88–867

113TH CONGRESS EXEC. REPT.

2nd Session " ! SENATE 113–12

CONVENTION ON THE RIGHTS OF PERSONS WITH 

DISABILITIES (TREATY DOC. 112-7) 

JULY 28, 2014.—Ordered to be printed 

Mr. MENENDEZ, from the Committee on Foreign Relations, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany Treaty Doc. 112–7] 

The Committee on Foreign Relations, to which was referred the 

Convention on the Rights of Persons with Disabilities, signed on 

June 30, 2009 (Treaty Doc. 112–7) (the ‘‘Convention’’), having considered the same, reports favorably thereon with three reservations, nine understandings and two declarations, as indicated in 

the resolution of advice and consent, and recommends that the 

Senate give its advice and consent to ratification thereof, as set 

forth in this report and the accompanying resolution of advice and 

consent.

CONTENTS

Page

I. Purpose ........................................................................................................... 2 

II. Background .................................................................................................... 2 

III. Major Provisions ............................................................................................ 3 

IV. Entry Into Force and Amendments .............................................................. 6 

V. Withdrawal ..................................................................................................... 6 

VI. Implementing Legislation ............................................................................. 6 

VII. Committee Action .......................................................................................... 7 

VIII. Committee Recommendation and Comments .............................................. 8 

IX. Text of Resolution of Advice and Consent to Ratification .......................... 23 

X. Minority Views of Senators Corker, Risch, Rubio, and Johnson ............... 27 

XI. Minority Views of Senator Flake .................................................................. 37 

XII. Annex I.—Transcript of Hearing Held on November 5, 2013, with Additional Material Submitted for the Record ................................................ 39 

XIII. Annex II.—Transcript of Hearing Held on November 21, 2013, with 

Additional Material Submitted for the Record ........................................ 147 

XIV. Annex III.—Letters Submitted for the Record in Support of the Convention .............................................................................................................. 222 
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I. PURPOSE

The purpose of the Convention is to promote, protect and ensure 

the full and equal enjoyment of all human rights and fundamental 

freedoms by persons with disabilities. 

II. BACKGROUND

The Convention on the Rights of Persons with Disabilities was 

negotiated from 2002 to 2006, and was adopted on December 13, 

2006. It was opened for signature on March 30, 2007. One hundred 

and forty-six countries and the European Union are parties to the 

Convention.

The Convention is based squarely on American constitutional 

values such as equality, the protection of vulnerable minorities, 

and the unalienable right to pursue happiness. The Convention is 

also heavily influenced by the landmark Americans with Disabilities Act, which has allowed the United States to provide greater 

legal protections against discrimination for individuals with disabilities than most of the rest of the world. Without laws like the 

Americans with Disabilities Act, the estimated 1 billion disabled 

people worldwide are vulnerable to discrimination and the deprivation of community resources. Ninety percent of children with disabilities in developing countries do not attend school, and disabled 

children are sometimes denied even the most basic civil rights, 

such as birth certificates and names. 

Ratification of the Convention will advance America’s national 

interest in numerous ways. The United States has become a world 

leader in protecting the rights of disabled individuals through the 

promulgation and enforcement of legislation such as the Americans 

with Disabilities Act, the Rehabilitation Act, and the Individuals 

with Disabilities Education Act. Joining the Convention will be a 

vital step in exporting America’s leadership on disability non-discrimination, so as to better promote the fundamental freedoms and 

individual autonomy of individuals with disabilities. Ratification 

would assist in leveling the playing field for U.S. companies that 

are already required to meet robust disability-accessible standards, 

and would open new markets for their products. 

Americans with disabilities often face significant and, at times, 

prohibitive barriers when they travel, work, serve, study and reside 

in other countries. This includes millions of America’s veterans, as 

well as military family members with special needs. Ratification of 

the Convention will allow the United States to more effectively 

support, assist, and encourage other countries to bring their domestic laws into compliance with the Convention and up to and in line 

with U.S. standards. Such action will not just benefit the 1 billion 

disabled individuals worldwide, but will also be of invaluable help 

to the 54 million Americans with disabilities, including our disabled servicemen and women and disabled veterans, by enabling 

them to travel, work, serve, study and reside in other countries 

without prohibitive barriers. 

III. MAJOR PROVISIONS

A detailed article-by-article analysis of the convention may be 

found in the Letter of Submittal from the Secretary of State to the 
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President (‘‘Letter of Submittal’’). Key provisions of the treaty are 

summarized below. 

Scope of the Convention 

The Convention is intended to recognize and protect the rights 

of individuals with disabilities. Its stated purpose is ‘‘to promote, 

protect and ensure the full and equal enjoyment of all human 

rights and fundamental freedoms by all persons with disabilities, 

and to promote respect for their inherent dignity.’’ Article 3 sets 

out the broad principles of the Convention, which include autonomy, acceptance, and accessibility for individuals with disabilities. 

Equality and non-discrimination are over-arching principles that 

permeate the entire Convention. 

All Parties to the Convention agree to ‘‘ensure and promote the 

full realization of all human rights and fundamental freedoms for 

all persons with disabilities without discrimination of any kind on 

the basis of disability.’’ Article 4 requires Parties to adopt appropriate legislative, administrative, and other measures for the implementation of the rights in the Convention. The Convention’s provisions can generally be grouped into the following categories: accessibility, education, equality, employment, and health. 

Definition of Disability 

The Convention does not contain an explicit definition of ‘‘disability.’’ Article 1 states that persons with disabilities ‘‘include 

those who have long-term physical, mental, intellectual, or sensory 

impairments which in interaction with various barriers may hinder 

their full and effective participation in society on an equal basis 

with others.’’ As the Letter of Submittal makes clear, the absence 

of an express definition of the terms ‘‘disability’’ and ‘‘persons with 

disabilities’’ was a conscious decision at the negotiating conference 

for the Convention. As explained in the letter of submittal, ‘‘the 

convention is not intended to supplant detailed and precise definitions of disability found in national legislation but is rather intended to afford States Parties flexibility in defining disability 

under domestic law.’’ As the U.S. legal framework demonstrates, 

this approach is preferable given that the definition of these terms 

may vary depending on the purpose of the law (e.g. employment 

discrimination or access to health services). See Letter of Submittal 

at 3–5. 

Accessibility Provisions 

One fundamental goal of the Convention is to enable disabled 

persons to live independently and participate in all aspects of life. 

To that end, Article 9 requires States Parties to: 

take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and 

communications, including information and communications technologies and systems, and to other facilities and 

services open or provided to the public, both in urban and 

in rural areas. 

These measures include the removal of obstacles to buildings, 

transportation, information, communications, and electronic and 
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emergency services. Article 18 of the Convention directs States Parties to recognize the rights of disabled individuals to ‘‘liberty of 

movement,’’ to provide the freedom to choose their residence, and 

to guarantee the right to a nationality, on an equal basis with others. In particular, it requires States Parties to ensure that disabled 

persons are not deprived of their nationality or their ability to 

enter their country, arbitrarily or on the basis of their disability, 

and are free to leave any country, without discrimination on the 

basis of their disability. Article 18 requires children with disabilities to be ‘‘registered immediately after birth and [to] have the 

right from birth to a name, the right to acquire a nationality and, 

as far as possible, the right to know and be cared for by their parents.’’ This language was placed in Article 18 to combat the practice of denying personhood status for infants with disabilities, 

which occurs in certain parts of the world and in many cases leads 

to infanticide. 

Article 19 emphasizes the right of all persons with disabilities to 

live and participate in the community on an equal basis. States 

Parties to the Convention must ensure that people with disabilities 

have both the opportunity to select their place of residence on an 

equal basis with others, and the ability to access residential and 

other community support services, including whatever assistance is 

necessary for inclusion in the local community. 

Article 20 emphasizes that States Parties must attempt to ensure personal mobility for people with disabilities, in part by facilitating access to assistive technologies and forms of live assistance. 

Education Provisions 

Article 24 of the Convention requires States Parties to ‘‘ensure 

an inclusive education system at all levels.’’ Children with disabilities must be offered the same opportunities for free primary and 

secondary education as granted to other children in their communities. Their individual needs must be reasonably accommodated, 

and they must receive support ‘‘to facilitate their effective education.’’ Additionally, the Convention specifically requires that Parties facilitate the learning of methods of communication, such as 

sign language and Braille, so as to assist students with disabilities 

in fully participating in the educational process. 

Employment Provisions 

Article 27 of the Convention recognizes a right of individuals 

with disabilities to work in an ‘‘environment that is open, inclusive 

and accessible to persons with disabilities.’’ By joining the Convention, Parties agree to prohibit employment discrimination based on 

an employee or applicant’s disability. If necessary, the Parties are 

to adopt legislation to bar such discrimination in various aspects of 

the employment process, including recruitment, hiring, retention, 

promotion, and termination. There must be reasonable accommodations for employees with disabilities, such as access to training programs and the ability to exercise labor rights on an equal basis 

with others. States Parties must also employ persons with disabilities in the public sector on a non-discrimination basis. 
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Equality Provisions 

Article 5 of the Convention creates a broad prohibition against 

discrimination and requires States Parties to recognize that ‘‘all 

persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of 

the law.’’ States Parties to the Convention must accordingly prohibit discrimination based on disability and take steps to ensure 

that reasonable accommodation is provided to disabled individuals. 

In Article 10, States Parties reaffirm ‘‘that every human being has 

the inherent right to life,’’ and agree to take all necessary measures 

to ‘‘ensure its effective enjoyment by persons with disabilities on an 

equal basis with others.’’ 

Articles 12 and 13 mandate equal recognition before the law for 

disabled persons. States Parties must provide equal access to their 

justice systems, and ensure that measures relating to the exercise 

of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the 

shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. In addition, Articles 6 and 7 of the Convention specifically recognize the 

human rights of women and children with disabilities. 

Article 14 requires States Parties to ensure that persons with 

disabilities are not unlawfully or arbitrarily deprived of liberty, 

while Article 15 states that persons should not be subjected to torture or cruel, inhuman, or degrading treatment or punishment. Article 16 requires States Parties to take measures to protect individuals with disabilities from all forms of exploitation, violence, and 

abuse—including gender-based abuse—as well as provide for the 

physical and psychological recovery of victims and investigation 

and, where appropriate, prosecution of perpetrators. Article 21 declares that disabled persons must be able to exercise their right to 

freedom of expression and opinion, through all forms of communication, on an equal basis with others. It advocates the provision 

of information in accessible formats and technologies, and the facilitation of sign language, Braille, and other alternative methods 

of communication. Article 23 requires States Parties to eliminate 

discrimination against persons with disabilities in domestic matters, such as marriage and parenthood. Article 28 requires States 

Parties to promote realization by people with disabilities of their 

equal right to an adequate standard of living and equal access to 

food, clothing, and housing. Article 29 requires States Parties to 

guarantee equal political rights to persons with disabilities, including accessible procedures for voting, and to promote their participation in public affairs. Finally, Article 30 requires States Parties to 

recognize the rights of disabled individuals to take part in cultural 

life and recreational and sporting activities, on a non-discriminatory basis. 

Health Provisions 

Under Article 25 of the Convention, the States Parties recognize 

that individuals with disabilities have the same right as others to 

enjoyment of the highest attainable standard of health. They must 

be offered the same range, quality, and standard of care as that 

available to other persons. Health care professionals must provide 
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care on the same basis as they would provide if the individual 

seeking care did not have a disability. So long as national law permits, Article 25 also prohibits discrimination based on disability in 

the provision of health and life insurance. 

Committee on the Rights of Persons with Disabilities 

Article 34 of the Convention creates a Committee on the Rights 

of Persons with Disabilities, whose members are elected by States 

Parties to the Convention. States Parties are required to submit 

periodic reports to the Committee that detail the measures they 

have taken to implement their obligations, as well as progress toward implementation. The Committee will then return ‘‘such suggestions and general recommendations on the report as it may consider appropriate.’’ These recommendations are advisory only, and 

are not binding on States Parties. 

IV. ENTRY INTO FORCE AND AMENDMENTS

The Convention enters into force for a ratifying or acceding State 

on the thirtieth day after its instrument of ratification or accession 

has been deposited. For the United States, this means thirty days 

after the deposit of the U.S. instrument of ratification with the advice and consent of the Senate. 

Amendments to articles 34, 38, 39 and 40 (which concern the 

Committee on the Rights of Persons with Disabilities) may be 

adopted only by a consensus decision of States Parties to the Convention. If adopted, such amendments enter into force and become 

binding on all States Parties thirty days after two-thirds of all 

States Parties submit instruments of ratification for the amendment.

For all other articles of the Convention, amendments may be 

adopted by majority vote at a meeting at which at least two-thirds 

of States Parties are present. If adopted, such amendments enter 

into force thirty days after two thirds of States Parties submit instruments of ratification for the amendment. However, such 

amendments are binding only on those States Parties that submit 

instruments of ratification. 

V. WITHDRAWAL

Pursuant to Article 48, a Party may withdraw from the Convention by written notification to the Secretary-General of the United 

Nations. This withdrawal becomes effective one year after the receipt of notification. 

VI. IMPLEMENTING LEGISLATION

The provisions of the convention are not self-executing. Accordingly, they cannot be directly enforced by U.S. courts or give rise 

to individually enforceable rights in the United States. 

The United States has a comprehensive network of existing federal and state disability laws and enforcement mechanisms, including the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 

§ 12101 et seq.; the Rehabilitation Act, 29 U.S.C. § 791 et seq.; the 

Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 251(a)(2) and 255; the Fair Housing 

Act, as amended in 1988, 42 U.S.C. § 3601 et seq.; the Air Carrier 
7

Access Act, 49 U.S.C. § 41705; the Voting Accessibility for the Elderly and Handicapped Act of 1984, 42 U.S.C. § 1973ee et seq.; the 

Help America Vote Act of 2002, 42 U.S.C. § 15301–15545; the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg et seq.; 

the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 

et seq.; the Copyright Act, 17 U.S.C. §§ 101 et seq.; the Genetic Information Nondiscrimination Act, 42 U.S.C. §§ 200ff et seq.; the Individuals with Disabilities Education Act, 20 U.C.C. § 1400 et seq., 

and the Architectural Barriers Act, 42 U.S.C. § 4151 et seq.. In addition, disability nondiscrimination provisions have been integrated 

into statutes of general applicability to federal policies and programs. See Letter of Submittal, p. 91. 

In the vast majority of cases, existing federal and state law 

meets or exceeds the requirements of the Convention. The recommended reservations in the resolution of advice and consent 

(discussed in section VIII below) make clear that the United States 

will limit its obligations under the Convention to exclude the narrow circumstances in which implementation of the Convention 

could otherwise implicate federalism or private conduct concerns. 

Ratification of the Convention with the recommended reservations 

will not alter the balance of power between the federal government 

and the states. No additional implementing legislation is necessary 

with respect to the Convention. 

VII. COMMITTEE ACTION

The committee first held a public hearing on the Convention on 

July 12, 2012. Testimony was received from the Honorable John 

McCain, United States Senator; the Honorable Tom Harkin, United 

States Senator; the Honorable Judith Heumann, Special Adviser 

for International Disability Rights, U.S. Department of State; Ms. 

Eve Hill, Senior Counselor to the Assistant Attorney General For 

Civil Rights, U.S. Department of Justice; The Honorable Richard 

Thornburgh, Former Attorney General of the United States and 

Counsel for K&L Gates, LLP; Mr. John Wodatch, Former Chief of 

the Disability Rights Section, Civil Rights Division, U.S. Department of Justice; Mr. Steven Groves, Bernard and Barbara Lomas 

Fellow, The Heritage Foundation; Dr. Michael Farris, Chancellor, 

Patrick Henry College; and Mr. John Lancaster, 1st Lt., U.S. Marine Corps (Ret.) Retired Executive Director of the National Council On Independent Living. On July 26, 2012, the committee considered the Convention and ordered it favorably reported. 

The committee held two additional public hearings on the Convention on November 5, 2013, and November 21, 2013. For the November 5, 2013 hearing, testimony was received from the Honorable Kelly Ayotte, United States Senator; the Honorable Mark 

Kirk, United States Senator; the Honorable Thomas J. Ridge, 

Former Secretary of Homeland Security and current Chairman of 

The National Organization on Disability; the Honorable Tammy 

Duckworth, Congresswoman from Illinois and Lieutenant Colonel 

in the Illinois Army National Guard; the Honorable Richard 

Thornburgh, Former Attorney General of the United States and 

Counsel for K&L Gates, LLP; Dr. Susan Yoshihara, Senior Vice 

President for Research and Director of the International Organizations Research Group, part of The Catholic Family & Human 

Rights Institute; Mr. Timothy L. Meyer, Assistant Professor of Law 
8

at The University of Georgia School of Law; and Dr. Michael 

Farris, Chancellor of Patrick Henry College. Statements for the 

record were submitted by Senators Ayotte and Kirk, Secretary 

Ridge, Congresswoman Duckworth, Attorney General Thornburgh, 

Dr. Yoshihara, Professor Meyer and Dr. Farris. Also entered into 

the record was a letter of support from former Secretary of State 

and Chairman of the Joint Chiefs of Staff Colin Powell, an article 

supporting the Convention written by former Senate Majority 

Leader Dr. Bill Frist, a Boston Globe article entitled ‘‘The story of 

Washington gridlock seen through the eyes of Bob Dole,’’ an article 

entitled ‘‘UN Disabilities Treaty does not create abortion rights,’’ 

written by Austin Ruse and Piero A. Tozzi, and a legal memorandum prepared by Patton Boggs (now Squire Patton Boggs). 

At the November 21, 2013 hearing, testimony was received from 

the Honorable John F. Kerry, Secretary of State, U.S. Department 

of State; Ms. Frances W. West, IBM, Worldwide Director of the 

Human Ability & Accessibility Center; the Honorable C. Boyden 

Gray, former White House Counsel and Ambassador, currently of 

C. Boyden Gray and Associates; Mr. Jeremy A. Rabkin, Professor 

of Law, George Mason University School of Law; and Mr. Curtis A. 

Bradley, William Van Alstyne Professor of Law, Duke University 

School of Law School. Statements for the record were submitted by 

Secretary of State Kerry, Director West, Ambassador Gray, Professor Rabkin, and Professor Bradley. In addition, statements of 

support for the Convention by Secretary of Defense Charles T. 

Hagel and Secretary of Veterans Affairs Eric K. Shinseki were entered into the record, along with all other petitions, letters and 

written statements of support for the Convention. On July 22, 

2014, the committee considered the Convention and ordered it favorably reported. 

VIII. COMMITTEE RECOMMENDATIONS AND COMMENTS

A. GENERAL COMMENTS

The committee recommends that the Senate give its advice and 

consent to ratification of the Convention. The committee believes 

that the Convention advances important U.S. interests in a number 

of vital areas. 

The committee is persuaded by the support of experts in disability law and advocacy that ratification of the Convention will enable the United States to more effectively advocate on behalf of the 

millions of disabled Americans. These experts indicate that it will 

give the United States a stronger, more prominent voice in advocating for standards and practices abroad that comport with the 

high standards for protection of disabled persons found in U.S. domestic law and practice. In a letter to the committee, which was 

entered into the record at the November 5, 2013 hearing, former 

Secretary of State and Chairman of the Joint Chiefs of Staff Colin 

Powell characterized the treaty as ‘‘the most important global platform for the implementation of best practices in disability rights 

abroad.’’ In addition to America’s bilateral efforts, ratification will 

allow the U.S. to nominate U.S. disabilities experts to sit on the 

Disabilities Committee, which will give the United States a formal 

voice and vote in the Assembly of States Parties to the Convention. 
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Sustained and effective U.S. leadership in such areas will have 

a positive, practical impact on the lives of disabled Americans. Congresswoman Tammy Duckworth testified that, when traveling 

abroad, ‘‘[b]linded veterans have had their guide sticks taken away 

after being mistaken for weapons,’’ that ‘‘[p]eople with artificial 

limbs have been told to store them in overhead bins,’’ and that, 

when visiting U.S. military bases in Germany and Italy, she could 

not take wounded veterans ‘‘off post to go see the sights downtown, 

because they simply were not accessible.’’ Many witnesses before 

the committee testified that U.S. ratification will make it more 

likely that other governments will adopt standards and regulations 

concerning the disabled that conform to U.S. standards and practice, and that this will greatly enhance the ability of disabled 

Americans, including veterans and military families, to travel and 

work abroad. For example, greater uniformity in standards such as 

the width of doorways or the size and pitch of ramps would be of 

great assistance to Americans who use wheelchairs when traveling 

abroad, not to mention increased opportunities to use wheelchairaccessible buses, grab bars for showers, disability-accessible 

phones, and many other aspects of the adaptive-device industry. 

Joining the Convention is also likely to benefit American workers 

and businesses. In a global economy, it is critical that all U.S. employees have the opportunity to enhance their careers and maintain a competitive edge for their U.S. employer by traveling and 

working abroad freely, unencumbered by inaccessibility concerns. 

Moreover, the accessibility standards set forth in the Convention 

are modeled on U.S. law and practice, and U.S. companies are already required to meet these robust accessibility standards. The 

global promotion of accessibility standards and regulations that 

conform to U.S. practice will level the playing field for American 

businesses that are already equipped to comply with these standards, and will likely give them a competitive edge over any foreign 

competitors. As the disability standards of foreign countries move 

closer to those of the United States, new markets will open up for 

innovative American products and services that are already accessible to the disabled, such as assistive technologies created by the 

U.S. consumer electronics industry. 

As discussed in section VI and as explained in detail in the Letter of Submittal, in light of the reservations included in the resolution of advice and consent, current federal and state law meets or 

exceeds the requirements of the Convention, and no changes to federal or state law will be required as a result of U.S. ratification. 

B. NATURE OF THE CONVENTION AS A NONDISCRIMINATION

INSTRUMENT

The committee notes that the Convention is a nondiscrimination 

instrument, requiring that services and opportunities be made 

available on an equal basis to persons with disabilities and those 

without disabilities. Therefore, as the second understanding in the 

resolution of advice and consent makes clear, with respect to certain economic, social and cultural rights mentioned in the Convention, States Parties to the Convention are not obligated to provide 

new rights by virtue of accession to the Convention; rather the obligations of Parties to the Convention are to prevent discrimination 

on the basis of disability in the provision of such rights only insofar 
10

as they are already recognized and implemented under domestic 

law.

This concept includes health services, as Article 25 of the Convention makes clear. In the course of the committee’s consideration 

of the Convention, an understanding was added to the resolution 

of advice and consent stating that Article 25 requires that health 

programs and procedures are provided to individuals with disabilities on a non-discriminatory basis and does not address the provision of any particular health program or procedure. 

C. THE DISABILITIES COMMITTEE

In the course of the committee’s consideration of the Convention, 

questions were raised concerning the role of the Disabilities Committee, which was established under Article 34 of the Convention. 

As discussed above, by ratifying the Convention, the U.S. will have 

the ability to nominate American citizens to serve as experts on the 

Disabilities Committee. American engagement with the Disabilities 

Committee will provide critical expertise and leadership to countries looking for the best practices in assisting those with disabilities, which will subsequently inure to the benefit of disabled Americans when they travel, work, serve, study and reside abroad. 

The Convention will require the United States to submit periodic 

reports to the Disabilities Committee for its review. In these reports, U.S. officials will have the opportunity to highlight the effectiveness of U.S. laws and practices concerning individuals with disabilities, and to demonstrate that our laws and standards are an 

exemplary model for the rest of the world. 

The text of the Convention makes clear that the role of the Disabilities Committee is limited. The Disabilities Committee is authorized under Article 36 to ‘‘consider’’ State Party Reports and to 

‘‘make such suggestions and general recommendations on the report as it may consider appropriate.’’ Under Article 37, the Disabilities Committee ‘‘shall give due consideration to ways and means 

of enhancing national capacities for the implementation of the 

present Convention.’’ 

The Disabilities Committee has no authority to compel actions by 

states parties. Secretary Kerry confirmed this when he testified 

that ‘‘the Disabilities Committee has absolutely zero power to 

change a law, to order a change of law, to compel a change of law.’’ 

While the conclusions, recommendations, or general comments 

issued by the Disabilities Committee could in some instances reflect established customary international law, the Disabilities Committee has no authority to create customary international law, and 

such statements by the Disabilities Committee do not, in and of 

themselves, constitute customary international law, as the sixth 

understanding in the resolution of advice and consent makes clear. 

States parties to the Convention are not required to give greater 

weight to the interpretation of the Convention by the Disabilities 

Committee than they do their own interpretation, and are not required to conform their interpretations to or make them consistent 

with those of the Disabilities Committee. 

D. PARENTAL RIGHTS

The committee closely reviewed the ‘‘best interests of the child’’ 

standard set forth in Article 7 of the Convention, including whether 
11

U.S. ratification of the Convention could negatively impact parental 

rights with respect to disabled children, including parents who opt 

to home-school disabled children. Former Secretary and Governor 

Tom Ridge testified that the Convention ‘‘does not affect the ability 

of a parent to act in the best interest of the child.’’ In the July 2012 

hearing, the Department of Justice testified unequivocally that parental rights would not be hindered in any way. In response to 

written questions for the record, Senior Counselor to the Assistant 

Attorney General for Civil Rights Eve Hill stated that ‘‘[i]n light of 

the federalism and private conduct reservations, among others, 

there would be no change to Federal, State or local law regarding 

the ability of parents in the United States to make decisions about 

how to raise or educate their children as a result of ratification.’’ 

To emphasize the unified views of the Senate and the executive 

branch on this issue, the Committee unanimously agreed to include 

the seventh understanding in the resolution of advice and consent, 

which makes clear that the term or principle of the ‘‘best interests 

of the child’’ as used in Article 7(2) will be applied and interpreted 

to be coextensive with its application and interpretation under 

United States law, and that nothing in Article 7 requires a change 

to existing United States law. At the July 22, 2014, business meeting, the committee adopted an understanding, offered by Senator 

Barrasso, that explicitly states that ‘‘[n]othing in the Convention 

limits the rights of parents to homeschool their children.’’ 

E. SUPPORT FOR THE CONVENTION

The President has expressed his strong support for U.S. ratification of the Convention. In addition, the committee has received letters of support for the Convention from a wide range of affected 

businesses, groups and associations, including: Ability Chicago, 

Abilities, Inc.; Ablehawks and Allies; ABILITY Jobs; 

AccessABILITY, Center for Independent Living; Access Alaska Inc.; 

Access Concepts and Training, Inc.; Access Futures Club (AFC); Access Living; Access, Inc.; Access to Independence, Inc.; ACCSES; 

ACCSES NEW JERSEY; Achievement Services for Northeast Kansas, Inc.; Action Against Hunger; Actionplay; Action Towards Independence, Inc.; Ada S. McKinley Community Services, Inc.; ADHD 

Aware; ADAPT-Chicago Chapter; ADAPT Delaware; ADAPT Missouri; Adobe; Advocacy Center (Louisiana); Advocacy Denver; Advocacy Initiative Network of Maine; Advocates for Access; Advocates 

For Children of NY, Inc.; Advocating 4 Kids LLC; African Methodist Episcopal Church Connectional Health Commission; 

AgeOptions; AHEAD—Association on Higher Education and Disability; Air Force Sergeants Association; Air Force Women Officers 

Associated; Alabama Disabilities Advocacy Program; Alameda 

County Development Disabilities Council; Alaska Multiple Sclerosis 

Center; Alexander Graham Bell Association for the Deaf and Hard 

of Hearing; Alliance Center for Independence; Alliance for the Betterment of Citizens with Disabilities; Allsup; Almost Home Kids; 

Alpha One; AMC Entertainment Inc.; American Academy of Audiology; American Academy of Child and Adolescent Psychiatry; 

American Academy of Pediatrics; American Academy of Physical 

Medicine and Rehabilitation (AAPM&R); American Association for 

Geriatric Psychiatry; American Association of People with Disabilities; American Association on Health and Disability; American As-
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sociation on Intellectual and Developmental Disabilities; American 

Association for Psychosocial Rehabilitation, American Baptist 

Churches USA; American Baptist Home Missions Societies; American Bar Association; American Civil Liberties Union; American 

Civil Liberties Union of Illinois; American Council of the Blind; 

American Council of the Blind; American Counseling Association; 

American Dance Therapy Association; American Diabetes Association; American Foundation for the Blind; American Foundation for 

Suicide Prevention; American GI Forum; American Group Psychotherapy Association; American Jewish World Services; American 

Mental Health Counselors Association; American Music Therapy 

Association; American Muslim Health Professionals; American Network of Community Options and Resources; American Occupational 

Therapy Association; American Psychological Association; American Public Health Association; American Red Cross; American Society for Deaf Children; American Speech-Language Hearing Association; American Statistical Association American Therapeutic 

Recreation Association; Americans Association of People with Disabilities; AMREF; Anti-Defamation League; APSE; ARC Gateway, 

Inc.; Arc Northland; Arc Rutland Area; Arctic Access, Inc.; Arizona 

Bridge to Independent Living (ABIL); Arizona Center for Disability 

Law; Arizona Disability Advocacy Coalition; Assisted Cycling 

Tours, Inc.; Association for Assistive Technology Act Programs; Association for Community Living in Boulder County; Association for 

Education and Rehabilitation of the Blind and Visually Impaired; 

Association for Special Children & Families; Association for Vision 

Rehabilitation and Employment, Inc.; Association of Community 

Mental Health Centers of Kansas; Association of Jewish Family & 

Children’s Agencies; Association of Programs for Rural Independent Living; Association of the United States Navy; Association 

of University Centers on Disabilities; Association on Higher Education & Disability; AT&T; A3 Accounting Associates; Attention 

Deficit Disorder Association; AUCD Council on Community Advocacy (COCA); Auditory Sciences; Autism National Committee; Autism Speaks; Autism Spectrum Counseling Center, Inc.; Autistic 

Self Advocacy Network; B’nai B’rith International; Baha’is of the 

United States; Basic Education Coalition; Bay Area People First; 

Bay Cove Human Services, Inc.; Bazelon Center for Mental Health 

Law; Becoming Independent; Bender Consulting Services, Inc.; 

Benetech; Best Buddies International, Inc.; Best Buddies, University of Kansas Chapter; Bethesda Lutheran Communities, Inc.; 

Better World Campaign; Big Lakes Developmental Center; Biogen 

Idec; BlazeSports America; Blind and Vision Rehabilitation Services of Pittsburg; Blinded Veterans Association; BlueLaw International; Blue Ridge Independent Living Center; Board of the Attention Deficit Disorder Association; Bodies of Work; Boehringer 

Ingelheim USA; Boston Center for Independent Living; Brain Injury Association of America; BRAC; Brain Injury Association of 

Georgia; Brain Injury Association of Kansas; Brain Injury Association of Michigan; Brain Injury Association of Mississippi; Brain Injury Association of Nebraska; Brain Injury Association of South 

Carolina; Brain Injury Association of Tennessee; Brain Injury Association of South Carolina; Brain Injury Association of Tennessee; 

Brain Injury Association of Vermont; Braozoria County Center for 

Independent Living; Bridge II Sports; Bridgewell; Brooklyn Center 
13

for Independence of the Disabled; Brown County Developmental 

Services, Inc.; Burton Blatt Institute at Syracuse University; Business Roundtable; California Association of the Deaf—Riverside 

Chapter; California Communications Access Foundation; California 

Foundation for Independent Living Centers; California State Council on Developmental Disabilities; California State Council on Developmental Disabilities; California State Council on Developmental Disabilities, Area Board 5; Californians for Disability 

Rights, Inc.; Cambria County Association for the Blind and Handicapped, CARE USA; CBM; CDC Resources; Caption First, Inc.; 

Cardinal Health; Center for Disability & Elder Law; Center for 

Disability Rights; Center for Independent Living of Middle Tennessee; Center for Independent Living of South Florida, Inc.; Center for Independent Living Options; Center for International Rehabilitation Research Information & Exchange; Center for Leadership 

in Disability; Center for Self-Determination; Center for the Visually 

Impaired; Center on Disability and Community Inclusion; Center 

on Disability Studies—University of Hawaii; Central Conference of 

American Rabbis; Central Illinois Service Access, Inc.; Cerebral 

Palsy and Deaf Organization; Challenged Conquistadors, Inc.; 

Chamber of Commerce of the United States of America; Chamblee 

Fences; Check and Connect Program—Central Lakes College; 

Chicagoland Chamber of Commerce; Christian Church of Disciples 

of Christ (Disciple Home Missions); Christian Reformed Church in 

North America (Disability Concerns); Chronic Fatigue Syndrome, 

Fibromyalgia & Chemical Sensitivities Coalition of Chicago; The 

Chubb Corporation; Client Assistance Program and Protection & 

Advocacy (American Samoa); Citizens for Global Solutions; Citizens 

for Patient Safety; City of Danbury Commission for Persons with 

Disabilities; Clarement Colleges Disability, Illness, and Difference 

Alliance, Coalition of Citizens with Disabilities in Illinois; Coalition 

of Concerned Citizens for Complete Justice; Coastal Bend Center 

for Independent Living; The Coca-Cola Company; Community Access Project Somerville; Community Access Unlimited; Community 

Alliance for the Ethical Treatment of Youth; Community Interface 

Services; Community Legal Aid Society (Delaware); Community Renewal Society; Community Resources for Independent Living; Community Services for Sight; Concerned Transit Riders for Equal Access; Conference of Educational Administrators of Schools and Programs for the Deaf; Connecticut Office of Protection and Advocacy 

for Persons with Disabilities; Consortium for Citizens with Disabilities; Consumer Electronics Association; Cook Ross Inc.; Council for 

Exceptional Children; Council for Health and Human Services Ministries United Church of Christ; Council of American Instructors of 

the Deaf Council of Parent Attorneys and Advocates; Council of 

State Administrators of Vocational Rehabilitation; Crockett Resource Center for Independent Living; CUNY Coalition for Students with Disabilities; Daniel Jordan Fiddle Foundation; DAWN 

Center for Independent Living; Deaf and Hard of Hearing Alliance; 

Deaf Education And Families Project; Deaf Equality Accessibility 

Forum; Deaf Youth USA; Deb Dagit Diversity LLC; Delaware Association for the Blind; Delaware Developmental Disabilities Council; 

Delaware Family Voices; Depression and Bipolar Support Alliance; 

Deque Systems, Inc.; Detroit Disability Justice; Developmental Disabilities Institute, Wayne State University; Directions in Inde-
14

pendent Living, Inc.; DIRECTV; Disability 411; Disability Concerns, Christian Reformed Church; Disability Concerns, Reformed 

Church in America; Disability Connection/West Michigan; Disability Funders Network; Disability Help Center; Disability Law & 

Advocacy Center of Tennessee; Disability Law and Public Policy 

Program, Syracuse University; Disability Law Center (Massachusetts); Disability Law Center (Utah); Disability Law Center of Alaska; Disability Law Center; disABILITY LINK; Disability Partners; 

disABILITY Resource Center; Disability Resource Center of Fairfield County; Disability Resource Center of Fairfield County; Disability Rights Advocacy Fund; Disability Rights & Resources; Disability Rights California; Disability Rights Center (Arkansas);Disability Rights Center (Maine); Disability Rights Center 

(New Hampshire); Disability Rights Center of Kansas; Disability 

Rights Center of Virgin Islands; Disability Rights Education and 

Defense Fund; Disability Rights Coalition; Disability Rights Education, Activism and Mentoring (DREAM); Disability Rights Education and Defense Fund; Disability Rights Florida; Disability 

Rights Fund; Disability Rights Idaho; Disability Rights International; Disability Rights Iowa; Disability Rights Legal Center; 

Disability Rights Mississippi; Disability Rights Montana; Disability 

Rights Nebraska; Disability Rights Network of Pennsylvania; Disability Rights New Jersey; Disability Rights New Mexico; Disability 

Rights of New York; Disability Rights North Carolina; Disability 

Rights Ohio; Disability Rights Oregon; Disability Rights Texas; 

Disability Rights Vermont; Disability Rights Washington; Disability Rights Wisconsin; disABILITY Solutions for Independent 

Living; Disability Services, Johns Hopkins University; 

Disabilityworks; Disabled American Veterans; Disabled in Action of 

Greater Syracuse Inc.; Disabled In Action of Metropolitan NYC; 

Disabled Rights Action Committee; Disabled Sports USA; Disciples 

Home Missions; Disciples Justice Action Network; Diverse Disability Media; Division for Early Childhood of the Council for Exceptional Children; Division of International Special Education 

Services (DISES) of the Council for Exceptional Children; Dominic 

Foundation; Dorsar Investment Co.; Down Syndrome Association of 

Snohomish County; Down Syndrome Association of West Michigan; 

Down Syndrome Support Network of Stark County; DREAM; 

Dream Ahead the Empowerment Initiative; Dynamic Independence; Earle Baum Center of the Blind, Inc.; East Texas Center for 

Independent Living; Easter Seals; Easter Seals Capper Foundation; 

Easter Seals Central Texas; ED101 Inc.; EDC; Education Development Center; Effective Success Practices LLC; El Valor; Elizabeth 

Birch Company/Global Out; Employment & Community Options; 

ENDependence Center of Northern Virginia; Ensight Skills Center, 

Inc.; Environmental Justice Coalition for Water; Epilepsy Foundation; Equal Rights for Persons with Disabilities International, Inc.; 

Equip for Equality (Illinois); EqUUal; Evangelical Lutheran 

Church in America; Family Health Network; Family Voices; Family 

Voices of ND; Fearless Nation PTSD Support; Federal Employees 

with Disabilities (FEDs); Feed the Children; FESTAC-USA (Festival of African Arts and Culture); FHI 360; Fiesta Christian foundation Inc.; 504 Democratic Club; Flinthills Services, Inc. DBA 

CDDO of Butler County; Florida Association of the Deaf; Fort Bend 

Center for Independent Living; ForwardWorks Consulting, LLC; 
15

Foundations For Change, PC; Four Freedoms Forum; Fox River Industries; FREED Center for Independent Living; Freedom Resource 

Center for Independent Living, Inc.; Friedman Place; Friends Committee on National Legislation; G3ict; Gallaudet University; Genetic Alliance; Georgia Advocacy Office; Georgia Council on Developmental Disabilities; Georgia Power; GlobalPartnersUnited; Global Solutions; GoGo; Gompers Habilitation Center; Good360; Goodwill Industries International; Granite State Independent Living; 

Great Lakes ADA Center; Greater Haverhill Newburyport; Greater 

Illinois Chapter of the National Multiple Sclerosis Society; Guam 

Legal Services Corporation; Hadassah, The Women’s Zionist Organization of America, Inc.; Handicap International; HandReach; 

Hands and Voices; Harlem Independent Living Center; HarveyMarion County CDDO; Hawaii Disability Rights Center; HEAL; 

Health & Disability Advocates; Health & Medicine Policy Research 

Group; Heards Foundation; Hearing Health Foundation; Hearing 

Loss Association of America; Hearing Loss Association of Los Angeles; Heartland Alliance; Heartland Alliance for Human Needs and 

Human Rights; Hellen Keller International; HelpAge USA; Helping 

Educate to Advance the Rights of the Deaf (HEARD); Henry 

Viscardi School; Hesperian Health Guides; Higher Education Consortium for Special Education; Highmark; Hindu American Foundation; Historically Black Colleges and Universities (HBCU) Disability Consortium; Hope Haven Area Development Corporation; 

Horn of Africa Aid and Rehabilitation; Houston Center for Independent Living; Housing Action Illinois; Human Rights Watch; 

Hyun & Associated Leadership Consultants; IBM; Idaho Federation of Families for Children’s Mental Health; Idaho Parents Unlimited, Inc.; IDEA Infant Toddler Coordinators Association; IFES; 

Illinois Association of the Deaf (IAD); Illinois Assistive Technology 

Program; Illinois Council on Developmental Disabilities; Illinois 

Iowa Center for Independent Living; Illinois Maternal and Child 

Health Coalition; Illinois Network of Centers for Independent Living; Illinois Partners for Human Service; Illinois Valley Center for 

Independent Living; IMPACT Center for Independent Living; Independence Associates, Inc.; IndependenceFirst; Independence, Inc.; 

Independent Living, Inc.; Independent Living Center of the Hudson 

Valley, Inc.; Independent Living Center of the North Shore & Cape 

Ann, Inc.; Independent Living Council of Georgia; Indiana Protection and Advocacy Services; Institute for Community Inclusion: U. 

MA Boston; Institute for Community Leadership; Institute for Educational Leadership; Institute for Health Quality and Ethics; Institute for Human Centered Design; Institute on Disabilities, Temple 

University; Institute on Disability Culture; Institute on Human Development and Disability; Institute on Disability and Public Policy 

(IDPP); InterAction; Inter-American Institute on Disability; Interdisciplinary Council on Developmental and Learning Disorders 

(ICDL); Interfaith Disability Advocacy Coalition; Interfaith Network on Mental Illness; InterHab; International Hearing Association; International Medical Corps; International Ventilator Users 

Network; International Youth Foundation; Iowa Association of 

Community Providers; Iowa Statewide Independent Living Council 

(SILC); Iraq and Afghanistan Veterans of America; Islamic Society 

of North America; Jawonio; Jenian, Inc.; Jessica Cox Motivational 

Services; Jewish Community Relations Council of Greater Boston; 
16

Jewish Council for Public Affairs; Jewish Disability Network; Jewish Federation of Greater Atlanta; Jewish Federation of Greater 

Washington; Jewish War Veterans of the United States of America; 

Johnson County Board of Services; Johnson County Developmental 

Supports; Joint National Association of Persons with Disabilities; 

Joint National Association of Persons with Disabilities of Nigeria 

in the Diaspora, USA; JPMorgan Chase & Co.; Judge David L. 

Bazelon Center for Mental Health Law; Junior Blind of America; 

Just Advocacy of Mississippi; Kansas Assistive Technology Cooperative; Kansas Council for Exceptional Children; Kansas Council on 

Developmental Disabilities; Kansas Division for Early Childhood; 

Kansas Elks Training Center for the Handicapped, Inc. (KETCH); 

Kansas Mental Health Coalition; Kansas University Center on Developmental Disabilities; Kentucky Protection and Advocacy; 

Kessler Foundation; KEY Consumer Organization, Inc.; Kids Included Together; KIDZCARE School; Knowbility; Knowledge-Creativity-Caring-Development-Dedication (KCCDD); KU Spectrum; 

L’Arche USA; L.E.A.N. On Us; Lake County Center for Independent Living; Lakemary Center; Lakeshore Foundation; Lakeside 

Curative Systems, Inc.; Lane Independent Living Alliance; Lantos 

Foundation for Human Rights & Justice; Latino Civil Rights Committee; Lawrence B. Taishoff Center for Inclusive Higher Education; League of Human Dignity; Life for Relief and Development 

USA; LightHouse for the Blind & Visually Impaired; LINC—Living 

Independence Network Corporation; LINK, Inc.; Little Miss Hannah Foundation; Little People of America; Living Independence For 

Everyone (LIFE) of Mississippi; Long Island Center for Independent Living, Inc. (LICIL); Loras College Du-Buddies; Loudon 

ENDependence; Lupus Foundation of America; Lutheran Services 

in America; Lutheran Social Services of Wisconsin and Upper 

Michigan; Maine APSE; Maine Developmental Disabilities Council; 

Maine Parent Federation, Inc.; Mainstay Solutions LLC; MAK 

Technology Solutions, Inc.; Management Sciences for Health; 

Manos Unidas; ManpowerGroup North America; Martin Luther 

King Jr. Freedom Center; Maryland Disability Law Center; Massachusetts Down Syndrome Congress; Massachusetts Families Organizing for Change; Matrix Systems and Technologies; Medical Care 

Development; Medical Whistleblower Advocacy Network; Medicol 

Inc.; Mental Health Action; Mental Health America; Mental Health 

Liaison Group; Merck & Co., Inc.; Metrolina Association for the 

Blind, Inc.; Metropolitan Community Churches; MI Developmental 

Disabilities Council; Michigan Protection and Advocacy Services; 

Microsoft Corporation; Mid-Minnesota Legal Assistance/Minnesota 

Disability Law Center; Midwest Center on Law and the Deaf; Military Officers Association of America; MindFreedom International; 

Minnesota Disability Law Center; Mississippi Coalition for Citizens 

with Disabilities; Missouri Association of Rehabilitation Facilities 

(MARF); Missouri Developmental Disabilities; Missouri Protection 

and Advocacy Services; Mobility International USA; Montana Independent Living Project; Mosaic in Delaware; MS Family-to-Family 

Information and Education Center; Multiethnic Advocates for Cultural Competence, Inc.; Muslim Public Affairs Council; Nascar; Nation Council of Jewish Women; National Academy of Elder Law Attorneys; National Alliance on Mental Illness; National Alliance on 

Mental Illness—Kansas; National Association for Black Veterans; 
17

National Association for Children’s Behavioral Health; National Association for Parents of Children with Visual Impairments, Inc.; 

National Association of Councils on Developmental Disabilities; National Association of County Behavioral Health and Developmental 

Disability Directors; National Association of Head Injury Administrators; National Association of Law Students with Disabilities 

(NALSWD); National Association of Sates United for Aging and 

Disabilities; National Association of School Psychologists; National 

Association of Social Workers; National Association of State Directors of Developmental Disabilities Services; National Association of 

State Directors of Special Education; National Association of State 

Head Injury Administrators; National Association of State Mental 

Health Program Directors; National Association of States United 

for Aging and Disabilities; National Association of the Deaf; National Benevolent Association of the Christian Church of Disciples 

of Christ; National Black Deaf Advocates, Inc.; National Business 

& Disability Council; National Center for Environmental Health 

Strategies; National Center for Learning Disabilities; National Coalition for Mental Health Recovery; National Council for Community 

Behavioral Healthcare; National Council of Churches USA; National Council of Jewish Women; National Council on Disability; 

National Council on Independent Living; National Council on the 

Churches of Christ in the USA; National Court Reports Association; National Disability Rights Network; National Down Syndrome 

Congress; National Down Syndrome Society; National 

Dysautonomia Research Foundation; National Education Association; National Federation of the Blind; National Federation of the 

Blind of Utah; National Federation of Families for Children’s Mental Health; National Guard Association of the United States; National Guardianship Association; National Health Law Program; 

National Industries for the Blind; National Military Family Association; National Minority AIDS Council; National Multiple Sclerosis Society; National Organization for Albinism and 

Hypopigmentation; National Organization of Nurses with Disabilities, Inc.—in Illinois; National Organization on Disability; National Rehabilitation Association; National Respite Coalition; National Youth Leadership Network; Native American Disability Law 

Center; Nebraska Advocacy Services Nevada Disability Advocacy & 

Law Center; NETWORK—a National Catholic Social Justice 

Lobby; Neumann Family Services; New Concepts for Living; New 

Hampshire Association for the Blind; New York Institute for Special Education; New York State Commission on Quality of Care & 

Advocacy for Persons with Disabilities; New York State Independent Living Council (NYSILC); Next Step; Next Steps, NFP; 

NHMH—No Health without Mental Health; Nike; Noble County 

ARC, Inc.; North Dakota Protection & Advocacy Project; Northeast 

Arc; Northern Marianas Protection & Advocacy Systems; Northern 

West Virginia Center for Independent Living, Inc.; Northrop Grumman Corporation; Not Dead Yet; Not Without Us! Disability in Action; NuVisions Center; NYC LTC Ombudsman Program; OCCK, 

Inc.; OHI Maine; Ohio Association of County Boards Serving People 

with Developmental Disabilities; OhioHealth; Ohio Statewide Independent Living Council; Ohio Valley Goodwill Industries; Office of 

Protection and Advocacy for Persons with Disabilities (Connecticut); Office of the Governor/Ombudsman for Persons with Dis-
18

abilities (Puerto Rico); OfficeMax Charitable Foundation; Ohio 

Legal Rights Service; OhioHealth; Oklahoma Association of Centers 

for Independent Living; Oklahoma Disability Law Center; ONE; 

Onondaga Community Living; Open Doors Organization; Operation 

USA; Optimal Beginnings, LLC; OrangeAbility Planning Committee; Orange County Rehabilitative and Developmental Services, 

Inc.; Orange Grove Center (OGC); Osteogenesis Imperfecta Foundation; Oxfam America; PACE Inc. Center for Independent Living; 

PA Mental Health Consumers’ Association; Palestine Resource 

Center for Independent Living; Paradigm Services Inc.; Paralyzed 

Veterans of America; Paraquad; Parents, Let’s Unite for Kids; Parent to Parent of NYS; Parent to Parent USA; Parents Educating 

Parents and Professionals, Inc.; Passaic County Community College, Office of Disability Services; PEAK Parent Center; PEAL Center; Peer Assistance Services, Inc.; Pennsylvania Association for the 

Blind; Pennsylvania Council of the Blind; Pennsylvania Society for 

the Advancement of the Deaf; People First of New Hampshire; People with Disabilities for Social & Economic Justice—Next Step; 

Peppermint Ridge; Perkins School for the Blind; Perkins International; Perspectives Press; PhilanthropyNow; Pineda Foundation 

for Youth; Plummer & Associates; Polio Survivors Association; 

Post-Polio Health Internationl; Prairie Independent Living Resource Center Inc.; Pratt Institute; Presbyterian Church (U.S.A.) 

Office of Public Witness; Pride Mobility Products; Progress Center 

for Independent Living; Projects and Intellectual Properties (d/b/a); 

Protection and Advocacy for People with Disabilities (South Carolina); PsycHealth; Psychological Services of Barlesville; Public Advocacy for Kids; Purity Care Investments; PXE International; Rabbinical Assembly; Raising Special Kids; REACH Resource Centers 

On Independent Living; ReachScale; Reconstructionist Rabbinical 

College; Recovery Empowerment Network; RED Consulting; Reformed Church in America (Disability Concerns); Refugees International; Rehabilitation Engineering and Assistive Technology Society of North America; Rehabilitation International; Registry of Interpreters for the Deaf; Religious Action Center; Research and 

Training Center on Independent Living; RESNA; Resource Center 

for Accessible Living (RCAL); RESULTS; ReSurge; RI Family 

Voices; Rhode Island Disability Law Center; RISE Center—Beaumont, TX; Rita Kay Foundation; Rolling Start Inc.; Rose F. Kennedy University Center for Excellence in Developmental Disabilities; Ruh Global LLC; Russell Child Development; Sacred Creations; San Antonio Independent Living Services (SAILS); Saint 

Louis Arc; Sandhills Post-Polio Health Group; Save the Children; 

Schizophrenia and Related Disorders Alliance of America; School 

Social Work Association of America; Seaboard Corporation; School 

Social Work Association of America; Second Sense; Seguin Services; 

Self-Advocacy Association of New York State; Self Advocacy Council of Northern Illinois; Self Advocates Becoming Empowered; Self 

Advocate Coalition of Kansas (SACK); Self Advocates of Indiana; 

Self Advocates of Washington; SEVA Foundation; Shriver Center; 

Sibling Leadership Network; Signs of Self; Sikh American Legal 

Defense and Education Fund; Sindh Disabled Development Society; 

Skills of Central PA; SKIL Resource Center; Small & Associates, 

Inc.; SoCal APSE; Social Assistance and Rehabilitation for the 

Physically Vulnerable (SARPV); Society for Accessible Travel & 
19

Hospitality (SATH); Society for Disability Studies; Society for Special Persons; Socio Economic Development Alliance (SEDA); 

Sodexo; South Dakota Advocacy Services; Southeast Alaska Independent Living; Southern Illinois Case Coordination Services; 

Southern Indiana Center for Independent Living; Southern Tier 

Independence Center; Soyland Access to Independent Living 

(SAIL); Spa Area Independent Living Services; SPEAK Consulting 

LLC Special Olympics; Speaking Up for Us; Speaking Up for Us, 

Maine; Special Needs Advocacy Network; Special Olympics; Spina 

Bifida Association; Springfield Center for Independent Living; 

Sprint; Starkey, Inc.; Statewide Independent Living Council; Statewide Independent Living Council of Georgia, Inc.; Statewide Independent Living Council of Illinois; Statewide Parent Advocacy Network; Stone Belt Arc, Inc.; Student Disability Access Center, University of Virginia; Student Veterans of America; Supportive Housing Providers of Illinois; Symantec Corporation; Syntiro; Taconic 

Resources for Independence; TARC (Affiliate of The Arc); TASH; 

TASH Arizona; TASH Missouri; TCS Associates; Team for Justice; 

Team of Advocates for Special Kids (TASK); Teacher Education Division of the Council for Exceptional Children; Tech for All, Inc.; 

Tekmiss; Telecommunications for the Deaf and Hard of Hearing, 

Inc.; Tennessee Association of the Deaf; Tennessee Disability Coalition; Texas Advocates; Texas Association of Centers for Independent Living, TACIL; Texas Association of the Deaf; Texas 

School for the Blind and Visually Impaired; The Ability Center of 

Greater Toledo; The Advocacy Institute; The American Legion; The 

Arc of Adams County; The Arc Arapahoe & Douglas; The Arc Baltimore; The Arc of Bristol County; The Arc California; The Arc Cedar 

Valley; The Arc of Colorado; The Arc of Dickinson; The Arc of 

Douglas County; The Arc of Fort Bend County; The Arc of Frederick County; The Arc of Georgia; The Arc of Greater Boone County; The Arc of Greater Pittsburgh; The Arc Greater Twin Cities; 

The Arc of Houston; The Arc of Howard County; The Arc of Illinois; 

The Arc of Indiana; The Arc of Iowa; The Arc—Jefferson, Clear 

Creek & Gilpin Counties; The Arc of Larimer County; The Arc of 

Lucas County; The Arc Maryland; The Arc of Massachusetts; The 

Arc Michigan; The Arc Montgomery County; The Arc Mower County; The Arc of New Jersey; The Arc Noble County Foundation; The 

Arc Northern Chesapeake; The Arc of Northern Virginia; The Arc 

of Opportunity in North Central Massachusetts; The Arc of Pennsylvania; The Arc of the Pikes Peak Region; The Arc Prince 

George’s County; The Arc of Rockbridge; The Arc of South Carolina; The Arc of Southern MD; The Arc of Southside; The Arc of 

Tennessee; The Arc of the United Sates; The Arc of the US; The 

Arc of Virginia; The Arc of Toombs County; The Arc Western 

Wayne; The Bibb Cook Group LLC; The California Institute for 

Mental Health; The Center for Disability Empowerment; The Center for Financial Independence & Innovation; The Center for Rights 

of Parents with Disabilities; The Centered Leadership Project, 

LLC; The Coca-Cola Company; The Disability Rights Education 

and Defense Fund; The Episcopal Church; The Future Work Institute, Inc.; The Hunger Project; The Independent Living Center, 

Inc.; The Iris Network; The Jewish Disability Network; The Jewish 

Federations of North America; The Joseph P. Kennedy, Jr. Foundation; The Leadership Conference on Civil and Human Rights; The 
20

Legal Center (Colorado); The Legal Center for People with Disabilities and Older People; The National Center of The Blind Illinois; 

The National Council on Independent Living; The Rabbinical Assembly; The Reconstructionist Rabbinical Association; The Rehabilitation Engineering and Assistive Technology Society of North 

America; The Sikh Coalition; The Starkloff Disability Institute; 

Three Rivers Center for Independent Living; The Viscardi Center; 

3E Love, LLC; Thresholds; Time Warner Cable; Tisano LLC.; 

TKPSYC After School Services, Inc.; Topeka Independent Living 

Resource Center; Touchpoint Group, LLC; Tourette Syndrome Association; Treatment Communities of America; Trickle Up; Tri 

Count4y ILC; Tri-County Association of the Deaf, Inc.; Tri-County 

Patriots for Independent Living; Tri-Ko, Inc.; Tri-State Downs Syndrome Society; Tri-Valley Developmental Services; Trickle Up Program, Inc.; Trisomy 18 Foundation; Twin Ports Post Polio Network; 

Uhambo USA; UJA-Federation of New York; Union for Reform Judaism; Unitarian Universalist Association; Unitarian Universalist 

Association of Congregations; Unitarian Universalist Service Committee; United Cerebral Palsy; United Cerebral Palsy of Illinois; 

United Church of Christ Disabilities Ministries Board; United 

Church of Christ (Justice Witness Ministries); United Church of 

Christ Mental Health Network; United Methodist General Board of 

Church and Society; United States International Council on Disabilities; United Spinal Association; United States International 

Council on Disabilities; United States Olympic Committee; United 

Synagogue of Conservative Judaism; University Legal Services 

(District of Columbia); U.S. Business Leadership Network; U.S. 

Equal Employment Opportunity Commission; U.S. Fund for 

UNICEF; U.S. International Council on Disabilities; U.S. Olympic 

Committee; Utah Assistive Technology Foundation; Utah State 

Independent Living Council; Valley Association for Independent 

Living; Vermont Center for Independent Living; Vermont Family 

Network; Vermont Statewide Independent Living Council; Veterans 

for Common Sense; Veterans of Foreign Wars of the United States; 

Veterans of Modern Warfare; VetsFirst; Virginia Advocates United 

Leading Together; Virginia Association of the Blind; Vision for 

Equality; Vision Loss Resources; VisionServe Alliance; Voices of the 

Heart Inc.; Volar Center for Independent Living; Walmart; Washington State Developmental Disabilities Council; Water for South 

Sudan; WaterAid; WellShare International; Wesleyan Students for 

Disability Rights; West Central Independent Living Solutions Vietnam Veterans of America; West Virginia Advocates; WFD Consulting Inc.; Whirlwind Wheelchair International; WiderNet 

Project; Will-Grundy Center for Independent Living; Wild Watercolors; Winrock International; Wisconsin Council of the Blind and 

Visually Impaired Women’s Rabbinic Network; Witeck Communications, Inc.; Women’s Rabbinic Network; Women’s Refugee Commission; WORK, Inc.; World Concern; World Institute on Disability; 

World Learning; World Neighbors; Wounded Warrior Project; the 

Wyoming Protection and Advocacy System; and Verizon. In addition, the committee received letters of support from former Secretary of State and Chairman of the Joint Chiefs of Staff Colin 

Powell, former Senator Bob Dole, Chinese human rights activist 

Chen Guangcheng, I. King Jordan, President Emeritus of Gallauet 

University, Admiral Steve Abbott, General Wesley K. Clark, Gen-
21

eral Ronald Fogleman, Admiral Edmund P. Giambastiani, Jr., Admiral Charles R. Larson, General Lester L. Lyles, General Robert 

Magnus, General Thomas S. Moorman, Jr., General Carl E. 

Munday, Jr., Admiral Joseph W. Prueher, General Henry H. 

Shelton, General Gordon R. Sullivan, and Loretta Claiborne, Special Olympics Athlete. Materials received as of November 21, 2013, 

were entered into the hearing record. 

F. DISCUSSION REGARDING THE RESOLUTION OF ADVICE AND CONSENT

The committee has included a number of reservations, understandings, and declarations in the resolution of advice and consent. 

The committee notes that Article 46 of the Convention makes clear 

that reservations to the treaty are permitted, provided that they 

are not incompatible with the object and purpose of the Convention.

The committee notes that it is well-established in American jurisprudence that courts must respect the reservations, understandings, and declarations to the ratification of treaties. In their 

study of RUDs and human rights treaties, Professors Curtis Bradley and Jack Goldsmith concluded that ‘‘[i]n sum, since the early 

days of the nation, the President and Senate have attached a variety of conditions to their consent to treaties. No court has ever invalidated these conditions.’’ Curtis A. Bradley & Jack L. Goldsmith, 

Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. 

Rev. 399, 410 (2000). 

1. Reservations 

Section (a) of the resolution contains three reservations. 

Federalism. The first reservation addresses federalism issues. Article 4(1) of the Convention states that the provisions of the Convention ‘‘shall extend to all parts of federal States without any limitations or exceptions.’’ Because certain provisions of the treaty concern matters traditionally governed by state law rather than federal law, and because in very limited instances some state and 

local standards are less vigorous than the convention would require, a reservation is required to preserve the existing balance between federal and state jurisdiction over these matters. 

Non-Regulation of Private Conduct. The second reservation concerns the extent of the United States obligations under the Convention with regard to private conduct. Although the United States 

generally and broadly applies nondiscrimination laws to private entities with respect to operation in public spheres of life, some laws 

set a threshold before their protections are triggered. For example, 

selected employment-related civil rights laws apply only to employers that have 15 or more employees. Thus, existing legislation does 

not extend to absolutely all private discrimination against persons 

with disabilities, such as actions by a sole proprietor or rental of 

a single-family home. Further, individual privacy and freedom from 

governmental interference in certain private conduct are also recognized as among the fundamental values of our free and democratic 

society. Accordingly, a reservation is required to make clear that 

the United States does not accept any obligation under the Convention to enact legislation or take any other measures with respect 

to private conduct except as mandated by the Constitution and 

laws of the United States. The committee notes that in a written 
22

response for the record, the Department of State and the Department of Justice confirmed that in light of this reservation, ratification of the Disabilities Convention would not impose any new requirements on employers exempted by the Americans with Disabilities Act. 

Torture, Cruel, Inhumane or Degrading Treatment. The third reservation concerns the extent of the United States obligations under 

Article 15 (Freedom from Torture or Cruel, Inhuman or Degrading 

Treatment or Punishment). As Article 15 of the Convention covers 

the same subject matter as Articles 2 and 16 of the United Nations 

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 7 of the International 

Covenant on Civil and Political Rights, the third reservation makes 

clear that the obligations of the United States under Article 15 of 

the Convention shall be subject to the same reservations and understandings that apply to U.S. ratification of those two treaties. 

2. Understandings 

Section (b) of the resolution contains eight understandings. 

First Amendment. The first understanding makes clear that the 

Convention, including Article 8, does not authorize or require legislation or other action that would restrict the right of free speech, 

expression, and association protected by the Constitution and laws 

of the United States of America. 

Economic, Social and Cultural Rights. The second understanding 

makes clear that with respect to the application of certain economic, social and cultural rights set forth in specific articles of the 

Convention, the United States understands that its obligations are 

only to prevent 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.Equal Employment Opportunity. 

The third understanding makes clear that the Convention does not 

require the adoption of a comparable worth framework for persons 

with disabilities. The committee notes that in a written response 

for the record, the Department of State and the Department of Justice confirmed their view that current U.S. law is consistent with 

the language in Article 27 regarding equal pay for work of equal 

value.

U.S. Military Departments. The fourth understanding concerns 

Article 27 of the Convention and the obligation to take appropriate 

steps to afford to individuals with disabilities the right to equal access to equal work, including nondiscrimination in hiring and promotion of employment of persons with disabilities in the public sector. Under current U.S. law, certain departments of the U.S. military charged with defense of the national security are exempted 

from liability under the Rehabilitation Act of 1973. The understanding makes clear that the United States understands the obligations of Article 27 to take appropriate steps as not affecting hiring, promotion, or other terms or conditions of employment of uniformed employees in the U.S. military departments and that Article 2 does not recognize rights in this regard that exceed those 

rights available under U.S. federal law. 

Definitions. The fifth understanding clarifies that the terms ‘‘disability’’, ‘‘persons with disabilities’’, and ‘‘undue burden’’ (terms 

that are not defined in the Convention), ‘‘discrimination on the 
23

basis of disability’’, and ‘‘reasonable accommodation’’ are defined for 

the United States of America coextensively with the definitions of 

such terms pursuant to relevant United States law. 

Article 34 Committee. The sixth understanding concerns the 

Committee on the Rights of Persons with Disabilities, established 

under Article 34 of the Convention. It clarifies with particularity 

the limited powers of that Committee, including that it has no authority to compel actions by the United States, and the United 

States does not consider conclusions, recommendations, or general 

comments issued by the Committee as constituting customary 

international law or to be legally binding on the United States in 

any manner. It also clarifies that the United States does not consider the Committee’s interpretations to be legally binding on the 

United States. 

Health Programs and Procedures. The seventh understanding 

clarifies that the Convention is a non-discrimination instrument, 

and that therefore nothing in the Convention, including Article 25, 

addresses the provision of any particular health program or procedure. Rather, the Convention requires that health programs and 

procedures are provided to individuals with disabilities on a nondiscriminatory basis.Best Interest of the Child. The eighth understanding concerns the ‘‘best interests of the child’’ standard set 

forth in Article 7(2) of the Convention. It clarifies that the term or 

principle of the ‘‘best interests of the child’’ as used in Article 7(2), 

will be applied and interpreted to be coextensive with its application and interpretation under United States law, and that consistent with this understanding, nothing in Article 7 requires a 

change to existing United States Federal, State, or local law. 

Homeschooling. The ninth understanding states that nothing in 

the Convention limits the rights of parents to homeschool their 

children.

3. Declarations 

Section (c) of the resolution contains two declarations. 

Non Self-Executing. The first declaration states that the provisions of the Convention are not self-executing. This reflects the 

shared understanding of the committee and the executive branch 

that the provisions of the Treaty are not self-executing, are not directly enforceable in U.S. courts, and do not confer private rights 

of action enforceable in the United States. 

U.S. Law Complies. The second declaration provides that, in view 

of the reservations to be included in the instrument of ratification, 

current United States law fulfills or exceeds the obligations of the 

Convention for the United States. As discussed in section VI above, 

the committee is satisfied that, in view of the reservations in the 

resolution of advice and consent and the comprehensive network of 

existing federal and state disability laws and enforcement mechanisms, no implementing legislation is necessary for the United 

States to comply with the Convention. 

IX. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO

RATIFICATION

Resolved, (two-thirds of the Senators present concurring therein), 
24

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO RESERVATIONS, UNDERSTANDINGS, AND DECLARATIONS. 

The Senate advises and consents to the ratification of the Convention on the Rights of Persons with Disabilities, adopted by the 

United Nations General Assembly on December 13, 2006, and 

signed by the United States of America on June 30, 2009 (‘‘the Convention’’) (Treaty Doc. 112–7), subject to the reservations of section 

2, the understandings of section 3, and the declarations of section 

4.

SEC. 2. RESERVATIONS. 

The advice and consent of the Senate to the ratification of the 

Convention is subject to the following reservations, which shall be 

included in the instrument of ratification: 

(1) The Convention shall be implemented by the Federal 

Government of the United States of America to the extent that 

it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the State and local governments. To the extent that State and local governments exercise jurisdiction over such matters, the obligations of the 

United States of America under the Convention are limited to 

the Federal Government’s taking measures appropriate to the 

Federal system, which may include enforcement action against 

State and local actions that are inconsistent with the Constitution, the Americans with Disabilities Act (42 U.S.C. 12101 et 

seq.), or other Federal laws, with the ultimate objective of fully 

implementing the Convention. 

(2) The Constitution and laws of the United States of America establish extensive protections against discrimination, 

reaching all forms of governmental activity as well as significant areas of non-governmental activity. Individual privacy 

and freedom from governmental interference in certain private 

conduct are also recognized as among the fundamental values 

of our free and democratic society. The United States of America understands that by its terms the Convention can be read 

to require broad regulation of private conduct. To the extent it 

does, the United States of America 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 laws of the United States of America. 

(3) Article 15 of the Convention memorializes existing prohibitions on torture and other cruel, inhuman, or degrading 

treatment or punishment contained in Articles 2 and 16 of the 

United Nations Convention Against Torture and other Cruel, 

Inhuman or Degrading Treatment or Punishment, adopted by 

the United Nations General Assembly December 10, 1984, and 

entered into force June 26, 1987 (the ‘‘CAT’’) and in Article 7 

of the International Covenant on Civil and Political Rights, 

adopted by the United Nations General Assembly December 

16, 1966, and entered into force March 23, 1976 (the ‘‘ICCPR’’), 

and further provides that such protections shall be extended on 

an equal basis with respect to persons with disabilities. To ensure consistency of application, the obligations of the United 

States of America under Article 15 of the Convention shall be 

subject to the same reservations and understandings that 
25

apply for the United States of America with respect to Articles 

1 and 16 of the CAT and Article 7 of the ICCPR. 

SEC. 3. UNDERSTANDINGS. 

The advice and consent of the Senate to the ratification of the 

Convention is subject to the following understandings, which shall 

be included in the instrument of ratification: 

(1) The United States of America understands that this Convention, including Article 8 thereof, does not authorize or require legislation or other action that would restrict the right of 

free speech, expression, and association protected by the Constitution and laws of the United States of America. 

(2) Given that under Article 1 of the Convention ‘‘[t]he purpose of the present Convention is to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities,’’ with respect to the application of the Convention to matters related to 

economic, social, and cultural rights, including in Articles 4(2), 

24, 25, 27, 28, and 30, the United States of America understands that its obligations in this respect are to prevent discrimination on the basis of disability in the provision of any 

such rights insofar as they are recognized and implemented 

under United States law. 

(3) Current United States law provides strong protections for 

persons with disabilities against unequal pay, including the 

right to equal pay for equal work. The United States of America understands the Convention to require the protection of 

rights of individuals with disabilities on an equal basis with 

others, including individuals in other protected groups, and 

does not require adoption of a comparable worth framework for 

persons with disabilities. 

(4) Article 27 of the Convention provides that States Parties 

shall take appropriate steps to afford to individuals with disabilities the right to equal access to equal work, including nondiscrimination in hiring and promotion of employment of persons with disabilities in the public sector. Current interpretation of Section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 

791) exempts United States military departments charged with 

defense of the national security from liability with regard to 

members of the uniformed services. The United States of 

America understands the obligations of Article 27 to take appropriate steps as not affecting hiring, promotion, or other 

terms or conditions of employment of uniformed employees in 

the United States military departments, and that Article 27 

does not recognize rights in this regard that exceed those 

rights available under United States law. 

(5) The United States of America understands that the terms 

‘‘disability,’’ ‘‘persons with disabilities,’’ and ‘‘undue burden’’ 

(terms that are not defined in the Convention), ‘‘discrimination 

on the basis of disability,’’ and ‘‘reasonable accommodation’’ are 

defined for the United States of America coextensively with the 

definitions of such terms pursuant to relevant United States 

law.

(6) The United States understands that the Committee on 

the Rights of Persons with Disabilities, established under Article 34 of the Convention, has an important, but limited and ad-
26

visory role. The United States understands that the Committee 

has no authority to compel actions by the United States, and 

the United States does not consider conclusions, recommendations, or general comments issued by the Committee as constituting customary international law or to be legally binding on 

the United States in any manner. The United States further 

understands that the Committee’s interpretations of the Convention are not legally binding on the United States. 

(7) The United States of America understands that the Convention is a nondiscrimination instrument. Therefore, nothing 

in the Convention, including Article 25, addresses the provision 

of any particular health program or procedure. Rather, the 

Convention requires that health programs and procedures are 

provided to individuals with disabilities on a nondiscriminatory 

basis.

(8) The United States of America understands that, for the 

United States of America, the term or principle of the ‘‘best interests of the child’’ as used in Article 7(2), will be applied and 

interpreted to be coextensive with its application and interpretation under United States law. Consistent with this understanding, nothing in Article 7 requires a change to existing 

United States Federal, State, or local law. 

(9) Nothing in the Convention limits the rights of parents to 

homeschool their children. 

SEC. 4. DECLARATIONS. 

The advice and consent of the Senate to the ratification of the 

Convention is subject to the following declarations: 

(1) The United States of America declares that the provisions 

of the Convention are not self-executing. 

(2) The Senate declares that, in view of the reservations to 

be included in the instrument of ratification, current United 

States law fulfills or exceeds the obligations of the Convention 

for the United States of America. 
27

X. MINORITY VIEWS OF SENATORS CORKER, RISCH,

RUBIO, AND JOHNSON

BACKGROUND

The Convention on the Rights of Persons with Disabilities is a 

multilateral treaty adopted by the United Nations General Assembly on December 13, 2006. While the United States joined consensus on adopting the Convention, the United States’ ultimate position on the convention was well known and had previously been 

explained in the ‘‘U.S. Participation in the United Nations, 2005’’ 

report to the Congress by the Secretary of State: 

Since the beginning of the negotiations in 2003 on the 

draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and 

Dignity of Persons with Disabilities (Disabilities Convention), the United States has maintained that disability 

issues are within the purview of domestic policy and law; 

therefore, the United States had no intention of becoming 

a party to the treaty. Ralph Boyd, Assistant Attorney General, stated during negotiations: ‘‘Given the complex set of 

regulations needed to canvass this broad area, and the enforcement mechanisms necessary to ensure equal opportunity for those with disabilities, the most constructive 

way to proceed is for each member state, through action 

and leadership at home, to pursue within its borders the 

mission of ensuring that real change and real improvement is brought to their citizens with disabilities. 

This position was reiterated subsequent to adoption of the Convention in the ‘‘U.S. Participation in the United Nations, 2006’’ report, which was delivered to the Congress in 2008.The report on 

U.S. Participation in 2006 also describes the limited nature of participation by the United States in negotiations over the text of the 

Convention:

In 2003, the U.S. delegation intervened during negotiations only to give technical advice on U.S. disability law 

and practice. In 2004, the delegation expanded its engagement to make interventions on issues or articles in the 

draft text involving international law or practice. In the 

January–February 2005 and August 2005 negotiations, the 

United States engaged on a number of key issues, such as 

establishment of a treaty monitoring body, family issues, 

and support for the overarching principle of non-discrimination. During the fall of 2005, the United States expanded its engagement to other issues. 

The United States did have considerable involvement on a few 

specific issues of particular concern. This involvement was described in the ‘‘Explanation of Position on the Convention on the 

Rights of Persons with Disabilities’’ announced by Ambassador 

Richard T. Miller, U.S. Representative to the UN Economic and Social Council on December 13, 2006 upon adoption of the Convention 

by the General Assembly. One such issue was the relationship of 
28

the Convention to the issue of abortion. As the Explanation of Position described: 

the United States understands that the phrase ‘‘reproductive health’’ in Article 25(a) of the draft Convention 

does not include abortion, and its use in that Article does 

not create any abortion rights, and cannot be interpreted 

to constitute support, endorsement, or promotion of abortion. We stated this understanding at the time of adoption 

of the Convention in the Ad Hoc Committee, and note that 

no other delegation suggested a different understanding of 

this term. 

Having signed the Convention on June 30, 2009, the President 

has twice referred the Convention to the committee for consideration, the Senate having voted against granting its advice and consent in the 112th Congress. The committee held hearings on the 

Convention on November 5 and 21, 2013. 

ANALYSIS

Federalism

Unlike the typical treaty, which governs the relationship between 

nation-states, the Convention on the Rights of Persons with Disabilities seeks to set an international standard for how nations, including the United States should it ratify the treaty, must treat 

their own citizens. In doing so, the treaty requires our democratically-elected legislative and executive branches at all levels to 

adopt extensive legislation and regulation governing matters of domestic policy. 

Because the Convention’s obligations are so expansive, the article 

by article analysis (the ‘‘analysis’’) enclosed in the Letter of Submittal cites 13 different federal statutes as well as provisions of at 

least 24 other federal laws that contribute to fulfilling them. While 

the Letter of Submittal is unclear on whether the United States 

would rely on state and local law to satisfy our obligations under 

the Convention, it notes that ‘‘certain treaty provisions cover matters traditionally governed by state law,’’ and goes on to assert that 

‘‘some state and local standards are less vigorous than the convention would require.’’ While the Administration concludes from this 

that it would be appropriate to adopt a federalism reservation to 

‘‘preserve the existing balance between federal and state jurisdiction,’’ it is not evident what this means in practice. 

The Administration’s proposed federalism reservation, which remains in the present resolution, states: 

This convention shall be implemented by the Federal 

Government of the United States of America to the extent 

that it exercises legislative and judicial jurisdiction over 

the matters covered therein, and otherwise by the state 

and local governments; 

The reservation therefore appears to explicitly assert that where 

the Federal Government does not ‘‘exercise . . . jurisdiction,’’ the 

Convention ‘‘shall be implemented . . . by state and local governments.’’ This would appear to contemplate state and local law ac-
29

counting for fulfilling some obligations of the United States. The 

reservation then states: 

to the extent that state and local governments exercise 

jurisdiction over such matters, the obligations of the 

United States of America under the convention are limited 

to the Federal Government’s taking measures appropriate 

to the Federal system, which may include enforcement action against state and local actions that are inconsistent 

with the Constitution, the Americans with Disabilities Act, 

or other Federal laws, with the ultimate objective of fully 

implementing the Convention. 

By first stating that the Convention ‘‘shall be implemented . . . by 

state and local governments,’’ and then by limiting our obligations 

in those areas where state and local governments exercise jurisdiction ‘‘to the Federal Government’s taking measures appropriate to 

the Federal system,’’ it is unclear whether the Administration 

seeks to limit the scope of our obligations under the treaty, or only 

the means by which our obligations will be fully implemented. 

While similar language can be found in understandings submitted 

by the United States with ratification of previous UN human rights 

conventions, and diplomatic ambiguity has its advantages, it also 

carries significant legal risks as discussed below. 

The Letter of Submittal’s article by article analysis also fails to 

bring clarity to the issue as it engages in significant discussion of 

relevant state laws throughout. In some cases, where it deems 

state and local law to be consistent with the Convention, the analysis appears to claim reliance on these state and local laws for 

United States compliance with the Convention. For instance, p. 42 

of the analysis describes: 

Various state criminal laws that require protection and 

reporting of exploitation, violence, and abuse, including of 

individuals with disabilities, also further compliance with 

this article [Article 16]. 

However, the analysis also suggests that some state laws may 

not comply with Convention standards. For instance, p. 32 of the 

analysis states: 

Despite these positive changes in guardianship provisions in most states, many state constitutions and statutory provisions continue to limit the full exercise of civil 

and political rights of persons deemed incompetent. 

In these instances where state law is not uniform and may fall 

short of the Convention’s requirements, the analysis indicates that 

U.S. compliance ‘‘is subject to the federalism reservation.’’ For instance, p. 31 of the analysis describes: 

Further, as described in detail below, and subject to the 

federalism reservation described above, there has been a 

significant trend toward the modernization of guardianship standards, moving most states into conformity with 

Article 12. 

This selective referral to the federalism reservation in instances 

when state laws may fall short raises again the question of wheth-
30

er the present reservation addresses general limits on the scope of 

our accepted obligations under the Convention, or only addresses 

the level of government that will be responsible for fully implementing them. 

These statements also raise concerns about Secretary Kerry’s testimony before the committee that ‘‘ratification doesn’t require a single change to American law.’’ 

These questions could have significant legal implications for the 

United States. First, by failing to clearly limit the scope of our obligations under the Convention in the federalism reservation while 

noting potential concerns about state level compliance, the United 

States risks the perception (and potential reality) of being in violation of our international legal obligations on a human rights treaty. 

This can harm our standing with those who share our values, and 

it can frustrate our efforts to encourage those who don’t. 

Second, we risk dramatically altering the Constitution. Under 

the Constitution, the federal government has limited powers, and 

much authority over the everyday lives of Americans is left to the 

states. However, in the 1920 Supreme Court case of Missouri v.

Holland, the Supreme Court is understood to have held that the 

federal government’s power can be expanded well beyond the Constitution’s normal limits through ratification of a treaty. Because 

the Convention deals extensively with matters that the Constitution typically leaves to the states, ratifying this treaty risks significantly expanding federal authority. 

