July 22, 2014

The UN Disabilities Treaty is Fatally Flawed
and RUDs will not Protect Us

Michael Farris
HSLDA Founder and Chairman


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

The Romeike case proves that U.S. homeschoolers cannot trust reservations, understandings, and declarations ("RUDs") to protect our rights. (The Romeikes are German homeschoolers who claimed asylum in the U.S. After initially winning their asylum claim before an immigration judge, the Obama administration appealed and was successful in overturning the asylum order before granting them an administrative deferred status allowing them to stay in the U.S.)

Today, the Senate Foreign Relations Committee voted on ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD). Previous efforts to ratify this treaty were defeated, largely due to the opposition of American homeschooling families who were concerned that the CRPD’s “best interest of the child” standard would curtail their right to homeschool their children if their children were identified as having special needs.

To counter the opposition of homeschoolers, certain senators have crafted RUDs which purportedly will “cure” the problems present in the treaty.

Research on RUDs

In a comprehensive 2001 study for the Senate Foreign Relations Committee, the Congressional Research Service described RUDs as follows:

  • Reservations change U.S. obligations without necessarily changing the text, and they require the acceptance of the other party.
  • Understandings are interpretive statements that clarify or elaborate provisions but do not alter them.
  • Declarations are statements expressing the Senate’s position or opinion on matters relating to issues raised by the treaty rather than to specific provisions.

Whatever name a condition is given by the Senate, if a condition alters an international obligation under the treaty, the president is expected to transmit it to the other party. In recent years, the Senate on occasion has explicitly designated that some conditions were to be transmitted to the other party or parties and, in some cases, formally agreed to by them.

It has also designated that some conditions need not be formally communicated to the other party, that some conditions were binding on the President, and that some conditions expressed the intent of the Senate.1

Our faith in RUDs to protect our freedom is further eroded by a recent law review article from Professor Penny M. Venetis at the University of Alabama. She correctly explained that recognized sources of international law—such as the Vienna Convention on the Law of Treaties and the Restatement of the Law (Foreign Relations)—only recognize the validity of “reservations.” The practice of adding declarations and understandings is based on tradition alone and not on recognized sources of international law.2

It is undisputed that treaty language is at the pinnacle of international human rights law. Treaties make the law. RUDs, at most, may modify the law.

Furthermore, our own State Department has used international treaties ratified by the Senate as a way to pressure state and local governmental bodies to comply with these treaties—with no mention of any RUD language. On May 3, 2010, the State Department’s legal advisor, Harold Koh, sent a letter to every state and local human rights commission asking them “to highlight those actions your authorities are taking at the state and local level to protect and advance civil rights and to implement these important treaties.”3 No mention was made of the RUDs the Senate attached to these treaties. We can expect the same type of actions—this time regarding the UNCRPD—if it is ratified by the Senate.

HSLDA’s point is simple. In the Romeike family proceedings, the United States government rejected the idea that homeschooling is a protected right under international human rights law despite very clear language in treaties. If treaty language (a superior source of law) is not respected to protect the rights of homeschooling parents, then there is no way that RUDs designed to protect our rights (an inferior source of law) will be respected.

Article 26(3) of the Universal Declaration of Human Rights (UDHR) provides: “Parents have a prior right to choose the kind of education that shall be given to their children.”4

The aspirational articles of the UDHR were translated into the binding provisions of the two core human rights treaties of our era—the ICCPR5 (ratified by the Senate) and the ICESCR6 (not ratified by the Senate). Article 18(4) of the ICCPR pledges that state parties will “have respect for the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions.” Article 13(3) of the ICESCR both repeats this theme, and expands upon it:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

These treaty provisions are about as strongly in favor of parental rights as anyone could reasonably desire, and the Senate actually ratified the ICCPR.7 But, the United States government rejected any duty to follow this language in the recent asylum case we pursued on behalf of the Romeike family. The Justice Department, the Sixth Circuit, and the Supreme Court all refused to follow these clear statements of human rights law. Instead, the Justice Department and the Sixth Circuit contended that ordinary German truancy statutes were controlling and trumped these broad international standards for protection of human rights.

If pro-parent language in an actual treaty is treated with disdain by U.S. courts, why in the world would anyone trust the weak substitute of language found in RUDs?

Do we dare to submit our God-given liberty to homeschool to a collusion of the U.S. government and the United Nations and be pacified by a second-rate source of legal “protection”? There is only one action that can assuredly stop the threat posed by the UN Convention on the Rights of Persons with Disabilities—the treaty must be defeated.

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Notes

1 Treaties And Other International Agreements: The Role Of The United States Senate: A Study Prepared For The Committee on Foreign Relations (The Congressional Research Service, January 2001), pp. 10-11, available online at http://www.gpo.gov/fdsys/pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf

2 Penny M. Venetis, Making Human Rights Treaty Law Actionable In The United States: The Case For Universal Implementing Legislation (Alabama Law Review, November 2011), available online at http://www.law.ua.edu/pubs/lrarticles/Volume%2063/Issue%201/3-Venetis.pdf

3 Letter From Legal Adviser Koh to State and Local Human Rights Commissions, U.S. Department of State (May 3, 2010) available online at http://www.state.gov/s/l/releases/223235.htm

4 Universal Declaration of Human Rights (1948) available online at http://www.un.org/en/documents/udhr/

5 International Covenant on Civil and Political Rights (1966) available online at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

6 International Covenant on Economic, Social and Cultural Rights (1966) available online at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

7 Germany is a party to both of these treaties, which was one of the relevant questions during the Romeike asylum proceedings.