HIV, Disability and the Convention on the Rights of Persons with Disabilities (CRPD)

Hiv, disability and the Crpd | JULY2012

HIV, Disability and the CRPD: A Focus on Canada

CONTEXT

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) entered into force in May 2008. As of May 2012, the Convention had 153 signatories and 112 ratifications.Canada ratified the CRPD on March 10, 2010.

The Convention is a human rights instrument with an explicit social development dimension.

The CRPD:

• adopts a broad categorization of people with disabilities and reaffirms that all people with all types of disabilities must enjoy all human rights and fundamental freedoms;
• clarifies and qualifies how all categories of rights apply to people with disabilities, and;
• identifies areas where adaptations have to be made for people with disabilities to effectively exercise their rights, where their rights have been violated, and where protection of rights must be reinforced.[1]

The CRPD represents a unique collective effort, bringing together governments and people with disabilities. Over the course of six years, the international community came together to identify barriers experienced by people with disabilities and agreed on specific measures to be progressivelyimplementedto eliminate these barriers and give effect to widely accepted human rights.[2]

Canadians with disabilities were among those who participated in the development of this important human rights tool.

HUMAN RIGHTS AS A UNIFYING ADVOCACY TOOL

The CRPD is a legally binding treaty (i.e. with legal obligations) that compels signatories to implement strategies to promote and protect the rights as outlined in the CRPD. Identified rights include, but are not limited to:

-Education

-Personal safety

-Life, liberty and security of person

-Equality before the law without discrimination

-Work/Employment

-Health

-Freedom from cruelty, exploitation, violence, abuse and torture

-Housing

Some key areas identified in the CRPD include:

•adopting legislation and administrative measures to promote the human rights of people with disabilities and abolish discrimination;

•ensuring that the public sector, private sector and individuals respect the rights of people with disabilities;

•promoting training on the rights and responsibilities as outlined in the CRPD to professionals and staff who work with people with disabilities

•consulting with and involvingpeople with disabilities in developing and implementing legislation and policies as well as in decision-making processes

The Convention on the Rights of Persons with Disabilities states that:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

(Article 1)

In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

(Article 4)

States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

(Article 5)

To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.

(Article 9)

States Parties shall: (a) Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes.

(Article 25)

The CRPD is a major advance for people with disabilities and their advocates. In addition to bringing attention to disability issues, its focus on a rights-based approach to these concerns is crucial. In many ways, this new approach requires a new way of understanding the exercise of key human rights.

The CRPD clearly articulates what existing human rights mean within a disability context and establishes reporting and monitoring procedures for State Parties.[3] The CRPD reaffirms that people with disabilities throughout the world enjoy all human rights and fundamental freedoms on an equal basis with others.

In particular, the CRPD's purpose 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".[4]

The CRPD also has an Optional Protocol (OP) which has been signed by 90 countries and provides a complaint mechanism whereby a group or individual can make a claim that a State Party has violated the provisions of the CRPD. To date, Canada has not signed the Optional Protocol.

HIV AND DISABILITY AND THE CRPD

The United Nations Convention on the Rights of Persons with Disabilities is a major advance for people with disabilities and their advocates. This development has attracted the attention of HIV communities and will likely serve as a vehicle for further integrating the two movements.[5]

The Convention does not explicitly refer toHIV in the definition of disability used. However, States are required to recognize that where people living with HIV (asymptomatic or symptomatic) have impairments which, in interaction with the environment, result in stigma, discrimination or other barriers to their participation, they too fall under the protection of the Convention.[6]

The Convention is the first legally binding instrument with comprehensive protection of the rights of people with disabilities and can act as a catalyst for education, policy and program development in the area of HIV and disability.

Similarly, the strong equality and non-discrimination provisions in the Convention emphasize the need to ensure inclusion of, and access for people with disabilities toHIV-related programming and planning.