The committee heard testimony from the Department of Justice 

in the 112th Congress stating that ‘‘the federalism reservation 

would preserve the existing balance of authority between the Federal Government and the States.’’ However, the committee heard 

testimony in its hearing on November 21, 2013 of the 113th Congress from Mr. Curtis A. Bradley, William Van Alstyne Professor 

at the Duke University School of Law, that none of the reservations adopted by the committee in the 112th Congress—which remain in the present resolution—‘‘‘adequately address[] the constitutional concerns.’’ Professor Bradley explained: 

The federalism reservation refers vaguely to ‘‘measures 

appropriate to the Federal system,’’ but that might include 

measures allowed under Missouri v. Holland, and the reservation specifically states that the federal government 

can take enforcement measures against state and local actions that are inconsistent with ‘‘other Federal laws,’’ 

which might include laws that Congress enacts in the future under the authority conferred by Missouri v. Holland.

Professor Bradley recommended that the committee adopt a reservation that ‘‘makes clear that the Convention will not expand the 

authority of the federal government,’’ and described precedent for 

such a reservation. 

Professor Bradley also pointed out that a strong federalism reservation is critical for another reason. The Convention’s terms are 

not coextensive with the Americans with Disabilities Act (ADA) 

and other United States law, and the Convention’s obligations go 

much further than the ADA in scope. As Professor Bradley noted: 
31

The Convention refers, for example, to the standards 

governing the care of children, a family law topic traditionally regulated in the United States under state rather 

than federal law. In addition, in its accessibility and other 

provisions, the Convention addresses private as well as 

governmental conduct, without any of the limitations that 

would normally apply to federal regulation of private conduct-such as a requirement of a connection to interstate 

commerce.

In addition, the Administration’s article by article analysis recognizes that ‘‘[a] core purpose of the convention’’ is to eliminate discrimination ‘‘in all sectors of society, including by private persons 

and entities’’, saying: 

[D]omestic civil rights legislation does not extend to absolutely all private discrimination against persons with 

disabilities, such as employment discrimination by a sole 

proprietor or rental of a single-family home. Further, individual privacy and freedom from governmental interference in certain private conduct are also recognized as 

among the fundamental values of our free and democratic 

society. As a result, a ‘‘non-regulation of certain private 

conduct’’ reservation is recommended[.] 

While the Administration’s proposed reservation purports to close 

the gap between the Convention and our laws, Professor Bradley 

explained that the reservation does not accomplish that goal due 

to flaws similar to those he identified in the Administration-proposed federalism reservation: 

[T]he private conduct reservation says that the United 

States is not accepting any obligation to regulate private 

conduct ‘‘except as mandated by . . . laws of the United 

States of America.’’ Those laws could include statutes enacted in the future pursuant to the authority allowed 

under Missouri v. Holland.

To address this, Professor Bradley correspondingly recommended 

that the committee adopt a strong federalism reservation. 

None of these issues are addressed in the present resolution and 

therefore ratification of the Convention on this basis would pose a 

substantial risk that the United States would not be in full compliance with our obligations under the Convention and that the Constitution had been altered to greatly expand the power of the federal government. 

Senate’s Advice and Consent to Treaties 

The Treaty Clause of the Constitution provides that the United 

States may not ratify a treaty without the Senate’s advice and consent. U.S. CONST. art. II, § 2, cl. 2. The requirement of two-thirds 

advice and consent by the Senate is an important Constitutional 

check on the treaty power, and is an especially important structural protection for our system of federalism. Recently, in Bond v.

United States, the Department of Justice argued both that Supreme Court precedent allows ratification of a treaty to expand existing federal power to legislate beyond its traditional limits, and 
32

that the Framers intended for the Senate to enforce federalism limits on treaties through its advice and consent power. A brief filed 

by several former Legal Advisors to the Department of State, who 

have served under presidents of both parties, supported the government’s position, arguing that ‘‘as a matter of both constitutional design and practice, the Senate serves as a ‘guardian of state interests.’ ’’ 

Thus far, the judicial branch has failed to place any federalism 

limits on the treaty power, and as a result, the responsibility falls 

to the Senate to protect our system of federalism from treaties that 

would inappropriately expand federal power, as well as to ensure 

the Senate’s advice and consent is not undermined when such a 

significant change to our constitutional structure is at stake. 

Removing any of the conditions of the Senate’s advice and consent undermines the predicate on which the treaty was ratified. 

Therefore, it is important to ensure that the Senate provides its advice and consent again before those RUDs may be altered or removed. As Professor Bradley noted: 

In my view, the best interpretation of the U.S. Constitution is that new senatorial advice and consent would be required for such a withdrawal. This action would, after all, 

undo something that was subject to the senatorial advice 

and consent process and, depending on what was being 

withdrawn, could have the effect of increasing U.S treaty 

obligations, which themselves require senatorial advice 

and consent. 

Historical practice also supports this view. When the United 

States withdrew its reservation to the Patent Cooperation Treaty, 

President Reagan sought (in 1984) and received (in 1986) the advice and consent of two-thirds of the Senate. However, as Professor 

Bradley describes: 

It is possible to imagine a situation, however, in which 

either the Executive Branch or a majority of Congress 

would attempt such a withdrawal. In doing so, the Executive Branch might invoke its general authority to act on 

behalf of the United States in foreign affairs, or Congress 

might analogize to its well-settled authority to override the 

domestic effects of a treaty under the ‘‘last-in-time’’ rule. 

Professor Bradley recommended that the committee adopt a RUD 

‘‘[t]o help preclude that possibility’’ and thereby ensure that the 

Senate’s advice and consent would be necessary for a reservation, 

understanding, or declaration to be withdrawn by the United 

States. A withdrawal RUD would make clear that neither the Executive acting alone, nor the Congress and Executive by passing legislation with a simple majority, may alter the terms of the United 

States ratification of a treaty. Were either to do so by withdrawing 

a strong federalism reservation, such action would essentially grant 

the federal government new, extra-constitutional powers under 

Missouri v. Holland, while at the same time bypassing the requirement of a two-thirds vote by the Senate, currently the Constitution’s strongest safeguard for federalism and state interests under 

the treaty power. 
33

Professor Bradley further recommended a RUD on non-severability to ‘‘ensure that the United States will not lose the benefit 

of its reservations, understandings, and declarations’’ should the 

Committee (or others) assert the authority to determine the validity of a United States reservation according to Article 46. 

During committee consideration of the Convention, Senator Ron 

Johnson offered two amendments to the resolution proposing that 

the committee adopt RUDs consistent with Professor Bradley’s recommendations on withdrawal and non-severability. While neither 

amendment was adopted by the committee, these issues are very 

real and must be addressed before the Senate acts. For example, 

Article 46 specifically allows for the withdrawal of reservations, 

and the Committee regularly urges States Parties to withdraw all 

reservations, understandings, and declarations that, in the view of 

the Committee, limit or misunderstand the Convention’s obligations. Without strong RUDs on these issues, therefore, there is the 

potential for RUDs that the Senate relies upon to be withdrawn or 

otherwise undermined while the Convention remains in effect. 

Bond v. United States 

The potential for a treaty to expand federal authority beyond 

normal constitutional limits was highlighted during committee consideration of the Convention in a Supreme Court case, Bond v.

United States. In that case, the federal government sought to employ a federal law implementing the Chemical Weapons Convention 

in order prosecute a purely intrastate crime relating to the use of 

otherwise lawful chemicals. The defendant claimed the statute violated the 10th Amendment, providing the Supreme Court a potential opportunity to revisit Missouri v. Holland.

In a 9–0 ruling, the Court avoided the constitutional issue entirely, and instead overturned the conviction by interpreting the 

statute narrowly to not apply to the defendant’s actions. While the 

Court held that Congress must be clear in its intent to intrude into 

an area of traditional state authority through a statute implementing a treaty, the Court did not address whether the Constitution, in fact, grants Congress the power to intrude into state authority in this way, and did not address the use or substance of reservations seeking to guard against such an outcome. The Court’s 

decision in Bond left Missouri v. Holland intact and therefore did 

not limit the potential for this Convention to alter the Constitution 

and significantly expand federal power beyond its normal limits. 

Sexual and Reproductive Health 

As previously described in the Background, Article 25(a) of the 

Convention addresses the provision of health care, including ‘‘sexual and reproductive health,’’ and the previous administration submitted statements explicitly declaring that this phrase ‘‘does not include abortion.’’ However, no language defining sexual and reproductive health has been placed in the present resolution, and an attempt to reiterate the United States’ Explanation of Position from 

2006 was defeated. Abortion remains a highly controversial issue 

in the United States, and as such, it should be determined through 

domestic processes, not at an international level. 
34

The Committee on the Rights of Persons with Disabilities 

The Convention also establishes the Committee on the Rights of 

Persons with Disabilities, which reviews reports submitted by each 

State Party on the implementation of its obligations and makes 

‘‘suggestions and general recommendations on the report as it may 

consider appropriate.’’ The Committee is therefore, in practice, the 

primary actor in defining State Party obligations and seeking to influence domestic policies that implement those obligations. While 

the Committee is comprised of 18 members nominated and elected 

by the States Parties, according to Article 34(3), ‘‘members of the 

Committee shall serve in their personal capacity’’ and therefore do 

not represent the country or government that nominated them. 

Therefore, while an American might be a member of the Committee, it is clear that even having such a representative would not 

fully provide the United States with the opportunity to have our 

national interests represented in the Committee’s deliberations 

about the treaty and its recommendations to States Parties. 

In practice, the Committee makes very detailed interpretations 

about the treaty’s requirements and often makes extensive criticisms of State Parties and recommendations for modifications to 

domestic law. Committee recommendations often resemble the following example from the Committee’s concluding observations on 

Australia:

The Committee is further concerned that under Australian law a person can be subjected to medical intervention against his or her will, if the person is deemed to be 

incapable of making or communicating a decision about 

treatment.

The Committee recommends that the State party repeal 

all legislation that authorizes medical intervention without 

the free and informed consent of the persons with disabilities concerned, committal of individuals to detention in 

mental health facilities, or imposition of compulsory treatment, either in institutions or in the community, by means 

of Community Treatment Orders. (emphasis added). 

The Committee has gone further, issuing global guidance on May 

19, 2014, which stated: 

On the basis of the initial reports of various States parties that it has reviewed so far, the Committee observes 

that there is a general misunderstanding of the exact 

scope of the obligations of States parties under article 12 

of the Convention. Indeed, there has been a general failure 

to understand that the human rights-based model of disability implies a shift from the substitute decision-making 

paradigm to one that is based on supported decision-making [ . . . ] Historically, persons with disabilities have been 

denied their right to legal capacity in many areas in a discriminatory manner under substitute decision-making regimes such as guardianship, conservatorship and mental 

health laws that permit forced treatment. These practices 

must be abolished in order to ensure that full legal capac-
35

ity is restored to persons with disabilities on an equal 

basis with others. 

While the Committee has no power to enforce its recommendations, by seeking to correct an interpretation that is apparently 

widely-held by the States Parties themselves, this example demonstrates the authority that the Committee claims for itself to interpret State Party obligations under the Convention. In addition, 

this example raises questions about the Administration’s analysis 

of United States compliance with Article 12, and raises again the 

questions of reliance on state law and the potential expansion of 

federal authority. 

Democratic Legitimacy 

As described above, the Convention covers expansive subject 

matter territory and is almost entirely devoted to domestic policy. 

While some of this territory simply seeks to establish the same fundamental rights of liberty, due process, and equal protection that 

our Constitution requires, the Convention also reaches considerably 

further into areas entirely reliant on legislative action, often on 

issues reserved to the several states under the United States Constitution. The Americans with Disabilities Act is our most significant legal regime governing disability protections and typifies the 

United States approach found across federal law. However, as described above, the Letter of Submittal references more than three 

dozen federal statutes that serve, at least in part, to fulfill our obligations under the Convention, not to mention a range of state and 

local laws. The policies embedded in each of these laws, and in the 

many state legal regimes governing matters addressed by the Convention, have been developed over the course of decades through 

the give-and-take of our democratic process. They thus represent a 

legacy of which most Americans are proud and believe demonstrates some of our nation’s highest values. 

Importantly though, our democratic process continues, and the 

history of United States leadership on disability policy is not frozen 

in time. Questions of housing, health care, income assistance, accessibility, mobility, communication and access to information, and 

of many other areas remain highly relevant in a country experiencing rapid technological change and scientific discovery. How to 

adapt our laws on these matters to our changing future will be 

rightly decided through democratic decision-making at the federal 

and at the state and local level, subject to the rights and requirements of the Constitution. And the results of that process of selfgovernment should not be called into question by treaty commitments. Rather, the results of that process gain their legitimacy because of that very process. 

Comments

The committee’s consideration of the Convention has brought 

substantial attention to the significant leadership role the United 

States has played in developing a greater understanding of the inherent dignity of every individual, and developing a new appreciation of the obligations of society to all its citizens. However, the 

committee’s consideration has also brought substantial attention to 
36

the fact that fundamental rights of life, liberty, citizenship, and 

equal treatment under the law go entirely unrealized in far too 

many places around the world. It is one of our core values, and it 

is in our national interest to promote respect for every human life. 

All agree that the United States is uniquely qualified and positioned to seek to impact those places to better the lives of those 

with disabilities who reside there, but also to enhance the opportunity for Americans abroad. While this treaty is not an appropriate vehicle for achieving these goals, principally because it has 

the potential to significantly alter the Constitution and because is 

not an appropriate tool for establishing domestic policy, substantial 

concrete action will be needed to bring about actual and tangible 

progress internationally. And the United States should continue to 

bolster those efforts. 
37

1 United Nations Convention on the Rights of Persons with Disabilities, Article 4 (1)(b). 

2 United Nations Convention on the Rights of Persons with Disabilities, Article 36 (1). 

3 John Kerry, Secretary of State, ‘‘Convention on the Rights of Persons with Disabilities,’’ Senate Foreign Relations Full Committee Hearing, November 21, 2013. 

XI.—MINORITY VIEWS OF SENATOR FLAKE

Under the Constitution, treaties are the ‘‘supreme law of the 

land.’’ A critical constitutional prerogative bestowed on the United 

States Senate is that of providing advice and consent to treaties 

and considering resolutions of ratification that enable the President 

to formally ratify them. It is of paramount importance that support 

for a resolution of ratification be carefully weighed; including consideration of national interests that may or may not be served. 

These decisions should not be made lightly. 

I am persuaded that the adoption of strong reservations, understandings, and declarations could address sovereignty concerns 

that have been raised with regard to United Nations Convention on 

the Rights of Persons with Disabilities. I am not, however, persuaded that the ratification of this treaty would provide the United 

States with a moral high ground that we currently lack. As the 

United States is the leader on disabilities policy in the world, I’m 

not certain higher ground is even a possibility. The Americans with 

Disabilities Act (ADA) has been the law of the land since 1990 and 

is recognized as the gold standard. In fact, it serves as the basis 

for much of this treaty. In addition, the United States Agency for 

International Development already administers programs across 

the globe aimed at helping the disabled. 

I am similarly unpersuaded that, if ratified, this treaty will have 

any substantive impact in other countries. While Article 4 of the 

treaty obligates parties ′′to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons 

with disabilities,′′ 1 there is nothing that compels them to act. The 

treaty would require each party to submit a report that details 

progress made on these obligations to the Committee on the Rights 

of Persons with Disabilities established by Article 34. This Committee is empowered to make ‘‘such suggestions and general recommendations on the report as it may consider appropriate and 

shall forward these to the State Party concerned,’’ 2 but no further 

actions are required. 

In testimony before the Senate Foreign Relations Committee on 

November 21, 2013, Secretary of State John Kerry said that ratifying the Treaty would ‘‘provide the leverage—the hook that we need 

in order to push other countries to pass laws or improve their laws 

or raise their standards for the protection of people with disabilities up to the standard that we have already adopted in the 

United States of America.’’ 3 However, countries that are party to 

the treaty are not actually obligated to do anything with regard to 

disability rights. There is little in the way of leverage that would 

be provided that is not already available through bilateral discussions and negotiations. 

Proponents of the treaty make a compelling argument that its 

ratification by other countries provides grassroots efforts there an 

instrument with which to hold a government’s feet to the fire with 
38

respect to advancing rights for the disabled. While I agree that the 

treaty can serve a useful purpose in this regard, it is already doing 

so in 147 countries. I am not persuaded that ratification by the 

United States will compel the few remaining countries in the world 

that have not yet ratified to do so. 

The United States continues to demonstrate its leadership in disability policy. This Committee has heard testimony that the treaty 

would not require us to change our laws. It does not appear that 

the treaty would require any legal or policy changes in other countries, either. As such, it would appear that ratification of this treaty would be little more than a symbolic gesture. I remain concerned 

that ratifying a treaty for purely symbolic purposes would dilute 

the importance and integrity of the treaty process altogether. 
39

XII.—ANNEX I.—TRANSCRIPT OF HEARING HELD ON NOVEMBER 5,

2013, WITH ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

CONVENTION ON THE RIGHTS OF 

PERSONS WITH DISABILITIES 

TUESDAY, NOVEMBER 5, 2013 

U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, DC. 

The committee met, pursuant to notice, at 2:30 p.m., in room 

SD–419, Dirksen Senate Office Building, Hon. Robert Menendez 

(chairman of the committee) presiding. 

Present: Senators Menendez, Boxer, Cardin, Coons, Durbin, 

Kaine, Markey, Corker, Johnson, Flake, McCain, and Barrasso. 

OPENING STATEMENT OF HON. ROBERT MENENDEZ, 

U.S. SENATOR FROM NEW JERSEY 

The CHAIRMAN. This hearing of the Senate Foreign Relations 

Committee will come to order. 

Let me welcome our panelists and all of our guests, who have 

taken the time to come here today for this important hearing on 

the rights of roughly 1 billion people around the world with disabilities.

Let me quickly welcome three guests: first, Congressman Tony 

Coelho, who has been a longtime champion of the rights of the disabled. I appreciate him joining us. 

Let me also recognize Ann Cody, a multiple Paralympic medalist 

representing the United States on three Paralympic teams. She has 

also been nominated to be the vice president of the International 

Paralympic Committee. I think Anne understands that it is not 

enough to just make the stadium accessible, you also need to make 

surrounding restaurants and businesses accessible, and we thank 

you for being here, and for your advocacy, as well. 

I also want to recognize Jagoda Risteska, who is a leader in the 

disability community in Macedonia. She is in the United States to 

learn about transportation and independent living systems. Here in 

the United States, having high public transportation standards 

allows her to work and live independently. And with the help of 

American leadership, she hopes to make that a reality at home, as 

well. So, we thank you for your work, and we welcome you here. 

And I hope that what we do here will help you in your efforts. 

Ann and Jagoda’s presence makes clear what we are here to do. 

Ratifying this treaty will help the United States lead in the effort 

to give every disabled person the opportunity to live, work, learn, 

and travel without undue barriers. There are 51⁄2 million American 

veterans with disabilities, young men and women who risked their 

lives to fight for us, and now it is our turn to fight for them to have 

full access and equal opportunity wherever they go. 
40

One hundred thirty-eight countries have already ratified the 

treaty, but protections will not come automatically. It will take 

U.S. ratification and U.S. leadership to ensure the treaty’s protections not only become a reality, but reflect American values. 

From the U.S. Constitution, the treaty borrows principles of 

equality and the protection of minorities. From the Declaration of 

Independence, it borrows the inalienable right to pursue happiness. 

And from the Americans with Disabilities Act and other landmark 

accessibility laws, the treaty borrows the concept of reasonable 

accommodation. By ratifying this treaty, we will be advocating for 

the adoption of American values around the world. 

At the end of the day, if we fail to ratify the treaty, the U.S. 

point of view and U.S. interests will be marginalized. We have 

heard from the State Department that they have gotten pushback 

in their accessibility advocacy because we are not a party to the 

treaty. We have also heard from NGOs who have been asked why 

American experts should be consulted on matters pertaining to a 

treaty we have not ratified. American businesses, the greatest 

accessibility innovators in the world, have expressed the fear that 

our diminished standing on disability rights could mean that markets for accessible goods might not expand as quickly as they otherwise would and that, in the future, our businesses might very well 

have less success advocating for U.S. accessibility standards. This 

raises the possibility that the world will adopt standards incompatible with the American standards that have proven so effective. In 

short, we need to ratify this treaty if we are going to lead the way 

in raising worldwide accessibility levels to the American standard. 

As we embark on the first of our two hearings on the Disabilities 

Treaty, I ask my colleagues to look past the fear-mongering some 

have engaged on in this debate. Ratifying this treaty will not mean 

bureaucrats in Europe will determine how many parking spots are 

in your church’s parking lot, as some have claimed. Our jobs as 

Senators require us to see through these smokescreens and see 

clearly that this treaty is about putting America in a position to 

help lead the world so that everyone—everyone—has the opportunity to fully achieve their dreams and fulfill their God-given 

talents.

Let me introduce Senator Corker, the ranking member, for his 

opening remarks, and then we will move toward the first panel. 

OPENING STATEMENT OF HON. BOB CORKER, 

U.S. SENATOR FROM TENNESSEE 

Senator CORKER. Mr. Chairman, thank you. And I appreciate you 

having these hearings so members can more fully understand the 

elements of this treaty. And I appreciate you having a diverse 

group of witnesses. I certainly appreciate my good friend, Kelly 

Ayotte, being here today. 

And I have to tell you, the meetings that we had last year, I 

think one of the most moving moments in time was to have two 

Senators—I think, John McCain and Tom Harkin—talking about 

what they had done together so many years ago to move the ADA 

law into existence. And so many things have occurred since then. 

I know we had a unanimous vote, back in 2008, on the ADA 
41

Amendments Act, and we have continued to make tremendous 

progress.

I do think that last year when this was considered, it was not 

considered in its fullness. It was rushed, and we did not really have 

the kind of hearings that it takes to ratify a treaty. A treaty has 

a different standard than most laws, with 67 votes, for obvious reasons. Again, I am glad that this year we are taking a little bit more 

methodical approach to that. 

I do want to say to the advocates of this piece of legislation and 

this treaty, I am really the—it is tremendous to see the effort that 

is underway to move people along in this regard. 

Whenever a bill or a treaty is passed, there are some unintended 

consequences. And I think it is our obligation to look at the effects 

that a treaty like this could have on domestic law. I am not one 

of those folks who thinks there is somebody behind every woodpile 

trying to do something. I just want to make sure that we, in fact, 

pass a treaty and it has the relevant RUDs. 

I want to just mention this to those that are here. When a treaty 

passes, there is something called ‘‘RUDs’’ on the front end. They 

are the things that we actually act upon to give a treaty its life 

here in the United States. Just today, there is a Supreme Court 

hearing that is taking place. Arguments are being argued over a 

lady in Pennsylvania named Bond, who, unbelievably, was convicted of a law under the Chemical Weapons Treaty that we put 

in place back in 1997. And so, sometimes when people raise concerns, they are actually legitimate. 

And I would just ask committee members to try to work with 

those of us who understand that we want to advance the rights of 

people who are disabled throughout the world. I want to. I think 

that is a good thing. At the same time, within a treaty, unless the 

RUDs on the front end are put in place in an appropriate way, 

there can be some consequences here, domestically, that affect people in various groups. 

So, again, I am neutral. I just proclaim, right now, I do not have 

a position on this treaty. I do appreciate the energy that has been 

put forth toward this treaty. At the same time, I want to make 

sure that we, as a committee and hopefully as a Senate, get it 

right. We have worked some with John Kerry already, and his 

staff, to see if there are some ways of making sure that some of 

those unintended consequences do not come to bear. 

Again, we have a real-life scenario today. At the Supreme Court, 

where literally a treaty is taking precedent over the laws of Pennsylvania and over the United States as someone that has been convicted, believe it or not, under a Chemical Weapons Treaty—by the 

way, that did not work for Assad, but is working right now against 

someone in Pennsylvania. 

So, I thank you for, again, these hearings. I look forward to a 

very vigorous debate. I look forward especially to my good friend 

Kelly Ayotte’s testimony. And I look forward to working with all to 

come up with a good outcome here. 

Thank you. 

The CHAIRMAN. Thank you, Senator Corker, and we also look forward to an open and intellectually honest debate, and we stand 

ready to work with any member who wants to get to ‘‘yes,’’ in terms 
42

of finding the opportunity to address their concerns in the reservations, understandings, and declarations. And I look forward to that 

opportunity to achieve that goal. 

Our first panel is two of our—well, going to be two of our colleagues, and presently only one of our colleagues is here—Senator 

Kelly Ayotte, who has been a champion of the treaty, an advocate 

for it, and has worked with us to try to achieve the goal of getting 

the votes necessary. I know she is here in her own right, as well 

as in speaking on behalf of Senator Bob Dole, who is a great champion of the treaty and an icon here in the Senate. 

And as I recognize you, let me also thank Congressman Bartlett, 

who I understand is here with us from the House. 

Congressman, thank you very much, I appreciate your being here 

with us. 

And, with that, our distinguished colleague, Senator Ayotte. 

STATEMENT OF HON. KELLY AYOTTE, 

U.S. SENATOR FROM NEW HAMPSHIRE 

Senator AYOTTE. Thank you very much, Chairman Menendez, 

Ranking Member Corker, honorable members of the committee. 

I am deeply humbled to be here today. First of all, my primary 

purpose of being here today is to read the statement of Senator 

Robert Dole, someone who was an extraordinary leader in the 

United States Senate. He is someone who is a role model, in terms 

of what it means to be a public servant. And we all appreciate that 

he is a true American hero with the service that he gave to our 

country.

And so, I am deeply honored to be here. I personally support 

what this committee is doing. The Convention on the Rights of Persons with Disabilities, I think, is very, very important for us to 

work together to get this passed. And so, I look forward to working 

with the chairman and other members of the committee to do that 

and to address any concerns that members of the committee may 

have. But, my primary purpose of being here today is to read the 

statement of Senator Robert Dole, and so I will do that right now. 

‘‘Chairman Menendez, Ranking Member Corker, and members of 

this committee, I urge you to give your support and consent to the 

Convention on the Rights of Persons with Disabilities. While I cannot stand before you in person today, I approach you in the strong 

hope that, on your second examination of this important treaty, you 

will again do the right thing and advance the rights of disabled 

individuals from the United States and throughout the world. 

‘‘In so doing, I am privileged to join with over 20 veterans organizations, 40 religious groups, more than 700 disability and allied 

groups, dozens of you on both sides of the Senate aisles, and many 

other prominent Americans who recognize the imperative of United 

States leadership on this issue, a leadership that will be imperiled 

without the United States ratification of the Convention on the 

Rights of Persons with Disabilities. 

‘‘When this treaty came before the Senate last year, it fell just 

five votes short of passage. In debating the treaty’s merits, treaty 

opponents expressed concern that the CRPD would diminish American sovereignty, that, through U.S. ratification, the United 

Nations would somehow be able to supersede U.S. law, even by 
43

interfering with American parents’ right to homeschool their children. Along with Senator John McCain, Secretary John Kerry, and 

others, I could not disagree more strongly with this view. This treaty contains reservations, understandings, and declarations, otherwise known as RUDs, that explicitly describe how the treaty will, 

and will not, apply to the United States. 

‘‘At the same time, I respect this institution, its provisions for 

debate, and its tolerance of the opinions and conclusions of its 100 

members. Today, I urge all of you to keep an open mind and recognize another important characteristic of this august body, the 

opportunity it presents for policies to evolve and be strengthened 

as members work together in a bipartisan fashion for a greater 

good.

‘‘This treaty, in a way that is both telling and unique, enjoys the 

support of diverse groups serving a variety of interests: Republicans and Democrats, veterans organizations and disability groups, 

businesses, and religious organizations. Given the broad support, I 

hope those of you with reservations about any aspect of the treaty 

will work with your colleagues, whom I know are ready to work 

with you to address your concerns. If improvements to the RUDs 

are needed, then I urge members from both parties to work 

together on that. 

‘‘This treaty is important for America because of who we are as 

a nation. It is particularly important, though, for a distinguished 

group, of which I am a member. As I recalled in my statement to 

this committee last year, I left World War II having joined an 

exceptional group, one which no one joins by personal choice. It is 

a group that neither respects nor discriminates by age, gender, 

wealth, education, skin color, religious beliefs, political party, 

power, or prestige; so, therefore, has the importance of maintaining 

access for people’’—excuse me—‘‘that group, Americans with disabilities, has grown in size ever since, so, therefore, has the importance of maintaining access for people with disabilities to be part 

of mainstream American life, whether through access to a job, an 

education, or registering to vote. To me, this is not about extending 

a privilege to a special category of people; it is, instead, about civil 

rights.

‘‘When Congress passed the Americans with Disability Act in 

1990, it was not only one of the proudest moments of my career, 

it was a remarkable bipartisan achievement that made an impact 

on millions of Americans. The simple goal was to foster independence and dignity, and its reasonable accommodations enabled 

Americans with disabilities to contribute more readily to this great 

country.

‘‘If not before the ADA, then certainly after its passage, our 

Nation led the world in developing disability public policy and 

equality. In recent years, many countries, including our allies in 

Australia, Britain, Canada, France, Germany, Israel, Mexico, and 

South Korea, have followed our lead. 

‘‘In 2006, President George W. Bush took U.S. leadership on this 

issue to a new level by negotiating and supporting approval of the 

CRPD. On the anniversary of the ADA in 2009, President Barack 

Obama signed the treaty, a landmark document that commits 

countries around the world to affirm what are essentially core 
44

American values of equality, justice, and dignity. U.S. ratification 

of the CRPD will increase the ability of the United States to 

improve physical, technological, and communication access in other 

countries, thereby helping to ensure that Americans, particularly 

many thousands of disabled American veterans, have equal opportunities to live, work, and travel abroad. 

‘‘In addition, the treaty comes at no net cost to the United States. 

In fact, it will create a new global market for accessibility of goods. 

An active U.S. presence in implementation of global disability 

rights will promote the market for devices such as wheelchairs, 

smartphones, and other new technologies engineered, made, and 

sold by United States corporations. 

‘‘With the traditional reservations, understandings, and declarations that the Senate has adopted in the past, current U.S. law satisfies the requirements of the CRPD. Indeed, as President George 

H.W. Bush informed this committee last year, the treaty would not 

require any changes to U.S. law. It would extend protections pioneered in the United States to more than 1 billion people with disabilities throughout the world. 

‘‘President Obama has again submitted the treaty to you for your 

advice and consent. I urge you to seize this critical opportunity to 

continue the proud American tradition of supporting the rights and 

inclusion of people with disabilities. 

‘‘Years ago, in dedicating the National World War II Memorial, 

I tried to capture what makes America worth fighting for—indeed, 

dying for. ‘This is a golden thread that runs throughout the tapestry of our nationhood,’ I said ‘the dignity of every life, the possibility of every mind, the divinity of every soul.’ I know many of you 

share this sentiment, and hope you will consider this treaty 

through that lens. In ratifying this treaty, we can affirm these 

goals for Americans with disabilities. 

‘‘I urge you to support United States ratification of this important treaty, and I thank you for the courtesy of your consideration. 

God bless America.’’ 

The CHAIRMAN. Thank you, Senator Ayotte, for your own advocacy, and our thanks to Senator Dole for his own long-standing 

advocacy in this regard. We appreciate you coming before the committee to express his sentiments. 

Senator AYOTTE. Thank you, Chairman Menendez, Ranking 

Member Corker. And I am deeply, deeply honored, here, to be, as 

well, with my colleague Senator Mark Kirk. 

The CHAIRMAN. Which we are going to turn to next. 

We welcome to the committee a friend, a colleague, Senator Kirk. 

I know that Senator Durbin wanted to be recognized to both welcome his colleague from Illinois as well as recognize Congresswoman Duckworth. 

STATEMENT OF HON. RICHARD J. DURBIN, 

U.S. SENATOR FROM ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman. I will be 

very brief. 

When the history of the United States Senate and Congress are 

written about the year 2013, there are high points and low points, 

but one of the highest points was January 3 of this year, because 
45

it was on January 3 when our colleague, Mark Kirk, returned to 

the United States Senate determined to climb those 45 steps into 

the Senate. He had endured a life-threatening stroke, three brain 

surgeries, hundreds of hours of rehabilitation, but he was coming 

home—coming back to his job in Washington. For all of the negative and partisan things that are said, if someone could have witnessed that scene on the steps and watched your colleagues, Mark, 

stand and applaud, colleagues of both political parties, it was a 

reaffirmation not only of what the Senate really should be about, 

but also a tribute to you, your determination and your courage. I 

was honored to come up those stairs with you, and honored, still, 

to serve as my fellow colleague from Illinois. 

I will introduce Congressman Duckworth when she is—on the 

next panel. 

But, Mark, thank you very much. 

The CHAIRMAN. Senator Kirk, the floor is yours. 

STATEMENT OF HON. MARK KIRK, 

U.S. SENATOR FROM ILLINOIS 

Senator KIRK. Mr. Chairman, I want to thank you for—— 

The CHAIRMAN. If you would just turn your microphone on. 

Senator KIRK. I would like to also say, as a recently disabled 

American, to speak for what I would call my fellow broken people, 

how important it is to adopt this Convention. I want to introduce 

you to a constituent of Senator Durbin’s and mine, Steve Baskis. 

He is a veteran of Iraq and lost his sight in battle in that country— 

27 years old. I want you to think about him as—too often, you 

know, we have a problem in thinking of our veterans as victims. 

They are victors. Steve is an ardent rock climber. He is one of those 

victors that Tammy and I see all the time—right, Tam? See, we 

rehab a lot in Walter Reed, where, in that room where we are 

working all the time are about 20 legs or arms missing for those 

guys. But you cannot hold those guys back. I would just say that 

this Convention allows people to ‘‘go, man, go,’’ and become victors 

instead of victims. 

[The prepared statement of Senator Kirk follows:] 

PREPARED STATEMENT OF SENATOR MARK KIRK

I am honored to come before the committee to express my support for the Convention on the Rights of Persons with Disabilities. As you know, in January 2012, I 

suffered an ischemic stroke that left me dependent on a cane or wheelchair to get 

around. I walk slowly, speak slowly, and have limited vision on my left side. Thanks 

to the Americans with Disabilities Act and other disability laws and polices we have 

in place here in the United States, I have not been sidelined by my disabilities. 

For younger Americans, it may be difficult to imagine a country where sidewalk 

corners don’t have ramps or where public buses don’t have hydraulic lifts—but in 

many parts of the world these basic accessibility measures still don’t exist. Throughout the world too many persons with disabilities, including innocent children, live 

in the shadows—socially, economically, and politically shunned, solely on the basis 

of their disabilities. 

America must remain the voice for the voiceless—the leader to end disabilitybased discrimination and exclusion throughout the world. We now have commitments from many countries to promote and ensure equal access for their citizens 

living with disabilities. The CRPD is the mechanism for these commitments to 

become a reality. 

I understand the skepticism among some of my colleagues with regard to United 

Nations treaties. I remain a critic of several U.N. agencies and treaties for their lack 

of transparency, accountability, and distribution of power to tyrants and human 
46

rights abusers. But this treaty is not about politics, it isn’t about pity, it is about 

opportunity and access for those of us living with disabilities. 

Unlike other U.N. treaties, there are really only advantages to ratification of the 

CRPD—and the American people understand these advantages. A coalition of more 

than 700 disability, faith, veteran, and business organizations have voiced their support of the treaty. They know that the CRPD will help unlock American access 

abroad—all without threatening our sovereignty, changing our laws or spending taxpayer money. 

Think about our wounded warriors and other Americans with disabilities hoping 

to travel the world. Will their wheel chair fit through their hotel room door? Will 

their business conference venue have an elevator? Will they be allowed to bring 

their guide stick or will it be mistaken for a weapon? Put simply, will they be denied 

the same dignity and access abroad that we now take for granted here at home? 

Consider this inspiring story from one of my constituents. Coming from a military 

family, Steve Baskis, from Normal, IL, had always known he wanted to serve his 

country. In January 2007, he enlisted in the Army and was deployed to Iraq a year 

later. His life was forever changed when while on combat patrol an explosively 

formed penetrator sent a projectile through his armored vehicle, killing his friend 

and leaving him without vision and control of his left hand. Grateful for the second 

chance at life, Steve has endeavored to live life to the fullest, traveling domestically 

and internationally to compete in various sporting events and most impressive, 

climb mountains. However, it is not without challenges—he once said it is ‘‘more 

difficult to navigate through airport security in some foreign countries than it is to 

climb a mountain.’’ Despite the barriers, he has not allowed his disability to thwart 

his quest for adventure. 

I regularly go to Walter Reed Medical Center for my own physical therapy. 

Watching our wounded warriors fighting to reenter the world, I am constantly 

inspired by their determination in the face of adversity. They, like Steve, fought for 

our freedom and paid a heavy price; let’s fight for their freedoms and defend their 

rights and access when they travel abroad. 

In addition to our veterans, the CRPD will help advocate for the rights of our 

disabled athletes that wish to represent the U.S. on the international stage—like 

15-year-old Brody Roybal from Northlake, IL, who is the youngest athlete on the 

U.S. Sled Hockey national team that will soon compete in the 2014 Sochi 

Paralympics. Brody proudly represents the Rehabilitation Institute of Chicago (RIC) 

Blackhawks, the very same facility where I completed my rehabilitation. 

While my stroke prevented me from voting for this treaty in the last Congress, 

I am proud to be here today to lend my support this time around. The U.S. Senate 

should do the right thing and ratify the Convention on the Rights of Persons with 

Disabilities.

The CHAIRMAN. Thank you, Senator Kirk. We appreciate you 

being here with us, sharing those sentiments, and we appreciate 

your advocacy, as well, for the treaty. 

Senator KIRK. Mr. Chairman, could you—sorry—I will point out, 

the explosively foreign projectile that hurt Steve was made in Iran. 

The CHAIRMAN. Yes. There is no more passionate proponent of 

trying to stop Iran’s nuclear weapons, as well as their acts of terrorism. So, thank you for that, as well. 

I know you both have busy schedules, so we will—with our 

thanks of the committee, we will excuse you both. 

And let me call up our second panel. We have a large panel here, 

so I ask the witnesses to limit their presentations to 5 minutes so 

that the committee can engage in a question-and-answer session to 

them.

The full statements of each and every one of our panelists, that 

were submitted to the committee prior to this hearing, will be 

entered into the record in full, without objection. 

First, we have Tom Ridge, former Secretary of Homeland Security and current chairman of the National Organization on Disability, to discuss his support for the treaty and the importance of 

ratification. I know that the Secretary changed his schedule to be 

with us today. He is a keynote speaker at a disabilities-related 
47

event this evening in New York, so we will be excusing him around 

4:30 or so. 

Mr. Secretary, please join us, and thank you for rearranging your 

schedule to be here today. 

I will leave Congresswoman Duckworth to be recognized by Senator Durbin, but we have someone who has done a tremendous 

amount of work at the Department of Veterans Affairs and whose 

personal testimony about her personal experience as a wounded 

warrior is invaluable to the committee. 

I want to ask former Attorney General Richard Thornburgh to 

join us, as he is here to discuss the practical importance of ratification.

And let me also recognize his wife, Ginny, who is accomplished 

in the field of disability advocacy in her own right. We appreciate 

you being here, as well. 

Let me ask Dr. Susan Yoshihara, from The Catholic Family & 

Human Rights Institute, Professor Timothy Meyer, the assistant 

professor of law at the University of Georgia School of Law, and 

Dr. Michael Farris, to join us, as well, as they offer their views on 

the treaty. 

Thank you all. 

Let me turn to Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman. 

I am really honored that two of the witnesses are from Illinois, 

and especially honored, in addition to saying a word about our colleague, Mark Kirk, to say a word about Tammy Duckworth, 

because it is interesting how we came to meet. 

I invited her to be my guest at a State of the Union Address in 

2005. She came in, in her wheelchair, and I did not realize it was 

only 9 or 10 weeks after she had been shot down serving in the Illinois Army National Guard and copiloting a Black Hawk helicopter 

in Baghdad. She had lost both of her legs, and there was a question, then, about one of her arms. But, she came, with a big smile 

on her face, in full dress uniform, with her husband, also a 

National Guard officer, pushing the wheelchair behind her. And 

that is when we came to meet. 

It is an incredible story. And the most amazing part of the story 

is—to me, is that, in just a week from now, it will be an observance 

of her ninth alive day—ninth anniversary of her alive day, of her 

survival from that helicopter incident and the crash that followed. 

She has led such an amazing and inspiring life since. Tomorrow, 

she celebrates her first anniversary as a Member of the United 

States House of Representatives. She has worked so hard for so 

many people and so many veterans and people with disabilities. I 

am honored to count her as a friend and glad that she can join us 

today.

The CHAIRMAN. Thank you very much. 

Thank you all for joining us. As I said, we will ask you to limit 

your remarks to about 5 minutes. Your full statements will be 

included in the record. And we will start with Secretary Ridge. 

Mr. Secretary. 

Mr. RIDGE. Well, I was going to defer to Tammy. Ladies first? 

The CHAIRMAN. We will start with Congresswoman Duckworth, 

then. [Laughter.] 
48

I never argue with the Secretary—— 

Ms. DUCKWORTH. I never argue with the Secretary, either, 

Mr.——

The CHAIRMAN [continuing]. Especially when his testimony is 

along my views. So, you know—— 

[Laughter.]

Mr. RIDGE. After that great introduction, it should only be that 

way.

Ms. DUCKWORTH. Thank you. 

STATEMENT OF HON. TAMMY DUCKWORTH, CONGRESSWOMAN FROM ILLINOIS AND LIEUTENANT COLONEL, ILLINOIS ARMY NATIONAL GUARD, WASHINGTON, DC 

Ms. DUCKWORTH. Thank you. Chairman Menendez, Ranking 

Member Corker, members of the Foreign Relations Committee, 

thank you so much for the opportunity to speak today in support 

of the Convention on the Rights of Persons with Disabilities. 

I believe CRPD ratification is integral to our Nation’s global leadership role. We set the gold standard in our lifelong commitment 

to our disabled veterans. We have what should be the gold standard in disability access, yet our legitimacy to lead other nations is 

weakened because we have not yet ratified the CRPD. 

There are over 51⁄2 million veterans with disabilities in the 

United States, and this number will continue to grow as we welcome back our servicemembers from their deployments. We are fortunate to have many laws, most importantly the Americans with 

Disabilities Act, that make sure our veterans are welcomed back 

with the dignity and respect they deserve. 

The passage of the ADA showed a United America. Republicans 

and Democrats standing up together for the rights of disabled persons. America’s leadership inspired many around the world to seek 

justice and fairness for disability communities in their own countries. Unfortunately, our laws do not follow servicemembers and 

veterans when they are outside U.S. borders. When veterans travel 

abroad, they are often jolted by leaving our Nation, that does 

everything in its power to support our wounded warriors. 

I traveled to Asia earlier this year, and I saw firsthand how even 

countries that are moving forward economically are not keeping 

pace with the necessary protections for disabled persons. For example, disabilities groups that I met with told me about the challenges they face in trying to make public buses wheelchairaccessible. It is a sad fact that, in many countries around the 

world, the disabled are hidden, considered to be an embarrassment, 

and not afforded the accommodations they need to lead productive 

lives. It is not surprising, then, that, when disabled Americans 

travel abroad, we can find ourselves mistreated and rejected simply 

because we are physically developmentally, or cognitively disabled. 

Without U.S. ratification of the CRPD, those of us who are disabled 

and active lose the ability to set an example when traveling overseas.

Blinded veterans have had their guide sticks taken away after 

being mistaken for weapons. People with artificial limbs have been 

told to store them in overhead bins. As one blinded veteran who 
49

ventures around the world climbing its tallest peaks recently put 

it, ‘‘Climbing the mountains is not the challenge. Getting there is.’’ 

Many wounded warriors are returning to Active Duty service. 

They should not be limited by their disability as to where and how 

they can leave their impact on the world. We do want to travel, 

work, and, yes, serve abroad, but our service abroad will be limited 

if we do not start thinking globally about accessibility and how the 

United States can have an impact now on this issue. 

The generous benefits provided by the post-9/11 GI bill that 

many on this very committee supported have given almost a million Iraq and Afghanistan veterans the opportunity to further their 

education. Many of these veterans are disabled and will be unable 

to enhance their education with study-abroad opportunities because 

of a lack of disability access overseas. It is sad that those who 

fought for our freedoms would find their own freedoms restricted 

now that they are moving on with their lives. 

Accessibility abroad also impacts current servicemembers. For 

those that have a child or a family member with a disability, the 

lack of access in the country of their duty station can mean limited 

opportunities for their children or employment for their spouses. 

These servicemembers may have to face the very difficult choice 

between a career-enhancing tour of duty or leaving their loved ones 

behind, here in the United States. This is unfortunate, because the 

Department of Defense provides many accommodations for the 

needs of military families. For example, the DOD will pay for 

homeschooling supplies, equipment, and support for servicemembers with families in the Exceptional Family Member Program, yet if a servicemember fears negative stigma from joining 

the program, they are likely to miss out on a homeschooling benefit 

that might have allowed their childrens with disabilities to accompany them on an enriching overseas assignment. 

For all these reasons, the Veterans of Foreign Wars, the Iraq and 

Afghanistan Veterans of America, and the Blinded Veterans of 

America all support ratifying this vital treaty. 

In August, I was thrilled to cheer on the American Legion when 

their membership unanimously voted to support ratification of the 

CRPD at their annual convention. 

We wounded warriors have done our job serving our country. 

Many of us sacrificed a great deal in doing so. We did this because 

we believe in this Nation, we believe our country should lead, that 

the world is a better place when the United States steps up to take 

leadership. And when it comes to improving opportunities for disabled Americans who want to travel and work abroad, veterans 

believe we should have a seat at the head of the table. It is time 

that the United States reaffirms itself as a leader for fairness and 

justice. We must stand as an example for those with disabilities 

around the world. We have done it before, and we can do it again. 

Thank you so much for your time. 

[The prepared statement of Ms. Duckworth follows:] 

PREPARED STATEMENT OF CONGRESSWOMAN TAMMY DUCKWORTH

Chairman Menendez, Ranking Member Corker, and Members of the Foreign Relations Committee, thank you for the opportunity to speak today in support of the 

Convention on the Rights of Persons with Disabilities. I am a strong supporter of 

the disability treaty for many reasons. 
50

I believe ratification is integral to our Nation’s global leadership role. We set the 

Gold Standard in our lifelong commitment to our disabled Veterans. We have what 

should be the Gold Standard in disability access, yet our legitimacy to lead other 

nations is weakened because we have not yet ratified the CRPD. 

The CRPD will allow Veterans with disabilities to have greater opportunities to 

work, study abroad, and travel as countries implement this treaty. Veterans, active 

Service Members and their families who are affected by disability will be able to 

lead active lives around the world. 

LEGACY OF THE AMERICANS WITH DISABILITIES ACT

There are over 51⁄2 million Veterans with disabilities in the United States. And 

this number will continue to grow as we welcome back our Service Members from 

their deployments in a number of conflict zones. We are fortunate to have many 

laws, most importantly the Americans with Disabilities Act, that make sure our 

Veterans are welcomed back with the dignity and respect they deserve. 

The ADA makes life easier for the thousands of wounded Veterans returning from 

Iraq and Afghanistan who face tremendous challenges adjusting to civilian life with 

a new disability. Accommodations like curb cuts, accessible entrances, vehicles and 

public transportation are so crucial to allowing these proud men and women to live 

independent lives. The importance of this cannot be understated for our Nation’s 

Veterans, including myself. 

The ADA is essential in helping me overcome the obstacles I face as a Wounded 

Warrior and gives me the opportunity to assist other Veterans. It allows me to be 

physically active, resume my pilot privileges, and serve in Congress. The ADA gave 

me the opportunity to move forward with my life. 

This historic legislation was a true bipartisan effort. It was introduced by Senator 

Tom Harkin and advocated for by a fellow Veteran, Senator Bob Dole. It saw support from President George H.W. Bush and Senator Ted Kennedy, among many 

other Republicans and Democrats. The passage of the ADA showed a united America standing up for the rights of disabled persons. America’s leadership inspired 

many around the world to seek justice and fairness for disabled communities in 

their countries. It is one of the main reasons we now have the opportunity to ratify 

the Convention on the Rights of Persons with Disabilities. 

INTERNATIONAL TRAVEL

Unfortunately, our laws do not follow Service Members and Veterans when they 

are outside U.S. borders. When Veterans travel abroad, we are often jolted by leaving a country that does everything in its power to support our Wounded Warriors. 

We often travel to places that have no idea how to accommodate someone with an 

artificial limb, guide stick, or wheelchair. 

It is a sad fact that in many countries around the world, the disabled are hidden, 

considered to be an embarrassment and not afforded the accommodations needed for 

them to lead productive lives. It is not surprising then that when disabled Americans travel abroad, we can find ourselves mistreated and rejected simply because 

we are physically or cognitively disabled. Without U.S. ratification of the CRPD, 

those of us who are disabled and active lose the ability to set an example when 

traveling overseas. 

International travel is an obstacle for the disabled. It is reflective of a grander 

global misunderstanding of disability. Blinded Veterans have had their guide sticks 

taken away after being mistaken for weapons. People with artificial limbs have been 

told to store them in overhead bins and others have been stranded abroad when one 

leg of a flight accommodates wheelchair users, but the next one does not. As one 

blinded Veteran, who ventures around the world climbing its tallest peaks recently 

put it, climbing the mountains is not the challenge but it is the getting there that 

is.

The generous benefits provided by the post-9/11 GI bill that many on this committee supported, have given almost a million Iraq and Afghanistan Veterans the 

opportunity to further their education. Many of these Veterans are disabled, however, and will be unable to enhance their education with study abroad opportunities 

because of a lack of disability access overseas. It is sad that those who fought for 

our freedoms would find their own freedoms restricted now that they are moving 

on with their lives. 

I am proud to be the first Member of the United States Congress born in Thailand 

and I traveled there earlier this year. I saw firsthand how even countries that are 

moving forward economically are not keeping pace with the necessary protections 

for disabled persons. For example, disability groups I met with in Thailand told me 
51

about the challenges they face in trying to make public buses wheelchair accessible. 

The U.S. has an opportunity to lead, but to do so, we must first ratify this treaty. 

Many Wounded Warriors are returning to active duty, despite having a disability. 

They should not be limited by their disability as to where and how they can leave 

their impact on this world. We do want to travel, work and yes, serve, abroad. Our 

service abroad will be limited if we do not start thinking globally about accessibility 

and how the U.S. can have an impact now on this issue. 

CURRENT SERVICE MEMBERS

When I visit injured service members at bases around the world, we are consistently met with the issue that they cannot leave the base for lack of accessibility. 

Last May, I returned for the first time to the war zone where I was injured. I am 

thrilled that Iraq and Afghanistan recently ratified the CRPD, but I know that they 

will need American leadership in order to rebuild their communities to be accessible 

to the disabled. 

Accessibility abroad also impacts our current Service Members. For those of them 

that have a child or family member with a disability, the lack of accessibility in the 

country of their duty station can mean limited opportunities for children or employment for spouses. These Service Members may have to face the difficult choice 

between a career-enhancing tour of duty and having to deploy while leaving their 

loved ones behind. 

In order to facilitate a military family’s movement abroad, families are asked to 

enroll in the Exceptional Family Member (EFM ) program. GAO reports have found 

that a fair number of families intentionally opt not to enroll in the EFM program 

because they are concerned that enrollment may adversely affect Service Members’ 

careers. They are afraid that they will only be placed in countries with stronger disability protections, laws, and services. 

This is unfortunate since the Department of Defense provides many accommodations for the needs of military families. For example, the DOD will pay for 

homeschooling supplies, equipment, and support for Service Members with families 

in the Exceptional Family Member program. Yet if the Service Member fears negative stigma from joining the EFM, they are likely to miss out on a homeschooling 

benefit that might have allowed their children to accompany them on an enriching 

overseas assignment. 

The CRPD will allow our Service Members to deploy to more locations without 

concerns that host nations will not be able to accommodate their families’ needs. 

U.S. LEADERSHIP

For all these reasons, The Veterans of Foreign Wars, Iraq and Afghanistan Veterans of America, and Blinded Veterans of America all support ratifying this vital 

treaty. In August, I was thrilled to cheer on the American Legion when their membership unanimously voted to support ratification of the CRPD at their annual convention. A few weeks later, I welcomed their new Commander to the Joint Session 

of the Veterans Committee to thank them for their leadership. I was touched by the 

room full of Legion members who expressed to me through their nods and applause 

what this treaty means to them. 

I know much of the opposition to this treaty comes from a lack of information. 

I strongly disagree that the U.S. might be hurt by ratifying the CRPD. Rather, I 

think this is a tremendous opportunity for us to lead in an area where we are 

clearly the best in the world. 

The treaty needs U.S. leadership and expertise for implementation. We have the 

top medical device manufacturers of disability access equipment in the world. Those 

wheelchair accessible buses that I hope will be purchased for use in Thailand should 

be provided by American companies. Thanks in large part to the work of disabled 

Veterans, we have opened the world of competitive athletics to the disabled. Our 

Vietnam Veterans fought successfully to open marathons and the Olympics to disabled athletes, and today, many Paralympians are a new generation of Warriors 

wounded in Iraq and Afghanistan. Our educational and medical institutions like the 

Rehabilitation Institute of Chicago and the Alexian Brothers’ Veterans Mental 

Health Program in Hoffman Estates, Illinois should be the global leaders in their 

fields. However, if we do not ratify this treaty, we open the door for other nations 

with strong rehabilitation programs to take on this global leadership role. 

We Wounded Warriors have done our job serving our country. Many of us sacrificed a great deal in doing so. We did this because we believe in our Nation. We 

believe our country should lead—that the world is a better place when the U.S. 

steps up to take leadership. And when it comes to improving opportunities for dis-
52

abled Americans who want to travel and work abroad, Veterans believe we should 

have a seat at the head of the table. 

It is time that the United States reaffirms itself as a leader for fairness and justice. We must stand as an example for those with disabilities around the world. We 

have done it before and we can do it again. 

Thank you so much for your time. 

The CHAIRMAN. Thank you, Congresswoman. 

Mr. Farris. 

STATEMENT OF MICHAEL P. FARRIS, CHAIRMAN, HOME 

SCHOOL LEGAL DEFENSE ASSOCIATION, CHANCELLOR, PATRICK HENRY COLLEGE, PURCELLVILLE, VA 

Mr. FARRIS. Mr. Chairman, Ranking Member Corker, thank you 

so much for the opportunity to be here today. 

On behalf of Home School Legal Defense Association, I am here 

in opposition to the treaty. There are three reasons I would like to 

cover in the time that I have today. 

First, despite the claims to the contrary, the U.S. ratification of 

this treaty does impose binding legal obligations on this country, 

and it will be the responsibility of the United States to comply with 

international law. The statements to the contrary have been based 

primarily on what I would—in the course of litigation, you would 

call ‘‘naked assertions.’’ We do not hear citations to legal authority 

for these propositions. You do not hear appropriate citations to 

qualified experts, such as Louis Henkin. Louis Henkin is one of the 

leading experts in the world on international law, and he responds 

to the tenor of the argument that has been raised in support of this 

treaty. He says, in a different context, but the principle is applicable, ‘‘The United States apparently seeks to ensure that its adherence to a convention will not change or require change in U.S. 

laws, policies, or practices, even when they fall below international 

standards. Reservations designed to reject any obligation to rise 

above existing law in practice or of dubious propriety. If states generally entered such reservations, the convention would be futile. 

Even friends of the United States have objected to its reservations 

that are incompatible with the object and purpose and are, therefore, invalid. The United States, it is said, seeks to sit in judgment 

on others, but will not submit its human rights behavior to international judgment. To many, the attitude reflected in such reservations is offensive. The conventions are only for other states, not for 

the United States.’’ 

Professor Henkin has it exactly right. This is a treaty. A treaty 

is a law. It is—if—the emotional and political arguments that are 

in favor of the treaty, no one can disagree with these arguments. 

But, the question is, Will the treaty actually have the legal effect 

that is being proffered by the proponents of the treaty? We do not 

hear citations to articles of the treaty. We do not hear consideration of the reports, the concluding observations by the Committee 

on the Rights of Persons with Disability. We do not hear the kind 

of legal analysis that would be appropriate for analyzing the legal 

impact of this treaty. And I would submit, it is the duty of this 

committee not to determine simply the policy issues and the emotional appeals, but to determine what the legal meaning of the 

treaty is and its legal application in the context both in international law and in domestic law of the United States. 
53

One of the ways that the proponents misrepresent the nature of 

the treaty is on the definition of ‘‘disability.’’ Proponents argue that 

the definition of ‘‘disability’’ is left blank in the treaty so that each 

nation can decide for itself what it believes is the correct definition. 

The Committee on the Rights of Persons with Disability firmly 

disagrees and is in the process of issuing a general observation in 

response to that, but has already issued concluding observations to 

about nine countries: Argentina, China, Hungary, Peru, Tunisia, 

Australia, and Austria. All were told that their nation’s definition 

of ‘‘disability’’ was improper under the treaty’s definition of ‘‘disability.’’ And what is improper about their definitions? They follow 

a medical definition of ‘‘disability’’ rather than any human rights 

definition of ‘‘disability.’’ 

And the difference in that definition is important, because, under 

a human rights definition of ‘‘disability,’’ according to the committee, a form of disability law that permits you to—take the situation of a profoundly intellectually disabled adult. Parents, under 

the human rights model of disability, would not be allowed to be 

appointed the guardian of the adult intellectually disabled child, 

but, instead, would have to be only allowed to be—support decisionmaking rather than substitute decisionmaking. I cite the records 

from the CRPD Committee that says this explicitly, ‘‘Nations that 

allow guardianships for profoundly disabled adults that are intellectually disabled are in violation of the treaty’s definition of what 

constitutes disability.’’ That will be a profound change in American 

law. And if we think we will not have to comply with the treaty’s 

standards, they were simply making a fake promise to the rest of 

the world. We’re making a promise, by our ratification, that we, 

like all other nations, will obey the requirements of the treaty. 

Turning to the issue of homeschooling. I have been criticized by 

many in the press for fear-mongering on this topic, but I have 

never seen anyone write a legal analysis; it is just simply conclusions, just assertions that I did not correctly analyze the law on 

this. I have an LLM in public international law from the University of London. I have coached seven national championship moot 

court teams that debate constitutional law. I have written the legal 

analysis, and I dare anyone to read my legal analysis and answer 

it with legal analysis, not conjecture and raw assertion. 

The legal analysis is based upon the failure of the CRPD to 

include the traditional right of parents to direct the upbringing in 

education of their children that was found in the ICCPR, in the 

ICESCR, and the Universal Declaration of Human Rights. Those 

provisions did protect the rights of parents. The Convention on the 

Rights of the Child began the trend in the wrong direction, and it 

was followed by the CRPD. Article 24 of the treaty defines the educational duties, and the word ‘‘parent’’ is not mentioned in the educational provision of article 24 of this treaty. 

The best-interests-of-the-child standard has been applied in 

international human rights contexts, including banning homeschooling in Germany. The highest court in Germany has held that 

homeschooling is banned under the best-interests-of-the-child 

standard. The European Court of Human Rights has upheld that 

ban. And when a German family fled to the United States, our administration appealed a successful grant of asylum to the Romeike 
54

family, that I represent now before the United States Supreme 

Court and the cert petition that is pending. And our Justice 

Department contends that Germany is within its rights—— 

The CHAIRMAN. Mr. Farris—— 

Mr. FARRIS [continuing]. To ban homeschooling—— 

The CHAIRMAN [continuing]. I have allowed you to go a minute 

and a half over time. 

Mr. FARRIS. I am sorry. My clock is not working. 

The CHAIRMAN. Oh, OK. Well, you are at 6, almost 7–8 minutes. 

Mr. FARRIS. Thank you, Senator, I will pause. 

The CHAIRMAN. Thank you. 

[The prepared statement of Mr. Farris follows:] 

PREPARED STATEMENT OF MICHAEL FARRIS

I would like to thank the chairman and members of the committee for the opportunity to testify on this very important issue. Article VI of the Constitution reveals 

how important this treaty is in our Nation’s legal framework. Once ratified, a treaty 

becomes part of the highest law of the land and anything in any state law or state 

constitution that conflicts with the treaty is null and void. 

When the Framers of the Constitution wrote the Supremacy Clause, treaty law 

and customary international law were limited to the arena of how nations treat 

nations. There was no concept that the treaty power could be used to impact or control the domestic laws of this Nation. 

Modern human rights laws have only one purpose—imposing binding legal obligations on state parties to treat their own citizens and other residents in conformance 

with the legal norms promulgated in the treaty. 

Yet, during last year’s floor debate on this treaty, then-Senator John Kerry said: 

‘‘This treaty isn’t about American behavior, except to the degree that it influences 

other countries to be more like us. This treaty is about the behavior of other countries and their willingness to raise their treatment of people with disabilities to our 

level. It is that simple. This treaty isn’t about changing America, it is a treaty to 

change the world to be more like America.’’ 

Professor Louis Henkin, one of the world’s leading experts on international law, 

gives the appropriate response to this argument: 

By its reservations, the United States apparently seeks to assure that 

its adherence to a convention will not change, or require change, in U.S. 

laws, policies, or practices, even where they fall below international 

standards. . . . 

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. . . . Even friends of the United 

States have objected that its reservations are incompatible with that object 

and purpose and are therefore invalid. 

By adhering to human rights conventions subject to these reservations, 

the United States, it is charged, is pretending to assume international obligations but in fact is undertaking nothing. It is seen as seeking the benefits 

of participation in the Convention (e.g., having a U.S. national sit on the 

Human Rights Committee established pursuant to the Covenant) without 

assuming any obligations or burdens. The United States, it is said, seeks 

to sit in judgment on others but will not submit its human rights behavior 

to international judgment. To many, the attitude reflected in such reservations is offensive: the conventions are only for other states, not for the 

United States.1

While this erroneous form of American exceptionalism has been implied in the 

past, our Secretary of State (when he was the chairman of this committee) has 

explicitly made the very argument that Professor Henkin soundly condemns. ‘‘This 

treaty isn’t about changing America, it is a treaty to change the world to be more 

like America.’’ Such assertions are both legally inaccurate and diplomatically 

troubling.

The precise question that the Senate must answer is this: What will be the legal 

effect if the United States ratifies the United Nations Convention on the Rights of 

Persons with Disabilities? 
55

This is a legal question, not a political question. The answer to this question 

should be determined by an accurate review of all of the relevant legal sources. It 

is not a question of whether we have compassion for the disabled. Without the help 

of any international legal source, our Nation leads the world in demonstrating compassion for the disabled. We can and should improve our law and policy in this 

regard. But our ability to provide leadership on this issue is not dependent on 

becoming responsible to report our progress to the United Nations. 

The proponents of this treaty have relied on pleas for compassion and raw assertions of opinion, not proper legal analysis. This committee should and must recognize that determining the meaning of a treaty is a legal inquiry. The process 

employed to determine its meaning should use the same kinds of sources and points 

of analysis as a serious judicial inquiry. There should be citations of law not mere 

assertions of opinion. 

The basic answer to the legal question I have posed is answered by the United 

Nations Office of the High Commissioner for Human Rights. Its Web site accurately 

summarizes the legal effect of any nation’s ratification of a human rights treaty: 

A State party to a treaty is a State that has expressed its consent to be 

bound by that treaty by an act of ratification, acceptance, approval or accession, etc., where that treaty has entered into force for that particular State. 

This means that the State is bound by the treaty under international law. 

See article 2(1)(g) of the Vienna Convention 1969.2

The implementation of our international legal obligations requires consideration 

of two distinct legal spheres—the international legal system and the domestic legal 

system.

Since a treaty is an international obligation, international law fully controls the 

substantive law concerning the nature of our obligations. The implementation and 

enforcement of our international legal obligations requires an intersection with both 

legal arenas—the international legal system and our domestic legal system. 

In large part, our domestic legal system must be relied upon for the implementation and enforcement of any human rights treaty obligation. But our obligation to 

comply with the treaty’s requirements is never extinguished by any limitation imposed by our domestic legal system. In fact, if our domestic legal system prohibits 

us from fully complying with our international legal obligations, we are presumptively in violation of our treaty obligations for which there are international legal 

consequences.

The international legal system claims preeminence over domestic law and 

national sovereignty. 

A past president of the European Court of Human Rights has explained the prevailing view in the international legal system: 

Treaty obligations are in case of doubt and in principle not to be interpreted 

in favor of State sovereignty. It is obvious that this conclusion can have 

considerable conclusions for human rights conventions: Every effective protection of individual freedoms restricts State sovereignty, and it is by no 

means State sovereignty which in case of doubt has priority. Quite the contrary, the object and purpose of human rights treaties may often lead to a 

broader interpretation of individual rights on one hand and restrictions on 

State activities on the other.3

The Committee on the Rights of Persons with Disabilities has lost no time in 

asserting the supremacy of the CRPD over the domestic law and sovereignty of the 

state parties—including its supremacy over national constitutions. 

In a Communication proceeding before the CRPD Committee, six Hungarian citizens filed a formal complaint that Hungary’s Constitution was in violation of the 

provisions of the CRPD. All six persons ‘‘suffer from intellectual disability’’ and had 

been placed under partial or general guardianship pursuant to judicial decision. 

Under the Hungarian Constitution, persons placed under guardianship for such 

intellectual disabilities were ineligible to vote.4

The CRPD Committee ruled that Hungary was in violation of its obligations 

under the CRPD. While the Committee did not claim the authority to directly order 

Hungary to amend its constitution, its ruling made it clear that in order for that 

nation to be in compliance with its treaty obligations, it should do so. 

The impact of this decision was trumpeted by Human Rights Watch, a major NGO 

in this field: ‘‘The ruling applies to all 137 countries that have adopted the international disability rights treaty. These governments are required to review their 

laws and practices to eliminate any provisions that prevent people from voting due 

to their disabilities.’’ 5
56

In making its determination of the meaning of the CRPD’s provisions, the Committee placed significant reliance on its statements concerning the meaning of the 

treaty in its prior Concluding Observations. It is clear that the CRPD Committee 

considers its so-called recommendations as authoritative interpretations of the 

meaning of the treaty. 

In the Committee’s October 8, 2013, review of El Salvador’s compliance with the 

treaty, it expressed concern that El Salvador had taken a reservation to the effect 

that the nation’s obligations were limited by the provisions of its constitution.6 The

treaty must not be subservient to a nation’s constitution according to the CRPD 

Committee.

One of the most important themes in the CRPD Committee’s review and conclusions relates to the definition of disability. Important U.S. advocates for ratification 

claim that the lack of a definition of ‘‘disability’’ in the treaty means that every 

nation has the power to define ‘‘disability’’ under its own law. The Committee defiantly rejects this view in a proposed General Comment. 

In consideration of the initial reports of the different States Parties that 

have been reviewed so far, the Committee has observed that there is a general misunderstanding of the exact scope of the obligations of States Parties 

under Article 12. Until now there has been a general failure to understand 

that the human-rights-based model of disability implies the shift from a 

substitute decisionmaking paradigm to one that is based on supported decisionmaking. The present general comment has the purpose of exploring the 

general obligations that are derived from the different components of 

Article 12.7

China was told that its definition of ‘‘disability’’ was improper under the treaty 

because it employed a medical definition rather than a human rights definition.8

Argentina was found wanting for the exact same reason—using a definition of disability different from that imposed by the CRPD.9 Hungary,10 Peru,11 Tunisia,12

Australia,13 and Austria14 have also been informed that their national definitions 

of ‘‘disability’’ are contrary to the definition found in the CRPD. It is equally clear 

that the Committee is of the opinion that these nations are obligated to conform 

their definitions to the one the Committee believes is found in the treaty. 

We have clearly demonstrated that the U.S. advocates for ratification are simply 

wrong when they assert that our Nation is free to adopt our own definition of ‘‘disability’’ and still be in compliance with our obligations under the treaty. 

However, it is important for the Senate to consider the substantive rules that will 

be imposed if we ratify this treaty. The difference between the ‘‘human rights’’ definition of ‘‘disability’’ and the ‘‘medical’’ definition of ‘‘disability’’ profoundly impacts 

upon our laws. 

Important organizations that support the ratification of the CRPD agree with our 

basic contention—the CRPD imposes legal obligations on the United States that differ from existing law. 

There’s something that may be superior to the ADA. The United Nations 

came up with their own disability policy: the Convention on the Rights of 

People with Disabilities (CRPD). 

The U.N. brought up the CRPD to the General Assembly for signatures 

in December 2006. Now, CRPD is a fully operational policy as of May 2008. 

The CRPD is like the ADA on steroids; the policy doesn’t just cover provisions for employing, accessibility to public place/information, and communication . . . Human rights is deeply integrated with the CRPD, so it 

covers disabled people’s rights to an adequate standard of living, rehabilitation, and to preserve their dignity. With the CRPD’s provisions, the mission 

to form a perfect society is clearly defined. 

In comparison, the ADA is surprisingly restrictive. It only covers our 

rights to get a job, access public places, and accessible communication. It 

doesn’t discuss how we are all human beings with dignity. It doesn’t discuss 

our right to an adequate standard of living. It doesn’t encourage cultivating 

a sense of identity with our communities.15

Consider the opinion of Ratifynow.org: 

Although the Americans with Disabilities Act (ADA) has been very important to the daily lives of many Americans with disabilities, it does not, and 

cannot, fully cover all the basic human rights to which people with disabilities are entitled. The CRPD would supplement the power of the ADA to 

ensure that people with disabilities have stronger access to all the same 

human rights to which all people are entitled. Also, if the United States 
57

signs and ratifies the CRPD, it would help send a strong message to other 

countries that we, too, support human rights for people with disabilities. 

This may help inspire more countries to ratify the CRPD so that more people with disabilities around the world can enjoy its protections.16

The jurisprudence of the CRPD Committee, the opinion of legal experts such as 

Louis Henken, and these intellectually honest advocates for CRPD ratification join 

us in our core contention: If the United States ratifies this treaty, it undertakes a 

duty to comply with international legal standards which are different from our 

existing law. Some people contend that this diminishment of our sovereignty is justified by the increase in protections for the disabled. We disagree. Our contention 

is that the United States should use the process of American self-government under 

the Constitution to continually improve our policies which are designed to ensure 

equality and justice for disabled persons. 

THE U.N. CRPD COMMITTEE’S DEFINITION OF DISABILITY WOULD REQUIRE A

SUBSTANTIAL CHANGE IN AMERICAN LAW

We have previously quoted paragraph 3 from the draft General Comment on Article 12. It proclaims that a nation that employs a ‘‘substitute decision-making’’ model 

is in violation of the treaty. Similar comments may be found in the Concluding 

Observations previously cited. What does this mean in practical terms? The Committee gives us its answer: 

Regimes of substitute decisionmaking can take many different forms, 

including plenary guardianship, judicial interdiction, and partial guardianship. However, these regimes have some common characteristics. Substitute 

decisionmaking regimes can be defined as systems where (1) legal capacity 

is removed from the individual, even if this is just in respect of a single 

decision, (2) a substituted decisionmaker can be appointed by someone 

other than the individual, and this can be done against the person’s will, 

and (3) any decision made by a substitute decisionmaker is bound by what 

is believed to be in the objective ‘‘best interests’’ of the individual—as 

opposed to the individual’s own will and preferences. 

The obligation to replace regimes of substitute decisionmaking by supported decisionmaking requires both the abolishment of substitute decisionmaking regimes, and the development of supported decisionmaking alternatives. The development of supported decisionmaking systems in parallel 

with the retention of substitute decisionmaking regimes is not sufficient to 

comply with Article 12.17

There can be no doubt that this definitional rule and the implications that flow 

from it are based not just on this draft General Comment, but on the same holding 

found in the finalized Concluding Observations that have been issued to a number 

of state parties.18

It is important to understand what this means. The parents of a profoundly intellectually disabled adult will not be permitted to be named their child’s guardian 

with the ability to substitute their judgment for that of their adult child. ‘‘All forms 

of support to exercise legal capacity (including more intensive forms of support) 

must be based on the will and preference of the individual, not on the perceived/ 

objective best interests of the person.’’ 19

The Senate Foreign Relations Committee is properly not the venue to debate the 

wisdom of this new approach to the rights of the profoundly disabled. But what is 

absolutely clear is this—the rules under the CRPD are different from existing American law and practice. And it is also absolutely clear that the U.N. Committee 

believes the United States will be legally obligated to conform our definitions and 

practices to the Committee’s standards and not our own. 

DOMESTIC LAW PROVIDES NO EXCUSE FOR A FAILURE TO FULLY IMPLEMENT

THE PROVISIONS OF THE CRPD

This brings us to the broad question of the domestic impact of the ratification of 

the CRPD. By ratifying the treaty, the United States undertakes a solemn legal 

obligation to implement and follow the treaty in good faith. 

Reservations, Understandings, and Declarations can only have impact on which 

agency of government will have authority and responsibility to implement the provisions of the treaty. But no RUD can remove the legal duty of the United States to 

comply with this treaty if it is ratified. 

A non-self-executing RUD will only have the effect of ensuring that the judiciary 

will not be the agency to initially implement the CRPD into domestic law. In short, 

Congress and the executive branch will have the duty to implement the treaty 
58

through statutes and regulations. Once such implementing laws are issued, then the 

courts are also permitted to engage in the enforcement of the treaty. 

A non-self-executing RUD does not mean that Congress can avoid its duty to 

implement the treaty. It has the duty to enact law that conforms to the requirements of the CRPD. 

A federalism RUD has a similar impact. A properly constructed RUD can, at 

most, ensure that certain of the duties of compliance fall on the State governments 

rather than on the Federal Government. But in international law, if the States fail 

to comply, it is the Federal Government that is liable for the failure to properly implement the treaty. A federalism RUD does not excuse a national government from 

noncompliance.

This was made clear by the CRPD Committee in its ruling concerning Austria: 

The Committee recalls that article 4, paragraph 5, of the Convention 

clearly states that the administrative particularities of a federal structure 

do not allow a State party to avoid its obligations under the Convention. 

The Committee recommends that the State party ensure that federal and 

regional governments consider adopting an overarching legislative framework and policy on disability in Austria, in conformity with the Convention.20

THE CRPD THREATENS THE RIGHTS OF HOMESCHOOLING FAMILIES

Early human rights instruments were very supportive of the rights of parents to 

direct the education and upbringing of their children. 

It is beyond dispute that the Universal Declaration of Human Rights, adopted in 

1948 by the unanimous vote of the U.N. General Assembly, arose ‘‘out of the desire 

to respond forcefully to the evils perpetrated by Nazi Germany.’’ 21 The UDHR’s 

view regarding parents and children is no exception to this rule. Article 26(3) of the 

UDHR proclaims: ‘‘Parents have a prior right to choose the kind of education that 

shall be given to their children.’’ Numerous human rights instruments have been 

drafted in reaction to ‘‘the intrusion of the fascist state into the family. . . .’’ 22

The rejection of the Nazi view of parents and children was translated from the 

aspirational articles of the UDHR into the binding provisions of the two core human 

rights treaties of our era—the International Covenant on Civil and Political Rights 

(1966) and the International Covenant on Economic, Social, and Cultural Rights 

(1966). Article 18(4) of the ICCPR provides: 

The States Parties to the present Covenant undertake to have respect for 

the liberty of parents and, when applicable, legal guardians to ensure the 

religious and moral education of their children in conformity with their own 

convictions.

Article 13(3) of the ICESCR repeats and expands on this same theme: 

The States Parties to the present Covenant undertake to have respect for 

the liberty of parents and, when applicable, legal guardians to choose for 

their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid 

down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 

This pro-parent view of human rights has given way to a decidedly different view 

in the U.N. Convention on the Rights of the Child (UNCRC) and now in the U.N. 

Convention on the Rights of Persons with Disabilities. 

It is very important to observe what is missing from the CRPD. No provision 

within the CRPD affirms the right of parents to choose the form of education for 

their children. Article 19 protects a right of the child to ‘‘know and be cared for by 

their parents.’’ Article 23(1) protects the rights of disabled parents—an important 

provision but one that is inapplicable in the case of a nondisabled parent with a 

disabled child. Article 23(4) prohibits the separation of disabled children from their 

parents in most cases. 

It is Article 24 of the CRPD that deals with education. The word ‘‘parent’’ does 

not appear in this article. Parents are assured of no rights in the education of their 

children.

It is not just what is absent in the CRPD that is important; what is included also 

substantially impacts parental rights. 

The UNCRPD incorporates several key elements from the UNCRC that, as I will 

demonstrate, lead to the conclusion that parental rights in the education of disabled 

children are supplanted by a new theory of governmental oversight and superiority. 

In short, government agents, and not parents, are being given the authority to 
59

decide all educational and treatment issues for disabled children. All of the rights 

that parents have under both traditional American law and the Individuals with 

Disabilities Education Act will be undermined by this treaty. 

Article 7 is the key. Sections 2 and 3 directly parallel provisions of the UNCRC. 

2. In all actions concerning children with disabilities, the best interests 

of the child shall be a primary consideration. 

3. States Parties shall ensure that children with disabilities have the 

right to express their views freely on all matters affecting them, their views 

being given due weight in accordance with their age and maturity, on an 

equal basis with other children, and to be provided with disability and ageappropriate assistance to realize that right. 

Section 2 directly parallels Article 2(1) of the CRC. Section 3 closely follows Article 12(1) of the CRC. 

The ‘‘best interest of the child’’ standard is a familiar one to anyone who has ever 

participated in family or juvenile law in American courts. However, in that context 

it is a dispositional standard. This means that after a parent has been convicted 

of abusing or neglecting his child, then and only then can the government substitute 

its view of what it best for the child for that of the parent. Or, in the divorce context, once a judge determines the family unit is broken, the judge must settle the 

contest between the competing parents and decide for herself what she thinks is in 

the best interest of the child. 

In an intact family, where there is no proof of abuse or neglect, government 

agents—whether school officials, social workers, or judges—cannot substitute their 

judgment of what is best for a child over the objection of the parents. 

This legal principle is firmly embedded into the Individuals with Disabilities Education Act. Parents have a great deal of authority concerning the education and 

treatment of their children under this act. 

Geraldine van Bueren, who is one of the world’s leading experts on the international rights of the child and helped to draft the UNCRC, clearly explains the 

meaning and application of this best interests standard. 

Best interests 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.23

Section 7 of the UNCRPD uses precisely the same legal terms as those contained 

in the UNCRC. 

Accordingly, today, under the IDEA parents get to decide what they think is best 

for their child—including the right to walk away from government services and provide private or home education. Under the UNCRPD, that right is supplanted with 

the rule announced by Professor van Bueren. Government officials have the authority to substitute their views for the views of parents as well as the views of the child 

as to what is best. If parents think that private schools are best for their child, the 

UNCRPD gives the government the authority and the legal duty to override that 

judgment and keep the child in the government-approved program that the officials 

think is best for the child. 

Ask virtually any parent who has dealt with school officials in the IDEA context: 

Are you willing to give the government the final say on what it thinks is best for 

your child’s special needs or disability? 

