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Panorama of the UN, East River and New York |
Section
2
What is the UN disability convention and why is
it needed?
By the end of Section 2 you should
- Understand what a human rights convention is
- Understand why we need a new human rights convention
for persons with disabilities
- Understand what has happened so far to draft a new
human rights convention for persons with disabilities
- Understand what may be able to happen in the future
once we get a new human rights convention for persons
with disabilities
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What is a “convention”?
A “convention” is a legally binding agreement,
in writing, between two or more countries. Conventions can
also be called “treaties.” Once a convention has
been “adopted” (meaning that it is now open for
countries to join), countries can choose whether or not to
join a convention. When they choose to join, they become “States
Parties” and must comply with their obligations as described
in the convention. When enough countries become States Parties,
then we say that the convention “enters
into force” – meaning
that it becomes active – and States Parties must act
to implement their obligations under the convention. There
are many conventions currently in force, and they cover a wide
variety of topics, including trade, the environment, weapons,
peace, and human rights.
What is a “human rights convention”?
A “human rights convention” is a convention that
deals specifically with the topic of human rights. “Human
rights” are the rights that everyone has just by being
human. In other words, you don’t have to be a member
of a particular group, and nobody needs to give you your rights.
Everyone is automatically entitled to enjoy the full range
of human rights just because they are human.
The human rights that everyone is entitled to are set
out in a number of different United
Nations documents. (You
can also find human rights documents at the regional level,
such as in the Americas and in Europe, but our focus here is
on the United Nations documents that apply to everyone around
the world.) The first, and perhaps the most famous of these,
is the Universal Declaration of Human Rights (UDHR), adopted
by the UN General Assembly in 1948. The UDHR is not a convention,
but is now considered part of customary international law,
which makes it legally binding in its own way.
- The International Bill of Human Rights
Because the UDHR was not originally intended to be a legally
binding document, the UN drafted two conventions to describe
the human rights to which we are all entitled: the International
Covenant on Economic, Social and Cultural
Rights (ICESCR – adopted
on 16 Dec. 1966, and entered into force 3 Jan. 1976) and the
International Covenant on Civil and Political
Rights (ICCPR – adopted
on 16 Dec. 1966 and entered into force 23 March 1976). Together
with the UDHR, the ICESCR and ICCPR are known collectively
as the “International
Bill of Human Rights” and
form the foundation of all international human rights law.
- The emergence of ‘thematic’ treaties
It was originally believed that the International
Bill of Human Rights would be the only thing needed to
set forth the full range of human rights. However, it became
clear over time that governments needed more detailed guidance. The
International Bill of Human Rights addressed all the different
kinds of human rights that the international community felt
everyone should be entitled to. But, it did not provide enough
details for governments to know exactly how to ensure full
enjoyment of human rights by all people. As a result, the international
community drafted a number of additional “thematic
human rights conventions.” These conventions are
called “thematic” human
rights conventions because each one deals with a particular
human rights theme (like racial discrimination or torture)
or a particular group of people (like women or migrant workers).
These conventions do not create new rights, but rather they
elaborate existing rights in the context of a specific group
or issue area. For example, the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW) was not
intended to create new human rights for women. Instead, it
was intended to help countries better understand how to ensure
that women fully enjoy the existing human rights. The following
list includes all the thematic human rights conventions that
have been adopted so far – you
can see that some took a short period of time before they entered
into force, and
others took much longer:
- International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD – adopted 21 Dec. 1965,
entered into force 4 Jan. 1969)
Together with the ICESCR and ICCPR, these conventions are
known as the “core international
human rights conventions.” Although
there are by now many other international conventions and non-binding
instruments that also address human rights, the conventions
listed above are considered “core” conventions
because they each establish a committee of experts to monitor
implementation. If you want to find out more about the various
international human rights instruments and the committees that
monitor the core human rights conventions, you may wish to
visit the webpage of the UN Office of the High Commissioner
for Human Rights: http://www.ohchr.org/english/law/index.htm
Seal of the UN in the General Assembly
Room
Why do we need a human rights convention for persons with
disabilities?
