Syracuse Journal of International Law and Commerce

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34 Syracuse J. Int'l L. & Com. 323, *

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Spring, 2007

34 Syracuse J. Int'l L. & Com. 323

LENGTH: 4881 words

SYMPOSIUM: THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: ARTICLE: THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

NAME: Don MacKay*

BIO: * Don MacKay was, from 2005 onwards, the Chair of the United Nations Committee that negotiated the Convention. In 2004 he chaired the Working Group that prepared the first United Nations working draft of it. He is the New Zealand Permanent Representative to the United Nations in Geneva, and was previously Permanent Representative in New York (2001-05). He has held a number of positions in the New Zealand Ministry of Foreign Affairs and Trade, including Deputy Secretary responsible for multilateral affairs (1997-2000) and Director of the Legal Division and International Legal Adviser (1995-97).

SUMMARY:

... The adoption of the Convention on the Rights of Persons with Disabilities by the U.N. ... However, as a result of tenacious and persuasive lobbying by non-governmental organizations (NGOs), other disability organizations, and advocacy by governments such as Mexico (followed by other governments such as my own, which came on board early), the tide gradually turned in favor of a new convention. ... Thus, as the United Nations High Commissioner for Human Rights, Louise Arbour told the Ad hoc Committee at its 7th Session on January 27, 2006, when it was moving towards the final phase of its negotiations: There is no doubt that the existing human rights system was meant to promote and protect the rights of persons with disabilities. ... The failure of existing human rights instruments to fully ensure the human rights and fundamental freedoms of persons with disabilities does not mean that States have deliberately avoided their obligations. ... The Convention spans a wide range of real-life issues in considerable detail, including accessibility, personal mobility, health, education, employment, habilitation and rehabilitation, and participation in political life, equality, and non-discrimination. ... Inevitably though, the full implementation of the rights set out in the Convention will be costly, and will create a burden particularly for developing countries.

TEXT:

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The adoption of the Convention on the Rights of Persons with Disabilities by the U.N. General Assembly on December 13, 2006 gave birth to the first new comprehensive human rights treaty in 16 years, and the first of the 21st century. n1 It was the end of a negotiation embarked on by the United Nations in 2001. For the international disability community, it had been a much longer journey.

Disability organizations had long been pressing for a convention dealing specifically with the rights of persons with disabilities. n2 Initially, many governments, even those traditionally in the vanguard of human rights protection, had reservations about the need to negotiate a major new human rights instrument. n3 The resources required for such a negotiation were large, and it was argued that there was no need for a new convention because the existing human rights instruments applied to persons with disabilities in just the same way that they do to everyone else. n4

In theory this argument was correct, but unfortunately practice did not always follow the theory. For example, the Universal Declaration of Human Rights, which is the founding human rights document, says everyone has the right to be free from discrimination. n5 That means everyone, regardless of their status. The Universal Declaration has a list of grounds of non-discrimination that includes race, sex, national or social origin, and religion; but it states at the end of that list, "or other status." n6 Very clearly, that includes disabilities.

[*324] The Universal Declaration was followed a few years later by the International Covenant on Civil and Political Rights n7 and the International Covenant on Economic, Social and Cultural Rights. n8 These are also documents that say what all people have the right to, or what all people have the right to be free from. n9 However, it is very clear that these rights have not been universally applied to all people. Some groups have been less of a priority for governments in the enforcement of their rights over the years. That problem was quickly recognized so that after those two conventions, we had a Convention on the Elimination of All Forms of Discrimination against Women, n10 and an International Convention on the Elimination of all Forms of Racial Discrimination. n11 Very early on, therefore, it was recognized that some groups of people who suffer from discrimination need to have their own specific conventions to spell out in more detail the rights that apply to those groups. Later, the need for group-specific coverage was further recognized by, for example, the adoption of the Convention on the Rights of the Child. n12

Until very recently, persons with disabilities were left out of that process. However, as a result of tenacious and persuasive lobbying by non-governmental organizations (NGOs), other disability organizations, and advocacy by governments such as Mexico (followed by other governments such as my own, which came on board early), the tide gradually turned in favor of a new convention.

