parental rights by UN

Michael P. Farris, President • James H. Bentley, Executive Director

15 Critical Issues with the Convention on the Rights of Persons with Disabilities 1. The “best interest of the child” standard in Article 7(2) provides courts and government agencies (rather than parents) the authority to decide what is best for children with disabilities. International legal scholar Geraldine Van Bueren (who helped to draft the Convention on the Rights of the Child, which contains an identical standard), admits that this standard “provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child.”i 2. Article 23(4) implicates this “best interest of the child” standard in all cases involving the removal of children with disabilities from their parents’ care.ii Under current United States law, the government is authorized to determine what is best for children only if parents have been determined by a court to be “unfit,” or there is a dispute between two parents.iii The CRPD would give the government this presumption of power in all cases involving children—removing the necessity of first proving that the parents have acted in a harmful manner. This dramatically increases the authority of government to remove children from their homes and to override parental decisions by doing away with the current high standard of protection for parents’ rights.iv 3. A parent’s prior right to direct the education of their child disappears under the CRPD. Article 24 on Education omits the right of parents “to choose the kind of education that shall be given to their children” found in the Universal Declaration of Human Rights (Art. 26(3))v and in the Individuals with Disabilities Education Act (IDEA).vi In law, what is excluded is often as important as what is included.

4. Article 23(3) demands that the national government “prevent concealment, abandonment, neglect and segregation” by “provid[ing] early and comprehensive information, services, and support to children.” This suggests a Scotland-like child-services program for disabled children from birth.vii (Scotland is pursuing a program of appointing a government social worker for every child in the nation from birth as a means of complying with their international duties to “protect” children.viii) The provision of such “early and comprehensive” programs threatens the

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privacy of the home.ix Just as the NSA is spying on all our phone calls, these intrusive treaty provisions invite government spying into our families.

5. Article 18(2) provides that “Children with disabilities shall be registered immediately after birth….” This provision would be a treaty obligation of the national government, not the states. This would require that the federal government establish a nationwide databasex of all children with disabilities. Although the states could be made the agents of the federal government for this purpose, the data would be available and controlled ultimately by the federal government since under general treaty law the national government is responsible for compliance with all treaty obligations.

6. Domestic activity currently in the sphere of state power would be transferred to federal authority. Article 4(1)(e) would eliminate state sovereignty in the area of disability law by (1) demanding that all American law be conformed to the standards of the U.N., and (2) making the federal government responsible to see to its implementation.xi In addition, Article 33(1) calls for a new national bureaucracy to ensure that all levels of government (i.e. state and local) comply with the convention.xii 7. This same article – Article 4(1)(e) – applies to “any person, organization or private enterprise.” This will involve the federal government (as a party to the Convention) in private lives to an unprecedented degree.xiii Unless modified by a valid Reservation, Understanding, or Declaration, the treaty would make every private home owner (for example) responsible to not discriminate against persons with disabilities by failing to have wheel chair ramps and other accommodations in their own homes.

8. There is no specific definition of “disability.” For a convention covering “persons with disabilities,” this is a glaring and dangerous weakness. It is also a significant divergence from the American’s with Disabilities Act which provides at least a general definition of “disability.”xiv Instead we are told that the definition of “disability” is an evolving concept.xv It is unwise to agree to protect all disabilities without a proper and clear definition.

9. Ratification would sanction an ongoing supervisory role by the U.N. in the governance of virtually all areas of American life. Articles 34-37 establish an oversight committee and mechanisms for reporting to that committee. Under the accepted principles of international law, such committees have the authority to officially interpret the meaning of the treaty. The arrangement would work much like a federal mandate on the states. The UN Committee sets the mandates (via interpretation) and international law would hold that the United States is in violation of its legal obligations unless it carries out these mandates. While the UN is not likely to be able to invade the United States to literally force compliance, we should make our policy decisions on the assumption that the United States will comply with its legal obligations in good faith.xvi 10. Articles 23 and 25 include language that establish an obligation for the government to provide and fund abortions. Article 23 uses United Nations catch 2

