LETTING TIME SERVE YOU:  BOOT CAMPS AND ALTERNATIVE SENTENCING FOR FEMALE OFFENDERS


THE U.N. CONVENTION ON THE RIGHTS OF 
PERSONS WITH DISABILITIES (CRPD): SOME 

OBSERVATIONS ON U.S. PARTICIPATION 

Thomas D. Grant* 

I. INTRODUCTION

The U.N. Convention on the Rights of Persons with Disabilities 
(CRPD) is an international instrument springing, inter alia, from the 
recognition that “discrimination against any person on the basis of disability 
is a violation of the inherent dignity and worth of the human person.”1 The 
text of the Convention resulted from a number of years of drafting work and 
input from States and non-governmental organizations.2 The text was 
adopted by consensus in the General Assembly on December 13, 2006.3 The 
Convention entered into force in accordance with Article 45, paragraph 1, 
upon receipt by the depository of the twentieth ratification on May 3, 2008.4 

The United States, though it did not participate as a member of the Ad 
Hoc Committee in drafting the Convention, sent an observer and furnished 
substantial input during the Committee’s proceedings.5 The United States 
joined the consensus in the General Assembly6 and on July 30, 2009 signed 
the Convention.7 On May 17, 2012, the President of the United States 

* Research Associate, Lauterpacht Centre for International Law; Senior Research Fellow,
Wolfson College, University of Cambridge; BA, Harvard; JD Yale; PhD, Cambridge;
admitted, MA, NY, District of Columbia. The author in 2008 served as a policy advisor on the
national campaign headquarters staff of Republican presidential nominee John S. McCain and, 
inter alia, briefed the campaign on the question of U.S. participation in the CRPD. The author
thanks Ron McCallum and Michael Stein for comments on drafts of the article, and Stuti
Kochhar for substantive assistance on the 2013 Senate proceedings and editorial work
throughout. For academic year 2013-14, the author was a W. Glenn Campbell and Rita
Ricardo-Campbell National Fellow and Edward Teller Fellow at the Hoover Institution,
Stanford University. The views set out in the present article are those of the author and do not
necessarily reflect the views of any organization or other person.
1 Convention on the Rights of Persons with Disabilities pmbl. ¶ (h), May 3, 2008, 2515
U.N.T.S. 3, 70 [hereinafter Convention Disabilities].
2 In the framework of an Ad Hoc Committee established by G.A. Res. 56/583/Add.2, ¶ 1, U.N. 
Doc. A/56/583/Add.2 (Dec. 19, 2001), which met from 2002 to 2006.
3 G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006).
4 Convention Disabilities, supra note 1.
5 See G.A. Res. 61/76, U.N. Doc. A/61/PV.76, at 6 (Dec. 13, 2006) (observations of Mr. Miller 
(U.S.)).
6 Id.
7 Kareem Dale, Valerie Jarrett & Ambassador Rice at the U.S. Signing of the UN Convention
on the Rights of Persons with Disabilities, WHITE HOUSE OFFICE OF PUB. ENGAGEMENT (July
30, 2009, 7:26 PM), http://perma.cc/77BU-NX72.

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172 IND. INT’L & COMP. L. REV. [Vol. 25:2 

transmitted the Convention to the U.S. Senate for ratification.8 The proposed 
resolution of advice and consent to ratification of the CRPD was not accepted 
by the Senate.9 With no further action taken by the adjournment of the 112th 
Congress, the treaty was referred automatically back to the Committee on 
Foreign relations.10 On November 5 and 21, 2013, the Committee held further 
hearings on the Convention.11 And on July 22, 2014, the Committee reported 
favorably on Convention.12 As of the time the present article went to press, 
the United States was not a party.13 To date, 146 States and the European 
Union have become parties to the Convention.14 

The CRPD creates substantive obligations for States parties to establish 
and maintain national legislation protecting the rights of persons with 
disabilities. In addition, the CRPD establishes an institutional and procedural 
framework. In particular, CRPD Articles 34, 35, and 40 provide for, 
respectively, a Committee on the Rights of Persons with Disabilities, 
international reporting requirements, and a Conference of States Parties. 

In adopting the CRPD, the U.N. General Assembly included an 
Optional Protocol to the Convention, which establishes the competence of 
the Committee on the Rights of Persons with Disabilities to “receive and 
consider communications from or on behalf of individuals or groups of 
individuals subject to its jurisdiction who claim to be victims of a violation 
by that State Party of the provisions of the Convention.”15 The Optional 
Protocol, in accordance with Article 13(1) therein, entered into force the 

8 Message from the President of the United States Transmitting the Convention on the Rights 
of Persons with Disabilities, S. Treaty Doc. No. 112-7, 112th Cong. (2nd Sess. 2012), 
available at http://perma.cc/7V2X-5H3N [hereinafter Letter of Transmittal]. Article II, 
Section 2 of the Constitution of the United States requires the approval of two-thirds of the 
Sentate for ratification of a treaty. For a review of the history of practice under Article II, 
Section 2, see Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247 (2012); 
Michael J. Glennon, The Senate Role in Treaty Ratification, 77 Am. J. Int’l L. 257, 258 (1983); 
R. Earl McClendon, The Two-Thirds Rule in Senate Action upon Treaties, 1789-1901, 26 Am.
J. Int’l L. 37 (1932) (discussing early practices).
9 S. TREATY DOC. NO. 112-7, 112th Cong., (Dec. 4, 2012), record vote number 219 (61 yeas;
38 nays).
10 In accordance with Standing Rule XXX, § 2, S. DOC. NO. 113-18, at 43.
11 See Legislative Actions on Treaty Doc. 112-7, 112th Cong. (2012), available at
http://perma.cc/9GPD-FJ7T (last visited July 24, 2014).
12 Id.
13 See John R. Crook, ed., Contemporary Practice of the United States Relating to
International Law, 107 AM. J. INT’L L. 207, 248 (2013), further to the Dec. 4, 2012 Senate
vote.
14 Status of Multilateral Treaties Deposited with the Secretary-General Convention
Disabilities, ch. IV: Human Rights: Convention on the Rights of Persons with Disabilities,
U.N. TREATY COLLECTION, http://perma.cc/697R-P8D5.
15 Optional Protocol to the Convention on the Rights of Persons with Disabilities art. 1(1),
May 3, 2008, 2518 U.N.T.S 283, at 296 [hereinafter Optional Protocol].

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2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 173 

same day as the Convention.16 
The CRPD is open for signature by “all States and by regional 

integration organizations.”17 The Optional Protocol is open for signature by 
any State or regional integration organization that already has signed the 
CRPD.18 CRPD Article 43 provides that signatories, through ratification or 
other formal means of consent, agree to the Convention as binding.19 
Optional Protocol Article 11 likewise subjects the Optional Protocol to 
ratification.20 Under the general law of treaties, the drafters may, if they 
choose, specify how a State or other entity (e.g., an international 
organization) consents to be bound by the treaty.21 Because the drafters of 
the CRPD have specified that ratification or other formal means of consent 
after signature is necessary for a signatory to become a party, signature alone 
does not make the signatory a party to the CRPD. 

A signature may, of course, indicate a State’s intent to become a party, 
so long as the State has not expressly asserted the contrary. This follows from 
the specific obligations a State assumes by signing a treaty subject to 
ratification. Where a treaty is subject to ratification, a State that has signed 
the treaty is obliged “to refrain from acts which would defeat the object and 
purpose of [the] treaty” until such time that it has “made its intention clear 
not to become a party to the treaty.”22 The United States is a signatory to the 
CRPD but as yet has not made clear an intention not to become a party. The 
United States is therefore obliged to refrain from acts that would defeat the 
object and purpose of the Convention. In light of the United States’ long 
practice in the field of human rights and, in particular, its strong protections 
for the rights of persons with disabilities, it would be surprising if the United 
States were to breach that obligation.23 

There is, then, no real question of potential breach pending a future 
ratification of the CRPD by the United States. The question instead is what 
were the legal objections to U.S. participation in the Convention, and what 

16 Id. at 299. 
17 Convention Disabilities, supra, note 1, art. 42, at 94. The Convention defines “regional 
integration organization” to be “an organization constituted by sovereign States of a given 
region, to which its member States have transferred competence in respect of matters governed 
by this Convention.” Id. art. 44, at 95. It is the first of the U.N. human rights conventions to 
be open to such organizations. 
18 Optional Protocol, supra note 15, art. 10 at 298. 
19 Convention Disabilities, supra note 1, art. 43 at 95. 
20 Optional Protocol, supra note 15, at 298. 
21  Vienna Convention on the Law of Treaties art. 11, May 23, 1969, 1155 U.N.T.S. 335 
[hereinafter Vienna Convention]. 
22 Id. art. 18, at 336. 
23 The rather general references to the CRPD in domestic litigation to date have not 
substantiated a breach of the obligations of the United States as a signatory. See e.g., human 
rights groups’ amicus curiae submission in Smith et al v. City of Detroit, Bankruptcy Case 
No. 13-53846, Ad. Proc. No. 14-04732, Feb. 3, 2015. 



174 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
answers might be given in response if the U.S. Senate were to consider it 
again? This is not the first time that a treaty, in which the United States had 
taken an interest at the drafting stage, failed to receive consent for ratification 
on transmittal to the Senate.24 Political considerations may explain the 
objections in the U.S. Senate to the Convention, as much as to any treaty that 
has failed to receive the requisite two-thirds majority.25 Nevertheless, 
Senators and expert witnesses arguing against U.S. participation expressed 
views as to the legal effects participation would entail. That is to say, 
objections were expressed not only on political grounds but also in terms of 
the proper interpretation of provisions of the CRPD text. To arrive at a 
complete picture of the prospects for U.S. ratification of the CRPD, therefore, 
the legal arguments must be given due regard. 

Critics of the CRPD, at the start, objected in respect of abortion (early 
termination of pregnancy)26 and the role of human rights law in armed 
conflict.27 To these were later added objections that the Convention, in 
particular its institutional apparatus, would impose an unjustifiable 
compliance burden;28 it might erode existing protections under U.S. law;29 
and it might affect the rights of families to choose the manner in which they 
educate their children.30 This last objection became a focal point for critics 
in the Senate proceedings and also in the general political media. 

This article considers the objections raised against U.S. participation in 
the CRPD and to evaluate these objections as a matter of treaty interpretation. 
The article begins with a brief overview of the drafting history of the CRPD. 

 
                                                                                                                 
24 See U.N. Convention on the Law of the Sea, adopted Dec. 10, 1982, 1833 U.N.T.S. 397 
(entered into force Nov. 16, 1996), which the U.S. Department of State in 2007 described as 
having been “a victory for U.S. diplomacy” at the time of its adoption; Dep’t of State Press 
Statement No. 2007/967, Law of the Sea Convention (Nov. 5, 2007), cited by Law of the Sea 
Treaty Reported Out of Committee; Timing and Prospects for Full Senate Action Unknown, 
102 AM. J. INT’L L. 168, 168-69 (2008); Statute of the International Criminal Court, July 17, 
1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute], about which see generally Sean D. Murphy, 
U.S. Notification of Intent not to Become a Party to the Rome Statute, 96 AM. J. INT’L L. 724 
(2002). 
25 On the politics of Senate advice and consent in the matter of treaties generally, see Terry L. 
Deibel, The Death of a Treaty, 81 FOREIGN AFF., Sept.-Oct. 2002, at 142. On the politics of 
reservations practice, see David Auerswald & Forrest Maltzman, Treaty-Making Through 
Advice and Consent: Treaty Consideration by the United States Senate, 65 J. POL. 1097 
(2003). As to the December 3, 2012 vote on the CRPD, from a supporter and a critic, 
respectively, compare Human Rights Watch, U.S.: Senate Misses Opportunity on Disability 
Convention, HUFFINGTON POST (Dec. 5, 2012, 11:11 AM), http://perma.cc/Q6LA-9XUE; with 
Eric Posner, Why the U.S. Shouldn’t Sign on to Empty Human Rights Treaties, SLATE (Dec. 
21, 2012, 7:22 AM), http://perma.cc/J77E-EG66. 
26 Convention Disabilities, supra note 1, at Arts. 10, 25(A). See infra Part IV, A. 
27 Convention Disabilities, supra note 1, at Pream. ¶(U), Art. 11. See infra Part IV, B. 
28 Convention Disabilities, supra note 1, at Arts. 34-40. See infra Part IV, C. 
29 Convention Disabilities, supra note 1, at Art. 4(1). See infra  
30 Convention Disabilities, supra note 1, at Art. 7(2). See infra Part IV, E. 

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2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 175 
 
It then relates the CRPD to the other U.N. human rights instruments, 
including those to which the United States is a party. Turning to the 
objections, the article considers, in light of the proper interpretation of the 
text, whether the critics have identified justifiable grounds for avoiding the 
obligations entailed by ratification. The article closes with some policy 
considerations in respect of the CRPD and proposes how the objections, to 
the extent they are based on valid concerns, might be addressed as a matter 
of U.S. treaty practice. 

II. DRAFTING HISTORY OF THE CRPD 

On December 19, 2001, the U.N. General Assembly adopted 
Resolution (GA Res) 56/168, establishing an Ad Hoc Committee to 

consider proposals for a comprehensive and integral 
international convention to promote and protect the rights 
and dignity of persons with disabilities, based on the holistic 
approach in the work done in the fields of social 
development, human rights and non-discrimination and 
taking into account the recommendations of the Commission 
on Human Rights and the Commission for Social 
Development.31 

This was an authorization by the General Assembly for the purpose of 
codifying international law.32 Appropriately, in light of the subject matter, 
the General Assembly called on the Ad Hoc Committee to take into account 
recommendations of two functional bodies subsidiary to the Economic and 
Social Council (ECOSOC): the Commission on Human Rights, and the 
Commission for Social Development. Pursuant to the resolution, the Ad Hoc 
Committee was open to “all Member States and observers of the United 
Nations” and would meet from 2002 to 2006 in eight sessions.33 Luis 
Gallegos Chiriboga (Ecuador) would chair the first five sessions and Don 
MacKay (New Zealand) would chair the subsequent three.34 
 
                                                                                                                 
31 G.A. Res. 56/168, ¶ 1, U.N. Doc. A/RES/56/168 (Dec. 19, 2001). 
32 See U.N. Charter art. 13(1). 
33 G.A. Res. 56/168, supra note 31, at ¶ 1. 
34 Rep. of the Ad Hoc Comm. on a Comprehensive and Integral International Convention on 
Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ¶ 4, 1st Sess., 
Jul. 29-Aug. 9, 2002, U.N. Doc. A/57/357 (Aug. 9, 2002) [hereinafter Ad Hoc Comm., 1st 
sess.]; Rep. of the Ad Hoc Comm. on a Comprehensive and Integral International Convention 
on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ¶ 7, 2d 
Sess., June 16-27, 2003, U.N. Doc. A/58/118 & Corr.1 (July 3, 2003) [hereinafter Ad Hoc 
Comm., 2nd sess.]; Rep. of the Ad Hoc Comm. on a Comprehensive and Integral International 
Convention on Protection and Promotion of the Rights and Dignity of Persons with 
Disabilities, ¶ 6, 3d Sess., May 24-June 4, 2004, U.N. Doc. A/AC.265/2004/5 (June 9, 2004) 



176 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

Before the start of the second session of the Ad Hoc Committee,35 the 
General Assembly invited regional commissions, intergovernmental and 
non-governmental organizations, national disability and human rights 
institutions, and independent experts with interests in the topic “to make 
available to the Ad Hoc Committee suggestions and possible elements to be 
considered in the proposals for a convention.”36 

States, of course, played an important role in drafting the CRPD. 
However, a considerable number of non-governmental organizations 
(NGOs) also took part. Absent restrictions under international law, the 
participation of non-State entities in the treaty-drafting process is not per se 
remarkable; however, the scope of their involvement here is noteworthy. One 
participant referred to the drafting of the CRPD as “the most inclusive 
process that the U.N. has seen.”37 Ambassador MacKay estimated that 
seventy percent of the text originated in proposals by NGOs.38 It may be 
asked whether the drafting of any major international treaty before the CRPD 
had involved non-State participation to such a degree and whether this 
reflects an emerging trend.39 The first session of the Ad Hoc Committee 

 
                                                                                                                 
[hereinafter Ad Hoc Comm., 3d sess.]; Rep. of the Ad Hoc Comm. on a Comprehensive and 
Integral International Convention on Protection and Promotion of the Rights and Dignity of 
Persons with Disabilities, ¶ 6, 4th Sess., Aug. 23-Sept. 3, 2004, U.N. Doc. A/59/360 (Sept. 14, 
2004) [hereinafter Ad Hoc Comm., 4th sess.]; Rep. of the Ad Hoc Comm. on a Comprehensive 
and Integral International Convention on Protection and Promotion of the Rights and Dignity 
of Persons with Disabilities, ¶ 6, 5th Sess., Jan. 24-Feb. 4, 2005, U.N. Doc. A/AC.265/2005/2 
(Feb. 23, 2005) [hereinafter Ad Hoc Comm., 5th sess.]; Rep. of the Ad Hoc Comm. on a 
Comprehensive and Integral International Convention on Protection and Promotion of the 
Rights and Dignity of Persons with Disabilities, ¶ 6, 6th Sess., Aug. 1-12, 2005, U.N. Doc. 
A/60/266 (Aug. 17, 2005) [hereinafter Ad Hoc Comm., 6th sess.]; Rep. of the Ad Hoc Comm. 
on a Comprehensive and Integral International Convention on Protection and Promotion of 
the Rights and Dignity of Persons with Disabilities, ¶ 6, 7th Sess., Jan. 16-Feb. 3, 2006, U.N. 
Doc. A/AC.265/2006/2 (Feb. 13, 2006) [hereinafter Ad Hoc Comm., 7th sess.]; Interim Rep. 
of the Ad Hoc Comm. on a Comprehensive and Integral International Convention on 
Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ¶ 7, 8th Sess., 
Aug. 14-25, 2006, U.N. Doc. A/AC.265/2006/4 (Sept. 1, 2006) [hereinafter Ad Hoc Comm., 
8th sess.]. 
35 The first session (July 29 to Aug. 9, 2002) was taken up with general discussion and 
procedural matters, including the important one of NGO participation, see infra note 40, U.N. 
Doc. A/57/357 (Aug. 9, 2002). 
36 G.A. Res. 57/229, ¶ 7, U.N. Doc. A/RES/57/229 (Dec. 18, 2002). 
37 Arlene S. Kanter, The Promise and Challenge of the United Nations Convention on the 
Rights of Persons with Disabilities, 34 SYRACUSE J. INT’L L. & COM. 287, 308 (2007). See also, 
Janet E. Lord, Disability Rights and the Human Rights Mainstream: Reluctant Gatecrashers?, 
in INTERNATIONAL STRUGGLE FOR NEW HUMAN RIGHTS 83 (Clifford Bob, ed., 2009). 
38 Stefan Trömel, A Personal Perspective on the Drafting History of the United Nations 
Convention on the Rights of Persons with Disabilities, 1 EUR. Y.B. OF DISABILITY L. 115, 117 
(2009). 
39 See Tara J. Melish, The UN Disability Convention: Historic Process, Strong Prospects, and 
Why the U.S. Should Ratify, 14 HUM. RTS. BRIEF, Winter 2007, at 37; see also, Ad Hoc Comm., 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 177 
 
(2002) addressed modalities for the participation of accredited NGOs, albeit 
with the reservation that their participation “shall in no way create a 
precedent for other ad hoc committees of the General Assembly.”40 If a trend 
is to emerge in this regard, it evidently will require further political decisions. 
NGO participation to this degree has not become entrenched as of right. 

The Ad Hoc Committee established a Working Group for the purpose 
of producing a draft text.41 The Working Group,42 which held meetings 
between January 5 to 16, 2004, included government representatives of the 
following States: 

Cameroon     Mexico 
Canada     Morocco 
China     New Zealand 
Colombia     Philippines 
Comoros     Republic of Korea 
Ecuador     Russian Federation 
Germany     Serbia and Montenegro 
India      Sierra Leone 
Ireland     Slovenia 
Jamaica     South Africa 
Japan      Sweden 
Lebanon     Thailand 
Mali      Uganda 
Venezuela.  

 
The United States, although lacking a Working Group representative,43 

submitted details of U.S. disability rights law to the committee44 and 
observed proceedings.45 The Working Group also included representatives of 
the following NGOs and national human rights institutions:46 

Disability Australia Limited 
Disabled Peoples’ International 
Disabled Peoples’ International (Africa) 

 
                                                                                                                 
2nd sess., supra note 34, at ¶ 15 (indicating that the working procedures of the Ad Hoc 
Committee “shall in no way create a precedent for other Ad Hoc Committees”). 
40 U.N. Doc. A/57/357, at ¶ 10 (Aug. 9, 2002). 
41 Melish, supra note 39, at 47 n.3. 
42 Rep. of the Working Group to the Ad Hoc Comm., Annex 1, U.N. Doc. 
A/AC.265/2004/WG/1, Jan. 5-16, 2004 (Jan. 27, 2004) [hereinafter Working Group]. 
43 Id. at ¶ 2. For an account of the role of the United States in the sessions of the Ad Hoc 
Committee and the domestic politics leading to U.S. participation, see JULIE A. MERTUS, BAIT 
AND SWITCH: HUMAN RIGHTS AND U.S. FOREIGN POLICY, 178-81(2nd ed. 2008). 
44 Working Group, supra note 42, at ¶ 7. 
45 Id., at Daily Summary Vol. 3, # 4, Jan. 8, 2004, 13. 
46 U.N., Membership: Ad Hoc Committee Rights of Persons with Disabilities (last visited Jun. 
8, 2015), http://www.un.org/esa/socdev/enable/rights/ahcwg.htm#membership 



178 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

European Disability Forum 
Inclusion International 
Inter-American Institute on Disability 
Landmine Survivors Network 
Rehabilitation International 
World Blind Union 
World Federation of the Deaf 
World Federation of the Deafblind 
World Network of Users and Survivors of Psychiatry 
South African Human Rights Commission. 

