Convention on the Rights of Persons with Disabilities: (potential) international law impact

(Thank you to IntLawGrrls for the opportunity to contribute this guest post on the Convention on the Rights of Persons with Disabilities)

Having followed closely the negotiations on the disability convention as a member of the United Nations' disability programme team between 2003 and 2006, I was struck that this convention was rich and carried much potential for human rights and international law more generally. In this guest post I share some of my findings, based on my article “La convention relative aux droits des personnes handicapées : quel impact sur le droit international ?”, published recently in the Revue Générale de Droit International Public.
The UN General Assembly adopted the Convention on the Rights of Persons with Disabilities in December 2006, after only four years of negotiations. An ambitious treaty, it aims to ensure human rights by persons with disabilities. As stated in Article 1:

The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

The Convention was enthusiastically welcomed by the international disability community, which considers itself as the largest minority in the world.

In addition to its explicit purpose, the Convention is at the heart of developments that concern international law more widely:
► First, the participation of civil society in the negotiations will certainly contribute to the development of the international legal capacity of civil society actors. The number of nongovernmental organizations that participated in the negotiations and the way their participation was facilitated and made official by General Assembly resolutions was unprecedented. It is fair to say that the major part of the text comes from NGOs.
► Second, the text of the convention and the process that led to it will no doubt result in a renewed interest in the right to development, and even international development law. Indeed, the convention was considered by many as a “development convention” or at least a “hybrid” convention, blending development, human rights and non-discrimination. Notably, it is the first human rights convention that includes an article on international cooperation, Article 32.
► Third, the convention further reinforces the fading of artificial categories of human rights, especially the dichotomy between civil and political rights, on the one hand, and economic, social and cultural rights, on the other. The Convention on the Rights of Persons with Disabilities focuses on detailed implementation measures, which prove that all rights require positive measures from States. Moreover, the Disability Rights Optional Protocol supports the justiciability of all categories of rights, and this most likely helped to clear the deadlock in the negotiations for an Optional Protocol for the Covenant on Economic, Social and Cultural Rights. There is no doubt that the disappearance of categories of rights both will have positive impacts on equality and will empower weaker segments of society.

So far 76 States have ratified the Convention, and 48 have ratified its Optional Protocol. (credit for map below showing Convention parties in dark green, nonparty signatories in light green, and nonmembers in grey) It is with much eagerness that we await the ratification of the Convention by Canada and the United States, both now signatories, and for State practice to reveal the extent to which the potential of the Convention will actually be developed.

On December 3

On this day in ...

... 2008 (today), is marked the International Day of Persons with Disabilities. It's the 17th annual commemoration of this U.N.-sponsored event. The 2008 theme is "Dignity and justice for all of us" -- an apt title given that, as we've posted, a week from today will be the 60th anniversary of the Universal Declaration of Human Rights, and that this spring the Convention on the Rights of Persons with Disabilities and its Optional Protocol were opened for signature, as we've also posted, and promptly entered into force. As IntLawGrrls readers know, the rights of disabled persons is the subject of an ongoing series. (credit for 2008 U.N.-issued stamps)

... 1854, in Australia, "[g]overnment troops and police stormed and ransacked" a "makeshift wooden barricade enclosing about an acre of the goldfields" at Ballarat. Inside, defending what was called the Eureka Stockade with "firearms and forged pikes," were about 500 miners, known as diggers, who opposed a government order that they obtain miners' licenses. When the battled ended in less than half an hour, 22 diggers and 5 government troops lay dead. Yet the incident gave life to a national identity and to calls for democracy in Australia, and the stockade flag (left) "has been used as a symbol of protest by organisations and individuals at both ends of the political spectrum."

Human Rights For All

(Part I of a series on disability human rights)

The entry into force on 3 May 2008 of the Convention on the Rights of Persons with Disabilities and its Optional Protocol is a landmark event for the estimated 650 million persons with disabilities (PWD) around the world. Described by UN Enable as signalling a “paradigm shift” in approaches to PWD, the new treaty is also a promising development in the promotion of human rights culture for all.