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phrases to establish abortion rights for persons with disabilities. Sections 1 and 1-b provide, “States Parties shall take appropriate measures… so as to ensure that … (b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided….” This “right” to the “means necessary to enable them” to make “reproductive and family-planning” decisions has been used elsewhere to claim a right to abortion. xvii In 2009xviii and 2010xix, thenSecretary of State Hillary Clinton asserted that this language includes the right to abortion services, a position with which treaty proponents at the 2012 Senate Committee hearing on CRPD did not disagreexx. Further, the obligation to take measures to ensure “the means necessary to enable them to exercise these rights” is an obvious requirement that the government provide publicly-funded abortion services for those who cannot afford such procedures.xxi 11. Ratification of the CRPD would mandate entitlements as “rights” for the first time in U.S. domestic law. Historically, the U.S. has been party to treaties promoting civil and political rightsxxii, but not social, cultural, and economic rights.xxiii Civil and political rights are called “negative rights” because these are things the government cannot do to us. But economic, social, and cultural rights are “positive rights”—things the government must do for us. Historically, the Soviet bloc has advanced positive rights while the United States supported only negative rights. This is a huge sea change in American foreign policy. We would, for the first time, embrace the old Soviet theory that the government has the legal obligation to furnish the needs and wants of the people.

12. Article 25 requires that the government “provide those health services needed by persons with disabilities specifically because of their disabilities.” On its face, this language appears to call on the government to fully fund all disabilityrelated health care for persons with disabilities.xxiv Given the lack of a definition of disability (point #1, supra), and “including early identification and intervention,” this presents a literally unlimited financial burden on tax payers.

13. Ratification of the CRPD would require the U.S. to pay to help poorer nations implement the convention. Article 4(2) provides that “each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation,” to realize the rights of the Convention. This “framework of international cooperation” refers to a system of redistribution: wealthy nations must pay and poorer nations are able to receive until the Convention is realized everywhere.xxv 14. Article 15’s prohibition of “degrading treatment or punishment” applies to all children, not just children with disabilities, and has been interpreted by the Committee on the Rights of the Child to outlaw all forms of corporal punishment, however mild.xxvi 3

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15. Any Reservations, Understandings, and Declarations, adopted by the Senate, could be rejected by either the UN Committee or by American Courts if they find that our RUDs are contrary to the object and purpose of the treaty.xxvii GERALDINE VAN BUEREN, INTERNATIONAL RIGHTS OF THE CHILD 46 (Univ. of London, 2006).

UNCRPD, Concluding observations on the initial report of China, 3-4 ¶ 21-22, CRPD/C/CHN/CO/1 (Oct. 15, 2012) (“The Committee is concerned about the system for establishing legal guardianship…[and] urges the State party to adopt measures to repeal the laws, policies and practices which permit guardianship and trusteeship for adults and take legislative action to replace regimes of substituted decision-making by supported decision making.” In other words, full legal guardianship for the disabled that allows “trusteeship” or “substitute” (i.e., autonomous) decision-making should be replaced by “a supported decision-making model.” UNCRPD, Concluding observations: Argentina, 4 ¶ 20. The CRPD does provide that “[i]n no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents,” CRPD, Art. 23.4, but the implication is that the state should assume some sort of partnership with disabled parents, rather than approving full-on autonomous decision-making on their part. iii See, e.g., Reno v. Flores, 507 U.S. 292, 303-304 (1993) (“‘The best interests of the child,’ a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion – much less the sole constitutional criterion – for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others”). iv By contrast, see Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have little doubt that the Due Process Clause would be offended [i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest,” citations omitted. v Universal Declaration of Human Rights, Art. 26(3), 71 G.A. Res. 217A (III), U.N. Doc A/810 (1948). vi Under IDEA, state agencies are required to “obtain informed consent from the parent” before conducting any evaluation to determine whether a child has a disability, or providing a child with any public services available to children with disabilities. 20 U.S.C. § 1414(D)(i)(I) and (II). At the very least, it is clear that the use of the “best interests” standard, in determining whether the “environment” will “maximize” academic and social development (see Article 24.3.c), will occasionally result in the removal of children from homeschooling. See, e.g., In re Kurowski, 20 A.3d 306 (N.H. 2011). vii Scotland is currently considering legislation which would assign a social worker to monitor each child from birth, with the authority and responsibility to “safeguard the wellbeing of the child or young person” through “(i) advising, informing, or supporting the child…, (ii) helping the child…to access a service or support, or (iii) discussing, or raising, a matter about the child” with other government agencies. Children and Young People (Scotland) Bill, as introduced by Alex Neil, MSP, (April 17, 2013), available at http://www.scottish.parliament.uk/S4_Bills/Children%20and%20Young%20People%20(Scotland)%20B ill/b27s4-introd.pdf (accessed July 3, 2013). viii Explanatory Notes accompanying Children and Young People (Scotland) Bill, p.2, section 4: “The bill makes provision in relation to aspects of children’s services reform to reflect in domestic law the role of the United Nations Convention on the Rights of the Child (UNCRC)….” ix See Wyman v. James, 400 U. S. 309, 318, (1971) While the court characterized a home visit as a “search,” it held that such searches are not subject to Fourth Amendment protections: i

