovereignty and self-government outweighs any benefit to Americans or American national interests. Ratified treaties are "the supreme law of the land" with the same legal status as federal statutes and the Constitution. Ratifying the CRPD would endorse an ongoing role for the U.N. in evaluating and telling us how to conduct virtually every area of American life.

What Senator Hatch doesn’t acknowledge is that the CRPD is mostly about outcomes such as – non-discrimination, freedom, choices, and access and opportunities available to people with disabilities that are available to people without disabilities. The CRPD leaves to the nations that ratify it the flexibility to determine how they will achieve outcomes. Our laws, the ones we have now, will allow us to achieve the outcomes spelled out in the CRPD. So you could say the CRPD would become the supreme law of the land with regard to outcomes, but our specific laws would be how we show we achieve the outcomes. It is not an either-or circumstance or an override or replacement circumstance as Senator Hatch suggests.

Senator Hatch says –

In addition, the CRPD’s global standards would apply to every level of government – federal, state, and local. This conflicts with the Constitution’s Tenth Amendment which delegates certain powers to the federal government and reserves the rest to the states. Washington already imposes too many mandates and obligations on the states; we should not invite the United Nations to join in.
The CRPD resolution voted out of the Senate Foreign Relations Committee on July 22, 2014, includes a reservation that recognizes and lays out how our federalism system would respond to the CRPD. Some authority is in the hand of states, some in the hands of the federal government. Ratifying the CRPD will not undo or alter this balance of authority. As Senator Hatch knows well, any change in this balance would require legislation that would need to make it through House and Senate committees, the two chambers of Congress, and then make it to the President’s desk. And even then it could be subject to legal challenges and review by the Supreme Court, which won’t look favorably on challenges to the balance of power as spelled out in the Constitution. So, the probability of something like Senator Hatch describes happening is less than .01 percent.

Later in his opinion piece Senator Hatch says –

Second, the CRPD’s flaws cannot be corrected by adding caveats or conditions but only by removing some provisions and fundamentally changing others. The U.S., however, cannot re-negotiate the treaty’s provisions. The resolution of approval sent to the Senate by the Foreign Relations Committee, however, does include a list of caveats or conditions. These say, in effect, that the U.S. will define key terms such as "disability" the way we want, interpret the CRPD’s provisions the way we want, and accept only the obligations that we want. Why give the U.N. authority to say what our laws and practices should be if we plan to do what we want anyway?
Here too Senator Hatch fails to acknowledge the powerful and appropriate distinctions between outcomes and the means to achieve them. At the U.N. in the debate on how or if to define the term disability, there were hours of discussion about the value and need to allow nations to define disability through their laws. Here, as much as anywhere else, the U.N. understood the need to give nations flexibility.

Senator Hatch says –
Third, U.S. ratification is not necessary for continued U.S. leadership. In the two years that the CRPD has been before the Senate, 34 nations around the world have ratified it. Treaty supporters say that the treaty is modeled after the ADA and that nations will need help to implement it. The United States enacted the ADA in 1990 and revised it in 2008, years before the CRPD was sent to the Senate. The U.S. Agency for International Development has actively implemented development programs to help people with disabilities around the world for nearly two decades. We have been leading by example and helping other nations develop and implement sound disability policy long before the CRPD existed and will continue doing so without ratifying the treaty.

If the world were static, maybe this point made by Senator Hatch would have merit. But the world is not static. More and more countries have passed laws to facilitate their response to the CRPD. More and more committees are being formed to address specific issues. Just visit the U.N. Enabled website for confirmation (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=THA&Lang=EN). Disability NGOs are being given a greater say in how money is being spent by governments to improve the condition of persons with disabilities. If the U.S. ratifies the CRPD it will continue to be a player as Senator Hatch suggests. However, if it does not ratify the CRPD, its role and influence will diminish. Why? It comes down to perceived blatant arrogance. Other nations will think the U.S. doesn’t need to sign up, sign on, because the U.S. thinks it has all the answers. The U.S. thinks it can get others to listen, to do what it wants, because of potential financial rewards from U.S. coffers. It is in our national interest to make these perceptions go away.

As you look around the world and see the range of conflicts, do you think the U.S. has control? Influence? Perhaps if we were to ratify the CRPD we would discover we do have influence in new creative ways and bring about some peace.

I truly hope Senator Hatch finds his way to our side.

Thank you.
Common Grounder