A UN Convention on the Rights of Persons with Disabilities: The Next Steps
By Arthur O'Reilly, Past President, Rehabilitation International (firstname.lastname@example.org)
Paper presented at the General Assembly Meeting of Rehabilitation International Arab Region, 8-9 March 2003, Kingdom of Bahrain
In July 1999, as President of Rehabilitation International (RI), I participated in a meeting in the Royal Palace in Amman, Jordan. The purpose of the meeting was to discuss what should be the main goal in RI's proposed new Charter. There were five other people, plus a small number of observers, at the meeting. The five included three people from the Arab Region: Dr Essa El Sadi, RI Vice President for the Region, HRH Prince Ra'ad Bin Zeid of Jordan, who had kindly invited the group to meet in Amman, and a representative of Prince Sultan Ben Salman Abdul Aziz Al Saud of Saudi Arabia. At the meeting it was suggested that it was time to try again to get the United Nations to adopt a Convention on the Rights of Persons with Disabilities. There was unanimous agreement that RI should, in its Charter for the Third Millennium, call on the nations of the world to support this proposal.
This was not the first time that a proposal for a convention had been made. In 1987, the Global Meeting of Experts to Review the Implementation of the World Programme of Action concerning Disabled Persons at the mid-point of the UN Decade of Disabled Persons had recommended that the UN General Assembly should convene a special conference to draft an international convention on the elimination of all forms of discrimination against persons with disabilities. A draft outline of a convention was prepared by Italy. At a subsequent General Assembly, a further effort was made by Sweden. On both occasions, however, no consensus was reached. In the opinion of many government representatives, existing human rights documents seemed to guarantee persons with disabilities the same rights as other persons, and there was, therefore, no need for a special convention.
In what some observers saw as a 'compensatory alternative', the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities were adopted by the UN General Assembly in 1993. The Standard Rules, as we know, are not compulsory: no State is obliged to implement them. Nor are they 'rules', which in the English language means authoritative regulations or directions. The Standard Rules are guidelines. They have, nevertheless, proved very useful as a basis for policymaking and action in many countries.
So why do we need a Convention?
Is it true that existing human rights instruments apply to everyone, including persons with disabilities? Yes, they do. So why did the international community agree to establish a specific convention to protect the rights of migrant workers, and specific conventions to protect the rights of refugees, women, children? All of these specific conventions were established because it was recognised that each of these vulnerable groups should have a single set of binding norms and a specific body to monitor respect for their human rights.
In a way, it could be said that the UN, by not having a control body to provide disabled persons with particular and specific protection, is in fact discriminating against them.
That is sufficient reason in itself why there should be a Convention on the Rights of Persons with Disabilities. But there are other compelling reasons too. Although existing rights instruments apply to everyone, one of the UN's most important committees, the Committee on Economic, Social and Cultural Rights, publicly acknowledged almost ten years ago that governments devoted very little attention to persons with disabilities in their reports on how they were in compliance with the existing instruments. The Committee's explicit conclusion was that 'it is now widely accepted that the human rights of persons with disabilities must be protected and promoted through general, as well as specially designed, laws, policies, and programmes.'
Perhaps the most compelling reason of all why a disability Convention is needed is the fact, the shocking, undeniable fact, that every day, throughout the world, persons with disabilities are being subjected to widespread violations of their human rights. These violations include malnutrition, forced sterilisation, sexual exploitation, denial of educational and vocational training opportunities, inaccessible public services, institutionalisation, and denial of voting rights.
I have outlined some of the main reasons why we should have a Convention, because many governments throughout the world are not yet convinced that a Convention is necessary, or are reluctant to support the idea for other reasons.
How far have we come?
In September 1999 Rehabilitation International approved its new Charter calling for a Convention.
On 3 December 1999 (International Day of Disabled Persons), I presented a copy of the RI Charter to the UN High Commissioner for Human Rights, and to the Chair of the UN Commission on Human Rights, in Geneva. They both promised their support for a new Convention.
