20120517 CRPD Background | Disability | Treaty

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES BACKGROUND The Disabilities Convention is intended to improve protection around the

world for the rights of persons with disabilities. Americans with disabilities already enjoy these rights at home. However, U.S. citizens with disabilities, including our war veterans, frequently face barriers when they travel, conduct business, study, reside, or retire overseas. Because U.S. ratification would better position the United States to guide and encourage other countries to ratify and implement the Convention, it will help lead to greater protections, opportunities, and benefits for the millions of Americans with disabilities, including our wounded warriors, who currently face barriers abroad. In encouraging other countries to join and implement the Convention, we would also help level the playing field to the benefit of U.S. companies, who already meet high standards under U.S. domestic law. This would enhance the competitive edge for our companies whose operations have already met accessibility requirements. Encouraging improved disability standards abroad would also afford U.S. businesses increased opportunities to export innovative products and technologies (such as electronic wheelchairs and other mobility devices, as well as accessible computers and electronics), thereby potentially stimulating job creation at home. As the Disabilities Convention is animated by the principles underlying U.S. disabilities law, no new legislation would be required to implement it, if ratified with appropriate reservations, understandings, and declarations. Ratification of the Disabilities Convention by the United States would represent another step in the forty-plus years of domestic disability rights protection. As with existing landmark U.S. domestic disabilities legislation, the Disabilities Convention could represent a paradigmatic shift in the treatment of persons with disabilities abroad, anchored as it is in the overarching principles of inclusion, equality, and nondiscrimination that Americans already enjoy at home. Ratification would serve both to underscore the enduring U.S. commitment to disability rights and to enhance the ability of the United States to promote these rights overseas. Purpose and Principles of the Convention. Equality of treatment and nondiscrimination are the primary principles permeating both the Convention and U.S. domestic disability law. At its core, the Disabilities Convention seeks to ensure that persons with disabilities enjoy the same rights as everyone else and are able to lead their lives as do other individuals, if given the same opportunities. By requiring equal treatment and reasonable accommodation for persons with disabilities, the Convention is rooted in the principles of U.S. disability law drawn from its core components, including the Americans with Disabilities Act (ADA), Title V of the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA). As with the comprehensive network of U.S. federal disability law, the Convention expresses the principles and goals of inclusion, respect for human dignity and individual autonomy, accessibility, and equal enjoyment of rights -- including political participation, access to justice, freedom of 1

expression, respect for home and the family, education, access to employment and health care, an adequate standard of living, and freedom from torture and other cruel, inhuman or degrading treatment. Benefits of Ratification. Ratification would afford the American people several benefits. First, ratification would give the United States a platform from which to push for the adoption of the Convention’s standards in other countries, and to bring about wider accession and implementation globally. This in turn is likely to result in concrete improvements (such as fewer architectural barriers and accessible air travel) in those nations that bring their national laws into compliance, thus affording greater protections and benefits to the millions of U.S. citizens with disabilities who travel, conduct business, study, reside, or retire overseas, or wish to do so, including American veterans with disabilities. Second, in using ratification as a platform from which to promote U.S. disability accommodation standards globally, we would afford U.S. businesses, disability organizations, and other experts increased opportunities to guide overseas companies and foreign governments in the adoption of standards and technologies that enable implementation. Additionally, as the United States is positioned to assist other countries in bringing their laws into line with the Convention, U.S. companies that are legally required to abide by reasonable accommodation requirements would benefit from a more level playing field. As accessibility standards become more harmonized -- an objective that the United States can more credibly support if it becomes a party -- the competitive edge increases for U.S. companies that have already met accessibility requirements. Third, ratification would make the United States eligible to vote for members of -- and nominate a candidate to seek a seat on -- the nascent Disabilities Convention body, the Committee on the Rights of Persons with Disabilities. This would ensure that a U.S. disability law perspective guides the Committee’s work. Although the Committee serves in an advisory capacity only and would not have the power to create new international obligations, U.S. participation would help shape emergent disability laws in other countries. Fourth, ratification would enhance awareness in the United States of the rights and dignity of persons with disabilities and support U.S. disability rights organizations and leaders. Further, ratification would provide the United States with another platform from which to urge other countries to improve treatment of individuals with disabilities, including children with disabilities, whose plight is particularly neglected in many parts of the world. In developing countries, 90 percent of children with disabilities do not attend school. Moreover, women and girls with disabilities are often subject to deep discrimination. To promote the rights of such individuals overseas more effectively, as the world leader in domestic disability rights, the United States can use its ratification of the Convention as a vehicle to support higher standards elsewhere. The transformation which paved the way in the United States for children with disabilities to grow up with 2