With the ratificationof the Convention, some countries have committed to providing services that are accessible to, and inclusive of people with disabilities, including services for the prevention, treatment, care and support of HIV.[7]

The need to provide accessible information on how to use the Convention to further the rights of both people living with HIV and other disabilities as well as those working/caring for them offers an immediate opportunity. It allows us to contemplate further what tools the Convention itself as well as other legal mechanisms may afford for advancing the cause of people living with HIV and other disabilities and facing human rights infringements.[8]

CANADA AND THE CRPD

Both during the elaboration and ratification stages, the Government of Canada worked closely with provinces and territories and with the disability community. This approach enabled Canada to make a strong contribution, relying on Canadian values as enshrined in Canadian constitutional and human rights law.

Canada was one of the most progressive and engaged delegations involved in developing and negotiating the CRPD. In many regards, the world is looking to Canada to continue to lead the way through progressive and meaningful efforts on implementation, monitoring and reporting.[9]

WHAT CAN BE DONE: Actions for the Canadian Government

• Establish a High-level Federal Focal Point and Coordination Mechanism.[10]
• Establish a Minister Responsible for the Status of Persons with Disabilities with key responsibility in Cabinet to promote the status of persons with disabilities and advance the CRPD.[11]
• Adopt a robust participation strategy to include and actively involve persons with disabilities, including people living with HIV, in all aspects of implementing the Convention.[12]
• Ratify and incorporate national law instruments that protect and promote the human rights of people with disabilities, including the Convention on the Rights of Persons with Disabilities.
• Incorporate the human rights and needs of people with disabilities into National HIV Strategic Plans and related policies.
• Provide people with disabilities with the same range and quality of affordable HIV, sexual and reproductive health services as the rest of the population.
• Set up an independent monitoring mechanism to promote, protect and monitor implementation of the CRPD. The Canadian Human Rights Commission, with the appropriate mandate and resources, should be designated as the monitoring mechanism.[13]
• Engage the disability community in the process of preparing the Canadian comprehensive report on the CRPD.[14]
• Prohibit all forms of discrimination against people with disabilities which may hinder access to income supports, health and life insurance, health services such as sexual or reproductive health education, measures for the prevention of mother to child transmission, and post exposure prophylaxis for victims of sexual assault.
• Include HIV as prohibited grounds for discrimination in national legislation.
• Integrate HIV education into training for rehabilitation professionals.
• Establish age, gender, culture and language-appropriate HIV prevention programmes.
• Provide comprehensive HIV testing, treatment, care and support services to people with disabilities.
• Provide equal opportunity to people with disabilities to train and engage in HIV counselling and care provision.

For more information on HIV, Disability and the CRPD:

• Canadian Working Group on HIV and Rehabilitation,
• UN enable,
• Health Canada
• Human Rights Watch: Disability Rights,
• World Bank,
• HIV, disability and discrimination: making the links in international and domestic human rights law:

Contact information:

Wendy Porch

Disability Specialist and Education Coordinator

Canadian Working Group on HIV and Rehabilitation (CWGHR)

Tel: 416.513.0440 Ext. 240

/HIVandRehab

Funded by:

[1]United Nations Enable,

bilities/default.asp?id=150

[2]UN Convention on the Rights of Persons with Disabilities: Making Domestic Implementation Real and Meaningful CCD – CACL Working Paper:

[3]Ibid

[4]United Nations Enable,

[5]The fields of HIV and disability: past, present and future. Jill Hanass-Hancock and Stephanie A Nixon:

[6]WHO, UNAIDS, UN Human Rights, Disability and HIV Policy Brief ,

[7]Framework for the Inclusion of Disability in the National Strategic Plans on HIV and AIDS, 2011

[8]ibid

[9]UN Convention on the Rights of Persons with Disabilities: Making Domestic Implementation Real and Meaningful: CCD-CACL Working Paper February 2011

[10]Ibid

[11]Ibid

[12]Ibid

[13]Ibid

[14]Ibid