Rejection of a Treaty as a Bullet Dodged



It was said to be modeled after the Americans with Disabilities Act of 1990 (ADA), which has been on the books for twenty-two years. Nonetheless, on December 4th the U.S. Senate rejected the Convention on the Rights of Persons with Disabilities (CRPD), a multilateral treaty on the rights of the disabled. [1] The vote was 61 to 38 to ratify, falling short of the two-thirds vote necessary for ratification. All thirty-eight “no” votes were cast by Republicans.

The intent behind the CRPD was to bind signatories against discriminating against the disabled. What could possibly be wrong with that? How could a treaty like that get one “no” vote in the Senate, let alone thirty-eight?

One reason has been given by former senator and presidential candidate Rick Santorum, who has applauded the Senate’s rejection of the CRPD. [2] Those disappointed with Mr. Santorum’s position in this ought not to be hasty in assessing his character. He has a disabled child himself, and one would have to be far gone in the service of evil to work against the interests of his own child.

Mr. Santorum’s objection is that no definition of “disability” is to be found in the wording of the CRPD, and in this he is correct. [3] This is an oversight that should be compared to the ADA, which specifically defines a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of” an individual, having “a record of such an impairment,” or “being regarded as having such an impairment.” [4] So, here is one distinction between the ADA and the CRPD.

The failure to define “disability” in the CRPD is not a mere formality. Treaties have the force of law and should be clear as to their requirements. Failing to define a term that goes to the very scope of a proposed treaty cannot be overlooked, or left to some notion of common sense, because the danger of either too restricted an application of the treaty, or, on the other hand, overreach, is too obvious to be ignored by a competent legislator. While one should hesitate to jump to conclusions about the reasons behind the omission, the flexibility it gives in interpreting the CRPD’s terms renders the treaty almost meaningless.

Still, it will be pointed out that there are numerous laudable provisions in the CRPD, and indeed there are. The treaty requires “that persons with disabilities have the right to recognition everywhere as persons before the law,” and “that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” Even though the CRPD isn’t clear as to who these “persons with disabilities” are, it would be a giant step forward for humanity if nations everywhere bound themselves to treat all persons with dignity and as ends in themselves.

But there is a sucker punch contained in the CRPD that gives clear indication that the intent of the treaty is not to ensure that everyone is regarded equally as a person before the law. The CRPD requires parties to the treaty to provide “persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes….”

What “reproductive health” means for purposes of the CRPD is not defined. One thing it could mean is that those protected by the treaty are entitled to fertility treatments that involve the destruction of embryos. [5] Another thing it could mean is that the disabled are entitled to abortions. Or it could mean both. The result of the United States becoming a party to the CRPD, then, could be that, even if we ultimately decided to protect human life from the moment of conception, we would be forbidden by the terms of the treaty to do so in cases involving the disabled.

Even though the CRPD affirms that “every human being has the inherent right to life,” it seems apparent that the treaty doesn’t really mean every human being. The United States might well have dodged a bullet by not ratifying the CRPD.

Jack Quirk