School districts have a powerful motivation to do better for disabled and special 

needs children precisely because they know that parents with real rights are looking 

over their every move and have the ability to fight for what they know to be best 

for their children. Remove parental authority and institutional lethargy will take 

over in many cases. 

Children are treated much, much better in the special needs setting whenever 

their parents have real and certain rights. 

Those rights are gone if this Senate ratifies this treaty. There are two reasons 

this is true. 

First, virtually every state has state law provisions which also give parents a 

number of rights in the educational setting. Article VI of the U.S. Constitution contains our Supremacy Clause which explicitly states that a ratified treaty is the 

Supreme Law of the land and all state law provisions that conflict with the treaty 

are overridden by it. 

Any and all parental rights provisions in state education laws will be void by the 

direct application of Article 7 of this treaty. Government—not parents—has the 

authority to decide what is best for children with special needs if the Senate ratifies 

the CRPD. 
60

Since the hearings last summer, the American homeschooling community has 

been intensely focused on a case which illustrates the dangerous gaps in international human rights law that impact the right of a parent to homeschool one’s 

child.

Uwe and Hannelore Romeike came to the United States from Germany in 2008. 

Germany bans all homeschooling and enforces that ban with police raids on family 

homes in which the children are seized and placed into government custody. If the 

parents do not relinquish their desire to homeschool their children, they are threatened with the permanent loss of the custody of their children. The Romeikes applied 

for asylum in the United States. The initial immigration judge ruled in favor of the 

family, granting them political asylum. The current administration appealed this 

decision to the Bureau of Immigration Appeals. The BIA reversed the immigration 

judge’s decision. We appealed that decision to the Sixth Circuit, which upheld the 

decision of the BIA. In one of its filings before the Sixth Circuit, the Justice Department recited the history of German courts in their determination that the ban on 

homeschooling was legitimate. The Justice Department contends that the European 

Court of Human Rights correctly determined that no human rights standards were 

violated by the German ban on homeschooling and its egregious enforcement mechanisms.

This case in now pending in the Supreme Court, awaiting determination of our 

petition for a writ of certiorari. 

Here is the lesson learned by the homeschooling community concerning both 

international law and the attitude of this administration. Despite the fact that the 

provisions of the ICCPR and the ICESCR could not be clearer in their endorsement 

of the right of parents to direct the education of their children, German parents cannot find protection for their right to homeschool their children in such instruments. 

The ‘‘best interest of the child’’ standard prevails. The rights of homeschooling parents are not just diminished; they are obliterated. 

It is utterly unreasonable for anyone to believe that this problem can be remedied 

by RUDs. If an actual treaty provision protecting parental rights in education is 

insufficient to protect the right of homeschooling both in German and in American 

asylum claims, then how in the world can anyone expect homeschoolers to believe 

that RUDs will accomplish what clear treaty language cannot accomplish? 

This administration has proven to American homeschoolers that international 

human rights law is not just an empty promise when it comes to protecting our 

rights; the best interest of the child standard in the more recent U.N. treaties has 

overcome and supplanted the rights of parents. 

We are told that the CRPD will not affect the rights of homeschooling. These 

naked assertions are not based on any viable reading of the relevant law. And they 

come from the same sources that told the American public that if we like our current health insurance we can keep it. 

Political promises are like morning clouds. They fade away as the day progresses. 

The U.N. CRPD will result in the loss of educational freedom for all parents in 

this Nation with disabled children. Government, not parents, will decide what form 

of education is best for children. 

We urge this committee and the Senate to reject this treaty. 

————————

End Notes 

1Louis Henkin, ‘‘U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker,’’ 89 Am, J. Int’l Law, 341, 341–44 (1995). 2http://www2.ohchr.org/english/bodies/treaty/glossary.htm.

3 Rudolf Bernhardt, ‘‘Evolutive Treaty Interpretation, Especially of the European Court of 

Human Rights,’’ 42 German Y.B. Int’l L. 11, 14 (1999) as quoted in Louis Henken et al., ‘‘Human 

Rights: Second Edition,’’ Foundation Press (New York), 2009, p. 206–207. 4 Committee on the Rights of Persons with Disabilities, Communication No. 4/2011, Views 

adopted, 9 September 2013. 5http://www.hrw.org/news/2013/10/01/hungary-change-discriminatory-voting-laws.

6 6 See, para. 6, CRPD/C/SLV/CO/1. 

7Draft General Comment on Article 12 of the Convention, Adopted 2–13 September 2013, 

para. 6. 8 Concluding Observations, China, 15 October 2012, CRPD/C/CHN/CO/1, para. 9. 

9 Concluding Observations, Argentina, 8 October 2012, CRPD/C/ARG/CO/1, para. 19–20. 

10 Concluding Observations, Hungary, 22 October 2012, CRPD/C/HUN/CO/1, para. 10. 11 Concluding Observations, Peru, 16 May 2012, CRPD/C/PER/CO/1, para. 6(a). 12 Concluding Observations, Tunisia, 13 May 2011, CRPD/C/TUN/CO/1, para. 8–9. 13 Concluding Observations, Australia, 21 October 2013, CRPD/C/AUS/CO/1, para. 47. 14 Concluding Observations, Austria, 30 September 2013, CRPD/C/AUT/CO/1, para. 8–9. 15http://www.thebuffandblue.net/?p=7502. The ‘‘Buff and Blue’’ is a student publication at Gallaudet University established in 1892. Gallaudet is a premier institution of higher learning dedicated to education of disabled persons. 
61

16http://www.ratifynow.org/ratifynow-faq/. ‘‘RatifyNow is an international nonprofit organization that supports grassroots advocates worldwide working to persuade their nation to ratify, 

implement, and enforce the CRPD. Membership is free and open to both individuals and organizations.’’ 17Draft General Comment on Article 12, Para. 23–24. 18See, e.g., Concluding Observations, Austria, op. cit., para. 28. 19General Comment on Article 12, op. cit, para. 25 (b). 20 Concluding Observations, Austria, op. cit., para. 10–11. 21Kathleen Renee Cronin-Furman, ‘‘60 Years of the Universal Declaration of Human Rights: 

Towards an Individual Responsibility to Protect,’’ 25 Am. U. Int’l L. Rev. 175, 176 (2009). 22Marleen Eijkholt, ‘‘The Right to Found a Family as a Stillborn Right to Procreate?’’ 18 Med. 

L. Rev. 127, 134 (2010). 23Geraldine Van Bueren, ‘‘International Rights of the Child,’’ Section D University of London, 

46 (2006). 

The CHAIRMAN. Thank you. 

Secretary Ridge. 

STATEMENT OF HON. THOMAS J. RIDGE, FORMER SECRETARY 

OF HOMELAND SECURITY AND CURRENT CHAIRMAN OF THE 

NATIONAL ORGANIZATION ON DISABILITY, CHEVY CHASE, 

MD

Mr. RIDGE. Senator, colleagues—distinguished colleagues—— 

The CHAIRMAN. If you would put your microphone on. 

Mr. RIDGE. Thank you. 

As many of you know, I have had the pleasure of wearing numerous hats in public service of our country: Member of Congress, Governor, and the Nation’s first Secretary of Homeland Security. But, 

first I want to share with you the story of my first public service 

role, that of a United States infantry staff sergeant in Southeast 

Asia. Frankly, I had poor hearing when I went in, worse hearing 

after, and, because of age, diminished hearing since. [Laughter.] 

So, technically, since I wear hearing aids, I am a disabled veteran, but I cannot attribute the loss solely to my military service. 

Most of the 5.5 million disabled veterans can, and I am proud to 

represent their cause, as well as my own commitment to Americans 

with disabilities, at this hearing. I hope that, after U.S. ratification 

and a lot of work with other nations, Americans with disabilities 

will no longer face undue burdens abroad, either. 

There is no greater example of U.S. leadership than on the front 

lines of armed conflict, where servicemembers fight to protect the 

moral integrity of mankind and the values of equality and liberty. 

If there is one thing you take away from my testimony today, I 

hope it is that the United States leadership counts, and we have 

the opportunity to lead now, and to lead well, with the Disability 

Treaty.

My fellow veterans recognize this leadership, as evidenced by 

major veterans organizations—obviously, I am a member—American Legion, Veterans of Foreign Wars, and the Wounded Warrior 

Project—supporting U.S. ratification. 

My initial experience with disability began in grade school. One 

of my dearest friends had a very serious disability. We enjoyed her 

friendship, her smile. We admired her courage. Since those early 

years, my lengthy public service career has given me the insight 

and experience to now sit before you, as well, as the chairman of 

the National Organization on Disability. 

I became chairman of NOD in 2005 because I believe we have 

to be more committed as a society to giving people with disabilities 

the opportunity to establish their own self-worth, particularly 
62

through employment. There was no question that NOD would come 

out in full support of a treaty which echos our own constitutional 

values, U.S. laws, NOD’s mission to allow people with disabilities 

to have the same opportunities as their counterparts. 

My testimony, which I encourage you to read, will describe how 

the convention advances, I believe, democracy, benefits businesses, 

and ultimately will advance opportunities for Americans with disabilities worldwide. 

As a young Congressman, I was proud to support the ADA. It 

was born of a notion where values are grounded in the concept that 

all men are created equal. Whether you are born with one arm, 

with Down Syndrome, or without sight, whether you were injured 

on the job or in service to your Nation, you have the right to life, 

liberty, and pursuit of happiness. Our founders did not preserve 

this notion just because it is the right thing to do, but because government is strongest when run for and by all of its people. Some 

countries attempted to follow in the footsteps of the United States 

and created similar but often inferior legislation to the ADA in the 

years following the enactment. Many other country has not even 

attempted to meet our standards and do not provide for equal protection of the rights of their citizens with disabilities. And, frankly, 

many simply just do not know how to do it. 

I believe strongly that being part of the disability treaty benefits 

the United States and other member nations. This treaty will 

enhance, not lessen, American sovereignty by allowing us to export 

constitutional values abroad. It is not bad to export our value system. The United States will continue to lead the world in establishing a democratic model for participation of all its citizens, 

including the most vulnerable ones. 

I wanted to reference a gentleman behind me from Georgia who 

would tell you that he has established an organization in his own 

country; the country of Georgia. He is a John McCain Fellow, and 

he is working at the National Organization of Disability. He would 

tell you his own country is looking to America to validate his presence and his equality. It is about American leadership. 

In closing, I urge you to support ratification of a treaty that will 

have a tremendous impact on Americans with disabilities, at home 

and abroad. The treaty advances democracy in business, and, above 

all, validates for the rest of the world the value of people with 

disabilities.

While I respect the differences of our Nation’s leaders on many 

topics, I stand firm that we must come together on the topic of disability. Disability does not know a political, racial, religious, or 

other barrier. It is an experience that has, or will, touch us all at 

some point in our lives. As the ink may fade on our Declaration of 

Independence, it is up to us to ensure that the words of ‘‘equality’’ 

our country stands for are everlasting. 

Although our own laws will not change, U.S. ratification of the 

Disability Treaty will validate that all men are, indeed, equal, and 

that Senators will have a resounding impact on the billion persons 

with disabilities in the United States and around the world. 

I thank you for the opportunity to share this testimony before 

the committee, Senator Menendez. 

[The prepared statement of Mr. Ridge follows:] 
63

PREPARED STATEMENT OF HON. TOM RIDGE

Chairman Menendez and Ranking Member Corker, members of the Foreign Relations Committee, thank you for inviting me to discuss the disability treaty today as 

you consider ratification. I was one of many who made a public statement of disappointment following last year’s failure to ratify the treaty. I am pleased that we 

are here today to revisit the issue. I hope that after today’s hearing, we move closer 

as a nation to joining this important treaty. 

As many of you know, I have had the pleasure of wearing numerous hats in the 

public service of this great Nation including serving as a Member of Congress, Governor, and the Nation’s first Secretary of Homeland Security. I will touch upon how 

this treaty is important to all of those roles, but first I want to share with you the 

story of my first public service role—that of a United States infantry staff sergeant 

in Southeast Asia. Frankly, I had poor hearing when I went in, worse hearing after, 

and, because of my age, diminished hearing since. So, technically, I am a disabled 

veteran but I can’t attribute the loss solely to my military service. Most of the 5.5 

million disabled veterans can and I am proud to represent their cause as well as 

my own commitment to Americans with disabilities at this hearing. I hope that after 

U.S. ratification and a lot of work with other nations, Americans with disabilities 

will no longer face undue burdens abroad either. 

There is no greater example of U.S. leadership than on the front lines of armed 

conflict where service members fight to protect the moral integrity of mankind and 

the values of equality and liberty. If there is one thing you take away from my testimony today I hope it is that United States leadership counts and we have the opportunity to lead now and lead well with the disability treaty. My fellow veterans recognize this leadership, as evidenced by major veterans’ organizations—like The 

American Legion, Veterans of Foreign Wars, and Wounded Warrior Project—support 

U.S. ratification. 

My initial experience with disability began in grade school. One of my dearest 

friends had a serious disability. We enjoyed her friendship, her smile, and admired 

her courage. My lengthy public service career has given me the insight and experience to now sit here before you as the Chairman of the National Organization on 

Disability. I became Chairman of NOD in 2005 because I believed we have to be 

more committed, as a society, to giving people with disabilities the opportunity to 

establish their worth. 

Around the same time I became Chairman, the Convention on the Rights of Persons with Disabilities was finalized. This treaty is important for the 57 million 

Americans with disabilities to have equal access to opportunities the rest of us may 

take for granted. There was no question that NOD would come out in full support 

of the treaty, which echoes our own constitutional values, U.S. laws, and NOD’s 

mission to allow people with disabilities to have the same opportunities as their 

counterparts. My testimony today will describe how the CRPD advances democracy, 

benefits business, and ultimately will advance opportunities for Americans with disabilities worldwide. Finally, I will share with you a few examples of how exactly the 

U.S. is equipped with the tools we need to change the circumstances of people with 

disabilities around the world. 

DEMOCRACY AND THE CRPD

Twenty three years ago I had the incredible opportunity as a Congressman for 

Pennsylvania’s 21st district to vote for the Americans with Disabilities Act (ADA), 

one of the most important pieces of civil rights legislation in our history. Though 

today it stands as a celebrated piece of American legislation, at the time this was 

not an easy vote for many Members. There was loud opposition to the act, mostly 

fear-based, and there were efforts to abandon the bill altogether. Yet I was convinced that when I cast my vote in favor of the ADA, this piece of legislation would 

have a long-term positive impact on people with disabilities all over the world. 

The ADA was born of a nation whose values are grounded in the concept that ‘‘all 

men are created equal.’’ Whether you are born with one arm, with Down Syndrome, 

or without sight, or you are injured on the job or in service to your Nation, you have 

the right to life, liberty, and the pursuit of happiness. Our founders did not preserve 

this notion just because it is the right thing to do, but because government is 

strongest when run for and by all of its people. 

Some countries attempted to follow in the footsteps of the U.S. and created similar, but often inferior legislation to the ADA in the years following its enactment. 

Many other countries have not even attempted to meet our standards and do not 

provide for equal protection of the rights of their citizens with disabilities. Many do 

not know how. And so, with great input from the U.S. and the community of people 

with disabilities, the disability treaty came into being to create the framework for 
64

people with disabilities everywhere and Americans with disabilities traveling abroad 

to enjoy the rights they deserve. 

There was a sense of urgency in 2001 when this treaty was created because without disability rights legislation many countries, regardless of intention, were isolating and segregating people with disabilities and creating dire outcomes for the 

lives of their citizens. This meant that children with disabilities were being placed 

into nursing homes and institutions and removed entirely from their families, adults 

with disabilities were being barred from the workplace and having to rely on government entitlements to subsist, and in many countries being born with a disability 

was perceived so negatively that people began to kill newborns with disabilities or 

hide their children with disabilities in attics and backyard sheds to keep them out 

of the public eye. 

I believe strongly that being part of the disability treaty benefits the U.S. and 

other member nations. This treaty will enhance, not lessen, American sovereignty 

by allowing us to export American constitutional values abroad. The U.S. will continue to lead the world in establishing a democratic model for participation of all 

its citizens, including its most vulnerable ones. If you don’t believe me, just ask 

Giorgi Akhmeteli. Giorgi is a fellow at NOD this year from the country of Georgia, 

visiting with us through the McCain Institute for International Leadership. Due to 

a spinal injury in 2003, Giorgi uses a wheelchair and decided he would found a 

Georgian disability organization to fight for the rights of his fellow citizens. Right 

now his organization is working on CRPD ratification in his country. However, 

Giorgi has told me that the decision of the U.S. to ratify the CRPD will impact his 

own country’s decision about whether to ratify the disability treaty. Further, full 

U.S. participation in the multilateral process will be necessary to help push Georgia 

to adequately implement the treaty after ratification. Giorgi is not naive; he is a 

talented advocate with years of experience in leadership on behalf of Georgia in the 

international arena. Giorgi knows the reality that the U.S. voice counts in Georgia 

and for his country to validate him as an equal, U.S. involvement is mandatory. 

As former Secretary of Homeland Security, I had the unique experience to understand how the U.S. is perceived by our enemies and our allies. I can confidently sit 

before you and tell you that the voice of the U.S. matters to both. The disability 

treaty seeks to bring democracy and equal opportunity to people with disabilities 

allowing them to participate in society, vote, seek public office, and live in the community amongst others. We must be a part of this conversation. As I travel around 

the world, I have seen firsthand how with the best intentions countries try to 

address the circumstances of their citizens with disabilities, yet fall short. Without 

U.S. participation, the treaty will not reach its greatest potential. Without America, 

the conversation will have a deficit of expertise and experience that only our Nation 

can fill. The CRPD will not change American law, but it is important because it provides access to the most important international forum on the rights of people with 

disabilities. If the U.S. wants to effectively promote access abroad, we must ratify 

the disability treaty. 

BUSINESS AND THE CRPD

In addition to our democratic principles, there is more at stake for U.S. ratification of the disability treaty. Following the failure of ratification in 2012, businesses 

became even more vocal that the disability treaty is important to advancing their 

interests in the global marketplace. I have served on the boards of The Home Depot, 

The Hershey Company, and Exelon Corporation. I can attest to the fact that advancing the rights of people with disabilities has become an important priority for corporate decisionmaking. At NOD, we work with a CEO Council including international corporations Coca-Cola, Wal-Mart, and UPS who view the employment of 

people with disabilities as advancing their mission and goals and in our increasingly 

global marketplace more and more jobs require international travel. So, accessibility 

abroad is very important to American workers who need to be able to access the 

building to make the sales pitch or have accessible transportation in order to 

present at a conference. American businesses understand that accessibility abroad 

means opportunities for their employees and efficiencies for their operations. 

Like the ADA, article 27 of the disability treaty recognizes the right of people with 

disabilities to work and empowers them to be an active part of society. As the 

Chamber of Commerce states in its letter of support for the treaty, ‘‘the United 

States has been an effective world leader in developing policy to ensure that individuals with disabilities have equal opportunity not only in the workplace but in 

society.’’

As Chairman of the U.S. Chamber’s National Security Task Force, I can tell you 

that the Chamber does not take lightly decisions to endorse any piece of legislation. 
65

Regardless of how a bill may benefit people with disabilities, we must give greatest 

weight to the benefit to our 3 million business members. The Chamber determined 

that ratification of the treaty will benefit our members. 

Joining this treaty will promote unprecedented global markets and new commerce 

that will be aimed at 1 billion people with disabilities worldwide. As the world follows the U.S. vision of greater accessibility, we will have expanded opportunities to 

export American made products and services, increase international employment 

and entrepreneurial opportunities for Americans with disabilities and promote U.S. 

standards internationally. As a representative from Adobe Systems Incorporated 

recently explained, the danger of going about accessibility in a bilateral way is that 

you run the risk of having to create different products for each country based on 

varied standards. Companies not only have greater access to broader markets 

through efforts like the disability treaty, but they have the ability to harmonize 

standards and streamline their production. This efficiency is critical. 

Ultimately, investment follows opportunity. The treaty requires countries to promote accessibility for their citizens. U.S. business recognizes the disability treaty as 

an opportunity to further the objectives of their businesses and expand markets of 

technology, mobility devices, and other U.S. made accessible products. Other countries party to the treaty, like Brazil and China, are taking advantage of the absence 

of U.S. participation to lead accessible technology and provide to this expanding 

marketplace. This should be the role of the United States and will be once we ratify 

the CRPD. 

EXAMPLES OF HOW THE U.S. CAN LEAD

I would like to close with a few examples of how the U.S. is prepared to advance 

the disability treaty through already existing knowledge and expertise. Within 5 

years of the enactment of the Americans with Disabilities Act of 1990, I had the 

honor of becoming the 43rd Governor of Pennsylvania and witnessing the many 

ways that our 50 States advance the rights of people with disabilities. 

The U.S. supports a system of independent living centers, which are available in 

every state within our country to offer support to all people with disabilities to live 

independently and self-sufficiently in the community. Article 19 of the disability 

treaty recognizes the right of all people with disabilities to live in their community. 

As Governor, I appointed an executive director of a regional center for independent 

living to the Board of Vocational Rehabilitation in the state. I saw firsthand how 

employment outcomes for people with disabilities were affected by this U.S. created 

system. The National Council of Independent Living in the U.S. is a lead supporter 

of CRPD ratification and looks forward to the opportunity to contribute to the global 

independent living movement. 

As governor I also appointed members of the disability community to serve on our 

State Council on Developmental Disability. Through the federal Developmental Disabilities Assistance and Bill of Rights Act, which is now celebrating its 50th year 

of enactment, every State and Territory of the U.S. is required to have a Council 

on Developmental Disability to serve as a catalyst for the community toward better 

inclusion of people with disabilities. In Pennsylvania, our Council was successful in 

providing resources to remove people from state-run institutions and integrate them 

into the community, providing employment training, and helping people with developmental disabilities become self-advocates. 

The United States is also an international example for integrating and coordinating emergency preparedness, response and recovery for children and adults with 

disabilities and others with access and functional needs before, during and after a 

disaster. In 2001, I became Director of the Office of Homeland Security and later, 

in January 2003, the first Secretary of the Department of Homeland Security, overseeing the Federal Emergency Management Agency. In this time it was critical for 

disability to be included in any comprehensive response and recovery system. Article 

11 of the CRPD supports these actions. It states that state parties shall take any 

measures to ensure the protection and safety of persons with disabilities in emergencies and natural disasters. We must ensure that, similar to the United States, 

countries around the world are including people with disabilities when developing 

emergency preparedness tools, offering trainings to emergency response professionals and, in an emergency, carrying out emergency assistance. FEMA’s Office of 

Disability Integration and Coordination’s mission is to do just that and the CRPD 

will give us an opportunity to enhance our reach and technical assistance in this 

arena.
66

CLOSING

In closing, I urge you to support ratification of a treaty that will have a tremendous impact on Americans with disabilities at home and abroad. The treaty 

advances democracy and business, and above all validates for the rest of the world 

the value of people with disabilities. While I respect the differences of our Nation’s 

leaders on many topics, I stand firm that we must come together on the topic of 

disability. Disability does not know a political, racial, religious, or other barrier. It 

is an experience that has, or will, touch us all at some point in our lives. As the 

ink fades on our Declaration of Independence, it is up to us to ensure that the words 

of equality our country stands for are everlasting. Although our own laws will not 

change, U.S. ratification of the disability treaty will validate that all men are indeed 

equal and that, Senators, will have a resounding impact on the one billion persons 

with disabilities in the United States and around the world. 

The CHAIRMAN. Thank you, Mr. Secretary. 

Attorney General Thornburgh. 

STATEMENT OF HON. RICHARD THORNBURGH, FORMER 

ATTORNEY GENERAL OF THE UNITED STATES, OF COUNSEL, 

K&L GATES, LLP, WASHINGTON, DC 

Mr. THORNBURGH. It is a distinct pleasure for me, Mr. Chairman 

and Ranking Member Corker and other members of this committee, to testify once again before this committee in favor of the 

ratification of the Convention on the Rights of Persons with 

Disabilities.

This treaty is an important component of the worldwide effort to 

advance disability rights. U.S. ratification would mark a major step 

forward in this effort and to promote the rights of some 1 billion 

men, women, and children with disabilities around the world who 

lack recognition of their preeminent human rights. It would also 

serve to confirm American leadership in disability rights on the 

world stage. 

Today, we are witnessing a new era of worldwide recognition of 

disability rights. To date, as you heard, a total of 158 countries, 

including the United States, have signed the Convention, and 138 

have ratified its terms. 

As many of you may know, I have been involved in the disability 

movement for many years. I am also the father of a man with intellectual and physical disability, my son Peter, who was seriously 

brain-injured at the age of 4 months in a 1960 automobile accident 

that tragically took the life of his mother, my first wife. As Attorney General of the United States, it was my great privilege to serve 

as the point person for the administration of President George 

H.W. Bush in the bipartisan effort to secure the passage of the 

Americans with Disabilities Act in 1990. 

We find ourselves in a different place today than when I testified 

before this committee last summer. We have had the benefit of 

extensive discussion of the provisions of the Disability Treaty and 

their impact on U.S. domestic law, and on the nature of U.S. leadership in the world, and indeed on the very nature of the treaty 

process itself. Most important to me was the committee’s adoption 

of a series of reservations, understandings, and declarations— 

RUDs, as we now know—that helped to clarify the scope and 

meaning of the Convention. With the inclusion of these reservations, understandings, and declarations, the Disability Treaty 

would require no changes to U.S. Federal or State law, and it 

would have no impact on the Federal budget. The important 
67

reservation on federalism would ensure that the obligations that 

we undertake under the Convention are limited to the authority of 

the Federal Government and do not reach areas of a State and 

local jurisdiction. The reservation regarding private conduct would 

ensure that the United States will not accept any obligation, except 

as mandated by the Constitution and laws of the United States. 

I understand that some persons have challenged the long 

accepted practice of using RUDs in treaties. Such claims are misguided and, quite simply, extraordinary. When the U.S. Senate attaches conditions to any treaty during its advice-and-consent process, these conditions become part of the treaty and have the force 

and effect of law. 

Significantly, the Disabilities Treaty itself, by its own terms, 

allows nations to add their own reservations during the ratification 

process. The only limitation on the reservation process being that 

such reservation shall not be incompatible with the object and purpose of the Convention. 

In article 1, the Convention states that its purpose is to promote, 

protect, and ensure the full and equal enjoyment of all human 

rights and fundamental freedoms by all persons with disabilities, 

and to promote respect for their inherent dignity. Because the 

object and purpose of the Disabilities Treaty is to recognize and 

provide disability rights for persons with disabilities, the RUDs 

included by the committee last year fall well within this legal 

standard.

The claims that somehow ratification will undermine U.S. sovereignty are misplaced. Some have raised alarms over the existence 

of a disability committee created by the treaty. This committee 

would have only an advisory role, and there would be no call for 

its being entered as a law under our Constitution and legal standards.

Nothing in this treaty prevents parents from homeschooling or 

making other decisions about their children’s education. The Convention embraces the principles of the Individuals with Disabilities 

Education Act, adopted in this country, which emphasizes the 

importance of the role of parents of children with disabilities in 

making decisions on behalf of their children. In fact, many of the 

parents of children with disabilities choose to homeschool their 

children in order to provide an appropriate level of care and attention. And the Convention specifically recognizes and protects the 

important role of the family, and protects children from being separated from their parents on the basis of a disability. 

Ratification of the Disability Rights Convention is an opportunity 

to export to the world the very best we have to offer. This is a 

chance to use our rich national experience in disability rights, 

which has gained us the respect of the world community, to extend 

the principles embodied in the ADA to hundreds of millions of people with disabilities worldwide who today have no domestic protection. We must ratify this Convention so that we can fulfill the role 

of world leader that is expected of us. 

Thank you for your attention. 

[The prepared statement of Mr. Thornburgh follows:] 
68

PREPARED STATEMENT OF RICHARD THORNBURGH

It is a distinct pleasure for to me to testify once again before this committee in 

favor of the ratification of the Convention on the Rights of Persons with Disabilities 

(the Convention or Disabilities Treaty). The Disabilities Treaty is an important component of the worldwide effort to advance disability rights. Ratification would mark 

a major step forward in the effort to end discrimination and to promote the rights 

of some 1 billion men, women, and children with disabilities around the world who 

seek recognition of their preeminent human rights. It would also serve to confirm 

American leadership in disability rights on the world stage. 

Today we are witnessing a new era of worldwide recognition of disability rights. 

To date, as I last looked, a total of 158 countries (including the United States) have 

signed the Convention and 138 have ratified its terms. It is significant that the language of the Convention closely follows U.S. law and our own pioneering efforts in 

the recognizing and enforcing disability rights. It is equally significant that the 

United States remains on the sidelines as countries around the world ratify and 

work to comply with the Disabilities Treaty. U.S. Senate ratification of the Convention will rectify this anomaly and provide a major leap forward in securing equal 

rights around the world for persons with disabilities. 

I.

As many of you may know, I have been involved in the disability movement for 

many years. I was a founding director of the National Organization on Disability 

(NOD) back in 1982 and later served as Vice Chairman of its international arm, the 

World Committee on Disability. I am also the father of a man with intellectual and 

physical disability—my son, Peter, who was seriously injured at the age of 4 months 

in a 1960 automobile accident that tragically took the life of his mother, my first 

wife.

As Governor of Pennsylvania and Attorney General of the United States, I have 

had the privilege of working in official capacities for the inclusion of people with 

disabilities in all aspects of life. Indeed, it was my special privilege to serve as the 

point person for the administration of President George H.W. Bush in the bipartisan 

effort to secure the passage of the Americans with Disabilities Act (ADA) in 1990. 

This work has become a family affair, as my wife, Ginny, whom I married in 

1963, founded NOD’s Religion and Disability Program, designed to insure spiritual 

and religious access to persons with physical, mental, sensory and intellectual disability. She is now the Director of the Interfaith Initiative at the American Association of People with Disabilities coordinating efforts by leaders of many faiths to 

advance the cause of disability rights. As the Convener of the Interfaith Disability 

Advocacy Coalition (IDAC), she has transmitted support for the Convention from 41 

national religious or religiously affiliated organizations to members of this committee. We have thus had the great privilege of merging our personal and career 

objectives in this worthy cause. 

I know firsthand from my service as an Under Secretary General at the United 

Nations in the immediate post-cold-war era of the long struggle to obtain passage 

of this Convention. The effort had its genesis in the 1981 Year of Disabled Persons, 

followed by the Decade of Disabled Persons and the promulgation of the World Programme of Action Concerning Disabled Persons, all providing focal points for efforts 

to internationalize concerns about disability rights. I particularly recall attending 

the historic gathering in Montreal in October 1992 of the very first International 

Conference of Ministers Responsible for the Status of Persons With Disabilities 

where leaders of 73 governments throughout the world met for the first time to 

exchange ideas and fashion strategies which ultimately led to the adoption of the 

Convention.

The Convention represents important principles that as Americans we hold dear— 

basic recognition and equal protection of every person under the law, nondiscrimination, the fundamental importance of independent living, and the right to make basic 

choices about our lives. We pioneered these basic principles under American law 

through passage of the ADA. We in the United States are demonstrating that people 

with disabilities can participate fully in our democracy. We are demonstrating that 

society, as a whole, is richer and better off when people with disabilities are 

included fully in every aspect of life. It is my hope and expectation that the United 

States will assume an equally important leadership role in helping to promote these 

basic principles worldwide by the ratification of this Convention. 

Over 20 years ago, while serving as U.S. Attorney General, I testified before 

House and Senate committees of the U.S. Congress in support of the ADA. During 

those hearings I acknowledged that no piece of legislation could alone change the 

longstanding misperceptions that many people have about disability—mispercep-
69

tions based largely on stereotype, ignorance, and fear of what is different. Any reshaping of attitudes would have to be the gradual result not of the words or ideas 

in the laws, but of bringing people with disabilities from the margins of society into 

the mainstream of American life—in our schools and workplaces, on buses and 

trains, and in our courthouses, restaurants, theaters and congregations—where they 

not only have an absolute right to be but where we have an obligation as fellow 

human beings to welcome them as equals. 

The effort to secure passage of the ADA was difficult. But, this legislation, with 

its innovative concepts such as the need for ‘‘reasonable accommodation,’’ is changing America. It has truly made us more representative, more democratic and more 

empowering by ending the unchecked exclusion of 54 million Americans from our 

daily lives. 

Fortunately, the Disabilities Convention is an embodiment of the nondiscrimination principles developed in the United States. Its principles and, indeed, much of 

its language, come directly from U.S. law, adopting the successful and balanced 

approach of U.S. federal disability rights law. It embodies the traditional American 

ideals that form the basis of the Americans with Disabilities Act—the core principles of nondiscrimination and equality of opportunity. And the Convention adopts 

the U.S.-balanced approach to accessibility. Each requirement is tempered by limitations that reflect the difficulty and costs of achieving accessibility. Thus the obligation to make reasonable accommodation to employees is limited by undue hardship. 

Businesses do not have to make changes to their programs and services if they are 

too costly or would fundamentally change the nature of the program or service. 

The comprehensive nature of the treaty also mirrors the U.S. approach to disability rights. Both U.S. law and the Disabilities Treaty recognize that persons with 

disabilities will not be able to enjoy equal opportunity unless there is broad coverage. Having an education loses its meaning if jobs are foreclosed to students with 

disabilities. Nondiscrimination in employment will not be meaningful unless persons 

can get to work on accessible transportation. Having a job will lose its meaning if 

persons are unable to enjoy the fruits of their labor, from dining at a restaurant, 

going to a movie, or traveling across the country. Thus, then, like U.S. law, the Disabilities Convention is comprehensive in its approach. It addresses access to facilities, political participation, access to justice, access to education, employment, 

health care, participation in public and cultural life, recreation, leisure activities, 

and sports. It upholds freedom of expression, access to information, the ability to 

live independently in one’s own community, and freedom from torture and other 

cruel, inhuman, or degrading treatment. 

Because of our adoption of the ADA and other disability rights legislation, the 

United States is viewed internationally as a pioneering role model for disability 

rights. Disability activists from other countries have taken the ADA to their governments and said, ‘‘This is how it should be done. We need to do this here in our country.’’ And governments around the world have responded. As one who worked hard 

to gain protection of these rights in the United States, I am very proud to see how 

these basic principles are now on the way to being established as a part of international law through the adoption of the CRPD. As we overcame so many barriers 

to the enactment and implementation of the ADA, I am confident that we can be 

part of an even greater coalition to bring about worldwide support for this Convention as well. 

Despite progress already made, disability as a global issue remains near the bottom of the list of priorities in many governments and societies. People with disabilities remain among the poorest, least educated and most abused and excluded people on earth. We must recognize that the challenges we face are intimately linked 

with the very circumstances of economic, social, and political marginalization that 

affect people with disabilities around the world. 

II.

We find ourselves today in a different place than when I testified before this committee last summer. We have had the benefit of extensive discussion of the provisions of the Disabilities Treaty and their impact on U.S. domestic law and on the 

nature of U.S. leadership in the world and, indeed, on the very nature of the treaty 

process itself. 

Most important to me was the committee’s adoption of a series of reservations, 

understandings, and declarations (RUDs) that clarified the scope and meaning of 

the Convention. With the inclusion of these reservations, understandings, and declarations, the Disabilities Treaty will require no changes to U.S. Federal or State 

law and it will have no impact on the Federal budget. The important reservation 

on federalism ensures that the obligations that we undertake under the Convention 
70

1See Sosa v. Alvarez Machain, 542 U.S. 692 (2004)(Self-executing declaration); Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005)(Understanding); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 

2001)(Reservation); Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001)(Reservation and self-executing declaration). 2 ‘‘Observations by the Governments of the United States and the United Kingdom on Human 

Rights Committee General Comment No. 24(52) relating to reservations,’’ U.N. document A/50/ 

40, March 28, 1995, p.1. 

are limited to the authority of the Federal Government and do not reach areas of 

State and local jurisdiction. The reservation regarding private conduct will ensure 

that the U.S. will not accept any obligation except as mandated by the Constitution 

and the laws of the United States, such as the ADA and others like the Individual 

with Disabilities Education Act. Thus, as with our current law, religious entities, 

small employers, and private homes would be exempt from any new requirements. 

I also call to your attention the important understanding on what are called economic, social, and cultural rights. This understanding makes clear that, even if any 

of the Convention’s provisions could be read to establish new rights, the U.S. recognizes that its obligations under the Convention are limited to those of nondiscrimination and that the treaty only requires that the U.S. will guarantee persons with 

disabilities rights under U.S. law to the same extent that such rights are recognized 

with regard to persons without disabilities and will do so on a nondiscriminatory 

basis.

I understand that some persons have challenged the long-accepted practice of 

using RUDs in treaties. Such claims are misguided and, quite simply, extraordinary. 

When the U.S. Senate attaches conditions to any treaty during its advice-and-consent process, these conditions are binding on the President and the President cannot 

proceed to ratify a treaty without giving them effect. These conditions become part 

of the treaty and have the force and effect of law. The various courts of the United 

States have upheld the validity of reservations, understandings, and declarations.1

Further, administrations of both political parties have uniformly held this view. In 

1995, the United States stated that ‘‘reservations are an essential part of a State’s 

consent to be bound. They cannot simply be erased. This reflects the fundamental 

principle of the law of treaties: obligation is based on consent. A State which does 

not consent to a treaty is not bound by that treaty. A State which expressly withholds its consent from a provision cannot be presumed, on the basis of some legal 

fiction, to be bound by it.2

Significantly, the Disabilities Treaty itself, by its own terms, allows nations to add 

its own reservations during the ratification process. The only limitation on the reservation process being that such reservations shall not be incompatible with the 

object and purpose of the Convention. In Article 1, the Convention states that its 

purpose is to ‘‘promote, protect and ensure the full and equal enjoyment of all 

human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.’’ Because the object and purpose of the 

Disabilities Treaty is to recognize and provide disability rights for persons with disabilities, the RUDs included by the committee last year fall well within this legal 

standard. Any criticism that the wide-ranging laws of the United States in the disability rights arena, recognized even by opponents of the treaty as the ‘‘gold standard’’ for the world, somehow do not meet the object and purpose of the treaty is fanciful at best. 

Similarly the extended body of law on how the Disabilities Treaty affects U.S. sovereignty bears revisiting. Exercising our Constitution’s treatymaking power is itself 

a declaration of our sovereignty. In this instance, where the treaty adopts American 

ideals and legal principles and encourages the nations of the world to follow our 

model of equal opportunity and nondiscrimination, U.S. interests and influence is 

being extended. The Convention embodies the traditional American ideals that form 

the basis of our own ADA—empowering persons with disabilities to be independent, 

to claim responsibility for their own lives, and to be able to make their own choices. 

Ratification presents us with the opportunity to reaffirm these values and to export 

American ideals around the world. 

The claims that somehow ratification will undermine U.S. sovereignty are misplaced. 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 nations 

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 treaty provides no vehicle for the U.N. or any U.N. officials 
71

to interfere in American jurisprudence. Any concern that this Committee can have 

any role other than an advisory one was further allayed by the understanding 

adopted by the Committee last year that made clear that the Committee has no 

authority to compel any U.S. actions and that its conclusions, recommendations, or 

general comments were not legally binding on the United States in any manner. 

It is correctly noted that by ratifying the Convention, the United States agrees 

to report regularly to an international advisory body. We have nothing to hide. We 

can only gain from participating in the process of international review. Moreover, 

we should not be so proud as to think that we cannot learn from other countries 

about how to meet the challenge of providing even better opportunities for people 

with disabilities. 

As with other treaties entered into by the United States, the Disabilities Convention will include a declaration that the treaty is not self-executing. Thus, the treaty 

does not of itself give rise to individually enforceable rights and cannot be directly 

enforced by courts in the United States. The fact that the Disabilities Treaty is not 

self-executing actually means something. No one will have standing to use the 

treaty in a court in the United States nor can any U.S. court interpret the treaty. 

Simply put, U.S. sovereignty with regard to domestic decisionmaking will be fully 

respected and preserved. 

Others have raised concerns that the treatymaking power of the United States 

should be limited to matters of national security, that somehow we should proscribe 

entering into treaties on human rights issues. I know of no subject matter limitation 

on our treatymaking powers in the U.S. Constitution. Further, the United States 

has long entered into treaties well beyond this suggested narrow reach, including, 

for example, treaties providing for the protections of intercountry adoptions, defining the ability of American parents to recover child support in foreign countries, protecting intellectual property, or recognizing the elimination of racial discrimination. 

Most importantly, such a crabbed view of our treatymaking power will seriously 

undermine our standing as a champion of human rights and undercut our credibility 

to advocate for changes in human rights in regimes across the globe that do not 

adhere to basic American principles. 

Let me address for a moment the painful and, I must admit, somewhat puzzling 

question of the seeming reluctance of some in our own Nation to continue our lead 

role in this international effort. To begin with, it has been argued that disability 

rights are more appropriately addressed as solely a domestic concern, given the complexity of the issues involved. In other words, this really isn’t an appropriate subject 

for international protection. Certainly, good domestic legislation in every country 

would be the ideal solution. But since many countries don’t have such protections, 

it does not seem reasonable to expect that this will change dramatically without 

international pressure. The fact is, for many countries, international conventions 

have already served as a catalyst for the development of important domestic protections in many other areas. 

Nor will the Disabilities Treaty require a national registration of all children born 

with disabilities. Article 18 of the Disabilities Convention requires nations to register children with disabilities at birth. This provision recognizes the horrible practice of denying personhood status for infants with disabilities, which leads directly 

to the practice of infanticide in cultures across the globe that do not recognize the 

value of all human life. In the United States the individual states require the registration of each child at birth through State and local birth certificate processes. 

Here the Disabilities Treaty and U.S. moral leadership will provide much-needed 

protection in other countries where there is no provision for a birth certification 

process.

Nothing in this treaty prevents parents from homeschooling or making decisions 

for their children. The Convention embraces the principles of our IDEA, the Individuals with Disabilities Education Act, which emphasizes the importance of the role 

of parents of children with disabilities making decisions on behalf of their children. 

In fact, many parents of children with disabilities choose to homeschool their children in order to provide an appropriate level of care and attention. In fact, the Convention specifically recognizes and protects the important role of the family and protects children from being separated from their parents on the basis of a disability. 

Last year, the Committee included an understanding that made clear that the use 

of the phrase ‘‘the best interest of the child’’ would not have the purpose or effect 

of limiting parental authority in making homeschooling decisions. While not necessary, inclusion of a similar understanding this year would eliminate any concerns 

on this issue. 

As a practical matter, the United States will have much more authority to speak 

out about these and other forms of discrimination against people with disabilities 
72

worldwide if we agree to abide by the same international scrutiny at home. We 

already have laws in place that are consistent with the CRPD. 

The Convention provides governments with core, minimum standards needed to 

make essential reforms without locking different countries into one particular approach or another. This approach is a strength of the Convention, not a weakness. 

This approach addresses the unwarranted criticism that the Convention itself does 

not contain a specific definition of disability. Instead the Convention recognizes in 

its preamble that disability is an evolving concept that results from the interaction 

between a person’s impairments and the attitudinal and environmental barriers 

that hinder the full and effective participation in society. The Convention then allows each nation state to pursue its own definition of disability under this rubric. 

We in the United States have worked over the years to refine our own definition 

of disability for our nondiscrimination laws. The original definition in the ADA, 

which was drawn from the definition of disability in the Rehabilitation Act of 1973, 

was reworked in the ADA Amendments Act of 2008. We have a strong, workable 

definition of disability in the United States. This committee recognized this definition in an understanding that defined disability for the Disabilities Treaty as it is 

defined and used under the Americans with Disabilities Act. This approach is sound 

and lays to rest any concerns about lack of clarity or potential misunderstandings. 

One other issue caused considerable discussion in last year’s debates on the 

CRPD, the issue of abortion. The CRPD is a disabilities treaty; it is a nondiscrimination treaty; it is not about abortion. In fact, the word abortion is not even 

in the treaty. The CRPD does not create new abortion rights nor does it require 

funding for abortion. Instead the treaty recognizes, plainly and baldly, the right of 

persons with disabilities to life. Article 10 reaffirms that ‘‘every human being has 

the inherent right to life’’ and calls upon nations to take all necessary measures to 

protect the lives of persons with disabilities on an equal basis with all other peoples. 

The Convention, for the first time in the international realm, specifically labels as 

an act of discrimination the denial of medical care or food and fluids on the basis 

of disability. The United States should ratify this language and assume a leadership 

role in ending the all-too-common and horrible practice of denying medical attention 

and food and water to newborns with disabilities, even to those with such disabilities as spina bifida. The Convention does use the phrase sexual and reproductive 

health programs in the Article on health. This phrase was included to dispel the 

stereotype that persons with disabilities are not sexual beings and to ensure that 

nations will address the practice of forced sterilization of persons with disabilities, 

often those with intellectual disabilities. A practice that was used and ratified in 

this country in the 19th century by the Supreme Court in Buck v. Bell, 274 U.S. 

200 (1927). 

Finally, some have said that, because of America’s comprehensive domestic protections, a treaty on disability would have no relevance in our own country. But, let’s 

hold on a minute. We are indeed at this time the most progressive country in the 

world when it comes to the domestic protection of disability rights. The universality 

of rights and fundamental freedoms—as expressed in our Declaration of Independence—is the foundation on which our entire society is based. Respect for human 

rights is also a stated principle of our foreign policy—precisely because we recognize 

that stability, security and economic opportunity in any society presuppose a social 

order based on respect for the rights of its citizens. Given this history and these 

values, it would seem natural for the United States to assume a leading role—not 

a passive one—in the effort to recognize and enforce an international treaty of this 

kind.

Ratification of the Disability Rights Convention is an opportunity to export to the 

world the very best we have to offer. This is a chance to use our rich national experience in disability rights—which has gained us the respect of the world community—to extend the principles embodied in the ADA to the hundreds of millions of 

people with disabilities worldwide who today have no domestic protection. This is 

worthy of our leadership. We have everything to gain and nothing to lose by playing 

the role the world expects of us. We must ratify the Convention so that we can fulfill that role. 

III.

Just as in the case of the ADA, we must recognize that the Convention will not 

provide instant legal solutions that can effect immediate changes in attitudes and 

cultural perceptions; nor will it dispel the ignorance that leads to discrimination and 

human rights abuses of people with disabilities. What it will do is create a permanent place for disability within the human rights framework. It will put disability 

issues on the radar screen of governments and societies as a legitimate human 
73

rights concern to which they must pay heed. It will provide guidance and standards 

and create legal obligations for governments to respect the rights of this sizable population. It can serve as a powerful advocacy tool for the global disability movement 

to promote inclusion and equality of opportunity. 

Before closing let me say a word, in particular, about the developing nations of 

the world wherein, it is estimated, some 80 percent of the world’s disabled population lives. Most of these persons are at the margin of their respective societies. 

Priority concerns of just surviving—combating hunger, securing shelter, and eking 

out a daily existence—unfortunately take present precedence over concerns for people with disabilities. 

It is sometimes said that, in nations struggling with a full agenda of political and 

economic problems and the effort to achieve basic human rights for all their citizens, 

the interests of persons with disabilities are likely to be set to one side for ‘‘future 

consideration,’’ i.e., when these other more important matters have been addressed. 

On the contrary, I would suggest that what responsible leaders of developing 

nations need to realize is the unique opportunity they have to embed disability 

rights in their emerging institutions as part of their development efforts, to build 

an infrastructure of government, economy and human rights that includes and 

respects the interests of persons with disabilities from the very beginning. For it is 

no exaggeration to say that the way a society treats its citizens with disabilities is 

a valid measure of the quality of life and respect for human dignity in that society. 

Even after ratification and implementation of the Convention, change will be 

gradual—and perhaps painfully slow, to be sure, but these represent important first 

steps we can take toward promoting change on a global scale. This Convention can 

help all of us to focus world attention on those worldwide whose rights have been 

ignored for far too long. Let’s be about the business of seeing that those rights are 

honored, and implemented, now and forever more, by providing timely ratification 

of this important Convention. 

The CHAIRMAN. Thank you. 

Dr. Yoshihara. 

STATEMENT OF SUSAN YOSHIHARA, SENIOR VICE PRESIDENT 

FOR RESEARCH AND DIRECTOR, INTERNATIONAL ORGANIZATION RESEARCH GROUP, THE CATHOLIC FAMILY & 

HUMAN RIGHTS INSTITUTE, WASHINGTON, DC 

Dr. YOSHIHARA. Chairman Menendez, Ranking Member Corker, 

members of the committee, thank you for inviting me to present my 

views on the Convention on the Rights of Persons with Disability. 

I appreciate the high hopes that some of my fellow veterans have 

for this treaty. I am one of many veterans who do not share that 

optimism and, like the group AMVETS, realize that, while the 

treaty might help improve conditions abroad, American ratification 

of the treaty will not help disabled Americans, here or abroad. 

Secretary Kerry recently addressed the U.N. High Level Summit 

on Disabilities. He called the ADA the gold standard. And, notably, 

he did not mention this treaty. There, in that forum, nations like 

Russia declared that the United States is their role model. This 

shows that the United States is not only at the table, it is at the 

head of the table. When it comes to treaties, other governments 

will comply with or shirk their obligations whether we bind ourselves to them or not. 

Now, I have been asked to address something in particular, the 

controversial term ‘‘sexual and reproductive health’’ in the treaty. 

I took part in the last round of treaty negotiations when it was 

inserted, and there is no better example of the way U.N. bureaucracies disregard the will of nations by routinely misinterpreting 

international obligations and, instead, promote their own agenda. 

First, 23 nations opposed this term throughout the negotiation. 

This large number would usually have ended debate. And, to get 
74

it into the treaty, proponents had to resort to things like secret 

meetings and venues where not all delegates were allowed. Nonetheless, nations were assured during negotiations that the treaty 

created no new rights and that the term would not be used to promote abortion. Yet, many nations took the additional step of putting this in the record on the day of adoption. Fifteen nations, 

nearly half of all the statements made that day, focused on reinforcing this understanding, including the American statement. 

Some reiterated that at the time of signature or accession, believing that it would be accepted and honored in good faith. But, since 

the time of adoption, their fears have come true. Countries are 

being pressured to change their laws. 

For example, in May, UNICEF announced that it interprets the 

Disabilities Convention and the Convention on the Rights of the 

Child as giving children as young as 10 years old a right to confidential reproductive and sexual health services. This means that 

adults who are not the child’s parents can supply sexual information and medical services without their parents’ knowledge. 

Now, second, human rights treaty bodies simply ignore the consensus of nations. In this case, the agreement that sexual and 

reproductive health does not include a right to abortion. Even before the Disabilities Treaty was adopted, in just a 10-year period, 

treaty bodies pressured more than 90 countries over 120 times to 

liberalize their laws on abortion, including the Human Rights Committee, who told Peru that carrying a disabled child to term was 

cruel and inhuman. These committees also pressure countries to 

remove their reservations, and encourage other governments to 

pressure those countries. 

Now, sadly, the Committee on the Rights of Persons with Disabilities has taken up this practice and has already pressured 

Spain and Hungary on their abortion laws. The disabilities committees also told countries that they should remove all reservations, 

and this includes reservations that preserve the supremacy of 

national constitutions over the treaty if there is a conflict. 

Now, in theory, treaty-monitoring bodies have no authority to 

interpret treaties in ways that create new obligations or that alter 

the substance of the treaties. But, in reality, jurists are accepting 

these interpretations as creating new obligations. The high courts 

of Colombia and Argentina changed their abortion laws, citing the 

U.N. committees as authoritative. Spain liberalized abortion in 

2010, stating it did so because of this treaty and also the World 

Health Organization’s definition of ‘‘sexual and reproductive 

health,’’ a definition that has been rejected by U.N. member states 

for 20 years. 

Now, third—the main problem with that is that these cases could 

reverberate in U.S. law—the third point I want to make is that this 

is not isolated just to this term. It is a systemic problem affecting 

a wide range of social and economic policies that Americans care 

about. The U.N. Human Rights Treaty system is in disarray. 

Now things are so bad, last year the U.N. General Assembly 

launched a process to overhaul the monitoring committees and 

attempt to hold them accountable. Even the United States said, in 

those negotiations, that, before Americans give more money to the 

U.N. Human Rights Treaty system, we have to be sure the commit-
75

tees will not be doing business as usual and that the reforms will 

actually have effect. 

Simply put, states’ parties and U.N. bureaucracies find themselves at loggerheads on the interpretation of the text of the treaties and on the very purpose of the U.N. treaty system. We would 

do well to steer clear of lending it further credibility or subjecting 

our own laws to its scrutiny. 

But, even without ratifying this controversial treaty, Americans 

are making life better for disabled persons all over the world 

through their generosity, through 77 programs at USAID, and 

countless other ways, and our example of our own laws. And our 

diplomats should continue to wield American credibility when promoting fairness, opportunity for persons with disabilities around 

the world. 

Thank you. 

[The prepared statement of Dr. Yoshihara follows:] 

PREPARED STATEMENT OF DR. SUSAN YOSHIHARA

Chairman Menendez, Ranking Member Corker, members of the committee, thank 

you for inviting me to present my views on the Convention on the Rights of Persons 

with Disabilities. 

I appreciate the hopes some of my fellow veterans have for this treaty. I am one 

of many veterans who do not share that optimism, and like AMVETS, realize that 

ratifying this treaty will not help disabled Americans here or abroad. 

This treaty is meant to help other nations raise their standards to those of the 

Americans with Disabilities Act. Secretary of State Kerry addressed leaders at the 

U.N. High Level Summit on Disabilities a few weeks ago, reminding them that ‘‘in 

too many countries . . . we still see the rights and the dignity that we take for 

granted are not existent in many of those places.’’ Yet experience demonstrates that 

other governments comply with, or shirk, their treaty obligations independent of 

whether or not we bind ourselves to them. 

I have been asked to address the controversial term ‘‘sexual and reproductive 

health’’ in the treaty. There is no better example of the dangers of ratification or 

the way U.N. bureaucracies disregard the will of nations by routinely misinterpreting international obligations to instead promote their own agenda. 

I want to make three points. The way that language got into the treaty, the dangers of the way it is being used, and how the example of sexual and reproductive 

health illustrates the current crisis within the U.N. treaty system. 

This is the first time the term ‘‘sexual and reproductive health’’ appeared in any 

U.N. treaty and yet it was left undefined. While there may be a perception that the 

term achieved consensus, that was not the case. In fact, 23 nations opposed the 

term and opposition remained throughout the negotiations. I would point out that 

this is a very high number of objectors, and that ordinarily the language would have 

been removed. I included a detailed account of that negotiation in my law review 

article as an addendum to this testimony. In order to get the term into the text, 

proponents had to resort to secret meetings in remote venues where not all delegates were allowed. 

On the day this landmark treaty was adopted, nearly half of all the statements 

made by countries struck a note of warning. Fifteen nations rose to reject the term, 

declare it did not include abortion, or to say the treaty created no new rights. The 

United States said the treaty ‘‘cannot be interpreted to constitute support, endorsement, or promotion of abortion.’’ 1 Four countries would go on to make such statements at the time of signature or accession. 

During negotiations, nations were assured that a footnote in a draft of the treaty 

would clarify the issue, but that footnote does not accompany the treaty. It is not 

a part of the materials provided by President Obama for ratification by the Senate. 

The bottom line is that many countries were not satisfied with assurances that the 

presence of this term in the treaty would not be used to promote new rights. 

Since the time of adoption, their fears have come true: countries are being pressured to change their laws. For example, UNICEF announced in May the Disabilities Treaty and Convention on the Rights of the Child give children as young as 

10 years old a ‘‘right’’ to ‘‘confidential’’ reproductive and sexual health services. This 
76

means adults who are not the child’s parents can supply sexual information or medical services (including pharmaceuticals) without their parents’ knowledge.2

The second point I want to make is how this term is used. 

We should be clear. The Disabilities Treaty includes ‘‘sexual and reproductive 

health’’ as a category of nondiscrimination and not as a right. But this should not 

allay the concerns of lawmakers. In 10 year’s time, treaty bodies pressured more 

than 90 countries over 120 times to liberalize abortion, even though no U.N. treaty 

mentioned reproductive health or rights, let alone abortion. 

The term ‘‘sexual and reproductive health’’ has only been defined once in a negotiated document, the nonbinding 1994 International Conference on Population and 

Development Program of Action (Cairo). Nations rejected any right to abortion at 

the Cairo conference; they only defined the term as including abortion where it is 

not against the law. Treaty bodies have ignored the agreement of nations at Cairo 

that regulation of abortion laws is the prerogative of sovereign states. 

In just one example, the Human Rights Committee told Peru that its protection 

of an unborn disabled child was ‘‘cruel and inhuman’’ and therefore violated the 

treaty.3 The following year when the Disabilities Treaty was adopted, the Holy See 

announced it would not sign the Disabilities treaty, explaining that ‘‘It is surely 

tragic that . . . the same Convention created to protect persons with disabilities

may be used to deny the very basic right to life of disabled unborn persons.’’ 

The Committee on the Rights of Persons with Disabilities has already shown the 

same disregard for the agreement of nations on this issue, and it has pressured nations on their abortion laws. The committee took Spain and Hungary to task, noting 

that healthy children could be aborted legally through the first trimester and children identified to have abnormalities through the second trimester. Instead of recommending more protection for these children, the committee suggested they simply 

remove any ‘‘distinction’’ in the periods, in effect calling for liberalizing the law. 

Some countries have made reservations to the term sexual and reproductive health. 

The Disabilities committee has told countries they should remove all reservations. 

This includes reservations that preserve the supremacy of the national constitution 

over the treaty if they were to conflict. This raises concern, since this is precisely 

the type of reservation that the U.S. makes when entering into any treaty. 

In theory, according to the treaties and under international law, treaty-monitoring 

bodies have no authority to interpret these treaties in ways that create new state 

obligations or that alter the substance of the treaties. 

In reality, jurists are accepting treaty body interpretations as creating new obligations. In 2006, Colombia’s high court cited the U.N. Convention on the Elimination 

of All Forms of Discrimination Against Women (CEDAW) committee observations in 

a decision that liberalized abortion laws in that country. Last year Argentina’s high 

court made a similar decision, citing the treaty body as authoritative. There is concern that such cases can reverberate in U.S. law. Some U.S. Supreme Court justices 

approve of considering international jurisprudence in U.S. decisions. 

The committees use a notion of ‘‘evolving standards’’ to create new obligations and 

then promote their views as binding precedent by calling it ‘‘jurisprudence.’’ This 

raises concerns of the emergence of an international custom on abortion, which 

other countries would consider binding on the U.S. 

If nations were convinced that there were no danger of new rights being imposed 

on states parties to this treaty, there would be no need for these same nations to 

be taking measures to reject the treaty body’s broad interpretations of ‘‘sexual and 

reproductive health,’’ and to reject similar terms such as ‘‘reproductive rights.’’ Yet 

that is what is happening. This is most notable in meetings such as the 2011 Rio 

High Level Summit on Sustainable Development, and this year’s negotiations over 

the Sustainable Development Goals, which will set the agenda for U.N. development 

spending for decades to come. 

At the same time, U.N. agencies have promoted broad interpretations of these 

terms more assertively than ever in policy documents from the Office of the High 

Commission on Human Rights and the World Health Organization. Just weeks ago, 

the CEDAW committee issued its views to states parties that nations are obligated 

to provide ‘‘sexual and reproductive health care’’ in situations of conflict that 

includes ‘‘abortion services’’ 4. This contravenes U.S. law. 

This brings me to my third point: the U.N. human rights system is in disarray. 

The U.N. General Assembly launched a process to overhaul the monitoring committees last year.5 Backlogs, inefficiency, the proliferation of reports—many of which 

examine domestic laws and policies lying far beyond committee mandates—have 

simply overwhelmed states parties and the committee staff. Treaty body members 

say this is the result of new accessions to the treaty and a testament to the success 

of the treaty body system. In reality, the problem is in large part the treaty body 
77

working methods developed by the committees and the Secretariat, the Office of the 

High Commissioner on Human Rights. 

What was once a straightforward reporting mechanism has become a laborious 

monitoring process where committees instruct parties on how to implement treaties. 

Rather than a forum where countries can seek best practices, it has become a venue 

for upbraiding countries via elaborate treaty interpretations that sometimes intrude 

upon the democratic process. 

Even the United States has said during treaty body reform negotiations that 

before Americans invest more money in the treaty bodies we must be sure the committees will not be conducting business as usual, and reforms will actually have an 

effect.

Simply put, states parties and U.N. bureaucracies find themselves at loggerheads 

on the interpretation of sexual and reproductive health and at odds on the purpose 

of the U.N. treaty system itself. This has raised the question of whether the United 

States, or any of the dozens of countries who have not ratified the treaty, should 

lend the system credibility or put themselves under its review. They should not. 

The good news is that the U.S. doesn’t need to be a party to this treaty to promote 

its best practices. 

As Secretary of State Kerry told the U.N. high-level summit on disabilities just 

a few weeks ago, the Americans with Disabilities Act is the ‘‘gold standard.’’ He 

encouraged the ‘‘international community to look at, study, and, hopefully, emulate 

this law,’’ and the many other laws, policies, and programs Americans have already 

enacted. Notably, other countries rose to recognize American leadership at the summit. Russia said the United States remained the model for its own efforts. 

As the High Level Summit demonstrates, not only are Americans at the table, 

they are at the head. We can expect that, even without ratifying this controversial 

treaty, U.S. diplomats will continue to wield American credibility when promoting 

fairness and opportunity for persons with disabilities around the world. 

————————

End Notes 

1Lithuania said: ‘‘the concept of ‘sexual and reproductive health’ used in Article 25(a) of the 

Convention shall not be interpreted to establish new human rights and create relevant international commitments of the Republic of Lithuania. The legal content of this concept does not 

include support, encouragement or promotion of pregnancy termination, sterilization and medical procedures of persons with disabilities, able to cause discrimination on the grounds of 

genetic features.’’ Malta said: ‘‘the phrase ‘sexual and reproductive health’ in Art 25 (a) of the 

Convention does not constitute recognition of any new international law obligation, does not create any abortion rights, and cannot be interpreted to constitute support, endorsement, or promotion of abortion. Malta further understands that the use of this phrase is intended exclusively 

to underline the point that where health services are provided, they are provided without discrimination on the basis of disability. Monaco said: ‘‘articles 23 and 25 of the Convention must 

not be interpreted as recognizing an individual right to abortion except where expressly provided for under national law.’’ 2 UNICEF director Tony Lake asserted in the agency’s May 2013 report, ‘‘Under the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD), all children have the right to the highest attainable standard of health. It follows 

that children with disabilities are equally entitled to the full spectrum of care—from immunization in infancy to proper nutrition and treatment for the ailments and injuries of childhood, to 

confidential sexual and reproductive health information and services during adolescence and into 

early adulthood. Equally critical are such basic services as water, sanitation and hygiene.’’ 

UNICEF, State of the World’s Children 2013, page 23. Emphasis added. (http://www.unicef.org/ 

sowc2013/files/SWCR2013lENGlLolresl24lAprl2013.pdf) 3For an example of national courts considering the rights of disabled unborn, see the case 

of Costa and Pavan v. Italy, (No. 54270/10, 28 August 2012), in which the Italian court took 

a significant step toward the recognition of a right to a genetically healthy child, which the 

Court calls the ‘‘right [of the applicants] to bring a child into the world who is not affected by 

the illness that they carry’’ (§ 65). 4 U.N. Committee on the Elimination of Discrimination Against Women (CEDAW), General 

recommendation No. 30 on women in conflict prevention, conflict and post conflict situations, 

18 October 2013 Available at (http://www.ohchr.org/Documents/HRBodies/CEDAW/GComments/ 

CEDAW.C.CG.30.pdf). See also: United Nations, Interim report of the Special Rapporteur on the 

right of everyone to the enjoyment of the highest attainable standard of physical and mental 

health, Aug. 3, 2011. Available at (http://www.un.org/ga/search/viewldoc.asp?symbol=A/66/254).

World Health Organization. Safe abortion: technical and policy guidance for health systems. 

World Health Organization, Geneva, Switzerland (2012) 134 pp. ISBN 978 92 4 154843 4 Available at (http://www.who.int/reproductivehealth/publications/unsafelabortion/9789241548434/en/

). Office of the High Commissioner on Human Rights, Technical guidance on the application of 

a human rights-based approach to the implementation of policies and programmes to reduce 

preventable maternal morbidity and mortality, 2012. Available at (http://www2.ohchr.org/ 

english/issues/women/docs/A.HRC.21.22len.pdf). 5See U.N. General Assembly Resolution A/RES/66/254, (http://daccess-dds-ny.un.org/doc/ 

UNDOC/GEN/N11/474/06/PDF/N1147406.pdf?OpenElement).
78

The CHAIRMAN. Thank you. 

Professor Meyer. 

STATEMENT OF TIMOTHY L. MEYER, ASSISTANT PROFESSOR 

OF LAW, THE UNIVERSITY OF GEORGIA SCHOOL OF LAW, 

ATHENS, GA 

Mr. MEYER. Thank you, Chairman Menendez, Ranking Member 

Corker, and members of the committee, for the opportunity to 

appear before you today. 

Unlike my colleagues, I am not here either to support or oppose 

the Convention. Rather, I am here hopefully to clarify the legal status of the work of the Committee on Disabilities. 

I am a professor of international law at the University of Georgia, and formerly an attorney advisor at the State Department’s 

Office of the Legal Advisor. 

Senators, as you know, the CRPD creates a Committee on the 

Rights of Persons with Disabilities that its purpose is to consider 

reports made by the states’ parties and then to make suggestions, 

recommendations, and comments on those reports and with regard 

to the Convention. 

Now, in performing this task, the committee inevitably has to 

interpret the obligations that are created by the Convention. These 

interpretations that are issued by the committee are not legally 

binding, and the committee does not have any authority to compel 

any changes to U.S. law. There is no legal authority for that. 

Neither, though, are these interpretations without effect. The 

obligations created by the Convention are vague; and thus, no state 

party is able to form any opinion about whether it or any other 

party is complying with the Convention, unless it forms some more 

specific notion of what constitutes compliance. It is, therefore, possible that other states’ parties would look to the committee, and— 

possible, and even likely—that other states’ parties would look to 

the committee and its interpretations of the Convention, informing 

their view of what counts as compliance with the Convention and 

the Convention’s obligations. 

This role for expert committees in human rights organizations 

has sometimes led them to claim that their interpretations of the 

Conventions are charged with implementing, while not legally 

binding, are entitled to considerable authoritative weight. This is 

not a term that is defined anywhere. Nevertheless, it is an authority that they have asserted. When they have asserted it, the State 

Department has always been clear to push back and point out that 

these interpretations issued by these committees are not legally 

binding. Nevertheless, this claim of authority remains out there 

and somewhat unclarified. 

At the same time, declining to ratify the Convention does not 

ensure that the committee’s interpretations will not be asserted 

against the United States. The committee’s interpretations of the 

Convention are a possible basis for the formation of customary 

international law. Customary international laws form from a consistent and general state practice, but it does not require the universal assent of those governments that can be bound. Therefore, 

the committee’s interpretations could be a basis of customary international law. 
79

And moreover, it is the practice of expert committees under these 

human rights bodies to cite to each other’s work and each other’s 

interpretations of human rights laws when they are dealing with 

overlapping obligations. Therefore, it is possible that the United 

States would find work interpretations from the Committee on Disabilities cited against it in other treaty ratification human rights 

treaties bodies. 

Therefore, if the United States does ratify the Convention, a 

strong package of RUDs could make clear that the United States 

does not view the work of the committee as the basis for forming 

customary international law, nor does the United States understand that the committee’s interpretations are accorded any special 

weight by the states’ parties. This would go, potentially, beyond the 

understanding that was incorporated in the Resolution for Ratification last year to make clear exactly what the United States views 

are with respect to the interpretations that are created by the committee.

With that, I will stop, and I look forward to your questions. 

[The prepared statement of Mr. Meyer follows:] 

PREPARED STATEMENT OF PROFESSOR TIMOTHY MEYER

Chairman Menendez, Ranking Member Corker and members of the committee. 

Thank you for the invitation to testify today. My name is Timothy Meyer, and I am 

an Assistant Professor of Law at the University of Georgia School of Law in Athens, 

GA. I am pleased to offer my thoughts regarding the Convention on the Rights of 

Persons with Disabilities (‘‘CRPD’’ or ‘‘the Convention’’). 

Like most human rights treaties, the CRPD establishes an expert committee, the 

Committee on the Rights of Persons with Disabilities (‘‘the Committee’’ or ‘‘the Committee on Disabilities’’). I would like to focus my testimony today on the Committee 

on Disabilities’ role in the implementation of the Convention. The Committee’s principal task is to consider reports made by parties to the CRPD about their measures 

taken to comply with the Convention. The role of expert committees in general and 

the legal effect of their suggestions, recommendations, and comments is a subject 

of some debate among the various committees, member states, and academics. On 

the one hand, a number of commentators have expressed concerns that ratifying the 

Convention will result in unelected officials from multilateral organizations rewriting American laws. In response, others have pointed out that the Committee on Disabilities does not have the legal authority to compel any action by the United 

States. In my view, neither of these positions fully captures the way in which the 

suggestions, recommendations, and comments of human rights committees have 

effect.

I wish to make two points today regarding the role of these committees in general 

and the Committee in particular. 

First, while reports of these expert committees are not legally binding, they do 

have legal significance because they influence how parties to the Convention perceive what constitutes compliance with treaty obligations and customary international law. 

Second, declining to ratify the treaty does not necessarily mean that interpretations of human rights norms developed by the Committee will not be asserted 

against the United States. I therefore offer some possible understandings to the 

CRPD that would allow the United States to protect and advance its interests while 

ratifying the CRPD. These understandings would clarify that the Committee’s 

interpretations of the Convention are not due any deference from parties to the 

Convention.

With that introduction, I will now elaborate on these points. 

THE ‘‘SOFT’’ LEGAL NATURE OF EXPERT COMMITTEES

The CRPD requires that each State Party ‘‘submit to the Committee . . . a comprehensive report on measures taken to give effect to its obligations’’ under the Convention. CRPD art. 35(1). The CRPD then empowers the Committee on Disabilities 

to ‘‘make such suggestions and general recommendations on the report as it may 

consider appropriate.’’ CRPD art. 36(1). The Convention requires States Parties to 
80

make its reports ‘‘widely available to the public in their own countries and facilitate 

access to the suggestions and general recommendations’’ of the Committee. CRPD 

art. 36(4). The Committee on Disabilities is also authorized to ‘‘make suggestions 

and general recommendations based on the examinations of reports and information 

received from the States Parties’’ to the U.N. General Assembly and Economic and 

Social Council. CRPD art. 39. Moreover, it is common practice for expert committees 

to issue ‘‘general comments’’ which elaborate a committee’s interpretation of the 

treaty it is charged with implementing. The Committee on Disabilities has continued this practice.1

As a matter of international law, the Committee’s suggestions, recommendations, 

and comments are not legally binding. Nor does the Committee have the power 

itself to make customary international law. Provided that ratification of the Convention is accompanied by a declaration that the Convention is not self-executing and 

a package of reservations, understandings, and declarations (RUDs) clarifying that 

the Convention does not impose any obligations on the United States beyond those 

offered under existing state and federal laws, such as the Americans with Disabilities Act, the Committee’s work cannot be the basis for legally compelling any 

changes to federal law. Finally, the United States could ratify the Convention with 

a reservation to ensure that the United States undertakes no obligations that cannot be satisfied through federal legislation passed under Congress’ constitutionally 

enumerated powers. Where disabilities are concerned, congressional power to make 

federal laws flows primarily from Congress’ authority to regulate interstate and foreign commerce. U.S. Constitution, Art. I, Section 8. The United States could ratify 

the Convention with a reservation to those obligations in the Convention that cannot be satisfied under Congress’ authority to regulate interstate or foreign commerce 

or under another of Congress’ enumerated powers.2

Although the Committee’s suggestions, recommendations, and comments are not 

legally binding, they nevertheless can have indirect legal effect, what might be 

termed a ‘‘soft’’ legal effect.3 As with many laws, both international and domestic, 

the substantive commitments contained in the Convention are vague and imprecise. 

Legal scholars often make a distinction between ‘‘rules’’ and ‘‘standards’’ in terms 

of how precise a law is.4 As an ideal type, a ‘‘rule’’ is a law that that can be applied 

without any interpretation. An example is the speed limit. If the speed limit is 65 

miles per hour, one only needs to answer the factual question of how fast the driver 

was going to know whether he was speeding. By contrast, if the rule is that drivers 

must drive at a ‘‘reasonable’’ speed, one must both interpret what ‘‘reasonableness’’ 

means and then determine factually whether the driver’s conduct conforms to the 

law. The commitments made by parties to the Convention are more like standards 

than rules. By this I mean that no one—other parties, the Committee, outside 

observers, etc.—can determine whether a state is complying with its obligations 

under the Convention without first forming some more specific notion of what the 

commitments undertaken in the Convention require. 

The implementation of the Convention thus necessarily requires some interpretation of the Convention’s terms. As the United States has consistently maintained, 

the authority to issue legally binding interpretations of a treaty remains with the 

parties to the treaty unless the treaty specifically says otherwise.5 But in considering the reports made by parties to the Convention, the Committee unavoidably 

has to give some meaning to the Convention’s vague obligations. It cannot otherwise 

assess the relationship between specific practices described in parties’ reports and 

the vague language of the Convention. Moreover, states parties to the Convention 

may look to the Committee for guidance as to how they might interpret the obligations created by the Convention. Thus, even though the Committee’s suggestions, 

recommendations, and comments are not legally binding, they can in some circumstances influence how other actors—parties to the Convention, including domestic 

courts and administrative agencies, as well as nongovernmental organizations—interpret and apply the Convention. In effect, an expert committee’s recommendations 

can sometimes become a focal point around which the expectations of a treaty’s parties coalesce when determining what constitutes compliance with vague treaty 

terms.6

This phenomenon is perhaps easiest to observe among international tribunals. 

Like the Committee on Disabilities’ suggestions, recommendations and comments, 

the decisions of most international tribunals are nonbinding with respect to states 

not party to the dispute.7 There is thus little formal role for precedent in international law. In general neither international courts nor expert committees can lay 

down interpretations of treaties that bind the parties to the treaty prospectively. 

Nevertheless, tribunals frequently cite to and follow their own precedents, as well 

as the precedents of other tribunals.8 The World Trade Organization’s Appellate 

Body has justified this practice as follows: 
81

[It is well settled that Appellate Body reports are not binding, except with 

respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal 

interpretations and the ration decidendi contained in previous Appellate 

Body reports that have been adopted by the DSB . . . Dispute settlement 

practice demonstrates that WTO Members attach significance to reasoning 

provided in previous panel and Appellate Body reports [emphasis added].9

The mechanism through which international tribunals and expert committees 

have legal effect is thus not through any binding force of the decisions themselves, 

but rather because—and only to the extent that—parties to the Convention follow 

the interpretations and reasoning adopted by tribunals. Similarly, the Committee’s 

interpretations of the Convention could be given effect when other legal actors 

attach significance to the reasoning or opinions provided by the Committee. This 

indirect effect is observable in the practice of U.S. Government agencies. To give but 

one illustrative example, a 2005 memo from the Justice Department’s Office of 

Legal Counsel considered a report of the Committee Against Torture (a committee 

created by the Convention Against Torture and other Cruel, Inhumane, or Degrading Treatment (CAT) with a mandate similar to the Committee on Disabilities) 

alongside opinions of the Ninth Circuit of Appeals and the European Court of 

Human Rights in interpreting federal legislation implementing the CAT by prohibiting torture.10

An analogy to domestic lawmaking may help clarify the nature of the soft legal 

effect that these committees have. Domestic legal institutions frequently act in ways 

that do not have binding legal effect on other institutions, but nevertheless have 

indirect legal effects. I will highlight two particular kinds of domestic acts that are 

regularly given indirect legal effect but are not themselves law. First, congressional 

resolutions are not binding law. Yet scholars have argued that, despite the nonbinding nature of resolutions, they are given soft legal effect when courts, administrative agencies, or the President incorporate congressional views expressed in resolutions into binding policies or rulings.11 Similarly, the legislative history of statutes 

is not itself binding law. Nevertheless, courts routinely give legislative history legal 

effect when they use it to interpret statutes.12 Second, domestic courts routinely cite 

the decisions of other courts as persuasive authority even when they are not bound 

to follow those courts’ rulings. Federal circuit courts, for example, regularly look to 

each other’s reasoning and analysis in interpreting federal law. They are free to, 

and frequently do, disagree with each other. But later courts also frequently adopt 

the reasoning and follow the decisions of earlier courts, even in the absence of a 

legal rule compelling that result. In the same way, nonbinding actions by international institutions such as the Committee on Disabilities can be given indirect 

legal effect. 

Just as the Committee’s nonbinding interpretations of the Convention may in 

some circumstances influence how parties view their obligations under the Convention, so too can parties’ reactions to the Committee’s interpretation shape the development of customary international law. It bears repeating that this does not mean 

that the Committee has the authority to make customary international law. It does 

not. But customary international law ‘‘results from a general and consistent practice 

of states followed by them from a sense of legal obligation.’’ 13 States’ interactions 

with human rights committees have at least the theoretical possibility of creating 

customary international law should states begin to act in accordance with a committee’s interpretations of international law. Notably, customary international law does 

not require that all states participate in the practice in order for an obligation to 

arise.14 Thus, a country not party to a treaty or interacting with the Committee 

could nevertheless end up bound by the resulting customary obligation. A government can protect itself from being so bound—under a doctrine known as the ‘‘persistent objector’’ doctrine—by monitoring the practices of other governments and 

objecting to being bound by a customary rule during the time the rule is forming.15

Thus, to simply state that the Committee has no authority to make binding determinations or to create customary international law does not do justice to the role 

of the Committee. The Committee unequivocally does not have the authority on its 

own to create legal obligations for states or to compel any action by parties to the 

Convention. The Committee cannot direct the United States to take any particular 

action and cannot rewrite American laws. But the Committee will play a role in 

influencing how the vague obligations in the Convention are interpreted and understood by States Parties and other actors. International law is, in a sense, a sort of 

common law. It develops through an accretion of precedents and through negotiations, both implicit and explicit, about the legal significance that should be accorded 

to the nonbinding acts of institutions like the Committee. The question is thus how 
82

to best promote U.S. interests in light of the Convention and the role it affords the 

Committee.

POSSIBLE UNDERSTANDINGS TO THE CRPD

Significantly, not ratifying the CRPD would not necessarily eliminate the Committee’s role in influencing how other states perceive the United States human 

rights obligations for two reasons. First, as discussed above, the Committee’s interpretations and its dialogues with states are precedential acts that can contribute to 

the creation of customary international law. In its examinations of parties’ reports, 

expert committees sometimes opine that particular treaty obligations constitute customary international law.16 There is no denying that expert committees at times 

issue recommendations that go beyond what the parties contemplated when entering into a treaty.17 Because the formation of a rule of customary international law 

does not require affirmative consent from all nations, failing to object to these 

expansive claims can lead to claims that a country is bound by rules it played no 

role in forming. The U.S. Government officials charged with appearing before 

human rights bodies and monitoring the activities of those bodies have ever been 

vigilant in protecting American interests against overreaching interpretations of 

what international law requires.18 Having the opportunity to nominate an American 

to serve on the Committee and to appear before the Committee is an effective way 

to ensure that the Committee does not become a vehicle for creating customary 

international legal obligations that are contrary to U.S. interests. 

