Challenging conventions

Gerard Quinn

After decades of campaigning, the UN Convention on the Rights of Persons with Disabilities came into force in 2007. This innovative treaty combines substantive rights with commitments to non-discrimination and, for the first time, enshrines autonomy for disabled people. Although some of its obligations will take time – and considerable resources – to implement, it marks a significant step on the road to inclusion and equality.

The first human rights treaty of the 21st century was the United Nations Convention on the Rights of Persons with Disabili­ties (UNCRPD). It was opened for signature and ratification in March 2007. So far 153 countries have signed the convention and 115 have ratified it, which is something of a record. It is accompa­nied by an Optional Protocol, which allows for a complaints mecha­nism and which has already attracted 65 ratifications. Unusually, the convention also has a provision for regional integration organisa­tions to become a party – the European Union (EU), separate from and in addition to its member states, signed up in 2010. This too is a first in international human rights law.

The realisation that a convention was needed goes back to the 1980s, when a number of states, particularly Italy and Sweden, proposed that a qualitative leap was needed in the form of a legally binding treaty. Due mainly to treaty fatigue (the drafting of the Convention on the Rights of the Child was then under way) and a lack of understanding about the relevance of human rights to dis­ability, these efforts dissipated. Instead, the UN General Assembly adopted a non-binding resolution on Standard Rules for the Equali­zation of Opportunities for People with Disabilities in 1993. Unlike all previous instruments, the rules included strong provisions on equal opportunities (as distinct from prevention, rehabilitation or welfare) as well as a monitoring mechanism in the form of a Spe­cial Rapporteur on the Rights of Persons with Disabilities.

The 1990s proved pivotal in many ways. Firstly, the Ameri­cans with Disabilities Act of 1990 demonstrated how change was possible once a legally binding instrument based on an equal op­portunities model was enacted. This was mirrored in a series of pronouncements by the EU. Secondly, more and more people un­derstood how disability could be anchored in a human rights plat­form – and away from traditional conceptions of welfare and social policy. Thirdly, disability civil society was beginning to move de­cisively towards the human rights frame and to advocate very effectively internationally as well as nationally. The pieces began to come together upon the accession of Mary Robinson as UN High Commissioner for Human Rights. She emboldened many to begin pressing the case for a convention, but this was rebuffed in the UN Human Rights Commission in the early 2000s.

The newly elected president of Mexico, Vicente Fox, surprised many in 2001 by making the argument for a convention and per­suading the UN General Assembly to pass a resolution creating an Ad Hoc Committee to consider proposals for it. The rather open-ended terms of reference were meant to create a space to consider proposals and then to move forward if a suitable case had been made.

All in all, the Ad Hoc Committee met six times between 2002 and 2006 – with one special meeting of a UN Working Group in 2004 that did most of the drafting. The first session ended in deadlock. But it was characterised by a huge innovation that cre­ated space for disability civil society groups, like Disabled Peo­ples’ International and Rehabilitation International, to be actively involved. It was the steady inflow of these groups – who proved more than adept at persuasion and negotiation – that provided the impetus for the committee to move forward.

At the outset, there was debate over the nature of the human rights perspective on disability. There was agreement on the need to move away from treating persons with disabilities as ‘objects’ to be managed, cared for or pitied and towards accepting them as ‘subjects’ with equal intrinsic worth and their own preferences worthy of equal respect (the so-called ‘paradigm shift’ of the con­vention).

Given the dominance of equality as a core frame of reference, there was debate over whether the convention should be a non-discrimination instrument (like the UN Convention for the Elimi­nation of all Forms of Discrimination against Women) or a more rights-based one (like the Convention on the Rights of the Child). Eventually, it was resolved that it would be a hybrid between sub­stantive rights and equality/non-discrimination. This is reflected in Article 1, which states that the purpose of the convention is to se­cure the “equal and full enjoyment of all human rights” for persons with disabilities. Reflecting the strength of the paradigm shift from object to subject, Article 3 sets out some general principles to guide the rest of the convention, such as dignity, autonomy, the right to make one’s own decisions, the right to participation and commu­nity living, and accessibility.

