Discussion Paper: The Case for, and Content of, a UN Convention on the Rights of People with Disabilities
 

1. Background to this Discussion Paper

RI's Executive Committee meeting in March 2000 agreed that RI produce a paper developing the case for a Convention, for use in a discussion session at the upcoming 19th World Congress in Rio de Janeiro. Some initial ideas as to content of a Convention should be included.

Thanks are due to RI President Dr Arthur O'Reilly, who provided much of the content for the draft, and to other contributors for their suggestions.

2. The Case for a Convention

2.1 The General Assembly of Rehabilitation International, meeting in London in September 1999, agreed that efforts by the international community to address the rights of people with disabilities have been inadequate, and called on Member States to support the promulgation of a UN Convention.¹ The call for a Convention was identified by the Assembly as having the highest priority amongst all the issues addressed in RI's "Charter for the Third Millennium".

Reviewing Reasons for Support
Points from discussion by RI members on the reasons work towards a Convention is appropriate at this time, even though efforts to establish one in the 1980's were not successful, included:
* There is wider appreciation of the presence of people with disabilities in society, and of the importance and above all the inclusiveness of rights.
* The supposed inclusiveness of the general human rights instruments in reality has not worked for people with disabilities in many parts of the world. When people are seen by their society as definable in terms of their disability then they are not seen as "Human", "Child", "Woman", "Citizen", "Voter" etc and society does not include people with disabilities in its consideration of the existing conventions, and nor do countries include disability as a factor in their reporting to the UN on existing conventions.
* The multiplicity of lesser calls for people to be given their rights, which have come from the host of conferences over the years, do not have the power or overarching significance that a UN Convention would have.
* The UN Standard Rules have been a vehicle for achieving much progress, but they are also the target of criticism on account of gaps and the fact that they lack the power of a rights-based Convention.
* The call for a Convention needs to be recognised as a means to a social end (e.g. useful as a vehicle towards achieving goals of the World Summit on Social Development).
* Politicians, diplomats and state governments at the UN must realise that the reason we want a Convention has to do with the economic and social participation of some of the world's poorest and most marginalised people; this is not just a "me-too" bandwagon following CEDAW (Convention on Ending Discrimination Against Women) and CRC (Convention on the Rights of the Child).

2.2 The main International disability NGOs meeting in Beijing, China, 10-12 March 2000, acknowledged the progress made during the concluding two decades of the twentieth century in promoting awareness of issues faced by people with disabilities, but concluded that neither the international and regional instruments to date, nor the International Bill of Rights, have sufficed to create a significant impact on improving the lives of people with disabilities.   The NGO Summit Beijing Declaration² calls for an international convention that has binding force in protecting and promoting the rights of people with disabilities.   Such an instrument would reinforce the moral authority of the Standard Rules.

Shortcomings of UN Standard Rules
2.3 The Special Rapporteur on monitoring the implementation of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, in his recent final report to the Commission for Social Development at its thirty-eighth session (8-17 February 2000), noted that while the Standard Rules document has many merits, it also has many serious shortcomings:

'Some dimensions of disability policy have not been treated sufficiently.   This is true concerning children with disabilities, the gender dimension and certain groups, mainly persons with developmental and psychiatric disabilities.  It has been pointed out that the Rules do not include a strategy for improving living conditions of disabled people in regions with extreme poverty. Disabled persons in refugee or emergency situations are other areas, which have not been dealt with.

