Tag Archive | "Convention on the Rights of Persons with Disabilities"

Applying an Unratified Treaty in U.S. Domestic Courts: A New Paradigm?

Photo Credit: Kelly Roberts

Photo Credit: Kelly Roberts

Judicial Implications of Treaty Ratification

On December 4, 2012, the United States Senate failed to ratify the United Nations Convention on the Rights of Persons with Disabilities (CRPD).[1] The vote was 61 to 38, lacking just five votes to pass the two-thirds threshold for ratification.[2] The ratification failed despite unanimous support from the Senate Foreign Relations Committee, bipartisan backing, and widespread support from veterans advocacy groups and over 800 disability rights organizations.[3] While the CRPD drafters used the Americans with Disabilities Act[4] as their foundational principles, the primary arguments against ratification focused on the possible effect of an international convention on U.S. laws.[5] Senator Mike Lee of Utah argued:

“First of all, whenever we ratify a treaty it becomes the law of the land under article VI of the U.S. Constitution. Secondly, whenever a body of law, whether embodied in U.N. convention or otherwise, becomes part of the corpus of customary international law, that often makes its way into U.S. judicial opinions. Is it direct? No. Does it directly undo any statute? No. But that doesn’t mean it has no effect. If it had no effect we would not be here debating it today. It is the type of effect we worry about.”[6]

In response, Senator John Kerry discounted Lee’s concern, emphasizing the lack of an enforcement mechanism for the convention.[7] Senator Kerry cited Supreme Court precedent stating that nonexecuting treaties do not “create obligations enforceable in Federal courts.” [8] He went on to emphasize the CRPD’s inability to create “recourse in American courts.”[9]

While the two senators were speaking at cross-purposes, they both were correct in their assessment of the convention’s limitations and potential impact. Senator Kerry’s response referenced the inability to obtain civil relief for complaints based on broad, nonexecuting international law.[10] But even the precedent in Sosa v. Alvarez-Machain Senator Kerry cited includes a lengthy concurring opinion penned by Justice Scalia questioning whether the Court’s decision sufficiently restricted the “discretionary power in the Federal Judiciary to create causes of action for the enforcement of international-law-based norms.”[11] After all, Justice Scalia argued, the lower courts had used their discretion to apply international law in the present suit, whose decision the Court had just reversed.[12] What was to prevent nonexecuting treaties from influencing courts to create common law the legislature never intended?[13]

International Human Rights Law and Local Courts

In fact, less than four weeks after ratification of the CRPD failed, a New York County Judge went even further than Justice Scalia had envisioned. In an order to terminate letters of guardianship, the Surrogate’s Court of New York’s decision cited extensively to the “persuasive weight” of the unratified CRPD in order to enforce a new model of guardianship: supported decision-making.[14] In the Matter of Dameris L., Judge Kristin Booth Glen argued, “This case presents the opportunity to reconcile an outmoded, constitutionally suspect statute … with the requirements of substantive due process and the internationally recognized human rights of persons with intellectual disabilities.”[15] The opinion addressed none of the political concerns raised by senators during the debate, such as expansion of abortion rights or the curtailment of homeschooling.[16] Instead, the opinion focused on the convention’s language expanding a person with disability’s “right to recognition everywhere as persons before the law,” and the legal implication of restrictive guardianship orders, which limit an individual’s ability to “enjoy legal capacity on an equal basis with others in all aspects of life.”[17] Article 12 of the CRPD expressly requires state parties to safeguard against unnecessary curtailment of an individual’s right to act on their own legal behalf.[18] This includes the right to make decisions regarding one’s own life.[19] The CRPD also requires state parties to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”[20] The CRPD asserts that supported decision-making should take the place of substituted decision-making found in traditional guardianship orders, and it challenges the presumption that persons with mental disabilities lack the capacity to access their due process rights.

Through this lens of international human rights law, the Surrogate’s Court opinion called for an expansion of the least restrictive environment standard found in both state and federal statutes.[21] The opinion referenced a New York statute that encoded the “least restrictive form of intervention” for persons with mental disabilities, and New York State constitutional protections upholding due process as requiring “adherence to the principle of the least restrictive alternative.”[22] The court reasoned that state statutory regulations “must be read to include the requirement that guardianship is the least restrictive alternative to achieve the State’s goal of protecting a person with intellectual disabilities from harm connected to those disabilities.”[23] From these state statutory and common law understandings of how New York has approached due process for persons with disabilities in other legal environments, the court then applied the concept of least restrictive environment to guardianships and supported decision-making. Noting the extensive network of family and friends currently supporting Dameris, the court terminated the letters of guardianship granted to the petitioner’s mother and husband, instead recognizing them “as persons assisting and supporting her autonomy, not superseding it.”[24]

Since the Surrogate’s Court ruling on December 31, 2012, three other opinions in New York County courts have cited both to the CRPD in their own termination of excessive guardianship orders.[25] None of these decisions have yet been challenged or brought before the higher courts to rule on their constitutionality. For now, the common law of New York appears to be applying an international understanding of due process rights to American persons with disabilities, granting them access to legal autonomy through supported decision-making plans.