Second, expert committees frequently cite to each other and to other human rights 

treaties in interpreting obligations in human rights agreements that overlap.19 The

CRPD itself expressly authorizes this conduct when it provides that: ‘‘The Committee shall, as it discharges its mandate, shall consult, as appropriate, other relevant bodies instituted by international human rights treaties, with a view to ensuring the consistency of their respective reporting guidelines, suggestions and general 

recommendations, and avoiding duplication and overlap in the performance of their 

functions.’’ CRPD art. 38(2). 

Not ratifying the Convention thus does not ensure that the United States would 

not face arguments that its conduct is inconsistent with human rights obligations 

as interpreted by the Committee on Disabilities. The CRPD includes a number of 

obligations that overlap with rights contained in the International Covenant on 

Civil and Political Rights (‘‘ICCPR’’), to which the United States is party. Conceivably, the United States could find arguments developed by the Committee on Disabilities in its interactions with parties to the CRPD also advanced under the 

ICCPR. Of course, interpretations developed by the Committee on Disabilities and 

advanced as consistent with obligations under the ICCPR would not be binding on 

the United States, just as interpretations developed by the Human Rights Committee under the ICCPR and the Committee on Disabilities under the CRPD are 

nonbinding. But by not participating in the development of these interpretations 

before the CRPD, the United States may lose some influence over how other nations 

understand the United States commitments under those treaties it has ratified. 

In light of these considerations, I have two recommendations on how the United 

States might protect and advance its interests while ratifying the CRPD. 

First, American interests at home can be protected through a declaration that the 

CRPD is not self-executing, as well as a package of reservations, understandings, 

and declarations (RUDs) that clarify that the United States is not undertaking any 

commitments that exceed the extensive rights available under existing federal and 

state laws. These RUDs signal to the Committee and other States Parties to the 

Convention the limits on the commitments the United States is making by ratifying 

the Convention. They also ensure that the power to change federal law remains 

with Congress. These RUDs are important. As the administration has made clear, 

the United States tends to follow a practice of ‘‘compliance before ratification.’’ 20

RUDs thus give the United States the ability to ratify the Convention knowing we 

are already in compliance with the commitments that we are making, while increasing our ability to influence how the Convention’s obligations are interpreted by parties that ratify before complying. 

Second, the ability of expert committees to influence the views of parties as to 

how to interpret their binding legal obligations (or about the existence of a rule of 

customary international law) has led expert committees to claim that they have the 

ability to make ‘‘authoritative’’ interpretations of the treaties they are charged with 

implementing, even while conceding that their interpretations are not legally binding.21 To the extent that this claim refers to the fact that the parties to a treaty 

may attach significance to the views of a committee, it does little more than make 
83

a factual claim about how a committee is viewed by the governments that created 

it.

Committees might also be understood, however, to be making a claim that their 

rulings have a formal legal status somewhere between ‘‘binding’’ and ‘‘nonbinding.’’ 

That is, expert committees might be understood to be arguing that their interpretations of a treaty are entitled to greater weight when considered by a treaty’s parties 

than are the views of, say, a law professor.22

The United States could use ratification of the CRPD to clarify once again that 

the parties to the Convention are under no obligation to accord any weight to expert 

committee’s interpretations. Last year when this Committee reported the CRPD to 

the full Senate, it included a proposed understanding stating: 

The United States of America understands that the Committee on the 

Rights of Persons with Disabilities, established under Article 34 of the Convention, is authorized under Article 36 to ‘‘consider’’ State Party Reports 

and to ‘‘make such suggestions and general recommendations on the report 

as it may consider appropriate.’’ Under Article 37, the Committee ‘‘shall 

give due consideration to ways and means of enhancing national capacities 

for the implementation of the present Convention.’’ The United States of 

America understands that the Committee on the Rights of Persons with 

Disabilities has no authority to compel actions by states parties, and the 

United States of America does not consider conclusions, recommendations, 

or general comments issued by the Committee as constituting customary 

international law or to be legally binding on the United States in any 

manner.23

This understanding could be supplemented in two ways to make clear that the 

United States does not recognize the authority of the Committee to interpret the 

Convention. First, the understanding could include a sentence stating that: ‘‘The 

United States further understands that the Committee’s interpretations of the Convention are not entitled to any weight apart from that given to them by States Parties to the Convention.’’ 

Such an understanding goes beyond the 2012 understanding by clarifying that the 

Committee’s interpretations are not due any deference by parties to the Convention. 

Such an understanding is consistent with the text of the Convention, which imposes 

no obligations on parties to adopt or agree with the Committee’s views on what the 

Convention requires. 

Second, the understanding could include a sentence making clear that the United 

States preserves its right to consent to any interpretations of the Convention, from 

whatever source, before they have any effect whatsoever in the United States. For 

example, a sentence might be added to the understanding stating that: ‘‘Moreover, 

the United States understands that no interpretation of the obligations of the 

Convention issued by the Committee or any other international institution can have 

binding legal effect with regard to the United States unless the United States 

consents to such an interpretation in accordance with its constitutionally required 

procedures.’’

This understanding makes clear that by joining the Convention the United States 

has not delegated any authority to any international institution to create legal obligations for the United States. It therefore preserves the primacy of the United 

States domestic lawmaking process in determining what international obligations 

bind the United States. 

CONCLUSION

In sum, Mr. Chairman, thank you for the opportunity to present these views on 

the CRPD. International institutions such as the Committee on Disabilities have 

proliferated in recent decades and an accurate understanding of what they do and 

do not do is critical to engaging with these institutions in a way that protects and 

advances the interests of the United States. A simple binary conception of the legal 

effect—either binding or nonbinding—of the Committee’s suggestions, reports, and 

recommendations, does not do justice to the ways in which the Committee can have 

indirect, ‘‘soft’’ legal effects. A more nuanced understanding of how these institutions works offers the possibility of a more effective strategy for ensuring that U.S. 

involvement with these institutions promotes U.S. interests. 

————————

End Notes 

1See, e.g., Draft General comment on Article 12 of the CRPD—Equal Recognition before the 

Law; Draft General Comment on Article 9 of the CRPD—Accessibility. 
84

2For example, in 2005 the United States ratified the United Nations Convention on 

Transnational Organized Crime with a reservation providing that: ‘‘The United States of America reserves the right to assume obligations under the Convention in a manner consistent with 

its fundamental principles of federalism, pursuant to which both federal and state criminal laws 

must be considered in relation to the conduct addressed in the Convention. U.S. federal criminal 

law, which regulates conduct based on its effect on interstate or foreign commerce, or another 

federal interest, serves as the principal legal regime within the United States for combating organized crime, and is broadly effective for this purpose. Federal criminal law does not apply in 

the rare case where such criminal conduct does not so involve interstate or foreign commerce, 

or another federal interest. There are a small number of conceivable situations involving such 

rare offenses of a purely local character where U.S. federal and state criminal law may not be 

entirely adequate to satisfy an obligation under the Convention. The United States of America 

therefore reserves to the obligations set forth in the Convention to the extent they address conduct which would fall within this narrow category of highly localized activity. This reservation 

does not affect in any respect the ability of the United States to provide international cooperation to other Parties as contemplated in the Convention.’’ 3See, e.g., Andrew T. Guzman & Timothy L. Meyer, ‘‘International Soft Law,’’ 2 J. Legal Analysis 171 (2010); Mark A. Pollack & Gregory C. Shaffer, ‘‘Hard v. Soft Law: Alternatives, Complements, and Antagonists in International Governance,’’ 94 Minn. L. Rev. 706 (2010); Andrew 

T. Guzman & Timothy L. Meyer, ‘‘International Common Law: The Soft Law of International 

Tribunals,’’ 9 Chi. J. Int’l L. 515 (2009); Kenneth W. Abbott & Duncan Snidal, ‘‘Hard and Soft 

Law in International Governance,’’ 54 Int’l Org. ( 2000). 4See, e.g., Louis Kaplow, ‘‘Rules Versus Standards: An Economic Analysis,’’ 42 Duke L.J. 557 

(1992). 5See, e.g., Human Rights Committee, Summary of the 2380th Meeting, U.N. Doc. CCPR/C/ 

SR.2380 § 8 (July 27, 2006) (in which the United States delegation noted in a colloquy with the 

Human Rights Committee that ‘‘in general, only the parties to a treaty were empowered to give 

a binding interpretation of its provisions unless the treaty provided otherwise’’). 6See Andrew T. Guzman & Timothy L. Meyer, ‘‘International Soft Law,’’ 2 J. Legal Analysis 

171, 203 (2010). 7See, e.g., Statute of the International Court of Justice art. 59. (‘‘The decision of the Court 

has no binding force except between the parties and in respect of that particular case.’’) 8See Harlan Grant Cohen, ‘‘The Strategy of International Precedent,’’ in Interpretation in 

International Law (Andrea Bianchi, et al. eds forthcoming 2014). 9 ‘‘Stainless Steel (Mexico-United States)’’ p. 158–160, WT/DS344/AB/R, 30 April 2008. 

10Memo for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from 

Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, 

Department of Justice (May 10, 2005), available at: http://www2.gwu.edu/∼nsarchiv/torturelarchive/docs/Bradbury%20memo.pdf. 11 Jacob E. Gersen & Eric A. Posner, ‘‘Soft Law: Lessons From Congressional Practice,’’ 61 

Stan. L. Rev. 573 (2008). 12 Andrew T. Guzman & Timothy Meyer, ‘‘International Soft Law,’’ 2 J. Leg. Analysis 171 

(2010). 13 Restatement (Third) of Foreign Relations Law § 102(2) (1987). 13 Restatement (Third) of Foreign Relations Law § 102, comment b (1987) (‘‘A practice can be 

general even if it is not universally followed’’). 15 Restatement (Third) of Foreign Relations Law § 102, comment d (1987). (‘‘[I]n principle a 

state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures.’’) 16See, e.g., Human Rights Committee, General Comment 24(52) ¶ 8, General comment on 

issues relating to reservations made upon ratification or accession to the Covenant or the 

Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. 

Doc. CCPR/C/21/Rev.1/Add.6 (1994) (asserting that ‘‘a State may not reserve the right to engage 

in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to 

deny freedom of thought, conscience and religion, to presume a person guilty unless he proves 

his innocence, to execute pregnant women or children, to permit the advocacy of national, racial 

or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to 

minorities the right to enjoy their own culture, profess their own religion, or use their own language’’ because provisions in the ICCPR protecting such rights ‘‘represent customary international law.’’). 17See, e.g., Report of the Committee on the Elimination of Discrimination Against Women, 

U.N. Doc. A/55/38 ¶ 361 (2000) (expressing concern about ‘‘the reintroduction of such symbols 

as Mothers’ Day . . .’’). 18See, e.g., Response of the United States to Recommendations of the U.N. Human Rights 

Council, November 9, 2010, available at: http://www.state.gov/s/l/releases/remarks/150677.htm. 

In his remarks, State Department Legal Adviser Harold Hongju Koh described some of the 

Human Rights Council’s recommendations as ‘‘plainly intended as political provocations [that] 

cannot be taken seriously.’’ See also Observations of the United States of America on General 

Comment 24, in Human Rights as General Norms and A State’s Right To Opt Out: Reservations 

and Objections To Human Rights Conventions (J.P. Gardner, ed. 1997) (noting that paragraph 

8 of the Human Rights Committee’s General Comment 24 ‘‘asserts in a wholly conclusory fashion that a number of propositions are customary international law which, to speak plainly, are 

not.’’). 19See, e.g., Draft General Comment on Article 9 of the CRPD ¶ 5 (citing General Comments 

of the Committees on Economic, Social, and Cultural Rights and the Rights of the Child). 
85

20Opening Remarks of Legal Adviser Harold Hongju Koh to the United Nations Committee 

on the Rights of Child Concerning the Optional Protocols to the Convention on the Rights of 

the Child (January 16, 2013). 21See, e.g., Human Rights Committee, Summary of the 2380th Meeting, U.N. Doc. CCPR/C/ 

SR.2380 ¶ 57 (July 27, 2006) (in which the Human Rights Committee asserts in a colloquy with 

the United States delegation that ‘‘its findings, while not legally binding, had considerable 

authoritative status.’’). 22See Observations of the United States of America on General Comment 24, in Human 

Rights as General Norms and A State’s Right To Opt Out: Reservations and Objections To 

Human Rights Conventions (J.P. Gardner, ed. 1997). In its observations, the United States 

responded to General Comment 24 of the Human Rights Committee (‘‘HRC’’), which arguably 

asserted that it was contrary to the object and purpose of the Covenant on Civil and Political 

Rights to reject the interpretations of the HRC. The United States clarified that ‘‘it is unnecessary for a state to reserve as to the Committee’s power or interpretative competence since the 

Committee lacks the authority to render binding interpretations or judgments.’’ Id. 23 Report of the Committee on Foreign Relations on the Convention on the Rights of Persons 

with Disabilities § 7 (July 31, 2012). 

The CHAIRMAN. Well, that is the first time I have seen a law professor not take his full 5 minutes, so—— 

[Laughter.]

The CHAIRMAN [continuing]. We compliment you—— 

[Laughter.]

The CHAIRMAN [continuing]. For your preciseness. 

Let us start a round of questions. 

Thank you, to all of the witnesses, for their testimony. 

And, very briefly, a claim of authority is different than authority 

itself, is it not? 

Mr. MEYER. That is correct; yes. 

The CHAIRMAN. And an understanding or even a reservation in 

understanding, as you describe, would clearly create a nullity as to 

any claim, at least in the context of American law, would it not? 

Mr. MEYER. For purposes of domestic law, a very strong package 

of RUDs should be sufficient to ensure that U.S. courts—for example, a non-self-execution declaration—would be sufficient to ensure 

that U.S. courts do not recognize, for example, private causes of 

action based upon the Convention. But, simply nullifying the claim 

of authority would not necessarily affect the ability of other states’ 

parties to the Convention to adopt interpretations of the Convention coming out of the committee as coextensive with their interpretations of what constitutes—— 

The CHAIRMAN. Other state parties, meaning other countries. 

Mr. MEYER. Yes, other—yes, sorry, other countries. 

The CHAIRMAN. Thank you. 

Secretary Ridge, I understand that you are a strong supporter of 

homeschooling, and I am sure you are aware of the arguments that 

were made last year and some that Mr. Farris has made here 

today. Can you speak to that issue? 

Mr. RIDGE. Well, I certainly am. During my time as Governor, 

we saw a rather substantial increase in the number of children 

who were being homeschooled, for a variety of different reasons. I 

think my colleague, Governor Thornburgh, Attorney General 

Thornburgh, addressed this issue in his remarks. And frankly, 

there are some families with children with disabilities, for many 

reasons, choose to provide schooling at home. So, I do have a couple 

of thoughts on that. 

One, relying on the quality legal interpretation that I have had 

an opportunity to review, and also recognizing the reservations and 

the understandings and the declarations that the committee 

worked its will to graft onto the treaty that was considered last 
86

year, this matter is addressed. This treaty does not affect the ability of a parent to act in the best interest of the child. And it is— 

again, according to people whose opinions I respect, the fact of the 

fact of the matter is that this treaty cannot be interpreted to bar 

or prohibit any parent from homeschooling their children. For me, 

it is absolutely a nonissue, and I am a strong proponent of homeschooling.

The CHAIRMAN. Thank you. 

Congresswoman Duckworth, let me ask you—you come from a 

family of military veterans, and you developed a close relationship 

with Senator Dole, who spent some time with you during your 

recovery. You have served as Assistant Secretary for Veterans 

Affairs. What do you say to the critics who say this treaty really 

does not help U.S. veterans? And what do you say to Dr. 

Yoshihara’s assertion that AMVETS speaks for veterans and opposes the treaty? 

Ms. DUCKWORTH. Well, Mr. Chairman, I—— 

The CHAIRMAN. If you would put your microphone on. 

Ms. DUCKWORTH. Mr. Chairman, I would like to start by saying 

that my understanding is, AMVETS neither opposes nor supports 

the treaty. They are neutral on it. But, I will tell you that the Iraq 

and Afghanistan Veterans of America, the American Legion, the 

Blinded Veterans of America all support this treaty and recognize 

the fact that our veterans should have the opportunity to travel 

internationally, especially our disabled veterans. They set a wonderful example wherever they go. I have mentioned, our post-9/11 

GI bill recipients who would love to take advantage of foreign study 

programs so that they can spend time in a foreign university. They 

cannot do that. When I have gone to visit Landstuhl, Germany, 

and Vicenza, Italy, our bases there, and visited with our wounded 

warriors, I often could not take them off post to—even on a 4-hour 

pass—to go see the sights downtown, because they simply were not 

accessible.

And so, I think that those who state that this treaty would not 

help our veterans really have to better understand the situation for 

our military men and women and their families. Many of these 

posts are duty stations that are very advantageous toward one’s 

career. And if you cannot bring your family with you because you 

have a child with a disability or a spouse with a disability, you 

have to make that tough choice, ‘‘My career, or do I leave my family behind?’’ And that is not a choice I want any servicemember to 

have to make. 

The CHAIRMAN. Thank you. 

Dr. Yoshihara, let me ask you—there are many in the pro-life 

community who disagree with you that the treaty somehow takes 

a position on the debate concerning abortion. Is that not true? 

Dr. YOSHIHARA. Senator, first, I just want to clarify something. 

I never said that the treaty would not help. I said U.S. ratification. 

I agree with the Congresswoman, that these countries do need 

to——

The CHAIRMAN. Would you answer my question, though? 

Dr. YOSHIHARA. Yes. Yes, Senator. 

It is true, National Right to Life issued a statement, at the time 

of the adoption of this treaty in 2006, saying that this treaty had 
87

nothing to do with abortion. And, in fact, we found that, after that 

time, that the treaty body is, in fact, interpreting that. 

So, the argument is not really with me so much as it is with the 

committee that is—— 

The CHAIRMAN. Well—— 

Dr. YOSHIHARA [continuing]. Misinterpreting the treaty. 

The CHAIRMAN. In fact, dozens of countries that prohibit or restrict access to abortion, including Brazil, Chile, Egypt, Argentina, 

where the Holy Father came from, and El Salvador, have ratified 

the treaty, and some of the most fiercest supporters from within 

the disabilities rights community are pro-life. 

Moreover, the president of the Catholic Family and Human 

Rights Institute, who I understand is your boss, penned an article 

entitled ‘‘U.N. Disabilities Treaty Does Not Create Abortion 

Rights.’’ The article describes in detail how the parties negotiating 

the treaty made clear, and I quote, ‘‘that countries are free to keep 

their laws protecting the unborn in place and urges other pro-life 

activists to stop arguing about the phrase ‘sexual reproductive 

health.’ ’’ 

So, there is obviously, even from those who employ you, a much 

different point of view. 

And I ask unanimous consent to include that article in the 

record.

[EDITOR’S NOTE.—The above mentioned letter and any other articles submitted for the record during the hearing can be found in 

the ‘‘Additional Material Submitted for the Record’’ section of the 

hearing. The ‘‘Ave Maria Law Review’’ article submitted by Susan 

Yoshihara and ‘‘CRPD Committee Appendix’’ submitted by Michael 

Farris are both too voluminous to include in the printed hearing. 

They will be maintained in the permanent record of the committee.]

The CHAIRMAN. Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman. 

I think, actually, numbers of witnesses have additional materials, and I would like to ask unanimous consent that whatever 

materials they have can be entered into the record. 

The CHAIRMAN. Without objection. 

Senator CORKER. Yes, thank you. 

Senator CORKER. So, I would imagine that every Senator here, on 

the whole idea of having a convention for the rights of people with 

disability—they would want to support that. I cannot imagine anybody looks at something that might advance the rights of people 

with disabilities—I think people start with a great deal of optimism. And it is my sense that Mr. Thornburgh and Mr. Ridge and 

Ms. Duckworth want to see those rights advanced throughout the 

world, and want to see the United States playing leadership in that 

area. At the same time, I would assume that the three of you 

would not want a convention to have any effect whatsoever on 

domestic law; meaning, you would not want a treaty that we have 

with other—are all three of you all in agreement with that? 

So, it seems to me that, instead of, you know, maybe taking an 

approach where we try to look at people who have concerns like 

that as enemies, the concern would be to try to figure out a way 

to make sure that you have a treaty that advances the effort that 
88

the three of you are here about and have done such a wonderful 

job with, and, at the same time, to try to make sure that the treaty 

does not have those unintended consequences, like the case—it is 

pretty phenomenal that, today, the Supreme Court is hearing a 

case where this exact thing has occurred. 

So, my question, first, would be, to Mr. Meyer, to ask you this 

question. We have the RUDs issue, which hopefully we will be examining over the next few weeks. Is there a way, in your opinion, 

to write RUDs, on the front end of a treaty, that would absolutely 

ensure that there is no way for this treaty to affect either the federalism issues that we have to deal with or to cause a court to look 

to the treaty to actually affect the individual lives of citizens here 

in the country? Is there a way of us coming together and writing 

RUDs in that way? 

Mr. MEYER. Senator, thank you for that question. So, I think, 

with respect to the federalism issue, a federalism reservation could 

address the federalism problems that you have identified. A federalism reservation could, I think, be drafted to be somewhat 

stronger than the reservation that that was attached to the Resolution for Ratification that came out last year. Conceivably, such a 

reservation would make very clear what the enumerated powers 

that Congress possesses are, and then, would then reserve out of 

any obligations that could not be satisfied through the exercise of 

those powers. 

With respect to the interpretation issue, I think a set of understandings could be drafted that would make very clear that the 

United States does not accord any significance to the interpretations of the Convention afforded by the committee. I think this 

would go a long way toward addressing the concern that the Convention might be used to interpret Federal statutes, including 

potentially preexisting Federal statutes, like the ADA. 

The current understanding, or the understanding that was 

attached to the Resolution for Ratification last year, spoke only to 

the issue of whether or not there was the authority to legally compel changes to U.S. law. The committee clearly does not have the 

authority to legally compel changes to U.S. law. But, one could 

imagine, and my written testimony suggests, some language that 

might be helpful to further make clear that the United States accords no weight to the interpretations of the committee. 

Senator CORKER. So, it is your belief that the RUDs we have in 

place, or the ones that came through the committee last year, could 

more fully be written in such a way, could be enhanced, to make 

sure that these types of issues did not come up. 

Mr. MEYER. Yes, I think it is possible to draft RUDs that are 

stronger and would address these concerns more fulsomely. 

Senator CORKER. So, to the two witnesses that had very specific 

concerns about very specific issues, do you also agree that there is 

a way to address the concerns that you have by writing the RUDs 

in a different way than they are now written? 

Dr. YOSHIHARA. I think one of the problems with the reservations, as has already been stated, is, they can be removed. So, if 

that was our protection and they are removed, then I would 

assume then—— 
89

Senator CORKER. But, they would have to be removed by Congress, right? 

Dr. YOSHIHARA. Right. That is right. I am thinking—— 

Senator CORKER. Well, I mean, I—— 

Dr. YOSHIHARA. That is right. 

Senator CORKER [continuing]. I would like to try to solve this 

problem, but I cannot solve every problem that might come up 20 

years from now. But, the fact is, we, ourselves, would only be passing a law that solved this problem. And my question is, Do you 

think that—— 

Dr. YOSHIHARA. That it would protect us from misinterpretation? 

Well, you know, in the case of Roper v. Simmons, the Supreme 

Court did cite a portion of the civil and political rights covenant 

that we had specifically reserved on. So, there is precedent that the 

reservation may or may not help us in that regard. 

Senator CORKER. And if I could—Mr. Farris, if you would answer 

the question. 

Mr. FARRIS. Senator, I cannot imagine a reservation that would 

be legally acceptable. That is, it is consistent with the object and 

purpose of the treaty, that would satisfy the reservations that 

would be needed to comply with the three positive witnesses. You 

would have to write the reservation to say, ‘‘This treaty shall not 

bind the United States to comply with the standards of the treaty, 

and shall have no domestic legal effect.’’ If you would put that reservation in, that would be fine. I would support the treaty at that 

point in time. Because it is meaningless then. 

And what is being argued is that the treaty has no domestic 

meaning. And treaties, when we accept a treaty, the only nation in 

the world that we are binding is us. We do not bind anybody else. 

Our ratification has no external legal effect anywhere. What is 

being argued is external political effect. And there is no record 

shown that our ratification of any other treaty has had external 

political effect that has been effective in seeking compliance with 

other human rights treaties. So, it is a shell game and empty promises that are being made. 

We need to determine whether or not we are going to comply 

with this treaty, or not. And if we are not going to comply with the 

treaty, we ought not to ratify it, because the number one thing this 

country should do with its treaty obligations is keep them, in good 

faith.

Senator CORKER. Mr. Chairman, if I could, when I was speaking 

to Dr. Yoshihara and I said we cannot solve all the problems that 

are going to happen 20 years, you know, what I meant to say was, 

we cannot keep another Congress from doing something else down 

the road. That was the point I was trying to make. 

And I appreciate the witnesses, and I look forward to further 

conversation.

The CHAIRMAN. As I call on Senator Barbara Boxer, let me just 

make an observation, that if RUDs never have any consequence, 

then what the ranking member did in the Strategic Arms Limitation Treaty has no consequence whatsoever. I do not think he 

believes that. 

Senator Boxer. 
90

Senator BOXER. Thank you, Mr. Chairman. And thank you, 

Ranking Member Corker. 

What an important day this is. And I hope it will be viewed as 

a turning point. I really do. 

You know, we all have our passions on a variety of social issues, 

issues that divide us deeply—really deeply. But, this treaty is 

really only about one thing; it is about improving the lives of a billion people worldwide, people with disabilities, and 50 million of 

them who are living in America. 

Ratifying this treaty is about making sure that, when we—and 

I think this is something Congresswoman Duckworth stated—that 

when we, the United States, encourage a country to improve rights 

and protections, that country cannot say, ‘‘Hey, you failed to ratify 

this disability treaty, so we are not going to listen to you.’’ And, 

believe me, that is what is happening. It could help encourage 

countries like Ghana. 

Listen to what the Human Rights Watch said about Ghana in a 

report. Many disabled people live in unregulated camps. They are 

often chained to trees, concrete floors, for weeks or months on end. 

They are beaten, denied food, forced to endure involuntary treatment. This treaty is about helping to right this terrible wrong. 

And, of course, as far as our veterans are concerned, how could 

we turn away from our veterans? Our veterans are unbelievable. 

I have a Comprehensive Casualty Care Center, thanks to Senators 

Inouye and Stevens, who helped me get that, in San Diego. You 

just cannot keep our veterans down. We see it right here. You cannot. And they want to, yes, travel the world. They do. And we need 

to pass this treaty. 

But, let us talk about what this treaty is not about. It is not 

about any particular health care procedure. It is not about abortion. It is not about vasectomies. It is not about cancer screenings. 

It is not about dental exams or prostate exams. It is about making 

sure that people are treated equally on all fronts, including their 

need to get health care. 

I want to place in the record a wonderful op-ed piece written by 

Dr. Bill Frist. It came out today—if I might—— 

The CHAIRMAN. Without objection. 

Senator BOXER. And I am going to ask Congresswoman Duckworth to comment on this. 

Here is the title, ‘‘Why the U.S. Must Lead on Disabilities 

Treaty.’’ In it, Dr. Frist discusses a part of the treaty that 

addresses protecting the most vulnerable from health-care-related 

discrimination, including reproductive health care. He correctly 

points out that, I quote him, I want to be precise; this is him—‘‘In 

many parts of the world, people with disabilities, regardless of age, 

are believed to be sexually immature or inactive. The assumption 

can make them targets for rape and other sexual crimes while, at 

the same time, gynecological and obstetrical care are withheld and 

considered inappropriate. In other cases, they’re forcibly sterilized 

or they’re forced to have abortions simply because they have a disability,’’

Dr. Frist concludes that the treaty’s sexual and reproductive 

health language is a necessary provision to protect—to protect the 

disabled. He unequivocally states, ‘‘The treaty does not create any 
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new services not previously available or legally sanctioned in an 

adopting country.’’ 

So, Representative Duckworth, do you agree with Dr. Frist, especially with this assessment that the treaty does not create any new 

services not previously available or legally sanctioned in any adopting country? 

Ms. DUCKWORTH. Senator Boxer, yes, I do agree with that statement. And, in the case of abortion, the word is never even mentioned once in this treaty. 

Senator BOXER. Right. 

Ms. DUCKWORTH. What this treaty will do is provide people overseas with disabilities with the rights—the same rights to access to 

health care that the rest of the population in that nation—— 

Senator BOXER. Thank you. 

Ms. DUCKWORTH [continuing]. Has access to. 

Senator BOXER. I wanted to make that case. 

Now, Dr. Farris, you say you are speaking for the disabled, but 

your statements are directly contradicted by organizations that 

work every day, 24/7, to protect disabled kids, like the United 

States International Council on Disabilities, who states, ‘‘This 

treaty protects parental rights and highlights the important role of 

parents in raising children with disabilities.’’ 

And TASH—you know that organization—says, ‘‘Nothing included in this treaty prevents parents from homeschooling. This 

treaty embraces the spirit of Individuals with Disabilities Education Act, Americans with Disabilities Act, and all disability nondiscrimination legislation.’’ 

But, you, Dr. Farris, argue the opposite. You once even said, and 

I quote, ‘‘The definition of ‘disability’ is not defined in the treaty, 

and so my kids—my kid wears glasses. Now they are disabled. Now 

the U.N. can get control of them.’’ Well, the facts say, in my opinion, that is nonsense, if a child wears glasses they are considered 

disabled. So, I wonder what is behind your fight. And I just ask 

this question for the record. Have you ever tried to raise funds by 

telling parents this treaty will limit their ability to decide what is 

best for their children? 

Mr. FARRIS. Senator, our organization is funded by membership 

dues, not by contributions. 

Senator BOXER. So, you have never sent out an e-mail asking for 

funds to fight—— 

Mr. FARRIS. No—— 

Senator BOXER [continuing]. Against this treaty. 

Mr. FARRIS. Home School Legal Defense Association is associated 

also with a group called ParentalRights.org. ParentalRights.org 

has, indeed, sent out fundraising—— 

Senator BOXER. Thank you very much. What—— 

Mr. FARRIS [continuing]. But—— 

Senator BOXER. Yes. 

Mr. FARRIS [continuing]. Senator—— 

Senator BOXER. Yes. 

Mr. FARRIS [continuing]. The substantive answer is, the treaty 

does not ban homeschooling; what the treaty does is shifts the decisionmaking authority from parents to the government. That is 

what the meaning of the best-interest standard is. 
92

Senator BOXER. Well, that is not something that I agree with, 

nor do any of the organizations. 

Mr. FARRIS. Well—— 

Senator BOXER. Thank you very much. 

The CHAIRMAN. Senator Johnson. 

Senator JOHNSON. Thank you, Mr. Chairman. 

Professor Meyer, are you familiar with the case being argued 

before the Supreme Court today, Bond v. The United States?

Mr. MEYER. I am. 

Senator JOHNSON. Can you speak to how that is relevant to our 

discussion here today on this treaty? 

Mr. MEYER. Well, sure. To be very brief, Ms. Bond was convicted 

of violating the Chemical Weapons Implementation Act. 

Senator JOHNSON. It is in Federal court, correct? 

Mr. MEYER. In Federal court, correct. It is the Federal statute 

implementing the Chemical Weapons Convention. What is basically 

at issue is whether or not Congress had the authority to pass the 

Chemical Weapons Implementation Act. Under a case, dating back 

now 90-plus years, called Missouri v. Holland, the Supreme Court 

held that, in at least some circumstances, if the treaty power 

authorizes the Federal Government to make a treaty and the 

treaty is otherwise valid, Congress may have the authority to enact 

a statute that it would not otherwise have under any of its enumerated powers. 

Senator JOHNSON. The authority or the obligation—well, I am 

just going to read out of Article 4 General Obligations of the 

Treaty. It says, ‘‘To this end, Article 4 requires State parties to 

adopt all appropriate measures to implement the rights in the Convention, modify legislation and practices that discriminate against 

persons with disabilities.’’ 

That seems like a rather strong obligation. What am I missing 

here?

Mr. MEYER. Senator, it seems like a strong obligation. They— 

the—it says, ‘‘The State parties undertake to ensure and promote 

the full realization of all human rights and fundamental freedoms.’’ 

Senator JOHNSON. So, to me, I am hearing, from supporters of 

the bill, that this does not obligate the United States to do anything. It sounds to me like it is a very strong obligation. 

Mr. Farris, do you want to comment on that? 

Mr. FARRIS. Yes, Senator. That is exactly the point. The United 

States is making a solemn promise in international law that we 

will comply with the treaty. And, despite whatever federalism reservations or other reservations, those simply have the effect of 

deciding which agency of government has the duty of implementing 

a treaty—the courts or the Congress or the States. But, the duty 

to implement the treaty is never extinguished. We have to implement the treaty, or else we are in violation of international law. 

Now, does that mean that somebody can actually invade this 

country militarily because we do not comply with a treaty? Enforcement of international law is problematic, in a general sense. So, 

can they force us to obey the treaty? No, not realistic; they cannot 

force us to. But, are we going to undertake a treaty, knowing that 

we are going to disobey it? That is not right. We ought to undertake a treaty obligation only if we intend to fully and fairly and 
93

completely obey it, in good faith. And what I am hearing today is, 

we are not going to do that, is what Professor Henkin said, that, 

when the United States pretends to ratify a treaty and actually 

undertakes nothing, it diminishes our standing in the world community.

Senator JOHNSON. Now, Attorney General Thornburgh, I think 

we all kind of recognize that the United States is sort of the gold 

standard on disability rights. 

So, again, what I am trying to grapple with—if we are already 

the gold standard—I mean, I certainly understand why it is in our 

best interests to have other countries obligate themselves to meet 

our gold standard. I am just not quite getting why we should be 

ratifying a treaty that obligates us to do things that are still subject to interpretation. I mean, that is my concern. I think that is 

kind of the core concern of those that may not be supportive of the 

treaty currently. Can you explain that to me? 

Mr. THORNBURGH. I think so. The basic gap, I think, in understanding is what the consequences of the RUDs are. The treaty 

that is adopted includes the reservations, understandings, and declarations that accompany it, so that, when we say we are not going 

to do something that we have specified we do not include within 

the ambit of the treaty, as amended by the RUDs, that does not 

mean that we are flouting the Convention, it means that we are 

implementing it with the RUDs in mind. And that is true, not only 

of what the United States does, but other countries—— 

Senator JOHNSON. If we are the gold standard, what do we have 

to interpret and, you know, implement as a country? What do we 

have to implement? 

Mr. THORNBURGH. Nothing new that we are obliged to do under 

this, because, frankly, it draws so completely and thoroughly on the 

Americans With Disabilities Act. 

Senator JOHNSON. So, again, what is the benefit—why does the 

United States have to do this? I mean, I understand, again, why 

other countries—it is very beneficial—— 

Mr. THORNBURGH. Yes. 

Senator JOHNSON [continuing]. To us and our members of the— 

you know, servicemembers, to have other countries ratify this and 

implement it. I am still not quite getting why we have to. 

Mr. THORNBURGH. The United States is a world leader, Senator, 

in this area, and—— 

Senator JOHNSON. And we passed Americans with Disabilities 

Act——

Mr. THORNBURGH [continuing]. We have to show that leadership. 

In order to preserve that status and maintain its credibility as the 

gold standard manufacturer, we simply have to share that insight 

that we have acquired, and urge the other nations of the world, 

within a structured framework, to follow that, in order to assure 

that those countries and their citizens, who we have heard 

described today in some detail suffer from the lack of this kind of 

statute——

Senator JOHNSON. OK. 

Mr. THORNBURGH [continuing]. Their right to bootstrap themselves into a gold-standard position—— 

Senator JOHNSON. OK. Well, thank you. 
94

Thank you, Mr. Chairman. 

The CHAIRMAN. All right. And I think, Senator, you raise a question that many have raised, and I think it deserves a considered 

answer. Let me take a moment simply to say: While I and many 

others believe this treaty will not impose any new obligation on the 

United States, since we already have the highest standard in the 

world, our advocacy has virtue, because by signing on to the treaty 

and ratifying it, it puts us in the leadership roll to get the world 

to move in the direction so that Tammy Duckworth or Mark Kirk 

or anyone similar will be able to travel anywhere in the world and 

have the greater likelihood that their access—whether that is in a 

job, whether that is in business, whether that is for travel, whether 

it is for advocacy—will be able to be achieved, and that American 

businesses, who already lead the world in terms of accessibility 

standards, that those standards will be the standards that other 

countries will adopt so that, you know, Eric LeGrand, the football 

player from Rutgers who has this big wheelchair—a motorized 

wheelchair—will be able to travel to other places in the world and 

will likely be able to have access. 

And so, that is why ratification of the treaty expands our reach 

and our advocacy to ultimately get the world to raise standards, 

not simply by a reflection of looking at what the United States 

does, but its advocacy. 

I think it is a very good question that has been raised, and I 

think it deserves—— 

Mr. RIDGE. Mr. Chairman—— 

The CHAIRMAN [continuing]. A thoughtful answer. 

Mr. RIDGE. Mr. Chairman, could I offer a few—— 

The CHAIRMAN. Let me—if I can, let me—— 

Mr. RIDGE. All right, very good. 

The CHAIRMAN [continuing]. Turn to Senator Cardin, and then 

we will get you to work it in, in one of your answers. 

Mr. RIDGE. You bet. 

Senator CARDIN. I will try to leave some time for you to respond——

Mr. RIDGE. Fine. 

Senator CARDIN [continuing]. To that. 

Let me further answer Senator Johnson’s point, following up 

with Chairman Menendez. Quoting from General Thornburgh’s 

written statement, which I think is very appropriate here, in that, 

‘‘We should not be so proud as to think that we cannot learn from 

other countries about how to meet the challenges of providing even 

better opportunity for people with disabilities.’’ I mean, this is a 

gathering. Does not mean we change our laws, but we learn how 

to do things better. And that is part of being part of an international community in an effort to help people with disabilities. 

I also wanted to acknowledge my former colleague, Tony Coelho, 

who is here. When I came to the House of Representatives he was 

a great help on this issue and so many other issues. And, Tony, it 

is good to see you. 

I also want to acknowledge Mrs. Rhonda Newhouse, who is in 

the audience, from Silver Spring, MD, attended University of 

Maryland School of Law, my alma mater. Rhonda is also a bilateral 

amputee and wears prosthetic legs. She has traveled to over 40 
95

countries for work and study, and knows the barriers in study, 

work, and travel abroad for individuals with disabilities. It is nice 

to have you here. 

Mr. Chairman, and I guess to General Thornburgh or to Secretary Ridge—and I will give you the chance to respond to this. 

Mr. RIDGE. No problem. 

Senator CARDIN. We all acknowledge that the treaty is based 

upon, basically, the U.S. law, the ADA. We passed that in 1990. I 

remember, in 1991, Congressman Hoyer, who was then chairman 

of the U.S. Helsinki Commission, traveled to Moscow to become 

part of the Moscow Declaration document, which started the international effort to use the U.S. law as the model to protect the 

rights of people with disabilities. So, the United States has been a 

leader on this issue. 

The point that I would raise, the failure to ratify, I think, compromises the U.S. ability to advance these standards globally. I 

mean, it weakens our own credibility to participate in the development, internationally, of the rights of people with disabilities. And, 

as the chairman pointed out and others have pointed out, it also 

compromises American citizens who are in other countries if we 

have not ratified the treaty. 

Secretary Ridge, your comments, or generally. 

Mr. RIDGE. Well, thank you very much, Senator. 

I just wanted to respond to, I thought, a very appropriate question from Senator Johnson, if I might. 

I think, regardless of where you are on the political spectrum, we 

all feel very fortunate and grateful that we live in the United 

States of America. It is a very unique place. And if America was 

considered to be a product—and we do try to sell our product overseas—what is our brand? 

And I think our brand is the Constitution, the rule of law, and 

our value system. And, under that brand and under that value system, there is that notion of ‘‘equal under the eyes of the law.’’ 

Under that brand and value system is the ADA and trying to elevate the rights of Americans with disabilities. And when we have 

an opportunity to advance America, the product, not through the 

military and not through diplomacy, but to be the convener around 

an issue that is humanitarian in nature and that is elevating the 

rights of people, globally, with disabilities, I think we enhance the 

brand, and we enhance the product by enhancing ourselves. 

So, we say to the rest of the world—you know, let us think about 

it from their point of view. We are asking the rest of the world to 

adopt American standard. We have found, from time to time, that 

is pretty difficult to do. But, with the ratification of 100-and-plus 

countries, we see that, at least on an issue, regardless of where 

they are, they like the brand, they like the value system, they want 

to embrace the notion of elevating the rights of people with disabilities.

The gentleman behind me is—as I have mentioned before, is 

from the McCain Institute for International Leadership. He is a remarkable young man. He was disabled in 2003. Giorgi Akhmeteli. 

And he established an organization in the country of Georgia. And 

he is working on ratification over there. And he will be the first 

one to tell you, ‘‘You know what the country of Georgia is going to 
96

look to? They are going to see whether or not—among other things, 

whether America ratifies the treaty.’’ 

So, I suggest that, regardless of where we are on the political 

aisle, all of us have an interest in promoting America; and, by 

doing so and promoting the brand and our value system, I think 

it has as much a lasting impact as anything else we can do diplomatically, and there’s no better place to convene that discussion 

and lead that discussion globally than the United Nations. 

I think it is a very appropriate question, Senator Johnson, but 

I hope you embrace the notion that there is great value, globally, 

internationally. We do not sacrifice sovereignty, we do not change 

any American lives to advance our interest, and we advanced our 

brand, and we advance our value system. 

And I thank you, Senator, for giving me an opportunity to share 

those thoughts with you. 

The CHAIRMAN. Thank you. 

Senator Flake. 

Senator FLAKE. Thank you. 

If I could follow up with regard to the case the Supreme Court 

is currently hearing, the Bond v. U.S. Mr. Thornburgh, were you 

surprised when you heard that the Federal Government was actually suing in this—or, using a treaty or a convention in order to 

bring charges against an individual, a chemical weapons treaty? 

Were you surprised that this was used in this fashion? 

Mr. THORNBURGH. Yes. 

Senator FLAKE. OK. If you are surprised by that, what can reassure us that you will not be surprised that this treaty is used for 

a similar purpose? 

Mr. THORNBURGH. Because I think by that time the Supreme 

Court will have thrown out that decision, and the basis for it. 

Senator FLAKE. Well—but, the fact that it is even brought and 

it has survived one challenge—— 

Mr. THORNBURGH. Well—— 

Senator FLAKE [continuing]. Gone up one level, as well. 

Mr. THORNBURGH. Let me mention that, sad to say, the Department of Justice does not always act wisely and that there are occasions when mistakes are made in the pursuing of cases and 

controversies that really do not rise to the level where they are 

appropriate.

There are examples, however, on the other side, as well, and that 

is where the Department has rightfully stretched the law to cover 

situations that clearly were not contemplated. Of course, I think of 

the Rodney King case, for example, where he was ultimately convicted under the Federal civil rights laws, when—what—or, the police officers were convicted, when what—people knew what was 

going on. Here was a police brutality case, it was not a civil rights 

case. But, our laws maintained a degree of flexibility that we can 

use in particular situations, where the occasion arises. 

But, I do not anticipate that happening on a day-to-day basis 

under a treaty like the U.N. treaty. I mean, clearly we have to put 

some semblance of confidence in the judgment of our lawmakers 

and those who execute those laws. They are going to make 

mistakes. And I think the mistake in the chemical warfare case is 

a clear example. 
97

Senator FLAKE. Governor Ridge, were you surprised to hear the 

Bond case?

Mr. RIDGE. It was brought to my attention a few hours, and I, 

frankly, do not know enough to comment. I would say, however, 

that, based on the experience of an individual I respect enormously, 

and he is seated to my right, I would align myself with his 

response. I think we all know—I mean, we all know, from recent 

experience, that—and we have all questioned the judgment of the 

Department of Justice on several more recent occasions. And I do 

not think there could ever be any guarantee that there would not 

potentially be litigation. We live in a litigious society. Somebody 

out there may take it to court. That does not necessarily mean you 

are going to see the conclusion—— 

Senator FLAKE. But, this is the Federal Government—— 

Mr. RIDGE. Yes. 

Senator FLAKE [continuing]. Suing and using this. And, I mean, 

I——

Mr. RIDGE. Well, but, I mean—but—— 

Senator FLAKE [continuing]. Think that we should expect a little 

better judgment. 

Mr. RIDGE. Well, we should, but, you know, we have a tough 

time legislating a lot of other things, let alone judgment. So, we 

will never be able to do that. [Laughter.] 

But, I think, if you make the perfect the enemy of the good, and 

you conclude that somehow some litigation will undermine this— 

I just have not drawn that conclusion from what I have read, but 

I cannot draw any analogy or comparison between the present case 

before the Supreme Court and this treaty. 

Senator FLAKE. Well, let me just tell you, it surprised the heck 

out of me that the Federal Government was suing—— 

Mr. RIDGE. Well, it surprised me, as well. 

Senator FLAKE [continuing]. And using this. It would also surprise me if it works its way through the Supreme Court and they 

agree with the Department of Justice here. 

Having said that, I think, when assurances are being made in 

this hearing and elsewhere by those that this would never be used 

as a basis to hold anybody in the United States to account for this 

treaty, then that rings pretty hollow today, when this case is being 

heard by the Supreme Court. I would think that it would behoove 

us at least to see, just as—Mr. Thornburgh, you say you are surprised that the case was brought. I think we would all be surprised 

if the Supreme Court ruled this way, as well, but it would behoove 

us, I think, to see how they rule before we go ahead with this. That 

is just the way I feel, here. 

And I have tended to discount some of the claims about this 

applying to U.S. law. I have had my own questions about whether 

it is worth it, simply because we are saying, on one hand, it matters a lot, and then, on the other hand, we are saying it really does 

not matter. And what is the use of a treaty if it is treated like that? 

But, here I think we are all surprised at the action of the Department of Justice here, and I think we ought to see how the Supreme 

Court rules before moving ahead. 

Thank you, Mr. Chairman. 
98

The CHAIRMAN. Just an observation. I understand the Senator’s 

concern, and I appreciate it. The Justice Department has prosecuted cases on Federal statutes, not implementings of treaties, 

that went far afield of what the Federal Government intended. And 

it has nothing to do with a treaty. On the Honor Services Act, the 

Supreme Court turned provisions of what prosecutions were. So, 

you can never totally rely that, you know, Justice Department is 

made up a view that—— 

Senator FLAKE. Well, but the Government—— 

The CHAIRMAN [continuing]. Judgment will be affected at the end 

of the day. So, that is an example of a nontreaty piece of legislation 

that was used in an inappropriate way for prosecution as the 

Supreme Court determined. So, there is no absolute guarantee. 

And I would just say, since the Bond case has been raised several times, I think there is a bit of a differentiation here that 

should be considered. You know, Bond involves Congress’ authority 

under both the Commerce Clause and the Treaty Power, along with 

the Necessary and Proper Clause. And the Treaty Power would not 

be relevant to U.S. implementation of the Disabilities Convention, 

because the ADA does not rely on the Treaty Power. In fact, it was 

passed before the Disabilities Convention had ever been negotiated. 

And the Commerce Clause analysis addressing the Chemical Weapons Convention Implementation Act is unlikely to be relevant to 

the ADA, a statute that has already been extensively litigated at 

the Supreme Court. So, I think there is—I understand the concern, 

but I think there are differentiations in this respect. 

Senator FLAKE. If the gentleman would yield for just a second. 

One, the Bond case has nothing to do with the Commerce Clause. 

It is under the treaty, here. 

But, second, I would just say that the certainty with which we 

are all saying this will not apply to us, here, is shaken a bit by the 

Bond case. And that is all I am saying. 

The CHAIRMAN. Yes. No, I appreciate that. And I am simply saying that, you know, as in that other case under the Honor Services 

Act, that has nothing to do with a treaty. The Supreme Court 

found that elements of how that was used to prosecute people was 

an overreach and unconstitutional. And yet, you cannot protect 

against that until you get to the Supreme Court, which is why we 

have a Supreme Court. 

And I do think that the Bond case has three elements to it. It 

has the Treaty Power, but it also has questions that arise under 

the Commerce Clause and the Necessary and Proper Clause. And 

so, in that respect, it is a little different. 

Senator Durbin. 

Senator DURBIN. I want to continue this, because we have raised 

this issue as if it stops us cold. We cannot go forward on this Disability Convention until we work out this Bond case. And I would 

say to Professor Meyer, Mr. Thornburgh, I think there is a clear 

distinction here. The Bond case is not being raised under the 

treaty, the Convention, when it comes to chemical weapons. This 

case is being prosecuted under the Implementation Act, a separate 

act of Congress implementing the treaty. Two different things. 

So, when we come to the Disability Act, what is the Implementation Act under the Convention for Disabilities? There is none. The 
99

only Implementation Act is the Americans with Disabilities Act, 

which has been on the books for 20 years. Have we tested that over 

20 years? Has it eliminated homeschooling, Mr. Farris? I do not 

think so. Has it mandated abortion across America, Dr. Yoshihara? 

No, it has not. 

The Americans with Disabilities Act is the implementing act that 

we have adopted ahead of the Treaty on Disabilities. The Bond

case is dealing with the Implementation Act on the Convention 

Weapons Treaties, two separate actions by Congress: one, ratifying 

the Convention on Chemical Weapons; two, passing a law called 

the Implementation Act, the law of the land. And now the Supreme 

Court will decide if that law is proper. 

So, conflating these two and saying, ‘‘Oh, it’s all about the same 

thing’’—one of our scholarly colleagues, the junior Senator from 

Texas, said, in a piece in the Washington Post, ‘‘If the Supreme 

Court concludes that a treaty can be used to prosecute Americans, 

regardless of their constitutional rights, the ramifications could be 

alarming.’’ And then he goes on with all sorts of opportunities. 

The prosecution is not under a treaty. The prosecution is under 

the Implementation Act. It is different. It’s a law of Congress. 

And I am just stopped cold, here, with this argument by Mr. 

Farris that the Americans with Disabilities Act is going to put an 

end to homeschooling in America. Is that your position? 

Mr. FARRIS. No, Senator, that is not my position. My position is 

that the treaty changes the legal requirements in this country, that 

it is just not correct to say that there is no duty to change American law in accordance with the treaty. So, since I believe there will 

be required to be an Implementation Act that complies with the 

requirements of the treaty, I think, at that point in time, that’s 

when the problems will arise. 

Senator DURBIN. So, Mr. Farris—— 

Mr. FARRIS. Not under the ADA itself. The ADA—— 

Senator DURBIN. Mr. Farris, the fact that the administration is 

not asking for an Implementation Act and made it clear that it is 

not seeking it, because the Americans with Disability Act already 

is controlling and has been extensively litigated, sets disability 

standards in our country which are higher than any in the world. 

You do not find that convincing? 

Mr. FARRIS. That is the same administration that is prosecuting 

a homeschooling family to try to expel them from the United 

States, who came here—— 

Senator DURBIN. Under the ADA? 

Mr. FARRIS [continuing]. Seeking political asylum—— 

Senator DURBIN. Under the Americans with Disabilities Act? 

Mr. FARRIS. No, they came here under our law of asylum. 

Senator DURBIN. Yes. 

Mr. FARRIS. But, the question, in the case that is pending—that 

case is also pending before the Supreme Court. 

Senator DURBIN. Well—— 

Mr. FARRIS. But, in that—it is for a circuit to—— 

Senator DURBIN [continuing]. Let me just say, Mr. Farris, I do 

not know what—— 

Mr. FARRIS. Well, I guess you do not want me to answer the 

question——
100

Senator DURBIN. Well, I do not think you can answer it, because 

you want to talk about something other than the Americans with 

Disabilities Act or the Convention on Disabilities, and that is what 

we are here to discuss. 

Mr. FARRIS. Well, the Convention with Disabilities has a different legal standard than the ADA. There are—— 

Senator DURBIN. I can tell you—— 

Mr. FARRIS [continuing]. There are numerous disability organizations that say, so I include their citations in my written testimony. 

Senator DURBIN. If we are going to use—— 

Mr. FARRIS. I am not the only one who says that. The CRPD 

Committee agrees with me—— 

Senator DURBIN. And I would just say to you, Mr. Farris, that 

if we are going to have a battle of the organizations supporting and 

not supporting this, I think we are going to prevail, because we 

have the mainstream disability organizations across America who 

are supporting the adoption of this Convention on Disabilities. And 

I struggle with the notion that we are somehow going to stop this 

effort—this effort to extend the rights to the disabled around the 

world, for fear of something which you cannot even clearly articulate when it comes to homeschooling. 

As Mr. Ridge says—I do not know whether to call him Congressman or Secretary, but we have been friends in both capacity—what 

he has said, he supports homeschooling. I do, too. This is not going 

to affect homeschooling. It is very clear that it will not. And the 

Americans with Disabilities Act, for 20 years, has not affected 

homeschooling.

I yield back my time. 

The CHAIRMAN. Senator McCain, I want to extend my appreciation for his advocacy from the last effort and, in this effort, has 

been an invaluable voice in this regard. 

Senator McCain. 

Senator MCCAIN. Well, thank you, Mr. Chairman. 

And I thank all the witnesses. And I especially thank Dick 

Thornburgh and Tom Ridge. I think you prefer ‘‘Governor’’ to those 

others, don’t you? [Laughter.] 

I want to thank you. And I remember, with great nostalgia, the 

day that the then-President of the United States, Herbert Walker 

Bush, signed the Americans with Disabilities Act on the lawn in 

the White House, and so many of our friends from the disabilities 

community were there to celebrate what has been—I don’t know 

anyone who does not believe that the passage of that act was not 

an unqualified success. It gave opportunities for some of our disabled community to get ahead in our society, and have rights which 

they previously had been deprived of. 

Mr. Meyer, you have made some very important, constructive 

recommendations, in my view, in this legislation—in your statement. And I would just like to ask you a couple of additional 

questions.

On the issue of abortion, the Resolution of Advise and Consent, 

that this committee passed last year, that contained the following 

understanding on how this treaty relates to U.S. law concerning 

abortion, ‘‘Nothing in the Convention—in this—in the Convention, 

including Article 25, addresses the provision of any particular 
101

health program or procedure.’’ Now, do you think that that is sufficient to address the concerns raised about what effect that this 

treaty might have on the U.S. laws and policies regarding abortion? 

And, if not, how would you recommend that we improve that provision that we adopted last year? 

Mr. MEYER. Well, Senator, of course, as I believe it was Secretary 

Ridge mentioned, we live in a litigious country, and so, one can’t 

guarantee that there will never be a lawsuit asserting that the 

Convention creates certain abortion rights. Nor can one guarantee 

that the Committee on Disabilities will not take such a position. 

Senator MCCAIN. But, do you have suggested language that could 

strengthen that to lessen that likelihood? 

Mr. MEYER. Yes. So, with respect to the role of the committee, 

I think the language that is referenced in my written testimony, 

or similar language, that makes clear that the committee’s interpretations of the Convention are not entitled to any weight whatsoever, would—or any deference from, for example, U.S. courts— 

could go a long way toward assuring that Federal courts are not 

going to be prone to following interpretations that the committee 

might adopt that, for example, a Congress would find objectionable. 

Also, the language you referenced—the Convention, in general— 

and the RUDs make this clear—is a nondiscrimination Convention, 

to a very large extent. Therefore, it does not reference the particular—the language you read does not reference the particular— 

any particular procedure; it just simply states that there shall be 

no discrimination. 

Senator MCCAIN. Well, I would appreciate it—the specific language—if you would submit to us, to lessen—obviously, abortion is 

a huge aspect of this issue with many Americans, and may affect 

the judgment of some members of this committee. So, I want to 

close that as tightly as we can, recognizing that there may always 

be some challenges. But, it—so, I think you see my point. 

Mr. MEYER. I do, Senator. I would be happy to read to you the 

language on the understanding that I think might help address the 

role of the committee. 

One might, for example, include language that states that, ‘‘The 

United States understands that the committee’s interpretations of 

the Convention are not entitled to any weight, apart from that 

given to them by states’ parties to the Convention.’’ 

One could imagine modifying that to specifically reference Federal courts. Or one could imagine modifying that language to specifically reference that the United States understands that there 

should be no weight given within U.S. courts unless the United 

States has adopted an interpretation consistent with its domestic 

procedures regarding the creation of international obligations. 

Senator MCCAIN. Mr. Chairman, I hope that maybe we could 

look at that language, as we move forward. And we need to assure 

the pro-life community, obviously, that this would not have any 

effect on present U.S. policy. 

Mr. Meyer, have you seen any serious restriction or violation of 

the rights of parents regarding the education of their children as 

a result of the treaties that we have ratified, as you know— 

the Convention on the Rights of the Child, Children in Armed Conflict, Optional Protocol on Children in—I guess, in Armed Conflict? 
102

Have you seen any serious restriction or violation of the rights of 

parents regarding the education of their children as a result of 

these previously Senate-ratified treaties? 

Mr. MEYER. I am not aware of any. 

Senator MCCAIN. Would you agree that the Senate can ratify the 

CRPD in a way that protects the prerogatives of parents and reaffirm the primacy of U.S. law, just as we have in these other 

instances?

Mr. MEYER. Yes. I think it is possible that there is a package of 

RUDs that would satisfy these concerns. 

Senator MCCAIN. And right now do you see sufficient RUDs, or 

should we have additional language? 

Mr. MEYER. I think some of the additional language with respect 

to the role of the committee would be helpful in addressing some 

of these concerns, going forward. I think, also, as I mentioned to 

Senator Corker, one could imagine, on the federalism point, potentially a stronger reservation to deal with the federalism issue. But, 

I think that these RUDs are available. I think these RUDs can be 

drafted.

Senator MCCAIN. I would just like to—well, I am out of time, Mr. 

Chairman.

Thank you. 

The CHAIRMAN. Thank you. 

Senator Kaine. 

Senator KAINE. Thank you, Mr. Chair. 

And, to the witnesses, good testimony. And the questions have 

been helpful. 

One of the reasons that I love being assigned to this committee 

as a new Senator is, the mission statement is pretty simple. American leadership in the world is really the mission statement of this 

committee. And that is a combination of economic, military, diplomatic, and moral leadership. And many of the witnesses have spoken to this. 

We have, as a country, shown great moral leadership on the 

issue of rights of folks with disabilities. I was just—off the top of 

my head and with my handy research tool, there, during testimony—the Rehabilitation Act, 1973; the Education for All Handicapped Children Act, 1975; Individuals With Disability Education 

Act, 1990; Americans with Disability Act, 1990. There are others, 

as well. Those are the four that I thought of, off the top of my head. 

These are significant, and they really do set a gold standard for the 

world.

But, I think it is appropriate for us to make it part of our brand, 

Governor Ridge, and brag about it in the way you mentioned. And 

I think entering into this treaty will be good for our citizens with 

disabilities, it will be good for citizens around the world with disabilities.

But, I also—just to my colleagues really, this point is addressed—I think it will be good for this body—this body, the Senate, and our committee—because this is one of those issues where 

I think the Venn diagram overlapping between the various partisan positions is near complete. 

I could not help but note, as I was looking at the dates of the 

passage of all four of those seminal statutes with respect to dis-
103

ability rights, they were all passed and signed by Republican Presidents: 1973, President Nixon; 1975, President Ford; the IDA and 

ADA, President Bush 41. This is an issue where it is not what you 

normally see up here, where Democrats want to do something, and 

Republicans do not; or Republicans want to do something, and 

Democrats do not. This has traditionally been about as bipartisan 

issue as you find in, kind of, modern public policy in American life, 

and I think we ought not to sacrifice that. 

I think Senator McCain’s questions and some of—both Professor 

Meyer and Attorney General Thornburgh’s testimony about the— 

and Ranking Member Corker’s questions—about the drafting of the 

RUDs and trying to make sure that we can solve some of the internal concerns that are fairly raised through that process, we should 

not—we should really diligently make an effort to do that, because 

this has been such a good example of an issue on which we have 

been together and we have exercised leadership in the right way 

that I do not think we should sacrifice an opportunity to continue 

to lead in this particular area. 

And so, again, to the members who have testified today, I appreciate it. 

Mr. Chair, I will yield back my time. 

The CHAIRMAN. Thank you. 

Senator Barrasso, who has also been a strong supporter of the 

ratification of the Convention. 

Senator BARRASSO. Thank you very much, Mr. Chairman. I want 

to congratulate you, as well as Senator McCain, for what I thought 

was an excellent op-ed in USA Today this Monday, ‘‘Menendez and 

McCain Ratify Disabilities Treaty.’’ So, I appreciate your efforts. 

And I just wanted to thank all of you for being here today to discuss this important issue. 

As a physician who has practiced medicine for over 25 years, I 

have seen firsthand the challenges facing people with disabilities. 

Every individual, regardless of the obstacles in their lives, should 

have an opportunity to work, to live, and to fully take part in our 

society. The United States has been the leader in working to end 

discrimination and to break down barriers that prevent the full 

participation——

The CHAIRMAN. Senator—— 

Senator BARRASSO [continuing]. Of all members of our—— 

The CHAIRMAN. Senator—— 

Senator BARRASSO. Yes, Mr.—go right ahead—— 

The CHAIRMAN. I want to thank Secretary Ridge for joining us. 

We had acknowledged and agreed that he had a plane to catch. 

So, thank you very much. There may be questions in the record 

that follow up, and we would ask you to consider answering them. 

Senator Barrasso, I am sorry. We will—— 

Senator BARRASSO. Thank you, Mr. Chairman. 

The CHAIRMAN [continuing]. Restore the time. 

Senator BARRASSO. Mr. Chairman, as we know and discussed, 

over 20 years ago, Congress passed the Americans with Disabilities 

Act. This Convention is based on the same principles as the Americans with Disabilities Act. The general principles include nondiscrimination, equal opportunity, independence, accessibility, human 

dignity, and full and effective participation and inclusion in society. 
104

The people of this great Nation believe in these ideals and principles. It is time for our Nation to stand up and show our commitment to these principles in the international community. 

I believe the Convention offers the United States a forum to utilize our wealth of knowledge and practical experiences to influence 

other nations in recognizing the rights of people with disabilities. 

Our Nation has the opportunity to help countries transition from 

the isolation and segregation of persons with disabilities to removing obstacles, to opening barriers, which ends up helping our citizens, in the process. Ratification also demonstrates our Nation’s ongoing commitment to equality and opportunity for individuals with 

disabilities.

This Convention is supported by more than 760 disability groups, 

20 veterans service organizations, including the American Legion, 

the Veterans of Foreign Wars, Wounded Warriors Project, members 

of the business community, including the U.S. Chamber of Commerce. And a former Secretary of State, Colin Power, supports the 

Convention.

And, Chairman Menendez, I have an additional—a letter from 

General Colin Powell. And, rather than read the whole thing, I 

asked unanimous consent to have this included in the record. 

The CHAIRMAN. Without objection. 

Senator BARRASSO. Thank you. 

Senator BARRASSO. Just for a couple of quick questions. 

Attorney General Thornburgh, there has been some misinformation, I believe, that has been circulated regarding the impact of this 

Convention on children. Does the Convention take away parents’ 

rights? Does it allow courts to interfere with parents’ decisions regarding their children? And in Article 6, specifically, does that provision require a national registry of children born with disabilities? 

Mr. THORNBURGH. The registry that is anticipated by the treaty 

is very similar to the laws we have in this country, which require 

that birth certificates and death certificates be taken note of and 

enrolled.

Interestingly enough, many countries around the world have 

lacking today that kind of procedure. And it poses a real threat, in 

many of the worst situations around the world, of improper abortion techniques or infanticide, even, so that—I view this as a very 

signal advance, not for the United States, because I think, at both 

the Federal and State—local level, we have those requirements. 

But, when you read in the headlines about the kinds of things that 

are going in lesser developed countries or dictators flout the law, 

if such there be, this, I think, is a very positive part of the treaty 

requirements that we could support easily. 

Senator BARRASSO. Thank you. 

Professor Meyer, in your testimony, it said, ‘‘Having the opportunity to nominate an American to serve on the committee and to 

appear before the committee is an effective way to ensure that the 

committee does not become a vehicle for creating, you know, customary international legal obligations that are contrary to U.S. 

interests.’’ Could you further explain why you think it is in the 

U.S. interests to have an American serving on the committee created by this Convention? 
105

Mr. MEYER. Sure. So, as I suggested in my opening statement, 

one of the ways in which the committee can have a legal effect, 

even though its recommendations are nonbinding, is through the 

creation of customary international law. The committee clearly 

does not have the power to create customary international law, but 

its recommendations, if other states react and adopt its interpretations and recommendations, that could be the basis for a claim that 

there is customary international law. 

Therefore, the opportunity for the United States to appear and 

to object to the interpretations of the committee that might be 

thought to give rise to customary international law obligations 

potentially could defeat the formation of customary international 

law that the United States would view as unacceptable. And there 

are examples of this occurring in the context of, for example, the 

Human Rights Committee, where the Human Rights Committee 

has, at times, taken positions that certain rules are customary 

international law, and the State Department has been able to take 

the position that they are not. 

Now, not ratifying the Convention does not remove the ability to 

object to the formation of rules of customary international law, 

either. And, likewise, there is some—with respect to U.S. courts not 

ratifying, it reduces the likelihood that a U.S. court would find 

there to be a rule of customary international law. 

But, the answer to your question is that the ability to have an 

American—to nominate an American to serve on the committee, 

and the ability to actually engage in colloquies with the committee, 

likely affects the committee’s work and may serve to actually 

ensure that its interpretations that are adopted are consistent with 

U.S. interpretation. 

Senator BARRASSO. Thank you, Professor Meyer. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator. 

Senator Markey. 

Senator MARKEY. Thank you very much, Mr. Chairman. 

It is great to have Tammy Duckworth here, an American hero. 

And she is in a wheelchair. And in 1990, we passed the ADA, and 

it made sure that there were on-ramps for those wheelchairs everywhere in our country. And it would be great if she could go anywhere in the world, as well, and know that we were moving inextricably in that same direction. 

Back in—and we thank you so much for your service—back in 

1990, when we did the ADA, I was the chairman of the Telecommunications Committee, so closed-captioning for TV sets, or ensuring that a phone system is available for a deaf and blind person, 

as well. And the 1996 Telecom Act extended that, as well. But 

then, in 2010, I authored, with Cliff Stearns, a very conservative 

Republican in the House side, and Mark Pryor, over here on the 

Senate side with very conservative Republicans, were able to pass 

a law that said that every one of these wireless devices had to have 

an on-ramp for the deaf and the blind. And we had to negotiate 

with the Consumer Electronics Association, this massive organization of thousands of companies, because they had to sign off on it. 

And now the deaf and blind can use these devices, no matter where 

they are. OK? 
106

Now, would it not be a good thing if that was true for the whole 

world, that all deaf, all blind had the capacity? But, I would like, 

Attorney General Thornburgh, to come back to you and just ask 

this question. What does it mean for the Consumer Electronic 

Association of the United States to have a market open up around 

the planet for all these devices that would be available to hundreds 

of millions of deaf and blind who would be empowered to become 

part of their economies? 

Mr. THORNBURGH. To ask the question is to answer it. [Laughter.]

Senator MARKEY. But, not in Congress. [Laughter.] 

So, you—actually, the words have to—— 

Mr. THORNBURGH. That is not my problem. [Laughter.] 

Senator MARKEY [continuing]. The words have to be spoken. I 

understand what you are saying. You believe it is a self-evident 

truth. But, we are having this hearing because—— 

Mr. THORNBURGH. No, I did not mean to be facetious. 

Senator MARKEY [continuing]. I—know—— 

Mr. THORNBURGH. It obviously would open up markets that are 

unavailable now, either because of the ethos of the governing process in the country in question or lack of resources or what have 

you. But, once you have got a rolling consensus built about the 

desirability and feasibility of doing these things, you can see remarkable advances take place around the world, which is in the 

business we ought to be in. 

Senator MARKEY. So, the Consumer Electronics Association has 

written a letter of support for the disability treaty, stating, ‘‘The 

U.S. ratification of the treaty would encourage greater demand for 

U.S. companies’ skills and services as fellow nations begin to adhere to the new international standards.’’ So, there should be no 

doubt, in other words, that this is a great economic benefit for 

American companies, as well. 

Now, of course, we want to help all of those who are deaf and 

blind. That is the point of my law, you know, to make that possible. 

But, as part of the bargain, we have the lead because we passed 

the law first, and pretty soon there is going to be just about every 

citizen on the planet that has one of these devices. And would it 

not be great if we were ensuring that they were accessible to the 

deaf and blind, as well, because those devices that are made in the 

United States already have to comply with that law. And I think 

that would be something that we would think would actually be in 

our best interest. 

Now, there are several countries, including China, Australia, and 

Argentina, who have already submitted reports to the Disabilities 

Committee. And I understand the Chinese admitted that they have 

a long way to go to protect the rights and interests of persons with 

disabilities.

Now, if the Chinese got serious about ensuring access for disabled persons, that would open up a huge market for the United 

States, would it not? 

Mr. THORNBURGH. Indeed. 

Senator MARKEY. And, given that the Convention will open all of 

those markets, not just in China, but around the world, would you 
107

not agree that a vote for ratification is a vote to support American 

businesses and to create jobs here in the United States? 

Mr. THORNBURGH. I think that is perhaps why the Chamber of 

Commerce supports the treaty ratification so—— 

Senator MARKEY. And right now, no one from the United States 

is sitting on the Disabilities Committee. If we had a delegate on 

that committee, do you think that would help U.S. businesses to 

expand their markets overseas? 

Mr. THORNBURGH. Yes. 

Senator MARKEY. And would it not help in creating, then, the 

rules and regulations that, you know, would be used in order to expand in other countries? 

Mr. THORNBURGH. One would expect that. 

Senator MARKEY. Congresswoman Duckworth. 

Ms. DUCKWORTH. Well, I think that the extent of opportunity for 

U.S. firms is really underestimated right now. The adaptive-device 

industry is a tremendously large one, and one that we certainly 

dominate the world. We are not talking about just the phones, but 

wheelchair-accessible buses, grab bars for showers, homeschooling 

supplies for parents who want to teach their kids at home. The 

range is tremendous. And if we do not do this, and American companies do not gain the credibility as being the world’s leader, we 

open the door for other nations who are competing with us in these 

fields—places like Germany and Iceland, where they do have industries and companies that provide adaptive devices, as well—we 

will lose the market share, and we will lose our role as a leader 

in the world in producing these devices. 

Senator MARKEY. Yes. So, Annie Sullivan helped Helen Keller, 

deaf and blind, to—using her palm to teach her. But, now we have 

moved from the palm to the Palm Pilot and on to the iPhone and 

the iPad and beyond. And so, that is the way you have to empower 

people in the modern era. Without that, they are not empowered. 

And so, we are doing something good across the whole planet, as 

well. We are making sure that we give people the ability to maximize their God-given abilities. And, without these kinds of devices 

in a modern world, you are not empowered, you do not have the 

capacity to be able to communicate, to be able to work. And so, this 

is now the essential ingredient of citizenship on the planet, if you 

want to be a productive person, and it makes it possible, for the 

first time in history, for every deaf and blind person to be able to 

fully participate in the economy of their country. And I think it 

would be wrong to do that, on a moral basis, but it would also be 

wrong to deny our own companies the ability to make these products and to create jobs here in America. So, you can do good and 

do well at the same time by supporting this treaty. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Markey. 

I just have some final questions. Mr. Farris, you described the 

Disabilities Treaty as the ideal, ‘‘wedge issue for future political 

campaigns.’’ Is it because the treaty is such a good divisive political 

issue for you that you have made some of the claims about the 

treaty that you have made? Is it why you stated that the treaty 

proponents have sort of a Soviet agenda and your organization has 

made some—what many of us are saying—are pretty outrageous 
108

claims that the U.N. will determine how many parking spots are 

at American churches? 

Mr. FARRIS. Senator, the wedge-issue comment was—I believe 

that this treaty would be the first in a line of human rights treaties 

that would be coming before this committee. The committee—the 

Convention on the Rights of the Child—Senator McCain misspoke, 

I am sure, earlier—we have not ratified that treaty. And so, I think 

that will be coming next. The Convention on the Elimination of all 

Forms of Discrimination Against Women, that would be coming, 

after that. I think that this treaty is the first of many treaties that 

would be in this range. That is what was intended by that comment.

On the parking-space comment, I coach moot court, and you have 

hypothetical questions in moot court, and you tend to argue that 

way in a lot of venues. That is what I was doing there. 

When there is no definition of ‘‘disability’’ and you give this organization the ability to define ‘‘disability,’’ anything is possible. I 

was trying to make an extreme case to show that anything is possible.

The CHAIRMAN. I agree with you that you were trying to make 

an extreme case. 

And, by the way, on the wedge issue, you were not talking about 

a whole host of other potential treaties, you were talking about this 

treaty. The source is ‘‘The Story of Washington Gridlock,’’ in the 

Boston Globe by author Michael Kranish. 

And on the question of the parking-lot reference, which you yourself say is an extreme example, your organization, or an organization you are affiliated with, ParentalRights.org, has a document detailing the 15 issues your organization has with the treaty. Reason 

number two—pretty much at the top—states that the number of 

handicapped spaces required for parking at your business, private 

school, or house of worship will be established by the U.N., not 

your local government. 

And I would like to submit that article for the record, without 

objection.

So, you know, that is why—you know, I can understand and respect your view, although I disagree with it. But, when a statement 

like that is made, I think it undermines the credibility of those arguing how far this treaty could be taken. 

Let me ask you something else. In Article 7(2) of the Disability 

Treaty, it states that, ‘‘In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.’’ That seems like an incredibly noncontroversial statement to 

me. So, can you—I have read your testimony, and I have read the 

testimony of last year, as well—can you tell me one example where 

the best interests of the child with disabilities should not be a primary consideration? 

Mr. FARRIS. Yes. Because the term ‘‘the best-interest-of-the-child 

standard’’ is a legal term of art, and it means that the government 

gets to substitute its judgment for that of the parent. And so, anytime——

The CHAIRMAN. You believe—that is your interpretation. It is not 

the definitive interpretation. 
109

Mr. FARRIS. Well, it—that is the—I quoted Professor Geraldine 

Van Bueren, who is the leading expert on international rights of 

the child—— 

The CHAIRMAN. But, let us look—— 

Mr. FARRIS [continuing]. In the world. 

The CHAIRMAN [continuing]. Let us look at what the Convention 

says. The text says nothing about the state stepping into the shoes 

of the parents. In fact, Article 23 describes in detail protecting 

parental rights and the rights of the extended family to care for 

and to make decisions for children with disability. So, I am dumfounded how you can make a noncontroversial statement and twist 

it into something that is rather sinister. 

Mr. FARRIS. Senator, the treaty—the ICCPR protects, directly, 

the right of parents to direct the upbringing and education of their 

children. That language is missing in this treaty. If that language 

was in this treaty, we would be in a different position. But, that 

language is missing. That is the historical practice. There is no direct statement about parents’ rights in education in this treaty. 

And the best-interest standard is a legal term of art that has 

been used by the German high court to take parents’ children away 

from them if they homeschool their children. 

The CHAIRMAN. Well, this is not the German high court. This 

is——

Mr. FARRIS. But, it is the meaning of the—— 

The CHAIRMAN [continuing]. This is the United States of America, and the only high court I care about is the Supreme Court of 

the United States. 

Let me ask you, finally, this. You quoted Professor Henkin as a 

buttress for your arguments, your legal arguments. And I appreciate that you have an LLM from London, which, as I understand, 

from a distance learning course—— 

[Laughter.]

The CHAIRMAN [continuing]. As a matter of—there are no comments permitted before the committee of either approval or disapproval.

But, as a matter of law, the courts have no authority to ignore 

reservations, understandings, and declarations. As a matter of fact, 

some of the most conservative lawyers—Professors Curtis Bradley 

and Jack Goldsmith—concluded that, ‘‘In sum, since the early days 

of the Nation, the President and Senate have attached a variety of 

conditions to their consent to treaties. No court has ever invalidated these conditions.’’ 

And finally, when you quote Professor Henkin, you know, you 

seem to somehow suggest that he would not have supported ratifying this treaty. 

Mr. FARRIS. No, I think he would support ratification. I think 

that there—— 

The CHAIRMAN. Well, I am glad we agree on that. 

Mr. FARRIS [continuing]. A number of internationalists would 

support it. They think it is good that we submit the United States 

to the supervision of the international community. I do not. But, 

we at least agree on the operation of international law. 
110

I do not disagree one whit with Professor Henkin on how he sees 

international law in operation. What we disagree about: Is this 

good, or is this bad? I think American—- 

The CHAIRMAN. Well—— 

Mr. FARRIS [continuing]. Self-government is the part of our brand 

that we should be exporting—— 

The CHAIRMAN. And I agree with that. And that is why the—you 

know, you argue that the treaty creates obligations others do not 

see, and then you suggest that the United States must follow your 

interpretations in terms of ratifying the treaty. 

And I think that where we have a fundamental disagreement 

here is that, under the Constitution, the President and the Senate 

determine our obligations under international treaties, and therefore the reservations, understandings, and declarations of the Resolution of Advise and Consent are binding. 

I am going to ask unanimous consent to include a legal memo 

prepared by Patton Boggs on this issue, to set the record straight 

on the power and the efficacy of RUDs. 

You know, I will just close on Professor Henkin. He would have 

recognized that, just because the United States law is adequate to 

comply with the treaty is not a good reason not to ratify it. He 

would have supported the treaty, in my view, because it advances 

human rights and makes us full participants in the treaty. And the 

fact is that the Human Rights Institute, which he founded, and the 

Human Rights First organization, on which he served on its board 

of directors, both support the treaty. So, we just have a fundamental disagreement about what, in fact, will be our obligations 

and what will be the reach of the treaty. 

I believe that homeschoolers will be absolutely fine, and I know 

that, you know, there is money raised on this issue, but that is— 

and, you know, maybe it is a wedge issue, but it is not going to 

affect homeschoolers, because I think there is very broad support 

for homeschoolers here on this committee. 

Senator Coons. 

Senator COONS. Thank you, Chairman Menendez and Ranking 

Member Corker. Thank you, Chairman, for convening this hearing 

to consider the Convention on the Rights of Persons with Disabilities, the CRPD. 

Bipartisanship has historically been the hallmark of American 

leadership protecting the rights of persons, and, in particular, the 

rights of persons with disabilities. And I was proud to have the 

opportunity to work with you and with others—Senator McCain, 

Senator Durbin, Udall, Barrasso, Harkin, many others—in highlighting our united supported for this issue in the last Congress. 

Ratification of the CRPD, in my view, will serve to solidify the 

American commitment to equal opportunity for disabled persons 

through increased access, mobility, and protection of our disabled 

Americans abroad, especially our wounded veterans. 