With input from this varied community of States and NGOs, the Working 
Group adopted a draft text in early 2004, prompting deliberations in the Ad 
Hoc Committee through its seventh session.47 On August 25, 2006, the Ad 
Hoc Committee, in its Eighth Session, adopted the draft text of the CRPD 
and the Optional Protocol.48 The Ad Hoc Committee transmitted the draft 
text to the General Assembly on December 5, 2006.49 

Following adoption by the General Assembly on December 13, 2006, 
the CRPD and the Optional Protocol were opened for signature on March 30, 
2007.50 The United Nations indicated that more States signed the CRPD on 
the day it was opened for signature than any other multilateral instrument.51 
Both the Convention and the Optional Protocol entered into force on May 3, 
200852. This was the fastest a multilateral convention had ever gone from 
initial drafting stages to entry into force.53 

The drafting of the CRPD produced a considerable record.54 Under 
Article 32 of the Vienna Convention, the travaux préparatoires may be 
relevant when interpreting a treaty.55 The travaux may be used either to 
confirm the meaning of a treaty provision when applying the general rule of 
interpretation, or to determine meaning where application of the general rule 

 
                                                                                                                 
47 See Ad Hoc Comm., 7th sess., supra note 34. 
48 Final Rep. of the Ad Hoc Comm. on a Comprehensive and Integral International Convention 
on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ¶ 1, 
8th Sess., U.N. Doc. A/61/611 (Dec. 6, 2006). 
49 Id. at ¶ 7. See also id., at add. 1; Ad Hoc Comm., 8th sess., supra note 34. 
50 In accordance with G.A. Res. 61/106, ¶ 2, U.N. Doc. A/RES/61/106 (Dec. 13, 2006). 
51 Kanter, supra note 37, at 288 n.5 (citing Optional Protocol, supra note 15) 
52 U.N. NEWS CENTRE, Landmark UN Treaty on Rights of Persons with Disabilities Enters into 
Force (May 3, 2008),  
http://www.un.org/apps/news/story.asp?NewsID=26554#.VRr3lflQNJA 
53 See, e.g., Convention Disabilities, supra note 1 (“[T]he fastest negotiated human rights 
treaty.”). 
54 Ad Hoc Committee on a Comprehensive and Integral International Convention on the 
Protection and Promotion of the Rights and Dignity of Persons with Disabilities, U.N. ENABLE, 
http://perma.cc/H88V-B3G8. 
55 See Vienna Convention, supra note 21, at 340. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 179 
 
leaves the provision ambiguous or obscure or would lead to a manifestly 
absurd or unreasonable result.56 The interpretative value of the preparatory 
work therefore depends, in part, on what questions arise in the course of the 
treaty’s implementation. 

The preparatory work may also record particular concerns or 
controversies that arose during the drafting process, revealing certain treaty 
provisions that are likely to generate disagreement in the future. For example, 
an interpretative statement that had been set out by a State representative 
during the drafting process could be referred to later to challenge a State’s 
adoption of a position contrary to that statement. 

The preparatory work of the treaty also may help judge the credibility 
of later objections to the treaty text. Where an objection is based on a certain 
interpretation of the text, but that interpretation is neither obvious on the face 
of the text nor easily deducible from the drafting work, then the credibility of 
the objection may be called into question. Conversely, where at least some 
drafters thought that the text supports the proposed interpretation, an 
objection on that basis would be more credible.As a matter of legal policy, it 
would accordingly be more justifiable for national authorities with 
competence over conclusion and ratification of treaties to take the  objection 
into consideration. Some of the objections against U.S. ratification of the 
CRPD will be considered belowin light of the travaux préparatoires, as well 
as in light of the treaty text. 

III. THE CRPD IN THE U.N. HUMAN RIGHTS FRAMEWORK 

In drafting the CRPD, the Ad Hoc Committee compiled a list of 
international norms and standards relating to disability.57 In January 2004, 
Members of the Working Group noted that existing international instruments, 
both binding and non-binding, were relevant to the codification of an 
international disabilities régime. Attention was drawn specifically to the 
following: 

• International Covenant on Economic, Social and Cultural Rights 
(articles 2(3), 22 and 23); 

• Convention on the Rights of the Child (preamble and article 4); 
• The Standard Rules for the Equalization of Opportunities for 

Persons with Disabilities (rule 22); 
• General Comment No. 5 of the Committee on Economic, Social 

and Cultural Rights; and 
• Environmental treaties; the Convention against Corruption; and 

the Ottawa Convention on prohibition of landmines.58 
 
                                                                                                                 
56 Id. 
57 Compilation of International Norms and Standards Relating to Disability, Ad Hoc Comm., 
1st Sess., U.N. Doc. A/AC.265/CRP.1 (Oct., 2003), http://perma.cc/5K6H-PUP9. 
58 Working Group, supra note 42, at Annex 2, ¶ 8 (summary of discussions). 



180 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

 
Of these instruments, the Standard Rules are of particular relevance. 

The General Assembly adopted the Standard Rules in 199359 on the basis of 
a report of the Third (Social, Humanitarian & Cultural) Committee.60 The 
Standard Rules are non-binding; however, they set out principles similar to 
the provisions later incorporated into the CRPD. The Standard Rules also 
established a monitoring mechanism, which consisted of a Special 
Rapporteur who oversaw compliance within “the framework of the sessions 
of the Commission for Social Development.”61 In addition, the Rules 
instituted a panel consisting, inter alia, of ECOSOC-accredited experts 
representing the interests of persons with disabilities. A goal behind the 
CRPD was to turn the content of the non-binding Standard Rules into a 
binding international commitment. The CRPD drafters, noting the existing 
Special Rapporteur, also aimed to develop the institutional framework for 
compliance monitoring. 

Drafters of the CRPD also considered how the Convention would relate 
to the existing U.N. framework of international human rights treaties. Each 
of the seven human rights treaties that came into force prior to the CRPD 
(and the one that came into force after its adoption) provide for the 
establishment of a treaty monitoring body. All nine treaties and their 
corresponding monitoring bodies are set out in the table below. 

 
TABLE 1. The U.N. Human Rights Treaties and Their Monitoring 

Bodies 
Human rights treaty Monitoring body 

Convention on the Elimination of 
All Forms of  
Racial Discrimination62 

Committee on the Elimination of 
Racial Discrimination (CERD) 

International Covenant on Civil and 
Political Rights63 

Human Rights Committee (CCPR) 

International Covenant on  
Economic, Social and  
Cultural Rights64 

Committee on Economic, Social 
and Cultural Rights (CESCR) 

Convention on the Elimination of Committee on the Elimination of 

 
                                                                                                                 
59 G.A. Res. 48/96, U.N. Doc. A/RES/48/96 (Dec. 20, 1993), at 2. 
60 Third Comm. Rep., 48th Sess., Oct. 19-Nov. 12, 1993, U.N. Doc. A/48/62 (Dec. 14, 1993). 
61 G.A. Res. 48/96, supra note 59, at 26, ¶ 2. See Janet E. Lord & Michael A. Stein, Monitoring 
the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, 
and Future Potential, 32 HUM. RTS. Q.  689, 720-21, 726 (2010). 
62 G.A. Res. 2106 (XX), U.N. Doc. A/RES/2106(XX) (Dec. 21, 1965), 660 U.N.T.S. 195 
(entered into force Jan. 4, 1969). 
63 G.A. Res. 2200A (XXI), U.N. Doc. A/RES/2200A(XXI) (Dec. 16, 1966) 999 U.N.T.S. 171 
(entered into force Mar. 23, 1976) [hereinafter ICCPR]. 
64 Adopted by id., 993 U.N.T.S. 1 (entered into force Jan. 3, 1976) [hereinafter ICESCR]. 

http://dx.doi.org/10.1353/hrq.2010.0003


2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 181 
 
All Forms of Discrimination 
against Women65 

Discrimination against Women 
(CEDAW) 

Convention Against Torture and 
Other Cruel, Inhuman or Degrading 
Treatment or Punishment66 

Committee against Torture 
(CAT)67 

Convention on the Rights of the 
Child68 

Committee on the Rights of the 
Child (CRC) 

International Convention on the 
Protection of the Rights of All 
Migrant Workers and Members of 
Their Families69 

Committee on Migrant Workers 
(CMW) 

Convention on the Rights of 
Persons with Disabilities70 

Committee on the Rights of 
Persons with Disabilities (CRPD) 

International Convention for the 
Protection of All Persons from 
Enforced Disappearance71 

Committee on Enforced 
Disappearances (CED) 

 
The question of how the CRPD would fit within the matrix of treaties and 
monitoring bodies arose during the Convention’s drafting and following its 
adoption. In particular, CRPD drafters expressed concern over whether the 
Convention contained rights or obligations that were either redundant in 
whole or overlapped in part with those found in the other instruments. New 
instruments may either incorporate rights or obligations contained in earlier 
ones, or include new procedures. It is a question of policy—at both the 
municipal and international levels—as to whether it makes sense to adopt a 
repetitive treaty. Nothing in general international law stops States from doing 
so. 

Overlapping treaty rules, where States have adopted them, may have 
certain legal effects. For one thing, the overlap may be significant to a party 

 
                                                                                                                 
65 G.A. Res. 34/180, U.N. Doc. A/RES/24/180 (Dec. 18, 1979), 1249 U.N.T.S. 13 (entered 
into force Sept. 3, 1981). 
66 G.A. Res 39/46, U.N. Doc. A/RES/39/46 (Dec. 10, 1984), 1465 U.N.T.S. 85 (entered into 
force June 26, 1987) [hereinafter Convention Against Torture]. 
67 Under Article 2 of the Optional Protocol, there is a further subcommittee against torture 
with a special preventative mandate. Optional Protocol to the Convention Against Torture and 
Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, U.N. Doc. 
A/RES/57/199 (Jan. 9, 2003) (entered into force June 22, 2006). 
68 G.A. Res.44/25, U.N. Doc. A/RES/44/25 (Nov. 20, 1989), 1577 U.N.T.S. 3 (entered into 
force Sept. 2, 1990). 
69 G.A. Res.45/158, U.N.Doc. A/RES/45/158 (Dec. 18, 1990), 2220 U.N.T.S. 3 (entered into 
force July 1, 2003) [hereinafter Convention Migrant Workers]. 
70 G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006), 2515 U.N.T.S. 3 (entered into 
force May 3, 2008). 
71 G.A. Res. 61/177, U.N. Doc. A/RES/61/177 (Dec. 20, 2006), 2716 U.N.T.S. 3 (entered into 
force Dec. 23, 2010). 



182 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
presenting a case to a tribunal which holds jurisdiction over allegations of 
breach of one treaty but not the other.72The recurring appearance of the rule 
across different treaties may also be significant in the formation of customary 
international law. The law of international human rights has developed 
through the cumulative practice of treaty making.73 The legal effect of this 
practice is in one respect straightforward: it has generated a body of 
conventional rules binding on the States that are party to the relevant 
instruments.  Less straightforward is how repeated occurances of a rule in 
different treaties affect the formation of customary international law. Treaty-
made rules may coincide with customary international law rules.74 It is also 
said that the repetitive appearance of a given rule in instruments of 
widespread subscription may be evidence that the rule forms part of general 
or customary international law.75 There is no precise standard by which to 
judge this evidence, and it remains uncertain what rules are customary rules 
of human rights. International human rights law remains largely treatymade 

 
                                                                                                                 
72 See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 
Judgment, 1986 I.C.J. 14, ¶¶ 42-56 (June 27); id., Jurisdiction, Judgment, 1984 I.C.J. 392, ¶¶ 
69-73 (Nov. 26). See also Concerning Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. 161, 
¶¶ 39, 42 (Nov. 6); id. at 280, ¶¶ 24-32 (separate opinion of Judge Buergenthal); id. at 310, ¶ 
13-14 (separate opinion of Judge Owada). 
73 JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 638 (8th ed. 
2012). 
74 See, e.g., Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), 
Judgment, 2009 I.C.J. 213, ¶ 32 (July 13) (Costa Rica’s argument in respect to navigational 
rights); Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment, 
2008 I.C.J. 177, ¶ 181 (June 4) (Djibouti’s argument in respect to diplomatic privileges and 
immunities); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 
Judgment, 2005 I.C.J. 168, ¶ 24 (Dec. 19) (Democratic Republic of Congo’s argument in 
respect to human rights in time of armed conflict); Land and Maritime Boundary Between 
Cameroon and Nigeria (Cameroon v. Nigeria, Eq. Guinea intervening), 2002 I.C.J. 303, ¶ 25 
(Oct. 10) (Cameroon’s argument in respect to the use of force); Fisheries Jurisdiction Case 
(Spain v. Can.), Judgment, 1998 I.C.J. 432, ¶ 20 (Dec. 4) (Spain’s argument in respect to the 
exclusivity of the jurisdiction of the flag State over vessels on the high seas); Request for an 
Examination of Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 
December 1974 in the Nuclear Tests Case (N.Z. v. Fr.), Order, 1995 I.C.J. 288, ¶ 5 (Sep. 22) 
(New Zealand’s argument in respect of environmental impact assessments); Passage Through 
the Great Belt (Fin. v. Den.), Request for Indication of Provisional Measures, Order, 1991 
I.C.J. 12, ¶ 5 (July 29) (Finland’s argument in respect of transit passage through an 
international strait).  
  Though the customary rule and the treaty rule may be related, they are not necessarily 
the same. See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 
Judgment, 2012 I.C.J. 422, ¶ 54 (July 20) (“[T]he issue whether there exists an obligation for 
a State to prosecute crimes under customary international law that were allegedly committed 
by a foreign national abroad is clearly distinct from any question of compliance with that 
State’s obligations under the Convention against Torture and raises quite different legal 
problems.”) 
75 See generally Sir Michael Wood, Special rapporteur, First report on formation and evidence 
of customary international law, ILC, May 17, 2013: A/CN.4/663, p. 15 (para. 34). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 183 
 
law.76 The relation between the CRPD and customary international law will 
be considered further below.77 

From the standpoint of an American policymaker, the relevant inquiry 
is twofold: (1) Does the CRPD contain obligations not already contained in 
the treaties to which the United States is a party? And (2) would the CRPD 
promote the formation of customary rules? These two questions are not 
strictly symmetrical, for the conventional framework under the CRPD entails 
procedural rules that the formation of a new customary rule would not. If the 
CRPD establishes no new conventional rights or obligations, then ratification 
would impose no new substantive burden. Ratification might, even so, entail 
a new procedural burden—such as the burden of demonstrating compliance 
with CRPD mechanisms in accordance with CRPD Article 35. The absence 
of a new substantive burden may moderate the objection that participation 
entails unnecessary constraints on sovereignty. Objectors might counter by 
asserting that an international instrument contributing nothing of substance 
to the human rights regime has little merit. Objectors might further contend 
that, because the United States already provides legal protections to disabled 
persons, the treaty not only lacks new substantive rules but also introduces a 
procedure where none is needed. 

Duplicative provisions were a problem on the minds of a number of 
participants.78 The Coordinator of the Ad Hoc Committee advised of “the 
need to avoid duplicating other international instruments dealing with legal 
safeguards, human rights, and administration of justice including the right to 
appeal, such as the Covenant on Civil and Political Rights.”79 This is a 
problem drafters can address only imperfectly. Prior to a treaty’s adoption, it 
is difficult to say for sure what the text will add to an existing regime. The 
utility of the new instrument in relation to existing treaty provisions may not 
come to light until there has been time for parties to apply the new instrument 
in practice. A convention around which little or no practice has developed 
would seem to have little, if any, utility. There is no clear standard, however, 
for judging how long to wait before concluding that lack of use is evidence 
that the instrument is of no use at all. 

These are legal questions, and they have policy implications. A 
possibly duplicative text, however, was not the main objection of the CRPD’s 
critics in the United States. To the contrary, as will be seen below, their main 
objection was that the Convention would impose new obligations and that 
some of these would have unacceptable legal consequences. It now falls to 
consider the objections. 

 
                                                                                                                 
76 CRAWFORD, supra note 73, at 643, 644 tbl. 29.1 (“Key human rights protected.”). 
77 See infra Part III. 
78 Trömel, supra note 38, at 116. 
79 Ad Hoc Comm., 5th sess., supra note 34, Daily summary, Jan. 27, 2005, Vol. 6, #4. 



184 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

IV. OBJECTIONS TO THE CRPD 

The United States welcomed the adoption of the CRPD by the U.N. 
General Assembly.80 However, in speaking through its ECOSOC 
representative, the United States suggested three concerns over the 
Convention: 

(i) The provision in the CRPD concerning “reproductive 
health” (CRPD Article 25(a)) should not be interpreted to 
include a right to abortion or to encourage abortion; 
(ii) The application of human rights rules and standards in 
situations of armed conflict (CRPD preamble ¶ u; Article 11) 
might intrude on a field already regulated by international 
humanitarian law; and 
(iii)The rules and standards set out in the CRPD furnish less 
protection to persons with disabilities than U.S. legislation, 
thus complicating enforcement of domestic law.81 

It was with reference in particular to the provisions addressing 
reproductive health and armed conflict that the U.S. executive branch in 2008 
declined to sign the CRPD.82 It was evidently the view of the administration 
that the legal effects of the CRPD in these two fields would be contrary to 
U.S. policy, or, to the extent that the legal effects remained uncertain, were 
not worth the risk. 

A new executive administration in 2009 reached a different view and, 
as noted, through the U.S. Permanent Representative to the United Nations 
signed the CRPD.83 However, under the system of shared powers in the U.S. 
Constitution, support for a treaty in the executive branch does not necessarily 
ensure approval for ratification. While the executive branch, by signing the 
Convention, indicated its willingness to bind the United States to the CRPD, 
several concerns arose in the Senate deliberations and in testimony before the 
Committee on Foreign Relations.  

A. CRPD Articles 10 and 25(a): “Right to Life” and “Sexual and 
Reproductive Health” 

In 2008, when the earlier administration declined to sign the CRPD, 

 
                                                                                                                 
80 Press Release, Ambassador Richard T. Miller, Explanation of Position on the Convention 
on the Rights of Persons with Disabilities, Agenda Item 67(b), in the General Assembly (Dec. 
13, 2006), http://perma.cc/LUG7-FPQP. 
81 Id.; Patrick Worsnip, U.N. Pact for Rights of Disabled Comes into Force, REUTERS, May 3, 
2008, available at http://perma.cc/P4KR-5K7Q.  
82 See Miller (United States), General Assembly 61st sess. (Dec. 13, 2006), A/61/PV.76, p. 7. 
83 Dale, supra note 7.  



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 185 
 
and in 2012, when the Senate declined to approve its ratification, critics stated 
that the Convention would conflict with U.S. policy in the field of 
reproductive health. Two variants of the objection emerged: (1) drafters of 
the CRPD missed an opportunity to establish an international law rule against 
abortion, and (2) the CRPD implies an international law right to abortion. 
Article 10 and Article 25(a) were the focus of this objection and may be 
conveniently treated together. 

Article 10 of the Convention provides as follows: “States Parties 
reaffirm that every human being has the inherent right to life and shall take 
all necessary measures to ensure its effective enjoyment by persons with 
disabilities on an equal basis with others.”84 The chapeaux of Article 25(a) 
provides as follows: 

States Parties recognize that persons with disabilities have 
the right to the enjoyment of the highest attainable standard 
of health without discrimination on the basis of disability. 
States Parties shall take all appropriate measures to ensure 
access for persons with disabilities to health services that are 
gender-sensitive, including health-related rehabilitation. In 
particular, States Parties shall: 
a. Provide persons with disabilities with the same range, 
quality and standard of free or affordable health care and 
programmes as provided to other persons, including in the 
area of sexual and reproductive health and population-based 
public health programmes . . . .85 

The objections to these provisions, as set out in the Senate Committee 
on Foreign Relations and during the drafting work, may be recalled in 
summary. 

(1) Objections to Articles 10 and 25(a) 

The statement of Minority Views in the Senate Committee on Foreign 
Relations recalled that “[a]bortion remains a highly controversial issue in the 
United States” and said that it should not be “determined . . . at an 
international level.”86 Noting the intensity of disagreement in the United 
States over abortion, Steven Groves, a fellow of the Heritage Foundation, 
said in the hearing on the Convention that an “‘international’ opinion on the 
matter [of abortion] from a group of disability experts ensconced in Geneva 

 
                                                                                                                 
84 Convention Disabilities, supra note 1, at 101-02. 
85 Id. at 87. 
86 S. EXEC. REP. NO. 112-6, at 17 (2012) (minority views of Sens. Risch, Rubio, Inhofe, 
DeMint, and Lee).  



