July 17, 2014

The U.N. Convention on the Rights of Persons with Disabilities:

A Danger to Homeschool Families: 15 Specific Problems

Michael Farris
HSLDA Founder and Chairman


Michael Farris, HSLDA Founder and Chairman and homeschooling father of 10
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Introduction

HSLDA strongly opposes ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) due to the threats it poses to homeschool freedom, parental rights, and U.S. sovereignty.

The CRPD was adopted by the UN General Assembly on December 13, 2006, and entered into force on May 3, 2008, after it received its 20th ratification. The Optional Protocol to the Convention went into force on the same day after it received its 10th ratification.

The CRPD was signed by President Obama on July 30, 2009, and transmitted to the Senate on May 18, 2012. It was approved by the Senate Foreign Relations Committee on July 26, 2012 by a vote of 13-6. The U.S. Senate rejected ratification of the CRPD by a 61-38 vote on December 4, 2012. The Foreign Relations Committee held additional hearings on the CRPD in 2013, and supporters are trying to have the full Senate ratify the CRPD in 2014.

The CRPD calls for numerous protections for people with disabilities. Many of these protections are already included in U.S. law as part of the Americans with Disabilities Act (ADA). However, the CRPD also includes numerous provisions drafted by the United Nations which would concern many U.S. citizens.

If ratified, the Convention on the Rights of Persons with Disabilities would become the supreme law of the land under the U.S. Constitution’s Supremacy Clause in Article VI. It would trump state laws and would be used as binding precedent by state and federal judges.

Since it is a treaty, the U.S. Constitution requires that it must be ratified by two-thirds of the U.S. senators present at the time of the vote, or 67 senators if all 100 U.S. senators were present.

The Senate Foreign Relations Committee approved the CRPD with several reservations, understandings, and declarations (“RUDs”) in the 112th Congress. HSLDA does not believe that these RUDs protect against the dangers posed by the CRPD, and we believe that even with them the CRPD remains a threat to homeschool freedom. Furthermore, the efficacy of RUDs is unsettled in American jurisprudence. A supplemental paper entitled On the Reservations, Understandings, and Declarations Accompanying the CRPD is available separately.

Fifteen Specific Problems with the Convention on the Rights of Persons with Disabilities

1. The “best interest of the child” standard in Article 7(2) provides courts and government agencies (rather than parents) the authority to decide what is best for children with disabilities. International legal scholar Geraldine Van Bueren (who helped to draft the UN Convention on the Rights of the Child, which contains an identical standard), admits that this standard “provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child.”

2. Article 23(4) implicates this “best interest of the child” standard in all cases involving the removal of children with disabilities from their parents’ care. Under current law in the United States, the government is authorized to decide what is best for children only if parents have been determined by a court to be “unfit,” or there is a dispute between two parents. The CRPD would give the government this presumption of power in all cases involving children with disabilities—removing the necessity of first proving that the parents have acted in a harmful manner. This dramatically increases the authority of government to remove children from their homes and to override parental decisions by doing away with the current high standard of protection for parents’ rights.

3. A parent’s prior right to direct the education of his or her child disappears under the CRPD. Article 24 on Education omits the right of parents “to choose the kind of education that shall be given to their children” found in the Universal Declaration of Human Rights (Art. 26(3)) and in the Individuals with Disabilities Education Act (IDEA). In law, what is excluded is often as important as what is included.

4. Article 23(3) demands that the national government “prevent concealment, abandonment, neglect and segregation” by “provid[ing] early and comprehensive information, services, and support to children.” This suggests a Scotland-like child-services program for disabled children from birth. (Scotland has enacted a program of appointing a government social worker for every child in the nation from birth as a means of complying with their international duties to “protect” children.) The provision of such “early and comprehensive” programs threatens the privacy of the home.

5. Article 18(2) provides that “Children with disabilities shall be registered immediately after birth.” This provision would be a treaty obligation of the national government, not the states. This would require that the federal government establish a nationwide database of all children with disabilities. Although the states could be made the agents of the federal government for this purpose, the data would be available and controlled ultimately by the federal government since under general treaty law the national government is responsible for compliance with all treaty obligations.