With all of the human rights conventions and other human rights
instruments that we already have in place, you may well wonder
why some people believe that we need another new convention
specifically for persons with disabilities! The problem is
that, with the exception of the Convention on the Rights of
the Child (Article 23), none of the core human
rights conventions even mentions persons with disabilities. Although the human
rights expressed in those conventions certainly apply to persons
with disabilities, governments have not done a good job of
ensuring that persons with disabilities fully enjoy their human
rights. At the same time, governments have not done a good
job of reporting to treaty monitoring
bodies about how they
are applying the various human rights conventions to persons
with disabilities. Also, the monitoring bodies have not done
a good job of asking for this information. Although the Committee
on Economic, Social and Cultural Rights released a document
(known as “General
Comment No. 5”) to advise States
Parties on how to ensure that persons with disabilities enjoy
the rights in the ICESCR, few other monitoring bodies have
addressed the situation in their comments.
As a result, some people have noted that persons with disabilities
have been effectively “invisible” within the UN
human rights system. Other groups (such as women and children)
experienced this same kind of “invisibility” in
the past, and they too opted to develop thematic human rights
conventions, leading to the adoption of, for example, the Convention
on the Rights of the Child (CRC),
and the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW).
- The need for a legally binding instrument
In addition to these problems, the human rights instruments
that do address disability issues (like the UN Standard
Rules on the Equalization of Opportunities for Persons with Disabilities)
are not legally binding. This means that governments are not
legally required to follow the recommendations of those documents,
and, sadly, many have chosen not to. It has also been observed
that some of the older human rights instruments that address
disability issues are rather outdated in the way that they
discuss persons with disabilities. This may reinforce stereotypes
of persons with disabilities as being especially vulnerable,
or lacking in the ability to fully participate in society.
For this reason it has been suggested that international human
rights law should be updated to be more reflective of the social/cultural
model of disability, and that a legally binding convention
is the instrument to use to do this.
Understanding the UN Standard Rules on the Equalization
of Opportunities for Persons with Disabilities
As you will see in the timeline in the next section,
a number of non-binding UN documents addressing disability
were adopted by the UN before it was decided to draft
a convention. Of these different documents, the UN Standard
Rules document is perhaps the most well regarded. So
what are the UN Standard Rules, and what makes them different
from the other documents?
The UN Standard Rules were adopted by the UN General
Assembly in 1993. The Standard Rules were intended to
help summarize the message of the UN’s World Programme
of Action Concerning Disabled Persons. Like the “standard
rules” the UN has adopted on other issues, these
Standard Rules were intended to provide guidance to governments
on how to act – in this case, how to better address
the equalization of opportunities for persons with disabilities.
The UN Standard Rules address 22 different rules in
four different chapters. Here is an outline of the chapters
and rules:
I. Preconditions for Equal Participation
Rule 1. Awareness-raising
Rule 2. Medical care
Rule 3. Rehabilitation
Rule 4. Support services
II. Target Areas for Equal Participation
Rule 5. Accessibility
Rule 6. Education
Rule 7. Employment
Rule 8. Income maintenance and social
security
Rule 9. Family life and personal integrity
Rule 10. Culture
Rule 11. Recreation and sports
Rule 12. Religion
III. Implementation Measures
Rule 13. Information and research
Rule 14. Policy-making
and planning
Rule 15. Legislation
Rule 16. Economic policies
Rule 17. Coordination of work
Rule 18. Organizations
of persons with disabilities
Rule 19. Personnel training
Rule 20. National monitoring
and evaluation of disability programmes in the implementation
of the Rules
Rule 21. Technical and economic cooperation
Rule 22.