186 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
is unlikely to resolve or advance the debate in the United States.”87 The other 
opposition witness, Dr. Michael Farris, Chancellor of Patrick Henry College, 
said in the hearing that “[i]t would reasonably appear that Article 25(a) 
commits the United States to providing free abortion services to persons with 
disabilities.”88 Dr. Farris referred to this as one of the “difficulties that are 
latent in this treaty.”89 Senator Jim DeMint, in individual remarks, also said 
that Article 25(a) is problematic.90 

From the travaux, it is clear that the relation of Articles 10 and 25 to 
abortion concerned a number of participants from the early stages. The 
Society of Catholic Social Scientists and the Pro Life Family Coalition 
expressed the view that the draft text was moving in “uncharted and 
controversial directions” by acknowledging (at least implicitly) sexual 
relationships outside the context of marriage.91 The Society for the Protection 
of Unborn Children (SPUC) on behalf of its affiliate, No Less Human, and 
the Pro-Life and Pro-Family Coalition objected to the phrase “reproductive 
health services” on the grounds that it “includes abortion, and the treaty will 
be legally binding on States Parties.”92 National Right to Life (NRL) objected 
to the words “including sexual and reproductive health services,” on the 
following grounds: “[Persons with disabilities] need a full range of health 
services, and there is no need to single out reproductive health. Doing so 
would promote the use of genetic testing to abort unborn babies with 
disabilities, and abortion for women with disabilities.”93 Colombia and Qatar 
also expressed concern that the treaty language might be construed to 
promote abortion.94 Sudan, Pakistan, and Egypt preferred that the language 
be deleted.95 The Holy See sought to strike the words “sexual and 
reproductive health services” from the draft article.96 The United States, 
during the drafting work, objected to inclusion of the words “sexual and 
reproductive health” in an earlier draft article.97 

The phrase adopted in the final CRPD text of Article 25, paragraph (a) 
is “sexual and reproductive health and population-based public health 

 
                                                                                                                 
87 Id. at 97 (statement of Steven Groves, Heritage Foundation). 
88 Id. at 125 (statement of Dr. Michael Farris, Patrick Henry College). 
89 Id. at 87. 
90 Id. at 57 (statement of Sen. DeMint). 
91 Ad Hoc Comm., 3d sess., supra note 34, Daily summary, May 26, 2004, Vol. 4, #4. 
92 See Daily Summary, June 2, 2004, Vol. 4, # 7 at 4.  
93 Id. at 4-5.  
94 Ad Hoc Comm., 5th sess, supra note 34, Daily summary, Feb. 2, 2005, Vol. 6, # 8; Ad Hoc 
Comm., 6th sess., supra note 34, Aug. 8, 2005, Vol. 7, # 6. It also was suggested by the 
International Right to Life Federation that privacy rights might be construed to allow abortion. 
Ad Hoc Comm., 5th sess., supra note 28, Feb. 3, 2005, Vol. 6, # 9. 
95 Ad Hoc Comm., 7th sess.,  supra note 34, Jan. 25, 2006, Vol. 8, # 8. 
96 Ad Hoc Comm., 3d sess., supra note 34, Daily summary, June 1, 2004, Vol. 4, # 6. 
97 Ad Hoc Comm., 6th sess., supra note 34, Aug. 9, 2005, Vol. 7, # 7. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 187 
 
programmes.”98 The operative words that drew objection from the United 
States, the Holy See, National Right to Life, and other States and groups 
therefore remain in the treaty as adopted. 

(2) Does Article 25(a) Establish a Right to Abortion in All States 
Parties? 

There is no evidence in State practice that States support a uniform rule 
in respect to abortion. The variety of national legislation alone suggests the 
lack of anything approaching consensus on the topic. Nevertheless, it was a 
concern expressed by some of the participants during the drafting work that 
the CRPD might, under Article 25(a), establish an international right to 
abortion. 

The first observation here is that Article 25(a) does not aim to create a 
uniform rule across national systems. Instead, Article 25(a) is concerned with 
equality of healthcare provisions within each national system. The United 
States acknowledged that equality—not uniformity—is the CRPD’s concern. 
According to the United States, the purpose of the relevant provisions is to 
grant “important protections of equality for [persons with disabilities] 
regarding parenthood and access to information and education on family 
planning.”99 This does not equate to replacing national legislation with an 
international régime. 

Considering the architecture of the CRPD as a whole, it is clear that the 
term “other persons” under Article 25(a) refers to other persons in the 
national jurisdiction implementing the Convention. To suggest that the term 
means “other persons” in some other national jurisdiction would mean that 
Article 25(a) is to be applied differently from any other provision in the 
CRPD. The Convention is clear that every State has developed its own legal 
framework in the fields that concern persons with disabilities. It makes 
allowance, for example, for different levels of economic development.100 It 
also makes allowance for different national laws covering health insurance, 
life insurance, and the sanctity of the home and family.101 It would be 
discordant, in light of the text as a whole, to interpret the equality provision 
of Article 25(a) as requiring equality of treatment across all national 
 
                                                                                                                 
98 Convention Disabilities, supra note 1. 
99 Ad Hoc Comm., 4th sess., supra note 34, Daily summary, Aug. 27, 2004, Vol. 5, # 5 
(emphasis added). 
100 E.g., Convention Disabilities, supra note 1, at art. 4, para. 2 (“[E]ach State Party undertakes 
to take measures to the maximum of its available resources.”) (emphasis added). 
101 E.g., id. at art. 25(e) (requiring State Parties to “[p]rohibit discrimination against persons 
with disabilities in the provision of health insurance, and life insurance where such insurance 
is permitted by national law . . . .”) (emphasis added); id. at Article 23(1) (“Respect for home 
and family”) (providing for “effective and appropriate measures to eliminate discrimination” 
in respect of “marriage, family, parenthood and relationships” under national law) (emphasis 
added). 



188 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
jurisdictions. The CRPD assures equality or non-discrimination within each 
national legal régime; it does not legislate what national regulation must 
provide.102 

The phrase “as provided to other persons” is also to be considered in 
light of the limited content of international law in this field. International law 
“provides” nothing at all to persons in the field of healthcare. There is no 
international system of social medicine. There is certainly nothing in the 
rather general healthcare provisions of the CRPD to suggest that that 
instrument introduces such a system. To suggest that it does is to impute an 
efficiency to the international law drafter that has utterly eluded his national 
law counterparts. If only a national healthcare statute (assuming a State chose 
to have one) could regulate its subject matter with a few lines of text! It is all 
the more clear in this light that Article 25(a) concerns equality under each 
existing national system. Article 25(a) does not create an international 
mandate for public-subsidized abortions.  

(3) Could Article 25(a) be Applied to Extend State Provision of 
Abortion in any State? 

In considering the terms of the treaty as a whole, what effect is achieved 
by the phrase “sexual and reproductive health” in Article 25(a)? The main 
clause in Article 25 already obliges equal provision of “free or affordable 
care and programmes.”103 There is no reason to conclude that the main 
clause’s guarantee of equality of provision fails to cover any particular field. 
It therefore is not immediately clear why the final clause is necessary. The 
final clause suggests that the drafters intended “sexual and reproductive 
health” services to receive special attention.104 This, for a number of parties, 
was a ground for concern over the provision as a whole.105 

The States, groups, and individuals objecting to Article 25(a) 
presumably share the policy goal of preventing the extension of a right to 
abortion. Their concern is evidently to avoid an international treaty rule that 
might, at least in some national systems, entitle a new class of individuals to 
such a right. Depending on the content of a State Party’s existing national 
law, the equality of provision clause may potentially conflict with the 
objectors’ policy goal. The situation in which that provision might conflict 
with the policy goal may be described in hypothetical terms. 

A State, under its existing legislation, furnishes a number of services to 
disabled and non-disabled persons on an equal basis. However, this excludes 
 
                                                                                                                 
102 Writers have noted that it was national law in the States with the most developed régimes 
of disability rights that informed the adoption of the CRPD; see, e.g., Colleen Sheppard, 
Equality through the Prism of Legal Pluralism, 17 IUS GENTIUM 129, 130 (2012). 
103 Convention Disabilities, supra note 1. 
104 Id. 
105 See supra, text for footnotes 94-98. 

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2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 189 
 
“sexual and reproductive health” services. In this field, the national 
legislation discriminates by providing services to non-disabled persons but 
not to those with disabilities. Assuming that the “sexual and reproductive 
health” services includes an abortion provision, which the State withheld 
from persons with disabilities, then the Convention would require an 
adjustment in national healthcare provisions to that extent. The Convention 
would require the State to end the discriminatory treatment by requiring the 
State to furnish “sexual and reproductive health” services—including 
abortion—to persons with disabilities. But the necessary antecedent 
condition to this would be that the law already provides such services to non-
disabled persons. The Convention would require a change of position under 
national law, but a very particular legal framework would have to exist 
already in order for the Convention to operate in this way. If there is a State 
providing abortion services (as part of a publicly supported package) to non-
disabled persons, but not to persons with disabilities, then the main clause of 
Article 25 (a), as applied by such a State, would have the effect of requiring 
the extension of abortion services to an additional class of persons. This 
effect would arise only in a State that already provides abortions (and does 
so in the prohibited discriminatory way). 

One of the witnesses opposing ratification in the U.S. Senate Foreign 
Relations Committee hearings, Steven Groves, drew attention to this possible 
legal effect. According to Groves, “Article 25 . . . could be interpreted as 
ensuring that persons with disabilities are provided access to free or 
affordable abortions, assuming such access is provided to nondisabled 
persons by the state party.”106 The further assumption, for Article 25 to 
compel a change in national law, is that persons with disabilities do not 
already have “such access [as is] provided to nondisabled persons.”107 So, 
Article 25(a) does not create an international law right to abortion for the 
general population. Instead, it has the potential effect, where a disparity of 
treatment exists under the national legislation of a State party, of removing 
the disparity. Again, as noted by the United States and as is visible on a plain 
reading of the text, this provision concerns equality of treatment between 
persons with disabilities and those without. Article 25(a) is not a provision 
for establishing an international abortion law. Its effect would be felt in a 
situation where a State provides public support for abortion to non-disabled 
persons but not to persons with disabilities. This would have a very limited 
effect. At any rate, the objectors did not furnish an example of national 
legislation that discriminates in this way. In the absence of such legislation, 
Article 25(a), under its proper interpretation, would not operate to extend 
State provision of abortion to any class of person. 

 
                                                                                                                 
106 See S. EXEC. REP. NO. 112-6, supra note 86, at 96 (statement of Steven Groves, Heritage 
Foundation) (emphasis added). 
107 Id. 



190 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

Even if a State were identified in which public health care legislation 
withholds abortion services from persons with disabilities, it is still not clear 
that Article 25(a) would result in the extension of such services as of right to 
a new class of persons. As will now be seen, the shared understanding 
reached by the drafters further suggests that Article 25(a) does not go as far 
as the objectors argued. 

(4) The Shared Understanding in Respect of Abortion and Article 
25(a) 

As noted above, there was widespread concern among participants in 
the drafting of the CRPD that Article 25 might, by inference at least, establish 
an international law right to abortion. It is clear from the drafting history, 
however, that the States involved in the drafting work agreed that Article 25 
establishes no such right. 

The European Union, for example, stated expressly that the text 
legislates no international law right to abortion.108 This is a significant 
position. If a party ever sought to extend the meaning of Article 25 to create 
a new right to abortion, that party would have difficulty in identifying the 
source of the putative new right in the text—and would have the further 
difficulty of explaining why States during the drafting work plainly said that 
it did not. The European Union and its member States would particularly lack 
credibility, if any of them later said that it did. 

Ambassador Miller, U.S. Representative to the U.N. Economic and 
Social Council, stated a similar position: 

[T]he United States understands that the phrase 
“reproductive health” in Article 25(a) of the draft 
Convention does not include abortion, and its use in that 
Article does not create any abortion rights, and cannot be 
interpreted to constitute support, endorsement, or promotion 
of abortion. We stated this understanding at the time of 
adoption of the Convention in the Ad Hoc Committee, and 
note that no other delegation suggested a different 
understanding of this term.109 

Faced with these clear statements of the EU and the United States, any 
State believing that Article 25(a) establishes access to abortion as an 
international legal right ought to have said something. There is no record that 
any delegation did; there is no record of a State taking exception to the way 
 
                                                                                                                 
108 Ad Hoc Comm., 7th sess., supra note 34, Daily summary, Jan. 25, 2006, Vol. 8, #8. Costa 
Rica and Uruguay expressed agreement.  
109 Miller, supra note 82. The Explanation is reproduced in full in Annex II to the present 
Observations. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 191 
 
the EU or the United States described the legal effect of Article 25(a). Again, 
lacking a clear indication in the text itself that this was a provision intended 
to create a new abortion right, these statements from the drafting process are 
strong evidence of the proper interpretation of the provision.110 

(5) The Divergence Among National Rules on Abortion and “Right 
to Life” Under Article 10 

The other term in the CRPD that raised concern was “right to life,” as 
contained in Article 10.111 National Right to Life (NRL), an NGO, would 
have preferred language clarifying the temporal scope of the “right to life” 
protection: 

State Parties reaffirm that every human being has an inherent 
right to life from conception to natural death, and shall take 
all necessary measures to ensure its effective enjoyment by 
persons with disabilities on an equal basis with others, and 
shall ensure that disability or perceived quality of life shall 
not serve as a basis for the infringement of the right to life.112 

If the treaty, as adopted, had contained this clause—“from conception 
to natural death”—then the treaty would have established an international 
definition of life for purposes of right to life. NRL was not alone in seeking 
to establish such an international definition. Other participants in the 
Working Group called for a more specific provision that would prohibit 
“specific infringements on the right to life, such as forced or coerced 
abortions or practices of euthanasia.”113 Colombia suggested that “the text 
could prohibit the promotion of abortion on the grounds of disability.”114 
Seemingly at the other end of the spectrum of views on abortion, some 
participants sought instead a guarantee that national legislation “would not 
compromise women’s reproductive rights.”115 The adopted text avoids 

 
                                                                                                                 
110 For an example of the legal significance of States parties’ concordance in a drafting session 
with one State’s interpretation of the text, see Concerning the Maritime Dispute (Peru v. 
Chile), Public Sitting Record, 2012 I.C.J., C.R. 2012/30, at 60, ¶¶ 4.27-4.28 (Dec. 6, 2012) 
(statement of the delegate of Ecuador respecting the method of maritime delimitation, recorded 
in the 1954 Minutes of the Complimentary Convention, Crawford (for Chile)). 
111  
112 Ad Hoc Comm., 5th sess., supra note 34, Daily Summary, Jan. 27, 2005, Vol. 6, #4 
(emphasis added). 
113 Working Group, supra note 42, Daily Summary, Jan. 5-16, 2004, Vol. 3, #7 at 16 
(observation by Disabled People’s International). And to similar effect see id., Vol. 3, #9 at 7. 
114 Id. at 17. Cf. proposal by Uganda, Ad Hoc Comm., 3d sess., supra note 34, Daily summary, 
May 26, 2004, Vol. 4, #3. Kenya and Venezuela supported the proposal by Uganda. Ad Hoc 
Comm., 4th sess., supra note 34, Daily Summary, Aug. 26, 2004, Vol. 5, #4. 
115 Id. at Observation by World Network of Users and Survivors of Psychiatry. 



192 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
specific treatment of the problem either way, instead providing for a general 
“right to life.”116 

Several States and other participants in the drafting work 
acknowledged that divergent national positions place a limit on what a 
multilateral convention can do in respect of abortion. Ireland, for example, a 
State with relatively strong protections for the unborn, noted that the 
difference of national approaches on the topic of “right to life” made it 
undesirable to incorporate a detailed definition in the draft text.117 As noted 
above, Article 25(a) is a guarantee of equality within a national jurisdiction, 
not a guarantee of a single, specific international program of “sexual and 
reproductive health.”118 Article 10, similarly, leaves it to individual states to 
legislate a “right to life.” The only obligation under Article 10 is to guarantee 
this right to all persons, regardless of disability, within that jurisdiction. Like 
Article 25(a), Article 10 does not impose an international law rule that would 
supplant national legislation. It does not define “life” or, for that matter, what 
a “right to life” entails. 

(6) The U.S. Secretary of State’s Observations on “Access to 
Abortion” 

Objectors to Article 25(a) drew attention to a statement by the U.S. 
Secretary of State, which indicated that “family planning is an important part 
of women’s health; and reproductive health includes access to abortion.”119 
The statement was in response to a question regarding the Secretary’s general 
view of U.S. foreign policy.120 The objectors suggested that the statement 
supports the interpretation that Article 25(a) legislates an international right 
to abortion. The better view is that the Secretary’s statement says nothing 
about how Article 25(a) should be interpreted.  

When one State seeks to verify another State’s position in their treaty 
relations, the State well may refer to statements by the other State’s foreign 
minister..121 The U.S. Secretary of State’s statement, however, had nothing 

 
                                                                                                                 
116 See also discussion in the Ad Hoc Committee respecting draft art. 8. Ad Hoc Comm., 5th 
sess., supra note 34, Daily summary, Jan. 24, 2005, Vol. 6, #1. 
117 Working Group, supra note 42, Daily Summary, Vol. 3, # 9, Jan. 15, 2004, at 8. 
118 See Convention Disabilities, supra note 1. 
119 New Beginnings: Foreign Policy Priorities in the Obama Administration: Hearing Before 
the Senate Committee on Foreign Affairs, 111th Cong. 24 (2009); S. EXEC. REP. 112-6, supra 
note 86, at 18. 
120 For the Secretary’s opening and prepared statement, see U.S. Dep’t of State, New 
Beginnings: Foreign Policy Priorities in the Obama Administration, (Apr. 22, 2009), 
http://perma.cc/8HFB-F7ZH. 
121 See, e.g., Concerning the Application of the Interim Accord of 13 September 1995 (the 
former Yugoslav Republic of Macedonia v. Greece), Public Sitting, Verbatim Record, 2011 
I.C.J., C.R. 2011/5 at 29, ¶ 12 (March 21) (Mr. Sands for the former Yugoslav Republic of 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 193 
 
to do with the text of Article 25(a). The proceedings in which the Secretary 
made the statement did not address the interpretation of the CRPD, nor did 
they address the content of other human rights instruments or of general 
international law. It was not the purpose of the Secretary’s statement to 
analyze U.S. international legal policy or to present a detailed catalogue of 
U.S. obligations under treaties. Instead, the Secretary’s statement established, 
in summary fashion, the policy objectives of the United States in general. A 
statement iterating the general policy that motivates a particular treaty might 
be relevant when the object and purpose of the treaty is unclear; however, the 
object and purpose of the CRPD is evident. The U.S. Secretary of State’s 
general view of foreign policy does little to elucidate the meaning of the 
CRPD. 

There is a further observation to be drawn from the relation between 
Article 25(a) and national legislation. Article 25(a) obliges States parties to 
“[p]rovide persons with disabilities with the same range, quality and standard 
of free or affordable health care and programmes as provided to other 
persons, including in the area of sexual and reproductive health and 
population-based public health programmes.”122 How Article 25(a) will 
operate for a given State party is determinable only on the basis of what, by 
virtue of that State’s national legislation, is “provided to other persons.”123 
The U.S. Secretary of State, speaking at a Congressional hearing, does not 
establish what U.S. legislation provides. That is determined by reference to 
the United States Code and Code of Federal Regulations. The remarks of the 
Secretary of State do not determine how Article 25(a) would operate for the 
United States, if the United States were to ratify the Convention. 

 

(7) “Dignity,” “Worth,” and the Non-Legal Connotations of the 
Terms in a Legal Text 

A range of other objections, broadly related to the protection of life, 
were made in addition to the objection to the abortion provision. To an extent 
perhaps unusual in legal drafting work, objections arose not from the legal 
meaning of particular terms but from the political or other connotations those 
terms carry in particular societies. On several occasions during the drafting 
process, NGOs expressed concern over the non-legal meaning or 
connotations of particular language. For example, the International Right to 
Life Federation and the Coalition for the Protection of Persons with 
Disabilities proposed that the words “and worth” be added to “death with 
 
                                                                                                                 
Macedonia); id., at 43, 44, 45-46, 49, ¶¶ 20, 23, 28-29, 38-40 (Mr. Murphy for the former 
Yugoslav Republic of Macedonia). 
122 See Convention Disabilities, supra note 1. 
123 See Convention Disabilities, supra note 1. 



194 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
dignity” on the ground that the latter phrase, on its own, suggests support for 
euthanasia. According to the NGOs: 

The term “death with dignity” is used by proponents of 
assisted suicide and euthanasia to justify the termination of 
a human life whose quality of life is deemed unworthy. 
Every human person has dignity and worth irrespective of 
their perceived quality of life. Persons with disabilities are 
particularly vulnerable because of their perceived poor 
quality of life and are deemed unworthy to live and better off 
dead.124 

The fact that certain political activists—in this case, proponents of 
assisted suicide and euthanasia—use a term in a certain way has little or no 
bearing on the meaning of the term for purposes of a treaty. Neither the draft 
text nor the CRPD as adopted contains the phrase “death with dignity,” and 
no party participating in the drafting established that the phrase has a specific 
or technical meaning for purposes of international law. The objection to the 
phrase in the draft text was based not on a judgment of its possible legal 
effect—for example, that the language might impose a certain obligation on 
the United States. Rather, the objection reflected the belief that the phrase 
had undesirable overtones. As a matter of international law, the word 
“dignity” in an international agreement does not impose a right to euthanasia 
or other such practice. Nothing like consensus in support of euthanasia exists 
among national systems. Nor does the phrase “death with dignity,” 
interpreted in view of the CRPD as a whole, have anything to do with 
euthanasia. In the CRPD, the word “dignity” appears nine times.125 It appears 
twice with the words “and worth”126 and once with the words “and self-
worth.”127 None of the provisions in which the word “dignity” appears 
suggest, even by inference, that the drafters intended the CRPD to impose on 
States a new and intrusive régime in abrogation of rules concerning the most 
sensitive questions of morality and human relations. 

This is not to say that concerns over the non-legal connotations of terms 
used in an international instrument are unimportant. They well may 
determine the prospects for ratification under national procedures in which 
legal analysis is only one factor. 

 
                                                                                                                 
124 Ad Hoc Comm., 5th sess., supra note 34, Daily summary, Jan. 27, 2005, Vol. 6, # 4. See 
also Ad Hoc Comm., 6th sess., supra note 34, Daily summary, Aug. 8, 2005, Vol. 7, # 6, 
observation of Society for the Protection of Unborn Children. 
125 See Convention Disabilities, supra note 1, preambular ¶¶ (a), (h), (y); Arts. 1, 3(a), 8(1)(a), 
16(4), 24(1)(a), 25(d). 
126 See Convention Disabilities, supra note 1,.preambular ¶¶ (a), (h). 
127 See Convention Disabilities, supra note 1,¶ 24(1)(a). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 195 
 
B. Preambular Paragraph (u) and Article 11: CRPD in Armed Conflict and 
its Relation to International Humanitarian Law 

The United States, almost from the start, made clear that it objected to 
the incorporation into the CRPD of any provision concerning situations of 
armed conflict.128 Opposition by the United States did not, however, prevent 
adoption of preambular paragraph (u) and Article 11, which provide as 
follows: 

(u) Bearing in mind that conditions of peace and security 
based on full respect for the purposes and principles 
contained in the Charter of the United Nations and 
observance of applicable human rights instruments are 
indispensable for the full protection of persons with 
disabilities, in particular during armed conflicts and foreign 
occupation . . . .  
 Article 11 — Situations of risk and humanitarian 
emergencies 
States Parties shall take, in accordance with their obligations 
under international law, including international 
humanitarian law and international human rights law, all 
necessary measures to ensure the protection and safety of 
persons with disabilities in situations of risk, including 
situations of armed conflict, humanitarian emergencies and 
the occurrence of natural disasters. 