As I pointed out in my former report to the Commission for Social Development (A/52/56) the whole area of housing has not been included.   Among other things this means that there is no guidance concerning the handling of institutions, where still a great number of persons with disabilities spend their whole lives under miserable circumstances.  The important events in the human rights area during the 1990's should perhaps also be more clearly reflected.³

2.4 Elsewhere in his report, the Special Rapporteur reminded the Commission that the Standard Rules are 'a set of guidelines' and have no binding force.  He also outlined inadequacies in the monitoring system and pointed out that 'probably the most important progress for the disability cause in recent years is the recognition that disability and disability-related problems is a concern for the UN human rights monitoring system ' ⁴

UN Expert Meeting on Norms and Standards
2.5 The UN Consultative Expert Group Meeting on International Norms and Standards relating to Disability, discussing the pros and cons of a new international instrument, stated:

'It was recognized that there were advantages and disadvantages in formulating a new international instrument specifically addressing the human rights of persons with disabilities.   Prior efforts by the international community to address the rights of persons with disabilities have been inadequate or too limiting of rights.   Some norms have had the effect of limiting the State's responsibility to integration 'within the limits of the State's capacity'; while others limit the responsibility of the State based on the 'capacity' of individuals to exercise their rights.

Concern was expressed that a new instrument might have the unintended consequence of marginalising persons with disabilities, and that discrimination could be perpetuated by attention to the rights of persons with disabilities in a special instrument.   The severe resource constraints, which already limited the efficiency and effectiveness of the United Nations human rights mechanisms, also needed to be borne in mind.

On the other hand, many of the existing norms, principles, declarations, standards, and guidelines dealing with disability issues are dispersed through various instruments; some are not sufficiently specific, legally binding; others are not overall, they do not ensure widespread and effective legally operative freedom from discrimination on the basis of disability.   A new convention would afford the opportunity to revise or discard existing standards or statements of rights which were inconsistent with current thinking about the human rights of persons with disabilities or which were unsatisfactory in other respects.   It was observed that group-specific instruments, for example, those guaranteeing the rights of children, women, minorities, and indigenous peoples, have focused attention on issues that would have remained much less visible under the general human rights instruments.

It was further observed that the diversity and dispersal of existing norms, principles and standards does not serve the needs of uniformity or universalization of rights or of a holistic approach to effective implementation of those norms and other standards. A comprehensive international instrument may also be a convenient format for promoting common standards, guiding domestic policy-makers through use of such common standards, legislators and others to make these standards legally obligatory and practically effective. In turn, the use of common international standards renders reporting and monitoring easier and more rational, providing minimum standards that will be applied in all countries while not precluding the adoption of higher national standards in some States.

It was noted that in some countries there is a need for a treaty because other laws do no provide such minimum protections while persons with disabilities in such countries are in need of greater legal protection. In such jurisdictions, a treaty would impact positively on the development of domestic legislation for the promotion and protection of the rights of the person with disabilities.⁵

The Meeting recommended that the Division for Social Policy and Development of the United Nations examine the desirability of a new international instrument. ⁶
 

2.6 It is pertinent that an Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities has already been developed, although there has been some criticism that it does not go as far as existing Conventions, and therefore risks reducing the levels of participation and rights which governments in the region may set as their goal. This illustrates the danger of dependence on regional instruments when there is no over-arching global standard. Valuable as such documents are, there are in the same way inconsistencies among the African Charter on Human and People's Rights, the Revised European Charter, and the recent Treaty of Europe.

Earlier discussions and current situation
2.7 The desirability of an international convention to protect the rights of people with disabilities was discussed at the forty-second session of the General Assembly in October 1987 but there was no agreement to proceed.   The Special Rapporteur in referring to this in his final report to the Commission for Social Development, comments:

'The international movement of disabled people never fully accepted the reasons for this (lack of agreement).   Many find it difficult to see the principle difference between a special convention in this area as compared to others, where there already is one.   As there has been significant development of national policies and laws in the world during these ten years, it is possible that a larger number of governments would now accept the elaboration of a convention'.⁷

As an aside, the national policies and laws referred to by the Rapporteur are of course very diverse, according to countries' legal structures, the level of analysis of disability issues available to government, the relative success of disability advocates, and of course history and culture. Nevertheless a classification is possible, such as:

(i) general or constitutional anti-discrimination clauses mentioning "disability" as one of the target characteristics, or

(ii) substantial legislation with concrete mechanisms which allow people with disabilities to seek redress when they are discriminated against. This group could be sub-divided into

 (a)  general anti-discrimination law where disability is one among other  specified categories - gender, race, nationality, religion, sexual orientation etc, and
 (b) specific law targeting discrimination against people with disabilities.