In March 2000, leaders of five of the main international disability NGOs-- Rehabilitation International, DPI, Inclusion International, World Blind Union, World Federation of the Deaf-- met in Beijing, China. The Beijing Declaration which resulted from that meeting called on all governments to support a Convention.
In April 2000, the UN Commission on Human Rights adopted a resolution which invited the High Commissioner for Human Rights to examine measures to strengthen the protection and monitoring of the rights of persons with disabilities. The Office of the High Commissioner commissioned a study to evaluate the effectiveness of existing treaties in guaranteeing the rights of people with disabilities. The report of that study sets out a wide range of recommendations designed to enhance the future use of the UN human rights system for persons with disabilities. The report also supports the argument for a specific Convention on the rights of persons with disabilities, viewing such a Convention as underpinning, and not undermining, the existing human rights treaties.
In December 2001, the UN General Assembly, following a proposal by Mexico, decided to establish an Ad Hoc Committee to consider proposals for a comprehensive and integral 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. Note that the mandate of the Ad Hoc Committee is to 'consider proposals' and not to elaborate a convention.
The Ad Hoc Committee held its first session at UN Headquarters from 29 July to 9 August 2002. During that time the Committee heard general statements from representatives of a number of countries, two UN agencies-- the International Labour Organisation (ILO) and the Office of the High Commissioner for Human Rights-- and a number of NGOs. The Committee resolution following its first session was adopted by the UN General Assembly. The Committee will hold its second session in June 2003 to continue its consideration of proposals. This second session is likely to be a crucial one in helping the Committee to decide whether or nor to recommend to the General Assembly that a Convention should be elaborated.
There are a number of steps which governments, UN agencies, NGOs and other interested parties can take to ensure that the important opportunity provided by the upcoming meeting of the Ad Hoc Committee is used to the full.
The UN Secretary General has been requested to seek the views of States, observers, relevant bodies and organisations of the UN system and others on proposals for a Convention, including questions relating to its nature and structure, elements to be considered including the work done in the field of social development, human rights and non-discrimination, as well as follow-up and monitoring issues and the complementarity between a new Convention and existing instruments. The Secretary General has been requested to submit to the Ad Hoc Committee at its second session a comprehensive report, comprising views submitted, to be issued at least six weeks before the commencement of the second session. This opportunity to submit views on the Convention to the Secretary General, through any of the bodies mentioned, is open to all, but it requires immediate action because of the deadline mentioned.
States have been encouraged to hold meetings to contribute to the work of the Ad Hoc Committee, in cooperation with non-governmental organisations and other bodies.
In addition to the opportunity referred to in Step 1, the Ad Hoc Committee has invited NGOs, national disability and human rights institutions, independent experts and others to submit directly to the Ad Hoc Committee suggestions and possible elements to be considered in proposals for a Convention.
States have also been encouraged to involve persons with disabilities, representatives of disability organisations and experts in the process contributing to the work of the Committee, and to include persons with disabilities and/or other experts in the field in their delegations to the meetings of the Ad Hoc Committee.
The Ad Hoc Committee is looking for suggestions and proposals regarding the nature and structure of a convention, what should be included in relation to follow-up and monitoring, and other possible elements to be included. This may seem to imply that a decision to elaborate a convention has already been taken, and that submissions should deal only with the possible content of the convention. I would like to emphasise that it has not yet been decided to establish a Convention. There are many States that have yet to be convinced that there should be a Convention. Every submission should, in my view, make the strongest possible case for a convention, in addition to offering suggestions on aspects of the Convention.
In a paper prepared for the Osaka Forum (in Japan) last October, the Special Rapporteur on Disability of the UN Commission for Social Development said that, in relation to a new Convention, 'We are now at a crossroad. We must make up our minds if we want a convention based on international human rights norms and standards, or if we prefer a more general convention on development of measures (such as rehabilitation, assistive devices or building codes for accessibility) to improve the living conditions of persons with disabilities.' In June 2002, a draft text of a convention was presented by the Mexican Government at a meeting of international experts. That text was generally agreed to have a social development approach, and not a human rights approach. Both approaches have merit. But we should stop looking at them as alternatives, as though they are opposite routes at a crossroad. The proposed convention need not be limited to defining the rights of persons with disabilities. It may also set down government obligations for ensuring those rights. It may include substantive articles as well as application provisions.
