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Legislative Notice: Treaty Doc 112-7: Convention on the Rights of Persons with Disabilities

November 27, 2012


Noteworthy

  • Background/Executive Summary: The United States signed the Convention on the Rights of Persons with Disabilities in July 2009. Its stated purpose is to ensure for all persons with disabilities the full and equal enjoyment of all human rights and fundamental freedoms. To do that, the Convention requires all states that are parties to it to implement such rights by legislation or other measures. It was submitted to the Senate in May of this year and reported out of the Senate Foreign Relations Committee in July by a vote of 13-6 after one hearing. The Resolution of Ratification has several caveats to the Convention in the form of reservations, understandings, and declarations.   
  • Floor Situation: The Majority Leader has stated an intention to file a motion to proceed to the Executive Calendar to consider this item, and that he will seek a “reasonable agreement on amendments.”

Overview/Background

Negotiation of the Convention on the Rights of Persons with Disabilities began in 2002 and it was adopted by the United Nations General Assembly on December 13, 2006. It was opened for signature on March 30, 2007, and entered into force on May 3, 2008. At present, there are 154 signatories to the Convention, with 126 of those states having ratified or acceded to it. The United States signed the Convention on July 30, 2009.

The President submitted the Convention to the Senate on May 17, 2012. The Senate Foreign Relations Committee held one hearing on the matter, on July 12, 2012. It was reported favorably out of Committee on July 31, 2012, by a vote of 13-6. Five of the six Members who voted against the Convention in Committee joined in a Minority Views submission to the Committee Report.

Treaty Terms

The Convention on the Rights of Persons with Disabilities places certain obligations upon states that are party to the Convention. The preamble contains a variety of observations and generalizations about the subject. The opening articles then outline the purpose, principles, and definitions of the Convention. The Convention does not define the term disability.

The purpose of the Convention, according to article one, is to ensure for all persons with disabilities the full and equal enjoyment of all human rights and fundamental freedoms. Articles four and five then require all states that are parties to it to implement such rights by legislation or other measures.

The subsequent articles then go on to outline these rights, such as equal rights of access to many aspects of life; equal observance of civil, political, economic, social, and cultural rights; and respect for privacy. Article 32 pertains to international cooperation in implementing the Convention, while article 33 covers national implementation and monitoring.

Articles 34-40 establish and provide for a Committee on the Rights of Persons with Disabilities. Parties to the Convention submit to the Committee periodic reports on their implementation of the Convention, which the Committee shall review and make suggestions and recommendations as appropriate.

Resolution of Ratification

The Disabilities Convention Resolution of Ratification is the formal mechanism by which the Senate gives its consent to a treaty. In addition to manifesting its consent, that resolution establishes the treaty’s meaning that is binding on the President as a matter of domestic law and binding on the United States as a matter of international law.1 Senate approval of a treaty is not a take-it-or-leave it proposition. The Senate can give its consent to a treaty with caveats. This Resolution of Ratification has such caveats in the form of three reservations, eight understandings, and two declarations.

Reservations

The Resolution of Ratification states the Senate’s consent to the treaty is subject to a set of reservations to be included in the instrument of ratification. CRS has said reservations are specific qualifications or stipulations that modify U.S. obligations under an international agreement without necessarily changing the language of the agreement.2

Reservation one addresses federalism issues, with the Committee Report recognizing that “certain provisions of the Convention concern matters traditionally governed by state law.” To that end, the reservation states the Convention shall be implemented by the federal government to the extent it exercises jurisdiction over such matters.

Reservation two addresses the regulation of certain private conduct. With the Committee Report recognizing that not all current U.S. law pertaining to disabilities applies to all private conduct in this area, the reservation states the United States does not accept any obligation under the Convention to enact legislation or take other measures with respect to private conduct except as mandated by the Constitution and U.S. laws.

Reservation three provides for a consistency in the application of certain definitions. Human rights Conventions to which the United States is a party define torture and other cruel, inhuman, or degrading treatment or punishment. The United States has taken reservations in the past to define these terms, and this reservation reaffirms U.S. obligations under this Convention are defined the same as they are in other applicable human rights conventions.

Understandings

The Resolution of Ratification states the Senate’s consent to the Convention is subject to a set of understandings to be included in the instrument of ratification. CRS has said understandings are interpretive statements that clarify or elaborate provisions but do not alter them.3

Understanding one states the Convention does not require action that would restrict the right of free speech, expression, and association protected by the Constitution and U.S. laws.

Understanding two defines the U.S. obligation to ensure the rights of the disabled under the Convention as preventing discrimination on the basis of disability in the provision of any such rights insofar as they are recognized and implemented under U.S. federal law.

Understanding three states the Convention “does not require adoption of a comparable worth framework for persons with disabilities,” particularly as it pertains to the rights of the disabled in a workplace setting.

Understanding four specifically defines the U.S. obligation under article 27 of the Convention to afford to individuals with disabilities the right to equal access to equal work as not affecting the conditions of employment within the military, and that article 27 does not recognize rights in this regard that exceed those rights available under U.S. federal law.

Understanding five states that certain terms not defined in the Convention, such as disability, undue burden, and reasonable accommodation, are defined coextensively with the definitions of such terms in relevant U.S. law.

Understanding six states the Committee on the Rights of Persons with Disabilities established under the Convention has no authority to compel actions by parties, and conclusions, recommendations, or general comments issued by the Committee do not constitute customary international law and are not legally binding on the United States in any manner.

Understanding seven states the Convention does not address the provision of any particular health program or procedure, but rather that health programs and procedures be provided to individuals with disabilities on a non-discriminatory basis.

Understanding eight specifically states the term “best interests of the child” as used in article seven of the Convention will be applied and interpreted to be coextensive with its application and interpretation under U.S. law, and that nothing in article seven requires a change to existing U.S. law.

Declarations

The Resolution of Ratification makes two declarations expressing the intent of the Senate on certain issues. CRS has said declarations are statements expressing the Senate’s position or opinion on matters relating to issues raised by the international agreement rather than specific provisions.4

Declaration one states the Convention is non-self-executing, meaning the Convention’s provisions themselves do not confer a private right of action and are not directly enforceable in U.S. courts.

Declaration two declares the view of the Senate that once the reservations in the resolution of ratification are taken into account, current U.S. law “fulfills or exceeds the obligations of the Convention” for the United States.

Cost

A Congressional Budget Office cost estimate for implementing the Convention has yet to be completed. 

Possible Amendments

As of the publication of this notice, there is no unanimous consent agreement limiting the submission of amendments.



1 Charles J. Cooper, Memorandum Opinion for the State Department Legal Adviser from the Assistant Attorney General for the Office of Legal Counsel re Relevance of Senate Ratification History to Treaty Interpretation, 11 U.S. Op. Off. Legal Counsel 28 (Apr. 9, 1987).

2 Treaties and Other International Agreements: The Role of the United States Senate, S. Prt. 106-71 at p. 125 (Jan. 2001).

3 Id at p. 11.

4 Id.