WASHINGTON — When I traveled abroad as an American Marshall Memorial Fellow in October 2008, I discovered something most people wouldn’t notice. The notion of an attorney with his partner, a dog guide, draws attention on both sides of the Atlantic.   I recall one individual claiming that disability law, policy, or concerns have no part of the transatlantic relationship.   This is an inaccurate claim, especially in light of both the European Community and President Obama signing on to the international United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol.

I have engaged in many discussions with organizations and individuals on transatlantic disability law and policy — both during the fellowship and since — and brought up the Convention, which scholars have called the first human rights treaty of the 21st century.

In December, an annual celebration of the Convention is held at the United Nations during the International Day of Persons with Disabilities.   With this celebration approaching once again, providing a description of the Convention and elucidating its importance for organizations working in the transatlantic space to be leaders in this segment of the transatlantic relationship is a valuable use of the pen.

Article 4 of the Convention elucidates the general obligations of state parties, or those nations that have ratified the Convention.   State parties agree that they will ensure the equality of “rights and fundamental freedoms of persons with disabilities without discrimination of any kind.”   As such, the Convention not only provides lofty, hortatory language, but also states, in Article 4, that the principles of the Convention are to be implemented by state parties through: (a.) legislation and regulatory enactment and promulgation; (b.) policy formulation; and (c.) research and development.   Additionally, state parties, in furtherance of the Convention, are to furnish proactively reasonable accommodations to persons with disabilities.   Similar to the body of legal issues in the United States known as “affirmative action,” Article 5 of the Convention provides that state parties are to undertake measures to accelerate “de facto equality of persons with disabilities.”   In addition to these obligations for state parties, there are many other substantive Articles of the Convention that impose affirmative obligations on governments.

Article 25 in particular may be noteworthy in light of the pending reform of the American healthcare system.   This Article mandates that state parties ensure equal, accessible, and affordable healthcare services, reimbursement systems, and insurance to persons with disabilities.   Notably, the Convention provides that people with disabilities are to enjoy enhanced access to rehabilitation services, equal rights to reproductive health services, and increased access to affordable technologies that aide in daily functioning.   Furthermore, the Optional Protocol to the Convention provides “teeth” to the underlying covenant in so far as it establishes a review body — the Committee on the Rights of Persons with Disabilities — at the United Nations to receive communications and complaints relating to implementation by state parties.

Since the Convention was brought into force in spring 2008, there have been 71 ratifications of the Convention and 45 ratifications of the Optional Protocol.   For instance, European Union aspirants Serbia and Turkey as well as established EU states like Germany and Belgium have ratified the Convention.   Consequently, scholars in disability law and policy, including Michael Ashley Stein and Janet E. Lord, have heralded the Convention as a new paradigm for disability rights and as a positive force for social integration and inclusion of persons with disabilities.

Despite the positive nature of this Convention as a discussion vehicle, if nothing else, the United States did not warmly receive the Convention, at least not until recent months.

The administration of President Bush was regularly castigated by disability advocates for not undertaking a leadership role on the Convention.   This lack of leadership was regrettable, as the Convention is imbued by concepts and principles encompassed in the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act of 1990, as amended.   However, in summer 2009, arguably reclaiming our leadership on global disability policy, President Obama had the new ambassador to the United Nations ensure that the federal government is a signatory to the Convention.

In sum, the disabled and able-bodied can mutually benefit from opportunities to enhance their perspective on foreign law and public policy.   The important influence of organizations like the German Marshall Fund of the United States and others in fostering transatlantic cooperation, here at home, and abroad, is irrefutable.   I suggest to these organizations that the next item on the transatlantic agenda should be international disability policy, which has been overlooked too long.

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Commentators in the United States speculate that the 2008 presidential election will be a close one once again.   With many states in play, candidates will turn to the some 54 million disabled to shore up their vote tallies in places like Pennsylvania and Ohio.

For example, in the 2000 presidential election, the reported voting age population (VAP) of people with disabilities in Pennsylvania was 837,397, of whom, an estimated 43.0% cast ballots, and in Ohio, the reported VAP of people with disabilities was 241,449, of whom 39.0% cast ballots.