'Despite the many actions undertaken throughout the Decade and the valuable results that have been achieved for disabled persons in many respects, it must be said that, at the end of this period, persons with disabilities are going to find themselves at a legal disadvantage in relation to other vulnerable groups such as refugees, women, migrant workers, etc.   The latter have the protection of a single bodyof binding norms, such as the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, etc.  In addition, these conventions have established specific, protection mechanisms.

However, there is no specific body in charge of monitoring respect for the human rights of disabled persons and acting, whether confidentially or publicly, when particular violations occur. It can be said that persons with disabilities are equally as protected as others by general norms, international covenants, regional conventions, etc. But although this is true, it is also true that unlike the other vulnerable groups, they do not have an international control body to provide them with particular and specific protection'.⁹

2.9 The desirability of an international convention to protect the rights of people with disabilities was also discussed at the April 2000 session of the UN Commission on Human Rights, where the Special Rapporteur conveyed remarks similar to those in his February 2000 final report to the Commission for Social Development. (see 7 above). In the final version of its recommendation to the Economic and Social Council, the Commission on Human Rights encourages a range of communications to reinforce the application of existing rights instruments to the benefit of people with disabilities, but then:

'30. Invites the High Commissioner for Human Rights, in cooperation with the Special Rapporteur on Disability, to examine measures to strengthen the protection and monitoring of the human rights of persons with disabilities and solicit input and proposals from interested parties, including particularly the panel of experts.'

Views of International Disability Groups
It is RI's view that the existing instruments, as they are interpreted, actioned and monitored by the various parties referred to, are not sufficiently specific on issues of disability to ensure adequate protection for people with disability. RI welcomes the opportunity provided by this cooperative examination and input, but notes that  since RI's policy calls for a Convention on Rights of people with Disability, its response will focus there also.

2.10 The international disability movement is strongly of the view that, notwithstanding existing international instruments, including the UN Standard Rules, people with disabilities throughout the world continue to be marginalised, excluded from the mainstream of society, and discriminated against: their fundamental human rights continue to be violated and lack adequate protection.

The two UN Special Rapporteurs with particular responsibility in this area have, in their respective reports, recognised the inadequacies of the present instruments in affording the necessary protection. The report of the UN Expert Group supports this view.

In his reference to the 1987 General Assembly discussion concerning the elaboration of convention on the rights of people with disabilities, Despouy recalls that 'the discussions... concluded with the postponement of that initiative: '¹⁰

In the interests of equality and human dignity for the 600 million people with disabilities throughout the world, that initiative should be postponed no longer. A recommendation that the desirability of an international convention be examined would be seen by people with disabilities as attaching real meaning to the words of the Secretary General at the 55th session:

'The promotion and defence of human rights is at the heart of our (UN) work and every article of our Charter'.

Considering "Rights of the Child"
3. Possible Characteristics and Content of a UN Convention on the Rights of People With Disabilities

3.1 Given the diversity of expectations and aspirations from people with disabilities and their advocates on one hand, and the economic, social and cultural diversity of UN member states on the other, it is unlikely that a highly detailed Convention could be arrived at, let alone ratified by sufficient numbers of UN members to gain a momentum of global acceptance and moral force.

Therefore the convention may need to be fairly general, but it may also need to be much more than just a statement of principles. The following example shows clearly the importance of arriving at a document which is both effective in practice and able to be effected in law:

3.2 In 1959 the UN adopted the Declaration of the Rights of the Child.  This was a statement of moral principles.  It had no legal force and imposed no legal obligations on Member States.  In contrast, the UN Convention on the Rights of the Child adopted in 1989 is a legally-binding instrument.  Governments which ratify it are obliged to

(a) amend their national legislation to accommodate the provisions of the Convention
(b) commit themselves to regular reporting on the gradual implementation of the Convention in their country.

