On the CRPD (US ratification) ... Rethinking

An update to say that my fears proved more correct than my instinct to carefully calibrate what could be acceptable.  The sad thing is, that I allowed myself to think that silence could be safe.  Maybe there are times when that is the case, but this time it wasn't.

On July 26, the anniversary of the ADA, the Senate Foreign Relations Committee put in a bunch of new RUDs.  The one that went over the line for me was a declaration saying that in light of the reservations, U.S. law fulfills or exceeds its obligations under the treaty.  Some of us are calling this the "exceptionalism" declaration to mock its hubris - instead of an outright reservation saying that the country intends to maintain the status quo of its own laws and not conform its law to the requirements of the CRPD, it makes a blanket declaration that its current law fulfills or exceeds all obligations, with the possible exception of state laws that now there is no intention to rectify unless they violate current federal law.  

If that is hard to follow, the reasoning is probably meant to be.  There are lawyers who say that it means no more than what the federalism reservation already said, but this is inaccurate.  The federalism reservation left open the possibility that federal legislation might have to be changed or created as a means by which state law could be brought into compliance.  

The declaration furthermore has the effect of formalizing the conclusions drawn by the administration in its memorandum on U.S. law and the CRPD, making it a binding aspect of the ratification.  The administration had concluded that no laws needed to be changed, but neither this conclusion nor the memorandum had the force of law.  Now it will, if the ratification goes through without change.

The organizations who are promoting ratification with the current set of RUDs, are acting like used car salesmen, trying to create momentum and support now in the disability community and enforcing a blackout as much as they can on objections to the RUDs.  I regret that with my own silence such as it was before, when I failed to openly and honestly analyze the federalism RUD and others in the administration's set, I contributed to the situation we have now.

I'm not certain still if it was a mistake of principle or a mistake of strategy, or just an unfortunate circumstance that the "stealth" strategy being used to push through CRPD ratification didn't work as planned, or at least didn't work as some of those involved were telling us it would.

The cat is out of the bag now but not by much.  Initially I still tried to walk a line that in my mind was one of both principle and strategy, not being willing to trash the CRPD ratification but unable to keep silent in the face of a RUD that destroyed most of the value of ratification.  Part of the problem is that in the U.S. ratification of a human rights treaty doesn't mean much anyway - mainly civil society gets the opportunity to go to the treaty monitoring committee every four years or so and put a lot of time and energy and money into complaining about systemic human rights violations.  And if the committee takes an interest they will make recommendations that can be used in publicity and advocacy.  

We would still have that if ratification goes through with all the RUDs, but it will be quite hollow.  I'd like to imagine an Occupy-type action where people would demonstrate the nonsense of such a ratification, but it's not permitted in the UN and hard to know how to make it felt how the disrespect of our human rights not only in fact but as a matter of policy (through the RUDs) impacts on not only the advocacy, but also the self-respect of the disability community.

I am continuing to circulate a letter opposing the "exceptionalism" position and have also now said that the federalism reservation is simply wrong.   I may end up by saying the ratification should not happen under these circumstances, it may be better to make a clean break.  I'm continuing to think through both issues of principle and strategy, as well as the emotions that inevitably accompany something that is so important to my community and that I have personally put a lot of myself into.  

You can read more about this including a cursory analysis of all the RUDs at my Mad In America blog, and also at the CHRUSP blog.