ii

“If … we were to assume that a caseworker's home visit, before or subsequent to the beneficiary's initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment's proscription…. There are a number of factors that compel us to conclude [thus]: 1. The public’s interest in this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child whose family requires such aid for that child. The focus is on the child and, further, it is on the child who is dependent. There is no more worthy object of the public’s concern.” (original emphasis) x According to an article in the New York Daily News (“New York parents furious at program, inBloom, that compiles private student information for companies that contract with it to create teaching tools,” March 13, 2013, retrieved from http://www.nydailynews.com/new-york/student-data-compiling-systemoutrages-article-1.1287990 on Aug. 7, 2013), attempts are already underway to create a national database 4

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of public school student information. Those attempts have been broadly rejected by the American public over the issue of privacy concerns. xi Implementation committees, who are charged with overseeing the application of international human rights agreements, have repeatedly confirmed this fact. For instance, addressing Argentina, the U.N. Committee on the Rights of Persons with Disabilities observed that “[t]he Committee is also concerned about the challenge posed by the State party’s federal structure in terms of the achievement of full accessibility for all persons with disabilities in every province and municipality in its territory. The committee recommends that the State party establish effective mechanisms for monitoring and evaluating compliance with accessibility laws in the State party and that it take the necessary measures to facilitate the alignment of the relevant federal and provincial legislation with the Convention and the development and implementation of accessibility plans.” U.N. Committee on the Rights of Persons with Disabilities (UNCRPD), Concluding observations: Argentina, 3-4 ¶ 17-18, CRPD/C/ARG/CO/1 (Oct. 8, 2012) (emphasis added). The UNCRPD is meant to apply uniformly, requiring federal implementation and oversight. xii Similar language is contained in the Convention on the Rights of the Child, and its application is indicative of how the same language in the CRPD will be applied. Consider these examples: Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Concluding Observations – United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/4, (2008): (“The Committee appreciates the State party’s efforts to harmonize its legislation with the Convention, particularly with the adoption of the Children’s Act 2004 for England and Wales which, inter alia, creates the Children’s Commissioner for England…. Nonetheless, the Committee remains concerned at the lack of a body mandated to coordinate and evaluate the comprehensive and effective implementation of the Convention throughout the State party, including at the local level.”)

Concluding Observations of the Committee on the Rights of the Child – France, CRC/C/FRN/CO/4, (2009): (“The Committee takes note of several reforms with regard to coordination of actions in child protection, such as …the establishment of the High Commissioner for Youth between 16 and 26 years of age. However, it remains concerned at the lack of coordination between the national and the departmental level, including the Overseas Departments and Territories. The Committee is further concerned over the absence of a parliamentary commission in charge of children’s rights.”) xiii See Reid v. Covert, 354 U.S. 1, 34 (1957) (“To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.”) It would fall to the courts to decide which of these local and private decisions are protected under other articles of the Constitution and which are merely reserved rights under the Tenth Amendment. Based on the Reid decision, reserved rights can be transferred to the federal government through this “delegated” power. xiv See http://www.dhs.wisconsin.gov/disabilities/physical/definition.htm, retrieved August 6, 2013. xv Convention on the Rights of Persons with Disabilities, Preamble paragraph (e). xvi Article 26 of the Vienna Convention on the Law of Treaties 1969, to which the United States is a party: “Pacta sunt servanda” Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (emphasis added) xvii Ultra Vires Acts by the Committee on the Rights of the Child and the New Optional Protocol to the UNCRC: An Analytical Report, FamilyPolicy.Ru, Madrid, 2012, at page 11 (retrieved at http://www.familypolicy.ru/rep/int-12-034en.pdf on July 3, 2013): “CRC, as well as other UN bodies, repeatedly exerted pressure on states aimed at forcing them to review their respective national legislation concerning abortion.

For example, commenting on the 2001 Palau report, the Committee notes (CRC/C/103): 465. … The Committee recommends that the State party review its legislation concerning abortion, with a view to guaranteeing the best interests of child victims of rape and incest….