Before considering what specific articles or provisions the Convention should contain, it is important, in my view, to think about the general principles which should inform or guide the drafting of a new treaty. I suggest the following:
The proposed Convention must be approached from a human rights perspective. It should be informed by the overarching principle that all persons with disabilities, without exception, are entitled to the full benefit and enjoyment of all fundamental human rights and freedoms on the basis of equality and without discrimination.
All international human rights instruments protect the rights of persons with disabilities through the principles of equality and non-discrimination. The adoption of international standards dealing specifically with the rights of persons with disabilities should be seen as giving more detailed content to internationally agreed general rights and freedoms.
The Convention must apply to all categories of disabled persons.
Special attention should be paid to the situation of people with disabilities facing multiple discrimination including, in particular, women with disabilities and poor disabled persons in developing countries.
Special attention should be paid to the situation of persons with disabilities in rural and remote areas.
The provisions of the Convention should be regarded as minima, which States may improve on in national law, policy and practice.
The Convention should address itself primarily to governments, with whom the main responsibility rests, while requiring States to seek the cooperation of private bodies, employers' and workers' organisations, and organisations of and for persons with disabilities.
The Convention should recognize that equality of opportunity exists only when any relevant restrictions or limitations caused directly or indirectly by a disability have been compensated for by appropriate modifications, adjustments or assistance. Denial of any such reasonable accommodation constitutes disability-based discrimination. The Convention should require governments not merely to abstain from and prevent measures which might discriminate against persons with disabilities, but also to take affirmative action to reduce or remove barriers to full participation and to give preferential treatment, where necessary, in order to achieve equality of opportunity and treatment. Such affirmative action measures should not be regarded as discriminating against other persons.
As public services become generally more privatised, private employers and providers of goods and services, and other non-public bodies should increasingly become subject to both non-discrimination and equality norms in relation to persons with disabilities.
Rights can only be properly exercised and protected if people are aware of their existence and are in a position to access them. In other words, rights must be visible and accessible, and there should be access to justice through easy-to-use dispute prevention and settlement systems and to legal aid.
The Convention should recognize the importance of having an institutional framework to deal with the rights of persons with disabilities, appropriate to national conditions.
The importance of international cooperation in the promotion of development and, hence, in the effective implementation of the Convention should be strongly reflected, and governments in particular urged to adopt special measures to help achieve that goal.
The elaboration process should be open and transparent. It should provide for meaningful participation by all interested parties, in particular persons with disabilities and their representative organizations.
The Convention should provide for effective monitoring and reporting, as well as enforcement remedies at national and international levels.
Some Possible Counter Arguments
'There are already sufficient treaties'
See 'So why do we need a Convention?' above.
'The cost of complying with a human rights Convention for persons with disabilities would be too great'
As the Special Rapporteur said in Osaka, such a comment is a good indicator of how big the gap is in living conditions between persons with disabilities and other citizens. He also pointed out that ending discrimination in fundamental areas like the right to vote, equal property rights, the right to marry, and equality before courts of law has more to do with attitudes than money.
Resources can, however, be a significant issue when it comes to rights such as education and housing, particularly for developing countries.