The statistics compiled by the United Nations and the Specialized Agencies on the situation of persons with disabilities worldwide left no doubt that specific action needed to be taken. To cite just a few:

. "The World Bank estimates that 20% of the world's poorest people are disabled, and tend to be regarded in their own communities as the most disadvantaged[;]" n13

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. "The mortality rate for children with disabilities may be as high as 80% in countries where under-five mortality as a whole has decreased below 20%, according to the United Kingdom's Department for International Development, which adds that in some cases it seems as if children are being "weeded out'[;]" n14

. "According to UNICEF, 30% of street youths are disabled[;]" n15

. "Persons with disabilities are more likely to be victims of violence or rape, according to a 2004 British study, and less likely to obtain police intervention, legal protection, or preventive care[;]" n16

. "Women and girls with disabilities are particularly vulnerable to abuse. A small 2004 survey in Orissa, India, found that virtually all of the women and girls with disabilities were beaten at home, 25% of women with intellectual disabilities had been raped, and six percent of disabled women had been forcibly sterilized[;]" n17

. "Research indicates that violence against children with disabilities occurs at annual rates at least 1.7 times greater than for their non-disabled peers[;]" n18

. "Ninety percent of children with disabilities in developing counties do not attend school, according to UNESCO[;]" n19

. "The global literacy rate for adults with disabilities is as low as three percent, and one percent for women with disabilities, according to a 1998 UNDP study[;]" n20

. "Unemployment amongst disabled persons is as high as 80% in some countries, according to the ILO[;]" n21

Persons with disabilities have therefore been characterized by the United Nations as "the world's largest minority." n22

In fact, it is estimated that around ten percent of the world's [*326] population, approximately 650 million people, live with a disability. n23 This figure is actually increasing due to certain factors such as population growth and medical advances. n24 Although 80% of persons with disabilities live in developing countries, living with a disability is something that people in developed countries can increasingly expect due to longer life spans. n25 In fact, in countries with life expectancies of over 70 years, individuals spend on average about 8 years, or 11.5 per cent of their life span, living with a disability. n26 Disabilities are also a result of tragic developments, such as armed conflict; it is estimated that for every child killed in warfare, three are injured and permanently disabled. n27

Thus, as the United Nations High Commissioner for Human Rights, Louise Arbour told the Ad hoc Committee at its 7th Session on January 27, 2006, when it was moving towards the final phase of its negotiations:

There is no doubt that the existing human rights system was meant to promote and protect the rights of persons with disabilities. There is also no doubt that the existing standards and mechanisms have in fact, failed to provide adequate protection in the specific case of persons with disabilities. It is clearly time for the United Nations to remedy this shortcoming. n28

World leaders had also recognized that the time had come in their 2005 World Summit Outcome Document, which affirmed the need to finalize a convention on the rights of persons with disabilities. n29 The failure of existing human rights instruments to fully ensure the human rights and fundamental freedoms of persons with disabilities does not mean that States have deliberately avoided their obligations. However, many of the obligations under these instruments are set out in quite a broad and generic way, which can leave grey areas for their practical implementation for particular groups. Often, too, the enjoyment of [*327] those rights and freedoms by persons with disabilities may require some adaptation by States to accommodate the disability in question.

Let me give just a couple of practical examples. Persons who are blind have just the same right to vote as everyone else, but if they are not permitted assistance in the voting booth, from someone they trust, that right is rendered somewhat nugatory. Persons in wheelchairs have just the same freedom of movement as anyone else, but if public buildings are not accessible to them, that right also may be somewhat meaningless. Unfortunately, too, persons with disabilities can find themselves subject to more direct discrimination, and also to negative attitudes and stereotyping. These are among the many issues dealt with in the Convention.

Certainly, those who participated in the negotiations on the Convention were left in no doubt as to why this Convention is needed. The candid contributions of civil society were invaluable in opening our eyes to the realities of the world for persons with disabilities, and in reaffirming the crucial nature of our task.

Once the initial hurdle had been overcome, and there was broad acceptance of the need for a convention, all of the participants, States and civil society worked extraordinarily hard together, to develop a worthy outcome. Their commitment was reflected in what the Secretary-General of the United Nations described on the Convention's adoption, as "the most rapidly negotiated human rights treaty in the history of international law; and the first to emerge from lobbying conducted extensively through the Internet." n30

What, then, does the Convention do? In essence, it elaborates in considerable detail the rights of persons with disabilities under international law and sets out a code of implementation for governments. It is a practically focused convention because it was so closely informed by the experiences of persons with disabilities worldwide, as represented by their organizations in the negotiations. They clearly articulated the challenges, difficulties, and requirements of persons with disabilities in their interaction with society at large, and it is those areas - and they are myriad - on which the Convention focuses. It will be the benchmark for future standards and action.

