united nations nycBy Michael Farris

The UN Convention on the Rights of Persons with Disabilities (CRPD) was adopted by the UN General Assembly on December 13, 2006, and entered into force on May 3, 2008, after it received its 20th ratification. The Optional Protocol to the Convention went into force on the same day after it received its 10th ratification. The CRPD was signed by President Obama on July 30, 2009. Since it has been sent to the U.S. Senate for ratification by President Obama, the U.S. Senate could vote to ratify this treaty at any time.

CRPD calls for numerous protections for people with disabilities. Many of these protections are included in U.S. law as part of the Americans with Disabilities Act (ADA). However, CRPD also includes numerous provisions drafted by the United Nations which would concern many U.S. citizens. Like the Convention on the Rights of the Child (CRC) and Convention on the Elimination of All Forms of Discrimination Against Women (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. Since it is a treaty, the U.S. Constitution requires that it must be ratified by two-thirds of the U.S. senators present at the time of the vote, or 67 senators if all 100 U.S. senators were present.

Here are 10 specific problems I see with the CRPD as written.

1. Any remaining state sovereignty on the issue of disability law will be entirely eliminated by the ratification of this treaty. 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.

2. Article 4(1)(a) demands that all American law on this subject be conformed to the standards of the UN.

3. Article 4(1)(e) remands that “every person, organization, or private enterprise” must eliminate discrimination on the basis of disability. On its face, this means that every home owner would have to make their own home fully accessible to those with disabilities. If the UN wants to make exceptions, perhaps they could. But, on its face this is the meaning of the treaty.

4. Article 4(1)(e) also means that the legal standard for the number of handicapped spaces required for parking at your church will be established by the UN—not your local government or your church.

5. Article 4(2) requires the United States to use its maximum resources for compliance with these standards. The UN has interpreted similar provisions in the UN Convention on the Rights of the Child to criticize nations who spend too much on military issues and not enough on social programs. There is every reason to believe that the UN would interpret these provisions in a similar fashion. The UN believes that it has the power to determine the legitimacy and lawfulness of the budget of the United States to assess compliance with such treaties.

6. Article 6(2) is a backdoor method of requiring the United States to comply with the general provisions of the UN Convention on the Elimination of All Forms of Discrimination against Women. This treaty enshrines abortion rights, homosexual rights, and demands the complete disarmament of all people.

7. Article 7(2) advances the identical standard for the control of children with disabilities as is contained in the UN Convention on the Rights of the Child. This means that the government—acting under UN directives—gets to determine for all children with disabilities what the government thinks is best.

Additionally, under current American law, federal law requires public schools to offer special assistance to children with disabilities. However, no parent 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.

8. The United States, as a wealthy nation, would be obligated to fund disability programs in nations that could not afford their own programs under the dictates of Article 4(2). This is what “the framework of international cooperation” means.

9. Article 15’s call for a ban on “inhuman or degrading treatment or punishment” is the exact same language used in the UN CRC 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.

10. Article 25 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.

Michael Farris is the Founder and Chairman of the Home School Legal Defense Association

Editor’s Note – The U.S. Senate Committee on Foreign Relations is scheduled to hold a hearing on the CRPD on July 12, 2012.

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  1. If the U.S. Senate would ratify the U.N. Convention on the Rights of Persons
    with Disabilities; will it become part of the supreme Law of the
    Land?  We hear it said that whenever the
    Senate ratifies a treaty, it becomes part of “the supreme Law of the
    Land”.  But is that really true?  Walk with me Senator and I will
    show you how to think through this question. You must always ask: Is
    this authorized in the U.S.
    Constitution and exactly where in the U.S. Constitution?  

    Does the federal government have authority to make treaties?  Can
    treaties be about any object? Or, are the proper objects of treaties limited by
    The Constitution?

    Article II, Sec 2, clause 2, of the U.S. Constitution, states the President:

    “shall have Power, by and with the Advice and Consent of the Senate, to make
    Treaties, provided two-thirds of the Senators present concur”

    Article VI, clause 2 says:

    “This Constitution, and the Laws of the United States which shall be made in
    Pursuance thereof; and all Treaties made, or which shall be
    made, under the Authority
    of the United States, shall be the supreme Law of the
    Land; and the judges in every State shall be bound thereby, any Thing in the
    Constitution or Laws of any State to the Contrary notwithstanding.”

    So yes we see that the federal government is authorized to make
    treaties.  Now, we must find out whether there are limitations on this
    treaty making power. It is a classic rule of construction
    (rules for understanding the objective meaning of texts) that
    we must give effect to every word and phrase.  The clause does not say, “Treaties made by the United
    States are part of the supreme Law of the
    Land”. Instead, it says Treaties made under the Authority of the United
    States, are part of the
    supreme Law of the Land.  So we see right
    away that a Treaty is part of the Supreme Law of the Land only if it is made “under the Authority of the United

    From where do the President and the Senate get Authority to act?  From
    The Constitution; the objects of their lawful powers
    are enumerated in the Constitution. The President and Senate must be authorized
    in the Constitution to act on an object before any Treaty made by them on that
    object qualifies as part of “the supreme Law of the Land”.  If the
    Constitution does not authorize the President and Congress to act on an object,
    the treaty is not “Law”; it is a mere usurpation, and deserves to be treated as
    such. (Federalist
    Paper No. 33, last paragraph).

    Because the Constitution is “fundamental” law (Federalist
    No. 78, 11th & 12th paragraphs), it is
    The Standard by which the legitimacy of all Presidential Acts, all Acts of
    Congress, all Treaties, and all Judicial Decisions is measured (Federalist
    No. 78, 10th paragraph).