6. Domestic activity currently in the sphere of state power would be transferred to federal authority. Article 4(1)(e) would eliminate state sovereignty in the area of disability law by (1) demanding that all American law be conformed to the standards of the UN, and (2) making the federal government responsible to see to its implementation. In addition, Article 33(1) calls for a new national bureaucracy to ensure that all levels of government (i.e. state and local) comply with the convention.

7. This same article—Article 4(1)(e)—applies to “any person, organization or private enterprise.” This will involve the federal government (as a party to the Convention) in private lives to an unprecedented degree. Unless modified by a valid reservation, understanding, or declaration, the treaty would make every private homeowner (for example) responsible to not discriminate against persons with disabilities by failing to have wheelchair ramps and other accommodations in their own homes.

8. There is no specific definition of “disability.” For a convention covering “persons with disabilities,” this is a glaring and dangerous weakness. It is also a significant divergence from the Americans with Disabilities Act which provides at least a general definition of “disability.” Instead we are told that the definition of “disability” is an evolving concept. It is unwise to agree to protect all disabilities without a proper and clear definition.

9. Ratification would sanction an ongoing supervisory role by the UN in the governance of virtually all areas of American life. Articles 34-37 establish an oversight committee and mechanisms for reporting to that committee. Under the accepted principles of international law, such committees have the authority to officially interpret the meaning of the treaty. The arrangement would work much like a federal mandate on the states. The UN committee sets the mandates (via interpretation) and international law would hold that the United States is in violation of its legal obligations unless it carries out these mandates. While no one believes that agents of the UN would literally force the United States to comply, we should make our policy decisions on the assumption that the United States will comply with its legal obligations in good faith.

10. Articles 23 and 25 include language that establishes an obligation for the government to provide and fund abortions. Article 23 uses United Nations catchphrases to establish abortion rights for persons with disabilities. Sections 1 and 1-b provide, “States Parties shall take appropriate measures … so as to ensure that … (b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided.” This “right” to the “means necessary to enable them” to make “reproductive and family-planning” decisions has been used elsewhere to claim a right to abortion, as has the language regarding “sexual and reproductive health and population-based public health programmes” found in Article 25(a). In 2009 and 2010, then-Secretary of State Hillary Clinton asserted that this language includes the right to abortion services, a position with which treaty proponents at the 2012 Senate Committee hearing on CRPD did not disagree. Further, the obligation to take measures to ensure “the means necessary to enable them to exercise these rights” is an obvious requirement that the government provide publicly funded abortion services for those who cannot afford such procedures.

11. Ratification of the CRPD would mandate entitlements as “rights” for the first time in U.S. domestic law. Historically, the U.S. has been party to treaties promoting civil and political rights, but not social, cultural, and economic rights. Civil and political rights are called “negative rights” because these are things the government cannot do to us. But economic, social, and cultural rights are “positive rights”—things the government must do for us. Historically, the Soviet bloc advanced positive rights while the United States has supported only negative rights. This is a huge sea change in American foreign policy. We would, for the first time, embrace the old Soviet theory that the government has the legal obligation to furnish the needs and wants of the people.

12. Article 25 requires that the government “provide those health services needed by persons with disabilities specifically because of their disabilities.” On its face, this language appears to call on the government to fully fund all disability-related health care for persons with disabilities. Given the lack of a definition of disability in the treaty, and “including early identification and intervention,” this presents a literally unlimited financial burden on taxpayers.

13. Ratification of the CRPD would require the U.S. to pay to help poor nations implement the convention. Article 4(2) provides that “each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation,” to realize the rights of the Convention. This “framework of international cooperation” refers to a system of redistribution: wealthy nations must pay and poorer nations are able to receive until the Convention is realized everywhere.

14. Article 15’s prohibition of “degrading treatment or punishment” applies to all children, not just children with disabilities, and has been interpreted by the Committee on the Rights of the Child to outlaw all forms of corporal discipline, however mild.

15. Any reservations, understandings, and declarations adopted by the Senate could be rejected by either the U.N. committee or by U.S. courts if they find that our RUDs are contrary to the object and purpose of the treaty under Article 46 of the treaty.

Conclusion

HSLDA urges homeschoolers and all freedom-loving Americans to contact their U.S. senators and urge them to oppose this dangerous UN treaty.

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Notes

All references to CRPD are from the text of the CRPD located on the United Nations webpage.

More detailed information available at the Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities.

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