I represented a non-governmental organization at the United Nations from 2002 – 2006 during the negotiations of the text of the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD is a visionary document that involves a paradigm shift from a medical model of disability to a social/human rights-based model and, contrary to claims made by many advocates in the US disability community, is a significant step forward beyond the Americans with Disabilities Act. A US ratification of the CRPD with the Reservations, Understandings and Declarations (RUDs) approved by the Senate Committee on Foreign Relations would be a betrayal of what we international disability rights activists fought so hard to achieve during the negotiations of the text of the CRPD.
One of the proposed RUDs (Declaration #2) states that, “In view of the reservations to be included in the instrument of ratification, current United States law fulfills or exceeds the obligations of the Convention for the United States of America.” It is not true that US law fulfills or exceeds its obligations under the treaty.
For example, the CRPD is based on the general principles of non-discrimination and respect for individual autonomy, including the freedom to make one’s own decisions. The CRPD recognizes that a substituted decision-making model (where others can make decisions for a person with a disability or others can act in the best interest of the person) must be replaced by a supported decision-making model. Article 12 (on equal recognition before the law) recognizes that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” The right to legal capacity is indispensable for the exercise of all other human rights. Legal capacity includes the right to make one’s own decision and to consent to medical care. Article 12 is also visionary in that it requires governments to provide persons with disabilities access to the support they may require to exercise legal capacity and requires safeguards to ensure that such supports respect the rights, will and preferences of the person.
The CRPD Committee, the body of independent experts that monitors the implementation of the treaty, is made up of 18 independent international representatives elected by the UN member states that have ratified the CRPD. To date, 151 of the 193 UN member states have ratified the CRPD, not including the US. In a General Comment on Article 12, the CRPD Committee stated that, “Historically, persons with disabilities have been denied their right to legal capacity in many areas in a discriminatory manner under substituted decision-making regimes such as guardianship, conservatorship and mental health laws that permit forced treatment. . . . States parties must respect the legal capacity of persons with disabilities to make decisions at all times, including in crisis situations. . . . States parties must abolish policies and legislative provisions that allow or perpetrate forced treatment, as it is an ongoing violation found in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment.” The UN Special Rapporteur on Torture also underscored the right to freedom from forced psychiatric interventions, calling for an absolute ban and affirming that forced interventions constitute at least inhuman and degrading treatment and may amount to torture. Mental health laws in the US discriminate against persons with psychosocial/psychiatric disabilities by expressly permitting and condoning involuntary psychiatric interventions.
Another proposed RUD (Understanding #6) addresses the relationship between the US and the CRPD Committee stating that, “The United States does not consider conclusions, recommendations or general comments issued by the Committee as constituting customary international law.” This RUD restricts and redefines customary international law in the international human rights framework. It would not only affect the CRPD but it sets a disturbing precedent that would affect UN human rights treaties that may be ratified in the future.
Additionally, Article 25 guarantees persons with disabilities the right to the same range, quality and standard of health care as provided to others, including in the area of sexual and reproductive health. The CRPD does not specifically mention abortion, however abortion is legal under US law, so women with disabilities would have the same rights to abortion as other women do. Anti-abortion advocates on the US Senate Committee on Foreign Relations proposed an amendment stating that the phrase “sexual and reproductive health” does not include abortion and cannot “be interpreted to constitute support, endorsement, or promotion of abortion, and in no case should abortion be promoted as a method of family planning.” The Senate Committee on Foreign Relations rejected that amendment but compromised by included a RUD (Understanding #7) stating that, “Nothing in the Convention, including Article 25, addresses the provision of any particular health or procedure. Rather, the Convention requires that health programs and procedures and procedures are provided to individuals with disabilities on a nondiscriminatory basis.” Non-discrimination is a general principle of the entire treaty. From a women’s rights perspective, singling out Article 25 with regard to non-discrimination sets a disturbing precedent.
Much of the US disability community is now lobbying for ratification of the CRPD by the full Senate. US ratification with the proposed RUDs disrespects the aspirations of people with disabilities in the US and abroad and undermines the foundations of international human rights law. Maria Reina, one of the leading international disability rights activists involved in the negotiations of the text of the CRPD, summed it up nicely when she wrote, “It looks like the United States believes that the standards valid for everyone else ratifying the Convention do not apply to them. . . . I kindly ask our mates from the US, particularly those running the campaign, to slow down, and as we say in soccer, stop the ball and see the rest of the field. Any ratification is not a good ratification.” The values of the independent living movement should lead us to question our support for the current ratification process.
Links to websites with further information:
Text of the UN Convention on the Rights of Persons with Disabilities: http://www.un.org/disabilities/convention/conventionfull.shtml
Current version of the RUDs as proposed by the US Senate Committee on Foreign Relations as of July 28, 2014: https://dk-media.s3.amazonaws.com/AA/AG/chrusp-biz/downloads/290272/CRPD_marked_up_July_28.pdf
The CRPD Committee’s General Comment on Article 12 of the CRPD – 19 May 2014: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx
The Campaign to Repeal Mental Health Laws petition to ratify the UN Convention on the Rights of Persons with Disabilities (CRPD) without Reservations, Understandings or Declarations (RUDs): http://www.change.org/p/us-senate-ratify-the-un-convention-on-the-rights-of-persons-with-disabilities-without-reservations-understandings-or-declarations-ruds
June 2013 sign-on letter from the Center for the Human Rights of Users and Survivors of Psychiatry regarding the RUDs: https://dk-media.s3.amazonaws.com/AA/AG/chrusp-biz/downloads/282421/signonletterCRPDnoRUDs061113.pdf
Maria Reina’s November 13 2014 statement regarding the US ratification of the CRPD: http://repealmentalhealthlaws.org/?page_id=97
Submitted by Myra Kovary
Statewide Systems Advocate
Finger Lakes Independence Center
215 Fifth Street
Ithaca, NY 14850