The participation of civil society was at an unprecedented level for such a negotiation, with over 400 representatives pre-registered at some [*328] of the later meetings. The Expert Working Group, which was tasked by the Ad Hoc Committee in January 2004 with transforming drafts of proposals into a comprehensive draft Convention, was comprised of representatives from government and civil society participating together equally and without distinction. n31 It was that Working Group's product, which so emphatically reflected the real-life experiences of persons with disabilities, which then became the working text of the Ad Hoc Committee, and the basis for the eventual Convention. n32 It truly enshrined the slogan of the international disability movement, "nothing about us without us." n33

This is a lengthy convention, with over 30 substantive articles, many of them quite long, together with other articles that establish monitoring mechanisms at both the national and international levels. n34 For international monitoring, there will be a Committee on the Rights of Persons with Disabilities, to receive and consider periodic reports from States Parties along similar lines to those under other human rights treaties. n35 The Committee will also receive individual communications alleging violations of the Convention, with respect to those States which accept its jurisdiction to do so under an Optional Protocol to the Convention. n36

The Convention spans a wide range of real-life issues in considerable detail, including accessibility, personal mobility, health, education, employment, habilitation and rehabilitation, and participation in political life, equality, and non-discrimination. n37 It marks a "paradigm shift" from thinking about disability as a social welfare matter to dealing with it as a human rights issue, which acknowledges that societal barriers and prejudices are themselves disabling. n38

There are several recurring themes throughout the Convention. [*329] One is inclusiveness in the community, which is a central element. n39 Too often, persons with disabilities have been treated separately - and have been separated off from other parts of the community. Too often, there has been an automatic fallback on institutionalization. n40 Such segregation and institutionalization is not normally in the best interests of the person concerned, nor is it usually in the best interests of the community as a whole. Persons with disabilities usually flourish best within the community, rather than outside it, and have a contribution to make. Often that may require support or accessibility, but it is in the best interests of all to take this approach.

A second theme, closely related to the first, is bringing about a change in attitudes and getting rid of stereotyping. The Convention sets out various actions to be taken by States in this respect. n41 Attitudes need to change, and the Convention leads the way in this regard. The best way of changing stereotypes, of course, is for people to have real interaction with persons with disabilities, but governments and communities also have an important role to play.

A third theme - and the Convention contains many practical measures - is accessibility. n42 Accessibility includes physical accessibility to buildings, as well as accessibility in other ways, such as providing signage in Braille, and providing accessible information and communication technologies, including through universal design from which we will all benefit. The Convention also deals with related issues such as ensuring personal mobility, where that is a problem, and facilitating independent living. n43

Consistent with the theme of accessibility, the text of the Convention and of the Optional Protocol is specifically required by Articles 49 and 17, respectively, to be made available in accessible formats. n44 To help make it more usable and accessible, the individual articles have titles as well as numbers, in a departure from recent practice in human rights instruments. The General Assembly resolution [*330] adopting the Convention also requires "the Secretary-General of the United Nations to implement progressive standards and guidelines for the accessibility of facilities and services of the United Nations system, taking into account the provisions of the Convention, particularly when undertaking renovations." n45 During the negotiations on the Convention at United Nations Headquarters in New York, it was found that the building (which dates back to the 1940s) was not at all accessible, nor was the U.N.'s systems. U.N. staff had to work hard with disabled participants to overcome these difficulties.

A concern that may be raised about the Convention's quite wide-ranging provisions is the cost of implementation. Several points need to be made here. The first is that this is a hybrid convention, containing civil and political rights and economic, social, and cultural rights. They are not separated out in the Convention, so as to avoid creating any hierarchy of rights and also because many of the individual articles themselves contain both categories of rights so a separation would have been extremely difficult. The point is, of course, that whereas States Parties must guarantee civil and political rights straight away, they may not be in a position to guarantee economic, social, and cultural rights immediately.

The standard of implementation for economic, social, and cultural rights is "progressive realization" to the maximum of a State's available resources. n46 That means that those rights must be progressively implemented. It is not a free pass for governments, however. There are still two important elements of those rights that are immediately binding. First, governments must ensure that those rights are applied on a non-discriminatory basis. n47 Second, governments must undertake concrete steps to implement those rights. They cannot simply sit on their hands and decide to do nothing. n48 This does mean, however, that governments will not be taking on immediate and overwhelming financial obligations in the economic, social, and cultural areas that they will simply be unable to meet.