It is probably in recognition of the increasing voting power of the disabled that, in November 2007, a national forum on the positions of the Presidential primary candidates took place, and that, on July 26, a second moderated forum with the Presidential candidates or their surrogates was hosted in Columbus, Ohio.

And as further  evidence of the importance of the disabled to presidential politics, Kareem Dale, founder and CEO of The Dale Law Group of Chicago, Illinois, and an attorney with a vision disability, was recently appointed as Senator Barack Obama’s Disability Vote Director. The Obama campaign has an extensive plan and platform for disability issues that  includes four elements:

1. Provide Americans with disabilities with the educational opportunities they need to succeed, such as; fully funding what is called the Individuals with Disabilities Education Act or IDEA;
2. End discrimination and promote equal opportunity, which would be accomplished through, among others, a national Presidential advisor on disability and support for passage of what is called the Americans with Disabilities Restoration Act that is presently working its way through Congress;
3. Increase the employment rate of workers with disabilities, which would be accomplished through, among others, reconstituting an Executive order signed during the Clinton administration to actively hire federal employees with disabilities; and
4. Support independent, community-based living for Americans with disabilities.

The campaign has also pledged that, if elected, Senator Obama would have his administration commit the United States as a signatory to and urge the ratification of the International Convention on the Rights of Persons with Disabilities, thereby reclaiming the United States’ global leadership on disability policy issues. The United States did not sign the treaty under the Bush administration, which did not even send a diplomatic representative to the discussions.

Senator John McCain does not appear to have issued a formal statement on whether he would sign the United States on to the Convention, but he is likely to receive questions on this point from the disability community.

But to be fair to McCain, who does not seem to have as many formal policy positions or statements on disability related questions, he is the one of the two presidential candidates argued as actually living with disabilities. According to an article that appeared in the Los Angeles Times during the primaries, McCain retired from the military on a full disability discharge and with a 100% disability pension.   During the Vietnam War, he suffered such injuries as a shattered knee and two broken arms, injuries that he still deals with today.

Commemorating the 18th anniversary of the enactment of the Americans with Disabilities Act (ADA), the American Association of People with Disabilities and the Ohio Disability Vote Coalition sponsored the National Forum on Disability Issues, a nonpartisan forum on national disability policy on July 26 in Columbus, Ohio.   This was an historic dialogue, as it was the first–or one of the first–such forum between the two leading presidential candidates that Americans with disabilities from across the United States attended, either in person or via webcast, and it was moderated by a renowned journalist.   McCain attended the forum via satellite video, and Obama,  who was returning from his travel abroad, was represented by former Senator Tom Harkin, a national health and disability policy expert and sponsor of the ADA.

At the forum, Harkin stressed that electing the president plays a critical role in the long-term civil rights of people with disabilities, as any president, but especially, the next one, will have the opportunity to appoint justices to the United States Supreme Court.   Since the passage of the ADA, its original coverage has been narrowed by decisions of the federal courts, including the Supreme Court, which have been redefining people as non-disabled – and therefore not protected from discrimination – if they could function effectively with mitigating measures.   Harkin’s  remarks  reflected that, should conservatives prevail, there is the chance that conservative activist judges and Justices would be appointed to the federal court system who will continue to narrow the coverage of disability civil rights related protections.   He also emphasized the importance for a national disability policy advisor to the President.

This author speculates that, in an Obama administration, Senator Harkin would be considered a leading candidate for Secretary of the United States Department of Health and Human Services, a critical ministry of the United States on public health, health care reimbursement, and welfare benefits that directly impact the disabled, among others.

A priority of a McCain administration would be ensuring that the Veteran’s Administration focuses on providing specialized care for service-related conditions and that veterans receive improved health care.

A burgeoning disability civil rights movement and expanding set of legal obligations in Europe governs the rights of Europeans with disabilities.   As many American disability advocates suggest, the United States has a critical role in sharing its experiences on the fuller inclusion of people with disabilities with the international community, and especially with  its transatlantic partners.   This author consequently hopes that a change in leadership by either of the candidates will alter the record of the Bush administration when it regards American support of the Convention and many other critical disability policy questions.

Gary C. Norman, Esq., is an American Marshall Memorial Fellow and an attorney partnered with a dog guide.

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