The relevant phrases are “during armed conflicts and foreign 
occupation” in paragraph (u),129 and “including situations of armed conflict” 
in Article 11.130 These provisions would appear to extend the application of 
the CRPD to a field covered by international humanitarian law rules, such as 
those contained in the 1907 Hague Convention Respecting the Laws and 
Customs of War on Land131 and the 1949 Geneva Conventions.132 

On August 25, 2006, the Ad Hoc Committee adopted by vote a draft 
preambular paragraph, designated at the time as “(s) bis,” which was largely 

 
                                                                                                                 
128 Ad Hoc Comm., 4th sess., supra note 34, Daily summary, Aug. 26, 2004, Vol. 5, # 4. 
129 See Convention Disabilities, supra note 1. 
130 See Convention Disabilities, supra note 1. 
131 Hague Convention Respecting Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 
2277, 205 Consol. T.S. 277 (entered into force Jan. 26, 1910). 
132 The most directly relevant to the CRPD is the Convention (IV) relative to the Protection of 
Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. See in 
particular art. 27, cl. 3, providing that “all protected persons shall be treated with the same 
consideration by the Party to the conflict in whose power they are, without any adverse 
distinction.” Id. at 6 U.S.T. at 35##, 75 U.N.T.S. at 306. 



196 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
retained as preambular paragraph (u) in the adopted text.133 The vote on the 
draft paragraph was 102 States in favor, 5 against, and 8 abstaining. The 
States voting against were Australia, Canada, Israel, Japan, and the United 
States. The States abstaining were Cameroon, Côte d’Ivoire, Gabon, Kenya, 
Niger, Nigeria, the Republic of Korea, and Serbia. The timing was 
inauspicious. Israel’s operation against Hezbollah in Lebanon had begun the 
month before, and this introduced a political element in the Ad Hoc 
Committee’s discussions of the draft paragraph.134 

In the hearings before the Senate Foreign Relations Committee in 2012, 
the armed conflict provisions were not a focal point of objection. This is 
surprising since the United States had made clear, both in the drafting work 
and in the General Assembly at the time the Convention was adopted, that 
preambular paragraph (u) and Article 11 posed difficulties and should not 
have been incorporated into the text as drafted. The United States’ position 
(which was shared by several of its allies) may be recalled here in brief before 
turning to the questions presented by the overlapping claims of human rights 
and humanitarian law. 

(1) The U.S. and Allied Position on the Armed Conflict Clauses in 
the CRPD 

Upon the adoption of the CRPD by the U.N. General Assembly in 
2006, the United States indicated its concerns with the Convention’s armed 
conflict provisions: 

[T]he reference in this human rights Convention to armed 
conflict and foreign occupation, which are governed by 
international humanitarian law and not by human rights law, 
would create unnecessary legal confusion and thus 
potentially undermine the extensive protections already 
available under international humanitarian law to protected 
persons in those situations. The United States wishes to note 
for the official record its continued concerns related to that 
preambular paragraph in the Convention. We note that those 

 
                                                                                                                 
133 Ad Hoc Comm., 8th sess., supra note 34, at ¶ 11. 
134 Trömel, supra note 38, at 15. The operation had begun on July 12, 2006, following cross-
border attacks by Hezbollah. Identical letters dated July 12, 2006 from the Permanent 
Representative of Israel to the United Nations addressed to the Secretary-General and the 
President of the Security Council, U.N. Doc. A/60/937-S/2006/515 (July 12, 2006); see also 
S.C. Res. 1701, preamb. ¶ 2 U.N. Doc. S/RES/1701 (Aug. 11, 2006). The ensuing violence 
precipitated a humanitarian crisis. Identical letters dated 19 July 2006 from the Chargé 
d’affaires a.i. of the Permanent Mission of Lebanon to the United Nations addressed to the 
Secretary-General and the President of the Security Council, with Annex, Letter of the Prime 
Minister to the Diplomatic Corps in Beirut, U.N. Doc. A/60/948-S/2006/550 (July 19, 2006). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 197 
 

concerns also apply to article 11, which deals with situations 
of armed conflict.135 

This objection is consistent with the U.S. position overall on the 
functions of human rights law and humanitarian law. To incorporate the 
former into the latter, in the view of the United States, is to introduce an 
“unnecessary confusion.”136 

Israel also expressed concern over the relation between the two legal 
regimes: 

The attempt to draw artificial parallels between two different 
legal regimes under international law, that of human rights 
law and the law of armed conflict, only undermines the 
effectiveness of each regime. Israel would therefore like to 
place on record its concern regarding references in the 
Convention to elements taken from the law of armed 
conflict.137 

The other objecting States declined to elaborate on the matter in the 
General Assembly but had done so already in the Ad Hoc Committee in 
2006.138 

This was by no means the first time that the relation between these two 
domains of international law had raised questions. 

(2) The Relation Between Human Rights and Humanitarian Law in 
General 

The difficulty in identifying the precise relation between human rights 
rules and international humanitarian law has existed for some time. When the 
International Court of Justice in 1996 asked for an advisory opinion on the 
legality of the threat or use of nuclear weapons, some States responded139 by 
referring to Article 6, paragraph 1, of the International Covenant on Civil and 
Political Rights (ICCPR), which provides that “[e]very human being has the 
inherent right to life. This right shall be protected by law. No one shall be 
arbitrarily deprived of his life.”140 The Court in its opinion said as follows: 

[T]he protection of the International Covenant of Civil and 

 
                                                                                                                 
135 G.A. Res. 61/76, supra note 5, at 7 (Mr. Miller (U.S.)). 
136 Id. 
137 G. A. Res. 61/76, supra note 5, at 18 (Ms. Feldman (Israel)). 
138 Ad Hoc Comm., 8th sess., supra note 34, at ¶ 11. 
139 See, e.g., Written Statement of the Government of Egypt to the U.N., June 20, 1995, at 
15-16, ¶ 27. 
140 ICCPR, supra note 63. 



198 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

Political Rights does not cease in times of war, except by 
operation of Article 4 of the Covenant whereby certain 
provisions may be derogated from in a time of national 
emergency. Respect for the right to life is not, however, such 
a provision. In principle, the right not arbitrarily to be 
deprived of one’s life applies also in hostilities. The test of 
what is an arbitrary deprivation of life, however, then falls 
to be determined by the applicable lex specialis, namely, the 
law applicable in armed conflict which is designed to 
regulate the conduct of hostilities. Thus whether a particular 
loss of life, through the use of a certain weapon in warfare, 
is to be considered an arbitrary deprivation of life contrary 
to Article 6 of the Covenant, can only be decided by 
reference to the law applicable in armed conflict and not 
deduced from the terms of the Covenant itself.141 

So the human rights rule, by which is guaranteed “right to life,” does 
not lapse during armed conflict. The human rights treaty, however, does not 
furnish the definition by which to determine whether a breach of the right has 
been committed; “the test of what is an arbitrary deprivation of life” is not 
found in the treaty. Instead, the “test” is found in humanitarian law. While 
suggesting an admixture of the two regimes, this approach preserves the 
function of humanitarian law in the proper sphere of its application. 

The precise contours of the relation between human rights and the 
humanitarian law rules in force with respect to armed conflict remain, even 
in light of Nuclear Weapons, far from clear. One writer has said that the 
human rights rules under the World Heritage Convention142 and the 
ICESCR143 are applicable when a party has committed a breach of the 
humanitarian rules under the 1954 Hague Convention for the Protection of 
Cultural Property in the Event of Armed Conflict.144 At least one national 
court has said that international humanitarian law is lex specialis—a body of 
international law rules applying in the special circumstance of armed conflict 
or military occupation—but that gaps in that law may be filled by reference 
to international human rights law.145 Where gap filling ends and substitution 

 
                                                                                                                 
141 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 
25 (July 8) [hereinafter Legality Nuclear Weapons]. 
142 United Nations Convention for the Protection of the World Cultural and Natural Heritage, 
Nov. 16, 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151. 
143 See ICESCR, supra note 64. 
144 Ronald J. Bettauer, Book Review, 102 AM. J. INT’L L. 220, 225 (2008) (reviewing ROGER 
O’KEEFE, THE PROTECTION OF CULTURAL PROPERTY IN ARMED CONFLICT (2006)); Hague 
Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted 
May 14, 1954, 249 U.N.T.S. 240 (entered into force Aug. 7, 1956). 
145 HCJ 769/02 Pub. Comm. Against Torture in Israel v. Gov’t of Israel [2006] (Isr.). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 199 
 
begins may be difficult in practice to determine, and to state that the two 
regimes relate in this way does not, in itself, provide a reliable guide to the 
application of their (potentially overlapping) rules. Legal writers have 
recognized the difficulty in determining how, if at all, human rights law 
applies in armed conflict, military occupation, or within the armed forces 
generally.146 

Intermittently, international law writers in the United States have 
suggested that human rights law applies in armed conflict (in addition to 
humanitarian law).147 There are also the cases in which parties have sought 
to apply rights protections under U.S. constitutional law to situations of 
armed conflict,148 but these are not directly relevant to the relation of armed 
conflict to international rights protections. 

(3) A Shift in the U.S. Position on the Application of Human Rights 
Rules in Armed Conflict? 

In the last forty years, the United States, more or less consistently, has 
treated the two fields—human rights and humanitarian law—as distinct, with 
the latter prevailing in the special situation of armed conflict. According to a 
lawyer in the U.S. Department of State Office of the Legal Adviser in 2005, 

The obligations assumed by states under the main 
international human rights instruments were never intended 
to apply extraterritorially during periods of armed conflict. 
Nor were they intended to replace the lex specialis of 
international humanitarian law. Extending the protections 
provided under international human rights instruments to 
situations of international armed conflict and military 
occupation offers a dubious route toward increased state 
compliance with international norms.149 

The U.S. position has broadly followed this précis,150 and, as seen 
above, the United States maintained its position in its statements respecting 
the CRPD. 

It may be, however, that since 2008 the United States has modified its 

 
                                                                                                                 
146 See, e.g., Peter Rowe, The Impact of Human Rights Law on Armed Forces (2006). 
147 See, e.g., Martin & Joan Kyre, Military Occupation and National Security 97 (1968). 
148 See, e.g., Munaf v. Geren, 553 U.S. 674 (2008). 
149 Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of 
Armed Conflict and Military Occupation, 99 AM. J. INT’L L. 119, 141 (2005). See also 
Bettauer, supra note 144, at 225-26 . 
150 See, e.g., Comments by the Government of the United States of America on the 
 concluding observations of the Human Rights Committee, at 2-3, U.N. Doc. 
CCPR/C/USA/CO/3/Rev.1/Add.1 (Feb. 12, 2008). 

http://dx.doi.org/10.2307/3246094


200 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
position. The U.S. periodic report in 2011 to the Human Rights Committee, 
for example, suggests that the humanitarian law rules are not so much to be 
applied as strictly separate from the human rights rules but, rather, as additive 
to them: “torture and cruel treatment in armed conflict are also prohibited by 
the Geneva Conventions of 1949”.151 In respect of Article 11 of the CRPD, 
the Administration indicated that this provision is “consistent with DOD 
Directive 2311.01E, The Department of Defense Law of War Program.”152 
These statements would suggest, instead of an absolute position segregating 
the two legal regimes, an acknowledgement of the potential of overlap. To 
acknowledge that the rules may overlap would bring the United States closer 
to the Wall Advisory Opinion, where the Court said that situations exist in 
which both humanitarian law and human rights law apply.153 If, indeed, a 
shift has entered U.S. legal policy on this matter, it is all the more surprising 
that, during the Senate Committee on Foreign Relations hearings on the 
CRPD, those advising against ratification declined to raise the alarm. 

It is a matter of legal policy, rather than textual interpretation, whether 
a human rights convention ought to make provision for the application of its 
rules in situations of armed conflict. The text as adopted is clear enough: the 
CRPD in preambular paragraph (u) and Article 11 deals with situations of 
armed conflict. Some observations nevertheless may be made here, in respect 
of the questions this drafting choice may present. 

(4) The U.N. Human Rights Régime in Situations of Armed 
Conflict: Questions of Legal Policy 

First, a difficulty may arise, if a human rights treaty provides for causes 
of action not found in existing instruments. This will not happen where there 
exists neither an international instance competent to receive claims based on 
the human rights treaty in question nor a provision in national law for direct 
application of the treaty as a basis for claims in national court. However, 
where one or both exist, the human rights treaty well may invite claims in 
connection with armed conflict; and, try as national courts might to limit their 
scope,154 the international court seized of the claims well may decide both to 
exercise jurisdiction and to apply the human rights rule.155 The difficulty does 
 
                                                                                                                 
151 U.S., Fourth Periodic Report of the United States of America Concerning the International 
Covenant on Civil and Political Rights, ¶ 171, U.N. Doc. CCPR/C/USA/4 (May 22, 2012) 
(emphasis added). 
152 S. EXEC. REP. NO. 112-6, supra note 86, at 136. 
153 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 
Advisory Opinion, 2004 I.C.J. 136, ¶ 106 (July 9) [hereafter Legal Consequences]. 
154 Al-Skeini v. Secretary of State for Defence (Consolidated Appeals), [2007] UKHL 26, 
[2008] 1 A.C. 153 (appeal taken from Eng.); R v. Secretary of State for Defence, [2007] UKHL 
58, [2008] 1 A.C. 332 (appeal taken from Eng.). 
155 Al-Skeini v. United Kingdom, 53 Eur. Ct. H.R. 18 (2011); Al-Jedda v. United Kingdom, 
Eur. Ct. H.R. App. No. 27021/08 (2011) (holding, inter alia, that provisions of the European 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 201 
 
not arise, where the State party is not subject to an international dispute 
settlement mechanism, but it suggests a concern of principle in any event. 

A second difficulty is that the application of human rights instruments 
may add complications to the governance of an occupied territory. This 
would be the difficulty, for example, presented by the Advisory Opinion of 
the International Court of Justice in the Wall case with respect to the West 
Bank. The International Court stated in the Advisory Opinion that “the 
International Covenant on Civil and Political Rights is applicable in respect 
of acts done by a State in the exercise of its jurisdiction outside its own 
territory.”156 A significant additional treaty basis thus would be established 
for scrutinizing the State party’s conduct. 

And third, the introduction of human rights provisions into situations 
of armed conflict by way of an international treaty like the CRPD raises 
general questions of the separation of functions and powers in international 
institutions. The drafting process that led to adoption of CRPD was set in 
train by the General Assembly. The Ad Hoc Committee given the task of 
drafting the convention was to take into account recommendations of the 
Commission on Human Rights157 and the Commission for Social 
Development. The Commission on Human Rights was and the Commission 
for Social Development is a functional commission subsidiary to ECOSOC. 
It is the U.N. Security Council—not the General Assembly or ECOSOC—
that is the main organ under the U.N. Charter concerned with international 
peace and security. Questions relating to the regulation and settlement of 
armed conflict are chiefly, then, Security Council questions. It, therefore, 
may be asked whether a convention drafted to protect human rights—not to 
regulate peace and security—is the right instrument in which to establish new 
rules in respect to armed conflict. The European Court of Human Rights in 
Al-Jedda did not see the Security Council’s particular function to entail a 
privilege over and against the application of human rights rules158—which 
suggests how, at least in one regional system, a new human rights treaty that 
expressly invokes situations of armed conflict and foreign occupation might 
introduce complications. 

It would exaggerate the development of separation of powers or 
functions in the law of international institutions to equate it to separation of 
powers doctrine in U.S. constitutional law. But separation of powers is by no 
means alien to the U.N. system. The International Court has been clear: 
certain organs in the U.N. system perform certain functions, and certain 

 
                                                                                                                 
Convention on Human Rights were applicable to the conduct of UK armed forces personnel 
in Iraq). For comment, see Marko Milanovic, Al-Skeini and Al-Jedda in Strasbourg, 23 EUR. 
J. INT’L L. 121 (2012). 
156 Legal Consequences, supra note 153, at ¶ 111. 
157 This later was dissolved and replaced with a new Human Rights Council. G.A. Res. 60/251, 
U.N. Doc.  A/RES/60/251 (Mar. 15, 2006). 
158 See Al-Jedda, Eur. Ct. H.R. App. No. 27021/08 at ¶ 87-91 (summarizing the U.K. position). 



202 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
organs do not exercise certain functions. The World Health Organization, for 
example, did not have authority to request an Advisory Opinion concerning 
the legality of the use of nuclear weapons in armed conflict, on the grounds 
(inter alia) that such a question (which principally concerned peace and 
security) did not belong to the WHO’s functions.159 The functions of the 
General Assembly, the International Court said earlier, are those expressly 
set out in the U.N. Charter and, for certain purposes (e.g., admission of States 
as new Members to the United Nations), can only be exercised in conjunction 
with the Security Council.160 In the “mainstream” of European human rights 
institutions, an objection grounded on the proper exercise of U.N. 
competences would have little credibility, but those institutions are not 
motivated by the same concerns as U.S. policy-makers, and they function 
under their own legal framework. The extension of CRPD into the law of 
armed conflict may be criticized on grounds that this is not consistent with 
the functions and powers of the bodies that undertook its drafting and 
adoption. 

In any event, whatever the merits of the points above, and 
notwithstanding signs of a shift in recent U.S. practice, it has been the more 
or less consistent position of the United States that a human rights convention 
should not intermingle its rules with those of the law of armed conflict. This 
was not one of the main objections in the Senate hearings in respect of 
ratification of the CRPD, but it is an objection well-grounded in U.S. practice. 
If that position is to be maintained, then consistency with it should be 
maintained across the relevant international legal policies of the United 
States. Accordingly, if the United States is to ratify the CRPD, then the 
effects of preambular paragraph (u) and Article 11 should be addressed. A 
reservation, understanding or declaration in respect of the armed conflict 
clauses would be an effective means to maintain the consistent position. 

The other area of application evidently envisaged for Article 11—
humanitarian crises other than armed conflict—would not seem to present 
the same questions of policy or legal consistency.161 Article 11 would not call 
for reservation in that connection. 

C. Articles 34–40 and the Optional Protocol: International Compliance 

 
                                                                                                                 
159 Legality Nuclear Weapons, supra note 141, at ¶ 10. See also id. at  ¶¶ 11, 14. 
160 Competence of the General Assembly for Admission of a State to the United Nations, 
Advisory Opinion, 1950 I.C.J. 4 (March 3). 
161 See, e.g., Ron McCallum AO, Professor Emeritus, Faculty of Law, University of Sydney, 
Australia, Keynote Speech for the Japan Disability National Forum: International Monitoring 
and The Harmonisation of Domestic Law: Japan and the CRPD, at 4 (Dec. 6, 2012) (“The 
entire world recalls the 11 March 2011 Tsunami which tragically struck the coast of north east 
Japan. As was demonstrated by this disaster, persons with disabilities are vulnerable in these 
emergency situations.”).  



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 203 
 
Burden 

It was suggested several times in the Senate hearings in respect of 
ratification of the CRPD that the burden of complying with the international 
mechanisms contained in the Convention is too high to merit ratification. The 
statement of minority views asserted that the reporting requirement under 
Article 35, for example, is of unknown scope and that its “financial and labor 
costs to the American taxpayer” thus are uncertain as well.162 The minority 
views statement also said that the monitoring committee (to be established 
under Article 34) would likely digress into matters unrelated to the rights of 
persons with disabilities and make “recommendations that are contrary to the 
interests and values of the United States.”163 The statement referred to a 
report of the Committee on the Elimination of Racial Discrimination (CERD) 
in 2008 that criticized the United States in respect of the death penalty, voting 
rights and detention policy.164 

Legal analysis, taken in isolation of other considerations, cannot say 
whether the costs of an international commitment are merited by its benefits, 
so to a large degree the concerns expressed in respect of compliance burden 
and reputational risk are to be addressed by policy-makers, not lawyers. 
There can be no doubt that participation in a U.N. treaty monitoring body 
entails compliance costs. And it is not unusual for some participants to use 
the monitoring bodies as platforms from which to broadcast political views 
on matters not falling within the bodies’ competence. The United States 
participates in other international bodies that entail these burdens. To form a 
view as to what burdens participation in the CRPD would entail, the 
compliance mechanisms of that treaty therefore may be considered and 
compared against others in which the United States has participated. 

(1) CRPD Compliance Mechanisms 

 The CRPD establishes two international entities: a Committee on 
the Rights of Persons with Disabilities (CRPD Article 34) and a Conference 
of States Parties (CRPD Article 40).165 

Meetings of the Conference of States Parties are to take place 
 
                                                                                                                 
162 S. EXEC. REP. NO. 112-6, supra note 86, at 18. 
163 Id. 
164 Id. This would appear to have been the conclusion reached in Concluding Observations in 
Respect of the United States, Comm. On the Elimination of Racial Discrimination, 72d Sess., 
Feb. 18-Mar. 7, 2008, U.N. Doc. CERD/C/USA/CO/6 (2008). See also Groves, supra note 87. 
165 On the drafting work, negotiations, and alternative proposals, see Lord & Stein, supra note 
61, at 689, 691-96. For the considerably more expansive proposals for a CRPD monitoring 
body, which were rejected, see id. at 700-13. Apparently, one factor which led to the adoption 
of the more modest proposals was that negotiations began in the Ad Hoc Committee rather 
late, and so little time was afforded for working out the details of the more controversial 
proposals. Id. at 693-94. 



