Friday, 7 December 2012

US Senate Rejects Disability Convention

 There are already 126 States that have ratified the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. This important human rights treaty entered into force in 2008.
This week, the United States Senate rejected a motion to approve ratification of the treaty by a vote of 61 in favour and 38 opposed. Under the United States Constitution, the Senate must authorize ratification of international treaties by a two-thirds vote. This weeks initiative fell short  of the 66 required affirmative votes by 5.
The opposition to the Convention was led, predictably, by right-wing republican senators who are still pandering to the Tea Party types. There are some fine accounts of this in the Washington Post and the New York Times. These writers express far better than I can the outrage that we should all share about the Senate vote.
Erstwhile presidential candidate Rick Santorum mobilized opposition by focussing on the provision in the treaty that recognizes the primacy of the best interests of children when they are concerned. Apparently the Tea Party crowd fear that such a principle will threaten the right of parents to ‘home school’ their children, which is something that seems to be a peculiarly American obsession predicated on the perverse consequences that result when children are educated under the authority of the state.
There is nothing new here. Back in the 1950s, the Republican administration that took office in 1953 proclaimed its indifference to international human rights law. The Senate blocked ratification of the 1948 Genocide Convention. That Convention was not ratified until the late 1980s. Other important human rights treaties remain unratified by the United States, including the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination Against Women and the International Covenant on Economic, Social and Cultural Rights.
Students who have studied human rights law with me will know the importance that I attach to the right to equality and to non-discrimination. It is set out at the beginning of the Universal Declaration of Human Rights, in article 2: ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Disability is not listed as a prohibited ground of discrimination. In my recent research on the drafting history of the Universal Declaration of Human Rights, I did not find any evidence that disability was even considered at the time.
But this is what is so fascinating about the right to equality. Perhaps more than other rights, it evolves and develops as our collective understanding is enriched. Those who drafted article 2 of the Universal Declaration intended this. That is why the words ‘without distinction of any kind, such as…’ appear before the enumeration of prohibited grounds.
The most compelling evidence that disability belongs, by implication, in article 2, and that disability now sits very much at the centre of the right to equality, is found in the Convention and its widespread acceptance. In this respect, the rejection this week by the United States Senate is a bizarre anomaly. Under the circumstances, including clear indications that the majority of Americans support the Convention and its goals, this recent development can hardly threaten the claim that discrimination based upon disability is prohibited by international human rights law and more specifically by article 2 of the Universal Declaration.
The Senate vote this week is grotesquely inconsistent with the view that the United States communicates internationally about the right to equality, both in a symbolic sense – manifested in the election and the re-election of President Obama – and in the positions it takes in bodies like the United Nations. Here is a relevant excerpt from the report submitted by the United States to the United Nations Human Rights Council in 2010 as part of the Universal Periodic Review process:
III.2  Fairness and equality

29.    The United States has always been a multi-racial, multi-ethnic, multi-religious society. Although we have made great strides, work remains to meet our goal of ensuring equality before the law for all.  Thirty years ago, the idea of having an African-American president would not have seemed possible; today it is our reality.  Our Attorney General, the nation’s top law enforcement officer, is also African-American.  Three of the last four Secretaries of State have been women, and two of the last three have been African-American.  We have recently appointed our first Hispanic Supreme Court Justice, as well as several LGBT individuals to senior positions in the Executive Branch.  And while individual stories do not prove the absence of enduring challenges, they demonstrate the presence of possibilities.

30.    In 1947, W.E.B. DuBois testified before the UN General Assembly on the continued pervasive discrimination against African Americans in the United States.  In the ensuing decades the U.S. civil rights movement emerged as a quintessential example of citizens using principles of non-violence, law, protest, and public debate to hold their government accountable and to demand that it deliver on their right to equal and fair treatment.  The movement led to critical new laws prohibiting discrimination and seeking to ensure equal opportunity for all individuals. The progress in the decades since is a source of pride to our government and to our people. Indeed, our nationís struggle to banish the legacy of slavery and our long and continuing journey toward racial equality have become the central and emblematic narrative in our quest for a fair and just society that reflects the equality of all.