Promoting the rights of disabled persons has historically garnered the support of a very broad range of Americans, and I 

remain hopeful the Senate can come together to protect dignity and 

human rights for all by ratifying the CRPD in this Congress. 

Last year, we missed a great opportunity to ratify this treaty. It 

is my hope, shared by many of my constituents and Americans 
111

throughout the country, as, I think, evidenced here today, that we 

do not make that same mistake again. We cannot afford to miss 

the opportunity—and I encourage my colleagues to participate 

actively in the hearings and to join those of us who might vote 

again to ratify it. 

If I might first—Congresswoman Duckworth—first, thank you for 

your service and for your remarkable and inspiring story of perseverance and of engagement and of continued service to our country. 

I am glad to be able to be here for your testimony earlier. 

In your view, how has America’s failure to ratify this treaty actually impacted our leadership on disability issues globally? 

Ms. DUCKWORTH. Thank you, Senator. Well, I felt it, myself, 

when I traveled to Asia earlier this year, where I went to talk to 

disability rights groups and talked about what we have done in the 

United States. One of the first questions asked on the rank-andfile folks in the room was, ‘‘But, America didn’t vote to ratify the 

Convention.’’ And sitting in that room as a representative of the 

United States, I had nothing to say, except that, ‘‘Well, we’re going 

to work on it and we’re going to try to ratify it soon. This is how 

our democracy works.’’ 

But, I felt it firsthand, because I was in a room full of people who 

looked to me to talk about ADA and all the benefits and how it 

allowed me to recover from my injuries and live this life that I live 

and then to be able to serve my Nation. But, I could not do that 

with authority, because the very—you know, one of the first questions I got asked, ‘‘Well, are you guys going to ratify it?’’ I had egg 

on my face. 

And if we are going to lead the world, you know, it is—on ADA— 

it is in so many area. Americans dominate the worlds of athletics, 

and, you know, we have the Olympics coming up. Our athletes, our 

Paralympians, are—have now a new infusion of veterans—disabled 

wounded warriors who are now Paralympians, and, because of 

them, we are really elevating the sports around the world. Anywhere there’s a Paralympics, they must make the venues wheelchair and ADA accessible. And so, because of the participation of 

our veteran Paralympians in Beijing, I will now someday be able 

to go and see the Great Wall of China, which was never accessible 

before.

The way we can touch the world is endless with this, but we go 

into this with a lack of credibility. We have not ratified this treaty. 

We should be at the head of the table, and we are not. 

Senator COONS. Mr. Attorney General, thank you for your active 

work in supporting this. What have been some of the positive 

results of the CRPD in those countries that have ratified, so far? 

And has it made notable progress in promoting accessibility and 

equality and establishing disability standards? The Congresswoman just spoke to one concrete example, but, more broadly, in 

the many other countries that have already ratified, what difference has it made? 

Mr. THORNBURGH. It is probably difficult to quantify, at this 

early stage, precisely what differences have been made, but you 

have heard, today, from any number of people, anecdotal evidence 

of the change and the prospects for change that clearly will flow 

from our leadership role on this. 
112

But, I think a good project for this committee, if I may be so bold, 

would be to catalog the answers to the very question that you 

raised. I do not have any particular insight into this, but I think 

you have able staff who could perhaps put together a compilation 

from around the world of the kinds of positive changes. And I 

would say, with no compunction, that that will show a mighty 

impressive record. 

It is early in the game yet, I think, before—if you use that as 

a basis for judgment, but I would be greatly surprised if there were 

not some marvelous stories that are available to share with the 

public.

Senator COONS. A last question, if I might, Mr. Chairman. 

Well, Mr. Attorney General and, if I might also, Professor Meyer, 

it was just, in the last exchange, advanced by Mr. Farris that, were 

we to ratify this treaty, we would be submitting the United States 

to the supervision of the international community. Does that strike 

you as an accurate characterization of the impact on America and 

American sovereignty, were we to ratify the CRPD, that we would 

be submitting to the supervision of the international community? 

Mr. THORNBURGH. I have heard that claim made before, and 

searched the record for any indication that that is either intended 

or possible, given the current posture of the deliberations on the 

Convention in this body. No, I do not think that is a realistic 

assessment. It is a little bit of an alarmist and perhaps good propaganda. But, this is not a country that is going to submit to any 

worldwide body. We have shown our independence in any number 

of areas. And why we would choose to roll over on an issue where 

we have such a leadership role established already is unthinkable. 

Senator COONS. Thank you, Mr. Attorney General. 

Professor Meyer, just in concluding, in your view, would we be 

compromising our sovereignty by submitting to the global community, or, in fact, leading and demonstrating our commitment. 

Mr. MEYER. I think the characterization that we would be submitting ourself to the supervision of the United Nations or the 

world community would be an overstatement. The committee does 

not have any legal authority to compel any changes to Federal law. 

And, provided that there’s an appropriate package of RUDs, I think 

that we would be in a position to say that Congress and the United 

States continues to enjoy the ability to decide what Federal law 

requires.

Senator COONS. Well, thank you. I would like to thank all of the 

witnesses from the first panel, the Senators who testified earlier, 

and Congresswoman, Attorney General, everyone else who’s testified today. 

Thank you very much, Mr. Chairman. 

The CHAIRMAN. Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman. And I appreciate 

you letting me ask a few more questions. 

And, Congresswoman Duckworth, I appreciate your inspiration 

and your comments about being in Asia. And I think one of the reasons that we are all concerned about the legalities—I think that, 

you know, the thrust—I do not think there is anybody on this committee that does not appreciate deeply the thrust of this effort, but 

it is that we actually—when we pass laws, we go by them. And 
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some of the countries that we deal with, that is not the case. And 

I know the General mentioned that we are a country of the rule 

of law. And I think—it seems to me that all of the advocates for 

this treaty would agree that delving into the RUDs and getting 

them right so that we do not end up having unintended consequences is a worthy effort as we move forward over the next few 

weeks. Is that correct? 

Mr. THORNBURGH. Absolutely. I think that they are the key tasks 

that have to be performed in the drafting of the final version of 

what is voted on, because they are going to spell out, if done correctly, the explicit guidelines that will endure long past the debate 

that goes on in this body. 

Senator CORKER. And, Mr. Meyer, it seems to me that you have 

offered some really constructive comments relative to some of the 

changes that may be made. And I do want to say, we would love 

to work with you to try to develop those and try to address some 

of the issues that were brought up. 

I know that we talked about the committee, and it is my understanding that we would have a representative on that committee, 

but it would be temporary, meaning that they rotate, and we would 

have somebody on, on the front end, and that, over time, this committee can do some things to establish customary international 

law.

And, I guess, is there a way, in your opinion, to inoculate ourselves from the evolution that can occur with these committees 

over time—20, 30, 40 years—through the RUDs, that would protect 

us from customary international law that might be developed by 

the committees? 

Mr. MEYER. Senator, there is a doctrine known as the persistent 

objector doctrine that provides that a state that objects during the 

formation of a rule of customary international persistently is not 

bound by that rule. 

One could imagine an understanding that is stated that the 

United States understands that the interpretations of the committee are not a basis for the formation of customary international 

law, and objects to any rule of customary international law formed 

on the basis of the committee’s interpretations alone. I think that 

that would lay the groundwork for a claim that the United States 

was not going to be bound by any emergent rule of customary 

international law. 

The other thing—and this is the practice of the State Department—is to monitor the activities of the committee and to make 

sure that we do object in those cases in which interpretations of the 

Convention or purported rules of customary international law 

emerge which we find objectionable. 

Senator CORKER. So, because the committee’s sort of a living 

organism, some people have said, ‘‘Look, yeah, the ADA standards 

are the gold standard today, but, as the committee evolves over 

time, it could well be that other laws have to be developed here 

within our country.’’ But, you believe, per what you just said, that 

customary international law—we could inoculate ourselves fully 

from that evolution. And I see proponents of this treaty shaking 

their heads up and down. That would not be objectionable, General, 

from your standpoint, to the advocates? 
114

Mr. THORNBURGH. No. It seems to me that, as was mentioned 

earlier on, that one body cannot make rules that bind its successor 

in the legislature. So, there is going to be a call for oversight. Look, 

the definition of ‘‘disability’’ under the ADA has already been 

changed, and it has only been in effect less than 25 years. So, experience is a good mentor in that respect, and that is why we have 

the Congress and the courts, and not some ultimate executive 

branch decisions that are going to be made. 

Senator CORKER. So, Dr. Yoshihara, it seemed to me that you 

agreed that, with stronger RUDs, that the issues that you are concerned about could be dealt with. Is that correct? 

Dr. YOSHIHARA. Well, I have to say, I am not optimistic that we 

could be fully inoculated from customary international laws evolving, because it doesn’t involve us. This is something that is international opinion. So, customary international law evolves, internationally, through other court decisions, such as the Colombia and 

Argentina cases, through jurisprudence in other countries. We 

could not inoculate ourselves from what the world opinion is. We 

could certainly make a reservation, or an understanding on this. I 

know that Senator Rubio had a very strong amendment, the last 

time around, that got watered down. And if this—you know, I 

think that that would be a minimum to try to protect ourselves 

from 25(a) in the treaty. 

But, again, I am not optimistic that a reservation would do it, 

because the committee is ignoring those reservations. They are 

already telling countries to remove the reservations. So, if we think 

we are getting pressure now to ratify, wait until we have to go 

every 4 years before the committee. We are going to get pressure 

to remove every one of our reservations. 

So, again, I am not as sanguine, I think, as the Professor is. 

Senator CORKER. But, to remove those reservations, that would 

require Congress to act to remove those reservations, and—I mean, 

do you think anybody’s—— 

Dr. YOSHIHARA. Yes, sir. 

Senator CORKER [continuing]. Going to really care—— 

Dr. YOSHIHARA. No, I am—— 

Senator CORKER [continuing]. That much about a committee—— 

Dr. YOSHIHARA. Forgive me, I—— 

Senator CORKER [continuing]. To put any pressure—— 

Dr. YOSHIHARA [continuing]. Was not clear. As far as authority, 

there are now a lot of folks who have spoken today that we are 

going to lose credibility, mitigate credibility altogether, if we do not 

ratify. We’re going to be out of the table. I think that is excessive. 

We will maintain our credibility. We have that credibility. One 

hundred thirty-eight countries have already ratified without us 

ratifying. Great Britain, Spain has passed a comprehensive law. African nations are making real differences now and embracing this 

because they have ratified it. Even without us ratifying—and time 

and again, I hear, when I am at the U.N., from delegates who tell 

me, ‘‘You are the leaders on this. We understand that you have not 

ratified, but you are still the leader.’’ 

So, again, I think that if we go down this path and go to reservations, if we are already afraid, by ratifying, we’ve gone too far, as 

far as I am concerned, because we already have the authority, the 
115

credibility, and the leadership to make a difference around the 

world.

Senator CORKER. Would you work constructively with Mr. Meyer 

and others to do what we can to try to get to a place where these 

RUDs alleviate most of the concerns that you have? I know you 

still have the concern about customary international law. 

Dr. YOSHIHARA. Senator, I would be happy to work with them, 

absolutely.

Senator CORKER. So, if I could, just my final question. You know, 

Mr. Farris seemed to strongly disagree with you, Mr. Meyer, as to 

whether the issues that he is concerned about can be addressed 

through RUDs. And I would like for you, if you would, to address 

that one more time, Mr. Farris, and then, if you would, Mr. Meyer, 

respond to that. 

Mr. FARRIS. Senator, I think it is possible to write a RUD that 

would address my concerns, but I think that the RUD would be 

illegal under the terms of the treaty, because RUDs that are contrary to the object and purpose of the treaty are illegal. And so, I 

think that the RUD that would be needed—— 

Senator CORKER. And illegal where? 

Mr. FARRIS. They are—it would—illegal in any court. The question becomes whether we have really ratified the treaty. I think 

that the better view is that, if we adopt a treaty with a reservation 

that is contrary to the object and purpose of the treaty, then we 

are not actually a party to the treaty. It is not that the RUD falls; 

our whole ratification or whole participation falls, because we are 

undertaking it—we are pretending to undertake the obligation, and 

we are not really doing so. 

So, I do not think that the RUD that would satisfy my arguments would be legal, for that reason. Now, could you write something that was just on the homeschooling issue? Perhaps. I have 

not seen anything to date that has come close to that. But, given 

the experience of the homeschooling community in the last year 

with this administration on the Romeike case, where it was interpretation of international treaty law on the best-interests-of-thechild standards, the same term of art that are concerned about 

here, we do not trust this—given the fact that we are being mistreated by this administration right now on an immigration issue 

on this very term of art in the law. Moreover, this is the same 

administration that told us, ‘‘If you can—if you want to keep your 

insurance policies, you can.’’ If—— 

Senator CORKER. Yes. 

Mr. FARRIS. And so, trusting the source of the promises is not at 

a high level right now. 

Senator CORKER. So, if you would respond to that, Mr. Meyer, I 

would appreciate it. 

Mr. MEYER. Thank you, Senator. 

First, I think, to be clear, no U.S. court is going to disregard a 

RUD, regardless of whether or not it is contrary to the object and 

purpose of the treaty. Consistent with Professor Goldsmith and 

Professor Bradley’s findings, I am aware of no instance in which 

a Federal court has ignored a RUD. 

The way in which RUDs—the object and purpose rule comes into 

play is mostly that another party might object that a reservation 
116

the United States made is contrary to the object and purpose of the 

Convention.

The United States—there is no way, through this procedure, that 

the United States can end up bound by anything to which we have 

not consented, by which I mean, it is not possible that, by the virtue of some party objecting, that the reservation will be struck and 

the United States will be bound by the treaty without the reservation. Either the treaty simply would be deemed not to apply or, 

more likely, the objection would just be answered and everybody 

would understand that the United States had entered this reservation.

It is also possible that the committee, at some point, might opine 

that a reservation the United States made was contrary to the 

object and purpose of the treaty. But, again, as with other interpretations offered by the treaty, that would be nonbinding on anybody, 

and it would be up to, actually, a state party to advance that 

argument.

Senator CORKER. So, we are the country that has the gold standard, and advocates would like for us to play a role throughout the 

world in helping develop that gold standard around the world. And 

you are saying that, if we develop RUDs that, in our opinion, absolutely inoculate us from any kind of outside issue outside our 

domestic laws, and it is struck down as being something that is 

contrary to the treaty, then the whole treaty falls, from our standpoint; we are not bound to other portions of the treaty. Is that one 

point you just made? 

Mr. MEYER. That is correct. The only thing I would add is that 

there is no court that would have jurisdiction to strike down a reservation. This treaty does not submit, for example, to the jurisdiction of the International Court of Justice. And the committee does 

not have the authority to formally strike down a reservation. 

Senator CORKER. And I guess one of the advocates, the witness, 

Mr. General, you would say that we would be better off with adhering and taking up this treaty and being bound by this treaty, with 

RUDs that did that very thing, and that would be acceptable to 

you, as an advocate, for us having those kind of disclaimers relative to our own internal and domestic laws. 

Mr. THORNBURGH. I do not think there is really any choice, 

because what we have exemplified historically in this country is a 

commitment to assuring, to the world’s people, that benefits and 

advances that we have made in our own country—and I do not see 

disability rights, to which there is an obvious strong commitment 

in this country, going back to and preceding the Americans with 

Disabilities Act, as any different than the other important principles that we have fought and died for over the years. 

So, I think that, clearly, any strategy on the design to gut our 

ratification to the treaty would be unacceptable. At the same time, 

I think it is entirely possible to draft RUDs that are satisfactory 

to most reasonable people in looking at what the problem is. 

Senator CORKER. Mr. Chairman, thank you. 

And thank all of you, as witnesses, for your time. 

The CHAIRMAN. Thank you, Senator Corker. 

Just one final comment. And since we are developing a record 

here, I cannot let go of a different view than Dr. Yoshihara’s with 
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regards to her constant references to the Colombia case. And I am 

disappointed that you use it in that way. 

With reference to, you know, the assertion that Colombia’s high 

court overturned the country’s protection of the unborn, invoking 

the nonbinding comments of U.N. treaty bodies as it relates to this 

treaty, the fact of the matter is, the Colombia case has nothing to 

do with the disabilities treaty. It’s a 2006 case. Colombia did not 

ratify the Disabilities Treaty for another 5 years after that decision.

The Colombia case cites a different Convention, a treaty to which 

Colombia had no reservations, no understandings, no declarations. 

By contrast, our ratification, should we do so, of the Disabilities 

Treaty would be with a declaration that the treaty is not selfexecuting, meaning that the Disabilities Treaty could not be used 

as a basis for lawsuits in United States courts. And the U.S. Supreme Court has upheld the validity of non-self-executing declarations in the case of Sosa vs. Alvarez-Machain. So, you know, we need to be clear about the assertions that we 

make when we are creating a record, and I felt the responsibility 

to make that clear. 

Let me thank all of the witnesses—— 

Senator CORKER. Could she respond to that? 

The CHAIRMAN [continuing]. For their——we have given everybody plenty of opportunity. 

Let me thank all of the witnesses for their testimony. I appreciate all of the members who have attended and the thoughtfulness 

for which they approach the issue. 

I appreciate and want to thank those who have beared with us 

and have watched the hearing from overflow rooms, since we did 

not hold this in the—outside of the traditional hearing room. We 

appreciate your forbearance and your watching of the democratic 

process in the overflow rooms. 

The record will be open until the close of business on Thursday. 

And, with the thanks of the committee to all of you, this hearing 

is adjourned. 

[Whereupon, at 5:12 p.m., the hearing was adjourned.] 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

RESPONSES OF MICHAEL P. FARRIS TO QUESTIONS

SUBMITTED BY SENATOR BOB CORKER

Question. Can you please explain your view of whether and how U.S. ratification 

of the CRPD could affect the current balance between the Federal Government, 

State governments, and individuals—particularly with respect to Congress’ power to 

regulate in areas that understood to be reserved to the States or the people under 

the 10th Amendment of the U.S. Constitution? How might we construct Reservations, Understandings, or Declarations (RUDs) sufficient to ensure against such an 

effect?

Answer. 1. Like the CRC and CEDAW, if ratified, the Convention on the Rights 

of Persons with Disabilities would become the supreme law of the land under the 

U.S. Constitution’s Supremacy Clause in Article VI, would trump State laws, and 

would be used as binding precedent by State and Federal judges. 

Article 4(1)(a) demands that all American law on this subject be conformed to the 

standards of the U.N., and Article 4(1)(e) remands that ‘‘every person, organization, 

or private enterprise’’ must eliminate discrimination on the basis of disability. The 

State Department and the Committee on Foreign Relations both recognize ‘‘that 
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by its terms the Convention can be read to require broad regulation of private 

conduct.’’ 1

The rule of international law is that the nation-state that ratifies the treaty has 

the obligation to ensure compliance. This gives Congress total authority to legislate 

on all matters regarding disability law—a power that is substantially limited today. 

Article 4(5) makes this explicit. Absent an effective RUD, any remaining state sovereignty on the issue of disability law will be entirely eliminated by the ratification 

of this treaty. 

2. The very concept of a federalism reservation runs counter to the general principles of international law. 

Normally, when a nation-state enters into a treaty, that nation-state has the obligation to fulfill that treaty and may not justify its failure to implement the treaty’s 

provisions based on the failure to act of any subsidiary unit of government—even 

in a Federal system. Thus, in Missouri v. Holland, 252 U.S. 416 (1920), the 

Supreme Court held that Congress may pass implementing legislation in pursuance 

of a treaty even in that subject matter had heretofore been, by virtue of the 10th 

Amendment, within the exclusive legislative competence of the states. There can be 

no debate that the ratification of a treaty gives Congress all of the power necessary 

to implement its terms—any principle of federalism to the contrary notwithstanding.

3. Ultimately, the UNCRPD’s strong nationalistic approach to treaty obligations 

results in frustration, exasperation, and even outright disdain for Federal systems of 

government.

To cite just one example, the Expert Committee has specifically identified Argentina’s Federal structure of government as a ‘‘challenge’’ to the achievement of the 

Convention’s aims: ‘‘The 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.2

The implication of these statements is clear. Under modern international law, 

constitutional federalism—where states have meaningful freedom to individualize 

and customize the laws within their own sovereign spheres of authority—is the 

great challenge and barrier to the aims of the treaty. If the treaty’s aims are to be 

fully realized, federalism must be curtailed, removed or subsumed entirely. There 

is no reservation which can both recognize and retain vibrant federalism, and adequately address this concern. 

Question. In your view, is it conceivable that the CRPD Expert Committee could 

assert obligations of States parties’ that would implicate parental governance of disabled children and U.S. compliance with the CRPD? If your answer is yes, please 

cite the article(s) of the CRPD and/or the operative language that might create this 

obligation. How might we construct Reservations, Understandings, or Declarations 

(RUDs) sufficient to ensure against such an effect? 

Answer. 1. The UNCRPD follows the trend of the second generation of human 

rights treaties which promote the idea that government, not parents, have the ultimate voice in decisions concerning their children. 

Early human rights instruments were very supportive of the rights of parents to 

direct the education and upbringing of their children. It is beyond dispute that the 

Universal Declaration of Human Rights, adopted in 1948 by the unanimous vote of 

the U.N. General Assembly arose ‘‘out of the desire to respond forcefully to the evils 

perpetrated by Nazi Germany.’’ Article 26(3) of the UDHR, regarding parents and 

children, is no exception: ‘‘Parents have a prior right to choose the kind of education 

that shall be given to their children.’’ 

The rejection of the Nazi view of parents and children was translated from the 

aspirational articles of the UDHR into the binding provisions of the two core human 

rights treaties of our era—the International Covenant on Civil and Political Rights 

(1966) and the International Covenant on Economic, Social, and Cultural Rights 

(1966). Article 18(4) of the ICCPR provides: ‘‘The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, 

legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’’ 

Article 13(3) of the ICESCR repeats and expands on this same theme: The States 

Parties to the present Covenant undertake to have respect for the liberty of parents 

and, when applicable, legal guardians to choose for their children schools, other 
119

than those established by the public authorities, which conform to such minimum 

educational standards as may be laid down or approved by the State and to ensure 

the religious and moral education of their children in conformity with their own convictions.

2. This proparent view of human rights has given way to a decidedly different view 

in the U.N. Convention on the Rights of the Child (UNCRC) and now in the U.N. 

Convention on the Rights of Persons with Disabilities. 

Article 7(2) advances the identical standard for the control of children with disabilities as is contained in the U.N. Convention on the Rights of the Child. This 

means that the government—acting under U.N. directives—gets to determine for all 

children with disabilities what the government thinks is best. 

The ‘‘best interest of the child’’ standard is one used currently in American family 

law, but only if a family is broken by a divorce or if a parent is convicted of neglect 

or abuse. In all other cases, current American law rejects the proposition that the 

government can substitute its view of what is best for the child for that of the 

parent.

In contrast, Article 7, Section 2 of the treaty requires that States ensure that ‘‘In 

all actions concerning children with disabilities, the best interests of the child shall 

be a primary consideration.’’ The UNCRPD further enjoins States to ensure that 

all actions concerning disabled children are made on the basis of the child’s best 

interest.

In order for States to live up to their treaty obligations, they must necessarily 

make judgments about children’s best interests continuously. Should the government’s assessment of the child’s best interests differ from that of the parents, the 

government gets to make the decision, not the parents. 

3. The UNCRPD’s approach to parental rights leads to the inescapable conclusion 

that parental rights in the education of disabled children will be supplanted by a 

new theory of governmental oversight and superiority. 

In short, government agents, and not parents, are being given the authority to 

decide all educational and treatment issues for disabled children. All of the rights 

that parents have under both traditional American law and the Individuals with 

Disabilities Education Act will be undermined by this treaty. A couple of examples 

illustrate the dangerous trend in the UNCRPD. 

a. Evisceration of IDEA’s baseline parental protections: Under current American 

law, the IDEA requires public schools to offer special assistance to children with disabilities. No parent, however, is required to accept such assistance. Under this section the government—and not the parent—would have the ultimate authority to 

determine if a child with special needs will be homeschooled, attend a private 

school, or be required to accept the program offered by the public school. 

The National Dissemination Center for Children with Disabilities lists eight particular rights of parents contained in the IDEA: 

(1) The right of parents to receive a complete explanation of all the procedural 

safeguards available under IDEA and the procedures in the state for presenting 

complaints;

(2) Confidentiality and the right of parents to inspect and review the educational records of their child; 

(3) The right of parents to participate in meetings related to the identification, evaluation, and placement of their child, and the provision of FAPE (a free 

appropriate public education) to their child; 

(4) The right of parents to obtain an independent educational evaluation 

(IEE) of their child; 

(5) The right of parents to receive ‘‘prior written notice’’ on matters relating 

to the identification, evaluation, or placement of their child, and the provision 

of FAPE to their child; 

(6) The right of parents to give or deny their consent before the school may 

take certain action with respect to their child; 

(7) The right of parents to disagree with decisions made by the school system 

on those issues; and 

(8) The right of parents and schools to use IDEA’s mechanisms for resolving 

disputes, including the right to appeal determinations. 

All of these parental rights will be eviscerated by the mandatory application of 

the ‘‘best interest of the child’’ standard which is set forth in Article 7 of the 

UNCRPD. Speaking of the ‘‘best interest of the child’’ standard in the UNCRC— 

a provision that uses the exact same legal terms as those contained in Section 7 

of the UNCRPD—Geraldine van Bueren, one of the world’s leading experts on the 

international rights of the child, clearly explains the meaning and application of this 

best interests standard: ‘‘Best interests provides decision and policymakers with the 
120

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. 

Today, under the IDEA parents get to decide what they think is best for their 

child—including the right to walk away from government services and provide private or home education. Under the UNCRPD, that right is supplanted with the rule 

announced by Professor van Bueren. Government officials have the authority to substitute their views for the views of parents as well as the views of the child as to 

what is best. If parents think that private schools are best for their child, the 

UNCRPD gives the government the authority and the legal duty to override that 

judgment and keep the child in the government-approved program that the officials 

think is best for the child. 

The resulting danger is far from theoretical. To cite just one example, the Expert 

Committee has held that New Zealand’s Education Act of 1989, which allows the 

Secretary of Education to force any child with special needs into government-run 

schools ‘‘if the Secretary thinks [the student] would be better off,’’ conforms to the 

UNCRPD. If the ‘‘best interest of the child’’ standard controls, substitution of the 

government’s views for that of the parents is all but fait accompli. 

b. Directing the Child’s Education: Article 24 on Education does not repeat the 

parental rights rules of earlier human rights treaties such as the International Covenant on Civil and Political Rights or the International Covenant on Economic, 

Social, and Cultural Rights. 

This is an important omission. Coupling this omission with the direct declaration 

of ‘‘the best interest of the child’’ standard in Article 7(2), this convention is nothing 

less than the complete eradication of parental rights for the education of children 

with disabilities. Again, New Zealand’s approach to this issue—and its subsequent 

approval by the Expert Committee—is illustrative of the great danger to familial 

integrity, autonomy, privacy, and liberty posed by the UNCRPD. 

c. Parental Discipline and Corporal Punishment: Similar concerns attach to Article 15’s call for a ban on ‘‘inhuman or degrading treatment or punishment.’’ This 

legal phrase is identical to that used in the UNCRC, which has been authoritatively 

interpreted to ban any spanking by parents. It should be noted that Article 15 is 

not limited to persons with disabilities. It says ‘‘no one shall be subjected to . . . 

inhuman or degrading treatment.’’ This means that spanking will be banned entirely in the United States. 

4. Current reservations are insufficient to protect parental rights in education, 

which are almost universally matters of State law. 

It is true that the Foreign Relations Committee sought to address these concerns 

with an ‘‘Understanding’’ that ‘‘nothing in Article 7 requires a change to existing 

United States law.’’ However, in context, the term ‘‘United States law’’ is ambiguous. In normal usage, ‘‘United States law’’ refers to Federal law while State law 

is described as ‘‘the laws of the several states.’’ Since this Understanding only 

addresses ‘‘United States law’’ the supremacy of the treaty over State law is still 

unaddressed.

Of course, the vast majority of the law concerning the rights of parents over the 

education of their children is found in State law, not in Federal law. As such, this 

Understanding—as currently written—falls woefully short of providing any assurance to parents that they will remain the primary decisionmakers for their children’s education. 

Question. In your testimony, you point out that the CRPD Expert Committee has 

criticized some nations’ approach to disability rights. Do you have concerns that 

they will do so for the United States, despite our being the world leader on these 

issues? If so, do you think that having a ‘‘seat at the table’’ would allow us to better 

protect and advocate for American laws and standards? 

1. There is no doubt that the United States leads the whole world in providing 

appropriate access to persons with disabilities. 

But we lead, not because international law has required us to do so, but rather 

because we believe that every single person is endowed by our Creator with certain 

inalienable rights. It is that belief system, and not international law, which will continue to provide Americans with disabilities with any necessary changes to the law 

in the years ahead. 

2. Proponents of this treaty who offer RUDs contending that the United States is 

already fully compliant with this convention are actually working at cross-purposes 

to the goal of ‘‘leading’’ the international community. 

Professor Louis Henkin writing in the American Journal of International Law, 

cautions that ‘‘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.’’ 
121

Under such an approach, the United States ratification of the UNCRPD will not 

send any signal worth sending. The message will not be that other nations need to 

match our comprehensive package of State and Federal laws concerning the proper 

treatment of disabled persons. Rather, the message will be that treaties are for 

show and have no more impact than you want them to have. International law that 

is not translated into domestic law and practice is nearly worthless. I can think of 

no means of drafting a reservation that cures this huge defect. 

3. The way for the United States to continue to lead the world in this area is to 

ensure that American law and practice live up to the promises of the Declaration of 

Independence rather than the amorphous standards of the UNCRPD and its Expert 

Committee.

The United States should lead the world in only ratifying treaties with which we 

intend to fully, faithfully, and vigorously comply. We should not lead the world in 

cheap and compromised promises. 

Question. In your testimony, you stated your concern that the CRPD does not provide a concrete definition of ‘‘disability.’’ Please describe whether and how our obligations under the treaty might change over time as a consequence. How might we 

construct Reservations, Understandings, or Declarations (RUDs) sufficient to ensure 

against such an effect? 

Answer. 1. Because the UNCRPD provides no definition of ‘‘disability,’’ it is truly 

impossible to understand the scope of the undertaking of this treaty. 

2. The proposed Understanding which attempts to grapple with this fact—recognizing disabilities ‘‘insofar as they are recognized and implemented under U.S. Federal law’’—is ultimately impotent: 

a. At best, this understanding is a futile exercise in semantics. The cardinal rule 

governing treaty reservations, understandings, and declarations is that the reservation cannot be incompatible with the object and purpose of the treaty.3 The

UNCRPD’s purpose statement is intentionally broad and inclusive, and nothing in 

the treaty even suggests—much less States—that the domestic law of States parties 

are a valid basis for defining it. There is no way to tailor this understanding which 

overcomes this difficulty, while preserving its essence. 

b. As discussed above, because this understanding only addresses ‘‘United States 

law’’ the supremacy of the treaty over State law is still unaddressed. While Federal 

statutes exert some level of control over certain aspects of disability law, State 

action is hardly preempted, particularly as concerns the rights of parents over the 

education of their children. This Understanding—as currently written—falls woefully short of providing any assurance to parents that they will remain the primary 

decisionmakers for their children’s education. 

c. This ‘‘limitation’’ is ultimately no less fluid than the nondefinition given in the 

treaty itself. The limitation promised by the Understanding is subject to an exception—disability as recognized under ‘‘U.S. Federal law.’’ If this exception was limited 

to ‘‘existing U.S. Federal law’’ then we would know the extent of the undertaking. 

But since the word ‘‘existing’’ is missing from the treaty, we are left with an expanding definition of disability that represents a growing extent of Federal power over 

any arguable form of disability that is not currently regulated by the Federal Government.

d. This exception is for ‘‘U.S. Federal law’’ not ‘‘acts of Congress.’’ This administration is pushing the boundaries of the power to make federal law via Executive 

orders and other forms of administrative action. 

This ‘‘exception’’ robs this Understanding of any meaningful limitation on Federal 

power to enforce this treaty. Any future President can simply make an Executive 

order announcing a new, broad definition of disability and the United States would 

be bound thereby according to the terms of this Understanding. 

————————

End Notes 

1 Executive Report of the Senate Committee on Foreign Relations, Recommendation to Ratify 

Treaty Doc. 112–7, Convention on the Rights of Persons with Disabilities with 3 Reservations, 

8 Understandings, and 2 Declarations, 112th Congress, 2d Session (Ex. Rept. 112–6), July 31, 

2012, available at http://www.gpo.gov/fdsys/pkg/CRPT-112erpt6/html/CRPT-112erpt6.htm 

(accessed April 10, 2014). 2 U.N. Comm. Rights of Persons with Disabilities, ‘‘Concluding observations on the initial 

report of Argentina,’’ U.N. Doc. CRPD/C/ARG/CO/1 (Oct. 8, 2012) at 3–4 ¶ 17–18. 3 Vienna Convention on the Law of Treaties, ‘‘Opened for signature’’ May 23, 1969, Art. 19, 

1155 UNTS 331. 
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RESPONSES OF TIMOTHY MEYER TO QUESTIONS

SUBMITTED BY SENATOR BOB CORKER

Question. 1. The CRPD has an Expert Committee to evaluate whether parties are 

in compliance with the treaty. What role does the Committee play through its 

reporting process in influencing interpretations of the treaty’s obligations, particularly where it contemplates an ‘‘evolving’’ understanding of certain terms? Does that 

process pose any implications for the United States? 

Answer. As a matter of international law, the Committee on Disabilities does not 

have the authority to issue binding interpretations of the Convention on the Rights 

of Persons with Disabilities (‘‘CRPD’’ or ‘‘Committee’’). Rather, the Committee is 

authorized to ‘‘consider’’ reports made by parties to the CRPD about measures they 

have taken to implement the Convention. The Committee may also ‘‘make such suggestions and general recommendations on the report as it may consider appropriate.’’ CRPD art. 36(1). The Committee may also ‘‘make suggestions and general 

recommendations based on the examinations of reports and information received 

from the States Parties’’ to the U.N. General Assembly and Economic and Social 

Council. CRPD art. 39. It is also common practice for expert committees to issue 

‘‘general comments’’ which elaborate a committee’s interpretation of the treaty it is 

charged with implementing, a practice the Committee has continued.1

These interpretations, while not legally binding, still have what is referred to as 

a ‘‘soft’’ (or indirect) legal effect.2 This effect occurs when the Committee’s interpretations are given effect by other legal actors. Most obviously, other parties to the 

Convention may adopt the Committee’s interpretations of the Convention’s obligations as their own. Thus, if the United States were to ratify the CRPD, other states 

parties to the Convention might base their view of the United States obligations in 

part on how the Committee interprets those obligations. The Committee’s interpretations become, in effect, a focal point for giving content to the vague obligations 

contained in the CRPD. And the CRPD contains many vague obligations that require interpretation before they can be applied. Most notably, the CRPD ‘‘recognizes’’ in its Preamble that what constitutes a ‘‘disability’’ is ‘‘evolving.’’ The Committee thus has a role to play in influencing how other parties to the Convention 

view the definition of a disability, and thus the scope of the Convention. The U.S. 

Government will have to respond to and engage with the Committee’s interpretations to the extent that other parties to the Convention accept those interpretations 

as correct. Moreover, because expert committees do provide a focal point for shaping 

the expectations of parties about what constitutes compliance with a treaty, these 

committees have sometimes claimed that their interpretations of the treaties they 

are charged with implementing are entitled to ‘‘authoritative’’ weight.3

As set forth more fully below, if the United States ratified the Convention, it could 

cabin the role of the Committee in interpreting the United States obligations 

through a strong package of RUDs. These RUDs would achieve two purposes. First, 

they would clarify that the United States does not accept any legal obligations arising by virtue of any actions of the Committee. Second, they would clarify that the 

United States does not accept that the Committee’s interpretations of the Convention have any legal significance. Such a package of RUDs would clearly signal to 

both foreign states and domestic U.S. agencies and courts that the United States 

accepts no commitments with respect to, and is not bound in any way by, the Committee’s interpretations of the Convention. 

Question. 2. What role might the Committee’s reporting process play in the development of customary international law in matters covered by the CRPD? 

Answer. The Committee does not have the power to make customary international 

law. However, just as the Committee’s nonbinding interpretations of the Convention 

may in some circumstances influence how parties view their obligations under the 

Convention, so too can parties’ reactions to the Committee’s interpretation shape the 

development of customary international law, at least in principle. Customary international law ‘‘results from a general and consistent practice of states followed by 

them from a sense of legal obligation.’’ 4 States’ interactions with human rights committees constitute state practice that have the possibility of giving rise to rules of 

customary international law if states in general accept or begin to act in accordance 

with the Committee’s interpretations of international law. The formation of customary international law thus remains with states, but the Committee can use the 

opportunities the Convention gives it to interact with states to influence their views 

about customary international law. In effect, the Committee can act as a sort of 

agenda-setter. At the same time, however, states’ interactions with the Committee 

can also disrupt the formation of customary international law when the interactions 

make clear that states do not accept the Committee’s claims or interpretations of 
123

international law. The United States has used the opportunity to respond to the 

Human Rights Committee, for example, to make clear that it does not accept certain 

broad claims by the Human Rights Committee about the content of customary international law.5

Question. 3. Could such a body of law bind the United States or be enforceable 

in any way? 

Answer. Customary international law does not require that all states participate 

in the practice in order for an obligation to arise.6 Thus, in theory a country not 

party to a treaty or interacting with the committee could nevertheless end up bound 

by a customary international law obligation that arose based on the Convention’s 

obligations as interpreted by the committee. 

These rules of customary international law would still not be the basis for an 

action before an international court such as the International Court of Justice unless the United States consented to the jurisdiction of the court in some fashion. 

Moreover, I am aware of no legal authority that would provide a cause of action for 

a U.S. national in a suit against the United States or state governments in U.S. 

Federal Court for breaching a customary international law obligation.7 Finally, a 

state can protect itself from being bound internationally by a rule of customary 

international law to which it objects—under a doctrine known as the ‘‘persistent 

objector’’ doctrine—by monitoring the practices of other governments and objecting 

to being bound by a customary rule during the time the rule is forming.8

Question. 4. Does U.S. ratification of the treaty provide support to the obligations 

of the treaty, as interpreted by the Committee and other countries, becoming customary international law? 

Answer. Yes, it could. Having ratified the Convention, however, the United States 

would be bound by the obligations created therein as treaty obligations, and so 

whether they are also customary international law obligations would not affect the 

United States commitments internationally so long as the United States remained 

party to the CRPD. 

Customary international law ‘‘results from a general and consistent practice of 

states followed by them from a sense of legal obligation.’’ 9 Thus, each additional 

ratification could be used to support a claim that the rules created by a treaty are 

customary international law. Notably, though, customary international law does not 

require that all states participate in the practice in order for an obligation to arise.10

The CRPD has been ratified by 138 nations, so in practice the ratification of the 

United States may make little difference to whether the obligations found in the 

CRPD are thought to be customary international law by other nations. 

Moreover, if the United States ratified the CRPD it would be bound by the obligations therein, regardless of whether they are viewed as treaty obligations or obligations arising under customary international law. There are some instances in which 

a party to a Convention might distinguish between customary international law 

obligations and identical treaty obligations. For example, if a state withdrew from 

a treaty but the treaty’s substantive obligations had become customary international 

law, the state would still be bound by the substantive obligations in the treaty notwithstanding its withdrawal. Treaties such as the CRPD often provide monitoring 

mechanisms, such as reporting requirements, that do not become customary obligations, however. Withdrawal would still allow the United States to avoid reporting 

obligations, even if the substantive obligations were binding as customary international law. 

If ratified, concerns that the CRPD’s obligations would be viewed as customary 

international law by virtue of their inclusion in the Convention could be addressed 

through an understanding stating the United States position that the CRPD’s obligations are not customary international law by virtue of being included in the Convention, and a declaration that the United States does not view its ratification as 

created any customary international law obligations. I have provided possible language for such a RUD in response to question 6 below. 

Question. 5. Is it fair to say that without very strong and clear RUDs on these 

issues, that the Committee and its work—through courts and other parties to the 

Convention—could put significant pressure on U.S. laws, like the ADA? 

Answer. A strong and clear package of RUDs would ensure that the committee 

and its interpretations of the Convention are not the basis for a decision by U.S. 

courts interpreting the ADA or other federal statutes. A nonself execution declaration like the one included in the Transmittal Package would be sufficient to ensure 

that the Convention does not create a private cause of action in U.S. courts. Moreover, RUDs could make clear that the Committee’s interpretations are to be given 

no interpretative weight apart from the weight they are accorded by the States Par-
124

ties to the Convention. In question 6 below I suggest language for such possible 

understandings.

The Committee’s interpretations might still influence the views of other States 

Parties, and those Parties might still ask the United States to make changes to its 

laws based the Committee’s interpretations. The RUDs cannot control what other 

parties to the Convention do; they can provide direction to U.S. courts as to the obligations the United States would be undertaking were it to ratify the Convention, 

as well as clarify for other parties to the CRPD the commitments the United States 

is making. 

Question. 6. Could you provide possible RUD language that, if adopted, would 

insulate the United States against changing interpretations of our obligations under 

the treaty, as well as any customary international law that flows from the treaty, 

by anyone other than the United States Government? 

Answer. Yes. Last year when this Committee reported the CRPD to the full Senate, it included a proposed understanding stating: 

The United States of America understands that the Committee on the 

Rights of Persons with Disabilities, established under Article 34 of the Convention, is authorized under Article 36 to ‘‘consider’’ State Party Reports 

and to ‘‘make such suggestions and general recommendations on the report 

as it may consider appropriate.’’ Under Article 37, the Committee ‘‘shall 

give due consideration to ways and means of enhancing national capacities 

for the implementation of the present Convention.’’ The United States of 

America understands that the Committee on the Rights of Persons with 

Disabilities has no authority to compel actions by states parties, and the 

United States of America does not consider conclusions, recommendations, 

or general comments issued by the Committee as constituting customary 

international law or to be legally binding on the United States in any 

manner.11

This understanding could be supplemented in three ways to make clear that the 

United States does not recognize the authority of the Committee to interpret the 

Convention. First, the understanding could include a sentence stating that: ‘‘The 

United States further understands that the Committee’s interpretations of the Convention are not entitled to any legal weight apart from that given to them by States 

Parties to the Convention.’’ 

Such an understanding goes beyond the 2012 understanding by clarifying that the 

Committee’s interpretations are not due any deference by parties to the Convention. 

Such an understanding is consistent with the text of the Convention, which imposes 

no obligations on parties to adopt or agree with the Committee’s views on what the 

Convention requires. 

Second, the understanding could include a sentence making clear that the United 

States preserves its right to consent to any interpretations of the Convention, from 

whatever source, before they have any effect whatsoever in the United States. For 

example, a sentence might be added to the understanding stating that: ‘‘Moreover, 

the United States understands that no interpretation of the obligations of the 

Convention issued by the Committee or any other international institution can have 

binding legal effect with regard to the United States unless the United States 

consents to such an interpretation in accordance with its constitutionally required 

procedures.’’

This understanding makes clear that by joining the Convention the United States 

has not delegated any authority to any international institution to create legal obligations for the United States. It therefore preserves the primacy of the United 

States domestic lawmaking process in determining what international obligations 

bind the United States. 

Third, the United States could enter RUDs to make clear that it does not view 

any rules contained in the Convention to be customary international law by virtue 

of their inclusion in the Convention, and stating that it objects to the formation of 

rules of customary international law based solely on the Committee’s interpretations 

of the Convention. 

‘‘The United States understands that no obligations in the Convention 

amount to customary international law by virtue of their inclusion in the 

Convention. The United States declares that it does not ratify the Convention out of any sense of legal obligation to do so or recognition that any obligations contained in the Convention are customary international law by virtue of their inclusion in the Convention or the United States’ ratification 

of the Convention. Moreover, the United States objects to the formation of 

rules of customary international law based solely on interpretations of the 
125

Convention provided by the Committee on the Rights of Persons with Disabilities.’’

Such language makes clear that the United States does not believe the Convention affects customary international law. Moreover, it states clearly that the United 

States does not ratify the Convention out of a sense of legal obligation. State practice done out of a sense of legal obligation is a requirement for the formation of a 

rule of customary international law. This language thus makes clear that ratification by the United States should not be viewed as contributing to the formation of 

customary international law. Finally, the last sentence lays the foundation for the 

application of the persistent objector doctrine to the United States. As explained 

below, if the United States persistently objects to the formation of rules of customary international law, it cannot be bound by such rules. The proposed language 

enters a preliminary objection that could be followed by specific objections to interpretations provided by the Committee, as necessary. 

For the sake of clarity, I have also collected these possible RUDs at the end of 

this document. 

Question. 7. Please explain in greater detail the persistent objector doctrine and 

how it can be invoked or applied to ensure against new legal obligations for the 

United States from the development of customary international law, particularly in 

the case of the CRPD. Do objections have to be maintained against all actions of 

the Committee, or only those directed toward the United States? 

Answer. The persistent objector doctrine is a rule that is widely, but not universally, agreed to exist.12 It provides that a state may avoid being bound by a rule 

of customary international law if it consistently objects to the rule during the rule’s 

formation; i.e., prior to the time when the rule becomes firmly established as a rule 

of customary international law. The exception to the application of a rule of customary international law created by the persistent objector doctrine is a narrow one. 

As the International Law Association has written in an influential study on custom: 

There is fairly widespread agreement that, even if there is a persistent 

objector rule in international law, it applies only when the customary rule 

is in the process of emerging. It does not, therefore, benefit States which 

came into existence only after the rule matured, or which became involved 

in the activity in question only at a later stage. Still less can it be invoked 

by those who existed at the time and were already engaged in the activity 

which is the subject of the rule, but failed to object at that stage. In other 

words, there is no ‘‘subsequent objector’’ rule.13

A customary international law obligation binding on the United States can be 

formed on the basis of a consistent and general state practice done out of a sense 

of legal obligation. There is no requirement that the practice in question involve the 

United States or be directed at the United States. Customary international law 

rules are generally thought to bind even states that were not in existence when the 

rules were formed. Thus, if the United States found an interpretation by the Committee objectionable, the United States would have to object to it even if the interpretation was not directed toward the United States. 

Question. 8. Is it your understanding that only the executive branch has the ability to fulfill the persistent objector function for the U.S. Government, or may the 

persistent objector function also be fulfilled by the legislative branch (for example, 

via a House, Senate, or joint resolution, or even via less formal means)? 

Answer. In my view, Congress can play a role in objecting to the formation of customary international law. Congress can do this in several ways. First, including 

RUDs stating that the United States objects to the formation of customary international law based on the interpretations of the Committee as a condition of ratification would make clear the U.S. position regarding the role of the Committee. Second, Congress could use legislation to express the view of the United States Government that it objects to the formation of a particular rule of customary international 

law. Third, Congress could pass resolutions stating its objections to the formation 

of particular rules of customary international law. Such resolutions would likely be 

given less weight than RUDs or legislation, but would still provide evidence of the 

position of the U.S. Government on the formation of customary international law. 

This role for Congress in objecting to the formation of customary rules is consistent 

with the role branches other than the executive branch can play in the formation 

of customary international law. Legislation and judicial decisions can be the basis 

for the formation of customary international law, for example.14 I do not think it 

likely that less formal means of objecting to the formation of customary international law, such as floor statements, would be given much weight. 
126

Question. 9. What is the process in the United States for withdrawal of a reservation, understanding, and declaration? Can RUDs be drafted in such a way as to prevent their repeal or withdrawal in the future? 

Answer. The United States very rarely withdraws RUDs. RUDs can be withdrawn 

either by returning to the Senate for advice and consent to withdrawal, or through 

ordinary legislation passed by both Houses of Congress.15 In 1984, for example, 

President Reagan requested the advice and consent of the Senate to withdraw a reservation to the Patent Cooperation Treaty.16 Although President Reagan requested 

the advice and consent of the Senate, Congress responded by passing ordinary legislation implementing the portion of the Patent Cooperation Treaty that had been 

excluded by the reservation.17

I am aware of no authority for the proposition that the President can unilaterally 

withdraw a RUD made by the Senate as a condition of ratification.18 Presidents

have withdrawn from treaties entirely without seeking the advice and consent of the 

Senate.19 Withdrawing from a treaty to which the Senate previously gave its advice 

and consent, and withdrawing a reservation made a condition of the Senate’s advice 

and consent to ratification, are fundamentally different acts, however. The former 

terminates treaty obligations. The latter creates treaty obligations by removing a 

restriction made when the U.S. initially ratified the treaty. If the advice and consent 

of the Senate is necessary to the creation of an international legal obligation 

through a treaty, the same advice and consent should be necessary to its creation 

through the removal of a reservation.20

I do not believe it is possible to draft RUDs to prevent a future Congress and 

President from withdrawing them. One Congress cannot exercise its legislative 

power to bind a future Congress in how it exercises the same power. Likewise, the 

Senate and the President cannot exercise the Treaty Power in a way to bind future 

uses of that power. A RUD that purported to restrict a future Senate’s ability to 

give its advice and consent to withdrawal of the RUD, or a future Congress’ ability 

to withdraw it through implementing legislation, would restrict the use of a constitutionally authorized power (either the Treaty Power or Congress’s authority to 

legislate pursuant to one of its enumerated powers). RUDs cannot be used to change 

the constitutional allocation of authority, and therefore in my view such a RUD 

would be unconstitutional. 

Question. 10. Would any of the constraints or limitations on our obligations conceived in the preceding questions be construed as violations of the ‘‘object and purpose’’ clause of the CRPD, and thus incompatible with our ratification? Is there any 

body, such as the Committee or U.S. courts, that could conceivably have the authority to make such a determination? How might we construct Reservations, Understandings, or Declarations (RUDs) sufficient to ensure against such an effect? 

Answer. In my opinion, all of the RUDs that are part of the Transmittal Package 

and all those suggested here are consistent with the object and purpose of the 

CRPD. To my knowledge no U.S. court has ever struck down a RUD on the grounds 

that it violates the object and purpose of the treaty, or indeed for any reason at 

all.21 For the purposes of U.S. courts, RUDs are part of the law that the President 

and Senate make in creating a treaty. As such, U.S. courts could strike down a RUD 

as unconstitutional, just as they could strike down ordinary legislation. The Constitution prevails over inconsistent federal law, including treaties. But U.S. courts 

could not strike down a RUD as violating the object and purpose of the CRPD, 

because the RUD itself is part of the federal law created when the treaty is ratified. 

Rather, the court would be bound by the RUD just as it would be bound by a constitutional statute. Moreover, states are bound by the doctrine of pacta sunt 

servanda, which requires that parties to a treaty honor their commitments in good 

faith.22 In entering a RUD to a treaty such as the CRPD that incorporates the 

‘‘object and purpose’’ limitation on reservations expressly, the United States would 

be in effect stating that it believes in good faith that all of its reservations are compatible with the object and purpose of the treaty. A U.S. court would honor this 

judgment by the Senate and the President. 

The Committee would not have the authority to issue a legally binding ruling that 

a U.S. reservation is incompatible with the object and purpose of the CRPD. The 

Committee does not have the authority to make legally binding rulings. That does 

not necessarily mean that the Committee would not opine that a reservation is 

incompatible with the object and purpose of the treaty, as other human rights committees have done.23 And just as other interpretations by the Committee can have 

effect if they are persuasive to other parties to the Convention, so too an opinion 

by the Committee could potentially affect the views of other parties. Absent consent 

to the jurisdiction of an international court competent to make a binding determina-
127

tion, no other international tribunal would have jurisdiction to make a legally binding ruling. 

Other than drafting RUDs that the United States believes in good faith are compatible with the object and purpose of the treaty, I am unaware of any way to limit 

the chances that some entity—another party to the Convention, for example, or the 

Committee—will view U.S. RUDs as incompatible with the object and purpose. The 

United States could make clear, however, that its ratification of the Convention is 

contingent on the validity of its reservations. Professor Curtis Bradley suggested 

helpful language in his testimony before the Foreign Relations Committee: ‘‘The 

United States declares that its intention to be bound by this Convention depends 

on the continuing validity and effectiveness of its reservations, understandings, and 

declarations, except to the extent that such reservations, understandings, and declarations have been withdrawn by the United States pursuant to its constitutional 

processes.’’ 24

Question. 11. In recent years, federal courts, including the U.S. Supreme Court, 

have looked toward international law or other foreign courts’ decisions to help 

decide domestic federal cases. Are you concerned that the CRPD, and U.S. ratification, could be used to interpret domestic law in an inappropriate way? How might 

we construct Reservations, Understandings, or Declarations (RUDs) sufficient to 

ensure against such an effect? 

Answer. No RUD can guarantee that a U.S. court will not cite to foreign or international law. A wide range of federal judges and members of the Supreme Court 

have looked to foreign law and to the decisions of foreign courts regarding international instruments to which the United States is not a party. To provide but one 

recent illustrative example, in his dissent in United States v. Windsor Justice Alito 

cited to the absence of a deeply rooted tradition permitting same sex marriage in 

foreign countries to support his contention that same-sex marriage is not deeply 

rooted in the traditions of the United States.25

Having said that, the RUDs I suggest in response to question 6 above would provide additional direction to U.S. courts that preexisting federal laws are not meant 

to be interpreted in accordance with subsequent interpretations of the CRPD by 

non-U.S. entities. 

POSSIBLE ADDITIONAL RUDS

Regarding the Committee on Disabilities 

The United States of America understands that the Committee on the Rights of 

Persons with Disabilities, established under Article 34 of the Convention, is authorized under Article 36 to ‘‘consider’’ State Party Reports and to ‘‘make such suggestions and general recommendations on the report as it may consider appropriate.’’ 

Under Article 37, the Committee ‘‘shall give due consideration to ways and means 

of enhancing national capacities for the implementation of the present Convention.’’ 

The United States of America understands that the Committee on the Rights of Persons with Disabilities has no authority to compel actions by states parties, and the 

United States of America does not consider conclusions, recommendations, or general comments issued by the Committee as constituting customary international law 

or to be legally binding on the United States in any manner. The United States further understands that the Committee’s interpretations of the Convention are not 

entitled to any legal weight apart from that given to them by States Parties to the 

Convention.’’ Moreover, the United States understands that no interpretation of the 

obligations of the Convention issued by the Committee or any other international 

institution can have binding legal effect with regard to the United States unless the 

United States consents to such an interpretation in accordance with its constitutionally required procedures. 

Regarding Customary International Law 

The United States understands that no obligations in the Convention amount to 

customary international law by virtue of their inclusion in the Convention. The 

United States declares that it does not ratify the Convention out of any sense of 

legal obligation to do so or recognition that any obligations contained in the Convention are customary international law by virtue of their inclusion in the Convention 

or the United States ratification of the Convention. Moreover, the United States 

objects to the formation of rules of customary international law based solely on interpretations of the Convention provided by the Committee on the Rights of Persons 

with Disabilities. 
128

Regarding the severability of RUDs 

The United States declares that its intention to be bound by this Convention 

depends on the continuing validity and effectiveness of its reservations, understandings, and declarations, except to the extent that such reservations, understandings, and declarations have been withdrawn by the United States pursuant to 

its constitutional processes. 

————————

End Notes 

1See, e.g., Draft General comment on Article 12 of the CRPD—Equal Recognition before the 

Law; Draft General Comment on Article 9 of the CRPD—Accessibility, available at: http:// 

www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx. 2See generally Andrew T. Guzman & Timothy L. Meyer, ‘‘International Soft Law,’’ 2 J. Legal 

Analysis 171 (2010). 3See, e.g., Human Rights Committee, Summary of the 2380th Meeting, U.N. Doc. CCPR/C/ 

SR.2380 § 57 (July 27, 2006) (in which the Human Rights Committee asserts in a colloquy with 

the United States delegation that ‘‘its findings, while not legally binding, had considerable 

authoritative status.’’). 4 Restatement (Third) of Foreign Relations Law § 102(2) (1987). 

5See Observations of the United States of America on General Comment 24, in ‘‘Human 

Rights as General Norms and A State’s Right to Opt Out: Reservations and Objections to 

Human Rights Conventions’’ 201 (J.P. Gardner, ed. 1997). In its observations, the United States 

noted that the Human Rights Committee had ‘‘assert[ed] in a wholly conclusory fashion that 

a number of propositions are customary international law which, to speak plainly, are not. It 

cannot be established, for example, that the mere expression (albeit deplorable) of national, 

racial or religious hatred (unaccompanied by any overt action or preparation) is prohibited by 

customary international law.’’ Id. 6 Restatement (Third) of Foreign Relations Law § 102, comment b (1987) (‘‘A practice can be 

general even if it is not universally followed’’). 7This assumes that Congress has not passed a statute creating a cause of action based on 

a rule of customary international law, in which case the cause of action would be based on the 

statute, not customary international law. 8 Restatement (Third) of Foreign Relations Law § 102, comment d (1987) (‘‘[I]n principle a 

state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures.’’). 9 Restatement (Third) of Foreign Relations Law § 102(2) (1987). 

10 Restatement (Third) of Foreign Relations Law § 102, comment b (1987) (‘‘A practice can be 

general even if it is not universally followed’’). 11 Report of the Committee on Foreign Relations on the Convention on the Rights of Persons 

with Disabilities § 7 (July 31, 2012). 12 Curtis A. Bradley & Mitu Gulati, ‘‘Withdrawing from International Custom,’’ 120 Yale L.J. 

202, 204 (2010). 13 Int’l Law Ass’n, Comm. on the Formation of Customary (Gen.) Int’l Law, Statement of Principles Applicable to the Formation of General Customary International Law 27 (2000). 14For example, in the Arrest Warrant Case, the International Court of Justice examined 

national legislation and the decisions of national courts to determine whether customary international provided an exception to the rule granting immunity from criminal jurisdiction to certain foreign officials. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 

3, 24 (Feb. 14); see also Ingrid Wuerth, ‘‘Pinochet’s Legacy Reassessed,’’ 106 Am. J. Int’l L. 731, 

759 (2012) (noting that ‘‘national court decisions drove much of the change from absolute to 

restrictive immunity’’). 15Treaties are subject to the last-in-time rule, meaning that a subsequent statute prevails 

over a conflicting treaty. See e.g., Breard v. Greene, 523 U.S. 371, 376 (1998) (noting that ‘‘when 

a statute which is subsequent in time is inconsistent with a treaty, the statute to the extend 

of the conflict renders the treaty null.’’)(internal citations omitted). Thus, as a matter of U.S. 

domestic law, subsequent legislation can be used to modify treaty obligations. 16Message to the Senate Transmitting a Patent Cooperation Treaty, July 27, 1984, available 

at: http://www.reagan.utexas.edu/archives/speeches/1984/72784d.htm. 17See Act to authorize the United States to participate in chapter II of the Patent Cooperation 

Treaty, PL 99–616, 100 Stat. 3485 (Nov. 6, 1986). 18 Justice Scalia, concurring in United States v. Stuart, described the situation in this way: 

‘‘Of course the Senate has unquestioned power to enforce its own understanding of treaties. It 

may, in the form of a resolution, give its consent on the basis of conditions. If these are agreed 

to by the President and accepted by the other contracting parties, they become part of the treaty 

and of the law of the United States. 489 U.S. 353, 374–75. 19See Text of Diplomatic Notes to Russia, Belarus, Kazakhstan, and Ukraine (December 13, 

2001) (announcing the United States withdrawal from the Anti-Ballistic Missile Treaty); Goldwater v. Carter, 444 U.S. 996 (1979) (holding nonjusticiable a challenge to the President’s withdrawal from a mutual defense treaty with Taiwan). 20 Again, as a matter of domestic law Congress could achieve the same effect through ordinary 

legislation. 21See Curtis A. Bradley & Jack L. Goldsmith, ‘‘Treaties, Human Rights, and Conditional Consent,’’ 149 U. Pa. L. Rev. 399, 410 (2000) (‘‘In sum, since the early days of the nation, the President and Senate have attached a variety of conditions to their consent to treaties. No court has 

ever invalidated these conditions.’’). 22 Vienna Convention on the Law of Treaties art. 21. 
129

23 Human Rights Committee, General Comment 24 (52), General comment on issues relating 

to reservations made upon ratification or accession to the Covenant or the Optional Protocols 

thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/ 

Rev.1/Add.6 (1994). 24See Testimony of Professor Curtis A. Bradley, Hearing on the Convention in the Rights of 

Person with Disabilities, U.S. Senate Comm. On For. Rel. (Nov. 21, 213), available at: http:// 

www.foreign.senate.gov/imo/media/doc/BradleylTestimony.pdf 25 United States v. Windsor, 133 S.Ct. 2675, 2715 (2013) (Alito, J., dissenting) (‘‘Nor is the 

right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed 

same-sex couples to marry until the Netherlands did so in 2000.’’). 

RESPONSE OF DR. SUSAN YOSHIHARA TO QUESTION

SUBMITTED BY SENATOR BOB CORKER

Question. At the conclusion of the hearing on November 5, the chairman sought 

to address certain previous testimony of yours. You did not have the opportunity 

to respond. Would you please do so here? 

Answer. Senator Menendez in his summary said I implied that Colombia’s 2006 

high court decision referred to the Disabilities Committee. But my testimony is clear 

that this decision was prior to the formation of the Disabilities Committee. The 

importance of that court’s decision is not that any particular U.N. committee was 

cited, but that by citing any of the committees, a court—such as Colombia in 2006 

and Argentina in 2012—lends the nonbinding views of U.N. human rights committees the status of jurisprudence, when in fact those views have no such authority. 

This is germane to our discussion on the evolution of customary law, and how this 

treaty and the comments of the committee might reverberate in U.S. law. 

When the Colombia Constitutional Tribunal directed a liberalization of the 

national abortion law, the court’s majority referred to the comments of U.N. human 

rights treaty bodies regarding abortion (please see Constitutional Court of Columbia 

Decision C–355/06, 10 May 2006). What is particularly notable is that the Colombian court cited not just one but six committees, referring to ‘‘The obligatory nature 

of international treaties and the recommendations made by international organizations in relation to human rights, and particularly, in relation to the general criminalization of abortion,’’ and stating that ‘‘the recommendations made by the international authorities in charge of overseeing compliance by the States Parties, and 

particularly the recommendations made to the State of Colombia in relation to the 

subject of absolute criminalization of abortions, should be taken into consideration.’’ 

The Colombia court decision cited observations made by the Human Rights Committee (ICCPR), Committee on Economic, Social and Cultural Rights (ICESCR), The 

Committee on the Elimination of All Forms of Discrimination Against Women 

(CEDAW), Committee on the Rights of the Child (CRC), Committee of the International Convention on the Elimination of All Forms of Racial Discrimination 

(ICERD). Committee of the Convention against Torture and other Cruel, Inhuman 

or Degrading Treatment or Punishment (Convention against Torture, UNCAT). 

The Committee on the Rights of Persons with Disabilities was not in existence 

at that time, but in its brief history has already pressured two countries on abortion 

laws. This follows an unfortunate practice by the Committee on the Elimination of 

All Forms of Discrimination Against Women which has pressured more than 80 

countries to liberalize their abortion laws, the Human Rights Committee which has 

admonished more than a dozen countries to liberalize their abortion laws, the Committee on Economic and Social Rights which has pressed more than 10 countries 

to liberalize their abortion laws, and the Committee on the Rights of the Child and 

the Committee Against Torture which have also urged countries to liberalize their 

abortion laws.’’ 

The Argentine Supreme Court also cited the recommendations of international 

treaty monitoring bodies in its March 2012 decision partially liberalizing the country’s law on abortion (please see F., A.L. s/ media autosatisfactiva, F. 259. XLVI 

(Arg. Mar. 13, 2012), available on the Supreme Court of Argentina Web site at 

http://www.csjn.gov.ar/om/img/f259.pdf). The Court cited, on page 6 of its decision, 

the ‘‘Concluding Observations’’ of both the Human Rights Committee, which monitors state party progress under the International Covenant on Civil and Political 

Rights (ICCPR), and the Committee on the Rights of the Child (please see CCPR/ 

C/ARG/CO/4 of 22/03/2010, and CRC/C/ARG/CO/ 3–4 of 21/06/2010, respectively). 

What is particularly troubling is the way the Argentine Court refers to these committees—incorrectly—as ‘‘judicial.’’ This asserts that the nonbinding recommendations have a weight far beyond what was originally intended. 

While one panelist at the hearing asserted that having a U.S. representative on 

the Disabilities Committee might prevent such misinterpretations in the first place, 
130

history does not support this view. When in 2005 the Human Rights Committee incorrectly interpreted the ICCPR to tell Peru that its restrictive abortion laws represented ‘‘cruel, inhuman, and degrading treatment,’’ there was an American expert 

on the Committee. Not only that, but the U.S. representative chaired the committee 

at the time. (Please see Human Rights Committee, Eighty-fifth Session, ‘‘Views,’’ 

November 22, 2005 (CCPR/ C/85/D/1153/2003)). 

The United States would do well to avoid lending even more credibility to the 

committees by ratifying this treaty. 
131

LETTER FROM CATHOLIC FAMILY & HUMAN RIGHTS INSTITUTE SUBMITTED BY DR.

YOSHIHARA TO ACCOMPANY HER RESPONSE TO THE QUESTION
132

RESPONSES OF RICHARD THORNBURG TO QUESTIONS

SUBMITTED BY SENATOR BOB CORKER

Question. During your testimony, you informed the committee that you were surprised by the Federal Government’s application of the Chemical Weapons Convention to a domestic criminal prosecution (in Bond v. U.S., OT 2013, Docket No. 12– 

158, which is currently pending before the Supreme Court; see also 681 F.3d 149 

(3d Cir. 2012). You also stated, however, that you were not concerned about similar 

misapplication or overreach under the CRPD in the event the United States were 

to ratify that treaty, based on your anticipation that the Court will use the pending 

Bond case to reverse Missouri v. Holland, 252 U.S. 416, the seminal treaty power 

case that was decided in 1920. 

♦ Given the potential implications of the pending Bond case and the line of case 

law extending back to Missouri v. Holland, would it be prudent to wait until 

the Supreme Court renders its decision in Bond, in order to see what limits (if 

any) the Court places on the current expansive treaty power? 

♦ If it is not overturned, would you still recommend ratification? 

♦ In any outcome, how might we construct Reservations, Understandings, or Declarations (RUDs) sufficient to ensure against unintended consequences like 

this?

Answer. While it is difficult to predict how the Supreme Court will decide any 

particular case, it is not necessary to wait until the Court decides the Bond case

before proceeding to ratify the Disabilities Convention. Even in the unlikely event 

that the Court reaffirms or extends its earlier ruling on the nature of the Constitution’s Treaty Power, we can still proceed to ratification. The basis for this view is 

twofold: (1) the ability of the committee to craft an appropriate Federalism reservation; and (2) the fact that no new implementing legislation is needed to comply with 

the Disabilities Treaty, and existing implementing legislation—the ADA, the Rehabilitation Act, and other disability rights laws—do not rely upon the Treaty Power 

for their constitutional justification. 

I have no objection to revising the Federalism Reservation that this committee 

adopted last year so that it includes language that puts to rest any concerns about 

the potential impact of the Bond case.

Question. Are you concerned that the concept of disability is not clearly defined 

in the CRPD, but is instead an ‘‘evolving concept’’ that is subject to change over 

time? To the extent an evolving concept of disability is incompatible with the Americans with Disabilities Act’s firm, medical definition of disability, how might we construct Reservations, Understandings, or Declarations (RUDs) sufficient to ensure 

against conflict between possible future interpretations of the definition of disability 

in the CRPD and our own ‘‘gold standard’’ in the ADA? 

Answer. I am not concerned about the nature of the approach to the definition 

of disability in the Disabilities Treaty. In fact, I believe that the approach of the 

treaty and the flexibility it provides to nation states is a strength, not a weakness. 

In the preamble to the Disabilities Treaty, it ‘‘recognizes’’ that disability is an 

evolving concept that comes from the interaction of a person’s ‘‘impairment’’ (the 

treaty’s language) and attitudinal and environmental barriers. Thus the treaty is 

grounded, as is our ADA definition, in the concept of impairment. We have a 40- 

year history with the definition of disability for disability nondiscrimination legislation, starting with the Rehabilitation Act of 1973 and continuing to the ADA 

Amendments Act of 2008. Our definition covers those with a current impairment, 

those with a history of an impairment or those who are regarded as having an impairment, even though they may not have one. Thus a woman who has recovered 

from breast cancer and is now cancer-free cannot be discriminated against because 

of her history of breast cancer when she applies for a job. We will be able to use 

our own definition of disability to implement the Disabilities Treaty. 

Last year the committee included an understanding that said that the term ‘‘disability’’ would be defined under the treaty coextensively with the definition under 

relevant United States law. I believe that a similar understanding in this year’s 

ratification package that ties the treaty definition of disability to the definition in 

U.S. disability nondiscrimination law should relieve any concerns about the definition of disability. 
133

NOVEMBER 5, 2013, OP-ED BY DR. BILL FRIST

SUBMITTED BY SENATOR BARBARA BOXER

WHY THE U.S. MUST LEAD ON DISABILITIES TREATY

In an HIV clinic in Africa, a man born deaf holds a single sheet of paper with 

a plus sign. He looks for help, but no one at the clinic speaks sign language. In fact, 

the staff doesn’t seem interested in helping him at all. 

He returns to his plus sign. These are his test results. They dictate he should 

start antiretroviral drugs immediately and should also make changes in his sexual 

habits. But he doesn’t know this. He leaves the clinic concluding that the plus sign 

must mean he’s okay, that everything is just fine. 

This scenario seems shocking. Yet it continues to play out around the world. The 

Senate will tackle this issue at the November 5 in hearings on the Convention on 

the Rights of Persons with Disabilities (CRPD)—the Disabilities Treaty. 

There are nearly 1 billion people worldwide living with a disability. For the sake 

of those individuals, the United States joined 158 other countries in signing the 

Convention on the Rights of Persons with Disabilities in 2009. The Disabilities 

Treaty was drafted to promote and protect the human rights and fundamental freedoms of persons with disabilities—modeled on our own Americans with Disabilities 

Act, but on a global scale. 

Yet the Senate failed to ratify the U.N. treaty last December. As is often the case, 

a bit of politics and a bit of misinformation ruled the day. 

First, the timing was bad. The vote was called in a lame duck session and many 

senators said this was an inappropriate time to ratify a U.N. treaty, signing a letter 

to that effect. But this was not the entire story. 

Two larger political issues emerged. Republicans exhibited some squeamishness 

around the term ‘‘sexual and reproductive health’’ in the treaty. While the term is 

undefined, there were rumblings that it could create a global right to abortion. 

The second issue was an impressive fear campaign launched by Michael Farris 

of the Home School Legal Defense Association to convince parents that the U.N. 

treaty would limit their ability to educate their disabled children at home. 

The relevant provisions in the treaty regarding sexual and reproductive health 

demand non-discrimination for persons with disabilities. 

In many parts of the world, people with disabilities, regardless of age, are believed 

to be sexually immature or inactive. The assumption can make them targets for 

rape and other sexual crimes while, at the same time, gynecologic and obstetrical 

care are withheld and considered inappropriate and unnecessary. In other cases, 

they are forcibly sterilized or forced to have abortions, simply because they have a 

disability.

The treaty’s ‘‘sexual and reproductive health’’ language is a necessary provision 

to protect these people. It does not define services—a ratifying country’s existing law 

provides the definition. The agreement simply demands that those with disabilities 

not be denied any treatments based on their disability. 

It does not create any new services not previously available or legally sanctioned 

in an adopting country. 

For the home schooling debate, the story is more complicated. The Americans with 

Disabilities Act—on which the international agreement is modeled—has a strong 

history of Republican support. 

Consider, the disabilities act was signed into law by President George H.W. 

Bush—passed with a 76 to 8 vote in the Senate. President George W. Bush negotiated the CRPD treaty in 2006. Senator John McCain (R–Ariz.) and former Senate 

Majority Leader Robert Dole, who had each suffered serious war injuries, were significant supporters. Senator Jerry Moran, a Republican from Dole’s home state of 

Kansas, also initially supported it. 

The tide turned, however, at a Senate Foreign Relations Committee hearing on 

July 12, 2012. Farris, president of the home-schooling organization, claimed in testimony that the U.N. treaty was ‘‘dangerous’’ for parents who teach disabled children 

at home. He asserted that it will create a legal basis for the United Nations to infringe on the fundamental parental rights of parents of disabled children. 

In a radio interview after the hearing, Farris stated ‘‘[t]he definition of disability 

is not defined in the treaty and so, my kid wears glasses, now they’re disabled; now 

the U.N. gets control over them.’’ 

It sounded terrifying. 

Then-Foreign Relations Committee Chairman John Kerry dismissed Farris’s argument out of hand. But the home-schooling organization has an impressive grassroots machinery. 
134

Within a few weeks, Farris’s argument spread. Senator James Inhofe (R-Okla.) 

and then Senator Jim DeMint (R–S.C.) wrote an op-ed article for The Washington 

Times stating the treaty would infringe on U.S. sovereignty. Farris’s group began 

a phone campaign to all senators who might be a potential nay votes—specifically 

targeting the Kansas senators. Senator Rick Santorum, a parent of a disabled child, 

adopted Farris’s argument as well. 

The probable nail in the coffin was when Moran changed his position to align with 

HSLDA.

But despite the successful political maneuvering of Farris’s home-schooling organization and its capture of many Tea Party senators, careful reading of the law 

reveals their arguments were a misinterpretation. 

U.S. ratification of the treaty does make the agreement a U.S. law, along with 

the Senate’s reservations, understandings and declarations (RUDs). However, these 

RUDs make it clear that current U.S. law—the Americans with Disabilities Act— 

meets any U.S. obligation under the treaty. In fact, the ADA and related disability 

laws far exceed the standards set out in the U.N. treaty. Ratifying the agreement 

will not affect current enforcement of the ADA or create additional causes of action 

under the treaty. The Americans with Disabilities Act would remain the controlling 

U.S. law. 

The U.N. experts committee cannot make international law and therefore cannot 

create new international obligations. The committee can make suggestions for 

improvement during a review process. But these recommendations are just that— 

recommendations. The United Nations will have no ability to swoop in and poach 

parental control over the education of children with disabilities in the United States. 

Some still argue that the United States has no need to ratify the U.N. treaty. The 

Americans with Disabilities Act, they insist, already protects the rights of those 

with disabilities at home. But as a global leader, we must stand with those struggling for the rights that we hold dear. 

These are complicated issues revolving around potentially esoteric points of international law. Given this complexity, many senators felt the previous hearings were 

rushed and that they did not have enough detail to make an informed decision. The 

set of hearings scheduled for November 5 and 12 will be different. Both witness lists 

have a deep bench of experts—legal, administrative and activist alike. Now is the 

time to really unpack what this U.N. treaty would mean for Americans and the 

world.

Voting no to this treaty without a specific and compelling reason is saying that 

we do not think the global community deserves an ADA of their own. 

U.S. leadership matters. We should be at the table. It is not just Americans who 

deserve healthcare and protection from discrimination. It is everyone. 

LETTER SUBMITTED FOR THE RECORD BY SUSAN YOSHIHARA

NOVEMBER 5, 2013 

Hon. ROBERT MENENDEZ, Chairman,

Hon. BOB CORKER, Ranking Member, 

Committee on Foreign Relations, 

Dirksen Senate Office Building, 

Washington, DC. 

Re United Nations CRPD. 

DEAR CHAIRMAN MENENDEZ AND RANKING MEMBER CORKER: We write to you 

today to strongly urge you to oppose U.S. ratification of the U.N. Convention on the 

Rights of Persons with Disabilities (CRPD). There are multiple grounds for opposing 

the Convention. 

First, the CRPD will not help a single American with a disability. America 

already has the best laws in the world protecting the lives and rights of our people 

with disabilities. This treaty adds not a single protection not already provided by 

the Americans with Disabilities Act and panoply of other federal laws. 

Proponents of the CRPD are making reckless claims that it will help American 

veterans with disabilities when they travel overseas. The proposition is that States 

Parties to the CRPD are not currently implementing it and that they are only waiting for U.S. ratification before doing so. In their view, the only thing preventing 

Ecuador from building wheelchair ramps is U.S. ratification. There is absolutely no 

evidence for this assertion. Proponents of the CRPD are making promises to our 

heroic servicemen that they cannot keep. To make such empty promises to our 

wounded warriors is deeply offensive. 
135

Second, the CRPD does not advance U.S. global leadership on disability rights. 

The U.S. leads the world on the legal protection of persons with disabilities and 

their rights. The U.S. Agency for International Development funds and implements 

programs all over the world to advance the protection and rights of persons with 

disabilities. This leadership role has not and will not diminish absent U.S. ratification of the CRPD. No other country does as much as we do in helping persons with 

disabilities in other countries. It is laughable to suggest that foreign countries will 

reject our financial and technical assistance because we are not a party to the 

CRPD.

Third, American manufacturers of products designed for persons with disabilities 

will continue to lead the world regardless of whether or not the U.S. joins the 

CRPD. Proponents’ claims that foreign countries will reject our technology and products because we have not ratified the CRPD are baseless. There is not a scintilla 

of evidence to suggest that U.S. manufacturers are being blocked because the U.S. 

has not ratified the CRPD. In any event, the United States, when it does join 

human rights treaties, does so for the purpose of advancing human rights, not to 

advance its commercial interests. 

Fourth, the U.S. should not submit itself to yet another U.N. treaty monitoring 

body. The U.N. human rights treaty monitoring system is a mess. The treaty monitoring bodies have taken it upon themselves to radically reinterpret the language 

of human rights treaties and then insist upon compliance by States Parties. These 

bodies have largely been taken over by ideologues that advance a radical agenda 

often at odds with American social, cultural, and legal norms. 

Fifth, Article 7 in the CRPD violates the rights of parents by giving bureaucrats 

the authority to decide what is best for children with disabilities. 

Finally, many of us are deeply concerned that the CRPD is the first hard law 

treaty to include the phrase ‘‘reproductive health.’’ Though the CRPD treats the 

phrase in terms of nondiscrimination, we are nonetheless concerned. The phrase 

‘‘reproductive health’’ is used by U.N. agencies, U.N. treaty monitoring bodies and 

by pro-abortion activists as including abortion. In fact, the World Health Organization defines ‘‘reproductive health’’ as including ‘‘fertility regulation’’ which includes 

abortion. The phrase is dangerous and should be rejected. 

We urge you in the strongest possible terms not to give your consent to ratification of the CRPD. 