their families, go to school, and live as part of society has simply not taken place in much of the rest of the world. Process of Ratification. As the Convention is animated by the principles and protections of the ADA and other U.S. domestic disability legislation, the United States would be able to ratify and implement the Convention pursuant to existing federal law, with a limited number of reservations, understandings and a declaration (RUDs). Most of these are very similar to RUDs made by the United States upon ratification of other treaties, including the International Covenant on Civil and Political Rights (ICCPR), the Convention for the Elimination of all Forms of Racial Discrimination (CERD) and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). Reservations.  Federalism. A federalism reservation, similar to RUDs taken in the ICCPR and the CERD, would ensure that the obligations undertaken by the United States upon ratification would be implemented in a manner consistent with the existing allocation of authority between the federal government and the 50 states. The federalism reservation would limit the obligations of the United States in areas covered by state and local government jurisdiction to measures appropriate to the federal system, with the ultimate objective of full implementation.  Non-Regulation of Certain Private Conduct. A second reservation, also very similar to reservations taken in the ICCPR and the CERD, would recognize that, although the Constitution and laws of the United States extensively govern significant areas of non-governmental activity, such as disability discrimination by public accommodations, transport carriers, communications networks, and employers with 15 or more employees, the Constitution and laws also recognize a zone of private activity that is not extensively governed by the United States. This reservation, therefore, would limit the treaty obligations undertaken by the United States with respect to regulating private conduct to be coextensive with the regulation of private conduct under the Constitution and domestic laws of the United States.  Prohibition of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. A third reservation would ensure that U.S. treaty obligations under the Disabilities Convention related to prohibitions against torture and other cruel, inhuman or degrading treatment or punishment mirror those undertaken by the United States under the ICCPR and the CAT. Understandings. Five understandings would clarify the scope of certain treaty obligations to ensure that obligations undertaken by the United States are fully consistent with, and will be fully implemented under, U. S. domestic law.


 First Amendment. The first understanding, similar to the First Amendment RUDs under the ICCPR and the CERD, would ensure that the Disabilities Convention will be implemented in a manner that is consistent with the freedoms of speech and association protected by the First Amendment to the Constitution of the United States.  Economic, Social and Cultural Rights and Non-Discrimination. The second understanding would make clear that the obligations of the United States with regard to what are commonly referred to as economic, social, and cultural rights under the Disabilities Convention are obligations of non-discrimination. The Convention is intended to guarantee to persons with disabilities rights under U.S. law to the same extent such rights are recognized with regard to persons without disabilities and to do so on a non-discriminatory basis.  Equal Employment Opportunity. The third understanding would relate to the U.S. obligation under Article 27 of the Disabilities Convention to undertake appropriate measures to ensure the right to equal employment for persons with disabilities. It would make clear that this obligation encompasses a guarantee of equal pay for equal work for persons with disabilities, but does not require adoption of a comparable worth framework for persons with disabilities. This understanding would clarify that U.S. law on equal pay for equal work will satisfy the Disabilities Convention’s equal employment provision.  Uniformed Employees of U. S. Military Departments. The fourth understanding would ensure that the obligation to take appropriate measures to ensure the right to equal employment for persons with disabilities under Article 27 would not affect the hiring, promotion, or other terms or conditions of employment of uniformed employees in the U.S Military Departments.  Definition of Disability. The fifth and final understanding would make clear, consistent with the text and negotiating history of the Disabilities Convention, that as a definition of “disability” or of “persons with disabilities” is not contained in the Convention, the term “disability” would be defined for the United States as coextensive with the definition of such term(s) pursuant to relevant U.S. laws, including, by way of example, the broadened definition of disability under the ADA, including the ADA Amendments Act of 2008. Declaration. Non-self Executing. Continuing the treaty practice of the United States under the ICCPR, the CERD, and the CAT, the Senate Resolution of Advice and Consent to Ratification could include a declaration that the provisions of the Disabilities Convention are not self-executing. This declaration would make clear that the Convention would not be directly enforced by U.S. courts or of itself give rise to individually enforceable rights. With this RUD package, the United States would be able to implement its obligations under the Disabilities Convention using the existing network of laws and federal enforcement machinery that afford protection and guarantees of non-discrimination to 4

persons with disabilities. As such, no new legislation would be required to ratify and implement the Convention. Implementation. Implementation of the Disabilities Convention would continue to be carried out through domestic authorities. The expert body established under the Disabilities Convention to monitor implementation by States Parties serves in an advisory capacity only and would not have binding authority over the United States. It could not compel action by the United States, and its recommendations and conclusions would have no binding effect under international or domestic law. Further, U.S. participation in the Committee would ensure its consideration of the highly-developed body of U.S. disability laws. Conclusion. By becoming a party to the Convention, the United States would secure tangible benefits for U.S. citizens with disabilities, including our veterans, and would continue its global leadership role in promoting the rights of persons with disabilities. By ratifying the Convention, the United States - and its business community, civil society organizations, and experts - would be in a better position to support, assist, and encourage other countries to ratify and implement the Convention, thereby contributing to verifiable improvements in guaranteeing equality of opportunity, nondiscrimination, accessibility, and reasonable accommodation to persons with disabilities in foreign countries. This benefits persons all over the world who have a disability, including the vast number of Americans with disabilities who serve, travel, work, study, reside, and retire abroad, or wish to do so. In brief, there is little or no cost to ratification, as protections in the United States would not need to be changed, yet there would be strong benefits, as ratification would open up opportunities for U.S. citizens, organizations, and businesses abroad.


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