International cooperation
IV. Monitoring Mechanism
As you can see, the Standard Rules address many different
issues of importance to persons with disabilities. In
this way the Rules are very different from the disability
documents that came before, which tended to address fewer
issues. The Standard Rules also established a new position
to help monitor the implementation of the Rules – that
position is called the “Special Rapporteur.” (One
of the original founders of DPI, Bengt Lindqvist, was
the first person to serve as the Special Rapporteur for
the Standard Rules.) What perhaps makes the Standard
Rules most unique, is that they were the first such UN
document to focus on the interaction between the individual
and their environment. Previous documents had often characterized
the problems faced by persons with disabilities as being
the result of their physical characteristics. By contrast,
the Standard Rules made it clear that disability results
when societies do not accommodate people with different
functional capacities. They also make clear that society
should not provide charity, but rather should act to
accommodate and equalize the opportunities for persons
with disabilities in society. |
For
the reasons mentioned above, over the years a number of different
groups and governments have supported the idea of creating
a new human rights convention for persons with disabilities.
The next section of the toolkit will address in more detail
who these groups and governments are, and what has happened
over the last several decades to lead us to the point of actually
negotiating a new convention.
What we hope the Convention will
achieve
- Increase the visibility of persons with disabilities,
both within the UN human rights system and in society
more generally
- Clarify the human rights obligations of governments
to persons with disabilities, and ensure that governments
who become States Parties to the convention make
legislative and programmatic changes at the national
level to implement their legal obligations under
the convention
- Encourage existing human rights monitoring bodies
to pay attention to disability issues when they review
compliance of governments with the other core human
rights conventions
- Encourage other bodies within the UN system (such
as UNICEF, UNIFEM, WHO, UNESCO and others) to pay
attention to disability issues in their work
- Establish systems for comprehensively monitoring
the human rights situation of persons with disabilities
around the world
- Establish systems for international cooperation,
through which governments, disability organizations
and other actors can share knowledge and ideas and
work together to improve the lives of persons with
disabilities.
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None of these actors would argue
that the disability Convention is necessarily going to solve
every problem faced by every person with a disability. However,
we all hope the Convention will be a valuable tool for disability
advocates and governments to use, to improve enjoyment of
all human rights by all persons with disabilities.
These are just some of the things that we hope the new Convention
will be able to achieve, but it will take hard work from all
of us to ensure that it is successful! In other sections of
the toolkit, we will discuss how we can take action to help
make sure that our Convention is a success.
Three decades in the making: how did we get here?
The following timeline reveals the key events and actors in
and around the UN system that brought us to the process of
drafting a new convention.
- Lead-up to the establishment of the Ad Hoc Committee
1971: The UN General Assembly adopted the Declaration
on the Rights of Mentally
Retarded Persons, which promoted
community living where possible
1975: The General Assembly adopted the Declaration
on the Rights
of Disabled Persons, which promoted the political
and civil rights of persons with disabilities
1976: The General Assembly declared 1981 the International
Year of Disabled Persons (IYDP), with an emphasis on full participation
1977: The General Assembly established the Trust Fund
for the International Year and collected $510,000 from member
states
1981: International Year of Disabled Persons - States,
local communities and organizations of persons with disabilities,
undertook activities for the IYDP
1982: As a follow-up to the IYDP, on 3 Dec., the UN
adopted the World Programme of Action Concerning
Disabled Persons and proclaimed 1983-92 as the UN Decade of Disabled Persons
1987: Mid-decade review experts meeting in Italy – first
call for a new Human Rights Convention with no success. Italy
prepared a draft treaty outline that was submitted to the General
Assembly at its 42nd session, in October. The General Assembly
discussed the desirability of an international treaty, but
reached no formal agreement to proceed.
1989: Second unsuccessful call for a Convention, this
time following a meeting in Sweden. Again, no success on the
treaty but laid the ground work for development of the Standard
Rules
1990: The General Assembly adopted the Tallinn Guidelines
for Action on Human Resources Development in the Field of Disability
1991: The General Assembly adopted the Principles for
the Protection of Persons with Mental Illness and the Improvement
of Mental Health Care
1992: December 3rd named as Annual
International Day of Disabled Persons (IDDP)
1993: The General Assembly adopted the Standard
Rules on the Equalization of Opportunities for Persons with Disabilities
1994: Mr. Bengt Lindqvist, from Sweden, appointed Special
Rapporteur for the Standard Rules
1998: UN Commission on Human Rights passed Resolution
Number 1998 / 31, entitled “Human
rights of persons with disabilities” acknowledging general responsibility for
Persons with Disabilities in its mandate
2000 : The World NGO Summit on Disability (attended
by international and national disability organizations, including
DPI) adopted the Beijing
Declaration on the Rights of People
With Disabilities in the New Century, calling for a new human
rights convention for people with disabilities
Ambassador de Alba of Mexico
- Establishment of the Ad Hoc Committee
2001: December 19, the General Assembly passed Resolution
56/168, introduced by Mexico, and thereby established
the Ad Hoc Committee (AHC) with the following mandate:
Who is Involved?