Yours sincerely, 

Austin Ruse, President, C–FAM 

Alan Sears, President, Alliance Defending Freedom 

Tony Perkins, President, Family, Research Council 

Michael P. Farris, JD, LLM, Chairman, Home School Legal Defense Association 

Senator Rick and Karen Santorum, Cofounders, Patriot Voices 

Penny Nance, CEO & President, Concerned Women for America Legislative Action 

Committee

Melissa Ortiz, Founder & Principal, Able Americans 

D. Brian Scarnecchia, M.Div., J.D., Associate Professor, Ave Maria School of Law, 

President, International Solidarity and Human Rights Institute, Inc., In consultative status with the United Nations 

Bob Lalonde, International Director, Priests for Life 

Phyllis Schlafly, Founder and President, Eagl Forum 

Mathew Staver, Founder and Chairman, Liberty Counsel 

John Fonte, Ph.D., Senior Fellow, Hudson Institute 

Tom McClusky, Vice President of Government Affairs, March for Life 

Bradley Mattes, President, International Right to Life Federation 

Dr. Keith Wiebe, President, American Association of Christian Schools 

Thomas W. Jacobson, President, International Diplomacy and Public Policy Center 

Manuel Gonzalez, M.D., President, Catholics Called to Witness 

Karen Malec, President, Coalitionon Abortion/Breast Cancer 

Katharine Cornell Gorka, Executive Director, The Westminster Institute 

Sharon Slater, President, Family Watch International 

Tom Kilgannon, President, Freedom Alliance 

Janice Crouse, Senior Fellow, Beverly LaHaye Institute/Concerned Women for 

America

Nathan Mehrens, President, Americans for Limited Government 

Laura Bunker, President, United Families International 

Judie Brown, President, American Life League Inc. 

Patricia McEwen, Ph.D., Director, Life Coalition International 

Ron Pearson, President, Council for America 

Jim Backlin, VP for Legislative Affairs, Christian Coalition of America 
136

Jo Brinck, President, Sanctity Life Foundation 

Tim Wildmon, President, American Family Association 

Maria McFadden Maffucci, President, Human Life Foundation 

Dana Cody, President and Executive Director, Life Legal Defense Foundation 

Rev. James R. Harden, Founder and COO, Commission for Reproductive Health 

Service Standards 

Jim Martin, Chairman, 60 Plus Association 

Brent Bozell, Chairman, ForAmerica 

Jo Tolck, Executive Director, Human Life Alliance 

Gary Marx, Executive Director, Faith & Freedom Coalition 

Joshua Duggar, Executive Director, Family Research Council Action 

Jim Bentley, Executive Director, Parentalrights.org 

Jeff White, Executive Director, Survivors of Abortion Holocaust 

Susa Yoshihara, Ph.D., Senior VP for Research, C–FAM 

Adriana Gonzalez, Vice President, Catholics Called to Witness 

Donna Harrison, Ph.D., Executive Director and Director of Research and Public Policy, American Association of Pro-Life Obstetricians and Gynecologists 

Gerard M. Nadal, Ph.D., Executive Director, Children First Foundation 

Leonard Leo, Former U.S. Delegate, U.N. Human Rights Council 

Lisa Nancollas, Mifflin County Tea Party Patriots 

Paul Caprio, Director, Family Pac Federal 

Samuel B. Casey, Managing Director & General Counsel, Law of Life Project 

LETTER SUBMITTED FOR THE RECORD BY SENATOR JOHN BARRASSO

OCTOBER 16, 2013 

Hon. Robert Menendez, Chairman,

Hon. Bob Corker, Ranking Member, 

Senate Foreign Relations Committee, 

U.S. Senate, Washington, DC. 

DEAR CHAIRMAN MENENDEZ AND RANKING MEMBER CORKER: I am writing to urge 

you and your fellow members of the Senate Foreign Relations Committee to report 

favorably and promptly to the Senate a resolution supporting U.S. ratification of the 

Convention on the Rights of Persons with Disabilities. 

The disabilities treaty is a crucial tool for recognizing and upholding the rights 

of one billion people—including our own disabled veterans—with disabilities around 

the world. This is why the American Legion, VFW, and many other prominent veteran’s organizations have called upon your committee to support the treaty. Seven 

hundred disability, faith, and business organizations across the United States support it, as well as veterans on your committee. I join them in endorsing the treaty— 

and, in so doing, rejecting claims that U.S. ratification will somehow compromise 

our nation’s sovereignty. 

The treaty promotes fairness and equality in education, work, and recreation. It 

calls for the inclusion of people with disabilities in the mainstream of society. It also 

recognizes the importance of keeping families, including family members with disabilities, together at home in their own communities. Many of these concepts were 

enshrined in U.S. law through passage of the Americans with Disabilities Act in 

1990. The United States has always been at the forefront of the global movement 

for disability rights. Disability organizations and governments abroad look to our 

disability rights legislation as a model for their countries’ nascent laws. If the Senate does not approve this treaty, the United States will continue to be excluded from 

the most important global platform for the implementation of best practices in disability rights abroad. 

To date, 137 countries have ratified the disabilities treaty. In New York each September, delegates from these nations participate in the annual Conference of States 

Parties and share new ideas for strengthening the rights of people with disabilities 

around the world. The United States should not be missing this vital opportunity 

to sit and play a leadership role at the world’s largest table for countries trying to 

improve the lives of their citizens with disabilities. 

I therefore urge the Senate to provide its advice and consent for the United States 

to ratify the disabilities treaty at the earliest possible date. Thank you for consideration.

Sincerely,

GEN. COLIN L. POWELL,

USA (Ret). 
137

LETTERS AND ARTICLES SUBMITTED FOR THE RECORD

BY SENATOR ROBERT MENENDEZ

U.N. DISABILITIES TREATY DOES NOT CREATE ABORTION RIGHTS

Abortion has not been smuggled into international law by hiding under the banner 

of ‘‘sexual and reproductive health.’’ 

(BY AUSTIN RUSE AND PIERO A. TOZZI)

Late week, United States signed the Convention on the Rights of Persons with 

Disabilities—the first binding United Nations treaty to mention ‘‘sexual and reproductive health.’’ The term has provoked concern among pro-lifers, who worry that 

it creates an implicit right to abortion. Let us emphatically state: It does not. 

There is some confusion about U.N. documents related to abortion—and the proponents of abortion like it that way. Their strategy is to claim that terms like 

‘‘reproductive health’’ mean abortion, and, by dint of repetition, get people to believe 

that it does. Pro-abortion groups claim ‘‘reproductive health’’ means abortion, and, 

most famously, so does U.S. Secretary of State Hillary Clinton, but that is not how 

the term is used in any negotiated U.N. document. 

Take the Disabilities Convention. The term was debated extensively, and it was 

clear throughout negotiations that ‘‘sexual and reproductive health’’ did not include 

abortion. This was recognized repeatedly by the Chairman, who said that no new 

rights—and specifically no right to abortion—were created. Indeed, the official 

report of the proceedings stated that ‘‘this phrase was not intended to alter or prejudice the general policies of governments,’’ thus acknowledging that countries are 

free to keep their laws protecting the unborn in place. 

At least 15 nations made statements that the phrase did not create a right to 

abortion. The U.S. in its closing statement affirmed that the term ‘‘cannot be interpreted to constitute support, endorsement, or promotion of abortion.’’ 

Yet this history is sometimes lost. Pro-lifers do the unborn a disfavor when they 

start repeating the talking points of the other side. Articles have appeared in the 

pro-life press recently saying that the Disabilities Convention ‘‘establishes an international right to abortion.’’ It does no such thing, and nothing pleases groups like 

the Center for Reproductive Rights and International Planned Parenthood Federation more than to have our side repeat their revisionist narrative. 

For rewriting the history of U.N. conferences is part of the strategy pro-abortion 

groups adopt. Take, for example, the International Conference on Population and 

Development, held in Cairo in 1994. This conference was a victory for pro-lifers, who 

beat back a concerted attempt by the Clinton Administration and their European 

allies to establish a right to abortion. Yet following defeat, the other side has tried 

to rewrite the story as a victory for abortion rights. 

This is false for a number of reasons, and pro-lifers should arm themselves with 

facts to rebut their claims. The document produced at Cairo is not a treaty and is 

not binding. The Cairo document states explicitly that it created no new rights, so 

no ‘‘right to abortion’’ can be found there. Terms like ‘‘reproductive rights’’ and 

‘‘reproductive health’’ are indeed mentioned, but their definitions do not include 

abortion. In two places the document states that in ‘‘no case should abortion be used 

as a method of family planning,’’ and, most importantly, it acknowledges explicitly 

the sovereign right of states to legislate on the subject: ‘‘Any measures or changes 

related to abortion within the health system can only be determined at the national 

and local level according to the national legislative process.’’ 

Does this mean that pro-lifers should be unconcerned about the United States 

signing the Disabilities Treaty, and the planned efforts to make it binding on us by 

ratifying it? 

No, pro-lifers should be concerned with Disabilities as with any treaty, because 

even though the Disabilities Convention does not create a right to abortion, it does 

create a committee to monitor compliance with its terms. U.N. compliance committees are often staffed with radicals who favor abortion, and, in their nonbinding 

advisory recommendations, will hector countries about changing their laws protecting life. They will claim that where the Disabilities treaty refers to ‘‘sexual and 

reproductive health,’’ it is referring to abortion, though this was emphatically not 

what countries intended to do when they negotiated, signed and ratified the treaty. 

Members of compliance committees should not be reinterpreting the meaning of 

words to claim ‘‘reproductive health’’ means abortion when that was not the intention. This holds equally true for pro-lifers, who should be the last people to want 

to aid and abet the strategy of the other side by repeating their false claims. 
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PATTON BOGGS MEMORANDUM
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XIII.—ANNEX II.—TRANSCRIPT OF HEARING HELD ON NOVEMBER

21, 2013, WITH ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

CONVENTION ON THE RIGHTS OF 

PERSONS WITH DISABILITIES 

THURSDAY, NOVEMBER 21, 2013 

U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, DC. 

The committee met, pursuant to notice, at 9:34 a.m., in room 

SD–G50, Dirksen Senate Office Building, Hon. Robert Menendez 

(chairman of the committee) presiding. 

Present: Senators Menendez, Cardin, Shaheen, Coons, Durbin, 

Udall, Murphy, Kaine, Markey, Corker, Rubio, Johnson, Flake, 

McCain, and Barrasso. 

OPENING STATEMENT OF HON. ROBERT MENENDEZ, 

U.S. SENATOR FROM NEW JERSEY 

The CHAIRMAN. Good morning. This hearing of the Senate Foreign Relations Committee on the Convention of the Rights of People with Disabilities will come to order. 

Let me first start off by thanking Secretary Kerry for being with 

us today for this second hearing on the ratification of the CRPD, 

and, Mr. Secretary, first, I think you have the thanks of all of us 

on the committee for the incredible work that you have been doing 

on behalf of our country across the globe. And your presence here 

today sends a strong message about the importance of this issue. 

So we appreciate you taking the time to come back to the committee that you chaired to support the treaty. 

We convened the second hearing on ratification of the treaty, 

having received the enthusiastic support of literally thousands of 

people and organizations, all of whom with letters, petitions, and 

various statements for the record are looking for us to finally take 

the treaty over the finish line. We have received compelling letters 

of support from companies like Adobe, Coca-Cola, DirecTV, 

NASCAR, and the Consumer Electronics Association, with over 

2,000 member companies, the U.S. Chamber of Commerce, and I 

believe the Chamber is represented in our audience here today, as 

is the U.S. Business Leadership Network, which submitted a letter 

from over 50 companies in support of the treaty, including Microsoft, IBM, AT&T, Merck, J.P. Morgan, and Northrop Grumman, to 

mention a few. 

I also want to recognize former President and CEO of the Financial Services Roundtable, Steve Bartlett, who is here. When he was 

in the House, he was a leader of the effort to pass the Americans 

with Disabilities Act, and we appreciate his presence. 

And we have received individual letters from 84 nonprofit disability and religious organizations like the Red Cross, Easter Seals, 

the National Federation for the Blind, and Special Olympics, to 
148

name a few, not to mention sign-on letters representing over 1,000 

different groups. 

We have heard from individuals, some not so well known and 

some very well-known citizens, like Colin Powell; Chinese human 

rights activist Chen Guangcheng; Special Olympics athlete Loretta 

Claiborne; I. King Jordan, President Emeritus of Gallaudet University, who wrote: ‘‘Nothing is more American that recognizing equal 

opportunity for all citizens.’’ And I think at the end of the day, Dr. 

Jordan’s simple but compelling statement is the sum and substance 

of why we must ratify the treaty. 

And we have several petitions that have been organized by different groups with a total of over 67,000 signatures. 

And let us not forget what this treaty means to veterans. We 

have received letters of support from 15 veterans’ organizations, 

including the American Legion, representing 2.4 million veterans, 

and the Veterans of Foreign Wars, with 1.5 million members. And 

I would also like to recognize the National Commander of the 

American Legion, Dan Dellinger, who is here with us today. Everyone who supports the treaty is pleased with the resolution the 

American Legion passed in August at your national convention, 

and we thank you not just for that, but on behalf of a grateful 

Nation to all of you who have served, thank you very much. 

We are also deeply honored to have so many of our wounded 

warriors of all generations, including those from the Iraq and 

Afghanistan Veterans of America. Thank you for taking the time 

to show your support. You certainly have ours, which is one reason 

we should ratify this treaty as soon as possible. We salute you, and 

we thank you for your service and your sacrifice. And I am told we 

will soon receive a letter of support from several former Secretaries 

of Defense. 

At the end of the day, the support from the U.S. military and 

veterans’ community has truly been overwhelming. And so I move 

that all of the petitions, letters, and written statements of support 

we have received be entered into the record to reflect the extraordinary depth of the support for the treaty that it has from thousands of Americans on both sides of the aisle and every walk of life. 

Without objection, so ordered. 

Let me conclude by saying that at the end of the day, ratification 

of the Convention of the Rights of People with Disabilities is simply 

the right thing to do. I repeat Dr. Jordan’s simple message, eloquent nonetheless, is: ‘‘Nothing is more American than recognizing 

equal opportunity for all of our citizens.’’ 

With that, let me turn to the distinguished ranking member of 

the committee. I particularly want to thank him for working with 

me on a process forward to have very substantive discussions about 

what the treaty means, what it can achieve, what are some of the 

concerns of members both of the committee and beyond, and it has 

been an extraordinary effort to work with you. 

Senator Corker. 

OPENING STATEMENT OF HON. BOB CORKER, 

U.S. SENATOR FROM TENNESSEE 

Senator CORKER. Thank you, Mr. Chairman. I do appreciate the 

tone that you have set in your leadership and the committee mem-
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bers have set in separating and ensuring that those things we do 

beyond our shores are done in the most bipartisan way possible. 

And I really do appreciate the way the committee has worked 

together. I want to thank Secretary Kerry for being here today. 

And as I mentioned to some of the leading advocates just a 

minute ago, I think the ratification of this treaty really rests solely 

on the administration’s willingness to ensure that this treaty has 

no effect on domestic law. No effect. The meetings we have had 

thus far with the administration officials have been pleasant but 

unsatisfying in that as concerns are raised, the administration so 

far has not shown a willingness to try to accommodate those. So 

I am glad that the Secretary is here. 

I am really so proud of the people who are here and the efforts 

that they have led over the last several decades to advance ADA 

and so many other significant measures that have had such a positive effect on the disability community. It has been outstanding. I 

think the hearing that we had last year may have been one of the 

most moving hearings that I have participated in, as we had Senators McCain and Harkin out front with many others talking about 

the many, many strides that have taken place. And I really do 

think that was one of my high marks here in the Senate. 

At the same time, people have said that ADA is the implementing language, that there are no further steps that need to be 

taken domestically. We just had a case, the Bond case—and I know 

there has been some dispute over its implications, but it is a case 

that significantly points out how the Supreme Court or courts can, 

in fact, take into account treaties to affect domestic law. We saw 

where a woman in Pennsylvania actually was being convicted 

because of a treaty that we had relative to chemical weapons. And 

I know that some on the committee have stated that the reason for 

that was that Congress passed implementing language. I thought 

that was an interesting argument. 

But even after this treaty passes, another Congress can pass 

implementing language, and when that occurs, it does expand the 

limits of what we now have at the Federal Government level relative to federalism and other types of issues. 

So I will just say to the Secretary, as he begins to testify, I would 

love to see the advancement of rights for the disabled. I would love 

to see that happen. I would love to see America continue to play 

a role in advancing those kinds of things. But as I just mentioned, 

it is absolutely incumbent on the administration to agree to very 

difficult language that absolutely assures in every single case that 

a treaty like this will not infringe upon federalism and other kinds 

of issues that are very important, I think, to people on both sides 

of the dais. So I hope that this hearing will be more about substance and less about cheerleading, and I hope that the Secretary’s 

testimony will reflect that and his answers to the questions. 

So I thank you all for being here. I appreciate the chairman having this hearing. I look forward to a substantive hearing, as he 

alluded to. I appreciate all the witnesses who have come here 

today.

The CHAIRMAN. Mr. Secretary, the floor is yours. 
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STATEMENT OF HON. JOHN F. KERRY, SECRETARY OF STATE, 

U.S. DEPARTMENT OF STATE, WASHINGTON, DC 

Secretary KERRY. Well, thank you. Mr. Chairman and Ranking 

Member Corker, and members of the committee, thanks very, very 

much for welcoming me here to talk about the disabilities treaty, 

which I am very anxious to do, mindful of the comments of the 

ranking member just now. 

I would just start off by saying we are 100 percent prepared, as 

we have been, to work through what are known as RUDs, or the 

reservations, understandings, and declarations, in order to pass 

this treaty. That is our goal. You know, we begin with a place that 

makes it clear that we do not believe this has impact, but we are 

happy to restate and reassert the law in ways that make Senators 

feel comfortable, obviously. We want to pass this. 

It is not lost on any of us that only 11 months ago the Senate 

fell just five votes short of approving this treaty. So more than 60 

Senators have already resolved in their minds many of the questions that are reraised again and again. And we can go into them 

today, as I am sure we will. 

Obviously, that day when we fell those five votes short with a 

number of people who had previously been going to vote for it, then 

changed, so it is even closer—that was a rough day for a lot of us 

who support the treaty, including Senator McCain who is hardly a 

newcomer to this issue and is one of the strongest, most eloquent 

voices for why we ought to be doing this, for why, to put it bluntly, 

this treaty is in America’s interests. 

In the after-action conversations that I had with many Senators, 

both Republicans and Democrats alike, including a number who 

had voted against the treaty, yourself, Senator Corker, and others, 

I even heard some real regret about what had transpired and the 

unintended message that the outcome sent to Americans with disabilities, as well as to other people around the world. And I heard 

from many, not just a willingness, but a hope that they would have 

the chance in a new Congress to take up the treaty again and to 

demonstrate the important truth that Senators from both sides of 

the aisle care deeply about the rights of people with disabilities. 

So, thank you, Chairman Menendez, for your comments this 

morning, for your leadership in bringing the first hearing and 

being willing to come back at this important treaty, and thank you, 

Ranking Member Corker, for joining with him in a bipartisan way 

to do exactly what both of you have talked about trying to do here. 

And that is, with an eye to trying to make certain that we air all 

of the concerns so that every Senator can make up their own judgment in an atmosphere that is not clouded with procedural questions, as we unfortunately were last year. 

I think we all approach this renewed discussion—we in the 

administration, having listened very carefully to all of you, and we 

recognize that while many Senators voted ‘‘yes,’’ some Senators 

were dissatisfied with the process last year, and that several are 

not prepared to support the treaty until they feel that certain concerns are addressed. 

So again, I repeat I am absolutely committed. I have said this 

to the chairman in private conversations. We will work with you 

on an appropriate reservation or understanding or declaration, as 
151

appropriate, in order to try to clarify something if, indeed, it really 

is begging for clarification and we are not able to show adequately 

through legal cases, through precedent, through the reality of the 

treaty itself that it is already addressed. 

I still believe what I believed the first time we tried to do this 

when I was chair, that the ratification of the disabilities treaty will 

advance core American values. It will expand opportunities for our 

citizens and our businesses, and it will strengthen American leadership. And I am still convinced that we give up nothing, but we 

get everything in return. I will say that again. We give up nothing, 

but we get everything in return. 

Our ratification does not require a single change to American 

law, and it is not going to add a penny to our budget. But it will 

provide the leverage, the hook that we need in order to push other 

countries to pass laws or improve their laws or raise their standards for the protection of people with disabilities up to the standard that we have already adopted in the United States of America, 

up to the standard that prompted President George H.W. Bush and 

Republican Leader Dole to pass the Americans with Disabilities 

Act and indeed to negotiate the treaty. 

Now, I am especially engaged now, obviously, as Secretary of 

State because having traveled to a great number of countries these 

last 9 months since you confirmed me, I have seen firsthand the 

need for this treaty in ways that I never had before. It is not an 

abstract concept. This is not just a nice thing to do. It is not something that is for the few. It really raises standards for the many, 

and there are countries where children with disabilities are warehoused from birth, denied even a birth certificate, not a real person, and treated as second class citizens every single day of their 

lives.

The United States has the ability to impact that by the passage 

of this treaty. One hundred thirty-eight countries have already 

signed up to this. In too many countries, what we did here at home 

with the Americans with Disabilities Act has not even been remotely realized overseas, and in too many places what we take for 

granted here has not been granted at all. 

Now, I will never forget my visit recently to a sports rehabilitation center for disabled veterans in Bogota a little while ago, a center that we support with funding from USAID. And I met police 

officers who were injured by grenades, soldiers wounded by IEDs, 

volunteers caught in the tragic shootouts that take place over their 

efforts to help us together to enforce global international narcotics 

objectives. These brave men and women have risked life and limb 

and they have lost friends in battle, and yet there is a whole world 

that they are unable to access today because of their disabilities 

which they received as they undertook duties shared by our hopes 

and aspirations with respect to the enforcement of law. 

Moments like this really clarify for me the work that we have to 

do to export our gold standard. The Americans with Disabilities Act 

is the global gold standard. We should be extraordinarily proud of 

it. We are. But I would hate to see us squander our credibility on 

this issue around the world because we are unwilling to embrace 

what we actually began—this initiative. When I tell other countries 

that they ought to do what we have done, I am often reminded that 
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we have not done what we said we were going to do. We have not 

joined the treaty ourselves. It is pretty hard to leverage people 

when you are on the outside. 

So those 138 parties to the treaty, when they convene, we miss 

out on the opportunity to use our expertise, to leverage what we 

have done in America and put it on the table. We lose out on that. 

We are not at the table. We cannot share our experience and use 

our experience to broaden theirs. When other countries come 

together to discuss issues like education, accessibility, and employment standards for people with disabilities, areas where the United 

States has developed the greatest expertise, we have been excluded 

because we are not a party to the treaty. And the bottom line is 

that when we are not there, other countries with a different and, 

unfortunately, often a lower standard, a lower threshold, wind up 

filling the void, and that is the best that people get. 

I do not want to see us continue to take ourselves out of the 

game. No Member of the Senate should want us to voluntarily take 

ourselves out of this. Remaining on the sidelines jeopardizes our 

role in shaping the future of disability rights in other countries. 

And we need to help push the door open for other countries to benefit, not just from our example but from our guidance and our 

expertise, our experience. 

Joining the treaty is the most powerful step that we can take to 

gain all of those upsides. And do not take my word for it. In a letter to this committee last month, former Secretary of State Colin 

Powell said it best. He wrote: ‘‘If the Senate does not approve this 

treaty, the United States will continue to be excluded from the 

most important global platform for the implementation of best 

practices in disability rights abroad.’’ 

So this is about something very real. Look at the numbers of people who are here today and the numbers of groups represented 

behind me here today. Every one of them represents thousands 

more people for whom this is very real. It is about things that you 

can see and you can touch and that make a difference to people’s 

lives. I am talking about sidewalks without curb cuts. Try managing that. Public buildings with no accessible bathrooms, restaurants, stores, hotels, and universities without ramps or elevator 

access, buses without lifts, train platforms without tactile strips 

that keep you from going over onto the tracks. 

We cannot afford to ignore these barriers as problems that somehow affect other countries but do not affect us. They are present 

all over the world, including some of the top destinations for Americans traveling abroad for work or for study or for pleasure. And 

we are not using all of our power and influence to change things 

for the better if we do not join this treaty. 

Now, I ask you just to think about what this treaty could mean. 

It means something for everybody with disabilities. But I do particularly want to ask you to think about what it means to our 

veterans with disabilities. Last year, I met a fellow named Dan 

Berschinski. He is a West Point graduate, a retired U.S. Army captain, and he is an Afghanistan war veteran. And like many of us, 

Dan never thought that he would one day have a disability or be 

an advocate for people with disabilities. But his life changed 
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instantly when he stepped on the trigger of an IED and he lost 

both of his legs. 

Dan speaks in absolutely clear, searing, stark terms about the 

difficulty, the fear, the embarrassment of negotiating obstacles 

abroad as a person with a disability. And he experienced those 

obstacles firsthand when he traveled to South Africa. And he told 

me last year—he told all of us because he shared his testimony 

with this committee, ‘‘The advantages that we take for granted 

here at home that allow people like me to live fulfilling, independent lives do not exist in much of the rest of the world.’’ 

Let me tell you the good news. Dan is now a student at Stanford 

Business School, and he wants to be able to take advantage of 

every possible opportunity. He can do that in the United States 

because of the ADA and other disability rights laws. But Dan will 

tell you—not me—he will tell you, as he said last year, as he experienced on a trip abroad, his opportunities in the increasingly important international marketplace are hindered by his disability 

and it is a disability that he acquired while fighting overseas on 

our behalf. He is asking us now to fight for him and a lot of folks 

like him on their behalf. 

There are an estimated 5.5 million disabled veterans just like 

Dan, and many of the veterans and their beneficiaries on the post9/11 GI bill have a disability. And many of them are unable to 

study abroad because of poor accessibility standards at schools 

overseas.

Now, I have met with recovering veterans at home in Massachusetts. I have met with them at Walter Reed. They want, very simply, a world where they can be independent, go out and fend for 

themselves, where they can travel abroad to work or study or vacation. And they should never have to worry about whether the disabilities sustained fighting on our behalf are going to prevent them 

from accessing a classroom, a workplace, a hotel, or transportation 

overseas. Like all people with disabilities, they deserve a world 

where they can fully participate in the global economy on equal 

terms without fear of discrimination or loss of dignity. 

Joining the disabilities treaty will also expand opportunities for 

American students with disabilities who need to be able to study 

abroad to prepare themselves to compete in the global economy. 

I want you to take the example of Anais Keenon. She is one of 

the outstanding interns at the State Department. She is here 

today. Anais is a graduate student with dreams of a career in foreign affairs. She happens to also be deaf. Two years ago, she traveled to Ghana. It was the opportunity of a lifetime, but the obstacles she faced from the absence of written directions on how to 

proceed through customs at the airport to the absence of fire 

alarms with flashing lights in public buildings made the demands 

of everyday life much more difficult for her to sustain. And she 

managed to travel despite the obstacles in her way that would stop 

others from traveling at all. Anais is exceptional, but it should not 

be the exception. It ought to be the rule. 

And America has more students with disabilities in higher education than ever before, partly by virtue of what we have accomplished with the ADA. So students with disabilities participate in 

study abroad programs unfortunately less than half as often as 
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those without disabilities. And our joining this treaty will help 

change those numbers. 

I would just ask you very quickly and then I will wrap up to consider just a few concrete examples. We are talking about joining a 

treaty that will strengthen our hand as we push for fire alarms 

with flashing lights so people who are deaf or hard of hearing will 

know when there is an emergency or when they need to evacuate. 

We are talking about joining a treaty that gives us leverage to 

push for other countries to have sidewalks with those curb cuts so 

people who use wheelchairs can safely cross the street or the tactile 

strips at the train platform so people who are blind do not fall into 

danger.

Our joining the treaty means that we will lead the way for other 

countries to raise their standards, and it means that we will lead 

the way for other countries to adopt our standards, for all of these 

things, accessible bathrooms, tactile strips, fire alarms, flashing 

lights, all of the advancements that have made an enormous difference in the lives of Americans with disabilities. 

Now, I will admit to you change is not going to just happen with 

the passage of the treaty. It is not going to happen overnight. 

When we passed the ADA, sidewalks with these curb cuts and 

bathrooms that were accessible did not appear the next day, nor 

did all of the businesses that make accessible products that serve 

people with disabilities. But the disabilities treaty, just like the 

ADA is a process. And our joining the treaty, followed by a very 

important ingredient—we pass this treaty. I will send a message 

to every embassy in the world, and we will begin to engage a protocol that will have our people reaching out to every country and 

every government, and we will use our presence in this treaty to 

leverage these changes in these other countries, to encourage these 

changes, to use the voice that you will give us by actually joining 

it, a voice that we are not able to exercise today for our absence 

as a member. 

If we join, we can ensure that vets like Dan Berschinski and a 

lot of others like him have the same opportunities abroad as other 

Americans. That is why the American Legion, our Nation’s largest 

wartime veterans’ service organization, which I am proud to be a 

lifetime member of, and the VFW, likewise, and many other veterans groups support the ratification of this. 

If we join, I ask you to think about this. Why is the American 

Chamber of Commerce supporting this? Why are so many businesses, Coca-Cola, which is I think in something like 198–200 

countries plus—why do they support it? Because this will open new 

markets. It will level the playing field for our businesses who 

already meet accessibility standards. As other countries rise to 

meet our standards and need our expertise, guess what. They are 

going to look to American companies that already produce these 

goods, and we will be able to help them fill the needs and this 

means jobs here at home. That is why IBM and the Consumer 

Electronics Association and many other businesses support ratification.

So I think this is the single most important step that we can 

take today to expand opportunities abroad for the more than 50 
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million Americans with disabilities. This treaty is not about changing America. This treaty is about America changing the world. 

And I hope that each of you will put yourselves in the situation 

if you were disabled. One of our colleagues, Mark Kirk, as we all 

know, who supports this treaty, has unfortunately found himself 

fighting back against things that happened unexpectedly. And so 

while our circumstances might change, our rights and our opportunities should never change. And with the passage of this treaty, we 

have an opportunity to guarantee that for all Americans. And we 

also have an opportunity to change lives for the better for a lot of 

people in the world. That is what America is all about. And I hope 

we will ratify this treaty. 

Thank you, Mr. Chairman. 

[The prepared statement of Secretary Kerry follows:] 

PREPARED STATEMENT OF SECRETARY OF STATE JOHN F. KERRY

Chairman Menendez, Ranking Member Corker, thank you for welcoming me back 

here to talk about the Disabilities Treaty. 

It’s not lost on any of us that 11 months ago the Senate fell just five votes short 

of approving this Treaty. It was a tough day for many of us who supported the 

Treaty, including Senator McCain who is a new member of the committee but 

hardly a newcomer to this issue. In fact, he is one of the most eloquent voices about 

precisely why this Treaty is in America’s interests. 

In the after-action conversations I had with many Senators, Republican and Democrat both, including many who had voted against the Treaty, I heard some real 

regret about what had transpired and the unintended message the outcome sent to 

Americans with disabilities. And I heard from many not just a willingness, but a 

hope, that they would have the chance, in a new Congress, to take up the Treaty 

again—to demonstrate the important truth that Senators from both sides of the 

aisle care deeply about the rights of people with disabilities. Chairman Menendez 

and Ranking Member Corker are doing exactly that, with an eye toward airing 

every concern, so that Senators can make their own judgments in an atmosphere 

that is not clouded with procedural questions and I’m glad they are. 

I think we all approach this renewed discussion having listened closely to all of 

you. We recognize that while many Senators voted yes, some Senators were dissatisfied with the process last year and that several are not prepared to support the 

Treaty until certain concerns are addressed. I want you to know that I am committed to helping find the common ground so that this Treaty moves forward with 

the broad bipartisan support it deserves. 

I still believe what I believed the first time—that ratification of the Disabilities 

Treaty will advance core American values, expand opportunities for our citizens and 

businesses, and strengthen American leadership. And I am still convinced that we 

give up nothing by joining but get everything in return. Our ratification doesn’t 

require a single change to American law, and it won’t add a penny to our budget. 

But it will provide the hook we need to push other countries to raise their laws and 

standards for the protection of people with disabilities to the standard we set at 

home under President George H.W. Bush and Republican Leader Dole when we 

passed the Americans with Disabilities Act. 

And I am especially engaged now as Secretary of State, because, having traveled 

to a great number of countries these last 9 months since you confirmed me, I have 

seen firsthand the need for this Treaty in ways I never had before. It’s not an 

abstract concept. There are countries where children with disabilities are 

warehoused from birth, denied even birth certificates, treated as second class citizens every day of their lives. 

In too many countries, what we did here at home through the Americans with 

Disabilities Act hasn’t been remotely realized overseas. In too many places, what we 

take for granted hasn’t been granted at all. 

I’ll never forget my visit to a sports rehabilitation center for disabled veterans in 

Bogota earlier this year—a center that we support with funding from USAID. I met 

police officers injured by grenades, soldiers wounded by IEDs, volunteers caught in 

the crosshairs of a tragic shoot-out. These brave men and women have risked life 

and limb and lost friends in battle. And yet, there’s a whole world that they’re 

unable to access today because of their disability. 
156

Moments like this clarify for me the work we must do to export our gold standard—the American standard. I hate seeing us squander our credibility on this issue 

around the world. When I tell other countries that they should do what we’ve done, 

I’m often reminded that we haven’t joined the Treaty ourselves. When the 138 parties to the Treaty convene, we miss out on the opportunity to speak or to share our 

own experience. When other countries come together to discuss issues like education, accessibility, and employment standards for people with disabilities—areas 

where the United States has the greatest expertise—we’ve been excluded because 

we’re not a party to the Treaty. And the bottom line is that when we’re not there, 

other countries with different, and often lower, standards fill the void. 

I don’t want to see us continue to take ourselves out of the game. Remaining on 

the sidelines jeopardizes our role in shaping the future of disability rights in other 

countries. We need to help push open the door for other countries to benefit, not 

just from our example, but from our guidance and expertise. 

Joining the Treaty is the most powerful step we can take to make that happen. 

Don’t take my word for it. In a letter to this committee last month, Former Secretary of State Colin Powell said it best. He wrote, ‘‘If the Senate does not approve 

this Treaty, the United States will continue to be excluded from the most important 

global platform for the implementation of best practices in disability rights abroad.’’ 

This is about something very real. It’s about things you can see and touch that 

make a difference. I’m talking about, sidewalks without curb cuts; public buildings 

with no accessible bathrooms; restaurants, stores, hotels, and universities without 

ramps or elevator access; buses without lifts; and train platforms without tactile 

strips. We cannot afford to ignore these barriers as problems affecting other countries but not us. They’re present all over the world, including in some of the top 

destinations for Americans traveling abroad for work or study. And we’re not using 

all of our power and influence to change things for the better if we don’t join the 

Treaty.

Just think about what this Treaty can mean to our own veterans with disabilities. 

Last year, I met Dan Berschinski. He’s a West Point graduate, retired U.S. Army 

captain, and Afghanistan war veteran. Like many of us, Dan never thought that he 

would one day have a disability. But his life changed instantly when he stepped on 

the trigger of an IED and lost both his legs. 

Dan speaks in searing terms about the difficulty, fear, and embarrassment of 

negotiating obstacles abroad as a person with a disability. He experienced those 

obstacles firsthand when he traveled to South Africa. As he told me last year, ‘‘the 

advantages we take for granted here at home that allow people like me to live fulfilling, independent lives, don’t exist in much of the rest of the world.’’ 

Dan is now a student at Stanford business school. We all want him to take advantage of every possible opportunity. He can do that in the United States because of 

the ADA and our other disability rights laws. But as Dan will tell you, his opportunities in the increasingly important international market are hindered by his disability—a disability he acquired fighting overseas on our behalf. 

There are an estimated 5.5 million disabled American veterans just like Dan. 

Many of the veterans and their beneficiaries on the post-9/11 GI bill have a disability—and many of them are unable to study abroad because of poor accessibility 

standards at schools overseas. 

I’ve met with recovering veterans at home in Massachusetts and at Walter Reed. 

They want and deserve a world where they can travel abroad to work, study, or just 

vacation. They should never have to worry about whether the disabilities sustained 

fighting on our behalf will prevent them from accessing classrooms, workplaces, 

hotels or transportation overseas. Like all people with disabilities, they deserve a 

world where they can fully participate in the global economy on equal terms without 

fear of discrimination or loss of dignity. 

Joining the Disabilities Treaty will also help expand opportunities for American 

students with disabilities, who need to be able to study abroad to prepare themselves to compete in the global economy. Take Anais Keenon, one of our outstanding 

interns at the State Department. Anais is a graduate student with dreams of a 

career in foreign affairs. She also happens to be deaf. 

Two years ago, she traveled to Ghana. It was the opportunity of a lifetime. But 

the obstacles she faced—from the absence of written directions on how to proceed 

through customs at the airport to the absence of fire alarms with flashing lights in 

public buildings—made the demands of everyday life so much more difficult for her. 

She managed to travel despite obstacles in her way that would stop others from 

traveling at all. Anais is exceptional. But it shouldn’t be the exception—it should 

be the rule. America has more students with disabilities in higher education than 

ever before. But students with disabilities participate in study abroad programs less 
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than half as often as those without disabilities. Our joining the Treaty will help 

change those numbers. 

Consider a few very concrete examples: 

We’re talking about joining a Treaty that will strengthen our hand as we push 

for fire alarms with flashing lights so people who are deaf or hard of hearing know 

when there’s an emergency and they need to evacuate. We’re talking about joining 

a Treaty that will give us the leverage we need to push for other countries to have 

sidewalks with curb cuts so people who use wheelchairs can safely cross the street, 

or tactile strips on train platforms so people who are blind don’t fall off the edge. 

Our joining the Treaty means that we lead the way for other countries to raise 

their standards, and it means we lead the way for them to adopt our standards— 

for curb cuts, ramps, bus lifts, accessible bathrooms, tactile strips, fire alarms with 

flashing lights and all of the other advancements that have made an enormous difference in the lives of Americans with disabilities. 

Now, we all know that change will not come overnight or through joining the 

Treaty alone. When we passed the ADA, sidewalks with curb cuts and accessible 

bathrooms didn’t appear the next day; nor did all of the businesses that make accessible products to serve people with disabilities. 

The Disabilities Treaty—just like the ADA—is a process. Our joining the Treaty, 

followed by our sustained engagement with Treaty partners, will help other countries move forward in that process. By helping them, we help ourselves. 

If we join, we will put ourselves in the strongest position to push other countries 

to make systemic changes in how they treat persons with disabilities, changes which 

will help more students—like Anais—study abroad. That’s why hundreds of disability rights groups, faith-based organizations, and businesses support this Treaty. 

If we join, we will help ensure that our wounded warriors from Afghanistan and 

Iraq—vets like Dan Berschinski—have the same opportunities abroad as other 

Americans. That’s why the American Legion—the Nation’s largest wartime veterans 

service organization—the VFW, and many other veterans groups support ratification.

And if we join, we will open new markets and level the playing field for our businesses, who already meet robust accessibility standards. As other countries rise to 

meet our standards and need our expertise, they will look to our businesses for 

accessible products and technologies. That’s why the U.S. Chamber of Commerce, 

IBM, the Consumer Electronics Association, and many other businesses support 

U.S. ratification. 

So what’s really at stake? Joining the Disabilities Treaty is the single most important step we can take right now to expand opportunities abroad for the more than 

50 million Americans with disabilities. This Treaty isn’t about changing America. 

It’s about America changing the world. 

The way we treat people of all backgrounds—including how we treat our brothers 

and sisters with disabilities—demonstrates our values and defines who we are. 

That’s our greatest export, and this is our chance to make sure that we leave no 

one behind. The principle here is simple: Any one of us could become disabled 

tomorrow. And though our circumstances might change, our rights and opportunities must never change. That is what is at stake, and that is why I hope that we 

can get past the division, reason together, and find a way forward this year. 

Thank you, and I look forward to your questions. 

The CHAIRMAN. Thank you, Mr. Secretary, for very substantive, 

very vivid examples of why the treaty is so important for the lives 

of Americans with disabilities traveling abroad, the lives of their 

accompanying families, and the lives of our veterans. 

Let me start a round of questions and try to get to some of the 

issues that I have heard. I am sure you have heard them from your 

past effort in this regard, and we have heard it in the first round 

of hearings and individual conversations. Some argue that the 

United States should not enter into treaties that do not involve 

matters of national security. What would you say to those who 

espouse the view that treaties like this are unnecessary? 

Secretary KERRY. Well, Mr. Chairman, I think I have just given 

you a fairly strong description of why this is necessary. I mean, we 

join treaties because they are in our national interest. I mean, if 

you think about the treaties that the Senate has passed on occasion 
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that possibly impact the lives of people, we have passed treaties 

that promote religious freedom. We have passed treaties that allow 

for intercountry adoption. We have passed treaties for the international recovery of child support. We passed treaties that enforce 

intellectual property rights. I mean, we do this because it is in the 

interest of the United States. 

And as I have said in this particular case, it is in the profound 

interest of everybody with disabilities, and I find it very hard to see 

why we could ask people to go abroad, fight, sustain an injury, 

fight for our values, and not reinforce those values by allowing 

them then to travel abroad, work abroad, study abroad with the 

same rights they have here in America. That is what is at stake. 

That is what makes this in our interest. 

The CHAIRMAN. Now, another argument that I have heard is that 

ratification would subordinate the United States to the U.N. and 

allow our laws and actions to be guided by the United Nations, the 

Disabilities Treaty Committee, foreign courts and judges. I personally disagree with that view, and I think we have tried to explore 

it in our first hearing. But I would like to get your take. Would 

ratification violate principles of American sovereignty? 

Secretary KERRY. No, Mr. President, on the contrary. There is no 

impact whatsoever on the sovereignty of the United States. In fact, 

you all are exercising our sovereignty right now by doing what the 

Framers of the Constitution envisioned, which is ratifying a treaty. 

And the treaty, if it does not have any negative consequence on the 

United States—it does not require us to do anything. There is no 

subjugation to any entity outside. There is no cause of action created here. There is no access to American courts. There is no 

enforceability. There is no self-execution in here. So there is no 

cause of action as a consequence that allows people to go to court. 

So in fact, joining this treaty does not require a change to U.S. 

law, and there is no reach whatsoever by any committee or any 

entity outside. The one committee that exists within the framework 

of this treaty is allowed to suggest things, but they have no power 

to enforce, no power to compel, no power to do anything except put 

an idea on the table. Nothing can change unless the U.S. Senate 

were to reratify whatever suggestion the U.S. Senate might engage 

in subsequently. But there is no change. 

The CHAIRMAN. And finally, I appreciate the comments that you 

made here today in public, as well as the ones you have expressed 

to me and, I believe, other colleagues in private about our openness 

and willingness to consider reservations, understandings, and declarations that would amplify, possibly clarify and assuage concerns 

that members have in terms of voting for ratification of the treaty. 

And I just want to create a framework for that. 

I think myself as the chair and other Senators are very open to 

working with you on that process. However, we can also have 

requests of RUDs that go beyond an appropriate balance. So while 

we want to work very deeply with those who want to get to a ‘‘yes’’ 

on the treaty and find a way for them to do so, it is my hope that 

the requests that we get for reservations, understandings, and declarations are fair and balanced so that we can take care of the 

concerns that exist, and at the same time not undermine the very 
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essence of our standing with the treaty. Is that a fair statement of 

how we seek to balance this? 

Secretary KERRY. It is a very fair statement, Mr. Chairman. It 

is exactly our point of view. I mean, last year when we did this 

process, we entertained—and I was happy to entertain as chair— 

a number of reservations, a number of understandings, et cetera. 

I thought we did a pretty good job, but we can maybe hone them 

and do some more. We are willing to work with you. 

But we do not need to fill this thing up with a stack of restatements of things that absolutely do not need to be restated. I think 

we have to exercise a little bit of restraint and judgment as to what 

is really a case in controversy and what is not. I am absolutely prepared—and I said this originally to both you and to the ranking 

member. We want Senators to feel comfortable. So we are prepared 

to address legitimate concerns, and we will work with you to do it. 

The CHAIRMAN. Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman. I think you know, 

Mr. Secretary, I typically do not read from notes, but I am going 

to do that today just to ask the questions in a specific way. And 

I do want to say to all of the people here advocating on behalf of 

the treaty I do not think there is anybody up here that disagrees 

whatsoever with the thought of advancing this cause. And I know 

that is why so many letters have come in in support of this. I 

mean, I do not think that is in question. 

When people look at these kinds of issues, sometimes they forget 

that there is a whole body of law out there that affects people 

domestically in ways that were never intended. And so my goal 

here and I think a number of people on the committee’s goal and 

others is to make sure that the best of what this treaty is about 

is preserved, but at the same time you end up in a situation where 

inadvertently you have not done things that affect us domestically 

in ways that we never intended for that to occur. 

So let me just ask you a series of questions. In the Supreme 

Court case Bond v. The United States, the Department of Justice 

argued both that ratification of a treaty can expand existing Federal power to legislate beyond its traditional limits and that the 

Framers intended for the Senate to enforce federalism limits on 

treaties through its advice and consent power. Do you agree with 

the argument that your administration has put forth? 

Secretary KERRY. I do not believe that Bond applies here, so it 

is not a question of whether I agree or disagree with the argument 

they put forward. The question is, does Bond have any impact on 

the passage of the disabilities treaty and the fact that it is a case 

in controversy at the moment before the Supreme Court. And the 

answer is Bond involves a challenge to an implementing statute 

that was passed after the Senate gave its advice and consent to a 

treaty, in other words, after the Chemical Weapons Treaty was 

passed. Then the implementing language was passed. 

In this case, the implementing language has not only been 

passed, it has been found constitutional by the Supreme Court and 

has been put in practice for years. We are talking about the ADA. 

That is the implementing language. So in contrast, here no new 

legislation is required. Even former Senator DeMint recognized 

that and accepted that fact. 
160

So the constitutionality of our domestic legislation, which was 

passed entirely independently of the disabilities treaty, has repeatedly been sustained by the courts. So we do not have the potential 

of a Bond crisis here. And I think it is being in appropriately 

applied to this treaty. 

Senator CORKER. So can you confirm then that no further legislation—I think you just did. I want all of this for the record, if I 

could. Can you confirm that no further legislation is necessary to 

meet our obligations under the CRPD and that there will not be 

a need in the future for any further legislation to satisfy the Convention’s requirements? 

Secretary KERRY. I can confirm that no legislation is required to 

implement this. Whether a Congress 20 years from now thinks it 

has to tweak something, I cannot speak to that. But, obviously, 

nothing——

Senator CORKER. But not to satisfy this Convention. 

Secretary KERRY. Nothing is required to be passed to satisfy this 

treaty, no. 

Senator CORKER. Very good. So the United States is clearly not 

accepting any obligations under the treaty to regulate beyond the 

federalism limits reflected in the ADA and other Federal laws. 

Secretary KERRY. That is accurate. 

Senator CORKER. And there will certainly be no need for additional authority beyond the current limits of Federal power for the 

Federal Government to implement the CRPD. Is that correct? 

Secretary KERRY. That is correct. 

Senator CORKER. Since we have established that the CRPD 

comes with no additional Federal obligations and requires no additional authority, you would support strong federalism RUDs to 

eliminate both of those possibilities. That is a yes or no. 

Secretary KERRY. I would support an appropriate RUD, yes, with 

respect to federalism. 

Senator CORKER. That addresses these issues, one that affirmatively and declaratively addresses these issues. 

Secretary KERRY. That clarifies the federalism reservation and 

how it would work. I think that is appropriate. 

Senator CORKER. Obviously, we have attempted to work with 

your staff—— 

Secretary KERRY. In other words, that restates the fact that the 

treaty would only obligate us to take action that we can take under 

Federal law. That is the reservation. We have a right to have a 

RUD appropriately stating that. 

Senator CORKER. OK. I think it is very important that this is a 

very clear statement, and we look forward to working with you. 

Secretary KERRY. Absolutely. 

Senator CORKER. A range of concerns have been raised about 

whether RUDs we adopt today could be invalidated or otherwise 

rendered ineffective by a future Congress, by a court, or by the 

U.N. Disabilities Committee. I think any Senator would want to 

make sure we can be confident that our RUDs will stand the test 

of time and would take the view that their advice and consent was 

conditioned on the package of RUDs adopted by the Senate. Do you 

agree with that? 

Secretary KERRY. I do agree. 
161

Senator CORKER. Will you support a nonseverability RUD that 

ties our treaty obligations to the continuing validity of the RUDs? 

Very important. A very important answer. 

Secretary KERRY. Say that again. Would I support a nonseverability——

Senator CORKER. Will you support a nonseverability RUD that 

ties our treaty obligations to the continuing validity of the RUDs? 

Secretary KERRY. I do not know if I can. I would just have to be 

able to make sure that we have the power to do that and that it 

can be done. But there is no way the RUDs can be dropped. They 

become part of the treaty. They are embraced in the treaty, and 

you would have to pull out of the treaty or the treaty would have 

to be changed altogether for the RUD not to be enforceable. Can 

we look at the language so that I am not committing something 

that——

Senator CORKER. Obviously, I want you to look at the language. 

Secretary KERRY. Again, we will work with you on the language. 

I just want to make certain that that is—— 

Senator CORKER. If for some reason your staff decides that this 

is not something that can be done or is not a serious concern, will 

the Department of Justice provide in writing confirmation of its 

legal review that the Senate RUDs cannot be invalidated or otherwise rendered ineffective for either domestic or international legal 

purposes?

Secretary KERRY. Well, here is what I would commit to you, Senator. First of all, my staff is not going to decide on its own. I am 

going to decide. And I will take a look at it and see where we are. 

And you and I will talk and we will see what our options are. 

Secondly, I will certainly engage with the Justice Department in 

order to find out what is possible. But I think we ought to be able 

to find a way in the language to appropriately reflect what you are 

trying to do. We want to act in good faith to try to answer the 

question so the RUDs that you enter into, you are not somehow 

feeling like you are entering into a quicksand deal. 

Senator CORKER. I agree. And if I could ask one more question. 

Thank you for the time. 

In addition, the treaty allows for the withdrawal of RUDs. And 

in fact, State parties are often encouraged by monitoring committees and others to withdraw their RUDs in order to come into what 

they consider to be full compliance with the treaty. Could a future 

Congress or executive withdraw a RUD either through the normal 

legislative process or a unilateral executive action, thereby circumventing—and remember, a treaty is ratified by two-thirds—the constitutional protection provided by a two-thirds majority requirement of the Senate advice and consent? You understand what I am 

asking.

Secretary KERRY. I am told that this has never happened, that 

we would not do it without a fair amount of process engaged in it. 

No foreign country can invalidate a U.S. RUD. I will tell you that. 

And no disability committee or anybody could invalidate a U.S. 

RUD. So we would be the only ones who could do it. I presume it 

would take—I think it would take an entirely new resolution, et 

cetera. I would have to find out for you, Senator. 
162

Senator CORKER. More specifically, then could the federalism 

RUD be withdrawn in this manner, thereby eliminating the limits 

that the Senate has put in place, and pass legislation that uses 

expanded Federal authority under the treaty to intrude on the 

powers of the States? 

Secretary KERRY. I do not believe it could, no, because that would 

be in contravention of the federalism—— 

Senator CORKER. So I take that to mean that you would support 

a RUD to protect our RUDs from withdrawal without a new resolution of advice and consent from the Senate. 

Secretary KERRY. On the surface, that would appear to be a good 

thing to do. I would want to check with my counsel and everybody 

and run it through, but in quick blush, why not? 

Senator CORKER. I thank you, and I thank the chairman for his 

patience. And I would just say to the community of people here 

that are advocating for the passage of this treaty all the things 

that I just asked about today have nothing to do with helping other 

countries around the world deal with these issues that are so 

important to especially the people who are advocating today. They 

are about ensuring that this treaty does not have the unintended 

consequences that sometimes can occur here in our country. And 

I would just ask all of those who are advocates here to help push 

the administration and others to resolve these issues with us if, in 

fact, you believe this treaty is something important to pass. And I 

thank you for the time. 

The CHAIRMAN. Thank you, Senator Corker. Now, I have extended the time for the ranking member because he plays a very 

important role. Because there is going to be action on the floor that 

might obviate our timeframe here, I am going to have to ask members to stick to their time, and I am going to adhere to it strictly. 

So with that, Senator Cardin. 

Senator CARDIN. Well, thank you, Mr. Chairman. And, Secretary 

Kerry, thank you for your extraordinary leadership and thank you 

for what you have done as Secretary of State. You have been an 

incredible voice for America, and we thank you for that service. 

I want to acknowledge the presence of Dr. Seth Morgan. He is 

a Commissioner of the Maryland Commission on People with Disabilities. Dr. Morgan is a retired neurologist with 28 years of experience in the field of neurology, psychiatry, and diagnostic radiology. He is a tireless advocate working as a volunteer for the 

National MS Society. He is a person who lives with MS. I just 

would like to quote one of the statements that Dr. Morgan made, 

and that is, as a person with a family living abroad, I would be 

able to visit my siblings, nephews, and extended family without the 

uncertainty accessible that has plagued prior visits, just underscoring what you have said, Mr. Secretary, about how important 

this treaty is for Americans who are traveling abroad. 

Mr. Chairman, I would ask consent that the statement by Secretary Hagel in support of the legislation on behalf of the military 

families and the 5.5 million American veterans that have disabilities be made part of the record. 

The CHAIRMAN. Without objection, so ordered. 

Senator CARDIN. Mr. Secretary, I often write you letters asking 

you in your visits abroad to raise issues of concern on human 
163

rights. I have asked you to raise issues concerning religious freedom, the concerns about corruption in other countries, concerns 

about how police activities occur in other countries, and occasionally will write to you about issues concerning people who have challenges and disabilities. 

Now that you are the Secretary of State, you are in those meetings. The fact that we have not ratified this treaty, does that affect 

your credibility in advocating on behalf of basic core values that we 

believe in, the rights of all people, including people with disabilities, when you raise these issues of concerns that we have in other 

countries?

Secretary KERRY. Well, Senator, I am not going to tell you that 

in every conversation I have had, somebody has raised the disabilities treaty because they have not. But the generic breadth of our 

rights absolutely comes up. And often you wind up with people 

pushing back on one thing or another about our absence from the 

table either not having signed up to a particular treaty. I will tell 

you this has happened frequently, for instance, on the Law of the 

Sea, though that is not the issue in front of us. 

But with respect to human rights and other things—let me just 

say up front. I never go anywhere—any meeting I have anywhere, 

we discuss the question of rights, human rights, the question of 

what is happening in the country, its transformation, its reforms. 

We always run into some kind of a debate about the differences, 

cultural differences here. 

But on this kind of thing, I have raised this issue on occasion in 

certain places, and people indicate a readiness and a willingness to 

try to do things but they are not particularly versed in it. They do 

not know what the options are. They are not sure how much it 

costs or how long it takes or what the complications are. That is 

the virtue of our being able to put the ADA on the table, but also 

be a member of this so we go to the 138 member countries and 

start to engage them on it. And the answer is, you know, it is the 

old clean hands doctrine of the law. If you come in and you are not 

a member and you are not part of it, of course you lose leverage. 

Senator CARDIN. There is no question that the ratification of this 

treaty strengthens the U.S. position internationally in advocating 

on behalf of basic rights for people with disabilities. And it is interesting. When you look at basic human rights and the advancement 

of basic human rights, when the United States is missing in those 

debates, it is much more challenging to get the type of progress 

that we need. 

Secretary KERRY. Absolutely, without any question. And, you 

know, when you sort of run through the list and you look at the 

countries that are signed up to it, you see incredible opportunities 

here—Saudi Arabia, South Korea, Yemen, Zambia, Tanzania, the 

United Kingdom actually, Jordan. You run around any of these 

countries—Israel actually is a signatory and Israel did a reservation with respect to one thing to abide by their laws, but they are 

comfortable.

So I think our legitimacy as the full advocate that we have the 

power to be because we are the ones who initiated this, that we are 

the ones who negotiated it, we are the ones who went to countries 

and said come on board, and now we are not there, the result is 
164

that the committee, frankly, is not as energized and engaged as it 

could be. So there is a lot that could be done by our joining up. 

Senator CARDIN. I would make an observation that the United 

States has been a leader in advancing the rights of people with disabilities. In 1991 in the Moscow document under the OSCE, it was 

U.S. leadership, Congressman Hoyer and Tony Coelho, were very 

much involved in taking the work that we did in the ADA here and 

bringing it to that regional organization. And it is frequently cited 

now as a document that is used to advance rights for people with 

disabilities at international meetings to make sure that proper 

accommodations have been made. 

The ratification of this treaty—as you point out, countries that 

are so, so far behind us in accommodating people with disabilities 

have already signed and ratified this treaty. So it gives us a seat 

at the table to advance their laws that protect people with disabilities. It is a golden opportunity for us, and it is interesting that 

these countries have already ratified and approved and we are still 

in the process of doing it. 

Thank you, Mr. Chairman. 

Secretary KERRY. Thank you very much, Senator. 

The CHAIRMAN. Thank you. 

Senator Rubio. 

Senator RUBIO. Thank you, Mr. Chairman. I am going to be brief. 

We have been notified that there might be significant measure 

taken on the floor here at 10:30. So thank you, Mr. Secretary, for 

being here. 

My grandfather was severely disabled by polio as a young child. 

He struggled his whole life to provide for his daughters and his 

family. So I am extremely sympathetic to the goals here. I am getting a lot of e-mails and letters about people that have concerns 

about what they are reading and hearing about this. So I just have 

two quick questions. 

The first involves a statement we made in 2007 when the General Assembly approved the final text. The United States issued an 

official statement that clarified our understanding of the phrase 

‘‘reproductive health’’ in article 25 does not—and I am quoting. It 

does not include abortion and that its use in that article does not 

create any abortion rights and cannot be interpreted to constitute 

support, endorsement, or promotion of abortion. Would the administration support the inclusion of an understanding that reaffirms 

this policy? 

Secretary KERRY. Well, as you know, Senator, last year we had 

a debate about this here in the committee, and I thought we came 

up with a pretty good RUD that dealt with this question by making 

sure that it did not include any language regarding any medical 

procedure. I think we used the word ‘‘any medical procedure,’’ that 

it did not refer to that whatsoever because there was some back 

and forth on the issue, the always volatile issue, obviously, about 

pro-choice, pro-life. And I thought we had thread that needle fairly 

effectively.

Now, if there is a conviction by the committee that that does not 

or has not, then we ought to sit down and try to work through the 

language. But I do want to make it absolutely clear. Nothing in 

article 25 or anywhere else in this treaty creates a right to abor-
165

tion. That is a domestic legal issue and nothing in this treaty 

changes that. And that was in the transmittal. The transmittal letter to the Congress made it very clear that that is true, and I 

thought the language we had last year helped clarify it. But we are 

happy to work with you to make sure it is clarified. 

Senator RUBIO. OK, thank you. And also, we have gotten a lot 

of letters and e-mails about home schooling. The written testimony, 

which I am sure he will deliver here in a moment, by Mr. Gray 

talks about an idea that I want to get your opinion on, and that 

is the inclusion of an understanding this year that merely said that 

nothing in the treaty limits the ability of parents to homeschool 

their children. 

Secretary KERRY. Let me make it clear. First of all, we all value 

the right of parents to make decisions for their children, including 

the decision to homeschool. And second, nobody is seeking to 

weaken or believes there is anything in here that weakens or eliminates those rights. And third, U.S. ratification of this treaty will 

have absolutely no impact on parental rights, homeschooling, or 

any other aspect of U.S. law. 

Now, we added during the markup last year RUDs that included 

an understanding proposed by Senator DeMint to allay the concerns of homeschoolers. I continue to support such an understanding, if that will help address Senate concerns. And we are happy 

to try to work with you again to make sure the language is adequate to do that. 

Senator RUBIO. And last but not least, off the topic for a second, 

but I want to give you an opportunity to address this because it 

has been in the news this morning. And this is my last question. 

Yesterday it appears Ayatollah Khomeini in an address to paramilitary forces referred to Israel as a rabid dog and accused the 

United States of launching a nuclear attack on Japan after the 

country had surrendered in World War II. Apparently an American 

official called that language—I think the right term he used is ‘‘unacceptable.’’ Would you just comment on that statement? 

Secretary KERRY. Well, obviously, we disagree with it profoundly. 

You are asking the obvious. It is inflammatory and it is unnecessary. And I think at this moment when we are trying to negotiate 

and to figure out what can and cannot be achieved, the last thing 

we need are names and back and forth. I do not want to exacerbate 

it now sitting here. 

But our good friends in Israel know full well that we defend their 

concerns. They are threatened existentially by what is happening 

in that part of the world and particularly by the potential of a 

nuclear weapon. We stand by our friends in Israel completely. And 

obviously, we do not believe that anything is served with names 

that challenge everybody’s sense of propriety and justice and rectitude.

We have been through this before. We heard, as you know, prior 

very disturbing assertions regarding the Holocaust and so forth. I 

think we need to move away from that, and our hope is that the 

process of the next months and years would enable us to do that. 

The CHAIRMAN. Senator Coons. 

Senator COONS. Thank you, Chairman Menendez, and thank you 

for convening our second hearing to consider the Convention on the 
166

Rights of Persons with Disabilities. And thank you, Secretary 

Kerry, for your ongoing leadership both in your previous role as 

chair of this committee and now as our Secretary of State. 

Protecting the rights of disabled persons has historically garnered the support of all Americans, and ratification of the CRPD 

would serve to solidify a strong U.S. commitment to equal opportunity for disabled persons through increased access, mobility, protection for disabled Americans abroad, in particular our wounded 

veterans. Last year, I think we missed a great opportunity and it 

is my sincere hope, shared by many of my constituents, that we do 

not make the same mistake again. 

And at the risk of asking you to repeat things that have been 

asked and answered, Mr. Secretary, but this entire hearing strikes 

me as revisiting important fundamental issues that need to be 

asked and answered to reassure those of my constituents who have 

not quite heard ‘‘yes’’ yet. In your view, what is the response to 

critics who charge the CRPD would violate U.S. sovereignty and 

that somehow the Disabilities Committee would be empowered 

under this treaty to dictate how the United States treats people 

with disabilities here at home? 

Secretary KERRY. Well, with respect to sovereignty, as I said earlier, there is absolutely no ability whatsoever for any country or 

any entity through this treaty to gain any legal redress or capacity 

to compel the United States to do anything. There is no oversight. 

There is a committee that works on issues, but the most that they 

can do is make a suggestion. There are 18 members of it. They are 

elected on a global basis. They issue a report. But they cannot compel us to do a thing. So there is zero give-up or loss of any sovereignty of the United States. In fact, as I said earlier, we are exercising our sovereignty by deciding whether or not we want the rest 

of the world to be importuned by us over the course of the next 

years as a member of this party to rise to our standards rather 

than stay static or rise slower or come to a lower standard. So I 

think the United States gains entirely by this. 

And secondly, on the Disabilities Committee, the Disabilities 

Committee has absolutely zero power to change a law, to order a 

change of law, to compel a change of law. They cannot have any 

impact. There is no power in this treaty, also in the committee. The 

committee has no ability to create any customary international law. 

No decision, memo, anything that they utter can have an impact 

on the United States and what we reserve to ourselves through our 

Constitution and even through our declarations and understandings and reservations in this treaty. 

Senator COONS. So given that, Mr. Secretary, if, as I believe and 

as you have asserted, the treaty does not compel us to do anything 

except to continue to follow our own law in our own way, why then 

ratify it? If you would just briefly remind us what harm is being 

done to our ability to advocate for disability rights by being the 

empty seat at the table or merely in observer status of the committee for the Convention on the Rights of Persons with Disabilities. How does this harm our ability to advocate for Americans, 

Americans with disabilities, and America’s standard for how we 

should treat citizens with disabilities around the world? 
167

Secretary KERRY. Well, there are a whole series of things that 

this treaty actually does require other countries to do. We have already done them. So that is why it does not have an impact on us. 

We are already meeting those standards. But it does compel other 

countries or requires other countries to provide accessibility, to provide nondiscrimination in things that they do like a birth certificate for kids. You know, you cannot deny somebody a birth certificate because they are disabled. It creates a set of rights about 

standards for education, for transportation, for all of the things 

that matter to us under the ADA and basically takes each of those 

components and gives a legal obligation to other countries to live 

up to that standard, our standard. 

Senator COONS. Well, thank you, Mr. Secretary. Thank you for 

your testimony and for your hard work. I think this Convention is 

a great opportunity for us to demonstrate the high standard that 

the United States has made the gold standard for treatment of our 

citizens with disabilities. And thank you, Mr. Chairman, for convening this hearing. 

The CHAIRMAN. Thank you. 

Senator Kaine. 

Senator KAINE. Thank you, Mr. Chair. Before I have a comment 

and a question for Secretary Kerry, I do want to do an introduction. I think Gen. Gale Pollock is here with us today, and I just 

wanted to bring her to the attention of the committee. She was the 

first woman nonphysician commander of the U.S. Army Medical 

Command and acting Surgeon General of the Army with a nearly 

$8 billion annual budget in 2007. She has extensive experience in 

the military. 

But she was challenged by Senator Inouye when he made comments about caring for blinded troopers and led an effort that 

resulted in the establishment of a DOD/VA Center for Excellence 

for Vision. Following her experience in that regard and a program 

at Harvard, she established, Elevivo, Inc., a sole-source information 

solution provider for anybody concerned about vision loss. And we 

are very happy that General Pollock is here today and for all the 

work that she does to advocate for folks around the world who suffer from vision loss. So thank you, General Pollock. 

And thank you, Secretary Kerry. Today is a big day. There is a 

lot going on in the world today and that you have chosen to be here 

with us a tribute to you, to how importantly you view this priority. 

In listening to your testimony, I was reminded of the great Senator 

William Proxmire who believed so deeply in the United States need 

to ratify the Genocide Treaty that every day the Senate was in session for 19 years he took to the floor of the Senate and advocated 

that the U.N. Genocide Treaty, which had been ratified by the U.N. 

and activated in 1951—it was not ratified by the United States 

until 1986. He gave over 3,200 floor speeches over the course of 19 

years until the United States ratified the Genocide Treaty. I hope 

you are not here that often. [Laughter.] 

And I hope we do it quicker than 48 years. This treaty came 

before the U.N. and was ratified in 2006. But thank you for sticking with it and sticking with us. 

I only have one question for you. The last time you were before 

us, we were debating a very difficult issue that remains difficult, 
168

and that was Syria and whether to authorize use of military force 

in Syria. The committee voted to do that authorization. Shortly 

thereafter, in your diplomatic discussion with Syria and others, 

Syria agreed to do something that it had not done, which is it 

agreed to become a signatory to the U.N. Chemical Weapons 

Convention.

What moral leverage would the United States have had to insist 

that Syria become a member and sign on to those treaty agreements under the Chemical Weapons Convention if the United 

States had not been a signatory to that Convention? 

Secretary KERRY. Well, Senator, first of all, thank you for your 

reflections on Senator Proxmire. I was here when we passed that 

finally, and I remember listening to many of those comments. Look, 

your question answers itself. 

We never could have achieved it and we would have had no 

standing whatsoever to be able to try to argue it. 

Senator KAINE. Thank you, Mr. Chair. Thank you, Mr. Secretary. 

The CHAIRMAN. Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. Can we 

talk about something in addition to the obvious benefits that will 

flow to people with disabilities, and that is that which will flow to 

American businesses if we have an international standard? So 

there are about 56 million people in the United States with disabilities, but there are about a billion people in the world with 

disabilities.

So, for example, if we just take something like a U.S. law, a 

standard that says that all of these devices have to be now accessible to the deaf and the blind, and you multiply that by the thousands of companies in the United States that now have a part of 

this communications revolution, what could it mean for American 

business if these standards are adopted in countries all across the 

world? What could it mean in terms of practical benefits for the 

U.S. economy if we joined the rest of the world in ratifying a treaty 

that they are all ready to go on in terms of what that additional 

benefit would be for our country? 

Secretary KERRY. Senator, you have hit the nail on the head. I 

mentioned it in my opening comment about the benefit to business 

and why the American Electronics Association and IBM and others 

are supportive of this. 

A billion people is a big market. The market that drove the 

wealth creation of the 1990s where every quintile of American 

income earners saw their incomes go up—every quintile—and the 

greatest wealth in the history of our Nation was created, that market was a 1-billion-person market. Actually it grew quickly into 

about a $1 trillion market but it began smaller. And the result is 

this market is just waiting for us to tap into. 

We have electronic assisted devices that help people to speak, 

that can print. I mean, there are extraordinary gains through technology and we will be able to sell it. Different kinds of wheelchair 

accessibilities, lifts, all kinds of benefits in communications and in 

transportation. So there are huge, huge benefits for our companies, 

and the bottom line is it means jobs. 

Senator MARKEY. I agree with you, and not a small number of 

jobs, tens of thousands, maybe hundreds of thousands of jobs in the 
169

United States directly related to a standard being established 

across the rest of the world. 

And I agree with you that it does not require any change in U.S. 

law. It is really going to be a benefit for the disabled around the 

world and for businesses here in the United States to be able to 

service that new market that has been created. And we can be the 

leader in distributing those technologies as well while profiting 

here in the United States. So I thank you again, Mr. Secretary, for 

your great good work. 

Secretary KERRY. Well, we agree completely. Thank you, Senator. 

The CHAIRMAN. Well, Mr. Secretary, I know that there are a 

series of members who would have liked to have engaged with you, 

and I think the challenge is there are procedures that are about 

to take place on the floor that will probably take about an hour of 

time. I assume that your schedule would not permit you to have 

that period of time. 

Secretary KERRY. I regret, Mr. Chairman, that it does not, I am 

afraid.

The CHAIRMAN. I did not think so considering what is happening 

in the world and your pressing schedule. 

We will keep the record open extensively so that questions can 

be submitted, and if there are any specific members in another setting that have some specific questions maybe in the future, we can 

work with you toward getting—— 

Secretary KERRY. Mr. Chairman, why do I not agree to do this? 

I really want this to pass and I want to try to expedite it and I 

want to be as helpful as we can at the Department. So recognizing 

there is a difficulty on the floor, why do we not try to arrange a 

meeting at the State Department for those Senators who did have 

some of those questions? We would be happy to meet. And obviously, we are prepared to answer questions for the record in short 

order.

The CHAIRMAN. So between the record for those who want to 

have something on the record and for those who want to have a 

conversation about some of their concerns and how the State 

Department and the administration should react to them, I think 

that is a fair offer and I appreciate it. I appreciate your testimony 

here today. I think it has been substantive, very compelling. I just 

want to share two final concerns. 

One is that we can try to create an environment in which we 

want to be as airtight as possible—and I get that—for those who 

have concerns. However, I think that looking at future Congresses 

5 years, 10 years, 20 years from now on, of course anything that 

the U.S. Congress does and passes could be changed. Of course, it 

would seem to me that a U.S. Congress would have to change it, 

and so there would be full debate and the opportunity to do so. I 

do not envision that, and as has been stated, that has never happened as it relates to RUDs, and I would not expect that this would 

be the first time ever in history that that would take place. But I 

think there has to be a balance here as to what expectations are 

of what one can guarantee about future Congresses. So that is just 

an observation for the record. 

The second is, as you and the Department work with any of the 

members as it relates to RUDs, I would urge you to also share your 
170

deliberations with us because at the end of the day, I will have to 

be willing to support a set of RUDs and bring it before the committee when we get to that point. I am sure that is the way we 

will work together. With the thanks of the committee—— 

Secretary KERRY. Can I just say, Mr. Chairman—— 

The CHAIRMAN. Yes. 

Secretary KERRY. I just want to thank you for your leadership on 

this. There is a lot going on here too. But this, as you know, is a 

priority and I appreciate your making it one. 

And I also want to thank Senator Barrasso who was an early 

supporter of this some time ago and has stuck with it. We are very 

appreciative for the bipartisan effort here with Senator McCain 

and others. 

The CHAIRMAN. Yes. We have a series of colleagues who have 

joined us in this effort. You have mentioned Senator McCain, Senator Barrasso, Senator Ayotte, Senator Kirk, as well as members 

on the Democratic side. So our goal is to get us the type of strong 

bipartisan support that will pass the treaty. There are few times 

I think in our lives in public service that you can affect the lives 

of millions of your fellow Americans in a powerful way that can 

make equality of opportunity and access to that opportunity a 

reality, whether they are the 58 million Americans who face some 

form of disability or the 5.5 million veterans who served their country and now face some sort of disability. This is an opportunity to 

do that, and that is why this is so important and that is why we 

appreciate your presence here today in the midst global challenges. 

Thank you very much. 

With the appreciation of the committee, the Secretary is excused. 

Secretary KERRY. Thank you. 

The CHAIRMAN. I am going to apologize to our next panel in 

terms of wait time, and I hope that you can hang in there with us. 

I am not in control of exactly what time will be required on the 

floor. It may be shorter, but it is likely to take about an hour. To 

the audience members as well, we will reconvene upon that final 

vote that takes place on the Senate floor. But I believe it will be 

sometime within an hour, and until that time the committee stands 

in recess. 

[Recess.]

The CHAIRMAN. This hearing of the Senate Foreign Relations 

Committee will come to order. First, let me say to our distinguished panel that we regret that issues on the floor have created 

challenges to us conducting the hearing. As a matter of fact, we are 

not finished on the floor. But in order to listen to your incredibly 

important testimony, what I have asked the ranking member, with 

his concurrence, is to proceed during these votes and hopefully 

rotate, ask members to take the chair when it is necessary in order 

to get the testimony in the record, and then hopefully have an 

opportunity for Q&A at the end. 

I know that Mr. Gray has to leave and we want to definitely get 

his testimony in, and I appreciate your willingness to do so. So, 

after we start with you, we will excuse you, and of course the 

record will be open, and we urge you to answer any questions. 

Our second panel today we have Ms. Frances West, the Worldwide Director for Human Ability and Accessibility Center for IBM. 
171

Ms. West is responsible for promoting advanced research technologies as part of IBM’s efforts to enable everyone to achieve their 

full potential through innovation. Ambassador Boyden Gray is 

former White House Counsel to President George H.W. Bush, and 

a member of the board of directors of the Atlantic Council, the 

European Institute, and various other organizations, and served as 

Special Envoy for European Affairs and U.S. Ambassador to the 

European Union. I understand his daughter, Eliza, a staff writer 

for Time magazine, was married Saturday, so congratulations to 

the proud father of the bride. 

Jeremy Rabkin is a professor of law at George Mason University. 

Professor Rabkin serves on the Board of Academic Advisors of the 

American Enterprise Institute and the Board of Directors of the 

Center for Individual Rights, and we welcome you. And Curtis 

Bradley is a professor of law, Public Policy Studies, Senior Associate Dean for Faculty Research at Duke University. Professor 

Bradley, early in his career, clerked for Supreme Court Justice 

Byron White, and has written many articles on international law, 

constitutional law, and U.S. foreign relations. So, Professor, you 

are at the right committee. Welcome to you all. 

With that, let me ask Mr. Gray to go first. All of your statements 

will be fully entered into the record. We would ask you to synthesize it in about 5 minutes so hopefully we will be able to go forward and ask some questions. 

Mr. Gray. 

STATEMENT OF HON. C. BOYDEN GRAY, C. BOYDEN GRAY AND 

ASSOCIATES, FORMER WHITE HOUSE COUNSEL, AND 

FORMER AMBASSADOR TO THE EUROPEAN UNION, WASHINGTON, DC 

Ambassador GRAY. Mr. Chairman, thank you very much for the 

opportunity to appear, and also thank you for your accommodation 

for my schedule. I wish I could stay here for the entire conversation. It is very important and also very interesting. But I hope I 

can answer questions in the record if it is appropriate. 

I was involved with the architecture and structure of the Americans with Disabilities Act almost from the very beginning, starting 

with work that then-Vice President Bush did with the Task Force 

on Regulatory Relief under President Reagan, who was very supportive always of disability rights. And the ADA grew out of work 

that had been done during the Reagan administration. 

The statute has been very durable. It has been a great success. 

It has really changed for the better the lives of a great many Americans. And as I enter as a leader of the baby boom cohort, as many 

people have said, there really is no basic difference between the 

rights of the disabled and the rights of the aging. And this has 

been a great success in the United States. 

We are at an inverted situation basically with the way this has 

proceeded. Normally you have a treaty and then an implementing 

statute. Here, not quite the reverse, but close to it where we had 

an implementing statute 25 years ago and a treaty that has come 

out of that. There is nothing that is binding on this country, and 

that is, I think, the most important point that I can make. 
172

The Bond case has become an issue, which was argued just 

recently. Senator Kerry, I think, dealt with that comprehensively. 

The case was brought under the implementing legislation, not 

under the treaty itself. There will be no implementing legislation 

here. Of course, as Senator Kerry observed, there is no way to bond 

some future Congress from amending the ADA. It has already been 

amended once. But that is for the future, and that is not at issue 

here.

There is discussion of whether for federalism purposes and for 

purposes of severability, to take two examples that were raised earlier with Senator Kerry, do there need to be stronger reservations. 

A couple have been suggested in testimony that will be given a few 

minutes. I see no difficulty with making these strengthened reservations, but I also do not think that they are absolutely essential. 

Why? Because as Professor Bradley acknowledges and what is 

clearly understood, the Convention—the Congress has already 

adopted a reservation that has—or declaration that has the Convention being non-self-executing, which he acknowledges will have 

the effect of preventing the Convention from judicially enforceable 

on its own terms. Therefore, it cannot be used to justify legislation 

that would not be ordinarily justified under our Constitution. And 

it cannot be used to justify interference with our system of federalism beyond what would ordinarily be possible under the Constitution in the absence of this treaty. 

So I do not think it is absolutely essential, but I also think since 

it has already been done by this very strong reservation of nonexecution, I think there is no difficulty in adopting these stronger 

statements.

I think on homeschooling, which has been an issue in the past, 

I think it has been dissipated thankfully. I want to just express my 

own support for school choice. I think I am probably well known 

for this. Home schooling has blossomed under the regime of the 

ADA and other disabled education legislation. I do not see really 

any way in the world a treaty, which is nonenforceable, can do anything to hurt the growing movement or the vibrant movement of 

home schooling here in America. 

So at that point, I will be quiet. 

[The prepared statement of Ambassador Gray follows:] 

PREPARED STATEMENT OF AMBASSADOR C. BOYDEN GRAY

It is a pleasure for me to testify in favor of the ratification of the Convention on 

the Rights of Persons with Disabilities (the Convention or the Disabilities Treaty). 

Ratification of the Disabilities Treaty will constitute a major step forward in the 

effort to end discrimination against more than 1 billion persons with disabilities 

around the world. It will protect the rights and dignity of all people with disabilities 

and export core American values that have been codified in U.S. law in the Americans with Disabilities Act. It will serve Americans well. Our active participation in 

the implementation of this Convention will continue strong American leadership; it 

will assist the ease with which Americans with disabilities, including our wounded 

warriors, travel, work, and study abroad; and it will help American businesses 

expand their role in the international, global economy. 

My direct involvement on disability rights issues began with my bridge partner, 

Evan Kemp, a disability rights leader, head of the EEOC during the administration 

of George H.W. Bush, and a friend. At the start of the Reagan administration I 

worked with the Presidential Task Force on Regulatory Relief, which was considering the scope and nature of government regulations required by the 1978 amendments to section 504 of the Rehabilitation Act of 1973. That Act required all Execu-
173

tive branch agencies to issue regulations implementing the nondiscrimination 

requirements of section 504. 

