Testimony of John L. Wodatch Before the Foreign Relations Committee Of the United States Senate

II. Reservations, Understandings, and Declarations

The Administration’s submission of the Disabilities Convention, which includes the President’s letter of transmittal and the Secretary of State’s Report, makes clear that the convention is exclusively a nondiscrimination treaty, i.e., the Disabilities Convention seeks to ensure that persons with disabilities enjoy the same rights as everyone else and are given the same opportunities to live productive lives. The Secretary’s Report includes reservations, understandings, and a declaration (RUDs) recommended for inclusion in the Senate’s resolution of advice and consent. Inclusion of these RUDs will facilitate ratification. Under the RUDs, U.S. obligations under the Convention will go no further than existing U.S. law.

The package of three reservations, five understandings, and one declaration, contained in the Secretary’s Report, maintains U.S. sovereignty and makes clear the extent of our obligations under the treaty and are thus an essential element of ratification. With the inclusion of this RUD package:

• No new Federal laws will be required to comply with the treaty

• No State laws will have to be revised

• Compliance with our existing, rich panoply of disability laws will constitute compliance with the treaty

• Our definitions of disability will continue in force; and

• No new individual rights and no individually enforceable rights will be created

These RUDs also ensure that ratification will have no impact on the federal budget. Thus, I recommend that the Senate Resolution of Advice and Consent to Ratification contain the nine RUDs proposed in the Secretary’s Report.

Perhaps the two most important reservations are those recommended on federalism and on private conduct. A number of treaty provisions cover matters that are the province of State law. For example, education, the exercise of legal capacity, civil commitment, birth registration, living in the community, and marriage and family relationships are areas that are governed in the United States under State law. While many state and local laws and regulations clearly comply with the provisions of the Disabilities Convention on these issues, some state and local standards can be interpreted as less rigorous than the treaty would require. Thus, a reservation that would preserve the existing balance between federal and state jurisdiction over these matters is appropriate and necessary.

The federalism reservation ensures 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 fifty states. The federalism reservation would limit our obligations under the treaty to areas covered by federal law and would require no changes to state and local law because of the Convention’s provisions.

The proposed reservation on certain private conduct is also important. A number of federal disability rights laws contain exemptions in their coverage. Title I of the ADA applies to all employers with 15 or more employees. Title III of the ADA does not apply to churches and other religious entities and certain private clubs. The Fair Housing Act does not apply to most individuals’ homes or private home construction. Similarly, the U.S. Constitution and federal law recognize areas of private activity that are not governed by the laws of the United States. It is thus necessary and appropriate to include a reservation that limits coverage of the treaty and excludes those areas of private conduct that are protected by the U.S. Constitution.

Similarly significant is the declaration that the Convention on the Rights of Persons with Disabilities is non-self-executing. This declaration ensures that the treaty itself does not give rise to individually enforceable rights and cannot be directly enforced in the U.S. courts. It ensures the primacy of U.S. domestic law and remedies on disability issues.

In the last several weeks, the treaty has been criticized for undermining U.S. sovereignty and for harming the rights of parents of children with disabilities. These concerns can be fully addressed by the terms of the treaty, by the RUDs proposed by the Administration, and by the clarifications contained in the Secretary’s report.

Some have raised alarms over the existence of the Disabilities Committee created by the treaty. This committee, a group of 18 experts elected by the nation’s that have ratified the treaty, meets twice each year to review the reports submitted by those countries that have ratified the treaty. By the terms of the treaty itself this committee is advisory only. The committee is authorized only to respond to reports with “suggestions and general recommendations.” The Committee’s suggestions, observations, and opinions are not binding and cannot compel any action in the United States.

The criticism that the treaty will undermine parental decision-making is misplaced. In fact, the treaty places great value on the role of the family. The Preamble to the treaty is particularly eloquent on this issue. It states:

(T)he family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute toward the full and equal enjoyment of the rights of persons with disabilities.

The treaty specifically requires ratifying nations to provide early and comprehensive information, services, and support to children with disabilities and their families. It seeks to maintain the sanctity of the family unit by requiring that children should not be separated from their parents on the basis of the disability of either the parents or the children.

Most importantly, the overarching requirement of Article 23 of the treaty is one of nondiscrimination. The Convention, like Title II of the ADA, prohibits discrimination against persons with disabilities in matters of family and parenthood. Further, the proposed reservation on federalism ensures that parental responsibility and authority, which are matters of state and local law, will remain governed by domestic law in the United States. Also, the reservation on private conduct ensures that privacy in family matters, which is protected by the U.S. Constitution, will not be encumbered by the treaty. The Secretary’s Report specifically addresses family rights in its discussion of Article 23 (at p. 53) and notes that freedom from governmental interference in certain private conduct is among the fundamental values of our free and democratic society.

One other concern that has been raised warns of a threat of a national registry of children with disabilities. The treaty does not require a national registry of births in the U.S. Birth registration is handled by the states, which are subject to the disability nondiscrimination requirements of Title II of the ADA and Section 504 of the Rehabilitation Act. State laws on birth registration require that each child be given a birth certificate at birth - thus they are recognized as a person, protected by law. The treaty does not require a separate registration of children with disabilities, something the United States has consistently refused to support. Therefore, the treaty will not result in any change in U.S. or state law or practice. However, the treaty will provide much-needed protection in other countries where there is no provision for birth certificates or birth registration for children with disabilities. In particular, it will help protect against the horrible practice of infanticide of children born with disabilities (a practice that can be facilitated through the denial of birth certificates or registration to disabled babies), and it will require equal access to immunizations, education, food, and other essential needs for these children.

These reservations are eminently reasonable and are compatible with the object and purpose of the treaty. And once included in the Senate Resolution of Advice and Consent, these reservations become the law. While other ratifying nations may seek to object to a reservation, no nation nor any international body has the ability or power to sever, amend, or overturn such a reservation.

One other issue that has raised concerns about the Disabilities Convention is how it may apply to the issue of family planning and abortion. The treaty affirms the inherent right to life and recognizes the “dignity and worth” of persons with disabilities. It establishes for the first time internationally that ratifying nations cannot discriminatorily deny health care, health services, or food and fluids on the basis of disability. During the debate at the Ad Hoc Committee of the UN, the Treaty Chairman, Ambassador Don McKay of New Zealand, stated that the treaty does not create a right to abortion. The Secretary’s Report confirms this interpretation at p. 61 and makes clear that Article 25 does not address the matter of abortion and does not affect United States law with regard to abortion.