August 1, 2013 4:55PM

U.N. Disabled‐​Rights Treaty Is Back — And So Are Its Myths

In its lame duck session late last year, the Senate failed to provide the needed votes to ratify the U.N.-sponsored Convention on the Rights of Persons with Disabilities. (Our commentary at the time is here, here, and here.) Reports are that the treaty may be brought back to the Senate floor later this year, and the New York Times recently editorialized in favor of the measure under the title “A second chance for the world’s disabled.”

Unfortunately, the Times perpetuates myths about the convention that I had hoped by now would have been laid to rest. In particular, it suggests that the treaty’s provisions would not “be binding on the federal or state governments” and would do no more than “match the standards set by the United States in the Americans With Disabilities Act.” This is incorrect on both counts. 

The treaty is full of language mandatory on ratifying states, not advisory: the word “shall” appears more than 150 times over its 50 sections. State governments? Article 4, Sec. 5 says “The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions.” Some have spoken of excusing the U.S. from obligatory compliance through “reservations” adopted as part of ratification, but Article 46 reads as follows: “Reservations incompatible with the object and purpose of the present Convention shall not be permitted.”

Nor is it accurate to imply that the CRPD does no more than match the provisions of the ADA in domestic U.S. law. In regulating the workplace, for example, the ADA exempts small employers as well as many not‐​for‐​profit entities, and it protects “qualified” individuals with disabilities, an important legal term of art.

The CRPD by contrast decrees (Article 4, 1(e)) that ratifying states must “eliminate discrimination on the basis of disability by any person, organization or private enterprise,” a far broader sweep. Similarly, the CRPD, going far beyond the ADA’s prescriptions, requires (Article 20) ratifying states to “ensure” access to “affordable” personal mobility methods. Other examples could be multiplied. Article 8 obliges ratifying states to “combat stereotypes, prejudices, and harmful practices” regarding the disabled and instructs them to undertake “public awareness campaigns.”

If the United States Senate is to take up a debate on ratification, it should inform itself clearly of what the treaty does. If that happens, I suspect the treaty will again fail.