The resources issue has been raised in the past in respect of other treaties, and has been addressed by the UN Committee on Economic, Social and Cultural Rights in relation to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The following extract from the Quinn/Degener report for the Office of the High Commissioner gives a useful summary of the position (the emphasis is mine):
'The general legal obligations of States parties to the ICESCR are spelled out in article 2, paragraph 1, which requires States parties to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
According to the ICESCR Committee, the measures a State has to take to meet its obligations under each Covenant right may be divided into three levels or types: obligations to respect, to protect and to fulfil. For example, the obligation to respect the right to education requires States to refrain from adopting any measures that would hinder or prevent the enjoyment of education. The obligation to protect the right to education requires them to ensure that no other actor interferes with the enjoyment of education. Lastly, the obligation to fulfil, the extent of which is subject to the wording of each right, requires States to fulfil or provide for the realisation of the right to education.
While the obligation to realise the full enjoyment of the Covenant rights is progressive and conditioned by available resources, the obligation to guarantee that each right is enjoyed by everyone without discrimination and to take steps towards the realisation of rights is immediate.
General Comment No. 3 states that such steps must be 'deliberate, concrete and targeted' and that they must be taken within 'a reasonably short time' after the Covenant's entry into force for a particular State. States are required to 'move as expeditiously and effectively as possible' towards the full realisation of each right under the Covenant. The legality of any retrogressive measure must be justified by reference to the realisation of the totality of rights provided for in the Covenant.
According to the Committee, even though the obligations imposed by the ICESCR are largely obligations of conduct (i.e. to take steps), each State party has 'a minimum core obligation' to satisfy the 'minimum essential levels of each of the rights' under the Covenant. If a State wishes to attribute its failure to discharge this obligation to a lack of resources, 'it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.'
General Comment No. 3 notes the importance of international cooperation and assistance for the realisation of the rights in the Covenant and states that the phrase 'available resources' includes those available through international cooperation and assistance. It also underlines that even in times of severe resources constraint ...the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.
With regard to the types of steps that States parties must take, the Committee emphasises that while the adoption of legislative measures is often indispensable for the realisation of the Covenant rights, States' obligations are not exhausted until all appropriate measures have been taken to ensure the realisation of a right. Such measures include, inter alia, administrative, financial, educational and social measures, as well as the provision of effective remedies for alleged violations of ICESCR rights.
Even when 'available resources' are demonstrably inadequate, States parties must still strive to ensure the widest possible enjoyment of the relevant rights under the circumstances. If a State claims that it is unable to meet even its minimum obligations because of a lack of resources, it must at least be able to demonstrate that every effort has been made to use all resources that are at its disposal in an effort to satisfy, as a matter of priority, these minimum obligations.'
In other words, States will be able to move towards progressive realisation of the new Convention. Within the resources they have, they can gradually move to fulfil their treaty obligations. As South African Minister Essop Pahad said at the Osaka Forum: 'We should not allow those countries that are slow to support a convention to use the issue of resources to convince the less developed countries not to support it.'
'Yes, but we are not ready yet.'
There is a long lead-in time to any convention. Some human rights treaties have taken up to 18 years to be negotiated. It will take some years to agree the terms of a new convention. It will take more years for it to be ratified by a sufficient number of States before it can come into force. And it will take even more years before the new standards become incorporated in national laws, policies and practices.
'It would be quicker and easier to agree a non-binding instrument, such as a Declaration, or to update the Standard Rules.'
Yes, it would certainly be quicker and easier. But it would not be sufficient. Any attempts to suggest non-binding compromises should be firmly resisted.
The Standard Rules have been useful and will continue to play an important role, particularly during the time it will take to elaborate a new Convention and bring it into force. The Rules should be updated as a separate exercise, and the shortcomings in the Rules concerning the gender dimension, persons with developmental and psychiatric disabilities, housing, etc should be corrected.
'People with disabilities have waited long enough. The process of elaborating a Convention should be as short as possible.'
We are at an exciting moment in history. We are on the threshold of a legally binding international treaty on the rights of persons with disabilities. There is still much work to be done to ensure that a Convention of which we can all be proud will result. Previous attempts failed because of lack of support. This time we must make sure that history will not repeat itself.
It is more important to get a good Convention than a quick Convention. Time and opportunity must be allowed to provide for the meaningful participation of all concerned parties, particularly persons with disabilities and their representative organisations.