204 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
“biennially or upon the decision of the Conference of States Parties.”166 The 
purpose of the Conference is “to consider any matter with regard to the 
implementation of the present Convention.”167 The provision for a regular 
meeting to consider “any matter” (i.e., including substantive matters) had not 
been a standard provision in the human rights treaties, though the earlier 
human rights treaties provided for regular meetings to elect members to their 
monitoring bodies168 and for meetings upon request of the States Parties to 
consider proposals for amendments.169 Mexico and others had sought to 
establish a CRPD conference procedure covering a wider scope of 
activities.170 

In multilateral treaties, it is by no means unheard of for State 
conferences to exercise more extensive functions—e.g., under the Antarctic 
Treaty, the State conference may adopt proposals for new measures in 
implementation of the agreement.171 The exact scope of the work of the 
Conference of States Parties to the CRPD will depend in some measure on 
the decisions taken by the Parties in the Conference,172 but the functions 
nevertheless seem to go somewhat further than those provided for under other 
human rights conventions.173 It may be asked whether the conference 
procedure is aptly termed a compliance mechanism at all. Its chief concern is 
likely to be policy-setting among the CRPD Parties. Participation in it would 

 
                                                                                                                 
166 Convention Disabilities, supra note 1, at art. 40(2). 
167 Id. art. 40(1). 
168 See, e.g., ICCPR, art. 30(4), supra note 63; Convention against Torture, art. 17(3), supra 
note 66, at 199; Convention Migrant Workers, art. 72(4), supra note 69, at 270. 
169 See, e.g., ICCPR, art. 51(1), supra note 63; Convention Against Torture, art. 29(1), supra 
note 66, at 200; Convention Migrant Workers, art. 90(1), supra note 69, at 273. 
170 Lord & Stein, supra note 61, at 696 n.36, 707-08. See id. at 707 n.108 especially (setting 
out details of Mexico’s proposal). 
171 The Antarctic Treaty of 1959, art. IX, ¶ 1, Dec. 1, 1951, 402 U.N.T.S. 71, 78-80 provides 
for Antarctic Treaty Consultative Meetings (ATCMs) with competence, inter alia, to 
“formulat[e] and consider[], and recommend[] to their Governments, measures in furtherance 
of the principles and objectives of the Treaty” (art. IX, ¶ 1), adopted Dec. 1, 1951, entered into 
force June 23, 1961, 402 U.N.T.S. 71, 78-80. There is a qualitative difference between the 
governance structures, where the treaty constitutes a public international organization with its 
own legal personality and where it provides merely for inter-State meetings, but examples of 
a range of structures nevertheless may be instanced in this connection; see, e.g., the Whaling 
Commission under the International Convention for the Regulation of Whaling, arts. III-VI, 
Dec. 2, 1946, 161 U.N.T.S. 72, 76-82; the Assembly of States Parties under the Rome Statute, 
supra note 24, art. 112 at 76-77; Plenipotentiary Conference under the International 
Telecommunications Convention, arts. 6, 53, Oct. 25, 1973, 1209 U.N.T.S. 254, 259, 273.  
172 Lord & Stein, supra note 61, at 708, 714. 
173 On the innovative aspect of the CRPD Conference, see Trömel, supra note 38, at 135; Lord 
& Stein, supra note 61, at 696-97. Cf. International Convention for the Protection of All 
Persons from Enforced Disappearance, art. 27, supra note 71 (providing for a conference of 
States Parties “to evaluate the functioning of the Committee”—but this particular provision, it 
would seem, is limited to the purpose of evaluating whether to transfer the functions of the 
Committee to another body). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 205 
 
entail the usual costs associated with a State representative attending a 
diplomatic conference. 

As to the CRPD Committee, this is a monitoring body that adds to the 
system of U.N. human rights organs, as noted above.174 The United States 
suggested, in observations in the Ad Hoc Committee, that monitoring should 
take place mostly at a national level.175 The United States during drafting 
opposed establishment of a new monitoring body.176 The United States later 
stated that it was flexible in respect of monitoring, even as it still sought to 
discourage the establishment of a new treaty organ. According to the U.S. 
representative in the Ad Hoc Committee, the United States 

strongly supported the need for international monitoring, 
but, in light of the current need for treaty body reform and 
the specific comments of the High Commissioner on Human 
Rights, it suggested using existing international monitoring 
bodies in lieu of the creation of a new, independent 
monitoring committee. Use of existing monitoring bodies 
would provide immediate expertise on nondiscrimination, 
consistency of jurisprudence, efficiency, avoidance of 
redundancy and cost saving. The existing bodies, such as the 
Human Rights Commission, already have jurisdiction over 
many issues in the convention and have dealt specifically 
with disabilities issues. Moreover, mainstreaming into 
existing bodies could reinvigorate these bodies. However, 
the United States emphasized its flexibility on the issue.177 

The “mainstreaming” approach was not taken. As noted, the 
Convention, as adopted, includes a monitoring body of its own. 

Like the other bodies comprising the U.N. human rights monitoring 
system, the CRPD Committee receives periodic reports from States Parties 
as required under the Convention and communicates with States Parties with 
respect to their obligation to transmit reports.178 The independent executive 
power of the CRPD Committee to issue sanctions against a State for non-
 
                                                                                                                 
174 See, supra text accompanying footnotes 62 – 71. 
175 Ad Hoc Comm., 6th sess., supra note 34, Daily summaries, Aug. 9, 2005, Vol. 7, # 7. 
176 Ad Hoc Comm., 7th sess., supra note 34, Daily summaries, Jan. 27, 2006, Vol. 8, # 10. 
177 Id., vol. 8, # 15. 
178 Respecting the first sessions of the Committee, see Ron McCallum, The United Nations 
Convention on the Rights of Persons with Disabilities: Some Reflections, SYDNEY L. SCHOOL 
RES. PAPER No. 10/30, 2010, available at http://perma.cc/Q4Q5-S5HG. Professor McCallum 
was elected to the CRPD Committee on Nov. 3, 2008 and served as its Chair in 2010 (effective 
from Feb. 22, 2010). See Rep. of the Conference of States Parties to the Convention on the 
Rights of Persons with Disabilities, 1st sess., Oct. 31 & Nov. 3, 2008, U.N. Doc. 
CRPD/CSP/2008/4, ¶ 7 (Nov. 3, 2008); Rep. of the Comm. on the Rights of Persons with 
Disabilities, 2nd sess., Oct. 19-23, 2009, U.N. Doc CRPD/C/2/2, ¶ 15 (Oct. 23, 2009). 



206 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
compliance with the transmission requirement or for non-compliance with 
substantive provisions of CRPD is extremely limited. States that become 
party to the Optional Protocol recognize the competence of the CRPD 
Committee to “receive and consider communications from or on behalf of 
individuals or groups of individuals subject to its jurisdiction who claim to 
be victims of a violation by that State Party of the provisions of the 
Convention”179The CRPD may issue interim measures against a State Party 
in instances where “irreparable damage” might occur as a result of a CRPD 
violation.180 The Committee may carry out an inquiry into a State Party’s 
conduct when it has been presented “reliable information indicating grave or 
systematic violations.”181 Article 6(3) provides that “[a]fter examining the 
findings of such an inquiry, the Committee shall transmit these findings to 
the State Party concerned together with any comments and 
recommendations.”182 The Committee has no further enforcement power; it 
is open to States Parties accepting the Optional Protocol to decline to 
recognize the competence of the Committee to carry out such inquiry and to 
transmit such findings.183 Proposals were made at the drafting stage to 
establish independent external review procedures, similar to the World Trade 
Policy Review Body, OECD peer review, IMF thematic targeted approach, 
or review commissions under the Convention on Nuclear Safety, but none of 
these were incorporated into the CRPD.184 

The main potential administrative burden that CRPD might impose 
thus is contingent. The burden is contingent in particular upon adoption of 
the Optional Protocol. The CRPD system is not an all-or-nothing package. A 
State may become party to the Convention and also accept the Optional 
Protocol, or a State may become party to the Convention and decline to 
accept the Optional Protocol. 

The United States has dealt with similar choices before in its treaty 
practice. The United States is party to the ICCPR but not party to either 
ICCPR Optional Protocol. The United States has accepted the ICCPR Article 
41 mechanism of State communications.185 The United States in this way 
became party to the ICCPR but chose not to participate in the full scope of 
ICCPR procedures. It is open to the United States to adopt a similar approach 
with respect to the CRPD. If the administrative and political burden of the 

 
                                                                                                                 
179 See Optional Protocol, supra note 15, at art. 1(1). 
180 See Optional Protocol, supra note 15, at art. 4. 
181 See Optional Protocol, supra note 15, at art. 6, ¶¶ 1, 2. 
182 See Optional Protocol, supra note 15, at art. 6(3). 
183 See Optional Protocol, supra note 15, at art. 8. 
184 Lord & Stein, supra note 61, at 704-06. 
185“[T]he United States declares that it accepts the competence of the Human Rights 
Committee to receive and consider communications under Article 41 in which a State Party 
claims that another State Party is not fulfilling its obligations under the Covenant.” ICCPR, 
supra note 63. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 207 
 
communications process under the CRPD Optional Protocol is excessive, 
then the United States could ratify the Convention and remain a non-party to 
the Optional Protocol. Insofar as the CRPD might impose a compliance 
burden, that burden would be readily avoided by selective participation in the 
Convention régime. In this light, it is doubtful whether the Committee would 
“impos[e] requirements on the United States and other affluent countries that 
it does not press on less developed states.”186 The United States, if it so chose 
(and it almost inevitably would), would not participate in the Committee 
mechanism. 

Relevant as well in this connection is Professor Curtis Bradley’s 
proposal that the Senate include an understanding confirming the limited 
authority of the Committee.187 If the adopted multilateral text itself did not 
already make clear that that authority was “limited,” such an understanding 
would remove any doubt. 

Apart from each State’s right to decline to participate, there are further 
limitations on the Committee’s authority that operate even for States that 
have become party to the Optional Protocol. Optional Protocol Article 2 is a 
limiting provision that identifies situations requiring the Committee to reject 
a communication as inadmissible. These are (as lettered under Article 2): (a) 
the communication is anonymous; (b) it “constitutes an abuse of the right of 
submission . . . or is incompatible with the . . . Convention”; (c) it concerns a 
matter already examined by the Committee or under examination under 
“another procedure of international investigation or settlement”; (d) it is 
made before “[a]ll available domestic remedies have  
. . . been exhausted”; (e) it is manifestly ill-founded or not sufficiently 
substantiated; or (f) it concerns facts that occurred before entry into force of 
the Optional Protocol for the State Party concerned.188 

In respect of its institutional mechanisms, it would seem that the chief 
risk in ratifying the CRPD is that other States would raise extraneous political 
questions in the Committee on the Rights of Persons with Disabilities. This 
was a point raised by Steven Groves, who referred to practice in some of the 
other human rights monitoring bodies.189 One of the questions mentioned as 
potentially intruding on committee proceedings is that of the death penalty.190 
Some observations may be drawn from practice to date in that connection. 

 
                                                                                                                 
186 Convention on the Rights of Persons with Disabilities: Testimony Before the S. Foreign 
Relations Comm., 113th Cong. (2013) (testimony of Jeremy Rabkin, Professor of Law, George 
Mason School of Law), available at http://perma.cc/49C3-2KCL.  
187 Testimony Before the S. Foreign Relations Comm. Regarding the U.N. Convention on 
Rights of Persons with Disabilities, 113th Cong. (2013) (testimony of Curtis A. Bradley, 
William Van Alstyne Professor, Duke Law School), available at http://perma.cc/YNX6-
JX6U. 
188 Id. 
189 Groves, supra note 87, at 87-88. 
190 Sen. DeMint, supra note 86; Groves, supra note 87. 



208 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

(2) The Death Penalty in the United States as Addressed in Other 
Human Rights Organs 

Indication was given in the drafting work that certain States Parties are 
likely to refer to the CRPD in démarches expressing opposition to the death 
penalty generally and in connection with the death penalty as applied to 
persons with disabilities specifically.191 It is submitted that U.S. ratification 
of the CRPD would not, however, give critics of the death penalty a 
persuasive new legal argument. Existing human rights treaties contain 
provisions expressly and principally concerned with the death penalty. To 
turn again to the ICCPR, there are the death penalty provisions under Article 
6.192 The United States’ reservation in respect of the death penalty193 drew 
objection from a number of States.194 The Human Rights Committee, in its 
observations on the United States’ periodic reports submitted under ICCPR 
Article 40, has criticized the United States in respect of the death penalty. For 
example, in 2006 the Committee said that it 

regrets that the State party does not indicate that it has taken 
any steps to review federal and state legislation with a view 
to assessing whether offences carrying the death penalty are 
restricted to the most serious crimes, and that, despite its 
previous concluding observations, the State party has 
extended the number of offences for which the death penalty 
is applicable.195 

Members of the Committee in the course of its proceedings from time 
to time also have used the Committee as a platform to express individual 
criticisms of the death penalty as applied in the United States. For example, 
at the 100th session of the Committee, Robert Badinter, the former President 
of the Conseil Constitutionnel of France and a prominent opponent of the 
death penalty, regretted the continued implementation of the death penalty in 
certain U.S. states.196 As an initial point, it may be asked whether statements 
such as Mr. Badinter’s or even official communications such as the 
 
                                                                                                                 
191 See Working Group, supra note 42, Daily Summary, Vol. 3, # 7, Jan. 13, 2004, at 17 
(observation by Ireland). 
192 ICCPR, supra note 63. 
193 Id.  
194 Id. Objections: Belgium, Oct. 5, 1993; Denmark, Oct. 1, 1993; Finland, Sept. 28, 1993; 
France, Oct. 4, 1993; Germany, Sept. 29, 1993; Italy, Oct. 5, 1993; Netherlands, Sept. 28, 
1993; Norway, Oct. 4, 1993; Portugal, Oct. 5, 1993; Spain, Oct. 5, 1993; Sweden, June 18, 
1993.  
195 Human Rights Comm., Consideration of Report Submitted by the United States of 
America, ¶ 29 , U.N. Doc. CCPR/C/USA/CO/3/REV.1 (Dec. 18, 2006). 
196U.N. Human Rights Comm., 100th Sess., 2771st mtg., at 17, U.N. Doc. CCPR/C/SR.2771 
(Oct. 29, 2010). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 209 
 
Committee’s observations in 2006 are a valid ground in themselves for the 
United States to decline to participate in the international human rights 
apparatus. These are not formal determinations supported by an enforcement 
mechanism. Even within their (limited) bounds, they are purely hortatory, a 
far cry from injunctions against the sovereign prerogatives of a superpower. 
Critical remarks in an international organ well may touch a sensitive nerve in 
national politics and thus influence a State’s decision whether, and to what 
extent, to participate in its proceedings, but a balanced view should be taken 
in respect of the legal effects of such practice. The legal effects, in the 
balanced view, are modest, to the extent that they can be discerned at all. 

The further point relates to the CRPD specifically. It is difficult to see 
how participation in the CRPD would add materially to the legal bases for 
international organs or their members to criticize the United States in respect 
of the death penalty. It would be more natural for death penalty opponents to 
refer to provisions such as ICCPR Article 6 (as they already do) than to rely 
on an unrelated treaty for merely inferential support. Ratification of the 
CRPD would not concede new points to death penalty opponents. The CRPD 
is not the logical text on which to base a renewed attack against the death 
penalty. It well may be that death penalty opponents would refer to the CRPD 
during the proceedings of the Committee, but this would be a marginal 
practice in the international human rights framework. 

(3) International Assistance Under CRPD Article 32 

A final matter regarding international compliance may be touched 
upon. In the Working Group, which produced the draft convention text, 
participants expressed concern that the draft might imply an international 
obligation to engage in international cooperation. The members “considered 
that the issue should not be interpreted as imposing obligations beyond any 
other existing model of international cooperation.”197 Under general 
international law, no State is obliged to provide development assistance or to 
engage in international cooperation.198 An exception to this presumption 

 
                                                                                                                 
197 Working Group, supra note 42, at Annex 2, ¶ 5 (summary of discussions).  
198 The freedom of States to control their international relations is axiomatic; see  Military and 
Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, Judgment, 1986 I.C.J. 
14, ¶ 205 (June 27). Writers who assert that an international obligation exists to provide 
development assistance nevertheless concede that this is not highly specific; see, e.g., URFAN 
KHALIQ, ETHICAL DIMENSIONS OF THE FOREIGN POLICY OF THE EUROPEAN UNION: A LEGAL 
APPRAISAL 69 (2008). To the extent that international statements have been adopted about aid 
to less developed States, these have been hortatory only—sometimes called “soft law” (which 
really means “not law”). The clear language of obligation in treaties, by contrast, has not 
established an obligation to render aid; see, e.g., Michael Wabwile, Re-Examining States’ 
External Obligations to Implement Economic and Social Rights of Children, 22 CAN. J.L. & 
JUR. 407, 424 (2009). As to the meaning of “soft law,” see W. Michael Reisman, Soft Law and 
Law Jobs, 2 J. INT’L DISP. SETTLEMENT 25, 25-26 (2011). 

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210 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
could be established by the explicit consent of States parties to an 
international agreement not by inference or other secondary method of 
interpretation. While States Parties under CRPD Article 32 (International 
cooperation) “ . . . will undertake appropriate and effective measures,” the 
clear way to have denoted an obligation would have been to say precisely 
what those measures shall be.199 The provision as adopted neither says what 
the measures are, nor that they must be undertaken at all. It merely gives 
examples of measures that could be taken—“[s]uch measures could include 
. . . .”200 Moreover, Article 32 contains no definition of “international 
cooperation.” Its first sentence, in paragraph 1, says that “States Parties 
recognize the importance of international cooperation and its promotion . . . 
.”201 This is a classic statement of principle, drawing attention to a policy goal 
but open-ended as to how the goal might be achieved and setting down no 
obligation, either of conduct or of result. Under the CRPD, international 
cooperation remains elective, not obligatory. 

Article 32 nevertheless may have an effect on the modalities of 
international cooperation. Subsection (a) of Article 32 identifies the 
following as a step that States could take: “[e]nsuring that international 
cooperation, including international development programmes, is inclusive 
of and accessible to persons with disabilities.”202 Though not obliging States 
to establish new international aid programmes, Article 32 thus encourages 
States to make their aid programmes accessible to persons with disabilities. 
It has been argued that this step is overdue, for example in the U.S. Agency 
for International Development (USAID).203 

The main obligation established by the Convention is for each Party to 
adopt national legislation (statutory and regulatory) to effectuate the rules, 
standards, and principles contained in the Convention. The main burden on a 
State Party thus likely would arise from that obligation. The effects of the 
CRPD on the existing legal system now may be considered. 

D. Effect of the CRPD’s Provisions on the Existing Legal System 

According to CRPD Article 4, paragraph 1(a), “States Parties undertake 
. . . [t]o adopt all appropriate legislative, administrative and other measures 

 
                                                                                                                 
199 Convention Disabilities, supra note 1. 
200 Convention Disabilities, supra note 1. 
201 Convention Disabilities, supra note 1.(emphasis added). 
202 Convention Disabilities, supra note 1. 
203 Michael Stein, Mainstreaming and Accountability: (Really) Including Persons with 
Disabilities in Development Aid and Humanitarian Relief Programming, 31 NORDIC J. HUM. 
RTS. 292 (2013). See also NAT’L COUNCIL ON DISABILITY, TOWARD THE FULL INCLUSION OF 
PEOPLE WITH DISABILITIES: EXAMINING THE ACCESSIBILITY OF OVERSEAS FACILITIES AND 
PROGRAMS FUNDED BY THE UNITED STATES 1, 94 (2013). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 211 
 
for the implementation of the rights recognized in the present Convention.”204 
Turning the provisions of CRPD into effective legislation at national level is 
the main substantive obligation of the States Parties. The Working Group 
recognized that “implementation of the Convention will be primarily a 
national responsibility.”205 

Four objections may be identified in respect of the anticipated effect of 
the CRPD at municipal level: (i) the standards the Convention aims to 
implement at the municipal level have already been met or exceeded in the 
United States and so the Convention serves no purpose;206 (ii) the standards 
in the Convention are less exacting than those in force in the United States 
and therefore its application will erode the legal protections available to 
persons with disabilities in the United States;207 (iii) U.S. ratification of the 
Convention would expedite the formation of customary international law 
rules in respect of persons with disabilities and those rules, in turn, would 
enter U.S. law when applied by U.S. courts;208 and (iv) the Convention would 
create “no extraterritorial rights . . . for American travellers, businessmen, 
servicemembers, or veterans.”209 

Each of these objections may be addressed in turn. Some, as will 
become clear, concern the existing international legal system as much or 
more than U.S. national law. 

(1) U.S. Legislation as Already Meeting CRPD Obligations 

The advocates and opponents of the CRPD in the United States were 
largely in agreement that U.S. law already embodies standards that meet or 
exceed those adopted in the Convention. Steven Groves (in opposition) said 
that that the Convention “merely makes an international commitment to 
continue the status quo here in the United States.”210 The President of the 
 
                                                                                                                 
204 Convention Disabilities, supra note 1, at 73-74. 
205 Working Group, supra note 42, (summary of discussions). As to the fraught relation 
between treaty obligations and their implementation at the municipal level in the United States, 
see Laura Moranchek Hussain, Enforcing the Treaty Rights of Aliens, 117 YALE L.J. 680, 721 
(2008); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867, 
1892 (2005). See also Written Observations of the United States of America on the Application 
for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other 
Mexican Nationals (Mexico v. United States of America), Aug. 29, 2008, at 4-9, ¶¶ 9-21 
(relating the unsuccessful efforts of multiple officers of the federal government to secure an 
avenue for the Mexican nationals to obtain review in U.S. state courts of their claims under 
the Vienna Convention on Consular Relations). To an extent having anticipated the 
contemporary resurgence of the problem, see Edward T. Swaine, Does Federalism Constrain 
the Treaty Power?, 103 COLUM. L. REV. 403, 418 (2003). 
206 Groves, supra note 87, at 87. 
207 See Worsnip, supra note 81.  
208 158 CONG. REC. S7369 (daily ed. Dec. 4, 2012) (statement of Sen. Lee). 
209 Farris, supra note 88, at 82. 
210 Groves, supra note 86, at 90. 