Enacting Legislation

The senate hearings and debates over ratification of the CRPD did not address lack of access to due process rights by persons with disabilities in America. The unchallenged assumption was that the United States already afforded persons with disabilities all the legal rights they could accrue. In a letter submitting the treaty to the Senate for consideration, President Barack Obama asserted that Americans with disabilities already enjoy every right proposed in the treaty.[26] Only one document pertaining to the CRPD even mentioned guardianship in passing.[27] In 2014, President Obama resubmitted the treaty for advice and consent, and the Senate Foreign Relations Committee again passed the measure out of committee and onto the full Senate.[28] The treaty was never brought to the Senate floor for debate. Throughout the debate over ratification, senators raised broad concerns over sovereignty, federalism and constitutional supremacy.[29] In counter, supporters asserted that ratification would give the United States a forum to expand broad rights already granted to U.S. citizens.[30] Left unquestioned by both sides of the debate, however, was the possibility that United States citizens themselves might benefit from principles established in the CRPD.

States, however, may decide to enact aspects of the CRPD on their own. One state legislator in North Carolina, Representative Jean Farmer-Butterfield, has brought forward a bill citing the CRPD in favor of supported decision-making.[31] Like the judicial opinion in the Matter of Dameris L., such a move in one state seems a small, tangential step towards ratification. Whether by statute or common law, however, these international human rights standards established in the CRPD are slowly finding their way to into state law, despite the Senate’s failure to ratify the convention. Perhaps if enough legislators and courts cite to the CRPD in their expansion of due process rights for persons with disabilities, opposition to the treaty will subside. Regardless, this expansion of due process ought to pique our curiosity about what other areas of American jurisprudence might be enhanced through the lens of international law.

 

Melody Joy Fields is a 1L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

_____________________________________________________________________________________________________________________________________

[1] 158 Cong. Rec. S7365, 7379; United Nations Convention on the Rights of Persons with Disabilities art. 12, Dec. 13, 2006, 2515 U.N.T.S. 44910, hereinafter CRPD.

[2] Id.

[3] 160 Cong. Rec. S6278, see statement by Senator Tom Harkin: “Over 800 disability, civil rights, and faith groups, 20 top veterans organizations, and I mentioned the Chamber of Commerce and the Business Roundtable–all support this.”

[4] Americans with Disabilities Act of 1990, 42 U.S.C.§§ 12101–12213 (1990).

[5] See 158 Cong. Rec. S7369

[6] 158 Cong. Rec. S7369.

[7] Id.

[8] 158 Cong. Rec. S7369, quoting from Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).

[9] 158 Cong. Rec. S7372.

[10] See Sosa, 542 U.S. at 738.

[11] Sosa, 542 U.S. at 739.

[12] Sosa, 542 U.S. at 747-49.

[13] Id.

[14] Matter of Dameris L., 956 N.Y.S.2d 848, 855; CRPD art. 12, 2515 U.N.T.S. 44910 at 78.

[15] Matter of Dameris L. at 849.

[16] 158 Cong. Rec. S7369; 160 Cong. Rec. S4677.

[17] CRPD art. 12, 2515 U.N.T.S. 44910 at 78.

[18] Id.

[19] Id.

[20] Id.

[21] See Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1401 (2010).

[22] Matter of Dameris L. at 854, quoting the New York Mental Hygiene Law § 81.01; Matter of Kesselbrenner v. Anonymous, 305 NE2d 903 (1973); and Matter of Andrea B., 405 NYS2d 977 (1978).

[23] See IDEA, 20 U.S.C. § 1401 (2010); Matter of Dameris L. at 854.

[24] Matter of Dameris L. at 856.

[25] Matter of Leon, 43 N.Y.S.3d 769 (2016); Matter of Zhuo, 42 N.Y.S.3d 350 (2016); Matter of Michelle M., 41 N.Y.S.3d 719 (2016).

[26] Letter of Transmittal, 2007 U.S.T. LEXIS 179, 1.

[27] Luisa Blanchfield & Cynthia Brown, The United Nations Convention on the Rights of Persons with Disabilities: Issues in the U.S. Ratification Debate 10 (Congressional Research Service, January 21, 2015).

[28] Id. at 1.

[29] 158 Cong. Rec. S7372; 160 Cong. Rec. S4677; 160 Cong. Rec. S6278.

[30] 158 Cong. Rec. S7372; 160 Cong. Rec. S4677; 160 Cong. Rec. S6278.

[31] 2017 Bill Text NC H.B. 713.

 

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