It is important to understand that the convention does not create any new rights. Instead, it purports to tailor general human rights to the particular situation of persons with disabilities. The way in which it does this is novel. In a sense it blends together elements of existing rights in provisions (like Article 12 on equal recognition before the law). The result can be a mix of obligations that are to be immediately achieved and other obligations that can be progres­sively realised depending on resources.

The rights themselves are complex. But perhaps they can be sim­ply explained as follows. One set focuses on what it means to be a person and how personhood ought to be supported and expanded as well as protected. The anchor right here is in Article 12, which affords persons with disabilities the right to make their own deci­sion and – crucially – to have them respected by third parties. This is one of the most important articles in the convention, as it seeks to replace, or phase out, guardianship (whereby third parties make decisions) and calls for support for those who might not be in a po­sition to make their own plans and choices in life. This is all about voice, self-direction and control.

Article 17 protects the physical and psychic integrity of the per­son, as well as prohibiting torture and inhuman or degrading treat­ment. The role of the state in this area is invoked in Article 16 which stipulates that persons with disabilities have a right to be shielded against violence, exploitation and abuse “on an equal ba­sis with others”. This focus on protection on “an equal basis with others” boils away centuries of paternalism. Reading between the lines, it also implies that abusers will no longer go unpunished.

A second layer of rights takes this notion of ‘voice’ to the next level – that of ‘choice’. Here, the convention sparkles with innova­tion recognising the right to independent living and inclusion in the community (Article 19). Although it does not mention the word ‘institutions’ or ‘deinstitutionalisation’, it’s pretty plain that Article 19 requires the ending of institutions – as well as introducing much more personalised social services and making existing community services more inclusive and accessible.

In Article 9, a third layer of rights focuses more on accessibil­ity, opening up the idea of life ‘chances’ – something others take for granted. Interestingly, this concerns not just the challenge of accessing the physical environment but also the virtual world of information and communication technology (ICT). It calls for a re-balancing of intellectual property rights to ensure they do not prevent access to knowledge, especially in the electronic media, which is hugely important to blind and other ‘readers’. Indeed, a process is now under way at the World Intellectual Property Or­ganization to try to achieve this.

And yet another layer of rights sweeps in the traditional eco­nomic and social rights, such as those concerned with education (Article 24) and employment (Article 27). What’s remarkable about these socio-economic rights is that they are not considered ends in themselves but tools to enable individuals to take charge of their own lives. Moreover, they specifically reject segregation and emphasise inclusion in the mainstream.

The convention also innovates by demanding a robust mecha­nism for reform at the domestic level. Governments are obligated to have a focal point and coordinating mechanism for disability (Article 33.1). They must establish a framework, with one or more independent elements, to protect, promote and monitor domestic compliance (Article 33.2), and are required to consult actively with persons with disabilities in setting policies that affect them (Article 4.3). Furthermore, development aid programmes must be inclusive of persons with disabilities and engage constructively in interna­tional technical cooperation.

International monitoring is carried out by the UN Committee on the Rights of Persons with Disabilities, which renders conclusions on compliance based on a consideration of periodic state reports, including those submitted by NGOs, called ‘shadow reports’. It also considers many complaints under the Optional Protocol, for which it carries out confidential proceedings. The committee has the power to engage in a wide-ranging ‘enquiry’ into persistent pat­terns of violations of rights, but has not done so to date.

Ten years is a long time in international relations. Few could have predicted at the first Ad Hoc Committee session in 2002 that the human rights of persons with disabilities would have become so strongly embedded in the international human rights firmament. Traditional human rights organisations are now learning about dis­ability and traditional disability organisations are becoming adept at advocating for change on the basis of rights. This calls for a change in the style of disability policy entrepreneurship. The gap between rhetoric and reality will not close fast. But at least a new set of tools is now available, which means that around the world, the gap can no longer be so easily ignored.

About the author:

Professor Gerard Quinn is Director of the Centre for Disability Law and Policy, National University of Ireland in Galway


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August 1, 2012 5:40 am

It is an irony that the UN’s human rights charter-the bedrock of the ‘UN genesis’-has not yet been given the due consideration.The big challenge- to be faced by the international community,particularly in the era ushered in by the ongoing ‘metamorphosis of globalisation’- is to protect the human rights.

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