During this time, the Reagan administration engaged in extensive outreach and 

negotiations with the disability community, led by Mr. Kemp and his cohorts at 

DREDF, the Disability Rights Education and Defense Fund. Together with the Justice Department, then under the leadership of Edwin Meese and with the Civil 

Rights Division under William Bradford Reynolds, we hammered out the basic and 

balanced concepts of what constitutes discrimination on the basis of disability. 

We introduced the concepts that the disability law did not require actions that 

resulted in undue financial and administrative burdens and that entities covered by 

the law would not have to engage in conduct that resulted in a fundamental alteration of the nature of their programs. We also worked out an appropriate definition 

of disability for the implementation of the law, giving significant regulatory guidance to the statutory definition. We provided a fair, effective approach to disability 

nondiscrimination, carefully balancing the rights and needs of persons with disabilities with the costs to businesses and government agencies of providing access. In 

the ensuing years, each Federal agency issued disability rights regulations adopting 

these principles and worked to open their own programs to persons with disabilities. 

Programs at the National Parks Service became accessible and local Social Security 

offices began the necessary steps to make their offices and programs accessible. 

Several years later, while serving as the Legal Counsel to President George H.W. 

Bush, I was once again involved with disability rights issues. The project this time 

in the development of what would become the Americans with Disabilities Act, one 

of the premiere achievements of the Bush administration. Not surprisingly, we 

turned to the terms and concepts that we had first adopted in section 504 and 

turned them into a new comprehensive disability rights law, the Americans with 

Disabilities Act. 

I recount this history today because the concepts and principles that were developed during the Reagan administration and then codified in the ADA during the 

Bush 41 administration are now at the heart of the Convention on the Rights of 

Persons with Disabilities. The U.S. delegation that worked at the U.N. during the 

administration of President George W. Bush made sure that the new Disabilities 

Treaty followed the time-tested approaches of American disability law. The Disabilities Treaty is the next logical step after the ADA. 

Thus, the concepts of equality of treatment and nondiscrimination are the primary principles of both U.S. domestic law and the Disabilities Treaty. The Disabilities Treaty seeks to ensure that persons with disabilities enjoy the same rights as 

everyone else and are able to lead their lives as do other individuals, if given the 

same opportunities. By requiring equal treatment and reasonable accommodation 

for persons with disabilities, the Convention is rooted in the principles of U.S. disability law. As with the comprehensive network of U.S. federal disability law, the 

Convention expresses the principles and goals of inclusion, respect for human dignity and individual autonomy and choice, accessibility, and equal enjoyment of 

rights—including political participation, access to justice, respect for home and the 

family, education, access to employment and health care, and freedom from torture 

and other cruel, inhuman or degrading treatment. 

Now I am aware that the Disabilities Treaty is an expansive, sometimes hortatory 

document that does, in some instances, go beyond what we have developed here in 

the United States. Thus, it is essential that we include reservations, understandings, and declarations, or RUDs, to tailor this treaty to our concepts of equal opportunity and nondiscrimination. Last year the Obama administration included just 

such a series of RUDs in its submission of the Disabilities Treaty to the Senate. And 

this committee wisely added additional RUDs to the treaty. These RUDs are an 

appropriate and needed addition to the Disabilities Treaty and I encourage this 

committee to include similar RUDs in this session of Congress. In doing so, the committee must remember that no matter what RUD language you develop, the underlying and most important principle here is that this is a nondiscrimination treaty. 

Any new RUD language must not undermine the principles of U.S. disability law: 

nondiscrimination and equality of opportunity. 

Perhaps most significant are the proposed reservations on Federalism and private 

conduct and the declaration that the treaty is non-self-executing. I note with 

approval that the Obama administration made its Federalism provision a reservation, rather than an Understanding. In this country’s earlier human rights treaties, 

for example, the Convention on the Elimination of Racial Discrimination, or CERD, 

the Federalism provision was an understanding. Making this provision a reservation 

means the United States is only undertaking obligations to the extent consistent 

with our Federalist system. Those powers and responsibilities that are the province 

of the individual States will remain so under this Convention. The important res-
174

ervation on federalism ensures that the obligations that we undertake under the 

Convention are limited to actions within the authority of the Federal Government 

and do not reach areas of sole state and local jurisdiction. 

The reservation regarding private conduct is equally important. It will ensure 

that the U.S. does not accept any obligation except as mandated by the Constitution 

and the laws of the United States, such as the ADA and others like the Individual 

with Disabilities Education Act. Thus, as with our current law, religious entities, 

small employers, and private homes would be exempt from any new requirements. 

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. Simply put, no one will be able to use the Disabilities 

Treaty to bring an action in the U.S. courts. If persons in this country seek a 

redress of what they perceive to be violations of their rights, they must continue 

to use the tools that are in place for them now, including the ADA, the civil rights 

provisions of the Rehabilitation Act, the disability provisions of the Fair Housing 

Act, and the many other laws that we have put in place to protect Americans with 

disabilities at home. 

With these reservations, understandings, and declarations, the Senate will ensure 

that ratification of the Disabilities Treaty will require no new federal laws, and will 

not require the individual States to revise their own laws. Inclusion of these RUDs 

will confirm that the United States will rely on its compliance with our existing, 

rich panoply of disability laws to constitute compliance with the treaty and that we 

can continue to use our expansive and recently amended definition of disability. 

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 and no nation nor any international 

body has the ability or power to sever, amend, or overturn such reservations. 

I understand that some persons have challenged the long-accepted practice of 

using RUDs in treaties. Such claims are not correct and, quite simply, extraordinary. When the U.S. Senate attaches conditions to any treaty during its adviceand-consent process, these conditions are binding on the President and the President cannot proceed to ratify a treaty without giving them effect. These conditions 

become part of the treaty and have the force and effect of law. The various courts 

of the United States, including the Supreme Court, have upheld the validity of reservations, understandings, and declarations. Further, administrations of both political parties have uniformly throughout our history upheld this view. 

The claims that somehow ratification of the Disabilities Treaty will undermine 

U.S. sovereignty are simply false. Some have raised alarms by mischaracterizing the 

role of the Disabilities Committee created by the treaty. This Committee, a group 

of 18 experts elected by the nations that have ratified the treaty, meets twice each 

year to review the reports submitted by those countries that have ratified the 

treaty. The persons on this Committee are not employees of the governments that 

they represent. They are civilians, ordinary citizens from around the world with 

extensive expertise on disability rights. Among the 18 Committee members, 15 are 

themselves persons with disabilities. 

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 treaty provides no vehicle for 

the U.N. or any U.N. officials to interfere in American jurisprudence. 

Further, the concerns that Committee’s interpretations of the Disabilities Treaty 

will become customary international law and thus be binding on the United States 

are misplaced. The Committee’s nonbinding recommendations by themselves do not 

rise to the level of international law. Even if the nonbinding recommendations of 

the Committee are adopted by other nations, they cannot and will not become binding on the United States if the United States consistently objects to any such interpretations during their emergence. The persistent objector doctrine ensures that the 

United States will have a say in any future treaty interpretation. Of course, the one 

way to ensure that the United States has a role in the interpretation of the treaty 

is to ratify the treaty and seek to serve on the Convention’s Disabilities Committee. 

Any concern that this Committee can have any role other than an advisory one 

was further allayed by the understanding adopted by the Committee last year that 

made clear that the Committee has no authority to compel any U.S. actions and 

that its conclusions, recommendations, or general comments were not legally binding on the United States in any manner. 
175

I would also like to address what has become known as the homeschooling issue. 

I myself am a longtime advocate for parental choice in education decisions. I note 

that homeschooling has blossomed in the United States at the same time that we 

have embraced the concepts of the ADA and of the parental role in education decisions in the Individuals with Disabilities Education Act (IDEA). In fact, many parents with children with disabilities have chosen homeschooling as an option to provide an appropriate education for their children. 

I would align myself with the testimony before this committee of former Attorney 

Gen. Dick Thornburgh. I agree that nothing in this treaty prevents parents from 

homeschooling or making other decisions for their children. As I understand the 

concern, it rises from the inclusion of the phrase ‘‘best interests of the child’’ in the 

Disabilities Convention. While I do not believe considering the best interests of the 

child is threatening to parental rights, last year, the Committee included an understanding that made clear that the use of the phrase ‘‘the best interest of the child’’ 

would be interpreted in a manner consistent with use of that concept in U.S. law, 

a result that would have the purpose or effect of maintaining parental authority in 

making homeschooling decisions. While not necessary, Inclusion of an understanding this year that merely said that nothing in the treaty limits the ability of 

parents to homeschool their children would eliminate any legitimate concerns on 

this issue. 

Some have found it troubling that the Disabilities Convention does not contain 

a definition of disability and that it recognizes that disability is an evolving concept 

that results from the interaction between a person’s impairment and the physical 

and environmental barriers around them. The implication of this criticism is that 

it is a weakness in the Convention that each Nation State will have to adopt its 

own definition in its national legislation. The flexibility that the Convention allows 

here is its strength, not its weakness; and it follows our own precedent on the definition of disability. We in the United States have moved away from the medical 

model to the integration model of disability in our own definition of disability. The 

medical model defines individuals with disabilities as sick and focuses on medical 

treatment and health services. The integration model recognizes the abilities of individuals with disabilities and emphasizes removing barriers to full participation in 

society for individuals with disabilities. The culmination of this 40-year history, 

which started with 1973’s Rehabilitation Act, was the ADA Amendments Act of 

2008, signed by President George W. Bush. We will be able to use our own definition of disability to implement the Disabilities Convention. 

An argument made by some opponents of U.S. ratification of the Disabilities Convention is that we should not enter into treaties that do not directly enhance 

national security. The U.S. has ratified numerous treaties, including multilateral 

trade agreements, that do not bear directly on national security. The benefits to 

Americans from ratification of the Disabilities Convention are significant. In our 

global economy, U.S. employees need to travel and work abroad freely, unencumbered by inaccessibility. Every U.S. worker starting a career now and in the future 

should expect to be called upon to travel abroad to enhance his own career and to 

maintain a competitive edge for his U.S. employer. There is no better way for our 

government to support the long-term economic self-sufficiency of the millions of 

Americans with disabilities than to participate in the global commitment to accessibility that is enshrined in the Disabilities Convention. 

U.S. business supports the Disabilities Convention because the globalization of 

disability nondiscrimination and accessibility will promote U.S. business in international markets and advance equal access and opportunity for employees. Business 

groups that favor U.S. ratification include the Chamber of Commerce, the U.S. Business Leadership Network, and the Information Technology Council. The Disabilities 

Treaty can level the playing field abroad for U.S. industries that have been required 

by the ADA since 1990 to design and manufacture accessible products. The Disabilities Convention provides the pre-eminent forum for disability rights and accessibility internationally. If we are not there, the leadership vacuum will be filled by 

other countries in Europe or Asia. This could result in less clout for Americans in 

standard setting bodies and multiple, incompatible accessibility standards. If the 

world follows standards based on European or Asian accessibility standards, it could 

limit access for Americans, including vets working, studying, or traveling abroad. It 

could also hurt American businesses trying to sell their accessible products abroad. 

There are at least 1.2 billion persons outside the U.S. who can benefit from these 

goods and services. 

The U.S. owes a duty to our wounded veterans to ratify the Disabilities Convention. There are approximately 5.5 million disabled American veterans, more than 

3.5 million of whom are receiving compensation for a disability. There are also at 

least 126,000 military family members with special needs. More than 325,000 Amer-
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ican servicemembers and their families are stationed abroad, many in countries 

with accessibility standards significantly lower than our own. Our disabled veterans 

and military families want to work, study, serve, and travel abroad with the same 

dignity and opportunity as other Americans. Doing so can be difficult, if not impossible, in countries with poor accessibility standards. 

Of the nearly 1 million veterans and their beneficiaries who have taken advantage 

of the Post-9/11 GI bill since its inception 4 years ago, about 20 percent have a disability. In general, students with disabilities participate in study abroad programs 

less than half as often as those without disabilities. Disabled veterans and military 

servicemembers are among America’s most elite athletes. Ten veterans and 

servicemembers represented the U.S. at the 2013 International Paralympic Committee World Championships and more will compete for Team U.S.A. at the 2014 

Paralympics Winter Games. International competition often poses significant obstacles for many of these athletes because of inaccessibility in overseas venues, lodging, 

transportation and related facilities. Ratification of the Disabilities Treaty will help 

enable the United States to export its gold standard for nondiscrimination and 

accessibility worldwide and make it easier for all our wounded warriors, disabled 

veterans, Active Duty members, and their families to take advantage of important 

opportunities abroad. 

Some question why the U.S. should ratify a disabilities treaty that is modeled on 

American law that has been on the books for more than 20 years. As one who has 

been at the center of the development of domestic disability law and policy for 40 

years, I can tell you that the U.S. achieved its current position as the standard setter in the world for nondiscrimination and equal access for individuals with disabilities through a long, painstaking process. We navigated through that process with 

a balanced approach to disability nondiscrimination that has been and continues to 

be supported by strong, bipartisan majorities of Congress and the American public 

and Presidents of both parties. It is time for the U.S. to export the model of the 

ADA to other countries as a leader of the official global initiative on disability nondiscrimination. There is nothing more important to the ability of Americans with 

disabilities, including veterans and their families, to become full participants in the 

world economy than the leadership that the U.S. can provide only if it ratifies the 

Disabilities Convention. What are we afraid of? The Disabilities Convention is modeled on our existing domestic law. The U.N. Committee for the treaty is advisory 

only.

Our official imprint on the implementation of the Disabilities Convention is critical to our ability to give our citizens the protections they need to thrive in the 21st 

century. I wonder how many Senators on this committee have a son or daughter 

who has benefited from travel abroad as part of his or her education? Students with 

disabilities often are excluded from these opportunities for lack of accessibility in 

the destination country. Approximately 4 out of 10 American travelers or their travel companions are people with disabilities that still face constant barriers and discrimination abroad. 

There is another important reason for the U.S. to ratify the Disabilities Convention. Without laws like the ADA abroad, millions of children and adults are housed 

in institutions without the enrichment of family life, community resources, or access 

to the most basic civil rights like a birth certificate or even a name. Until the U.S. 

ratifies the Disabilities Convention, it is a bystander on these critical matters. Our 

leadership in fighting against these unconscionable practices can make an enormous 

difference.

At this committee’s previous hearing on ratification of the Disabilities Convention, 

some suggested that the case of Bond v. United States, recently argued and currently pending in the Supreme Court, should be decided before the Senate consents 

to ratification of the Disabilities Convention. I am familiar with the time-honored 

tactic of using a vaguely related court case as a basis for delaying congressional 

action on something that some Members would rather avoid. The Bond case is an 

unnecessary distraction from the important task of U.S. ratification of the Disabilities Treaty. The Bond case is a red herring. The outcome of the Bond case will not 

impact the Disabilities Convention nor the obligations of the U.S. to implement the 

treaty.

The Bond case involves a challenge to the legislation implementing the Chemical 

Weapons Convention. U.S. compliance with the Disabilities Convention will result 

from already existing laws, laws that were passed entirely independently of the Disabilities Convention, laws that do not rely upon the Constitution’s treaty power but 

have already been found to have a constitutional basis by the Supreme Court. No 

implementing legislation will be necessary for the Disabilities Convention. This is 

confirmed in a declaration this Committee inserted into its proposed resolution of 

advice and consent last year, which states ‘‘The Senate declares that, in view of the 
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reservation to be included in the instrument of ratification, current United States 

law fulfills or exceeds the obligations of the Convention for the United States of 

America.’’

I said earlier that the Disabilities Treaty was the logical next step after the Americans with Disabilities Act. On July 26, 1990, when President Bush signed the ADA 

on a sun-drenched ceremony on the White House lawn, he saw that we were entering a ‘‘bright new era of equality, independence, and freedom.’’ It is time for the 

United States to stand with the rest of the world in fostering the core American 

values of equality, independence, and freedom. I urge you to ratify the Convention 

on the Rights of Persons with Disabilities and give international meaning to President Bush’s call: ‘‘Let the shameful walls of exclusion finally come tumbling down.’’ 

The CHAIRMAN. Well, I appreciate your testimony and your forbearance with us in this process. Let me just ask you, since you 

are going to have to be excused, and maybe Senator Corker may 

have a question for you before we go to the rest of the panel. I just 

want to focus on one part of your testimony, and that is if you were 

still the White House Counsel, as you were under President Bush, 

there are some who have suggested that we have to wait for the 

Supreme Court to decide in the Bond decision before the Senate 

would make a decision on this treaty. Do you think there is any 

reason that the Bond case should delay Senate consideration of the 

Disabilities Treaty? 

Ambassador GRAY. I do not on the merits. I was not at the argument, but I am told that Justice Breyer was more skeptical than 

perhaps anybody else. And so, I think it is pretty clear what the 

result is going to be, but I also think the result is irrelevant for 

reasons Senator Kerry stated and for the reasons that I just mentioned, that there is a clear congressionally approved RUD that 

makes this treaty non-self-executing and nonreviewable in the 

courts. So I see no way how the Bond case can be relevant. 

Again, to point out that it was the prosecution under an implementing statute. There will be no implementing statute here. What 

is relevant for purposes of the courts is the ADA itself and not this 

treaty.

Senator CORKER. Listen, I understand you have to leave, so I am 

going to go ahead and ask you some questions, and thank you. 

I would—first of all, I respect you very much and I appreciate 

being here today, and I want to ask you a couple of specific questions. I will say relative to your last statement, Congress can 

always pass implementing legislation 2 years from now, 4 years 

from now. So the fact is that it is not necessarily even that that 

could happen, but the fact that when you ratify a treaty, that itself 

can, in fact, create some issues here for us to domestically. So let 

me just ask you a couple of questions. 

As an advocate for the ratification of the treaty, do you agree 

that there are significant questions about whether a treaty can 

expand Congress’ power into areas historically reserved to the 

States under the Supreme Court current case law? You agree with 

that, right? 

Ambassador GRAY. As a general proposition, that is probably 

right. The Bond case will clarify that. But we do not have that 

issue presented here because of what I have already mentioned, 

which is the RUD you have already adopted, which means that the 

Convention is not judicially enforceable on its own terms. 

So the only thing that the Congress can do constitutionally is 

what it could do constitutionally in the absence of a treaty. And 
178

you have already, one, submitted the ADA, and you may again 

choose to do so, whenever, to amend it again. But it will be bound 

and constrained by the limits of the Constitution and not enabled 

in any way by the treaty because that cannot be judicially enforced. 

Senator CORKER. But you would have no issue, as you just 

stated, since what I just made was a statement of fact, it can. I am 

talking about just treaties in general. You would have no opposition to us trying to clarify those very specifically with a set of 

RUDs that have no impact on us being able to advocate in other 

countries, but would keep this treaty from affecting us here domestically. You do not have opposition—— 

Ambassador GRAY. I do not, and I just so testified, I think, about 

that I do have no objection to clarifying those severability issues 

and federalism issues. 

Senator CORKER. Why thank you, and I hope you can help us do 

that through your advocacy. Do you agree that it is important for 

the Senate to adopt a strong package of RUDs that protects the 

appropriate balance of power between State and Federal governments?

Ambassador GRAY. Well, as I—— 

Senator CORKER. I think the answer is yes, but I—— 

Ambassador GRAY. Yes. Yes. 

Senator CORKER. OK. You have made some statements on the 

record in the past, and since the record of these hearings can have 

a bearing on future issues that arise, I just wanted to re-ask those. 

And again, I respect your advocacy. I respect your service to our 

country, and I thank you very much for coming. 

Ambassador GRAY. Thank you, Senator Corker. 

The CHAIRMAN. Thank you, Mr. Gray, and I know you are going 

to have to leave. So we appreciate your willingness to answer questions on the record as we move ahead. 

Ambassador GRAY. Well, I am happy to do that, and I really do 

appreciate your understanding about my having to leave. And I am 

sorry to my fellow panelists, with whom I would love to have a 

robust discussion assuming there was time. But it is not—I just 

cannot stay. So thank you very much, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Ms. West. 

STATEMENT OF FRANCES W. WEST, WORLDWIDE DIRECTOR, 

HUMAN ABILITY AND ACCESSIBILITY CENTER, IBM, CAMBRIDGE, MA 

Ms. WEST. Good afternoon, Chairman Menendez, Ranking Member Corker, and members of the committee. My name is Frances 

West. I am the Worldwide Director for the IBM Human Ability and 

Accessibility Center. In this role, I am responsible for advancing 

IBM’s accessibility leadership by driving inclusive people-focused 

technology solutions. I currently serve on the board of directors for 

the World Institute on Disability and the U.S. Business Leadership 

Network. I am honored to provide IBM’s point of view and would 

like to ask for your support to ratify the CRPD. 

Global understanding and demand for accessibility continues to 

grow, driven in part by an entirely new set of disruptive trends, 

including the growing aging population, mobile and smart devices, 
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social networking, and emerging technologies, such as smart TVs 

and wearable devices. These innovations are creating unprecedented demand for inclusive technologies that enhance user experiences and create more fulfilling interactions for any individual— 

anytime and anywhere. As a result, accessibility has become a 

mainstream requirement for the society. 

Ratification of the CRPD would help advance the marketplace for 

accessible information and communication technologies, benefiting 

the U.S. economy, businesses, and individual citizens. We believe 

by unifying the ratifying countries, the CRPD can accelerate two 

critical business imperatives that are foundational to market and 

job creation. First, the adoption of harmonized international technology standards, and second, the execution of meaningful policies, 

procurement regulations, and technology research agendas. 

First, on standards. It plays a critical role in ensuring the interoperability of technology and the acceleration of innovation upon a 

common foundation. Without harmonized international standards, 

an employee with a disability in any of the 96 countries IBM operates will have difficulties in using airport kiosks, accessing ATMs, 

using teleconferencing facilities, or obtaining multimedia digital 

content through their computer or cell phone—any time and any 

place.

So standards harmonization is absolutely vital to the United 

States and U.S.-based companies, and we can see three reasons 

how CRPD can help. First, the CRPD embraces standards of inclusion outlined in the ADA and, by extension, U.S. accessibility 

standards. So for U.S. companies, it is familiar to implement. Second, these harmonized standards protect our investments in accessible technology and help us achieve economies of scale, ensuring 

a positive return on investment. Finally, it helps preserve the 

U.S.’s ability to continue to lead innovation worldwide as CRPD 

countries are investing in accessibility technology leadership, and 

our ability to influence them is diminishing. 

Now, onto the policy benefit. It is no exaggeration to say that in 

many cases policies make markets. The U.S. Section 508 of the 

Rehabilitation Act is a great example. Prior to the enactment of 

this Federal procurement policy, the accessibility marketplace was 

small, niche-oriented, and not an investment priority. However, 

section 508 and the buying power of the U.S. Government have 

transformed the marketplace and played a major role in defining 

it as a mainstream government and business requirement. U.S. 

ratification of CRPD will have a similar effect. 

In addition, by prioritizing both equal education and technology 

access for people with disabilities, the CRPD will create a larger 

talent pool of knowledge workers with disabilities, enabling companies like IBM to hire the best talent and meet the requirements 

associated with emerging policies, such as section 503 of the Rehabilitation Act. 

It is for these policy and harmonized standards reasons that IBM 

believes the United States can solidify technology leadership in the 

burgeoning marketplace through CRPD participation. We believe 

that failure to act will produce quite the opposite effect over the 

long term, stifling the ambition and dreams of people with disabil-
180

ities, limiting market opportunities, and jeopardizing the U.S.’s 

ability to influence the global accessibility community. 

In conclusion, IBM is confident that U.S. ratification of the 

CRPD will create global marketplace pull for accessible ICT and 

reinforce the U.S. legacy leadership position as a champion for full 

societal inclusion of people with disabilities. 

I thank you for your attention. 

[The prepared statement of Ms. West follows:] 

PREPARED STATEMENT OF FRANCES W. WEST

Good morning, Chairman Menendez, Ranking Member Corker, and members of 

the committee. My name is Frances West. I am the worldwide director for the 

Human Ability and Accessibility Center at the IBM Corporation. In this role, I am 

responsible for advancing IBM’s accessibility market leadership by driving inclusive, 

human-centric technology innovation and solution development. I currently serve on 

the Board of Directors for the World Institute on Disability and the U.S. Business 

Leadership Network. 

As an information technology (IT) executive who has dedicated a decade of my 

career to advancing the equal technology access rights of people with disabilities, 

I am honored to appear before this committee to discuss IBM’s point of view on the 

United States proposed ratification of the Convention on the Rights of Persons with 

Disabilities (CRPD). 

Today, I will discuss the current global marketplace for accessibility, the opportunities created by the CRPD, and the potential business impact of U.S. ratification 

of this important human rights treaty. I will conclude with IBM’s recommendation 

for the committee’s consideration. It is our hope that the committee will vote favorably on the treaty and the Senate will ratify it during this congressional session. 

THE CURRENT GLOBAL MARKETPLACE FOR ACCESSIBLE INFORMATION AND

COMMUNICATIONS TECHNOLOGIES

Global demand for accessibility continues to grow, due in part to the strengthening voice of more than 1 billion people with disabilities worldwide; the organizations that advance their interests; and influential human rights treaties like the 

CRPD. However, other parallel, disruptive trends are also driving unprecedented 

marketplace demand, making accessibility a mainstream requirement for governments and businesses around the globe. 

For example, today a significant percentage of the world’s population—more than 

800 million people—are over the age of 60.1 By 2025, individuals in this age bracket 

are expected to comprise 20 percent of the population in most industrialized nations. 

And while half of people over the age of 65 have some form of age-related disability—such as diminished sight, hearing or mobility—they typically do not consider themselves disabled. As a result, they are less likely to proactively seek technology accommodations, driving the need for governments and businesses to create 

more adaptive, intuitive, and usable technology solutions from the outset. 

From a technology perspective, mobile and smart device adoption is transforming 

how, when and where we communicate. It is also enabling a new paradigm for work, 

allowing us to connect to clients, partners, and colleagues, anytime, anywhere. Last 

year, mobile phone subscriptions worldwide surpassed 6.4 billion.2 These users— 

more than 1 billion of whom are mobile workers—are impacted by environmental 

challenges that render them ‘‘situationally disabled.’’ For example, workers taking 

conference or client calls in public spaces with loud ambient noise, like that in airports and coffee shops, are situationally disabled. So too, are employees who need 

hands- and eyes-free access while driving to e-mail, SMS messages, and other textbased communications. 

As a result, mobile technology leaders are seeking new ways to address these situational challenges to capture or sustain market leadership. In many cases, the solution involves integration of assistive technologies originally designed to enable 

access for people with disabilities. 

Social networking and social businesses are also playing a significant role in 

mainstreaming accessibility worldwide. Upending traditional customer segmentation 

and collaboration models, the social revolution has generated intense demand for 

preference-based content and services. It has also enabled individuals as change 

agents and created empowered consumers with new demands for highly personalized service experiences. 
181

Finally, emerging human-centric technologies such as smart TVs, wearable 

devices and next-generation augmented reality—a technology that is expected to 

grow from about 6 million users 3 to 2.5 billion by 2017 4—will continue to transform 

the technology landscape. Enabling widespread access to and innovation for these 

technologies will depend in large part, on the ongoing integration of flexible, adaptive, intuitive and accessible technology capabilities. 

Based on these and other disruptive trends, it is clear that moving forward the 

demand for accessibility will continue to increase. 

GLOBAL GOVERNMENT RESPONSE TO RISING DEMAND FOR ACCESSIBILITY

In response, governments around the world are taking steps to ensure equal 

access to technology for everyone, including people with disabilities. As you know, 

the United States Government has assumed a leadership role in this area with the 

refresh of Section 508 of the U.S. Rehabilitation Act and the Americans with Disabilities Act Amendment, as well as the passage of laws such as the 21st Century 

Communications and Video Accessibility Act. 

However, other governments are also taking clear and significant action. In Canada, the government of the province of Ontario in 2005 passed the Accessibility for 

Ontarians with Disabilities Act. This domain-based law impacts public and private 

sector organizations and, in part, includes requirements that all new Web content 

and user interfaces be accessible by January 2014. 

In Europe, the EU Mandate 376 requires the three standards bodies in that 

region to harmonize and facilitate the procurement of accessible information and 

communications technologies (ICT). The European Accessibility Act currently under 

development will also define new procurement requirements for government entities 

and significantly impact the private sector mobile market in Europe. 

In China, a national Web Accessibility standard has been established that harmonizes with key principles outlined in the World Wide Web Consortium’s Web 

Content Accessibility Guidelines, ensuring that more people with disabilities in 

China can access and use the Internet. 

Notably, all of these countries have ratified the CRPD and only the U.S.—the 

leader in disability and accessibility policy—has not. 

SCOPE AND IMPORTANCE OF THE CRPD

As of October 2013, 158 countries worldwide have signed the CRPD. Of these, 138 

countries have also chosen to ratify the Convention based on the clear understanding of its broad intent to advance the full societal inclusion of people with disabilities. The CRPD quite simply mandates that people with disabilities should have 

the full rights and freedoms enjoyed by all other citizens worldwide, including equal 

access to employment, health care, education, transportation and technology, to 

name a few. 

Importantly, it also establishes the first universal framework for accessible ICT. 

Understanding that technology is the great equalizer for underserved populations, 

the CRPD authoring committee adopted this framework to provide governments and 

businesses worldwide with a clear roadmap toward inclusive ICT that can benefit 

all individuals, including people with disabilities. 

IBM POINT-OF-VIEW ON U.S. RATIFICATION OF THE CRPD

It is for these reasons, that IBM—which for 100 years has embraced accessibility 

as a diversity initiative and has been consistently recognized for its leadership in 

the employment and accommodation of people with disabilities—supports the CRPD 

and its underlying principles. 

It is our view that the CRPD does more than any single government or business 

entity could do on its own, and that U.S. ratification of the CRPD will advance the 

marketplace for accessible ICT, ultimately benefiting the U.S. economy, businesses, 

and individual citizens. 

Indeed, by unifying ratifying countries in collective commitment to providing people with disabilities with, in part, equal access to employment, education, and technology, the CRPD accelerates a number of critical business imperatives, including: 

• The adoption of globally harmonized accessible information technology standards;

• Technology research innovation and agendas; 

• Policy-driven market growth; 

• Public and private sector procurement policies; 

• A larger, accessibility informed U.S. talent pool; and 

• The development of more U.S. knowledge workers with disabilities. 
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Adoption of globally harmonized accessible information technology standards 

In the IT industry, standards play a critical role in ensuring the interoperability 

of technology and the acceleration of innovation upon a common foundation. 

Through the Global Initiative for Inclusive Information and Communications Technologies (G3ict), the CRPD advocates for accessible ICT standards harmonization 

among ratifying countries. This is vital to the U.S. and U.S.-based technology companies for a number of reasons: 

1. The Convention itself is based on the Americans with Disabilities Act (ADA). 

As such, it embraces standards of inclusion outlined in the ADA and by extension, 

U.S. accessibility standards. 

2. For U.S.-based technology companies like IBM, global accessibility standards 

that are harmonized with U.S. standards protect our investments in accessible technology and help ensure return on investment over the long term. 

3. As the global IT market grows with more participation from every corner of 

the globe, the U.S.’s ability to influence overseas IT manufacturers is diminishing. 

The G3ict focus on harmonizing international standards to those developed here in 

the U.S., like the World Wide Web Consortium’s Web Content Accessibility Guidelines, will enable the IT industry to achieve economies of scale and preserve the 

United States ability to continue to lead change worldwide. 

The implications of unharmonized technology standards are potentially enormous. 

Without standards harmonization, the availability of accessible ICT could be greatly 

diminished because the market would fragment. Essentially, the costs of solutions 

and services would increase due to the need for customization for each individual 

market; and, conversely, access to lucrative markets ripe for accessible solutions and 

services will decrease because of these divergent requirements. 

Take for example, a piece of technology I’m sure most of us in this room have with 

us today: our mobile smartphone. Due to massive global adoption rates, device 

manufacturers and service providers are under intense marketplace pressure to continually deliver new and better products. As a result international standards development has not been able to keep pace and countries are, in some cases, setting 

divergent requirements for mobile accessibility. 

Today mobile accessibility is like the Wild West, with every country sheriff trying 

to determine how to set and enforce laws in the mobile territory. In this space, the 

U.S. has led by setting some standards through FCC regulation but we are seeing 

other countries begin to establish divergent requirements. What does this mean? If 

we are not at the policy and standards tables to ensure that mobile and all ICT 

accessibility rules are globally harmonized, market barriers will be created for technology products and solutions. The trickle-down effect for all users that require 

accessible mobile devices is that they will not be able to use their mobile technology 

in foreign countries. For global citizens, for IBM’s employees in 96 countries, and 

all persons with disabilities who rely on these devices as an essential enabler of 

work and life, this could be a major barrier to work and societal inclusion. The U.S. 

needs to lead and continue to share our expertise in order to keep open markets 

and our global relevance. 

By promoting globally the standardized development of accessible ICT the CRPD 

will drive awareness of the importance of using international accessibility standards 

in all industries and environments. By not having a ‘‘seat at the table’’ in standards 

development, U.S. businesses’ ability to quickly develop and innovate new solutions 

will be slowed and our capacity to keep up with the speed of change, especially in 

the mobile space, will be hampered. 

The ripple effect for people with disabilities will be significant not only in terms 

of the increased availability of accessible ICT, but also with respect to jobs creation, 

and employment opportunity. 

For instance, innovation in accessibility technology that benefits people with disabilities also benefits the general population that are ‘‘situationally disabled,’’ as 

mentioned previously. Aligning around harmonized standards will allow businesses, 

such as IBM, to address accessibility needs into their product development and be 

better positioned to lead a market when an assistive technology garners the attention of the mass market.5 Thus, expanding the market opportunity will create an 

entrepreneurial wave of activity that creates jobs and promotes accessible ICT. 

As U.S. businesses gain a greater understanding of the need for accessible, standards-based solutions and incorporate best practices into their procurement and 

development processes, they will over time become better equipped to support the 

competitive employment of existing employees with disabilities and create new 

opportunities for prospective employment candidates with disabilities. 
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Policy-driven market growth 

In the U.S. and worldwide, the actions of governments have long played a key role 

in driving business opportunity. It is no exaggeration to say that in many cases, 

policies make markets. The U.S.’s Section 508 of the Rehabilitation Act is a prime 

example. Prior to the enactment of this federal procurement policy, the accessibility 

market was small. Indeed, most technology companies would have classified it as 

‘‘niche’’ and therefore not an investment priority. 

However, Section 508 and the buying power of the Federal Government has transformed the marketplace for accessibility, generating new demand for accessible ICT 

from government agencies and the countless companies that provide products and 

services to those agencies. As a result, this single U.S. policy action has played a 

major role in defining accessibility as a mainstream government and business 

requirement. U.S. ratification of the CRPD will have a similar effect across many 

other industries vital to the socio-economic inclusion of people with disabilities, 

including education, health care, and transportation. 

Public and private sector procurement policies 

In recent years, IBM added an accessibility statement to our procurement policy 

to encourage the acquisition of products, services, and solutions that are usable by 

all of our 430,000 employees worldwide. This action prompted change among our 

vendors and suppliers, increasing integration of accessibility into their products and 

services.

The CRPD promotes the use of accessible technology. Public and private sector 

adoption of procurement requirements for accessible technology will increase the 

marketplace for accessibility innovations on a broad scale, increasing technology 

access for individuals in every country where accessibility innovators do business. 

A larger, accessibility informed U.S. talent pool 

One of the primary challenges to widespread accessible ICT adoption is the dearth 

of accessibility expertise across all lines of business. Post-secondary and professional 

education curriculums have simply not kept pace with increasing marketplace 

demand for accessibility. As the CRPD drives increased awareness and adoption of 

accessibility best practices, knowledge and skills of individuals in key job roles— 

including executive management, human resources, and IT development—will naturally increase. Accessibility innovation, research agendas, and procurement rules in 

the U.S. and worldwide will advance as a result. 

More knowledge workers with disabilities 

Equally as challenging as the lack of mainstream accessibility expertise is the 

shortage of people with disabilities with the skills necessary for IBM and companies 

like us to hire them. For IBM, a diverse workforce that includes people of different 

cultural backgrounds, heritages, ages, and abilities has proven to be a significant 

competitive differentiator. In our experience, diversity of thoughts, perspectives, and 

viewpoints drives innovation. Unfortunately today, too many prospective job candidates with disabilities lack the necessary science, technology, engineering, and 

math skills to even qualify for employment consideration at IBM. By prioritizing 

both equal education and technology access for people with disabilities, the CRPD 

will in turn, create a larger talent pool of knowledge workers with disabilities, enabling IBM and like companies to hire the best talent and meet requirements associated with emerging policies such as Section 503 of the Rehabilitation Act. 

CONCLUSION

In conclusion, IBM is confident that U.S. ratification of the CRPD will generate 

new opportunities for U.S. businesses. It will also create marketplace ‘‘pull’’ for 

accessible information and communications technologies and reinforce the United 

States legacy leadership position as a champion for full societal inclusion of people 

with disabilities. 

Failure to act, will produce quite the opposite effect over the long term: stifling 

the ambition and dreams of people with disabilities; choking marketplace opportunities; and jeopardizing the United States ability to influence the global accessibility 

community. IBM wants the full backing of the U.S. Government to influence the 

development of emerging standards and policies that drive an important market for 

us.

As we look toward the future of technology and its increasing emphasis on delivering personalized, intuitive, adaptive, and accessible experiences for every individual, governments, and businesses that prioritize accessibility and take necessary 

steps to create or maintain leadership will be at a distinct advantage. I can tell you 
184

that IBM has already seen increased interest in its accessible solutions in countries 

that have ratified the CRPD. 

Ratification of the CRPD by the U.S. would enhance our opportunities here and 

abroad. The business community has signaled its support for the ratification of the 

treaty with letters from the U.S. Chamber of Commerce, the Information Technology Industry Council and the U.S. Business Leadership Network. IBM includes 

its support as a member of these organizations. 

Finally, for nearly a half century, the U.S. has worked to ensure that people with 

disabilities can enjoy the same rights and freedoms as the rest of our citizens. This 

administration in particular, has set aggressive goals to strengthen health care 

access, expand educational opportunities and increase employment of people with 

disabilities.

As with many other societal issues, the U.S. has served as a model for the rest 

of the world. Ratifying the CRPD is the next logical step in our journey toward full 

societal inclusion of Americans with disabilities. It will also preserve our leadership 

role in promoting the rights and employment of persons with disabilities worldwide, 

and create new global market opportunities for U.S. businesses. 

However, I believe there is perhaps an even larger benefit to be realized by U.S. 

ratification of the CRPD. As the widespread creation, availability, and use of accessible technology increases, we have a unique opportunity to transform not only the 

way we do business, but our society as a whole. Because widespread accessibility 

integration cannot be achieved by any one public or private entity, by necessity new 

cross-industry partnership models will emerge to speed innovation and decrease 

time to market. Through these public-private partnerships, IBM and like-minded 

government, business, and technology leaders can affect real and significant change 

for people with disabilities, the aging population and others on a broad scale. 

By partnering together, government, advocacy, health care, education, telecommunications, transportation, technology and other industry leaders can maximize value creation for even more people. The end result will be smarter, more connected, inclusive and accessible societies for all of us. That, I believe, is an outcome 

worth aspiring to and a goal worth pursuing together. 

Mr. Chairman and members of the committee, I hope my insights into IBM’s point 

of view on U.S. ratification of the Convention on the Rights of Persons with Disabilities are helpful. 

Thank you for the opportunity to testify before you today. I look forward to 

answering any questions you may have. 

————————

End Notes 

1 ‘‘Ageing in the 21st Century: A Celebration and A Challenge,’’ Chapter 1. 2012. U.N. Population Fund, http://unfpa.org/ageingreport/.2 2Source Digit. http://sourcedigit.com/1264-global-mobile-penetration-q3-2012/. 

3Los Angeles Times. http://articles.latimes.com/2011/oct/13/business/la-fi-augmented-reality20111013. 4 Juniper Research. http://www.juniperresearch.com/viewpressrelease.php?pr=334. 

5Gartner, ‘‘Market Trends: New Technologies Benefit Employees and People With Disabilities’’ (Published: 20 September 2013). 

The CHAIRMAN. Thank you. 

Professor Rabkin. 

JEREMY A. RABKIN, PROFESSOR OF LAW, GEORGE MASON 

UNIVERSITY OF SCHOOL OF LAW, ARLINGTON, VA 

Mr. RABKIN. Thank you for inviting me, Mr. Chairman. I want 

to make three basic points, and they respond to what Secretary 

Kerry was saying, that this treaty will not require us to do a thing. 

He repeated that over and over again, ‘‘will not require us to do 

a thing,’’ but it will give us a lot of leverage on other countries. 

So my first point is we should stop and pause over this. How 

could it be that although they do not get any leverage on us, we 

get a lot of leverage on them? That just on the face of it seems a 

little bit implausible. If it were true that our ratifying a treaty like 

this gives us a lot of leverage on other countries, then our having 

ratified the Covenant on Civil and Political Rights, which we have 

ratified, would give us the leverage to make sure that there is free 
185

speech in countries like North Korea and Cuba, both of which are 

parties to the Covenant on Civil and Political Rights. It would 

allow us to make sure there is freedom of religion in China, Egypt, 

and Pakistan, countries which are part of that Convention. 

We should remind ourselves that if we can make a promise saying, ‘‘We are promising, but it does not mean anything because you 

cannot force us,’’ they also can make the same promise in the same 

spirit. They can say, ‘‘Oh, yeah, we signed onto this, but you cannot 

force us to do anything.’’ So I think this is a little bit optimistic to 

think just because people have signed this Convention, that means 

they are going to implement it. 

The only way in which there can be American leverage is if we 

actually lean on these countries, we twist their arms. We say, 

‘‘Now, come on, now we really expect you to do it.’’ And I think we 

should pause over that, too. A lot of countries in the world have 

really serious problems. Hundreds of millions of people do not have 

access to clean water, and, therefore, they get all kinds of intestinal 

parasites, and their children get sick. And we are saying, ‘‘No, 

forget about that, what you need are tactile strips. That is the most 

urgent priority. And that is the most urgent priority because 

Americans want to feel totally comfortable when they visit your 

country.’’

Around the world there are countries that have real problems 

with malnutrition, that have real problems with illiteracy, and we 

are saying that is not important. Your highest priority should be 

buying equipment from IBM and other American countries that 

have made advanced equipment to deal with the problems of a 

small subset of your population. And a lot of the discussion today 

was not even about their population; it was about our population. 

I really think we are going to find it difficult to lean on other 

countries and say do this so that Americans when they briefly visit 

your country will be more comfortable. So that is the first thing. 

I think the leverage on other countries is really exaggerated. 

The second thing is, Secretary Kerry said no problem for America. We are not obligated in any way. There are a lot of things in 

this Convention which are not parallel to the ADA. Let me just tick 

off a few. The ADA has a bunch of exceptions for private clubs, for 

religious institutions, for private residences. The Convention does 

not acknowledge any of those exceptions. If we sign the Convention, we are obligating ourselves in our good faith to implement it, 

but the ADA is more restrictive than the Convention. 

Now, it is true that we can say to the implementing committee, 

‘‘We are not listening, we are America, we do not care.’’ But I 

think, inherently, when you sign a treaty, you are making a promise in good faith to implement it, which means we are promising, 

in fact, to do more than we already do with the ADA. There are 

a lot of questions that can arise down the road. What do you mean 

by ‘‘disability’’? The treaty does not define it. Is alcoholism a disability, drug addiction? You can go through a whole series of 

things, which we have disputes about. Do we want the right to 

decide that entirely for ourselves, or are we going to commit, which 

this treaty would do, to say, ‘‘Yes, we will take advice from the 

implementing committee there?’’ 
186

Equal remuneration for work of equal value. That is in article 27. 

That is a big change over what we have done. We do not have anything like that in the ADA. It is not even in our civil rights 

legislation. Are we going to implement that? The Convention has 

provisions about making sure that laws protecting intellectual 

property rights do not conflict—do not constitute an unreasonable 

barrier to access to persons with disabilities. That seems to me to 

say you should not enforce intellectual property rights if it gets in 

the way of helping people with disabilities get access to maybe IBM 

products. Why should IBM insist on its patent since the Convention is saying you should not do that? 

The last thing I want to say is, we have previously not ratified 

human rights conventions of this kind. The human rights conventions that we have ratified up until now have been on very basic 

American style constitutional rights like freedom of religion and 

freedom of speech or opposing torture. This is a big step beyond 

that. This is much more like the Covenant on Economic and Social 

Rights, which we have said through a succession of Presidents 

that, no, we are not going there. That is too ambitious. That is not 

what we understand by human rights. 

If we ratify this Convention, we are saying that anything and 

everything could be something brought to us in the name of human 

rights, and we could commit to it, and we could share with other 

countries what decisions we make about how to regulate our economy, how to take care of poor people, old people, any kinds of people in the country. That is a very, very big step, and we should 

think about that before we say, ‘‘Yes, sure, we will just cross that 

bridge now without worrying about it, because we want to help the 

disabled.’’

I think everybody in America—almost everybody—does want to 

help people who have disabilities. The question is, Do we want to 

do it in partnership with 138 countries? And I think we ought to 

have the self-confidence to say we can decide these matters for ourselves, and we respect their right to decide for themselves. 

Thank you. 

[The prepared statement of Mr. Rabkin follows:] 

PREPARED STATEMENT OF JEREMY RABKIN

Most Americans want to help people with disabilities. So a treaty promising to 

do that generates immediate sympathy. But a treaty is a solemn international commitment. We should not embrace a new international commitment on the basis of 

emotional identification with its aims. Ratifying this Convention would commit the 

United States to obligations we cannot now foresee. An international treaty is a bad 

vehicle for determining what we should do to help people with disabilities. 

Let me start with the most general premise of this Convention, that a coordinated 

global policy in this area is a good thing in itself. Our own Constitution rests on 

the opposite premise—that centralizing and standardizing our public policies is not 

a good thing. Our Constitution confers special responsibilities on the Federal 

Government, then leaves broad areas of policy to states and localities. We call this 

system federalism. It rests on the common sense premise that we will have better 

policy and more effective implementation of policy, if we let people decide matters 

locally, where immediately affected communities know more about their own problems, their own resources, their own competing needs. If we insisted on ‘‘one size 

fits all,’’ we would end up with a lot of ill-fitting policy, because circumstances vary 

from place to place. 

Of course, we still have a lot of debate about which policies can be left to State 

and local government and which need to be directed by the Federal Government. 

That has been a large part of the current debate on how to improve our system of 
187

health insurance. And the same concerns apply to protections for persons with disabilities: if Washington can’t manage the regulation of health insurance, why suppose that Geneva can be trusted to oversee a global scheme of protections for people 

with disabilities? When you agree to have your policies regulated by some higher 

authority, you inevitably risk losing control of your own policies. 

When it comes to protection for people with disabilities, there have been undeniable benefits to national regulation. Among other things, national programs, like the 

Americans with Disabilities Act and the Rehabilitation Act, won greater attention 

and more funding for disability rights. That does not mean, however that we can 

expect to secure even better results by now pushing policy responsibility from the 

national to the international level. 

We certainly won’t get international funding for American programs to help people with disabilities. If there is sharing of resources, we will end up as net contributors to programs in other countries. We can’t even expect that participation in an 

international program will deliver visibility and prestige for efforts to assist the disabled in this country. Our own national government—home to institutions and personalities we see on the news every day—has far more visibility than any U.N. 

forum in Geneva or even at Turtle Bay in New York. Our own national government 

has the prestige of an entity that we depend on, in the last resort, to secure our 

freedom and independence. Americans won’t be more impressed by admonitions 

from international bureaucrats or second rank diplomats. 

So, taking direction from international officials won’t elevate our own efforts to 

help persons with disabilities. It will simply complicate our own efforts, entangling 

them in remote international deliberations, which will be far less informed than our 

own domestic debates about proper policy. We have no reason to embrace the underlying premise here, that global policies are inherently better than national or local 

policies.

This brings me to my second point. This is not just any international convention 

but precisely the type of convention that the United States has, until now, generally 

eschewed. Advocates for ratifying this Convention often say the United States has 

long been a leader in the movement for international human rights, so embracing 

CRPD now will honor our own traditions. Framing the issue in this way, however, 

leaves out some important qualifications. 

Since the late 1940s, when the United Nations first began proposing international 

human rights standards, there has been a debate about how to define human rights. 

Some advocates emphasized restraints on government to protect individual liberty— 

the sorts of restraints enshrined in our own Bill of Rights. Others disparaged such 

limiting principles as outdated. They called for expanding the powers of government 

to assure economic security and well-being to the people at large. People who urged 

such viewpoints often said that the Soviet Union and other socialist countries 

provided more meaningful human rights guarantees than countries with capitalist 

economies, where individuals had to worry about unemployment and material 

deprivation.

The U.N. responded to this debate by proposing two different conventions on fundamental human rights. One addressed ‘‘Civil and Political Rights’’ (free speech, 

religious freedom, due process, and so on); the other dealt with ‘‘Economic and 

Social Rights’’ (guarantees of employment, health care, higher education, etc.). The 

United States has ratified the first Convention but not the second. Our government 

has advocated for civil and political rights in various ways and in various international forums. Advocacy for ‘‘economic and social rights’’ is most often the cry of 

repressive governments, which boast of food subsidies but can’t tolerate personal 

freedoms.

In a similar spirit, the United States has ratified the Convention Against Racial 

Discrimination and the Convention Against Torture. We have thus endorsed the 

basic principle that respectable governments can never engage in torture, never 

perpetrate race discrimination. The United States has not, however, joined the Convention on the Elimination of Discrimination Against Women (CEDAW) nor the 

Convention on the Rights of the Child. These Conventions don’t just prohibit discrimination but go on to demand a series of government commitments to remake 

society in the service of particular egalitarian agendas. 

Our past practice has a sound logic behind it. It is fine (most of us think) for government to help the most vulnerable with particular programs. But as soon as you 

turn from fundamental limits on government to considering such additional commitments, you have opened a very different kind of debate. The question is no longer, 

‘‘Should government have this power at all?’’ To that sort of question, you might 

give a concise, clear answer, set out in the charter of government. When you turn 

to specialized programs of public assistance for vulnerable groups, you must instead 

ask, ‘‘How much should we spend and regulate for this benefit and how should we 
188

do it?’’ We have not previously regarded such programs as proper subjects of international human rights commitments. 

We set down basic constitutional limits on governmental power—civil and political 

rights—for generations to come, ‘‘for ourselves and our posterity’’ as the Preamble 

to the Constitution says. We might think that international human rights treaties 

on those subjects simply reaffirm our longstanding constitutional commitments. 

When, by contrast, our legislatures enact particular protective programs to help particular groups, we expect there will be debate and ongoing compromise and adjustment. So, for example, most of us may agree that government should do more to 

help people with chronic diseases—but that doesn’t necessarily mean we embrace 

the Affordable Care Act in its current form. We reserve the right to change our 

minds, to adjust and improve that new program—perhaps to repeal large parts of 

it, if they do not function as advocates for it had hoped. 

The Convention on the Rights of Persons with Disabilities is not a treaty that 

simply elaborates fundamental limits on government, akin to those set out in the 

International Covenant on Civil and Political Rights. Instead, the CRPD exemplifies 

the activist governing philosophy behind the International Covenant on Economic 

and Social Rights. The CRPD explicitly echoes general provisions of the International Covenant on Economic, Social and Cultural Rights. The latter imposes an 

obligation on states to protect the ‘‘right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and 

to the continuous improvement of living conditions.’’ (Art. 11, Par. 1) In just these 

same terms, the CRPD demands that governments ‘‘recognize the right of persons 

with disabilities to an adequate standard of living for themselves and their families, 

including adequate food, clothing and housing and to the continuous improvement 

of living conditions . . .’’. (Art. 28, Par. 1) 

If we acknowledge that government has this obligation toward persons with disabilities, why not toward others? Why not for ‘‘everyone,’’ as the Covenant on Economic and Social Rights has it? If we embrace international supervision of our 

efforts to help persons with disabilities, why not accept international supervision for 

all other policies? Surely, we will have forfeited the capacity to say that any other 

convention extends to policies outside our own understanding of human rights. If 

we support this convention, we say helping people with disabilities is good and we 

aim to do good. We thus endorse the premise that if something is good, it should 

rightly be managed, directed or supervised on a global basis. 

Advocates for CRPD may reply that it does not really commit us to anything 

because we are already in compliance with all its requirements. Therefore, they say, 

subscribing to this treaty just gives us an opportunity to encourage others to emulate us. In fact, our own laws are not so sweeping and comprehensive as the CRPD. 

And we cannot now know what this convention may be interpreted to require down 

the road. I will come back to that objection in a moment. But let us stipulate, for 

the sake of argument, that the Convention will not constrain us, but only impose 

new obligations on other nations. Even if that were true, ratifying this Convention 

would not be at all wise, given the kind of convention it is. 

As with other human rights conventions, the CRPD makes no provision for 

enforcement, in the sense of formal sanctions for noncompliance. Some parties to 

this treaty may disobey all its requirements, as brutal governments have done with 

other human rights conventions. Saudi Arabia is a party to the Convention on the 

Elimination of All Forms of Discrimination Against Women. The Soviet Union subscribed to the Covenant on Civil and Political Rights. If there is hope for enforcement, it must come from third parties who hector or cajole non-compliant states. 

We did do some of that to the Soviet Union, in its last years—regarding free 

speech and religious freedom. Secretary of State John Kerry recently made clear we 

are not prepared to do that against Saudi Arabia, regarding its treatment of women. 

Asked about the Saudi law prohibiting women from driving cars, he said, ‘‘I think 

that debate is best left to the Saudi Arabian people.’’ But the United States is not 

a party to CEDAW. 

If we ratify CRPD, we would be taking on the moral responsibility to help enforce 

it. Are we really prepared to hector and admonish other countries to implement all 

the provisions in this very ambitious treaty? We would then be demanding that 

even very poor countries expend considerable resources to make public transportation and public buildings accessible to wheel chairs, schools equipped to accommodate blind people, factories to accommodate people with limited mobility. Such 

accommodations often require very large sums of money. Advocates say that if 

CRPD requirements are implemented everywhere, Americans with disabilities will 

find it easier to navigate wherever they travel. But money for this purpose may 

mean less money for schools in countries with limited literacy, less money for inocu-
189

lation programs in countries still facing epidemic disease, less money for food programs in countries with mass malnutrition. 

Do we really want to badger poor countries to cut spending on these other things 

in order to make life more comfortable for American tourists, who will probably be 

few in number and brief in their visits? Do we really want to insist that convenience 

for traveling Americans must take priority over basic human needs in developing 

countries—just because there happens to be an international convention addressing 

‘‘rights of persons with disabilities’’? If we say that, we say that what international 

diplomats think is most important must be taken as such by all the world, even 

when it comes to matters of internal governance. Why would we want to sign up 

for that view of global policy? 

But now I want to address the claim that the United States is already in full compliance, so the Convention makes no demands of us. That view rests on the very 

questionable assumption that you can scan a legal document and know from your 

own initial reading what it will mean in the future. Americans should be the last 

people to accept that naive view. We are often enough surprised by what our own 

judges tell us is in our own Constitution. Who knew, before last year, that our 

Constitution prohibited the Federal Government from forcing people to buy health 

insurance—unless the forcing was implemented by something which judges could 

categorize as a tax? 

Many commentators openly affirm that our Constitution is a ‘‘living document,’’ 

constantly evolving to meet new concerns. Is the CRPD more fixed? The Preamble 

actually proclaims that ‘‘disability is an evolving concept’’ (Par. e). Unless the Convention is simply a collection of empty platitudes, advocates will surely insist that 

it is meant to function as something like a global constitutional standard—which 

can be made to answer precise questions despite the seeming generality of its language. The drafters evidently thought the Convention would be subject to precise 

interpretation. It establishes a committee of ‘‘experts’’ to hand down such interpretation. (Art. 34) 

What is the status of the committee’s determinations? The Convention is sketchy 

about that. It says, for example, that reservations contrary to ‘‘the object and purpose of the convention shall not be permitted.’’ (Art. 46) The Convention does not 

say who will determine which reservations do and which do not meet that test. The 

parallel committee for the International Covenant on Civil and Political Rights (the 

so-called ‘‘Human Rights Committee’’) claimed it had the authority to rule on which 

reservations are and which are not valid. It then claimed that invalid reservations 

should simply be treated as void, reinstating any provision of the Covenant which 

might otherwise have been suspended by a reservation. The Clinton administration 

disagreed, but the Human Rights Committee did not abandon its claims. 

At minimum, we should expect the CRPD committee to assert its own authority 

to say which reservations are valid and which can be discounted as improper. The 

Human Rights Committee claimed this authority even though the ICCPR makes no 

provision for limiting reservations. The CRPD goes to the trouble of making such 

limitation explicit—after setting up the committee to monitor each signatory state’s 

compliance. Maybe a future American administration will challenge the authority 

of CRPD rulings and refuse to comply with their admonitions. But that will now 

be harder in future years than it was in the 1990s. In that era, we had only subscribed to a few basic principles which we could see as analogous to our Bill of 

Rights. In ratifying the CRPD we will have taken a long further step toward committing to international supervision of the whole range of our domestic policies. 

In its present form, the CRPD does not provide for a right of individual appeal 

to the committee. That is provided in an optional protocol, as it has been in optional 

protocols to other human rights conventions. The United States has always rejected 

such protocols, even for conventions we have embraced (as with the ICCPR). If the 

monitoring committee can hear personal complaints from named individuals, it is 

hard for the affected nation to say the committee is just offering speculative advice. 

Why allow individual complaints if decisions on the merits of those complaints can 

be entirely disregarded? Yet the CRPD provides that two-thirds of the signatory 

states can make amendments, binding on all the others, for specialized topics— 

among which are the role of the committee in hearing reports (Art. 47, Par. 3). So 

we might think we had signed up for a general discussion of general policies and 

then discover that we were committed to a quasi-judicial procedure generating a 

whole new body of case law. 

And it’s not as if the Convention doesn’t extend to disputed policies. Our own federal laws were the outcome of careful political bargaining, so they make provision 

for limits and exceptions. The Americans with Disabilities Act, for example, requires 

public buildings to provide access for wheelchairs, but the requirement does not 

apply to purely residential buildings. There are also ADA exemptions for private 
190

clubs and religious institutions. Schools receiving federal financial assistance are 

regulated under Sec. 504 of the Rehabilitation Act, but homeschooling is not. The 

CRPD acknowledges none of these limits or exceptions. It thus threatens to overturn 

all these jurisdictional compromises, subjecting everyone and everything to its 

demands.

Then there will be knotty questions on the substance of policy. What counts as 

a disability? Should alcoholism count? Drug addiction? Sexual addictions? Can employers take into account that a job applicant has been convicted of unlawful behavior (regarding drugs or some form of sexual abuse)? Or should propensity to such 

conduct be considered a disability, so that employers would be guilty of discrimination if they did take this into account? The Convention says employers must provide 

‘‘equal remuneration for work of equal value’’ (Art. 27, Par. 1b). Who determines 

whether a particular job, performed by a person with a disability, does or does not 

have the same financial ‘‘value’’ as a different job, which could not be performed by 

that person? Employers must provide ‘‘reasonable accommodation . . . in the workplace’’ to ‘‘persons with disabilities’’ (Art. 27, Par. 1i). How much extra cost must 

an employer bear before ‘‘accommodation’’ would no longer be ‘‘reasonable’’? Would 

a full-time personal assistant to read or translate directives into sign language be 

‘‘reasonable accommodation’’ for an unskilled blind or deaf person? 

The CRPD says states have an obligation to ‘‘promote the participation, to the 

fullest extent possible, of persons with disabilities in mainstream sporting activities.’’ (Art. 30, Par. 5a) Does that mean professional sports teams must allow disabled athletes to ‘‘participate’’ with motorized devices, even if that gives them an 

unfair advantage? Does it mean schools must allow students with disabilities to participate in contact sports, even if medical experts caution that such participation 

might pose special risks of injury? The Convention admonishes, ‘‘In all actions 

regarding children with disabilities, the best interest of the child shall be a primary 

consideration.’’ (Art. 7, Par. 2) Does that mean state authorities should always be 

empowered to override parental decisions regarding schooling or proposed surgical 

intervention or pharmacologic treatment? 

The CRPD imposes a state obligation to ‘‘adopt immediate, effective and appropriate measures . . . to combat stereotypes, prejudices, and harmful practices relating to persons with disabilities.’’ (Art. 8, Par. 1b) Neither here nor elsewhere does 

the Convention provide exemptions for religious institutions. So far from exempting 

journalistic institutions, it admonishes states to adopt ‘‘measures . . . encouraging 

all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the Convention.’’ (8, 1c, emphasis added) So it might be 

understood to mean that states must compel even religious broadcasters or actual 

churches to disseminate particular ‘‘messages’’ at odds with their own religious 

views, as on such questions as the propriety of mixed sporting activities between 

male and female students when some are disabled. (See Art. 8, Par. 1b, imposing 

a duty to ‘‘combat stereotypes, prejudices and harmful practices . . . including those 

based on sex and age, in all areas of life’’ [emphasis added]). 

The CRPD also imposes a duty to ensure that ‘‘laws protecting intellectual property rights do not constitute an unreasonable . . . barrier to access to persons with 

disabilities.’’ (Art. 30, Par. 3) That might require that patents and copyrights be 

waived whenever doing so would help disabled persons gain readier access to otherwise protected products. The Convention requires states to take ‘‘all necessary measures to ensure the protection and safety of persons with disabilities in . . . situations of armed conflict’’. (Art. 11) That might impose very considerable extra burdens on our military. 

My point is not that absurd or intolerable consequences will necessarily follow 

once we commit to the Convention. My point is that many provisions are open to 

a range of possible interpretations. We have no reliable way of predicting how the 

CRPD committee will interpret the Convention in future years. And we can’t now 

predict whether the United States Government will feel able or willing to reject 

those interpretations. If we start by insisting we will never be influenced by the 

committee’s interpretations, we make the whole project appear to be pointless symbolism. If we are not influenced, why suppose any other country would be? Then 

what is the point? But if we say we are open to influence, we may find it hard to 

resist particular rulings, especially if domestic constituencies embrace them and 

demand that we ‘‘honor our solemn treaty commitments’’ and show ‘‘due respect to 

the consensus of the international community’’ or defer to ‘‘internationally acknowledged experts in this field.’’ 

Nor can we assume that the CRPD monitoring committee will only offer interpretations acceptable to most of the world at that moment and therefore always quite 

modest. The Human Rights Committee of the ICCPR read sexual liberty into the 

‘‘privacy’’ guarantee of that Convention as long ago as the mid-1990s, when many 
191

states (including most American states) still had laws against same-sex sexual practices. The U.S. Supreme Court subsequently cited that ruling in interpreting the 

U.S. Constitution. No Muslim country seems to have felt compelled to follow nor has 

the U.N. made an issue of their restrictive regulation in this area. Even international conventions that seem to indicate universal prohibitions are, in practice, 

understood to apply differently to different countries. When it comes to costly adaptations to complicated social policy aims (such as assuring accessibility of public 

transportation to people in wheelchairs), differential requirements will be taken for 

granted. The Committee is quite capable of imposing requirements on the United 

States and other affluent countries which it does not press on less developed states. 

Again, I am not saying the results will necessarily be onerous or outrageous. But 

I return to my initial point: why commit ourselves to a global partnership when 

deliberating on our own policies in this area? Why assume that a group of international ‘‘experts’’ (as the CRPD calls the committee) will necessarily know better 

than democratically elected representatives in countries that already have much 

experience with these policy questions? 

Of course, we may still have things to learn from other countries. Let us, by all 

means, study their experience. Let us give grants to scholars to write up what they 

have learned from studying the experience of other countries. But why commit ourselves to do the same things they do and in the same way? Why is it so important 

for all nations to follow the same policy standards in this area? 

What about liberty? What about independence? What about pursuing happiness 

in our own varied ways? Aren’t those fundamental American commitments? To embrace this Convention is to confess that we don’t think we can decide these matters 

for ourselves. It is to confess that we don’t think ourselves worthy of self-government. It is not, then, a fulfillment of our Declaration of Independence but a repudiation of its central premise—that we have a right, as an independent nation, to 

decide for ourselves how we will be governed. 

The CHAIRMAN. Thank you. 

Professor Bradley. 

STATEMENT OF CURTIS A. BRADLEY, WILLIAM VAN ALSTYNE 

PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, 

DURHAM, NC 

Mr. BRADLEY. Chairman Menendez, Ranking Member Corker, 

thank you for this opportunity to appear before the committee. I 

want to emphasize at the beginning that I consider myself a strong 

supporter of protecting the rights of the disabled. I am quite proud 

of the laws that the Congress has enacted in this area, including, 

of course, the Americans with Disabilities Act. 

I come here not as an opponent of the Convention, but rather as 

someone who strongly believes that when the United States ratifies 

treaties, it should be attentive to how the treaties relate to U.S. 

constitutional standards and traditions, something I know the Senate is always concerned about. And this is a particular issue when 

it comes to human rights treaties, which by their nature focus 

much more internally than traditional treaties, and, thus, pose 

additional issues for the U.S. legal system. 

Of particular concern, in my view, is that the broad and vague 

terms in the Disabilities Convention, some of which you have heard 

about today, could be used in a manner that would undermine the 

Federal nature of the U.S. constitutional system. To give you a couple of examples, the Convention refers, for example, to standards 

governing the care of children. This is a family law topic, traditionally regulated in the United States under State rather than Federal law. In addition, the Convention addresses private as well as 

governmental conduct without any of the limitations that would 

normally apply to Federal regulation of private conduct, such as a 

requirement of a connection to interstate commerce. 
192

Although Congress has broad authority in the absence of this 

treaty to protect the rights of the disabled and has used that 

authority, there are limits in our system to how far Congress can 

go with respect to the regulation of matters normally addressed by 

State and local governments. Because of a 1920 Supreme Court 

decision, Missouri v. Holland, Congress is allowed, however, to 

expand its normal legislative authority when it is passing legislation to implement a treaty. A concern has been raised, therefore, 

that Congress at any future time could use the Disabilities Convention, if it is ratified, as a basis for legislation that would intrude 

in new ways on State and local authority beyond what Congress 

could normally enact. The United States commitment to federalism, I think, depends on maintaining a national government of 

limited and enumerated powers, and I believe, therefore, that this 

issue should be addressed. 

I do think, fortunately, that it is possible to adequately address 

this issue with an appropriate reservation. I have looked at the reservations proposed by the administration, however, and I think 

they are clearly not adequate. When you read those reservations 

closely, what you find is that they merely state that the government is not required to intrude on State and local authority, but 

they in no way prevent the government from doing that. Those who 

have expressed concerns about the potential reach of the Convention understandably want more assurance than that. 

It is not enough—and this is a rare disagreement between myself 

and Mr. Gray—it is not enough to point to the non-self-execution 

declaration, which is certainly an important one. All that does is 

prevent the Convention right now from being litigated. It has no 

effect at all on the issue of the scope of congressional authority, 

starting the day after the treaty is ratified, to invade State and 

local authority. It is simply a different issue. The proper way to 

address the congressional authority issue is instead by crafting an 

appropriate federalism reservation that expressly disavows expanding the government’s authority beyond what it could do, which is 

quite expansive already, in the absence of the Convention. 

As I discuss in my written testimony, this would not be the first 

time the Senate would adopt such a reservation. I found several 

examples in which the Senate has quite properly attached a similar 

reservation, starting, for example, in the 1951 ratification of the 

charter of the Organization of American States, and I give some 

other examples in my testimony. These reservations make clear, 

unlike what the administration has proposed—just to quote one of 

the reservations in my testimony—nothing in the Convention confers any power on the Congress to take action in fields previously 

beyond the authority of Congress. That is from a prior reservation, 

from a different treaty. Something like that I think is quite clearly 

needed here. 

The administration—and I was quite encouraged by Secretary 

Kerry’s testimony this morning—should not be opposed to this 

idea. And, indeed, if I am interpreting what the Secretary said correctly, he seemed quite receptive to adding reservations along the 

lines that I am suggesting here. Of course, the administration 

maintains that existing law is satisfactory to meet the obligations 

of the United States under the treaty, so it should not claim the 
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need not only for new laws, but laws that would expand Congress’ 

authority beyond what it currently has. And my sense is that Secretary Kerry was acknowledging that. 

I address some other issues in my written testimony about the 

role of the Disabilities Committee and the need for nonseverability 

language.

Thank you for your attention. 

[The prepared statement of Mr. Bradley follows:] 

PREPARED STATEMENT OF CURTIS A. BRADLEY

Thank you for this opportunity to appear before you. I am a strong supporter of 

protection for the rights of the disabled, and I am proud of the strong laws that Congress has enacted in this area, including most notably the Americans with Disabilities Act. I have no doubt that the United States will continue to be a world leader 

on these issues regardless of whether it joins the Disabilities Convention. I come 

here not as an opponent of the Convention, but rather as someone who believes that 

when the United States ratifies treaties it should be very attentive to how the treaties relate to U.S. constitutional standards and traditions. 

I have studied this relationship during almost 20 years of teaching, and also during my service as Counselor on International Law in the Legal Adviser’s Office of 

the U.S. State Department. I have also written extensively about issues relating to 

treaties and their implementation in law journal articles as well as in my recent 

book, ‘‘International Law in the U.S. Legal System’’ (Oxford University Press 2013). 

In addition, I currently have the privilege of serving as one of the Reporters for the 

treaty portion of the American Law Institute’s new Restatement (Fourth) project on 

U.S. foreign relations law. 

POTENTIAL FOR INTRUSION ON STATE AND LOCAL AUTHORITY

The Disabilities Convention, like other human rights treaties, was negotiated 

among a large group of countries and thus is not focused on the constitutional 

standards and traditions of the United States. It should not be surprising, therefore, 

that there might be discontinuities between the approach of the Convention and the 

overall framework of American law. Of particular concern, in my view, is the potential that the broad and vague terms in the Convention could be applied in a manner 

that would be inconsistent with the federal nature of the U.S. constitutional system. 

The Convention refers, for example, to the standards governing the care of children, 

a family law topic traditionally regulated in the United States under State rather 

than Federal law. In addition, in its accessibility and other provisions, the Convention addresses private as well as governmental conduct, without any of the limitations that would normally apply to federal regulation of private conduct—such as 

a requirement of a connection to interstate commerce. 

The Federal Government already has broad authority in the absence of the Convention to protect the rights of the disabled, most notably under its power to regulate commerce and its power under Section 5 of the Fourteenth Amendment to address certain state-sanctioned discrimination, and it has already enacted a number 

of important laws that protect such rights. Nevertheless, there are constitutional 

limits to how far Congress can go with respect to the regulation of matters normally 

addressed by State and local governments or left to private decisionmaking. As a 

result of the Supreme Court’s 1920 decision in Missouri v. Holland, 252 U.S. 416 

(1920), however, Congress is allowed to exceed its normal legislative powers, including its commerce power, if it is implementing a treaty. A concern has therefore been 

raised that Congress could in the future invoke the Disabilities Convention as a 

basis for intruding on State and local authority beyond what would be permitted 

in the absence of the Convention. I believe this is a legitimate concern. 

The importance of this issue was highlighted recently during the Supreme Court 

argument in Bond v. United States. In that case, the Federal Government prosecuted a local poisoning case—something normally within the province of State 

law—under the statute that implements the Chemical Weapons Convention. A number of the Justices on the Supreme Court were surprised that the government had 

decided to use the statute in this way, given that the case did not concern the 

United States international affairs and was of no particular interest to the other 

parties to the treaty. When the Solicitor General told the Court that it would be 

‘‘unimaginable’’ that the Senate would agree to a treaty allowing the Federal Government to exercise a general police power, Justice Kennedy replied that ‘‘[i]t also 

seems unimaginable that you would bring this prosecution.’’ 1 Justice Breyer also 
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expressed concern that the government’s broad reading of the treaty power ‘‘would 

allow the President and the Senate, not the House, to do anything through a treaty 

that is not specifically within the prohibitions of the rights protections of the Constitution,’’ something that Breyer ‘‘doubt[ed] . . . the Framers intended to allow.’’ 2

It is possible, in my opinion, to address the federalism concern that is raised by 

the Disabilities Convention by including an appropriate reservation in the Senate’s 

resolution of advice and consent. The two reservations that were proposed last year, 

however, are not adequate. Those reservations state: 

(1) This Convention shall be implemented by the Federal Government of 

the United States of America to the extent that it exercises legislative and 

judicial jurisdiction over the matters covered therein, and otherwise by the 

state and local governments; to the extent that state and local governments 

exercise jurisdiction over such matters, the obligations of the United States 

of America under the Convention are limited to the Federal Government’s 

taking measures appropriate to the Federal system, which may include 

enforcement action against state and local actions that are inconsistent 

with the Constitution, the Americans with Disabilities Act, or other Federal 

laws, with the ultimate objective of fully implementing the Convention. 

(2) The Constitution and laws of the United States of America establish 

extensive protections against discrimination, reaching all forms of governmental activity as well as significant areas of non governmental activity. 

Individual privacy and freedom from governmental interference in certain 

private conduct are also recognized as among the fundamental values of our 

free and democratic society. The United States of America understands that 

by its terms the Convention can be read to require broad regulation of private conduct. To the extent it does, the United States of America 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 laws of the United States of America.3

In my view, neither of these reservations adequately addresses the constitutional 

concerns. The federalism reservation refers vaguely to ‘‘measures appropriate to the 

Federal system,’’ but that might include measures allowed under Missouri v. Holland, and the reservation specifically states that the Federal Government can take 

enforcement measures against State and local actions that are inconsistent with 

‘‘other Federal laws,’’ which might include laws that Congress enacts in the future 

under the authority conferred by Missouri v. Holland. Similarly, the private conduct 

reservation says that the United States is not accepting any obligation to regulate 

private conduct ‘‘except as mandated by . . . laws of the United States of America.’’ 

Those laws could include statutes enacted in the future pursuant to the authority 

allowed under Missouri v. Holland.

PROPOSED FEDERALISM RESERVATION

To adequately address the constitutional concerns, I believe that the Senate 

should instead include a reservation with its advice and consent that makes clear 

that the Convention will not expand the authority of the Federal Government to 

regulate matters that would otherwise fall outside of Congress’s regulatory authority. The reservation could refer specifically to Article 4(5) of the Convention, which 

states that ‘‘[t]he provisions of the present Convention shall extend to all parts of 

federal states without any limitations or exceptions.’’ I am including an appendix 

with my testimony that proposes language for such a reservation. By limiting U.S. 

obligations to matters that fall within the constitutional authority of the Federal 

Government in the absence of the Convention, this reservation would ensure that 

the Convention does not change either the Federal-State balance or expand the ability of the Federal Government to regulate private conduct. 

There is precedent for what I propose. During the mid-2000s, the Senate included 

with its advice and consent to two treaties—the U.N. Convention Against Corruption and the U.N. Convention Against Transnational Organized Crime—a reservation that withheld consent to certain obligations that would normally be addressed 

by State and local law. In that reservation, the Senate made clear that Federal 

criminal law applies only to conduct that involves ‘‘interstate or foreign commerce, 

or another federal interest,’’ and that the United States was not assuming obligations to address ‘‘highly localized activity.’’ 4 An even closer precedent occurred in 

connection with the U.S. ratification of the Charter of the Organization of American 

States in 1951, when the Senate included with its advice and consent a reservation 

stating that none of the Charter’s provisions ‘‘shall be considered as enlarging the 

powers of the Federal Government of the United States or limiting the powers of 
195

the several states of the Federal Union with respect to any matters recognized 

under the Constitution as being within the reserved powers of the several states.’’ 5

A similar example is the statement issued by the Senate when giving its advice and 

consent to the Convention on the Organization for Economic Cooperation and Development in 1961, which makes clear that ‘‘nothing in the Convention . . . confers 

any power on the Congress to take action in fields previously beyond the authority 

of Congress.’’ 6 A reservation with comparable language is needed here. 

If issued as a reservation, and included in the Senate’s resolution of advice and 

consent, I believe that what I am proposing would be viewed as binding by U.S. 

courts if the Federal Government ever attempted to implement the Convention in 

a way that exceeded Congress’ preexisting constitutional authority. In addition, the 

package of proposed reservations, understandings, and declarations for the Convention already includes a declaration of non-self-execution, which will have the effect 

of preventing the Convention from being judicially enforceable on its own terms. 

Such a declaration has been issued by the Senate in connection with its ratification 

of a number of other human rights treaties, and courts have consistently deferred 

to the declaration. 

In order to obtain the requisite two-thirds senatorial advice and consent, proponents of the Convention should be willing to accept this proposed reservation. The 

Obama administration has stated that existing U.S. law is sufficient to meet the 

obligations that the United States would have under the Disabilities Convention. 

For example, in transmitting the treaty to the Senate in May 2012, President 

Obama stated that ‘‘the strong guarantees of nondiscrimination and equality of 

access and opportunity for persons with disabilities in existing U.S. law are consistent with and sufficient to implement the requirements of the Convention as it 

would be ratified by the United States.’’ 7 Similarly, this committee concluded last 

year, as reflected in one of its proposed declarations for the Convention, that ‘‘in 

view of the reservations to be included in the instrument of ratification, current 

United States law fulfills or exceeds the obligations of the Convention for the United 

States of America.’’ 8 As a result, proponents of the Convention should not be in a 

position to claim that the Federal Government needs authority to enact not only 

new laws, but also laws that exceed the normal (and quite broad) regulatory powers 

of Congress. In any event, in order to protect the U.S. Federal system, it is my view 

that the Senate should not give its advice and consent to the Convention without 

a reservation along the lines of what I am proposing. 

OTHER ISSUES

Another concern that has been expressed about the Convention relates to its 

establishment of the Committee on the Rights of Persons with Disabilities. Monitoring committees established under the Disabilities Convention and other U.N. 

human rights treaties are authorized to issue nonbinding conclusions, recommendations, and general comments to states parties. These committees have sometimes 

issued statements that appear to assume new authority or that reflect expansive 

interpretations of the underlying treaty. In at least one instance, a committee purported to have the authority to determine whether reservations attached by the 

United States to its ratification of the treaty were valid. In addition, the positions 

taken by these committees are sometimes cited as evidence of ‘‘customary international law’’ that might bind the United States without its express agreement.9 As

a result, the Senate should consider including an ‘‘understanding’’ with its advice 

and consent that confirms the limited authority of the Disabilities Committee. 