    In Federalist
    No. 44 (7th paragraph from end), James Madison explains why it
    is necessary that Art. VI, clause 2, provides that federal treaties have
    supremacy over State Constitutions.  Otherwise, a treaty which violates a
    State Constitution would have no effect in that State:

    “as the constitutions of the States differ much from each other, it might
    happen that a treaty or national law of great and equal
    importance to the States would interfere with some
    and not with other constitutions and would consequently be
    valid in some of the States at the same time that it would have no
    effect in others.”

    Let’s turn to Thomas Jefferson, who wrote:

    “In giving to the President and Senate a power to make treaties, the
    Constitution meant only to authorize them to carry into effect, by way of
    treaty, any powers they might constitutionally exercise.”   Thomas Jefferson: The Anas, 1793. ME 1:408

    “Surely the President and Senate cannot do by treaty what the whole
    government is interdicted from doing in any way.” Thomas Jefferson:
    Parliamentary Manual, 1800. ME 2:442

    “According to the rule established by usage and common sense, of construing
    one part of the instrument by another, the objects on which the
    President and Senate may exclusively act by treaty are much reduced,
    but the field on which they may act with the sanction of the legislature is
    large enough; and I see no harm in rendering their sanction necessary, and not
    much harm in annihilating the whole treaty-making power, except as to making
    peace.” Thomas Jefferson to James Madison, 1796. ME 9:330

    The treaty making power of the United States
    is very limited. What are the proper objects of treaties?  To find the
    answer, we must go to The U. S. Constitution to see what it authorizes the
    President and the Congress to do.  The Constitution delegates to Congress the
    powers “To regulate Commerce with foreign Nations … and with
    the Indian Tribes” (Art I, Sec 8, clause 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, Sec
    8, clause 11).  The Constitution authorizes the President to “…appoint Ambassadors,
    other public Ministers and Consuls…” (Art II, Sec2, clause 2).

    The authors of the authoritative Federalist Papers address the treaty making
    power of the United States. 
    John Jay says treaties relate to “war, peace, and to commerce” and to the
    promotion of “trade and navigation” (Federalist
    No. 64, 3rd & 6th paragraphs).  Madison
    says treaties also relate to sending and receiving ambassadors & consuls
    and to commerce (Federalist No. 42, 1st &
    4th paragraphs).

    There may be additional objects of the treaty making power authorized in The
    Constitution.  For example, Art I, Sec 8, clause 8, authorizes Congress
    “To promote the Progress of Science and useful Arts, by securing for limited
    Times to Authors and Inventors the exclusive Right to their respective
    Writings and Discoveries“.  So, the United
    States could properly enter into treaties
    respecting patents & copyrights.

    Let’s look now at the proposed U.N. Convention on the Rights of Persons with
    Disabilities. If ratified by the Senate, would it become part of “the supreme
    Law of the Land”?

    To answer that Question, we must ask:  Does the Constitution grant to
    Congress the power to make laws respecting “Persons with Disabilities”? 
    Does the Constitution grant to the Executive Branch jurisdiction over “Persons
    with Disabilities”?

    The answer to both questions is “NO!”  In addition,
    the 10th Amendment says if a power is not delegated to the United States
    by the Constitution, or prohibited to the States by Art. I, Section 10, it is
    reserved to the States or the people.  The jurisdiction over “Persons with
    Disabilities” is reserved to the States or the People!  Accordingly, if
    the Senate were to ratify the U.N. Convention on the Rights of Persons with
    Disabilities, the treaty would NOT become part of “the supreme
    Law of the Land”, because it would not have been made under the
    Authority of the United States. 
    It would be a mere usurpation and would deserve to be treated as such.

    We are now equipped to find the answer, and you can confidently defend it!

    Don’t forget: The federal government may not lawfully circumvent the
    Constitution by international treaties.  It may NOT do by Treaty what
    it is not permitted to do by the U.S.
    Constitution.  To do is tyranny!

    Finally, Thomas Jefferson points to a legislative remedy if the
    President and the Senate ignore the constitutional limits on the treaty making
    power of the United States.
    Thomas Jefferson says:

    “We conceive the constitutional doctrine to be, that though the President
    and Senate have the general power of making treaties, yet wherever they include
    in a treaty matters confided by the Constitution to the three [he probably
    meant, “two”?] branches of Legislature, an act of legislation will be
    requisite to confirm these articles, and that the House of
    Representatives, as one branch of the Legislature, are perfectly free to pass
    the act or to refuse it, governing themselves by their own judgment whether it
    is for the good of their constituents to let the treaty go into effect or not.”  Thomas Jefferson to James Monroe, 1796. ME

    “I was glad to hear it admitted on all hands, that laws of the United
    States, subsequent to a treaty, control its operation,
    and that the legislature is the only power which can control a treaty. Both
    points are sound beyond doubt.”  Thomas
    Jefferson to James Madison, 1798. ME 10:41

    Our system of checks
    & balances is unique in the world. We made the effort to see if the federal
    government is authorized by the U.S. Constitution to make an U.N. treaty on the
    object of “Persons with Disabilities”. We boldly say NO, it is obvious they do NOT! “The federal government doesn’t have
    the lawful authority under the Constitution to do that!”  Senator you MUST oppose the unlawful unconstitutional
    U.N. Convention on the Rights of Persons with Disabilities.  It would be treasonous to do any other…… 

    proposed treaty would violate American Sovereignty.

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