31.    The United States aspires to foster a society in which, as Dr. Martin Luther King, Jr. put it, the success of our children is determined by the ‘content of their character’. We are not satisfied with a situation where the unemployment rate for African Americans is 15.8%, for Hispanics 12.4%, and for whites 8.8%, as it was in February 2010.  We are not satisfied that a person with disabilities is only one fourth as likely to be employed as a person without disabilities.  We are not satisfied when fewer than half of African-American and Hispanic families own homes while three quarters of white families do.  We are not satisfied that whites are twice as likely as Native Americans to have a college degree.  The United States continues to address such disparities by working to ensure that equal opportunity is not only guaranteed in law but experienced in fact by all Americans.

32.    In addition to our continuing quest to achieve fairness and equality for racial and ethnic minorities across our society, we wish to call attention to the following groups and issues.

Fairness, equality, and persons with disabilities

33.    United States law and practice provide broad and effective protections against, and remedies for, disability-based discrimination.  The most notable of these is the Americans with Disabilities Act of 1990 (ADA), the first national civil rights legislation in the world to unequivocally prohibit discrimination against persons with disabilities, which was amended in 2008 to ensure broader protections.  The intent of these laws is to prohibit discrimination on the basis of disability and remove barriers to the full and equal inclusion of people with disabilities in U.S. society.  These laws cover areas of life including education, health care, transportation, housing, employment, technology, information and communication, the judicial system, and political participation.  To ensure implementation of these laws, a variety of technical assistance and remedies have been supported with federal funds.  For example, training has been provided to the public and private sectors on implementation of the ADA; parent training information centers empower families to understand and claim their rights; and federally funded centers for independent living support the empowerment of individuals with disabilities to live where and with whom they choose in their communities.  The Department of Justice and other federal departments and agencies have the authority to enforce these laws and, in this regard, receive complaints and utilize mediation and litigation as appropriate.  On July 30, 2009, the United States signed the UN Convention on the Rights of Persons with Disabilities and is pursuing the necessary steps toward ratification, which the Administration strongly supports. Upon the 20th anniversary of the ADA, President Obama further demonstrated the nation’s commitment to continued vigilance and improvement by announcing new regulations that increase accessibility in a variety of contexts and commit the federal government to hiring more persons with disabilities.  Although we recognize that discrimination and access problems persist, which we are actively striving to address, the substantive equality of persons with disabilities in the United States has improved enormously in the past few decades.,.

Fairness and equality in education

47.    The United States is committed to providing equal educational opportunities to all children, regardless of their individual circumstances, race, national origin, ethnicity, gender, or disability…

48.    Additionally, the Departments of Justice and Education enforce numerous laws, including the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Patsy T. Mink Equal Opportunity in Education Act of 1972 (Title IX), and the Rehabilitation Act of 1973, that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age with regard to education.  In this capacity, the Justice Department is a party to more than 200 court cases addressing equal opportunities for students, and is involved in numerous out-of-court investigations, many of which have led to settlement agreements.  The Department of Education investigates and resolves civil rights complaints filed by individuals, resolving 6,150 such complaints in the most recent fiscal year, and initiates compliance reviews where information suggests widespread discrimination.  The  Individuals with Disabilities Education Act (IDEA) requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs...

Senator John Kerry apparently said ‘we’ll be back soon’, with a renewed attempt to obtain the required votes in the Senate. The composition of the Senate will change in January in accordance with November’s rejection of the conservative Republican vision of America. But the fact that 38 Senators could reject such an initiative is yet another scary reminder of the bizarre ideas that seem to prevail among a significant section of the population in the United States and that the rest of the world finds so hard to understand.
Thanks to David Scheffer.

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