Similar calls for reviewing national legislation concerning abortion were contained in concluding observations on reports by Uruguay, Mozambique, Nigeria, Burkina Faso, Sri Lanka, El Salvador, et al.” (references omitted) See also Committee on the Rights of the Child General Comment No. 4 (2003) Adolescent Health and development in context of the Convention on the Rights of the Child (CRC/GC/2003/4), paragraph 28 (In light of articles 3, 17 and 24 of the Convention, States parties should provide adolescents with access to 5

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sexual and reproductive information, including on family planning and contraceptives, the dangers of early pregnancy…. States parties should ensure that they have access to appropriate information, regardless of their marital status and whether their parents or guardians consent.”) and paragraph 31 (“The Committee urges States parties (a) to develop and implement programmes that provide access to sexual and reproductive health services, including family planning, contraception and safe abortion services….”). xviii Secretary of State Hillary Clinton before the House Foreign Affairs Committee, 2009: “We happen to think that family planning is an important part of women's health, and reproductive health includes access to abortion, that I believe should be safe, legal, and rare.” xix Secretary of State Hillary Clinton, G8 Foreign Ministers meeting convened in Gatineau, Canada, April, 2010: “Reproductive health includes contraception and family planning and access to legal, safe abortion.” xx Ms. Eve Hill, Senior Counselor to the Assistant Attorney General for Civil Rights, U.S. Department of Justice, at Senate Foreign Relations Committee Hearing of July 12, 2012, when presented with Hillary Clinton’s quotation in note xviii, supra: “I don't disagree with that, with the interpretation that reproductive health could include abortion.” xxi On its face Article 23 of the CRPD grants all disabled persons a right to make reproductive health and family planning decisions, a right to be educated about those decisions, and a right to be given the means to carry out those decisions. xxii The International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 999 U.N.T.S. 171, was ratified by the United States on June 8, 1992. xxiii While President Carter signed the International Covenant on Economic, Social, and Cultural Rights (ICESCR), Dec. 16, 1966, 93 U.N.T.S. 3, on behalf of the United States, on October 5, 1977, the United States Senate has refused to ratify that international agreement. xxiv See CRPD Article 25 (b): “[States Parties shall p]rovide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons[.]” xxv This notion is not uncommon in contemporary international human rights law. Regarding the Convention on the Rights of the Child, Van Bueren notes, “The essence of economic and social, and to an extent, cultural rights is that they involve redistribution, a task with which, despite the vision of human rights, most constitutional courts and regional and international tribunals are distinctively uncomfortable.” Geraldine Van Bueren, Combating Child Poverty—Human Rights Approaches, Human Rights Quarterly, Vol. 21, p. 680, 680-681 (1999) (emphasis added). xxvi See COMMITTEE ON THE RIGHTS OF THE CHILD, GENERAL COMMENTS OF THE COMMITTEE ON THE RIGHTS OF THE CHILD, “General Comment No. 8: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment” at 76 (UNICEF, 2007) (“The Committee defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. . . . In the view of the Committee, corporal punishment is invariably degrading. In addition, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child”); see also id. at 79 (“[E]xplicit prohibition of corporal punishment and other cruel or degrading forms of punishment [by national governments], in their civil or criminal legislation, is required in order to make it absolutely clear that it is as unlawful to hit or ‘smack’ or ‘spank’ a child as to do so to an adult . . . regardless of whether it is termed ‘discipline’ or ‘reasonable correction’”). xxvii Convention on the Rights of Persons with Disabilities, Article 46(1): “Reservations incompatible with the object and purpose of the present Convention shall not be permitted.”

See also Koh, Harold, “Is International Law Really State Law,?” 111 Harvard Law Review 1824,1829 n.24 (1998), in which he questioned whether such declarations have “either domestic or international legal effect.”

See also Koh, “On American Exceptionalism,” 55 Stanford Law Review, 1479 (2003), in which he advocated using the “transnational legal process to press our own government to avoid the most negative and damaging features of American exceptionalism” (at 1501-02).

Similarly, Article 19 of the Vienna Convention on the Law of Treaties provides that no party to a treaty may enter a reservation which “is incompatible with the object and purpose of the treaty.” 1155 U.N.T.S. 331, 8 I.L.M. 6

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See also Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT’L L. 2, 343-344 (Apr. 1995) (“Reservations designed to reject any obligation to rise above existing law and practice are of dubious propriety: if states generally entered such reservations, the convention would be futile. The object and purpose of the human rights conventions, it would seem, are to promote respect for human rights by having countries—mutually—assume legal obligations to respect and ensure recognized rights in accordance with international standards. Even friends of the United States have objected that its reservations are incompatible with that object and purpose and are therefore invalid”). The RUD’s currently attached to the CRPD claim that current United States law meets or exceeds the CRPD’s obligations. This is precisely the sort of RUD which Henkin believes would be unacceptable.

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15 Critical Issues with the CRPD • ParentalRights.org