On children with a disability, the 1959 Declaration states:

'The child who is physically, mentally or socially handicapped shall be given the special treatment, education and care required by his particular condition'.

In contrast, the 1989 Convention on the Rights of the Child states:

'1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance, and facilitate the child's active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.

4. States Parties shall promote in the spirit of international co-operation the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas.  In this regard, particular account shall be taken of the needs of developing countries.'

Possible Characteristics
3.3 Bearing this example in mind, some possible characteristics of the proposed Convention are that it be:

* strongly stated, conveying that these are basic expectations of a society and government, and not just "take it or leave it" recommendations;
* at least as explicit as the Convention on the Rights of the Child;
* un-ambiguous, minimising the options for interpretation in ways that reduce the rights expressed;
* sufficiently general to be widely accepted by UN member states with diverse political systems;
* inclusive in its definition of disability, including impairment, chronic illness, "handicap" etc so as to prevent avoidance by classification or terminology. (e.g. preventing statements like; "you may have an impairment but you are not disabled, so you are not protected")
* broad in its definition of what constitutes "discrimination"
* inclusive of mechanisms which allow people with disabilities to seek redress when they have been discriminated against by their own government, recognising that it is in the shortcomings of government policy that much of the discrimination occurs that creates lifelong disadvantage (e.g. lack of access to schools, lack of inclusion in education at whatever level is available to peers)
* inclusive of reference to the Standard Rules as a guide to practical implementation

3.4 As observed by the UN Special Rapporteur in his February 2000 report to the Commission for Social Development, the Standard Rules as they currently exist have some serious shortcomings. However if they were augmented in the ways envisaged they could provide the detail necessary to back up a Convention with specific guidance for states which do not already have in place a system of legislation and programmes which coherently address all the aspects of the disability issue.

Questions to be considered
4. Questions to be considered in Discussion

Questions that arise from the possibilities listed are:

4.1 Should the Convention be a brief and general statement of principles, or should it be more specific, along the lines of the Convention on the Rights of the Child?

4.2 What should be the relationship between the Convention and other existing Human Rights instruments? Should the Convention on the Rights of People with Disabilities simply emphasise the applicability of existing conventions to people with disabilities, should it reinterpret those existing rights with a new focus on disability, or should it cover new ground, and if so, what specifically?

4.3 Should the Convention specify a required minimum standard for legislation protecting the rights of people with disabilities in participating countries, bearing in mind that a Convention requires a Monitoring System, that monitoring of existing conventions is weak and inconsistent, and that too high a standard may simply mean countries refuse to ratify it.

4.4 Should the Convention include, in addition to normal monitoring by the Commission and reporting by governments, provisions that enable people with disabilities to seek redress through the UN Commission on Human Rights, when they feel they have been discriminated against by their government? If so, how should this be funded, both for the individual and the Agency?

4.5 Should details about rights to participate in various aspects of life (e.g. education, work, family life, etc) be addressed in detail in the Convention, or would a list increase the risk of leaving something out, especially as society is rapidly changing?
 
 

These questions will be discussed at a Special Seminar to be held as part of RI's 19th World Congress, in Rio de Janeiro, Brazil, 25 - 29 August 2000. For details of the Congress see RI's website at http://www.rehab-international.org/.

Copies of this paper, and print copies of the Congress information which is on RI's website, can be requested from the RI Secretariat:

Rehabilitation International
25 East 21st Street
New York, NY 10010
United States
Tel: (1)(212) 420 1500
Fax: (1)(212) 505 0871

1 Rehabilitation International Charter for the Third Millennium, 9 September 1999, attached as Appendix 1.
2 Beijing Declaration on the Rights of People with Disabilities in the New Century, adopted on 12 March 2000 at the World NGO Summit on Disability (see Appendix 2)
3 para 119
4 para 142
5 op cit, Part 6
6 op cit, Part 7
7 op cit, para 157
8 Human Rights and Disabled Persons, United Nations, New York, 1993
9 op cit, paras 280-281
10 Despouy op cit, para 281

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