The guiding principle of the process since the beginning
has been full inclusion of all relevant stakeholders.
From this base an impressive and diverse range of participants
have been involved, including:
- UN member states
- UN observers
- Relevant UN bodies and organizations
- Special Rapporteur on Disability
- National human rights institutions
- Non-governmental organizations, including disabled
people’s organizations (DPOs)
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…to consider proposals for a comprehensive
and integral international 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. |
Session 1
29 July – 9 August 2002
- Chaired by Ambassador Luis Gallegos of Ecuador, who
chaired subsequent sessions until
- Discussed rationale for convention
- Survived attempts to kill the process
- Agreed to meet again 2003
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Ambassador Gallegos of Eduador - first chair of the Ad
Hoc Committee
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Session 2
16-27 June 2003
- Decision to proceed with drafting convention
- Discussions over process to proceed
- Decision to establish Working Group
- Decision on Working Group membership
Working Group (WG)
5-16 January 2004
- 27 governments – equally distributed across
the 5 UN Regions
- 12 NGOs (including DPI)
- 1 National Human Rights Institution Representative)
- Discussions led by Coordinator (New Zealand’s
Ambassador MacKay)
- Produced draft
text to form basis of negotiations
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Ambassador Don MacKay of New Zealand - second chair of the Ad Hoc Committee
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Session 3
24 May – 4 June 2004
- Commenced first reading of WG text
- AHC members proposed amendments
- Produced compilation of amendments document
- Decision to delay consideration of some issues:
- Definitions
- Monitoring
- Final Provisions
Session 4
23 August – 3 September 2004
- Completed first reading
- Began review of suggested amendments
- WG Text Articles 1 - 15
- Conducted informal sessions with Coordinator and country
facilitators to synthesize text
- WG Text Articles 4 - 7
- Agreed to meet again in 2005
Session 5
24 January – 4 February 2005
- Conducted informal sessions with Coordinator and country
facilitators to synthesize text
- WG Text Articles 7(5) - 15
- Agreed to meet again in August 2005
Session 6
1–12 August 2005
- Conducted informal sessions with Chair (1st meeting with
Ambassador MacKay as Chair) to synthesize text
- WG Text Articles 15 - end
- Agreed to meet again in 2006
- Chair issued “Chair’s Text” in October
2005, synthesizing the amendments made to date
Session 7
6 January – 3 February 2006
- Conducted informal sessions with Chair to complete 1st
reading of the Chair’s Text
- Revised “Working
Text” issued (covering Articles
Preamble – Article 33 on National Level Monitoring)
- Agreed to meet again 14- 25 August, 2006
As of February 2006, the Ad Hoc Committee has a draft Convention
known as the “Working
Text.” The draft text will
undergo further changes and amendments before it can be adopted successfully by the UN General Assembly, and then opened for
countries to join and become States Parties. At this time though,
it can be said that the Convention will definitely be comprehensive
in nature. It will offer more than just simple protection against
disability discrimination. Instead it will address the full
range of human rights of persons with disabilities. As of the
time the Working Text was issued, the draft articles address
the following topics:
Current Structure of Draft Treaty
(February 2006)
Preamble
Article 1 Purpose
Article 2 Definitions
Article 3 General Principles
Article 4 General Obligations
Article 5 Equality and Non-Discrimination
Article 6 Women with Disabilities
Article 7 Children with Disabilities
Article 8 Awareness Raising
Article 9 Accessibility
Article 10 Right to Life
Article 11 Situations of Risk
Article 12 Equal Recognition Before the Law
Article 13 Access to Justice
Article 14 Liberty and Security of the Person
Article 15 Freedom from Torture or Cruel, Inhuman or Degrading Treatment or
Punishment
Article 16 Freedom from Exploitation, Violence and Abuse
Article 17 Protecting the Integrity of the Person
Article 18 Liberty of Movement and Nationality
Article 19 Living Independently and Being Included in the Community
Article 20 Personal Mobility
Article 21 Freedom of Expression and Opinion, and Access to Information
Article 22 Respect for Privacy
Article 23 Respect for the Home and the Family
Article 24 Education
Article 25 Health
Article 26 Habilitation and Rehabilitation
Article 27 Work and Employment
Article 28 Adequate Standard of Living and Social [Protection]
Article 29 Participation in Political and Public Life
Article 30 Participation in Cultural Life, Recreation, Leisure and Sport
Article 31 Statistics and Data Collection
Article 32 International Cooperation
Article 33 National Implementation and Monitoring |
As of the time the Working Text was issued, the draft articles
address the following topics:
A Look ahead: where are we going?