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212 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
United States, in transmitting the Convention to the Senate and 
recommending its advice and consent to ratification, said, “the strong 
guarantees of non-discrimination and equality of access and opportunity for 
persons with disabilities in existing U.S. law are consistent with and 
sufficient to implement the requirements of the Convention as it would be 
ratified by the United States.”211 

It is beyond the scope of the present article to review the laws of the 
United States in the area of the rights of disabled persons.212 Such a review 
would be necessary if the assertion were to be tested that the United States 
satisfies the requirements of the CRPD in respect of municipal legislation. 
As the President, in endorsing the Convention, and one of the chief experts 
speaking against it, concurred, it is not necessary for present purposes to 
settle the point.213 

An observation nevertheless may be made in connection with the 
objection that U.S. law already meets the Convention standard. Implicit in 
the legal objection is an objection of policy: the United States (it follows from 
the objection) should not, as a matter of policy, adopt new international 
instruments, unless these have an impact on U.S. law. But that would be a 
position at stark variance with the opponents’ clearly expressed position (also 
a position of policy) that the United States should not subject itself to 
international rules that affect its municipal law. Dr. Farris in particular 
objected that “such treaties [are] a dramatic loss of American freedom in 
favor of coercive international socialism.”214 It may be that a foolish 
consistency is the hobgoblin of little minds,215 but if the United States 
adopted neither treaties that require changes to U.S. law nor treaties that leave 
U.S. law alone, then nary a ghost of United States treaty practice would 
remain. In any event, it was not to change the U.S. legislative landscape that 
the United States considered becoming a party to the CRPD; it was, instead, 
to promote the policy goal of improving the treatment of persons with 
disabilities, including Americans, in the territory of other States Parties to the 
Convention.216 As will be suggested in the next section, the Convention 
indeed has legal effects that would promote that policy goal. 
 
                                                                                                                 
211 LETTER OF TRANSMITTAL, supra note 8, at 3. Accord. S. EXEC. REP. NO. 112-6, supra note 
86, at 45 (testimony of Ms. Eve Hill, Senior Counsellor to the Assistant Attorney General for 
Civil Rights). 
212 For in-depth treatment, see PETER BLANCK ET AL., DISABILITY CIVIL RIGHTS LAW AND 
POLICY: CASES AND MATERIALS (2d ed., 2009). 
213 Harold Hongju Koh, Remarks: Twenty-First Century International Lawmaking, 101 GEO. 
L.J. 725, 730 (2013); see also John R. Cook, Contemporary Practice of the United States 
Relating to International Law, 107 AM. J. INT’L L. 208, 209 (2013) (observing the U.S. origins 
of the substantive rules in the CRPD). 
214 Farris, supra note 88, at 89. 
215 Ralph Waldo Emerson, Self-Reliance, Essays: First Series 51, 64 (David McKay ed., 1888) 
(1841). 
216 LETTER OF TRANSMITTAL, supra note 8, at 3. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 213 
 

It should be noted here that Dr. Michael Farris differed from the other 
opponents of ratification on the question of U.S. law. It was Dr. Farris’s view 
that “[t]he changes to American law that will be required to comply with the 
provisions of this treaty are profound and utterly unacceptable.”217 Dr. Farris 
was principally concerned with what he believed Article 7 of the Convention 
requires in respect of parental discretion over the schooling of children, a 
matter addressed in Part IV(E) below. Former U.S. Attorney General and 
U.N. Under-Secretary General Dick Thornburgh’s view is closer to the mark: 
“the Disabilities Treaty will require no change to U.S. federal or state law 
and will have no impact on the federal budget.”218 

(2) The Putative Risk of the CRPD Eroding U.S. Disabilities 
Legislation 

Concerns were expressed, at the time of its entry into force, that the 
rules and standards set out in the CRPD furnish less protection to persons 
with disabilities than U.S. law and, thus, that the CRPD might be to the 
disadvantage of persons with disabilities in the United States. It was reported, 
for example, that U.S. officials believed the CRPD to be “weaker than the 
U.S. Americans with Disabilities Act of 1991 and therefore could complicate 
enforcement of that law.”219 Senator Lee, during the Senate debate 
concerning the Convention, said that the Senate had “not adequately 
investigated how this standard will affect domestic U.S. Federal and State 
law.”220 Senator Sessions said that ratification would lead to “hypocritical 
meddlers complicating our internal disability efforts, as well as our internal 
social and health policies.”221 The concern here seems to have been that the 
CRPD would impel a flight to the bottom or search for a lowest common 
denominator and, thus, erode established national legal rules and standards. 

In practice, as a general matter of treaty interpretation, it is unlikely that 
a treaty will erode existing national rights protections, where the treaty is 
clear that its rules, standards, and principles constitute a minimum, and not 
an upper limit. The CRPD is clear in this way. It sets out a minimum standard, 
not a limit preventing States from adopting and maintaining national 
 
                                                                                                                 
217 Farris, supra note 88, at 81. 
218 Testimony Before the S. Foreign Relations Comm. Respecting the Convention on the Rights 
of Persons with Disabilities, at 9, 113th Cong. (2013) (testimony of Richard Thornburgh, 
former Att’y Gen. and Under-Sec’y-Gen. of the United Nations).   
219 Worsnip, supra note 81. The Worsnip article did not name the U.S. officials to whom it 
attributed the observation. Cf. S. EXEC. REP. NO. 112-6, supra note 86, at 18 (minority views 
expressing concern over scrutiny by “a committee of representatives from countries that have 
lower standards for the disabled than our own”); Groves, supra note 87, at 93 (describing U.S. 
participation in the CRPD, in light of “America’s leadership on disability rights,” as 
“superfluous at best”). 
220 158 CONG. REC. S7369, supra note 208 (statement of Sen. Lee).  
221 158 CONG. REC. S7373 (daily ed. Dec. 4, 2012) (statement of Sen. Sessions). 



214 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
legislation and institutions that exceed the standard. States in the drafting 
work were clear on this.222 The point, moreover, was incorporated into a 
general saving provision. Article 4, paragraph 4, says as follows: 

Nothing in the present Convention shall affect any 
provisions which are more conducive to the realization of the 
rights of persons with disabilities and which may be 
contained in the law of a State Party or international law in 
force for that State. There shall be no restriction upon or 
derogation from any of the human rights and fundamental 
freedoms recognized or existing in any State Party to the 
present Convention pursuant to law, conventions, regulation 
or custom on the pretext that the present Convention does 
not recognize such rights or freedoms or that it recognizes 
them to a lesser extent.223 

This provision should remove any doubt. The Convention does not 
create a license to ignore or derogate the rights of persons with disabilities. 
To be sure, CRPD adopts the expression “reasonable accommodation.”224 
The modifier “reasonable” may entail testing the effective capacity of a 
particular person or entity to provide for the needs of persons with 
disabilities. The provisions referring to “reasonable accommodation,” 
however, have to be read in conjunction with the saving provision, Article 4, 
paragraph 4. The saving provision operates upon all other provisions in the 
instrument: the opening clause—“[n]othing in the present Convention”—
makes clear that no provision escapes the saving effect.225 Therefore, even 
assuming that litigants could apply the Convention directly in U.S. courts 
(which they could not), it is difficult to see how any given provision of the 
CRPD could be used to undermine existing U.S. legal standards for the 
treatment of persons with disabilities. 

(3) Possible Effect of U.S. Ratification of the CRPD on Customary 
International Law 

Senator Mike Lee (Utah), during the Senate debate respecting the 
CPRD, set out a more nuanced position as to the legal effect the Convention 
might have on U.S. legislation. Rather than reiterate the view that it would 

 
                                                                                                                 
222 The concern also was expressed in the drafting work that the CRPD not be interpreted to 
reduce the level of protection already extended to disabled persons by way of existing 
international agreements (e.g., ICESCR). See Working Group, supra note 42, Daily Summary, 
Vol. 3, # 1, at 16, Jan. 5, 2004 (observation of Germany). 
223 Convention Disabilities, supra note 1, art. 4(4). 
224 Id., arts. 2, 6(3), 14(2), 27(1)(i), 24(5), 24(2)(c). 
225 Id. (emphasis added). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 215 
 
undermine existing U.S. statutory provisions directly, Senator Lee said that 
the CRPD would affect the development of customary international law, 
which, in turn, would be applied through U.S. courts and thus affect U.S. law. 
Senator Lee’s position was as follows: 

[W]henever 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. 
 
[Senator Kerry] and I see things differently as far as what 
type of effect it might have. But that is not to say it has no 
effect. We should not be ratifying a treaty that we think 
might offset U.S. law as it exists now. We believe this could 
have that impact. Exactly where that is going to come up, I 
cannot prove to the Senator where that is going to happen. 
But it does have some impact, and when we ratify a treaty 
we make it the law of the land.226 

Senator Lee’s position, that the CRPD by way of customary 
international law “might offset U.S. law as it exists now,” led to an exchange 
with Senator Kerry on the process of the formation of customary international 
law.227 Senator Kerry said, “a treaty does not become customary international 
law just because the United States or another country ratifies it.”228 Senator 
Lee replied, “[i]t doesn’t become the law of the land just because it is in the 
treaty.”229 But he went on to say, “it often does. Its entry into customary 
international law can become facilitated by the U.S. ratification of it.”230 
Assuming that Senator Lee meant “[i]t doesn’t become [customary 
international law] just because it is in the treaty,”231 he concurred with 
Senator Kerry on the relation between treaties and customary international 
law. To the extent that both Senators understood that it does not necessarily 
make a rule part of customary international law that it is contained in a treaty, 
they were in agreement. As to their difference, this concerned how precisely 
a rule enters customary international law. Their airing of the difference is 
 
                                                                                                                 
226 158 CONG. REC. S7369, supra note 208 (statement of Sen. Lee). 
227 Id. 
228 Id. (statement of Sen. Kerry). 
229 Id. (statement of Sen. Lee). 
230 Id. 
231 This is the sensible interpretation, in light of the context of the Senator’s statement and in 
light of Article VI, clause 2 of the U.S. Constitution. 



216 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
arguably one of the more sophisticated exchanges to have taken place on the 
U.S. Senate floor on the topic of customary international law. The substance 
of the exchange merits consideration. 

International claims practice is a useful starting point in considering the 
relation between treaty law and customary international law. It is not unusual 
in international claims practice for the number of States that accede to a 
multilateral instrument to be adduced as evidence that the rules in the 
instrument (or some of them) belong to customary international law.232 To 
say that “[i]ts entry into customary international law can become facilitated” 
when a rule is found in treaty practice is right.233 The International Court has 
said as much,234 and the United States has argued the point before its own 
courts.235 However, the relationship between customary international law and 
treaties is by no means mechanistic. There is no rule to indicate that X number 
of States acceding to a treaty suffices to identify the rules in the treaty as rules 
of customary international law, but X minus 1 number of States acceding to 
the treaty does not. The absence of a simple equation is not a license to ignore 
the practice,236 but it suggests the difficulty in defining the effects of a 
cumulative practice (including treaty practice) on rule formation. The Special 
Rapporteur of the International Law Commission (ILC) on the topic of the 
formation and evidence of customary international law has identified the 

 
                                                                                                                 
232 See, e.g., Pulp Mills on the River Uruguay (Arg. v. Uru.), Counter-Memorial, Uruguay, at 
53, n.75 (July 20, 2007) (referring to Principles 21 and 22 of the Stockholm Declaration and 
the 112-0 vote in favour of the Declaration). Cf. Arrest Warrant of April 11, 2000 (Dem. Rep. 
of Congo v. Belg.), Counter-Memorial, Kingdom of Belgium, at 134, ¶ 3.5.19 (Sept. 28, 2001) 
(observing that six of the seven participants in the deliberations leading to adoption of the 
Treaty of Versailles believed that the international law character of the alleged crimes of the 
German Kaiser (and not the international law character of the proposed criminal tribunal) 
formed the basis for waiver of immunity). The method also is seen in national judicial practice. 
See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736, 764 (9th Cir. 2011) (Schroeder, Cir. J., 
referring to the 180 States Parties to the Geneva Conventions as evidence of the customary 
international law rule). 
233 Id. 
234 See, e.g., Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, 1985 I.C.J. 13, ¶ 
27 (June 3) (“[M]ultilateral conventions may have an important role to play in recording and 
defining rules deriving from custom, or indeed in developing them.” (emphasis added)). See 
Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment, 2012 I.C.J. 
99, ¶ 55 (Feb. 3); Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), 
Judgment, 2009 I.C.J. 213, ¶ 26; Questions Relating to the Obligation to Prosecute or Extradite 
(Belg. v. Sen.), Judgment, 2012 I.C.J. 422, ¶ 99 (July 20). 
235 U.S. v. Bellaizac-Hurtado, 700 F.3d 1245, 1254-55 (11th Cir. 2012) (seeking to establish 
(in the event, unsuccessfully) that an international prohibition against drug trafficking is a rule 
of customary international, the United States argued that widespread ratification of the 1988 
United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances established the rule). Contra Sarei v. Rio Tinto, PLC, 671 F.3d 736, 764 (9th Cir. 
2011). 
236 See Jurisdictional Immunities of the State, (Ger. v. It.), Memorial of the Federal Republic 
of Germany, at 21, ¶ 31 (June 12, 2009). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 217 
 
relationship between treaties and customary international law as “an 
important aspect of the topic”;237 and the proposal to examine “the density of 
practice”238 suggests the relevance as well of accumulation, e.g., of multiple 
accessions to a treaty. 

So it is certainly the case that U.S. ratification of a treaty can “facilitate[ 
. . . ]” the process of customary international law formation.  But it is hardly 
the case that U.S. ratification alone completes the process. U.S. courts have 
been clear on this.239 U.S. courts, moreover, have been clear that even a very 
large number of accessions does not necessarily in itself identify a rule. The 
U.S. Court of Appeals (Second Circuit), in Kiobel v. Royal Dutch Petroleum 
Co., said  

Although all treaties ratified by more than one State provide 
some evidence of the custom and practice of nations, “a 
treaty will only constitute sufficient proof of a norm of 
customary international law if an overwhelming majority of 
States have ratified the treaty, and those States uniformly 
and consistently act in accordance with its principles.”240 

The Court of Appeals’s analysis is in accordance with the general 
understanding. By acceding to a treaty, States acknowledge the obligatory 
character of the propositions it contains, but accession alone does not amount 
to the requisite practice. Customary international law is both practice and 
opinio juris, and so even an unambiguous statement accepting the obligatory 
character of a rule does not suffice to constitute customary international law 
without the practice. A treaty rule is certainly obligatory—for the treaty 
parties. It does not in itself constitute customary international law. The 
analysis in Kiobel is broadly consistent with other judgments of the Circuits 
of the U.S. Court of Appeals in respect of the definition of customary 
international law. Six (of the thirteen) Circuits follow the Restatement (Third) 
of Foreign Relations Law, which defines customary international law as a 
“general and consistent practice of states followed by them from a sense of 
legal obligation.”241 

 
                                                                                                                 
237 Michael Wood, Special Rapporteur, Formation and Evidence of Customary International 
Law, Int’l Law Comm’n, 64th Sess., ¶ 14, U.N. Doc. A/CN.4/653 (May 30, 2012); see also 
Rep. of the Int’l Law Comm’n, ¶ 9, 63d Sess., Apr. 26-June 3, July 4-Aug. 12, U.N. Doc. 
A/66/10; GAOR 66th Sess., Supp. No. 10 (2011).  
238 Rep. of the Int’l Law Comm’n, supra note 237, at ¶ 8(vi). 
239 See, e.g., Bellaizac-Hurtado, 700 F.3d at 1254-55. 
240 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 113 (2d Cir. 2010), aff’d, 133 S. Ct. 
1659 (2013) (quoting Flores v. S. Peru Copper Corp., 414 F.3d 233, 256 (2d Cir. 2003)). Cf. 
Kiobel, 621 F.3d at 138. 
241 RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 102(2) (1987). For the Eleventh Circuit 
position and citations to five other circuits, see Bellaizac-Hurtado, 700 F.3d at 1251-52. 



218 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

In international claims practice as well, tribunals have cautioned that 
the existence of a treaty rule does not in itself establish the existence of a 
customary international law rule. Considering lump sum settlement 
agreements, the Iran-United States Claims Tribunal in the interlocutory 
award in SEDCO observed that such agreements “can be so greatly inspired 
by non-judicial considerations . . . that it is extremely difficult to draw from 
them conclusions as to opinio juris . . .”242 The ICJ and other tribunals have 
made a similar point.243 It is questionable whether a given instance of treaty 
practice demonstrates the emergence of a customary rule. There are 
situations, such as the U.S. and Canadian adoption of NAFTA, in which the 
States parties declared, in terms, that a treaty standard (in that case, a 
minimum standard of treatment entailed under NAFTA Article 1105(1)) is 
“based on long-standing principles of customary international law.”244 But 
here the States in question explicitly stated their view that the treaty reflected 
or was based on a standard under customary international law. There was no 
need to look further to establish the existence of opinio juris or of practice.245 
Conversely, there is no need for the United States, if it ratifies the CRPD, to 
declare that this instrument reflects customary international law. If the United 
States does not believe that it does, then by refraining from saying so—or, 
even more so, by saying that it does not—the United States will avoid the 
inference that adoption of the CRPD has established or reflects a general law 
on disability rights. 

Senator Lee suggested that U.S. treaty practice is highly influential in 
the formation of customary international law, which no doubt it is. But to say 
the rule “often does” take form as a rule of customary international law “just 
because it is in the treaty” is to say (i) that the inclusion of the rule in the 
treaty suffices and (ii) that customary international law often takes form in 
this way.246 Senator Lee’s position differs from Senator Kerry’s, and from 

 
                                                                                                                 
242 SEDCO Inc. v. National Iranian Oil Company, Interlocutory Award of March 27, 1986, 10 
Iran-U.S. Cl. Trib. Rep. 180, 185 (1986) (Mangård, Chairman; Brower & Ansari, Members); 
see also id. at 202 (seperate opinion of Member Brower, concurring on this point). 
243 See, e.g., Barcelona Traction (Belg. v. Spain), Judgment, 1970 I.C.J 3, ¶ 40 (Feb 5); Kuwait 
v. Aminoil, Final Award of March 24, 1982, 21 I.L.M. 976, at 1036, ¶ 156-57 (Reuter, 
President; Sultan & Fitzmaurice, Arbitrators); EnCana Corporation v. Republic of Ecuador, 
Award of Feb. 3, 2006, 12 ICSID Rep. 400, 465-66, ¶ 147 (Crawford, President; Grigera Naón 
& Barrera Sweeney, Members). 
244 Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, 
Award of Oct. 11, 2002, 6 ICSID Rep. 181, 220-21, ¶ 111 (Stephen, President; Crawford & 
Schwebel, Members) (quoting Canada, Department of External Affairs, North American Free 
Trade Agreement, Canadian Statement on Implementation, CAN. GAZ., Jan. 1, 1994,  68, 149; 
S. TREATY DOC. NO. 103-15, at ix (1993) (transmittal statement to U.S. Senate in respect of 
United States-Ecuador BIT). 
245 Though in Mondev there was a need to identify the substantive content of the customary 
rule; see Mondev, 6 ICSID Rep. 181, at 221, ¶ 113. 
246 158 Cong. Rec. 57364, supra note 208 (statement of Sen. Lee). 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 219 

the general and the American understanding, insofar as it suggests that acts 
of accession to treaties are in themselves conclusive as to the formation of 
customary international law rules and that customary international law rules 
take form through treaty accession often. The first proposition here does not 
follow the existing position under U.S. law as set out in the Court of Appeals 
judgments. As seen above, the courts are clear that the inclusion of the rule 
in a treaty does not alone necessarily establish the rule as a rule of customary 
international law. 

And it can be seen, from the U.S. decisions and from practice more 
generally, that customary international law rules do not, at least in the usual 
course of international relations, take form very rapidly and, in any event, not 
with as high a frequency as accessions to treaties. Across the range of treaties 
open for signature and ratification, the number of ratifications in any given 
year is very considerable; the number of new customary international law 
rules to emerge, much less so. This is visible from U.S. judicial practice. U.S. 
courts have understood that new rules do not frequently come into being.247 
International judges have understood this as well. In Navigational and 
Related Rights, Judge ad hoc Guillaume observed that many treaties address 
navigational rights on rivers, but on the same matter the customary 
international law rules are scant.248 The Court in Ahmadou Sadio Diallo 
observed that the extensive treaty practice in the matter of investment 
protection has not changed the customary law of diplomatic protection.249 In 
Arrest Warrant, the Court concluded that multiple international instruments 
establishing criminal jurisdiction over State officials have not created a 
customary international law rule suspending the immunity of State officials 
before national courts.250 

Accession to a treaty may promote the emergence of rules in the treaty 
as rules of customary international law. Accession, however, seldom has led 
to that emergence instantly; the process usually is very slow;251 seldom has a 
new rule emerged by the accession of one State alone. Lord Bingham of 
Cornhill put the matter categorically: “one swallow does not make a rule of 
international law.”252 Whatever comparison might be drawn between the 
weight of U.S. practice and that of a swallow, the general point remains. 

247 See, e.g., U.S. v. Bellaizac-Hurtado, 700 F.3d 1245, 1254-57 (11th Cir. 2012). 
248 Navigational and Related Rights, supra at  ¶ 3.
249 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections, 
Judgment, 2007 I.C.J. 582, ¶ 90 (May 24). 
250 Arrest Warrant of 11 April 2000 (Dem. Rep. of Congo v. Belg.), Judgment, 2002 
I.C.J. Rep. 3, ¶ 58 (Feb. 14). 
251 See Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment, 
2012 I.C.J. 99, ¶ 62 (Feb. 3).
252 Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Sandiya (the Kingdom of 
Saudi-Arabia), [2006] UKHL 26 (H.L.) [¶ 22] (appeal taken from Eng.).



