US Senate Committee on Foreign Relations

Senator Kerry: Objections to Disabilities Treaty don't stand up to scutiny

Tuesday, December 4, 2012

Today's the vote that will decide the Disabilities Treaty. We're just a few short hours away.

I was up late last night getting ready for the final floor debate, and I searched Twitter to see what folks were saying.
There's obviously a lot of good and needed activism happening, and that's gratifying.

But there's also a lot of misinformation being spread to defeat the Treaty -- and that's the nature of democracy -- we should debate the issues fully and rigorously -- and yes -- loudly. And I for one like to see what people are saying, especially the people who don't agree with me. I don't believe in a politics where we just dismiss those who see the world differently, but instead I believe in a dialogue where we engage them.

So I spent some time reading the tweets of folks who don't yet agree we should approve the Treaty.

This one jumped out at me:
"@_jkgal_: John Kerry's HuffPo piece didn't address these specific legal arguments against #CRPD

When I was a young Senator, I'd sit at my desk on the Senate floor and listen to the Senator from New York, Daniel Patrick Moynihan. He used to say something that stuck with me: he said "my colleagues are entitled to their own opinions, but not to their own facts."

So let’s examine the facts.

We can start by permanently retiring the myth that this Treaty somehow infringes on our sovereignty or the principles of federalism.

True, this Treaty creates a committee that can issue non-binding recommendations. Is that a sufficient reason to vote against it? Absolutely not. The fact is, this committee can review reports submitted by nations on the steps they’ve taken to implement the Convention, and it can make non-binding recommendations. It can make suggestions. That's it. Nothing else. It doesn’t have the power to change laws or take any action in the United States, and its recommendations have no legal effect in our state or federal courts.

I know some have concerns about other treaties and their compliance bodies going beyond their mandate. That argument has been used before—and it’s irrelevant here. What the compliance committees for other treaties do will have no bearing on the Disabilities Convention.

What about federalism? Does this Treaty violate the delicate balance between the state and federal government with respect to children with disabilities? Would it “trump state laws” and serve as precedent in state and federal courts?

Wrong again — on both counts. The Treaty doesn’t affect the balance of power between the federal government and the states on these issues in any way. Nor does it require any changes to existing state or federal law. But don’t take my word for it. The Justice Department and former Republican Attorney General Dick Thornburgh testified before the Senate Foreign Relations Committee that any assertion to the contrary was simply incorrect.

But we’ve also heard the myth that U.S. ratification of this Treaty will somehow affirm the establishment of rights that are not recognized under U.S. law. Treaty opponents can point to the International Covenant on Economic, Social and Cultural Rights and cry wolf all they want, but facts are stubborn things.

So let’s be clear: the Disabilities Convention is a non-discrimination treaty. It won’t create any new rights that do not otherwise exist in our domestic law. What are the U.S. obligations under this Treaty? Simple: prevent discrimination on the basis of disability only with respect to rights that are already recognized and implemented under U.S. law.  In other words -- keep doing what we already have done for the 22 years since we proudly passed the Americans with Disabilities Act.

As for the notion that this treaty supports an expansive “social” rather than a “medical” definition of the term “disability,” shifting the focus from physical to attitudinal barriers for persons with disabilities, don’t let the critics fool you.

It’s true that some countries were advocating for an unacceptable definition of “disability” during treaty negotiations. But those efforts failed. They lost. We won. The counterarguments of the United States—and Dick Thornburgh—were successful and the flawed definition was not included in the treaty. Bottom line: the Treaty leaves it up to each country to apply the term “disability” consistent with its domestic laws.

When all else fails, treaty opponents go for their ace in the hole: a lame-duck session is an inappropriate time for outgoing Senators to consider treaties.
I’ll be blunt:  that’s not how the Founders intended the Senate to work—and that's not how our country can afford the Senate to work. The Senate’s power to advise and consent isn’t some arcane procedural matter. It’s a constitutional responsibility. Since the 1970s alone, the Senate has approved treaties during lame-duck sessions a total of nineteen times! It may come as a surprise to some, but voters elect their Senators to serve a full term—and that includes the lame-duck session. Why should this one be any different? We've been working to study and approve this Treaty now for a long time. Senators, including many who won't be here after January, took the time to study it. Why would we throw away their efforts and start the clock new in another Senate with so many new Senators?

In the end, none of the objections that have been put forward against this Treaty stand up to scrutiny. They may sound good, and if any of them were true I couldn't support the Treaty and the Treaty wouldn't have passed out of our Committee in a big bi-partisan 13-6 vote.

No, the concerns are criticisms aren't based on facts. They’re not true—and we should know it by now.

One of the lessons that I've learned over nearly 30 years in the United States Senate is that America is stronger not only when we proclaim truth but when we listen to it.

So let’s throw away the scripts and the tired phrases and put what’s best for the country ahead of what’s best for party or ideology.
What's best for our country?

What's really at stake here? The outcome here will not, despite the fear and politics that have been invoked--will not decide one election here in the Senate. It won't decide one of the fabled Tea Party primaries that are distorting our politics and hurting the ability of the Senate to function. But it will decide whether some people live or die in another country where there is no accountability and only United States values and standards are the difference to the prospects of someone with disability. In some countries children are disposed of--killed--because they have a disability. Our Treaty can help prevent that.

In some countries, disabled children do not get to go to school and certainly have no prospect of a future, simply because they are born with a disability.  This Treaty can help offer hope where there is none. The United States could actually sit at the table and make the difference for people with disabilities because we are willing to push our values and hold other nations accountable to meet our standards-- the Gold standard of the Americans with Disabilities Act. I have heard some of my Republican colleagues talk many times about making the rest of the world more like America -- I'd hate to think that now they'll retreat from that core conviction to oppose a Treaty modeled on the United States' example which has no recourse to the courts and no effect on American law.

This Treaty isn't about American behavior except to the degree it influences other countries to behave 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's that simple.
This isn't a Treaty about changing America. It's a treaty to change the world to be more like America.

So why join? Because we can sit at the table and affect the lives of our citizens by pushing other countries upwards;  because we can gain credibility and accelerate change through our advocacy; because it's good for American business which can sell products and services as other nations raise their standards and need our expertise to meet their goals--which is why the US Chamber of Commerce and a huge number of businesses support this Treaty; because President George H W Bush started  this process and President George W Bush signed the Treaty and to not participate after that is to make a fool of the United States; because in the end, this Treaty and our participation in it can improve the quality of life for people with disabilities;  because to join it is to keep faith with the men and women who have suffered grievous disability in defense of our nation and we owe them nothing less.

This Treaty isn't about changing America, it's about America changing the world. But this vote is a test of America's once-revered Institution the United States Senate -- this vote is a test of whether the Senate which passed the Civil Rights Act and the Voting Rights Act and the Americans with Disabilities Act is still capable of voting to change anything -- let alone still send a message that can change the world. Approve the treaty.

Kerry is chairman of the Senate Foreign Relations Committee.