As you have seen, it took the international community several
decades to decide to draft a new convention on the human rights
of persons with disabilities, and the negotiations process
itself has spanned several years. Hopefully the negotiations
will come to a close soon, and we can then get down to the
business of implementing the Convention! Clearly we have come
a long way since the 1971 Declaration on the Rights of Mentally
Retarded Persons!
With that in mind, here are some suggestions about what might
happen over the next 30 years if we can be successful in implementing
the Convention and helping it to fulfill its potential …
2007 Adoption
2008 Ratification by enough countries for Convention to enter
into force
Ongoing - Continuing ratification by additional countries,
until all UN Member States are States Parties
2008 Establishment of the monitoring body
2010 Filing of first country reports to the monitoring body
Ongoing - States Parties embark upon drafting of national
disability action plans – a process carried out with
leadership from, and close consultation with, persons with
disabilities and their representative organizations
2010 – 2020
States Parties embark upon implementation of national disability
action plans
UN bodies such as UNICEF start to comprehensively integrate
disability and persons with disabilities into all their programming
National and international development agencies start to comprehensively
integrate disability and persons with disabilities into all
their programming
2020 – 2030
NGO representatives during Ad Hoc negotiations
RESOURCES
Here is a list of the resources mentioned in this section,
as well as some additional documents that may be of interest
to you:
Universal Declaration of Human Rights (UDHR)
International Covenant on Economic, Social and Cultural Rights
(ICESCR)
International Covenant on Civil and Political Rights (ICCPR)
International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD)
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW)
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)
Convention on the Rights of the Child (CRC)
International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families (ICRMW)
“General Comment
No. 5” of the Committee on Economic,
Social and Cultural Rights
UN
Standard Rules on the Equalization of Opportunities for
Persons with Disabilities
Declaration on the Rights of Mentally Retarded Persons
Declaration on the Rights of Disabled Persons
World Programme of Action Concerning Disabled Persons
Tallinn Guidelines for Action
on Human Resources Development in the Field of Disability
Principles for the Protection of Persons with Mental Illness
and the Improvement of Mental Health Care
UN Commission on Human
Rights Resolution Number 1998 / 31, “Human
rights of persons with disabilities”
Beijing Declaration on the Rights of People With Disabilities
in the New Century
UN General Assembly Resolution
56/168 (establishing the Ad
Hoc Committee)
Working Group Draft
Text of January 2004
Working Text of Feb 2006
"Human Rights and Disability: The Current Use and
Future Potential of United Nations Human Rights Instruments
in the Context of Disability,” study commissioned
by the Office of the High Commissioner for Human Rights
DPI
Position Paper regarding a new international human rights
Convention for Disabled People
If you have access to the internet, you may also wish to
visit the websites of:
DPI’s
Convention-related resources
UN Office of the High
Commissioner for Human Rights
UN Department of Economic and
Social Affairs (where you can get more information on the
status of the draft
disability Convention)
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