220 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

(4) Legal Consequences of the CRPD in Respect of the Treatment 
of Americans Abroad 

A further set of objections was that the CRPD would do nothing to 
improve conditions for Americans with disabilities. Among these objections, 
one concerned in particular the effects of the CRPD outside the United States. 
More precisely, the objection was that the CRPD would have no effect at all 
outside the United States. 

According to Dr. Farris, testifying to the Senate Committee on Foreign 
Relations in respect of ratification of the CRPD, the Convention would create 
“absolutely no rights for Americans with disabilities when they travel abroad 
. . . [i]f the United States becomes party to a treaty, all of the legal 
consequences which flow from this act of ratification will be limited to the 
territory of the United States.”253 

This conclusion entails a very narrow understanding of the “legal 
consequences” a treaty may produce. The CRPD establishes a variety of 
obligations on its parties, among them—indeed, chief among them—
obligations to bring national legislation up to a standard set out in the 
Convention. As a matter of international obligation, the “legal consequences” 
are hardly “limited to the territory” of one State, for the obligations under the 
CRPD to meet the standards identified therein are not restricted to one State 
Party. All States Parties must meet the standards. To fulfill their obligations 
under the CRPD, States Parties that have not done so already will adopt and 
implement legislation that affords practical benefits to persons with 
disabilities. It has been noted that the “dearth of appropriate disability law . . 
. at the national level” is endemic.254 It is hard to see how the benefits of 
appropriate disabilities laws, once implemented, like physical infrastructure 
designed to provide access to persons with disabilities, would affect only the 
nationals of that State Party. An American with a disability, present in the 
State acting in accordance with the Convention, would be able to take 
advantage of the benefits as well. True, whether or not the American in the 
other State has a right of action against that State for non-compliance with 
the Convention is a matter for the law of the State; a municipal cause of action 
is not a guarantee under the CRPD. But this is a matter of the municipal 
procedures—not a matter of “all of the legal consequences which flow from 
. . . ratification.”255 

 
                                                                                                                 
253 S. EXEC. REP. NO. 112-6, supra note 86, at 80; see also S. EXEC. REP. NO. 113-12, at 73 
(2014). Susan Yoshihara, making a similar point in testifying on November 5, 2013, that 
“American ratification of the treaty will not help disabled Americans, here or abroad.” Id. 
254 Lord & Stein, supra note 61, at 709, 711-12 n.126; see also Theresia Degener & Gerard 
Quinn, A Survey of International, Comparative and Regional Disability Law Reform, in 
DISABILITY RIGHTS LAW AND POLICY: INTERNATIONAL AND NATIONAL PERSPECTIVES 3 (Mary 
Lou Breslin & Silvia Yee, eds., 2002). 
255 S. Exec. Rep. No. 112-6, supra note 86, at 80. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 221 
 

Such a narrow understanding of the legal effects of the CRPD ignores 
that international law is still centrally concerned with obligations between 
States. The objectors concern themselves with the quintessentially modern 
development under international law of obligations owed by one State to the 
individuals under its jurisdiction but forget the basic proposition that 
international law concerns the obligations States owe to one another. It is 
incorrect to say that the legal effects of the Convention are limited to the 
territory of the United States, first of all, because every State Party assumes 
obligations under the Convention in respect of the laws in force in its 
territory. Any given State Party might or might not operationalize its 
obligations by allowing private litigants access to its courts to enforce the 
Convention rules. But the obligations remain; they do not disappear simply 
because, in one court system, private litigants cannot enforce them. 

National court proceedings are not the only—and, historically, 
certainly not the main—mechanism through which States have been held to 
account for breaches of treaty rules. The traditional mechanism, diplomatic 
protection, though now private parties are far more likely to proceed directly 
against a State under treaty-based mechanisms, remains available.256 And 
though diplomatic protection, from the procedural standpoint, may be a 
residue of an earlier phase of international law, the scope of the substantive 
rules States may apply through diplomatic protection has been dynamic. As 
the International Court noted the Diallo case, 

Owing to the substantive development of international law 
over recent decades in respect of the rights it accords to 
individuals, the scope ratione materiae of diplomatic 
protection, originally limited to alleged violations of the 
minimum standard of treatment of aliens, has subsequently 
widened to include, inter alia, internationally guaranteed 
human rights.257 

Diplomatic protection would be available to the United States in 
response to the conduct of other States Parties to the CRPD, if their conduct 
were to have a negative impact on a U.S. national. 

A breach by a State Party entails legal consequences—namely, 
international responsibility for the breach. In respect of the CRPD and of 
treaties generally, a breach attributable to a State under international law 
entails legal consequences under the rules of State responsibility: “[e]very 
internationally wrongful act of a State entails the international responsibility 

 
                                                                                                                 
256 See Ben Juratowitch, Diplomatic Protection of Shareholders, 81 BRIT. Y.B. INT’L L. 281 
(2010). 
257 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections, Judgment, 
2007 I.C.J. 582, ¶ 39 (May 24). 

http://dx.doi.org/10.1093/bybil/brr009


222 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
of that State.”258 A multilateral instrument like the CRPD, though the main 
intention behind it is to address how each State Party treats individuals 
subject to its jurisdiction, creates a web of legal relations among the States 
Parties, each obliged to the other to act in accordance with the instrument. A 
breach by one entails legal consequences opposable against it by the others 
(or, where the rules are not of erga omnes character, at least by those the 
breach directly affects).259 It is, then, further incorrect to say that the legal 
consequences of the CRPD would be limited to the territory of one State. 
International responsibility, which results from the breach of obligation by 
any State, is a legal consequence at the international level. 

To consider a hypothetical example, an American armed forces 
veteran, confined to a wheelchair because of injuries sustained in the line of 
duty, visits the territory of CRPD State Party A and, on the same trip, CRPD 
State Party B. State Party A, since acceding to the Convention, has acted fully 
in accordance with the Convention. Its provisions for persons with 
disabilities now meet the international standard. For example, transportation 
facilities in State Party A have been adapted in accordance with CRPD 
Article 9, paragraph 1(a), and appropriate measures also have been taken to 
“[e]nsure that private entities that offer facilities and services which are open 
or provided to the public take into account all aspects of accessibility for 
persons with disabilities” under Article 9, paragraph 2(b).260 The American 
veteran thus, in this way, benefits from the legal effects of the Convention in 
territory outside the United States. 

State Party B, by contrast, has failed to take appropriate measures and 
its provisions for persons with disabilities thus do not satisfy the international 
obligations it accepted when acceding to the instrument.261 The American 

 
                                                                                                                 
258 Art. 1, Responsibility of States for internationally wrongful acts: G.A.R. 56/83 (Dec. 12, 
2001), annex. 
259 The International Court determined that it is not necessary that the State to which 
obligations are owed under the Convention against Torture have a “special interest” in order 
to have standing to make a claim for an alleged breach of those obligations: “[A]ny State party 
to the Convention may invoke the responsibility of another State party with a view to 
ascertaining the alleged failure to comply with its obligations erga omnes partes.” Questions 
Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment, 2012 I.C.J. 422, 
¶ 69 (July 20). Senegal had pleaded that Belgium would not have standing unless it were 
directly affected by the alleged breach, for example by demonstrating that the individual 
affected by the breach had Belgian nationality. Questions Relating to Obligation to Prosecute 
of Extradite (Belg. v. Sen.), Public Sitting, Verbatim Record, ¶ 6 (March 21, 2012), available 
at http://www.icj-cij.org/docket/files/144/16965.pdf (Amb. Thiam (Senegal), in response to 
questions presented by Judge Abraham). The Court’s determination, which rejected, inter alia, 
the proposed requirement of nationality, turned on the character of the obligations. Id. It is 
doubtful, at least for the time being, that the obligations under the CRPD are to be imbued 
with a similar character. 
260 Convention Disabilities, supra note 1, at 77. 
261 In practice, it well may be a matter of contention whether the State Party’s act or omission 
constitutes a breach. There is the usual scope for factual dispute—i.e., what measures has the 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 223 
 
veteran, injured by the breach of the Convention, brings this to the notice of 
the U.S. government, which, in turn, communicates to State Party B that State 
Party B’s conduct is objectionable. The United States (assuming it, too, had 
ratified the Convention) is on firm legal ground when it makes the 
communication, because State Party B owes an obligation, under the 
Convention, to the United States. 

It is thus doubly incorrect to say “all of the legal consequences which 
flow from [ratifying the CRPD] will be limited to the territory of the United 
States.”262 Its legal consequences are found (i) in the territory of any State 
where the national legislation at the time of ratification of the Convention did 
not accord with its rules and (ii) at the international level as between the 
States Parties in the form of the obligations between them and in the form of 
the consequences arising when those obligations are breached. 

E. Article 7, Paragraph 2: “Best Interests of the Child” 

The objection that the CRPD would erode the right of families to 
educate their children at home was not raised during the drafting sessions. It 
instead was raised rather late in the day, principally by a former U.S. Senator, 
Richard Santorum.263 The objection is centered on Article 7, paragraph 2, of 
the Convention. Article 7, paragraph 2, says as follows: “Article 7: Children 
with Disabilities . . . 2. In all actions concerning children with disabilities, the 
best interests of the child shall be a primary consideration.”264 The concern, 
as expressed, is that the phrase “best interests of the child” might undermine 
the right of parents to raise their children in the manner they wish. In 
particular, those objecting to Article 7(2) assert that the provision would 
deprive American parents of the right to educate their children in the home 
(rather than in schools). 

Dr. Farris, who carried the brief for the objectors in respect of Article 
 
                                                                                                                 
State Party in truth adopted. There is a further possible area of dispute because it is not clear 
that the legal rules contained in the Convention are to be applied the same way to every State 
Party. Article 4, paragraph 2, provides that “each State Party undertakes to take measures to 
the maximum of its available resources.” Convention Disabilities, supra note 1, at 74 
(emphasis added). This suggests that the rules may apply differently, depending on each State 
Party’s “available resources”—more stringently on a rich State, less so on a poor State. Such 
a differentiation in the application of a treaty rule well may present a delicate problem as State 
practice develops under the Convention. A number of States in the drafting work placed 
emphasis on the relevance of available resources to the application of the rules. See Working 
Group, supra note 42, Daily Summary, Vol. 3, # 6, Jan. 12, 2004,  10-11 (observations of 
India); id., Vol. 3, # 9, Jan. 15, 2004, p. 6 (observations of Sierra Leone). 
262 S. EXEC. REP. NO. 112-6, supra note 86, at 80; see also S. EXEC. REP. NO. 113-12, supra 
note 213, at 73. 
263 See Antonio Ginatta, What a Senate Vote for Disabilities Treaty Would Really Mean, THE 
HILL (Dec. 7, 2012, 7:30 PM), http://thehill.com/blogs/congress-blog/foreign-policy/271717-
what-a-senate-vote-for-disabilities-treaty-would-reall-mean. 
264 Convention Disabilities, supra note 1, at art. 7(2). 



224 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
7(2) in the Senate hearings, said that freedom of education, as it exists in the 
United States, would be undermined by the CRPD. Dr. Farris characterized 
the Convention as “promot[ing] the idea that government, not parents, have 
the ultimate voice in decisions concerning their children.”265 Dr. Farris 
further asserted that “[p]arents are assured of no rights in the education of 
their children”266 and that under the CRPD “parental rights in the education 
of disabled children are supplanted by a new theory of governmental 
oversight and superiority.”267  

Dr. Farris observed that Article 18, paragraph 4, of ICCPR and Article 
13, paragraph 3, of the International Covenenant on Economic, Social, and 
Cultural Rights (ICESCR) both provide for “respect for the liberty of 
parents” in the matter of the “religious and moral education of their children 
in conformity with their own convictions.”268 This, indeed, is precisely what 
the Covenants say. The provisions concerning the liberty of parents and 
religious and moral education are explicit. There is nothing ambiguous about 
them. The provision of the CRPD under which Dr. Farris said the liberty of 
parents “will be eviscerated,”269 by contrast, says, and only in general terms, 
that the best interests of the child will be “a primary consideration.”270 An 
existing right, especially a fundamental right, is not displaced by inference. 
It is certainly not displaced by inference in a treaty concerned with a different 
subject matter. That the CRPD identifies the best interests of the child as one 
consideration—even “a primary” one—does not set aside all other 
considerations, including parental liberty.271 It certainly does not overturn the 
1966 Covenants. 

States know how to overturn treaties, and they know how to supplant 
them through subsequent practice, including subsequent treaty-making. They 
also know how to denote a hierarchy among relevant considerations in a 
treaty text. Article 7, paragraph 2, of the CRPD does none of these things. It 
provides no basis whatsoever for “eviscerating” the long-established liberty 
which it is Dr. Farris’s concern to guard. 

Two further points may be made in respect of Dr. Farris’s testimony on 
Article 7, paragraph 2. 

First, Dr. Farris said that “American law and international law are not 
compatible when it comes to parental rights.”272 This is a puzzling way to 
characterize the legal situation. A State does not escape international law 
obligations by legislating its own rules which are “not compatible” with the 

 
                                                                                                                 
265 TREATY DOC. 112-7, supra note 11, at 84. 
266 S. EXEC. REP. NO. 113-12, supra note 253, at 213. 
267 Id.   
268 Id., quoting ICCPR, art. 18(4) and ICESCR, art. 13(3). 
269 S. EXEC. REP. NO. 112-6, supra note 86, at 86. 
270 Convention Disabilities, supra note 1, at art. 7(2). 
271 Id. 
272 S. EXEC. REP. NO. 112-6, supra note 86, at 87. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 225 
 
international rules.273 If, in truth, “American law and international law” are 
not in accord—are “not compatible”—then the United States is in breach of 
international law. Presumably, this was not what Dr. Farris meant. If it had 
been, then he was accusing the United States of being in breach of 
international law! Instead, it seems that Dr. Farris meant that the CRPD, if 
the United States became party to it, would intrude against the right of 
American families to school their children as they see fit. That is to say, in 
Dr. Farris’s view, an incompatibility would arise between U.S. law and the 
rules under Article 7, paragraph 2, of the CRPD, if the United States became 
party to the Convention. 

This might appear to be a quibble over an infelicitous choice of words. 
However, there is a significant point. Taking Dr. Farris’s words as recorded 
in the Senate Committee transcript, they say that there is an international law 
of parental rights. This is true, but only to an extent—namely, to the extent 
that States have become party to a conventional instrument establishing 
parental rights. Even assuming that the legal effect of Article 7, paragraph 2, 
is to deprive parents of the right to school their children as they see fit—an 
interpretation which, it has been submitted, is insupportable—the paragraph 
states a conventional rule, not a rule of customary international law. There is 
no indication, in the travaux or in the text, that the drafters of the CRPD 
thought that they were codifying an existing customary international law rule 
when they drafted Article 7(2), any more than the “respect for liberty of 
parents” was understood to be a customary rule at the time of the drafting or 
adoption of the Covenants. The rule contained in Article 7(2) of the CRPD is 
not a rule binding on the United States unless the United States becomes party 
to the Convention. So it is not accurate to say that a discordance exists 
between U.S. law and Article 7(2), for Article 7(2) is a conventional rule, not 
a customary rule, and, thus, Article 7(2) is not binding on the United States. 
The international law binding on a given State, unless the State chooses to 
accept a conventional rule that does so, contains no general regulation on the 
matter of schooling. When Dr. Farris implies that the United States is in 
breach of an international law rule that nullifies the liberty of parents to 
choose how their children are educated, he suggests a mistaken view of the 
character of the rules in the CPRD. In any event, as suggested, it is only by a 
tortured reading of the CRPD that a constraint can be discerned in its terms 
on the freedom of American families to determine the manner in which their 

 
                                                                                                                 
273 International Law Commission, supra note 258, at art. 3 (“Characterization of an act of a 
State as internationally wrongful.”). For the I.L.C.’s Commentary on art. 3, see THE 
INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY 86-90 (Crawford 
ed., 2002); see also, e.g., Técnicas Medioambientales Tecmed S.A. v. United Mexican States, 
ICSID Case No. ARB(AF)/00/2, Award, ¶ 120 (May 29, 2003), 10 ICSID Rep. 130 (2004); 
Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic, ICSID 
Case No. ARB/97/3, Decision on Annulment, ¶¶ 95-6 (July 3, 2002), 6 ICSID Rep. 340 
(2002). 



226 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
children are schooled. 

Finally, Dr. Farris acknowledges that a proposed declaration would 
“remove[] the possibility of direct judicial imposition of the provisions of the 
treaty.”274 It is difficult to see how the extreme effects Dr. Farris attributes to 
Article 7, paragraph 2, would be realized, if the United States withheld from 
its judges the power to apply it. 

V. POLICY GROUNDS FOR PARTICIPATING IN THE CRPD 

The observations set out in the preceding sections are concerned chiefly 
with questions of legal interpretation, with a view to assessing the objections 
raised in 2012 against ratification of the CRPD by the United States. The 
objections seem chiefly to have originated in policy concerns, but they were 
expressed by reference to law. Policy analysis is not analysis of a text in 
isolation. It requires analysis of the legal effects of the text when States apply 
it in practice. So a necessary antecedent to the policy analysis is a clear 
understanding of the legal effects of the text. The observations in the sections 
above have aimed to examine the critics’ views as to the legal effects of the 
CRPD. It is submitted, that with the possible exception of the provisions of 
the CRPD that address situations of armed conflict, the text of the Convention 
does not justify the objections as a matter of law. 

As a matter of policy, it is not convincing, however, to recommend 
adherence to a treaty simply on the ground that the treaty does no harm. To 
make the case for adherence, it must be shown that adherence carries some 
advantage. It is not the aim of the present article to review the policy 
background of CRPD in depth, much less to evaluate U.S. or international 
policy in respect of disabilities grosso modo. Nevertheless, some policy 
considerations that support U.S. adherence to CRPD may be instanced 
briefly. 

Leadership in standard-setting and best practices 

Adherence to CRPD would give the United States the chance to 
promote U.S.-defined best practices through participation in the international 
mechanisms that the CRPD establishes. The United States numbers among 
the top producers of goods and services related to persons with disabilities. 
Export promotion therefore is one of the benefits that would result from 
participating in the CRPD. It is noteworthy in this connection that South 
Korea, a State that exports technological products, proposed that the CRPD 
include a provision to encourage adoption of technology to assist disabled 
persons.275 The international market for such technology well could grow, if 
 
                                                                                                                 
274 S. EXEC. REP. NO. 112-6, supra note 86, at 82. 
275 Working Group, supra note 42, Daily Summary, Vol. 3, # 6, Jan 12, 2004, at 5 (observations of 
Republic of Korea). Note that Thailand singled out U.S. federal communications regulation as a 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 227 
 
more States were to adopt high-level standards for the rights of persons with 
disabilities. It also has been argued that the promotion of higher standards 
abroad would “level the playing field” for American businesses, which 
already are required to meet those standards but sometimes are placed at a 
disadvantage as against foreign competitors who are not.276 

Development objectives 

The United States, as a CRPD participant, would enhance its ability to 
promote disabilities legislation in other countries. This objective is consistent 
with the U.S. commitment to promoting development in general. In the 
Senate proceedings prior to the vote on ratification, it was observed in 
particular that the goal of promoting women’s rights in developing countries 
would be served by U.S. participation in the treaty.277 

Rights of persons with disabilities in the international civil service 

U.S. participation would strengthen the CRPD as a means to promote 
the application of uniform standards in international organizations. The 
CRPD, as an instrument open to international organizations as well as to 
States, could serve as a standard-setting mechanism for the internal rules of 
international organizations. This would protect the interests of disabled 
people, including U.S. nationals, who are employed in the international civil 
service. It was noted in connection with the drafting work that U.N. facilities, 
for example, did not meet the standard for accessibility, which the 
Convention would require its parties to implement.278 Since the entry into 

 
                                                                                                                 
“good example” of how States can guarantee access for disabled people, id., Vol. 3, # 9, Jan. 15, 
2004, at 7, and the Ad Hoc Committee received information concerning U.S. provisions for education 
of persons with disabilities, Ad. Hoc. Comm., 6th Sess., Daily Summary, Vol. 7, # 3 (Aug. 3, 2005), 
available at http://www.un.org/esa/socdev/enable/rights/ahc6sum3aug.htm, and information 
concerning accessibility requirements under U.S. law, Ad Hoc Comm., 6th Sess., Daily Summary, 
Vol. 7, # 5, (Aug. 5, 2005), available at http://www.un.org/esa/socdev/enable/rights/ 
ahc6sum5aug.htm. A number of substantive provisions of the CRPD refer to the role of technology 
and technology development in enhancing the lives of persons with disabilities; Convention 
Disabilities, supra note 1, art. 4, ¶¶ (f), (g) (general obligations); art. 9(2) ¶¶ (g), (h) (accessibility); 
art. 20(b) (personal mobility); and art. 21(c) (freedom of expression and opinion, and access to 
information). 
276 S. EXEC. REP. NO. 112-6, supra note 86, at 34-35 (prepared statement of Judith Heumann); 
id,. at 8. On Nov. 5, 2013, Sen. Robert J. Dole, in urging support, emphasised that the “treaty 
comes at no net cost to the United States. In fact, it will create a new global market for 
accessibility of goods.” S. EXEC. REP. NO. 113-12, supra note 253, at 44. 
277 158 CONG. REC. S7370 (daily ed. Dec. 4, 2012) (statement of Sen. Tom Udall). 
278 Kanter, supra note 37, at 297; see also Melish, supra note 39, at 38. On the employment of 
U.S. nationals generally in the U.N. system, see U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-
10-1028, U.S. EMPLOYMENT IN THE UNITED NATIONS (2010). The United Nations Entity for 
Gender Equality and the Empowerment of Women indicates that the total number of U.S. 



