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We Can Do Better on Disability Rights

• November 30, 2012 • 12:39 PM

Opinion: A professor of disabled-rights law argues that U.S. Senate efforts to block ratification of a United Nations treaty confirming those rights is seriously wrong-headed.

This week, Sen. Harry Reid asked the Senate to take up ratification of the United Nations Convention on the Rights of People with Disabilities. President Obama signed the treaty in 2009, and the Senate must ratify it for the United States to be a party. The United States is a leader in disability rights. Our civil rights protections, including laws like the Americans with Disabilities Act and the Individuals with Disabilities Education Act, have been models for legislation all over the world, and have improved the lives of people with disabilities immensely. Even in a polarized and politicized world, disability has tended to cut across political lines; disability laws have sailed through Congress with high support on both sides of the aisle.

The U.N. treaty is the first ever human rights instrument that holistically and comprehensively addresses the human rights of people with disabilities. It recognizes “the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.”

So it would seem that it would be an easy road for the Senate to ratify a treaty that supports the rights of people with disabilities worldwide. Sadly, no. Some Republican senators, including Sen. Mike Lee and former Sen. Rick Santorum, oppose the treaty. Given that it takes 60 votes to move a bill to the floor and a two-thirds majority to ratify a treaty, it appears they will be successful in preventing ratification, at least for now.

The reasons they offer do not withstand serious scrutiny. Having been batted down on arguments that the treaty promoted abortion, these senators now cite concerns of parents who home-school their children, somehow suggesting that the treaty would interfere with these parental choices. This is wrong. There is a provision in the treaty that reads, “States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children,” and that “in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.”

The jump from this provision to purported limits on home schooling is based on misreading this language, and a complete misunderstanding of how international law works. Treaties like the U.N. Convention are not “self-executing” in the United States, which means the only way they are enforced is through our own laws. So Congress would need to pass a new law regulating home schooling, which is not even consistent with what the convention says. This is not going to happen, nor should it.

Senators cannot really be concerned that homeschooling, or any other parental right, would be limited by this treaty. At the end of the day, they really just dislike the United Nations and the role of international human-rights law. This is unfortunate. Doing disability-rights work in other countries, I see how much respect our laws have worldwide. The idea that people with disabilities can and should contribute to society, and that government can help enable this participation, is one of our best exports. But our status around the world is diminished when we have no role in this worldwide process for improving the lives of some of the world’s most marginalized citizens.

Whether we participate or not, the U.N. convention is improving the lives of people with disabilities around the world. If we were to engage, it would send a powerful signal, and in the process of thinking about how our own laws compare to treaty obligations, we could initiate important discussions about the effectiveness of what we are doing. We might even learn something. This should be cause for celebration, not baseless fears.

Despite hyperbolic claims, the U.S. controls its own sovereignty on this and other issues. This should be a moment for us to share and spread our values, but instead we are turning it into another example of how polarized and dysfunctional our government can be. Disability is the one minority group any of us could  join at any point. We can and should do better.

Michael Waterstone
Michael Waterstone is an associate dean and professor at Loyola Law School, Los Angeles, where he teaches disability rights law and other courses.

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