Last year, the Senate Foreign Relations Committee sought to address concerns 

relating to the Disabilities Committee with this proposed ‘‘understanding’’: 

The United States of America understands that the Committee on the 

Rights of Persons with Disabilities, established under Article 34 of the Convention, is authorized under Article 36 to ‘‘consider’’ State Party Reports 

and to ‘‘make such suggestions and general recommendations on the report 

as it may consider appropriate.’’ Under Article 37, the Committee ‘‘shall 

give due consideration to ways and means of enhancing national capacities 

for the implementation of the present Convention.’’ The United States of 

America understands that the Committee on the Rights of Persons with 

Disabilities has no authority to compel actions by states parties, and the 

United States of America does not consider conclusions, recommendations, 

or general comments issued by the Committee as constituting customary 

international law or to be legally binding on the United States in any 

manner.10

If something like this is included, it could be redrafted to address more specifically what I understand to be the relevant concerns. For example, the under-
196

standing does not currently mention the concern about the Committee passing judgment on reservations. In addition, technically the United States cannot control the 

development of customary international law, so merely saying that the Committee’s 

positions do not constitute customary international law may be ineffective. Professor 

Timothy Meyer testified earlier this month about the role of the Disabilities Committee and usefully suggested some language that could be used to supplement the 

understanding that was proposed last year.11

In any event, regardless of what the Senate ultimately says about the role of the 

Committee, I believe that it would be desirable for the Senate to emphasize the nonseverability of its reservations, including the federalism reservation proposed above. 

The United Nations International Law Commission has concluded that if a reservation is found by a monitoring committee to be invalid (for example, because it is 

inconsistent with the object and purpose of the treaty), the ratifying nation continues to be bound to the treaty without the benefit of the reservation, unless it is 

clear that the reservation was integral to the country’s ratification.12 To ensure that 

the United States will not lose the benefit of its reservations, understandings, and 

declarations, the Senate should consider including a declaration in its resolution of 

advice and consent stating something like the following: ‘‘The United States declares 

that its intention to be bound by this Convention depends on the continuing validity 

and effectiveness of its reservations, understandings, and declarations, except to the 

extent that such reservations, understandings, and declarations have been withdrawn by the United States pursuant to its constitutional processes.’’ 

It would still be open to the United States to decide voluntarily at some point to 

withdraw a particular reservation, understanding, or declaration. In my view, the 

best interpretation of the U.S. Constitution is that new senatorial advice and consent would be required for such a withdrawal. This action would, after all, undo 

something that was subject to the senatorial advice and consent process and, 

depending on what was being withdrawn, could have the effect of increasing U.S 

treaty obligations, which themselves require senatorial advice and consent. It is possible to imagine a situation, however, in which either the Executive branch or a 

majority of Congress would attempt such a withdrawal. In doing so, the Executive 

branch might invoke its general authority to act on behalf of the United States in 

foreign affairs,13 or Congress might analogize to its well-settled authority to override the domestic effects of a treaty under the ‘‘last-in-time rule.’’ 14 To help preclude 

that possibility, the Senate might want to include a declaration in its resolution of 

advice and consent stating something like the following: ‘‘These reservations, understandings, and declarations may not be withdrawn by the United States without 

passage of a new resolution that receives the advice and consent of two-thirds of 

the Senators present.’’ Although I am not aware of any specific precedent for this 

sort of declaration, a number of scholars have concluded that a somewhat analogous 

declaration requiring senatorial advice and consent for the termination of a treaty 

would be constitutionally valid,15 and this committee itself stated—during the 

debate over President Carter’s termination of the Taiwan defense treaty—that it 

was ‘‘clear beyond question’’ that the Senate could validly limit the President’s 

authority to terminate a treaty by placing a condition on such termination in the 

Senate’s advice and consent to the treaty.16

CONCLUSION

The United States commitment to federalism depends on maintaining a national 

government of limited and enumerated powers. Human rights treaties, because they 

concern the internal relationship of a nation to its own citizens, pose unique challenges to this constitutional structure. These challenges are especially apparent 

with respect to the Disabilities Convention in light of its overlap with matters traditionally regulated by State and local law and its failure to distinguish sufficiently 

between public and private spheres of action. The possibility that human rights 

monitoring bodies such as the Disabilities Committee will seek to expand their 

authority naturally raises additional concerns. Nevertheless, I believe that a wellcrafted set of reservations, understandings, and declarations would allow the United 

States to join the Convention while preserving its constitutional values. 

————————

End Notes 

1Transcript of Oral Argument, Bond v. United States, No. 12–158, at 28 (Sup. Ct., Nov. 5, 

2013). 2 Id. at 48. 

3See S. Exec. Rep. 112–6, Convention on the Rights of Persons with Disabilities, 112th Cong., 

2d Sess. 14–15 (July 31, 2012). 4For each of these two treaties, the federalism reservation was included by the Senate at the 

request of the Executive branch. It appears from the U.N. treaty database that these reserva-
197

tions triggered only one objection from another country. The Netherlands objected to the U.S. 

reservation to the U.N. Convention Against Corruption, noting that the reservation left it ‘‘uncertain to which extent [the United States] accepts to be bound by the obligations under the 

treaty,’’ while also making clear that its objection ‘‘does not constitute an obstacle to the entry 

into force of the Convention between the Kingdom of the Netherlands and the United States.’’ 5The Senate Foreign Relations Committee explained in its report on the OAS Charter that 

the reservation was designed ‘‘to make perfectly clear that the provisions of the Charter do not 

enlarge the authority of the Federal Government with respect to the reserved powers of the 

States.’’ Report of the Comm. on For. Rel., Exec. A 81st Cong., 1st Sess. 12 (Aug. 24, 1950). 6The Senate Foreign Relations Committee explained that it wished to make clear that ‘‘nothing in the Convention enlarges, diminishes, or alters the powers of the President or the Congress in respect to any substantive actions taken or that may be taken by the Organization for 

Economic Cooperation and Development.’’ Report of the Comm. on For. Rel., Exec. E 87th Cong., 

1st Sess. 13 (Mar. 8, 1961). 7Letter of Transmittal from President Obama to the Senate (May 17, 2012). 

8S. Exec. Rep. 112–6, supra note 3, at 17. 

9 Customary international law is the law of the international community that ‘‘results from 

a general and consistent practice of states followed by them from a sense of legal obligation.’’ 

Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987). 10S. Exec. Rep. 112–6, supra note 3, at 16. 11See Testimony of Professor Timothy Meyer, ‘‘Hearing on the Convention on the Rights of 

Persons with Disabilities,’’ U.S. Senate Comm. on For. Rel. (Nov. 5, 2013), at http:// 

www.foreign.senate.gov/imo/media/doc/MeyerlTestimony.pdf. 12See Report of the International Law Commission, 63d Session, ch. IV: Reservations to Treaties, Section 4.5.3 (2011). 13See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (referring 

to ‘‘the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations’’). 14See, e.g., Whitney v. Robertson, 124 U.S 190, 194 (1888) (‘‘[I]f there be any conflict between 

the stipulations of the treaty and the requirements of the law, the latter must control.’’). 15See, e.g., Restatement (Third) of the Foreign Relations Law of the United States, supra note 

9, § 339, reporters’ note 3; Michael J. Glennon, Constitutional Diplomacy 156 (1990); Kristen 

E. Eichensehr, ‘‘Treaty Termination and the Separation of Powers,’’ 53 VA. J. INT’L L. 247 

(2013). See also Curtis A. Bradley, ‘‘Treaty Termination and Historical Gloss,’’ 92 Tex. L. Rev. 

(forthcoming 2014). 16Treaty Termination Resolution, S. Rep. No. 119, 96th Cong., 1st Sess. 11 (1979). 

APPPENDIX TO TESTIMONY OF CURTIS A. BRADLEY

Proposed Federalism Reservation for the Disabilities Convention 

The Federal Government has substantial authority to regulate issues relating to 

the rights of persons with disabilities, and it has exercised this authority in connection with a number of important statutes, including the Americans with Disabilities 

Act. The Federal Government’s authority is not unlimited, however, and some matters that relate to the Convention would typically be addressed by State and local 

law. The United States expects that the combination of existing Federal law and 

State and local laws will be sufficient to meet or exceed the obligations of the United 

States under the Convention as ratified by the United States. Because the United 

States does not intend to alter the existing scope of Federal authority, it is not 

assuming obligations under this Convention that would exceed the constitutional 

authority that the Federal Government would have in the absence of the Convention, notwithstanding Article 4(5) of the Convention. Furthermore, nothing in the 

Convention shall be considered as conferring on the Congress of the United States 

the authority to enact legislation that would fall outside of the authority that it 

would otherwise have in the absence of the Convention, or as limiting the powers 

of the several states of the Federal Union with respect to any matters recognized 

under the United States Constitution as being within the reserved powers of the 

several states. 

The CHAIRMAN. Thank you all for your testimony. There is a vote 

pending on the floor. What I am going to do is ask Senator 

Shaheen to proceed with her questions and to take over the chair. 

Senator Corker and I are going to vote, and we will come back 

because we think your testimony is very important, and we want 

to explore it with you. So thank you very much. 

Senator Shaheen. 

Senator SHAHEEN [presiding]. Thank you very much, Mr. Chairman. Thank you to all of the panelists who are here testifying 

today. I apologize for having missed your testimony, and I very 

much appreciate your being here. 
198

I want to, just before I get to my questions, recognize all of the 

veterans who are in the audience today. Thank you for your service, for attending this hearing. And I hope that in a time when 

more veterans such as you are returning home with injuries and 

disabilities, that we can stand up and support your rights and protections, not only here in America, but around the globe. 

I want to quote the words of another veteran from this treaty 

hearing in the last Congress when I was here, John Lancaster, who 

is the former Director of the National Council on Independent Living. And what he said at the last hearing that I think is very powerful is that we aspire to what is in this Convention. ‘‘This is what 

we are about as a nation—including people, giving them freedom, 

giving them rights, giving them the opportunity to work, to learn, 

to participate. Is that not what we are about? Is that not what we 

want the rest of the world to be about? Well, if we are not willing 

to say that this is a good thing and to say it formally, what are 

we about really?’’ For me that sentiment captures what I think this 

treaty should be for, not just the United States, but for the rest of 

the world. 

So I wonder if I can ask each of the panelists, starting with you, 

Ms. West, if you can explain how you think U.S. ratification of the 

Convention would help to advance the goal of making sure that 

people throughout the world have the same kinds of protections 

that people with disabilities have here in the United States. 

Ms. WEST. Because we are a technology company and also a forprofit company, we look at the world from the perspective that 

whatever we bring to the market has to be better for our customers 

and also for the business. And in the area of accessibility, we are 

evolving the technology to be very much human-centric, which 

means that everybody can benefit from accessibility. It is not just 

a small group of people. For example, the aging population and 

people who cannot speak languages can all benefit from this. So 

when we look at this, it is actually doing something good for the 

business and not just good for a small segment of our population, 

but actually for the entire population around the globe. 

And I do want to make a comment about some of the emerging 

countries. Yes, they do face a lot of issues, like clean water. But 

I think you would be surprised that the governments understand 

they actually have many people with disabilities in their population. So they actually appreciate having technologies and technology from countries like the United States to help them deal with 

it. So it is not an either/or situation. We really see this as beneficial both for the citizens of the world and also for business. 

Senator SHAHEEN. Thank you. Can you elaborate a little bit on 

the impact on U.S. businesses if we choose not to ratify the treaty 

and have a seat at the table? What will happen on issues around 

standards and standards development, as you mentioned? Is it 

accurate to say that we would be forced to play a more reactive role 

than be proactive? 

Ms. WEST. Absolutely. The adoption rate of the 21st Century 

Human Rights Convention has been very, very fast. We have seen 

firsthand the countries that have adopted CRPD come together, in 

many cases forming committees, and studying standards in various 

areas. In the technology area, we have already witnessed a dif-
199

ferent kind of thinking, and right now we still enjoy our leadership 

and technology standards leadership. So we are still able to apply 

some of our influence. 

But over time, as you know, especially in the area of technology, 

it evolves very quickly. And by not being there, I think we will very 

quickly lose our ability to impact. And if a new standard is not harmonized based on U.S. standards, for example, then all businesses 

will suffer because that means we potentially have to create different sets of products and different sets of services that will 

adversely impact our ability to really expand commerce. 

Senator SHAHEEN. Thank you very much. Do either of the other 

panelists want to comment on that? 

Mr. RABKIN. Yes. I know John Lancaster. We are colleagues 

together on the board of directors of the United States Institute of 

Peace. And I do not mean at all to put words in his mouth, but 

I think one thing on which we would both agree is there are limits 

to what the United States can expect to do in terms of influencing 

other countries. One of the ways in which we can hope to secure 

a more peaceful world is if we understand that other countries do 

not have to be exactly what we would like them to be. 

I am a little bit uneasy about having this openly said: ‘‘We need 

to have international standards which will force other countries to 

buy American products.’’ First of all, I am very skeptical that that 

is going to work, but second of all, if it does work, I do not think 

it is going to make us more popular. I think there is going to be 

a lot resentment that we are basically saying to poor countries, do 

not spend your money on things that you think are most important. Spend your money on American exports because there is an 

international treaty. It does not require us to do anything, but it 

requires you to buy our stuff. And I think that is kind of a problem, 

and we should all be a little bit more uneasy about that than we 

seem to be. 

Senator SHAHEEN. Gee, that was not my interpretation of what 

I understood Ms. West to be saying. Would you like to respond to 

that?

Ms. WEST. Yes. Standards actually come about from best practices. So in many cases, especially American standards because we 

are a free society where people come together sharing their best 

practices, and that becomes a de facto standard, eventually becoming an international standard. 

Other countries actually look to these kinds of standards because 

they know it is a combination of best practices, so it is not a force 

issue. It is not an action that you impose on people, especially in 

the technology industry. It is a welcomed standard because that 

means they do not have to spend time to go through the trial 

and error that other companies in the world or other industries 

have gone through. So I would say that this is not an adversarial 

kind of a situation. It is usually welcomed very much by the global 

community.

Senator SHAHEEN. Thank you. Mr. Bradley, did you want to comment?

Mr. BRADLEY. Thank you. My view is probably in between these 

positions to some extent. My guess is that the United States will 

continue to be a leader in the area of disabilities protection in the 
200

future even if it does not join the Convention. Why would that be 

the case? It has some of the best laws in this area on the planet, 

and I imagine that Congress will continue to ensure that this is the 

case. And that would allow the United States to continue doing 

what it has done already, which is to serve as a good model regardless of whether it happens to be party to the treaty. 

Having said that, I agree with Secretary Kerry that the United 

States is likely to gain at least some additional leverage both on 

the Committee and more generally if it is a party to the Convention. So I do think that is an advantage potentially of joining the 

Convention. And so, the emphasis of my testimony is simply that 

we should only do that if we are satisfied that we are doing it in 

a way consistent with U.S. law and particularly constitutional 

standards.

Thank you. 

Senator SHAHEEN. Thank you. One of the issues that was raised 

before at the previous hearing on this treaty had to do with concerns that have been raised by some groups about homeschooling 

their children. And last year, the Justice Department testified 

before this committee that the Convention including the phrase 

‘‘best interests of the child’’ would be applied consistent with current U.S. law and would not require a change to existing law. 

I wonder if—as I have looked at the treaty, I do not see that 

there is a threat here to parents who would like to homeschool 

their children. And I just wondered if that was a concern, Mr. 

Bradley, that you have heard about the treaty and what your 

thinking is about whether that is an issue with the current 

wording.

Mr. BRADLEY. Yes, thank you. I believe I do understand that concern. One of the issues that arises whenever you have a treaty like 

this, it is negotiated among a large group of countries. By definition, therefore, the language can be very vague and broad. Its 

implications can be unclear. 

Communities in the United States like the homeschool community, quite understandably want some assurance about what the 

implications of this treaty will be. And you are absolutely right 

that the main assurance that they have gotten is an assurance that 

the Convention will not require a change to existing practice and 

law. What I am urging is that the Senate can give more assurance 

than that and make clear that the Convention will not allow a 

change from what our Constitution permits in terms of the regulation of issues in the family and in terms of home schooling. 

In my view, if the community had that greater reassurance, that 

should be sufficient to address the concerns as I understand them. 

Senator SHAHEEN. So are you suggesting express language that 

would address that? Is that what you are suggesting? 

Mr. BRADLEY. In my view, it would be enough if the Senate were 

to endorse the federalism reservations that I have suggested, which 

make clear that the Convention cannot be used by the government 

to expand its authority in any local, traditionally State domain. 

That would include the homeschooling issue, but would not be limited to it. 

I think that should address those concerns by taking off the table 

the possibility that I think they are worried about, which is that 
201

after the Convention would be put into force there would be some 

intrusion by the Federal Government that would not normally have 

been allowed, but would now be allowed under the Convention, 

even though not required. 

And so, I think the general reservations I am suggesting should 

address the concern as I understand it, and you would not need an 

additional one for home schooling, although some kind of an understanding that has already been proposed that says that this does 

not affect homeschooling would certainly be also quite welcome. 

Senator SHAHEEN. Thank you. Ms. West, you talked somewhat 

about how foreign countries perceive the fact that we have not ratified the Convention. And I wonder if what you have heard from 

business leaders around the world is further concerns about U.S. 

leadership on the issue of disabilities, and the extent to which you 

think that might continue to be eroded if we are not able to pass 

the treaty in this session of Congress or of the Senate. 

Ms. WEST. Well, we see the Convention as a means for us to 

really have a very efficient way of understanding market requirements whether it is in a developed country or developing countries, 

and by not signing the CRPD we see cases where we could be excluded from some of these discussions which could lead to new solutions. And for the business community, it is all about being able 

to understand the customer’s requirement whether it is by country 

or by industry. 

So we think it is very important that we be at the table and be 

able to glean from these discussions about different industries, 

whether it is transportation, or banking, or the retail. That will 

allow United States companies, especially companies that have 

global interests, to be able to continue that leadership in the world 

market.

And also we think, at least in the technology area, that we enjoy 

tremendous leadership with harmonized international standards. 

And these standards are very, very important because they really 

allow the continued leadership of U.S. companies in global settings. 

Senator SHAHEEN. Thank you. I have just gotten notice that they 

have called another vote in the Senate. And so, I think we should 

take a short recess. Hopefully Senator Menendez and Senator 

Corker will be back because they will be able to vote now. But 

because I am going to vote, let us recess for 15 minutes, and hopefully by then they will return. 

Thank you. 

The CHAIRMAN. Here we are. 

Senator SHAHEEN. Very fast. Thank you. 

The CHAIRMAN [presiding]. Thank you, Senator Shaheen. And I 

am sure you got more time than you normally can get. [Laughter.] 

I am sure you made good use of it, too. But our thanks to you 

for chairing in the interim, and thank you to the panel. I thought 

the testimony was all very interesting. 

Let me explore a couple of things. Dr. Rabkin, you know, I listened to your testimony. I understand that you are in opposition 

to the treaty, which I respect. But I think you minimized in your 

testimony the notion of what the treaty can do. In your testimony, 

you seem to disparage the idea of asking other countries to make 

facilities accessible to disabled people in order to make life more 
202

comfortable for American tourists ‘‘who will be few in number and 

brief in their visits,’’ is the exact quote from your testimony. 

Do you not think as America, for a moment, that it is important 

for our country and for our government to try to create the opportunity for Americans to be able to visit a dying relative abroad, to 

be able to do a sales pitch in another country, or have a member 

of our Armed Forces abroad who has a family member with a disability, to be able to have these Americans fulfill their God-given 

potential without the challenges, the impediments that individuals 

with disabilities find globally, and increasingly less in the United 

States, but occasionally still in the United States even with the 

ADA law? 

Mr. RABKIN. Look, I am very sympathetic to people who—— 

The CHAIRMAN. I am not asking about your sympathy. 

Mr. RABKIN. I understand. 

The CHAIRMAN. I am asking you whether or not you believe it 

is—should the power and the advocacy of the United States not be 

used on behalf of its citizens to be able to enjoy abroad what they 

enjoy and access to opportunity here to become a more global 

norm?

Mr. RABKIN. I think we cannot make everything that we like into 

a global norm, and I am skeptical that this is the right priority for 

us. And if I could, Senator, I would just give you another example. 

A lot of Americans have difficulties with foreign languages, and so 

I will include myself there. We would find it a lot easier if everyone 

spoke English, or if they did not speak English, at least—— 

The CHAIRMAN. If other—— 

Mr. RABKIN. Let me just finish—if every country would provide 

us——

The CHAIRMAN With all due respect, that is not a disability, 

though. That is—— 

Mr. RABKIN. It is a limitation. I am not saying it is a severe limitation. The point I am making is we cannot get every country to 

do exactly what we would like them to do. 

The CHAIRMAN. Well, that is true. We cannot get every country 

to be a democracy, although we—— 

Mr. RABKIN. That is right. That is right. 

The CHAIRMAN [continuing]. Although we do not stop from seeking to promote democracy globally. We do not—— 

Mr. RABKIN. We do not have a treaty that requires that. 

The CHAIRMAN. We do not ultimately wish that certain countries 

would act in a way that creates a security challenge to the United 

States, but we send our sons and daughters abroad when we think 

the national security of the United States is at stake. So if I were 

to take your argument to a logical conclusion, then I would, in 

essence, abdicate the U.S. role in so many different dimensions in 

a way in which we would not pursue our national interests. But 

that is your point of view. I respect that. 

Let me turn to Professor Bradley. I want to thank you for— 

I read your testimony as a whole, in addition to listening to your 

synthesized version, and I think it is considered testimony. And I 

look forward to hopefully engaging you, as I am sure Senator 

Corker might, on the RUDs package. 
203

In your testimony, you raise concerns about the reach of future 

implementing legislation for the treaty, even if there is broad 

agreement that existing U.S. law is sufficient to implement the 

treaty. And you raised concerns that the advisory committee the 

treaty creates could somehow invalidate U.S. RUDs, even though 

the treaty does not grant them the power to do that. 

Now, in the last Congress, we adopted a set of RUDs to address 

these federalism and advisory committee power concerns. And I 

think last year my description of it is we used the belt and suspender approach to address these concerns. But now we are in the 

territory of three belts and three pairs of suspenders and a team 

of engineers to supervise the whole operation. But I think if that 

is what is necessary, I certainly want to entertain it. 

So my point here is I get the expression of your concerns, and 

I want to ask you this, though. Assuming that we could adopt a 

set of RUDs that would satisfy your concerns, which may be the 

concerns of others as well, and I am optimistic that we can, do you 

think that we need to wait until the Bond case is decided to consider this treaty, as some have suggested we do? 

Mr. BRADLEY. Thank you, Senator. In terms of what has been 

proposed before, my view is they are not belt and suspenders. I 

have already indicated, for example, that the RUDs that were previously proposed simply say that Congress is not required to invade 

State and local authority. It does not take it off the table, and I 

think that would be helpful. 

As for the Disabilities Committee, it is not fanciful to think that 

it might try to invalidate the reservations. The Human Rights 

Committee of the Civil Rights Covenant already said they have 

that authority. That was not in the treaty either. That is not a fanciful proposition. And it was not addressed in the proposed RUD 

last year on the committee. So those are two examples that I 

think——

The CHAIRMAN. Now you cannot invalidate the RUDs in such a 

way to enforce something domestically. 

Mr. BRADLEY. The invalidation would apply internationally, and 

so then the question would be what the United States would do if 

it has been found not to have those RUDs available internationally. 

But your more general question is, if we could fashion a set of 

RUDs—and by the way, I am optimistic that we can. And listening 

to the Secretary of State this morning, I thought he sounded optimistic that we could. And he seemed quite willing to add additional 

belts and suspenders along the lines of what you were just asking 

about.

If that were done, my view is that that would be sufficient as 

long as the language is really tight in the way that I talked about 

in my written testimony. 

The CHAIRMAN. So let me get to the core of my question, which 

is, I hear what your concerns are, and you have reiterated them, 

and I get it. My question is, Assuming that we did, that we even 

worked with you and got to language that through you would satisfy some of our colleagues on these critical issues, do you really 

think that we need to wait for a decision on Bond in order to 

accomplish this goal? 
204

Mr. BRADLEY. I do not. It is possible that the Bond case would 

cut back on some of the treaty power concerns that have been 

raised. The Supreme Court is not going to add additional concerns 

in my view. So as long as the RUDs we are talking about address 

those concerns fully, then whatever happens in Bond should not 

change the picture. 

The CHAIRMAN. That is very helpful. Let me just say—make one 

comment on one of your observations with reference to the Human 

Rights Committee, which attempted to expand the scope of its authority. The United States successfully pushed back, and we have 

made it clear before, the committee does not have the authority 

under international law to invalidate RUDs, and neither does the 

Disabilities Committee. 

So, look, any entity—any entity, including the U.S. Congress— 

now, I know that there is a concern about binding future Congresses, and although the RUDs have never been invalidated, to 

our knowledge, in the history of the Congress—look, a future Congress as, Mr. Gray said, can go ahead and amend the Americans 

with Disabilities Act. It has once. We constantly see there is a 

great desire to change the President’s health care law. That is 

under—you know, that is just one of a hundred examples I could 

give.

Now, there are a lot of things that Congress could do—a number 

of hypothetically bizarre things, you know. They could seek to ultimately sell the Capitol for scrap. They could disband—— 

[Disturbance in the audience.] 

The CHAIRMAN. Expressions of approval or disapproval are not in 

order in the committee. I am trying to get to a point here, which 

is that I have great faith, despite our challenges sometimes, in the 

institution and the American people, who would say, wait a 

minute, that is way off of base. 

And so, I just think that in suggesting that—you know, we can 

look at whatever language is necessary, but I do not think this 

Congress wants to bind itself in its actions by what the previous 

Congress decided, as is evidenced by those who want to undermine 

the President’s health care law. So if a present Congress wants to 

change what a previous Congress did, that is part of the nature of 

the essence of government. 

Now, I do not think—I think that only a Congress might be able 

to change a future RUD or change the Americans with Disabilities 

Act. That would go through the same robust debate that takes 

place in the Congress. It would have to get the appropriate majority votes in the Congress, and then it would have to be signed by 

our President. So I think just creating some balance in that as a 

reality of any future issue is just a realistic view. 

Mr. BRADLEY. May I respond to that, Senator? 

The CHAIRMAN. Yes, absolutely. 

Mr. BRADLEY. I largely agree with what you said. If Congress 

decided at some future point to amend the ADA, obviously it could 

consider doing that. We need to recall that Congress used its regular commerce clause and other powers to enact the ADA, and I 

am simply suggesting it should return to those powers if it wanted 

to amend the ADA. 
205

All I am suggesting to take off the table is the claim that some 

Congress might try to expand its authority beyond even the broad 

commerce clause in ways that would address very local, traditionally State law issues. That is the only issue I am talking about taking off the table, not the ability of Congress to legislate. I agree 

with you. 

The CHAIRMAN. And that would be a concern beyond the question 

of this treaty. 

Mr. BRADLEY. It is a concern for treaties because of this old case 

that says if you have a treaty, Congress can then ramp up its 

authority beyond even the commerce clause. 

The CHAIRMAN. So outside of treaties you do not have that concern?

Mr. BRADLEY. The courts would hold Congress to the commerce 

clause outside of the treaty context. And another thing, in the Bond

case, although I do not think we need to wait for it—the Solicitor 

General said, do not worry, the Senate would not do anything crazy 

like invade the prerogatives of the States. And immediately Justice 

Kennedy responds, ‘‘then why do I see this prosecution here of a 

local poisoning case?’’ His response suggests that we should not 

just assume that Congress will not do things we are concerned 

about. Let us instead take them off the table. 

The CHAIRMAN. Yes, except that, let us be clear. In that case, the 

basis under which Federal action took place—in this case the Justice Department pursued—it was under an enacting statute. It has 

been clearly stated here time and time again by all the relevant 

parties that the Americans with Disabilities Act is our enacting 

statute. It has been constitutionally upheld, and to the extent that 

the government would have to prosecute, it would have to prosecute under the ADA. So whatever is prosecuted, it has already 

prosecuted for those who may violated the ADA. 

Mr. BRADLEY. But as you pointed out, Senator, it could be 

amended.

The CHAIRMAN. Of course—well, anything we do here can be 

amended. But in Bond—I think it is just a little absurd, and I do 

not want to prolong it. But it just a little absurd to think that 

somehow we are not going to ever allow a future Congress to 

change anything that a previous Congress does because as Americans change majorities, for example, they do that for a reason. 

They want to see a different course of action. So I am not quite 

sure that that can be full proof. But I get your concerns. 

Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman. And just for those 

looking on, I know that someone raised the issue of the Bond case

being heard before we act. I just want you to know I am not the 

person who did that. I want to make sure that people understand 

I am not that person. And second, I know that—— 

The CHAIRMAN. You always have a more considered view. 

Senator CORKER. OK, thank you. The second thing I would like 

to mention is I know a number of our members obviously have not 

been able to be here, but are reading the testimony. And I know 

that some of them would like to have until Monday afternoon to 

ask questions, if that is OK, for the record. I know that is not the 

norm.
206

The CHAIRMAN. Without objection, so ordered. 

Senator CORKER. And I think the point, and again, I know that 

you yourself are a legal scholar, and I know these gentlemen are. 

I think the point that he is trying to make on this issue is not that 

a future Congress cannot change laws. We all understand that. But 

it is that a treaty’s ability to affect the commerce clause changes 

dramatically the norms that Congress acts under. And I think that 

is a point that was missed as you all talked past each other a little 

bit, I think, in this last conversation. And I hope it is something 

that we are able to resolve. It is just a point that I am observing. 

So I am going to walk through a very bland set of questions, and 

I apologize because, again, we are trying to work through all the 

legalities here, and I know your testimony spoke to some of these 

things. But, Professor Bradley, I want to just walk through these 

in order to build the record so that if something happens down the 

road, we have that hearing committee. 

Can you describe the CRPD might alter the constitutional balance of power between Federal and State governments, particularly 

in the areas that have long been reserved to the States? 

Mr. BRADLEY. Yes, thank you, Senator. As I have indicated in my 

written testimony, the treaty, unlike existing U.S. law, addresses 

some matters that have always been left to State and local regulation or to private decisionmaking. It is not really the fault of the 

Convention. The Convention is written to try to accommodate more 

than 100 legal systems over the entire world. It does not focus on 

U.S. law, so it addresses issues of care of the children and family 

law that primarily in the United States are under the domain of 

State and local law. 

It also does not distinguish between private housing decisions 

and public accommodations. And obviously U.S. law often makes 

those sorts of distinctions, in part because of limits on the Federal 

Government’s authority to regulate private decisions or things that 

are quite local. And, you know, maybe the Bond case will or will 

not change this picture. And I thank you very much, Senator, for 

clarifying my exchange that I had before. You are absolutely right 

about that. The issue is not whether Congress could change the 

laws. It could always use its regular powers to do that, and that 

is just a different Congress. 

We have case law, though, that says if there is a treaty, Congress 

does not need to worry about any of its normal limits on its legislative authority. There is allegedly nothing too local for Congress 

under this old case, Missouri v. Holland. Once you have a treaty 

in place, you can regulate local housing decisions or private action 

in ways that Congress could never do. And without some protection 

here, there is at least a danger—we can talk about how probable 

it is that the Convention could be used in that sort of way. And 

I do think it is a danger that could be fully addressed by the appropriate reservations, but I do think it is quite important that we do 

that.

Senator CORKER. Are the administration’s proposed RUDs on federalism sufficient to address these concerns? And if not, how would 

you modify those RUDs? 
207

Mr. BRADLEY. Thank you. And as I have testified, I think the 

proposed understandings, declarations, reservations are not sufficient, and I will not go through all of them at the moment—— 

The CHAIRMAN. Could I just interrupt you a minute—— 

Mr. BRADLEY. Yes. 

The CHAIRMAN [continuing]. And ask the ranking member, are 

you referring to the previous RUDs that were—because as far as 

I know, there are no new RUDs that are—we are talking about the 

previous RUDs. 

Senator CORKER. Yes, that is correct. 

Mr. BRADLEY. And I am referring to the ones—— 

Senator CORKER. And they were never adopted. I assume they 

are proposed. 

Mr. BRADLEY. The ones proposed last year, and I think they are 

not sufficient. For one thing, the federalism and private decisionmaking RUDs simply say, if you read them carefully, that the Convention is not requiring that we invade State and local law, and 

not requiring that we take over some private decisions. They do not 

in any way stop Congress from using this Missouri v. Holland idea

to expand Congress’ authority at any time it would like to do so 

in the future. And I sense that a lot of people are OK with making 

it clear that that is not going to happen, and I think that needs 

to be fixed. 

Another issue not addressed by the previously proposed RUDs is 

the problem that the Disabilities Committee might try to strike 

down our reservations, which some committees have tried to do 

before. As Senator Menendez pointed out, the United States 

pushed back on that. However, the U.N.’s International Law Commission, which is the key lawmaking arm of the U.N., has come out 

against the U.S. position and reasoned that, in fact, if a monitoring 

body finds that reservations are not good, the background assumption is that the country is still bound without the benefit of those. 

We may push back on that as well, but it does argue for clarifying 

this point, I think, in the RUDs. 

Senator CORKER. Does the fact that the Supreme Court recently 

heard a case assessing whether treaties may expand the power of 

the Federal Government legitimize these concerns about federalism, even if that case may be decided on other grounds? 

Mr. BRADLEY. I think certainly the Bond case highlights some of 

the concerns that get raised when you have a treaty and then 

implementing legislation. And, you know, Senator Menendez is correct that we do not yet have that because we have earlier legislation. But the issue that people are afraid about is what if we have 

new legislation? And the Senator pointed out that we obviously do 

not know whether that will happen. 

In the Bond case, a lot of people were surprised that a treaty 

that was supposed to deal with issues like the one in Syria is now 

being used for really local crimes within a state. The Justices on 

the Supreme Court, I think, were surprised. I would not be shocked 

if the Senate were surprised that that was what it had agreed to 

in the Chemical Weapons Convention because that treaty, like 

many treaties, is not very specific about what it is requiring. And 

you may find down the line that Congress or the executive branch 

applies treaties in ways that the Senate never intended. And 
208

another argument for RUDs is to prevent that from happening 

down the line. 

Senator CORKER. And again, I know many of these questions 

have been answered in other ways, and I just want to have these 

for the record today. But is it possible that the RUDs adopted by 

the Senate could be altered or overwritten in the future, for 

instance, the reservations against expanded Federal power? If so, 

how would you recommend to ensure the RUDs we adopt are 

protected?

Mr. BRADLEY. Thank you, Senator. We fortunately do not have 

examples of where Congress or the Executive, as far as I am 

aware, have tried to go back on the RUDs. I hope that would be 

unlikely since it is a condition of the Senate’s advice and consent. 

I am assuming these would be included in the resolution of advice 

and consent. But if we were worried about that, I talk about in my 

written testimony that it could be made very clear in the RUDs 

that these are nonseverable and that the way to withdraw them— 

and I think Secretary Kerry was asked about it this morning— 

would be to go back to the Senate. 

I was understanding the Secretary to be receptive to clarifying 

that one would need to go back to the Senate in order to alter the 

RUDs. And I would certainly support that idea. 

Senator CORKER. Thank you very much. Professor Rabkin, can 

you describe your specific concerns with the CRPD with respect to 

sovereignty, the specific concerns? 

Mr. RABKIN. I do not know if this will be specific enough for you, 

but I think we ought to have a strong presumption that we get to 

decide for ourselves. I understand the meaning of a treaty is that 

we promise another country, OK, we are with you on this. I think 

there have to be some basic limits about what we can promise. We 

cannot have every aspect of domestic public public policy up for 

grabs, and we just hand it off to some international entity or international process. 

I cannot think of a treaty that is at all analogous to the CRPD, 

that covers a whole range of things about how American Government or American private entities treat other Americans, and we 

are promising the world that we are going to do what the world 

thinks should be done. We have crossed a real bridge when we 

start making those kinds of promises. 

And if I could just briefly add this point, in relation to the discussion you have been having with Curt Bradley here. I think the danger of the RUDs is not that some court will say, ‘‘Ah, ha, gotcha, 

no, we are overriding your reservation.’’ I think the danger is more 

direct. And it is totally foreseeable. It is likely. The monitoring 

committee and other countries will say, ‘‘No, wait, you promised to 

honor the Convention, and since you promised, you have got to live 

up to your promise. And you cannot just say, ‘‘Oh, no, we had our 

fingers crossed behind our back on this, this, and this.’’ 

So I think we will experience moral and political pressure to 

abandon the RUDs. And I think it will be hard for anybody to say, 

‘‘Oh, no, no, no, there was a reservation, so forevermore we have 

that reservation.’’ If we think that we have leverage on other countries, we should expect that they will have leverage on us, and it 
209

may make it hard for us to stick to the exceptions that we have 

tried carve out with the RUDs. And I think that is a problem. 

Senator CORKER. So you may have answered my followup to that, 

but do you think the issues that you have raised can be fully 

addressed through the RUDs, other than—I know this last point 

cannot. But do you think the legal points could be—— 

Mr. RABKIN. I think there are two different issues here. One is, 

can we anticipate every possible difficulty and provide for it in 

advance with the RUDs? Maybe we can, if we are real imaginative 

and work hard. But even then there is the question, what does it 

mean to ratify a treaty when we say, ‘‘Well, we have 28 or 32 exceptions that we are taking, but otherwise we really want to be a 

party to this Convention.’’ I mean, basically if we take exception to 

this provision, this one, this one, and that one—dozens of times— 

we have not really ratified the treaty. So if we are not a party to 

it, why are we pretending to be a party to it? I think there is that 

problem.

And then there is the second problem, which is on any particular 

one of these exceptions, if the monitoring committee, the committee 

of experts, says, ‘‘No, you are wrong, that is not a valid reservation,’’ do we have the self-confidence to say, ‘‘We do not care what 

you said, we are America, we are doing what we want to do.’’ Do 

we have the confidence to speak the way Secretary Kerry did? And 

I have to say I was uncomfortable. I think I am at least as nationalist as he is. I cannot speak French, for example. But I did think 

it was very awkward that he said we do not have to do a thing— 

not one thing. He several times repeated that, we do not have to 

do one thing. 

I just think you cannot in good faith enter into a treaty and then 

say to the world, ‘‘You cannot complain about our compliance, we 

are not doing anything beyond what we already happen to have 

done.’’ We routinely have disputes in the WTO. It does not change 

our law, but when the Appellate Body of the WTO says, ‘‘No, what 

you are doing in America is wrong,’’ we do change our law. We feel 

obligated to do so. 

I do not think we would find it so easy to just shrug off international criticism about our compliance with the CRPD, particularly when the criticism comes from the official committee that is 

set up to decide whether we are in compliance. So I think with any 

one of these RUDs we may find ourselves down the road saying, 

‘‘Oh, OK, sorry, we are not supposed to do that, OK, then we will 

change that law.’’ That is what bothers people about relying on 

RUDs to protect us. 

Senator CORKER. Thank you for your testimony, all of you. And, 

Mr. Chairman, thank you for having this hearing. 

The CHAIRMAN. Thank you, Senator Corker. I just have a couple 

of questions for Ms. West, and after all the time you spent here, 

we need to use your expertise. 

I know the main focus of the reason for this treaty is obviously 

to extend the rights for 58 million Americans, 51⁄2 million veterans, 

to make it more likely than not that they will travel some place 

in the world for business, for education, for pleasure, and more 

likely than not find themselves having standards of accessibility as 
210

we enjoy in the United States, which is the world’s leader in this 

regard. That is the overwhelming compelling reality. 

But I think that your testimony, I think, is important. You know, 

for example, the technologies at IBM—this is not about what Professor Rabkin said, you know, American business, you know. That 

is not the compelling reason. But, my god, everything we think 

about has pretty much an economic dimension to it. And I think 

there is nothing wrong at looking at American leadership, to the 

private sector, in creating in the world standards that will have the 

citizens of those countries enjoy higher standards for their own 

accessibility, as well as for ours. 

So are technologies that provide access to people and disabilities 

a small niche market or a potentially large business opportunity? 

Ms. WEST. It is a huge market, and we think it is just at the 

beginning of a growing market. I think in the past few years with 

the proliferation of, for example, smart phone devices, really puts 

accessibility at the center of technology discussions. Sometimes 

people think of accessibility as just for people with disabilities, 

such as vision or hearing impairment. But a cell phone really 

brings to play that every one of us can be situationally disabled. 

You could be driving the car, but still want to read your e-mail. 

You need some kind of technology to read the e-mail through 

speech.

So we see that accessibility is becoming what we call humancentric technology. Think about the aging population. In the United 

States, we have 76 million people who are baby boomers. In China, 

they will have 365 million people over the age of 65 by the middle 

of the century. So when people age, they naturally will acquire 

disabilities.

So the market is just at the beginning of growth. This is one of 

those areas that we really, truly believe that you can do good while 

you do well. And we have seen that play out in IBM’s history in 

the past 100 years, and we think the CRPD really gives a forum 

and opportunity for all businesses to partake and really do well 

while doing good. 

The CHAIRMAN. You also talk in your testimony about the importance of harmonization of international standards when it comes to 

furthering the interests of the United States in the global market 

for accessible products. Now, there has been some testimony here 

about entanglement in remote international deliberations. Are we 

not in so many different sectors very active in international bodies 

that are promoting standards so that we can try to move them closer and closer to American standards that will open opportunities 

for our people as well as our businesses to be globally competitive? 

Ms. WEST. Yes. The standards are very important not just for 

technology, but for many consumer electronics devices. Harmonized 

standards, especially based on, in many cases, American standards, 

is definitely a positive and also a very preferred position for U.S. 

companies to ensure that we have a leadership position. It helps 

to reduce the cost of goods sold. And also in many cases, especially 

in accessibility, it really gives us an extra moral benefit because 

the technology, in this case, does help people with disabilities better their lives and better their employment opportunities. So it is 
211

really a great example of American innovation that brings benefit 

to the entire world. 

The CHAIRMAN. Well, thank you. Thank you. I am glad we have 

that perspective for the record. Let me close with some final observations.

I think, Professor Rabkin, you seem to be missing a major point 

of Secretary Kerry’s testimony. You stated several times that the 

Secretary said the United States does not have any obligations 

under the treaty. He did not say that. What he has testified to is 

that we have already met our obligations under the treaty, so we 

need to take no additional action to comply. I think that is a very 

significant difference than to say there are no obligations whatsoever. We have already undertaken those obligations. 

Secondly, let me just say that the administration, both today and 

at other times, has repeatedly stated before this committee that all 

legislation necessary to implement the treaty already exists. So, 

therefore, the conversation that we have had about the RUDs look 

like are important both to amplify that and to make sure that 

there are no views that would undermine that reality. 

Now, the concern that the treaty committee could suddenly 

declare itself the arbiter of RUDs simply does not, in my mind, 

hold water in the context of some of our history here. For over 20 

years, we have been a party to the International Covenant on Civil 

and Political Rights, or what is called the ICCPR, which created 

the Human Rights Committee. We have ratified the treaty with a 

number of RUDs, many of which were similar to those we are seeking to include for the Disabilities Treaty. Despite any effort by the 

Human Rights Committee to expand its authority, our ICCPR 

RUDs remain valid both internationally as well as domestically. 

And time and again, our courts, including the Supreme Court in 

Sosa v. Alvarez-Machain, have affirmed the validity of our RUDs 

to the ICCPR, as well as other RUDs in general. So I just, you 

know, think it is important as members read this testimony, and 

as I am sure many will as they make a considered judgment, that 

they know some of that reality. 

Finally, I have a statement from Secretary Shinseki on the Disabilities Treaty, in support of it. And I would ask unanimous consent that it be entered into the record. 

With the thanks of the committee for your testimony, and there 

may be some followup questions because of the nature of what took 

place here, we will keep the record open until the close of business 

on Monday for members to submit any questions that they have. 

I thank you for bringing us your individual expertise and insights. And this committee stands adjourned. 

[Whereupon, at 1:34 p.m., the hearing was adjourned.] 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

RESPONSES OF SECRETARY JOHN F. KERRY TO QUESTIONS

SUBMITTED BY SENATOR ROBERT MENENDEZ

Question. Do you believe that the Senate should wait for the Supreme Court’s 

ruling in Bond v. United States before it considers the Convention on the Rights of 

Persons with Disabilities? Why or why not? 
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Answer. No, there is no reason for the Senate to delay action on the Disabilities 

Treaty until after the Supreme Court issues a decision in Bond v. United States. The Bond case involves a challenge to the constitutionality of an implementing statute that was passed after the Senate gave its advice and consent to a treaty (the 

Chemical Weapons Convention). In contrast, the United States will implement the 

Disabilities Treaty with existing law; no new legislation will be required. The committee recognized this fact last year when it adopted a declaration offered by Senator DeMint. Our relevant domestic legislation was passed entirely independently 

of the Disabilities Treaty and its constitutionality is not in question. 

Question. Article 46 of the Disabilities Treaty states that reservations ‘‘contrary 

to the object and purpose’’ of the treaty shall not be permitted. Does the Disabilities 

Committee have the authority to determine whether reservations are contrary to the 

object and purpose of the treaty? 

Answer. No, the Disabilities Treaty does not give the Disabilities Committee any 

authority to determine whether reservations by States Parties are contrary to the 

object and purpose of the treaty. The Disabilities Committee may only issue nonbinding ‘‘suggestions and general recommendations’’ to parties to the treaty. 

Question. In his testimony, Professor Rabkin pointed out that the committee created by the International Covenant on Civil and Political Rights (the Human Rights 

Committee), to which the United States is a party, claimed that it had the authority 

to rule on which reservations are, and are not, valid, and stated that invalid reservations should be treated as void. Was the United States Government aware of 

this claim and what was its response to it? 

Answer. The United States forcefully objected to the Human Rights Committee’s 

position in 1994 that it could invalidate RUDs and that invalid RUDs should be 

treated as void. We explained to the Human Rights Committee that it lacked 

authority to determine the validity of RUDs, and we reiterated that we would never 

be bound by a treaty obligation to which we reserved, even if another state objected 

to our reservation. The Human Rights Committee has never ‘‘invalidated’’ a U.S. 

RUD, and the fact remains that no international body, including the Human Rights 

Committee and the Disabilities Committee, could somehow do so to a RUD on this 

treaty.

Question. Does the administration believe that it is necessary to include a nonseverability declaration in the RUD package for the Disabilities Convention, as 

Professor Bradley suggests? Why or why not? 

Answer. No, we do not believe that a nonseverability declaration is necessary as 

a legal or practical matter. Such a provision would, to our knowledge, be unprecedented in U.S. treaty practice. Even in cases like the Disabilities Treaty, where federalism concerns are addressed through RUDs (e.g., the International Covenant on 

Civil and Political Rights, the Convention on the Elimination of Racial Discrimination, and the U.N. Convention on Transnational Organized Crime), the RUD packages did not include nonseverability provisions. 

We do not consider there to be a realistic risk that U.S. RUDs could be invalidated. Internationally, there is no body that has the power or authority to take such 

action against a RUD to the Disabilities Treaty. Further, it is the longstanding position of the United States that we could never be bound by a treaty obligation to 

which we have reserved, even if another state party objected to our reservation. Nor 

could another state party invalidate a U.S. understanding or declaration. Domestically, while we cannot completely eliminate the possibility that a U.S. court could 

take such action, it is highly improbable that could happen with regard to this treaty are. We base this assessment on two key factors: First, U.S. courts have routinely 

upheld the validity and enforceability of Senate RUDs (see e.g., Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001), and Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005)). 

Second, if the Senate ratifies this treaty, we understand that it would do so with 

a declaration that the treaty is not self-executing. The effect of such a declaration 

is that the treaty will not be enforceable in U.S. courts and, as a result, could not 

be used as the basis for a lawsuit in U.S. courts. The Supreme Court upheld such 

a declaration in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Accordingly, we see 

no realistic basis for a U.S. court to strike down a RUD related to this treaty. 

Inclusion of a nonseverability declaration for the first time in U.S. treaty practice 

could arguably weaken our position that no international body or other country can 

invalidate a U.S. RUD, by implying that the United States believes such international action could be possible absent a RUD to the contrary. If the Senate 

decides to include this type of provision with regard to the Disabilities Treaty, we 

would recommend crafting the provision in a way to minimize that risk and other 

potentially negative consequences. 
213

Question. In his testimony, Professor Bradley suggested that the Senate might 

want to include a declaration regarding withdrawal of reservations. Is the administration aware of any case in which the executive branch has withdrawn a reservation to a treaty without the advice and consent of the Senate to its withdrawal? 

Answer. No. We are aware of only one case in which the United States has withdrawn a reservation to a treaty, and in that case the Executive sought and received 

the advice and consent of the Senate prior to withdrawing the reservation. In 1975, 

the United States became a party to the Patent Cooperation Treaty of 1970, which 

simplified the filing of patent applications on the same invention in different member countries. In 1984, the President requested the advice and consent of the Senate 

to withdraw a reservation to the treaty that the United States had made when it 

became a party. The Senate gave its advice and consent to that request in 1986. 

Additionally, a provision addressing the process to withdraw a RUD would, to our 

knowledge, be unprecedented in U.S. treaty practice. Even in cases like the Disabilities Treaty, where federalism concerns are addressed through RUDs (e.g., the International Covenant on Civil and Political Rights, the Convention on the Elimination 

of Racial Discrimination, and the U.N. Convention on Transnational Organized 

Crime), the RUD packages did not address a process for withdrawing a RUD. 

Question. Article 36 of the Disabilities Treaty provides that ‘‘[e]ach report’’ by 

States Parties to the Disabilities Treaty ‘‘shall be considered by the [Disabilities] 

Committee, which shall make such suggestions and general recommendations on the 

report as it may consider appropriate and shall forward these to the State Party 

concerned.’’ Does this provision empower the Disabilities Committee to issue authoritative interpretations of the Disabilities Treaty? Does this provision or any other 

provision in the Disabilities Treaty empower the Disabilities Committee to compel 

any action by States or by individuals? 

Answer. Article 36 of the Disabilities Treaty empowers the Disabilities Committee 

to ‘‘consider’’ reports by States Parties on implementation of the treaty and to make 

‘‘appropriate’’ ‘‘suggestions and general recommendations on’’ those reports. Nothing 

in Article 36 or elsewhere in the Disabilities Treaty gives the committee the power 

to issue authoritative, i.e., binding, interpretations of the treaty or compel any 

action by states or individuals. 

Question. In his testimony, Professor Rabkin expressed concern regarding a lack 

of clarity on what will count as a disability under the Disabilities Treaty. What is 

your response to this concern? 

Answer. The fact that the treaty does not contain a definition of disability is a 

strength—it is a recognition that different countries have different definitions and 

that deference should be paid to States’ domestic law in this area. There are multiple definitions of disability in U.S. law. Joining the treaty will not impact or 

require changes to any of those definitions. To remove any doubt on this point, an 

understanding on the definition of disability would make clear that the term is 

defined for the United States coextensively with how it is already defined under 

existing U.S. law. The Senate Foreign Relations Committee adopted such an understanding last year, and I continue to support it. 

RESPONSES OF AMBASSADOR C. BOYDEN GRAY TO QUESTIONS

SUBMITTED BY SENATOR ROBERT MENENDEZ

Question. Professor Curtis Bradley stated during the committee hearing that a 

ratification vote on the treaty need not wait on the Supreme Court’s decision in 

Bond v. United States so long as the committee adopts RUDs satisfying his federalism concerns and concerns about the advisory committee created by the treaty. 

♦ Do you agree with Professor Bradley that there is no need to delay consideration of the treaty until the Bond case is decided? 

Answer. Yes, I agree that it is appropriate for the Senate to proceed to ratification 

before the Supreme Court issues an opinion in the Bond case. While I believe that 

the Supreme Court will decide this case on terms that will make a reservation 

unnecessary, it is prudent to craft a Federalism reservation that limits congressional authority to draft any future implementing legislation to the authority that 

it otherwise has in the Constitution and not rely on the Constitution’s Treaty Power. 

Of course, with the reservations, understandings, and declarations that the Senate 

Foreign Relations Committee adopted last year, no new implementing legislation is 

needed to carry out U.S. responsibilities under the treaty. Further, because of the 

declaration that the treaty is non-self-executing, the treaty cannot be used for a 

cause of action in U.S. courts so there is no way for any court in the United States 
214

to review the treaty or sever any of its provisions. Nevertheless, I agree that a Federalism reservation can maintain our current balance of powers between the Federal 

Government and the States. 

Ratification of the treaty with a Federalism reservation will not freeze disability 

rights law in the United States as it now exists. Future Congresses may choose to 

amend the Americans with Disabilities Act and other Federal disability rights laws 

or even craft new laws to advance the rights of persons with disabilities. However 

any such future legislative action would be based on the authority of the Federal 

Government exclusive of the Treaty Power. 

Question. Some have proposed a ‘‘non-severability’’ reservation for the Disabilities 

Treaty to assure that RUDs adopted by the Senate cannot be stripped after ratification, either by U.S. Courts or any international body. 

♦ Is such a reservation necessary? 

Answer. I do not believe that such a reservation is necessary. The concept of ‘‘nonseverability’’ comes from our domestic law and is a device that allows Congress to 

ensure that the statutes that they enact can stand or fall on its own complete terms 

or, in the alternative, that the law can continue to stand even if one of its provisions 

has been found unconstitutional. For example, the ADA itself has a severability provision. This concept is necessary in Federal legislation because the U.S courts have 

the authority to review Federal statutes and declare them invalid. U.S. courts have 

no jurisdiction to review U.S. treaties nor does any U.S., U.N,. or international 

authority or body have the authority to strip the reservations from a U.S. treaty. 

The manner in which a reservation can be deleted from a ratified treaty is through 

the ratification process itself; i.e., if the President and a two-thirds majority of the 

U.S. Senate decides to do so. 

Question. During the hearing, Professor Rabkin expressed his skepticism as to 

whether ratification of this treaty is the right priority for the United States, and 

whether we should hector, admonish, and badger other countries to improve accessibility and eliminate discrimination for what he calls a small subset of other countries’ populations. 

♦ As someone with a long history of involvement in disability rights issues, what 

is your perspective? 

Answer. The CRPD takes traditional and core American values and raises them 

to the level of international law. Based on our Federal disability laws, the Convention expresses the principles of inclusion, respect for human dignity, individual 

autonomy and freedom of choice, nondiscrimination, accessibility, and equal enjoyment of all rights and freedoms. I believe that it is in the best interests of the 

United States and also to countries around the world for the United States to export 

these values and share our experiences in implementing our disability rights laws. 

There is nothing crass in recognizing the significant benefits to Americans from 

ratification of the Disabilities Convention. In our global economy, U.S. employees 

need to travel and work abroad freely, unencumbered by inaccessibility. Every U.S. 

worker starting a career now and in the future should expect to be called upon to 

travel abroad to enhance his own career and to maintain a competitive edge for his 

U.S. employer. There is no better way for our government to support the long-term 

economic self-sufficiency of the millions of Americans with disabilities than to participate in the global commitment to accessibility that is enshrined in the Disabilities Convention. 

Just as important are the benefits to the countries around the world. Without 

laws like the ADA abroad, millions of children and adults are housed in institutions 

without the enrichment of family life, community resources, or access to the most 

basic civil rights like a birth certificate or even a name. Eighty percent of persons 

with disability live in developing countries and 20 percent of the world’s poorest people have some kind of disability and are the most disadvantaged in their own communities. Ninety percent of children with disabilities in developing countries do not 

attend school. Until the United States ratifies the Disabilities Convention, it is a 

bystander on these critical matters. Our leadership in fighting against these unconscionable practices can make an enormous difference 

We are the leader of the official global initiative on disability nondiscrimination. 

We are not hectoring, admonishing, or badgering other countries when we join with 

them in assisting them in providing rights to their citizens with disabilities. And, 

at the same time, we support the ability of Americans with disabilities, including 

veterans and their families, to become full participants in the world economy. U.S. 

leadership can best be provided only if it ratifies the Disabilities Convention. 

Question. Do you agree that the Convention is a nondiscrimination treaty? 
215

Answer. The Disabilities Convention is a nondiscrimination treaty. In requiring 

equal treatment and reasonable accommodation for persons with disabilities, the 

Convention is anchored in the principles of United States domestic disability law, 

including the landmark Americans with Disabilities Act, the Rehabilitation Act, and 

the Individuals with Disabilities Education Act. At its core the Convention seeks to 

ensure that persons with disabilities enjoy the same rights as everyone else and are 

able to lead their lives as do other individuals, if given the same opportunities. 

The understanding that the committee included last year, one that was first suggested by the Obama administration, on economic, social, and cultural rights confirms that the treaty does not create new rights or programs. It just ensures that 

persons with disabilities will be given the opportunity to enjoy the same rights and 

programs that are already offered by the countries that ratify the treaty. Thus, the 

test for this treaty and for any new reservation, understanding, or declaration is to 

preserve equal opportunities for persons with disabilities; i.e., to ensure that persons 

with disabilities are not treated differently than persons without disabilities. 

RESPONSE OF PROFESSOR JEREMY RABKIN TO QUESTION

SUBMITTED BY SENATOR BOB CORKER

Question. At the conclusion of the hearing on November 21, the Chairman sought 

to address certain previous testimony of yours. You did not have the opportunity 

to respond. Would you please do so here? 

Answer. At the close of the Senate Foreign Relations Committee hearing on 

November 21, Senator Menendez disputed my characterization of Secretary Kerry’s 

testimony. According to Menendez, Secretary Kerry did not mean to say that ratifying the CRPD would impose no obligations on the United States. Rather, Senator 

Menendez insisted, Secretary Kerry only meant to say that the CRPD imposes no 

additional obligations, because the United States has already fulfilled all its obligations by enacting the Americans with Disabilities Act. 

I fully agree with Senator Menendez on what Secretary Kerry meant to say. But 

I believe the underlying claim is incorrect. The ADA includes many exemptions and 

restrictions. For example, by its own terms the ADA does not apply to religious 

institutions, to private clubs, to private residences. The CRPD does not make provision for any of these exemptions or exceptions. To cite another example, the CRPD 

requires employers to provide ‘‘equal remuneration for work of equal value.’’ The 

ADA has no provision requiring employers to adjust pay scales to the intrinsic 

‘‘value’’ of different jobs. These examples could be readily multiplied. The point is 

beyond dispute: by its own terms, the CRPD is a much broader or more comprehensive regulatory charter than the ADA. So it is simply not true that the ADA already 

regulates everything on which the CRPD calls for state regulation. 

It can be argued that the CRPD only means to establish a general standard and 

does not require every state to conform to every one of its requirements in every 

last particular. It can be argued that current American law already does conform 

to the general spirit of the CRPD, so much so that we would not be required to 

implement any additional measures. But the question is, ‘‘required’’ by whom? 

Surely it is not sufficient to say, ‘‘We think we are in compliance, therefore we are.’’ 

If such unilateral assertions work for us, they must work for every state and then 

the Convention becomes so much empty rhetoric. 

The more reasonable reading of the treaty is that it obligates each participating 

state to conform to promptings of the ‘‘experts’’ on the monitoring committee— 

unless a state has very substantial reasons for insisting on an alternate view. But 

neither Secretary Kerry nor Senator Menendez (nor anyone else, that I know of) has 

explained how we can know that all current discrepancies between the ADA and the 

CRPD will, in the future, be judged acceptable under the treaty. The ADA was enacted before the CRPD existed. How likely is it that the drafters of the ADA just 

magically intuited everything that the subsequent treaty would genuinely require, 

while simultaneously intuiting what compromises with the letter of the CRPD 

would still be judged consistent with its ‘‘object and purpose’’? Unless they have 

access to some infallible diplomatic Ouija Board, Secretary Kerry and Senator 

Menendez have no grounds for claiming that we already know what will be eventually required to comply with the CRPD. 

In his closing statement, Senator Menendez also sought to refute another point 

I made in my testimony. I had warned that poor countries might find it difficult 

to provide all the accommodations—ramps, lifts, tactile strips and so on—required 

by the CRPD and such countries might think it more urgent to invest in infrastructure to provide clean drinking water or provide inoculations against infectious dis-
216

eases. I therefore cautioned that such countries might resent American pressure to 

comply with the CRPD—all the more so when American business stood to gain by 

export of specialized products to assist persons with disabilities. In his concluding 

remarks, Senator Menendez pointed out that Congress frequently legislates in ways 

that help American business, so there is no problem with saying the United States 

wants to help people with disabilities around the world—while also helping American business. 

I do not think the remarks of Senator Menendez answer the challenge here. I 

would be happy to stipulate that every Member of the U.S. Senate cares more about 

helping people with disabilities than about helping American business. But the relevant question is not how senators answer to their own consciences, but how American policy will be viewed in poor countries around the world. It is actually very 

hard to explain why the claims of disabled people should take priority over the 

claims of the vastly larger number of people suffering malnutrition or infectious disease. Our insistence that we only want the best for these people rings hollow when 

we say—in public testimony before Senate committees—that we are particularly 

concerned with benefits to visiting Americans or profits to American manufacturers. 

None of this would matter if there were some central authority empowered to 

enforce this treaty. But there is not. It will be enforced only to the extent that major 

states cajole others to comply. If we ratify the CRPD, we would be committing ourselves to lean on all other signatories to implement the treaty. It cannot be helpful 

to start by proclaiming to the world that none of these obligations actually require 

the United States itself to do anything—because we are already perfect in our compliance, as Secretary Kerry proclaimed at the hearing. It is even more awkward for 

us to insist that countries with massive problems devote more of their limited 

resources to buying American gadgets to help visiting Americans with disabilities 

and to help American exporters—because our Congress always likes to do more than 

one thing, when it sets out to do good. 

Perhaps we will say different things to other countries than we say to our own 

people. But that means, we are trying to get the CRPD ratified with arguments to 

our own people that we don’t dare repeat to foreigners. If we cannot say what we 

really mean in front of foreigners, can Americans be sure what it is we really mean? 

RESPONSES OF SECRETARY OF STATE JOHN F. KERRY TO QUESTIONS

SUBMITTED BY SENATOR JEFF FLAKE

Question. I have heard from different sides on this issue and it seems to be widely 

accepted that ratification will not require any changes to U.S. law. I have further 

been told that even if the Committee on the Rights of Persons with Disabilities were 

to somehow find U.S. policy toward disability rights inadequate, and issue a report 

with recommendations to that effect, the recommendations are not binding and the 

United States would still not have to make any changes to its laws. 

♦ a. If that is true for the United States, then it must be true for any other party 

to the treaty, correct? 

♦ b. Doesn’t it stand to reason then, that ratification of this treaty by any country 

does not guarantee any changes in disability policy at the domestic level? 

♦ c. How, then, does U.S. ratification help disability rights abroad? 

Answer. While the United States already fulfills all obligations it would have 

under the Disabilities Treaty as ratified, there are many countries around the 

world, including States Parties to the Disabilities Treaty, which will need to make 

systemic changes and improvements to their laws and practices to comply with the 

treaty. The Disabilities Treaty provides the necessary hook we need to engage most 

effectively with the 138 States Parties and to push them to make the types of systemic changes that we have made over the past few decades, most notably with passage and implementation of the Americans with Disabilities Act in 1990. It also provides the best opportunity we have to influence other countries so that they adopt 

an approach and standards on core disability rights matters that are consistent with 

our standards. 

Our status as a nonparty to the treaty deprives us of this powerful tool. It has 

already resulted in the exclusion of the United States from opportunities to share 

our expertise when other countries come together to discuss issues like education, 

accessibility, and employment standards for people with disabilities—areas where 

the United States is the leader—because we are not a party to the treaty. When 

we are excluded from such opportunities, other countries with different, and often 

lower, standards fill the void. 
217

It is accurate that the Committee on the Rights of Persons with Disabilities can 

issue only nonbinding recommendations and has no power to compel action by the 

United States or other States Parties. While the Committee is a feature of the 

treaty—and will give the United States a platform to showcase to the rest of the 

world the full extent of our gold-standard disability laws—our expectation is that 

the benefits of U.S. ratification will not be derived primarily from the existence of, 

or our interaction, with the Committee. Rather, as noted above, U.S. ratification 

provides the mechanism we need to engage most effectively with the 138 states parties and to push them to make systemic changes necessary for their compliance and 

implementation of the treaty in a manner that is consistent with our approach to 

disability rights. 

Finally, we recognize that U.S. ratification of the treaty must be coupled with a 

sustained diplomatic effort to engage future treaty partners to implement their 

treaty obligations. As I indicated in my testimony before the Senate Foreign Relations Committee, when we ratify the treaty, I ‘‘will send a message to every embassy 

in the world, and we will begin to engage a protocol that will have our people reaching out to every country and every government, and we will use our presence in this 

treaty to leverage these changes in these other countries, to encourage these 

changes, to use the voice that you will give us by actually joining it, a voice that 

we’re not able to exercise today for our absence as a member.’’ 

Question. China ratified the CRPD in 2008, and yet a Human Rights Watch 

report issued in July of this year makes a number of findings which demonstrate 

that, despite its ratification of the treaty, China still has a long way to go to implement policies that would safeguard the rights of the disabled. 

♦ a. If the United States were to ratify this treaty, would that increase any leverage we have over China—or any other nation that has ratified, but not yet complied with CRPD standards—to implement the recommendations of the Committee or otherwise improve life for its disabled population? 

Answer. The Disabilities Treaty is the center of gravity for international disability 

rights. Officials from nations including China regularly question why we have not 

yet ratified the treaty. Our failure to do so weakens our ability to engage effectively 

with these countries on disabilities rights and diminishes our credibility and leverage in this area. 

The Disabilities Treaty provides the necessary mechanism we need to engage 

most effectively with the 138 states parties and to push them to make the types 

of systemic changes that we have made over the past few decades, most notably 

with passage and implementation of the Americans with Disabilities Act in 1990. 

It also provides the best opportunity we have to influence other countries so that 

they adopt an approach and standards on core disability rights matters that are 

consistent with our standards. 

Our status as a nonparty to the treaty deprives us of this powerful tool. It has 

already resulted in the exclusion of the United States from opportunities to share 

our expertise when other countries come together to discuss issues like education, 

accessibility, and employment standards for people with disabilities—areas where 

the United States is the leader—because we are not a party to the treaty. When 

we are excluded from such opportunities, other countries with different, and often 

lower, standards fill the void. 

♦ b. Couldn’t the United States raise the issue of disability rights with China, or 

any other nation, bilaterally, without having to ratify the CRPD? Answer: 

Answer. The Disabilities Treaty is the center of gravity for international disability 

rights. While the United States does raise the issue of disability rights bilaterally, 

including with China, our status as a nonparty to the Disabilities Treaty has diminished our credibility and leverage with other countries and has resulted in our 

exclusion from opportunities to influence other countries as they consider different 

possible approaches to implementation of the treaty. When we are excluded from 

such opportunities, other countries with different, and often lower, standards fill the 

void.

U.S. ratification will be a ‘‘force-multiplier’’ in relationship to our current bilateral 

diplomacy. It is the most effective way for the United States to engage with the 

most countries possible and it will ensure that we have the leverage and credibility 

we need to do so. 

Question. According to CRS, ‘‘Supporters of CRPD contend that U.S. ratification 

would enhance the United States credibility as it advocates the rights of persons 

with disabilities globally.’’ Yet, according to USAID the United States has spent 

more than $33.5 million since 2005 in support of disability programming for 108 
218

projects in 65 countries. I have heard stories of the good these programs are doing 

across the globe. 

♦ a. What other nations operate international disability programming on par with 

what USAID offers? 

♦ b. Has the United States needed to ratify the treaty to operate these programs 

or otherwise advocate in a bilateral fashion support for disability rights? 

♦ c. Are these programs not a sign of American leadership on this issue? 

Answer. There is no doubt that USAID has some of the strongest disability-inclusive programming among international development donors, and that there is much 

for Americans to be proud of in this work. However, by their nature, USAID programs are typically bilateral, project-specific, and necessarily limited in scope. By 

contrast, U.S. ratification of the Disabilities Treaty offers the best possible opportunity to engage other countries and push them to undertake systemic reform across 

a range of issues, akin to the work that was done in the United States following 

passage of the Americans with Disabilities Act. By ratifying the Disabilities Treaty, 

the United States will be best positioned to champion the kinds of systemic reforms 

that we know from our domestic experience are needed to raise standards and improve the lives of persons with disabilities globally, which will expand opportunities 

abroad for the millions of Americans with disabilities. Joining the Disabilities 

Treaty is also the most effective and efficient way for the United States to engage 

with the most countries possible, rather than having to rely solely upon countryby-country engagement. Accordingly, ratification will amplify and enhance the ongoing work of USAID, all without any budgetary impact. 

RESPONSES OF SECRETARY JOHN F. KERRY TO QUESTIONS

SUBMITTED BY SENATOR JOHN BARRASSO

Question. Would the United States ratifying this Convention require any changes 

to current laws or regulations at the State or Federal level? 

Answer. No. While our ratification of the Disabilities Treaty will help expand 

opportunities abroad for the over 50 million Americans with disabilities, it will not 

require any change to domestic law, at the Federal or State level. The United States 

already fulfills all obligations it will have under the Disabilities Treaty as ratified 

with reservations, understandings, and declarations. 

Question. Would the Convention impose new obligations on individuals, private 

organizations, or religious groups? 

Answer. No. While our ratification of the Disabilities Treaty will help expand 

opportunities abroad for the over 50 million Americans with disabilities, it will not 

impose any new obligations on individuals, private organizations, or religious 

groups. Individual privacy and freedom from governmental interference in certain 

private conduct are fundamental values of our free and democratic society, and our 

ratification will safeguard those values. The administration continues to support a 

private conduct reservation, like that included in last year’s Senate resolution of 

advice and consent, which will ensure that the United States does not accept any 

obligation under the Disabilities Treaty with respect to private conduct except as 

mandated by the Constitution and laws of the United States. Additionally, as would 

be reflected in a declaration, the treaty is not self-executing, and therefore cannot 

serve as the basis for a lawsuit in Federal or State court and does not give rise to 

individually enforceable rights in the United States. 

Question. Does the Convention impose any new costs upon U.S. taxpayers? 

Answer. No. While U.S. ratification of the Disabilities Treaty will help expand 

opportunities abroad for the over 50 million Americans with disabilities, our ratification will not impose any new costs on U.S. taxpayers. 

Question. Does the Convention create any legal rights for individuals to bring lawsuits in U.S. Courts? 

Answer. No. While our ratification of the Disabilities Treaty will help expand 

opportunities abroad for the over 50 million Americans with disabilities, it will not 

create any legal rights in the United States. Additionally, as would be reflected in 

a declaration, the Disabilities Treaty is not self-executing. Therefore, it cannot serve 

as the basis for a lawsuit in Federal or State court and does not give rise to individually enforceable rights in the United States. 

Question. Does the administration believe that the three reservations it has proposed are compatible with the object and purpose of the Convention? 
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Answer. Yes. The object and purpose of the Disabilities Treaty is to promote and 

protect the rights of people with disabilities and to ensure nondiscrimination and 

equality of treatment. Our ratification of the treaty will help expand opportunities 

abroad, including for the over 50 million Americans with disabilities, so that they 

enjoy the same opportunities as their nondisabled peers. 

As a result of our constitutional protections and gold-standard disability rights 

laws, the United States already acts consistently with the object and purpose of the 

treaty. The three reservations proposed by the administration clarify our relationship with the treaty. They do not change Federal or State law in the United States, 

and they are consistent with the object and purpose of the treaty. 

Question. Is there anything in the Convention that would take away parents’ 

rights and allow courts to interfere with parents’ decisions regarding their children? 

Answer. No. In the United States, it is incontrovertible that parents decide how 

to raise and educate their children, including deciding whether to homeschool children, so long as such decisions are consistent with Federal and State law. The Disabilities Treaty also embraces the paramount role of parents in the care and upbringing of children with disabilities. Nothing in the treaty or our ratification of the 

treaty will change or detract from the right of parents to make decisions regarding 

their children, including the decision to homeschool children with disabilities. 

Additionally, the executive branch continues to support reservations, understandings, and declarations that will ensure that our ratification of the Disabilities 

Treaty will not have any impact on a parent’s right to make decisions regarding 

their children, including the decision to homeschool children with disabilities. For 

example, last year the Senate Foreign Relations Committee adopted the private conduct reservation proposed by the executive branch. That reservation will ensure that 

the United States does not accept any obligation under the Disabilities Treaty with 

respect to private conduct, including parents’ decisions about their children, except 

as mandated by the Constitution and laws of the United States. 

Question. Would the Convention in any way limit the ability of parents to 

homeschool their children? 

Answer. No. In the United States, it is incontrovertible that parents decide how 

to raise and educate their children, including deciding whether to homeschool children, so long as such decisions are consistent with Federal and State law. The Disabilities Treaty also embraces the paramount role of parents in the care and upbringing of children with disabilities. Nothing in the treaty or our ratification of the 

treaty will limit the ability of parents to homeschool their children. 

Additionally, the executive branch continues to support reservations, understandings, and declarations that will ensure that our ratification of the Disabilities 

Treaty will not in any way limit the ability of parents to homeschool their children. 

For example, last year the Senate Foreign Relations Committee adopted the private 

conduct reservation proposed by the executive branch. That reservation will ensure 

that the United States does not accept any obligation under the Disabilities Treaty 

with respect to private conduct, including parents’ decisions about their children, except as mandated by the Constitution and laws of the United States. 

Question. The United States has successfully undertaken a comprehensive effort 

to protect the rights of persons with disabilities. However, some of the U.S. laws 

offering these protections contain important nuances and exceptions. For example, 

Title I of the Americans with Disabilities Act does not apply to employers with 

fewer than 15 employees. The Convention does not appear to contain a similar 

exception. It is my understanding that the proposed reservation concerning ‘‘nonregulation of certain private conduct’’ in conjunction with the declaration that the 

Convention is not self-executing would make it clear that ratification of the treaty 

would not impose a new mandate on employers exempted by the ADA. 

♦ Can you confirm this understanding? 

Answer. Yes, this understanding is accurate. The treaty is not self-executing, and 

therefore cannot serve as the basis for a lawsuit in Federal or State court. Further, 

a private conduct reservation would ensure that the United States does not accept 

any obligation under the treaty to enact legislation or take any other measures with 

respect to private conduct except as mandated by the Constitution and laws of the 

United States. With these reservations, the Disabilities Treaty would impose no new 

mandate on employers, including those employers exempted by the ADA because 

they have fewer than 15 employees. 

Question. Article 27 of the Convention calls on State Parties to ‘‘protect the rights 

of persons with disabilities, on an equal basis with others, to just and favorable conditions of work, including equal opportunities and equal remuneration for work of 
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equal value . . .’’. This phrase has raised some concern as it could be construed to 

imply that the Convention contemplates comparable worth. The administration has 

recognized this by proposing an Understanding clarifying that ratification of the 

Convention would not require adoption of a comparable worth framework for persons with disabilities. However, the description of this understanding in the Executive Summary is not clear. 

♦ Can you confirm that the proposed understanding does not require the adoption 

of a comparable worth framework? 

Answer. Ratification of the Disabilities Treaty would not require U.S. adoption of 

a comparable worth framework. The understanding adopted by the Senate Foreign 

Relations Committee last year, which the executive branch continues to support, 

makes it clear that the treaty does not require the adoption of a comparable worth 

framework for persons with disabilities. Current U.S. law is consistent with the language in Article 27 regarding equal pay for work of equal value because it provides 

strong protections for persons with disabilities against unequal pay, including the 

right to equal pay for equal work. 

Question. Some have raised concern that the Convention contemplates that 

employers undertake affirmative action measures with respect to employment of 

individuals with disabilities. The Rehabilitation Act requires certain federal contractors and subcontractors to undertake affirmative action efforts, but private sector 

employers who are not federal contractors or subcontractors are not subject to such 

affirmative action requirements. Article 27 of the Convention requires State Parties 

to ‘‘promote the employment of persons with disabilities in the private sector 

through appropriate policies and measures, which may include affirmative action 

programmes, incentives, and other measures.’’ 

♦ Is it the administration’s view that this language does not impose an affirmative 

action mandate on private sector employers? 

Answer. The Disabilities Convention does not impose an affirmative action mandate on private sector employers. The United States fully satisfies the treaty’s 

requirement to promote the employment of persons with disabilities in the private 

sector through appropriate policies and measures, including laws such as the ADA 

and programs such as the Department of Labor’s America’s Heroes at Work program, which addresses the employment challenges of returning service members 

and veterans. These laws and programs effectively satisfy the treaty’s obligations 

by promoting the employment of persons with disabilities in the private sector. 

Even though nothing in the treaty imposes an affirmative action mandate on private employers, the Senate Foreign Relations Committee has previously adopted 

federalism and private-conduct reservations and a non-self-executing declaration, 

which would further ensure that our ratification of the treaty does not infringe on 

constitutionally protected private conduct and that the treaty cannot serve as the 

basis for a lawsuit in Federal or State court and does not give rise to individually 

enforceable rights in the United States. 

PREPARED STATEMENT OF SECRETARY OF DEFENSE CHUCK HAGEL

ON THE DISABILITIES TREATY

On behalf of America’s service members, DOD civilians, and military family members with disabilities, I urge the United States Senate to approve the Convention 

on theRights of Persons with Disabilities. 

One of the legacies of the past 12 years of war is that thousands of young Americans will carry physical wounds for the rest of their lives. These wounded warriors 

deserve to have the same opportunities to live, work, and travel as every other 

American, and to participate fully in society whether at home or abroad. Joining 

this treaty will allow the United States to help shape international practices for 

individuals with disabilities that are consistent with our own high standards for 

access and opportunity. It will also help personnel who have family members with 

disabilities, who often have to choose between their families and their careers when 

considering assignments in other countries. 

Treating people with respect and dignity is one of the fundamental values of the 

United States Armed Forces. It is a value that our men and women in uniform fight 

for around the world. Failing to approve this treaty would send the wrong message 

to our people, their families, and the world. Approving it would help all people fulfill 

their potential. That’s why I strongly support swift Senate action. 
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PREPARED STATEMENT OF ERIC SHINSEKI, SECRETARY OF THE DEPARTMENT OF

VETERANS AFFAIRS, ON THE DISABILITIES TREADY

WASHINGTON.—Ratification of the Disabilities Treaty is important to our Nation’s 

5.5 million disabled Veterans. Ratification of the Disabilities Treaty is not about 

changing America. It’s about helping the rest of the world raise their accessibility 

standards to the gold standard the United States has set through our ADA. Ratification will help reinforce America’s global leadership role and reputation, putting us 

in the strongest position to advance disability rights worldwide. By joining the treaty, we will be helping the 5.5 million Veterans with disabilities and the 50 million 

Americans with disabilities study and work with dignity and pursue greater opportunity abroad with the same access they enjoy at home. 

I served for roughly 10 years in Europe as a disabled Soldier following my tours 

in Vietnam. During that time, I had to learn to walk and run again. I had to convince the Army that I could continue to serve, and learn to adjust to a new reality. 

I recall the absence of aids for the disabled in many places where I served—ramps, 

lifts, automatic door openers, among other devices that are commonly available in 

this country. Our disabled Veterans and service members have put their trust in 

our country. Now, it’s time for our country to put its trust in them. It’s time to ratify 

the Disabilities Treaty. 

I urge the Senate to approve the treaty this year. 
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XIV.—ANNEX III.—LETTERS SUBMITTED FOR THE RECORD IN

SUPPORT OF THE CONVENTION
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TRANSCRIBED PETITION SUBMITTED FOR THE RECORD

In addition to the many letters submitted in support of the Convention, the committee received a transcribed version of a petition 

signed by individuals supporting the Convention. That document 

will be maintained in the committee’s permanent files. 

Æ