“We the Peoples of the United Nations”
International human rights instruments are sometimes criticized as top-down rhetorical statements created by diplomatic elites who rarely engage with those most affected. Reflecting a trend toward partnerships among international organizations, states, and civil society, the new disability convention was negotiated and drafted with the significant input of the International Disability Caucus on the Convention (a coalition of disability rights NGOs) as well as governmental representatives.

The process involved the usual political and strategic tensions associated with creating a “universal” instrument. The IDC and the government negotiators had to address the different political, economic, cultural, racial, and gender dynamics among and within states and NGOs. Representatives also contended with the hierarchies and divisions that can exist even among PWD who have different disabilities and different approaches to disability status, accommodations, and even terminology.

Those with intellectual or emotional disabilities are subject to different forms of discrimination than those with physical disabilities. Some who are blind, vision-impaired, deaf, or hearing-impaired may regard themselves as belonging to a different linguistic and social culture in which Braille or American Sign Language is to be considered a language like any other rather than a “special” intervention.

Nevertheless, the disability rights advocates, who used the theme “nothing about us, without us,” developed a collaborative process in which those disability constituencies most directly affected by a specific provision could take the lead in providing input, suggested draft language, and strategy. (See panel discussions on process at an American University Washington College of Law conference in April 2007.)

Among the dozens of NGOs and individual advocates involved was Professor Gerard Quinn, Director of the Disability Law & Policy Research Centre, Faculty of Law, National University of Ireland, Galway. Quinn (photo left), and Theresia Degener, Professor of Law, Administration and Organization, Protestant University of Applied Sciences in Bochum, Germany (photo below left) co-authored a ground-breaking UN report in 2002 (Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability).

The report helped set the stage for the convention by outlining the relevance and applicability of international human rights standards to PWD and the need for instruments that more directly addressed their needs.

PWD were among the NGO representatives and state representatives who participated. Ironically, their presence often revealed the degree to which even a venue like the UN headquarters building in New York was not fully accessible—a lesson even the most well-intentioned actors can fail to learn unless they engage directly with those living with disabilities.

A Multidimensional Approach
The treaty emphasizes that all of the previously recognized fundamental human rights in the core human rights treaties fully apply to persons with disabilities. Like race, ethnicity, gender, nationality, religion, sexual orientation, class, and migration status, disability is one more aspect of the complex and shifting dimensions that help form our individual identities, but which does not separate us from our common humanity. It was therefore necessary first to make persons with disabilities “visible” to the international community as human beings with the same inherent rights that are recognized for others.

The Convention (CRPWD) sets forth 8 guiding principles:

► Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons
► Non-discrimination
► Full and effective participation and inclusion in society
► Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
► Equality of opportunity
► Accessibility
► Equality between men and women
► Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

As the guidelines indicate, advocates moved beyond the universals to argue successfully for provisions that focused on the specific human rights issues that affect persons with disabilities, such as accessibility and personal autonomy. The treaty also recognizes the rights and needs linked to specific disability and intersectional status, such as the rights of children with disabilities and the rights of women with disabilities. As in all core human rights treaties, the CRPWD prohibits discrimination, including on the basis of race or ethnicity.

Rapid Recognition

The CRPWD, negotiated between 2002 and 2006, was the most quickly adopted of the major human rights treaties. As a member of a Jamaican-American family, I was also proud to see that Jamaica was the first country to ratify the new treaty on the first day it was opened for signature (see Diane Marie Amann’s post on the treaty’s adoption here).

The CRPWD entered into force only a little more than a year after being opened for signature. According to the UN Enable website,

the main treaty has now been signed by 129 states and ratified by 28. The Optional Protocol, which provides for individual or group complaints, has been signed by 71 countries and ratified by 17. One can only hope that continued activism will lead to equally rapid efforts to implement the treaty’s provisions.

No surprise, the United States, relying on domestic law (such as the Americans with Disabilities Act) refused to sign or ratify the treaty. Nevertheless, U.S. State Department officials cooperated in and contributed to some aspects of the drafting process. (For a Department of State list of web resources click here.)
As Amann reports, the recent favorable federal court decision on accessible currency in American Council of the Blind v. Paulson, may help expand the domestic civil rights of PWD in the U.S.

(Forthcoming in Part II of this series: Disability Human Rights: Only a “First World” Concern?)