228 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
force of the CRPD, a number of international organizations have instituted 
intramural programs for the implementation of its standards.279 Americans 
abroad more generally would also benefit as countries raise their disabilities 
standards to meet the international requirements, a point made in the Senate 
Report recommending ratification280 and reiterated by Tammy Duckworth, 
an Illinois Congresswoman and Lieutenant Colonel of the Illinois Army 
National Guard. Articulating the veteran’s perspective, Congresswoman 
Duckworth drew attention to the benefits that the CRPD may have for 
veterans wishing to travel abroad.281 

Moral suasion 

The Department of State Special Advisor for International Disability 
Rights, Judith Heumann, in addressing the Senate Committee on Foreign 
Relations, noted the significance of U.S. participation in the CRPD for 
American foreign policy overall. According to the Special Advisor, 

We will be a leading force in the drive to both improve lives 
and increase understanding and cooperation among States, 
as well as to impact the development of international 
standards on accessibility. Disability diplomacy will have a 
positive effect on overall bilateral and regional diplomacy of 
the United States, by allowing us to leverage the shared 
value of disability rights to promote dialogue on other issues 
of importance to U.S. foreign policy. We have found that 

 
                                                                                                                 
nationals, men and women, employed across all U.N. entities and agencies, from P1 to USG 
and GS levels, as of Dec. 31, 2009, was 4,028; U.N. Women, Gender Distribution of All Staff 
(Dec. 31, 2009), http://www.un.org/womenwatch/osagi/pdf/Nationalities2010 
/NationalityTotals_Summary_2008-20091.pdf.  
  On inquiry by the author, suggested GAO official familiar with the GAO-10-1028 
report said that a comprehensive count of U.S. nationals employed across all international 
organizations has not been compiled. An approximation would be the number of U.S. tax 
payers whose employers are exempt from federal income tax withholding under the U.S. 
Internal Revenue Code; 26 I.R.C. § 7701(a)(18) (2014) (public international organization 
income tax exemption for entities under the International Organizations Immunities Act, 22 
U.S.C. §§ 288-288f (2014)). For the list of exempt organizations (to which further 
organizations may be added by Executive Order), see 8 C.F.R. §§ 316.20(b)-(c) (2015). 
279 See, e.g., Katherine Guernsey, et. al., WORLD BANK, CONVENTION ON THE RIGHTS OF 
PERSONS WITH DISABILITIES: ITS IMPLEMENTATION AND RELEVANCE FOR THE WORLD BANK 
(2007), available at http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/
SP-Discussion-papers/Disability-DP/0712.pdf (presenting overview of World Bank measures 
to ensure implementation in client countries). 
280 S. EXEC. REP. NO. 112-6, supra note 86, at 2 (“Americans with disabilities often face 
significant and, at times, prohibitive, barriers when they travel, work, serve, study and reside 
in other countries.”). 
281 S. EXEC. REP. NO. 113-12, supra note 253, at 49-52 (testimony of Tammy Duckworth).  

http://siteresources.worldbank.org/%E2%80%8CSOCIAL%E2%80%8CPROTECTION/%E2%80%8CResources/%E2%80%8CSP-Discussion%E2%80%8C-papers/%E2%80%8CDis%E2%80%8Cabi%E2%80%8Cli%E2%80%8Cty%E2%80%8C%E2%80%8C-DP/%E2%80%8C0712.pdf
http://siteresources.worldbank.org/%E2%80%8CSOCIAL%E2%80%8CPROTECTION/%E2%80%8CResources/%E2%80%8CSP-Discussion%E2%80%8C-papers/%E2%80%8CDis%E2%80%8Cabi%E2%80%8Cli%E2%80%8Cty%E2%80%8C%E2%80%8C-DP/%E2%80%8C0712.pdf


2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 229 
 

inclusion of disability rights in the work of the State 
Department amplifies our ability to achieve our broader 
foreign policy objectives. However, this work is unduly 
hampered by our not having a seat at the table as a State 
Party.282 

There is no doubt that the United States already exercises a major 
influence across the world in the field of the rights of persons with 
disabilities. It is also the case that participation in CRPD would increase 
American influence in that field. Not all policymakers place the same value 
on the power of moral suasion in international affairs. Yet the United States 
has long sought to conduct itself as an international “good citizen,” 
promoting its own interests, as all States do, but doing so, to the extent 
possible, with a view to the benefits its policies may have for others and for 
the system of international relations in general. The United States long has 
encouraged other States to model their conduct accordingly. Having “a seat 
at the table” by participating in the CRPD would continue this tradition of 
American foreign policy. 

VI. CONCLUSIONS 

The transmittal in 2012 to the U.S. Senate of the U.N. Convention on 
the Rights of Persons with Disabilities presented a classic case of treaty 
politics in an American framework. A number of Senators were opposed to 
further participation by the United States in the U.N. human rights system. 
They numbered over a third of the Senate and so prevented ratification of the 
CRPD. The objections to the CRPD would seem to have derived in large part 
from a general ambivalence toward international organization. Senators 
expressed their objections, directly and by associating themselves with the 
testimony of several experts, in legal terms as well. The present article has 
considered the legal objections on their terms. 

Curiously, the one objection having an arguable legal basis, though 
raised earlier in the drafting work, was not articulated in any meaningful way 
during the Senate proceedings. This is the objection that the CRPD, in 
particular preambular paragraph (u) and Article 11, intrude upon 
humanitarian law as applicable in armed conflict. The difficulties associated 
with those two provisions have been noted.283 They merited consideration by 
the Senate. 

The focal points in the Senate’s consideration of the CRPD, instead, 
were abortion, home schooling, and the relation between the CRPD and 
existing protections under U.S. law for persons with disabilities. It was also 

 
                                                                                                                 
282 S. EXEC. REP. NO. 112-6, supra note 86, at 34; see also Melish, supra note 39, at 47  n. 25.  
283 See infra para. (u) and Art. 11 



230 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
suggested that the CRPD would impose an unnecessary compliance burden 
on the United States. The observations set out above in respect of each of 
these objections may be summarized here in brief. 

Taking the matter of compliance burden first, there are two areas in 
which the CRPD might impose a compliance burden on a State Party. First, 
a State Party must take steps that its national legislation and practices are in 
accord with CRPD rules, standards, and principles.284 Second, a State Party 
must participate in certain procedures and institutions established by the 
CRPD.285 Not all CRPD mechanisms are mandatory, but some are (e.g., the 
reporting requirement under CRPD Article 35).286 The scope of mandatory 
mechanisms depends on whether a State Party has adhered to the Optional 
Protocol, and, if so, whether it has accepted all provisions of the Protocol.287 
The United States, it is widely agreed, would not incur a compliance burden 
in respect of national legislation: existing U.S. legislation meets or exceeds 
the standards contained in CRPD.288 As for the Optional Protocol, the United 
States would not be required to adopt it.289 As for the remaining requirements 
(reporting under Article 35), these are no more onerous than those already 
accepted by the United States as a participant in other human rights 
treaties.290 

A distinct objection relates to causes of action in national court. It is 
extremely unlikely that the CRPD would introduce new causes of action 
available to litigants in the federal or state courts of the United States. It 
would be all the more unlikely, if the United States ratified the CRPD with 
reservations similar to those which it has adopted in connection with other 
human rights treaties (e.g., ICCPR).291 As one plaintiff pleading the CRPD 
in a case before a federal district court learned in 2011, a given federal 
statutory provision did not confer “any rights enforceable… for violations of 
international law.”292  The CRPD is among various human rights instruments 
that “do not create federal causes of action.”293 The few references that courts 
in the United States have made to the CRPD to date have been for illustrative 

 
                                                                                                                 
284 See Convention Disabilities, supra note 1. 
285 Id.. 
286 Id. 
287 See Optional Protocol, supra note 15. 
288 See Convention Disabilities, supra note 1. 
289 See Optional Protocol, supra note 15.. 
290 See Convention Disabilities, supra note 1, 
291 The practice to date in U.S. courts tends to confirm this conjecture. See, as noted above, 
note 25, human rights groups’ amicus curiae submission in Smith et al v. City of Detroit, 
Bankruptcy Case No. 13-53846, Ad. Proc. No. 14-04732, Feb. 3, 2015. References to the 
CRPD in U.S. courts have not been to establish new causes of action.  
292 Knapp v. Cate, F. Supp.2d (unreported) (McAuliffe, U.S. Mag. J.) (Nov. 8, 2011) p. 7. 
293 Townsend v. New Jersey Transit and Amalgamated Transit Union, F.Supp. 2d (unreported) 
(Brown, CJ) (Sept. 27, 2010) p. 5. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 231 
 
or persuasive purposes, not as binding authority.294 

It must be said that a degree of confusion emerges from the objections, 
as to how the CRPD would affect municipal law. Those advising against 
ratification suggest, at once, that the Convention would do nothing to change 
the law;295 would add new disabilities rules at variance with existing U.S. 
law;296 and would cancel or derogate existing U.S. legal protections.297 It is 
also said that the Convention would give Americans abroad no causes of 
action under the municipal legal systems of other States Parties298—but it is 
alleged that private litigants in the United States will have new causes of 
action under the Convention’s rules in U.S. courts.299 The objections in 
respect of municipal law, then, are more a mélange than a coherent argument. 
It might be pleaded, in defense of the objections, that the application of the 
CRPD at the municipal level is simply too uncertain for one to predict its 
effects. This, however, is not convincing. The CRPD is one of a series of 
human rights instruments, several of which have been in force in the United 
States for some time. The United States signed the ICCPR in 1977, for 
example, and ratified it in 1992.300 This did not result in a substantial 
compliance burden as measured by actions in domestic court,301 even as some 
scholars called for the ICCPR’s direct application in U.S. law.302 Those 
instruments, it is submitted, have not introduced undue burdens on the U.S. 
legal system, and one should not anticipate that the CRPD would either. 

The objection in respect of home schooling was addressed above.303 It 
is difficult to see how that objection finds support in the text of the treaty. It 
would certainly be open to the United States to adopt a reservation or 
declaration to clarify that nothing in the CRPD derogates the existing parental 
liberties enshrined in the 1966 Covenants and under U.S. law. The United 
States has adopted such an approach in the past. To give the main example, 
 
                                                                                                                 
294 See, e.g., In re Guardianship of Dameris L., 38 Misc. 3d 570, 579-580; 956 N.Y.S.2d 848, 
855 (New York Surrogate’s Court, Booth Glen, J.) (Dec. 31, 2012). Judge Booth Glen earlier 
had referred to the CRPD to similar effect. See In re Mark C.H., 38 Misc. 3d 765, 786; 906 
N.Y.S.2d 419, 434 (New York Surrogate’s Court, Booth Glen, J) (Apr. 21, 2010). 
295 See supra Part III.. 
296 Id. 
297 Id. 
298 Id.  
299 Id. 
300 The United States signed the ICCPR on Oct. 5, 1977 and ratified on June 8, 1992. U.N., 
International Covenant on Civil and Political Rights (last updated June 8, 2015),  
https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtds
g_no=IV-4&chapter=4&lang=en#Participants  
301 On the ICCPR in the United States, see Anja Seibert-Fohr, “Domestic Implementation of 
the International Covenant on Civil and Political Rights Pursuant to its article 2 para. 2,” 5 
Max Planck United Nations Yearbook 400, 443-454 (2001). 
302 See e.g., John Quigley, “The International Covenant on Civil and Political Rights and the 
Supremacy Clause,” 42 DePaul L. Rev. 1287, 1309-1310 (1993). 
303 See supra Part III. 

https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-4&chapter=4&lang=en%23Participants
https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-4&chapter=4&lang=en%23Participants


232 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 
Article 19 of the ICCPR sets out a right to freedom of expression and 
associated rights.304  ICCPR Article 20 qualifies the rights, by obliging 
parties to the Covenant to prohibit “propaganda for war” and “advocacy of 
national, racial or religious hatred that constitutes incitement to 
discrimination, hostility or violence.”305 Adherence to ICCPR Article 20 by 
the United States would appear to have imposed on U.S. law a lower standard 
of protection for the right of free speech and association than exists under the 
Constitution and laws of the United States. To avoid the possibility of a lower 
standard, the United States, when it ratified ICCPR, adopted (inter alia) a 
reservation in respect of freedom of speech.306  According to the reservation, 
“Article 20 does not authorize or require legislation or other action by the 
United States that would restrict the right of free speech and association 
protected by the Constitution and laws of the United States.”307 It is open to 
the United States to adopt a similar “laws of the United States” statement in 
connection with ratification of the CRPD. Such a statement respecting the 
CRPD would be termed more accurately a declaration than a reservation, as 
it would not be reserving or changing the application of any part of the CRPD. 
It would instead reiterate or clarify a position already clear in the treaty: the 
treaty does not require the United States to diminish the protections afforded 
under national law to persons with disabilities, nor does it erode any other 
right under U.S. law, such as the right of parents to choose how to educate 
their children. 

C. Boyden Gray, in testimony on November 21, 2013, made a similar 
point.308  The former White House counsel and U.S. ambassador to the EU 
said, “it is essential that we include reservations, understandings and 
declarations, or RUDs, to tailor this treaty to our concepts of equal 
opportunity and non-discrimination.”309 He drew attention to the federalism 
reservation, “not[ing] with approval that the Obama Administration made its 
Federalism provision a Reservation, rather than an Understanding.”310 He 
affirmed that “[t]he claims that somehow ratification of the Disabilities 
Treaty will undermine U.S. sovereignty are simply false”.311 

The objection in respect of Article 25 relates more obviously to the text 
than the objection in respect of home schooling; the text says nothing about 
 
                                                                                                                 
304 ICCPR, supra note 63, at 7. 
305 Id. at 8. 
306 International Covenant on Civil and Political Rights, U.S. Reservation 1 upon Ratification, 
deposited June 8, 1992, 1676 U.N.T.S. 543 (entered into force Sept. 8, 1992); see also 
International Convention on the Elimination of All Forms of Racial Discrimination, U.S. 
Reservations upon Ratification, deposited Oct. 21, 1994, 1830 U.N.T.S. 284-85 (entered into 
force Nov. 20, 1994). 
307 Id.  
308 S. EXEC. REP. NO. 113-12, supra note 253, at 173 (testimony of C. Boyden Gray). 
309 Id. 
310 Id.  
311 Id. at 174.  



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 233 
 
home schooling but does refer to “sexual and reproductive health.”312 Several 
States share the American objectors’ concern in that connection. Iran, for 
example, stated during the drafting work that it “accepts the phrase ‘sexual 
and reproductive health’ with the understanding that the phrase does not 
include abortion, and that its use in article 25 (a) does not create any abortion 
rights and cannot be interpreted as constituting promotion of abortion.”313 

Malta, on signing the Convention, adopted the following interpretative 
statement: 

Malta understands that the phrase “sexual and reproductive 
health” in Art 25(a) of the Convention does not constitute 
recognition of any new international law obligation, does not 
create any abortion rights, and cannot be interpreted to 
constitute support, endorsement, or promotion of abortion. 
Malta further understands that the use of this phrase is 
intended exclusively to underline the point that where health 
services are provided, they are provided without 
discrimination on the basis of disability.314 

There is also the Polish reservation, which states, “The Republic of Poland 
understands that Articles 23.1(b) and 25(a) shall not be interpreted in a way 
conferring an individual right to abortion or mandating [a] state party to 
provide access thereto.”315 In a related vein, Article 10 (“Right to Life”) 
attracted a declaration by the Netherlands as follows: “The Kingdom of the 
Netherlands acknowledges that unborn human life is worthy of protection. 
The Kingdom interprets the scope of Article 10 to the effect that such 
protection—and thereby the term ‘human being’—is a matter for national 
legislation.”316 Under the law of treaties (subject to the treaty explicitly 
adopting a different position),  

[A] reservation is considered to have been accepted by a 
State if it shall have raised no objection to the reservation by 
the end of a period of twelve months after it was notified of 

 
                                                                                                                 
312 Convention Disabilities, supra note 1, art. 25(a). 
313 G.A. Res. 61/76, supra note 5, at 5 (Mrs. Hasteh (Iran)).  
314 Convention Disabilities, supra note 1, Malta’s Declarations and Reservations, available at https://
treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=iv-15&chapter=4&lang=en; see 
also Ad Hoc Comm., 4th sess., Daily Summary, Vol. 5, # 5 (Aug. 27, 2004), available at 
http://www.un.org/esa/socdev/enable/rights/ahc4sum27aug.htm (observation of Costa Rica, 
concurring in substance on a point about abortion and the words “sexual and reproductive health” 
(i.e., that the words do not establish any international law right to abortion). 
315U.N., Convention on the Rights of Persons with Disabilities (last updated June 8, 2015), 
https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtds
g_no=IV-15&chapter=4&lang=en#Participants.  
316 Id. (emphasis added). 



234 IND. INT’L & COMP. L. REV. [Vol. 25:2 
 

the reservation or by the date on which it expressed its 
consent to be bound by the treaty, whichever is later.317  

No Party at the time the present article went to press had raised 
objection to the Maltese or Netherlands declarations or to the Polish 
reservation. Well-documented travaux préparatoires (several years’ worth of 
Working Group and Ad Hoc Committee daily summaries) demonstrate the 
widespread acceptance by States participating in the drafting process that 
indeed CRPD Article 25(a), as Malta said, “does not create any abortion 
rights” at the international level, nor does it “constitute support, endorsement, 
or promotion of abortion.”318 

This leaves the question of humanitarian law. A reservation to 
preambular paragraph (u) and Article 11 would concern a very small part of 
the Convention. Only the latter (the reservation to Article 11 would concern 
an operative provision. Article 11 is severable from the rest of the 
Convention. That is to say, Article 11 is not integral to the CRPD in such a 
way that reserving its effect would negate or otherwise interfere with other 
operative provisions. Moreover, Article 11 extends CRPD into the field 
typically occupied by international humanitarian law. Its character as an 
extension beyond the main core of human rights law further supports the 
conclusion that to reserve the application of Article 11 would not interfere 
with the object or purpose of the Convention: the CRPD was not intended to 
be a new branch of the law of armed conflict.319 

 
* * * 
 
Robert Dole, former Majority Leader of the U.S. Senate, in a letter to 

the Senate Committee on Foreign Relations in July 2012, wrote in support of 
the U.N. Convention on the Rights of Persons with Disabilities.320 Senator 
Dole told the Senate that “[n]ow is the time to reaffirm the common goals of 
equality, access, and inclusion for Americans with disabilities—both when 
those affected are in the United States and outside of our country’s 
borders.”321 It is fitting that a distinguished former leader of the Senate who, 
as a disabled veteran, had been instrumental in securing protections under 

 
                                                                                                                 
317 Vienna Convention, supra note 21, at 337. Whether Malta calls its statement a “declaration” 
or a “reservation” is not material to its legal effect. Id. at 333. 
318 Id. 
319 This conclusion is further supported by reference to the preamble. In identifying the object 
and purposes of the Convention, preambular paragraphs (b), (c), and (d) refer to the main 
human rights treaties and principles—not to humanitarian law. 
320 S. EXEC. REP. NO. 112-6, supra note 88, at 29 (letter of Robert Dole, read into the record 
by Sen. John McCain). 
321 Id. 



2015] CRPD: OBSERVATIONS ON U.S. PARTICIPATION 235 
 
American law for persons with disabilities, lent his voice to the CRPD.322 
Owing in part to Senator Dole’s support, the CRPD received favorable votes 
in 2012 from members of both political parties in the Senate and was nearly 
ratified. 

The Senate vote on the CRPD took place—as have all modern Senate 
votes on treaties—in light of a long tradition of caution toward international 
commitments.323 American foreign policy exists in balance between 
scepticism and engagement--scepticismtoward new legal instruments and 
engagement in international law-making. At times, such as when it instigated 
but then declined to ratify the Covenant of the League of Nations or, nearly 
a century later, when it played a central role in drafting the Rome Statute of 
the International Criminal Court but chose not to participate in that 
instrument, the United States has shifted rapidly from the closest engagement 
to a determined distance. Some treaties seek to re-shape the structure of 
international relations. Others have much less controversial aims. A 
policymaker, when presented a new treaty, inevitably will consider a range 
of policy and legal questions relevant to U.S. participation. It is submitted 
here that, in balance, the legal questions raised by its critics do not justify 
rejection of the Convention on the Rights of Persons with Disabilities. 

 

 
                                                                                                                 
322 See 136 CONG. REC. S17376 (daily ed. July 13, 1990) (remarks on the Senate floor 
regarding passage of the Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 327 
(codified at 42 U.S.C. §§ 12101-12213 (1994), amended; Public Law 110-325, 122 Stat. 3553 
(2008))); George Bush, Remarks at the Signing of the ADA (July 16, 1990) (transcript 
available at http://www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html); see also 
Bob Dole, Are We Keeping America’s Promises to People with Disabilities? 79 IOWA L. REV. 
925, 927-28 (1994); see also 115 CONG. REC. 8818, (daily ed. Apr. 14, 1969) (first floor speech 
as U.S. Senator)(“When more of this emphasis on the individual better influences the agencies 
and professions dealing with the handicapped, I believe we can begin to open new, more 
meaningful vistas for more persons with handicaps.”). 
323 For the locus classicus, see George Washington, Farewell Address (Sept. 19, 1796), 
http://avalon.law.yale.edu/18th_century/washing.asp (“Why forego the advantages of so 
peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving 
our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of 
European ambition, rivalship, interest, humor or caprice?  
It is our true policy to steer clear of permanent alliances with any portion of the foreign world; 
so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of 
patronizing infidelity to existing engagements. I hold the maxim no less applicable to public 
than to private affairs, that honesty is always the best policy. I repeat it, therefore, let those 
engagements be observed in their genuine sense. But, in my opinion, it is unnecessary and 
would be unwise to extend them.”).