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How American Cities and States Comply with International Disability Law: A Snapshot of a Cutler Fellow’s Research

June 28, 2018

By: Benjamin Barsky L’19

This piece originally appears in the 2018 Global Affairs Review.

The international community has both welcomed and used the Convention on the Rights of Persons with Disabilities (CRPD) as a means of supporting people with disabilities. On March 30, 2007, when the CRPD opened for signature, 82 states parties signed the Convention, 44 states parties signed the Optional Protocol, and one state party ratified the Convention. According to international law experts, these are the highest numbers of signatories to a United Nations (U.N.) treaty on its opening day. Moreover, according to the U.N., the CRPD was “the first comprehensive human rights treaty of the 21st century and is the first human rights convention to be open for signature by regional integration organizations.” Today, the CRPD has 160 signatories and 175 states parties.

The United States, however, is one of a dozen countries, and the only permanent member of the United Nations Security Council, to have signed but not ratified the CRPD. Late in 2012, the U.S. Senate voted 61 to 38 to ratify the CRPD, falling six votes short of the two-thirds needed to sign on to an international treaty. The Senate’s decision to not ratify the CRPD was fueled by two broad concerns: first, U.S. disability legislation is robust on both the federal and state levels; and second, the policy implications of the CRPD—if ratified and implemented—would undermine the political objectives of those Republican senators who opposed it.

Conventional wisdom suggests that the U.S. Senate’s decision to not ratify the CRPD should undermine its applicability within U.S. borders. However, subnational entities—that is, municipalities and states—have used the CRPD as a means of upholding disability rights. These efforts, it seems, challenge the political rhetoric used against U.S. ratification of the CRPD, demonstrating that international disability laws are not tools used exclusively by national sovereigns.

City mayors across the United States have affirmed their support for the CRPD. Indeed, the Board of Supervisors of the City and County of San Francisco in late 2007 adopted a resolution “urging President George W. Bush to sign the [CRPD] and allow the United States to join the group of nations that have ratified and agreed to be bound by the Convention.” Around the same time, the Chicago City Council adopted a resolution similar to that of San Francisco, but larger in scope. In 2015, the city government of Berkeley, California, affirmed their support for the CRPD, announcing that “Grassroots NGO’s in this country and abroad are eager to have the U.S. join this treaty.” One year later, in 2016, New York City’s Mayor, Bill de Blasio, noted in a press release that New Yorkers “look forward to celebrating the day [the CRPD] is ratified in the U.S.”

Likewise, state legislatures have enacted statutes consistent with the principles of the CRPD, notably with respect to supported decision-making, which are firmly rooted in CRPD principles.

Supported decision-making empowers people with disabilities by giving the support they need to make decisions about their own welfare, so that they don’t need to rely upon third parties. Unlike guardianship proceedings, supported decision-making liberalizes the treatment of people with disabilities on the basis of a belief that people with disabilities are capable of making sound decisions regarding their needs. This legal liberalization, in turn, speaks to the broader principles upheld by the CRPD, which impose obligations of “equal recognition before the law” on ratifying states parties.

The Texas legislature passed into law the Supported Decision-Making Agreement Act in 2015, which seeks “to recognize a less restrictive substitute for guardianship for adults with disabilities who need assistance with decisions regarding daily living but who are not considered incapacitated persons for purposes of establishing a guardianship … .” The state of Delaware followed suit in 2016 with similar legislation, which “[e]nable[s] supporters to assist in making and communicating decisions for the [disabled] adult but not substitute as the decision maker for that adult.”

From a regulatory standpoint, the District of Columbia provides in its special education municipal regulations that supported decision-making arrangements can be made on behalf of a child with a disability with “his or her parents, family members, or other willing adults.”

Salzburg Global Seminar, in partnership with eleven of the leading U.S. law schools, offers the “Salzburg Cutler Fellows Program: The Future of Public and Private International Law,” a one-of-a-kind program for students interested in international law and legal practice. Launched in the fall of 2012, the Salzburg Cutler Fellows Program was named in memory of Lloyd N. Cutler, former White House Counsel for two presidents and Chairman of the Board of Salzburg Global Seminar. Cutler strongly believed that one of the keys to progress was the early identifying and mentoring of young leaders with a yearning to make the world a better place through law and the rule of law.