Why we need a disability Convention
Human Rights Commissioner
New Zealand Human Rights Commission
Te Kahui Tika Tangata
Australian National University
March 25 2004
Disability is part of the human condition. All over the world, and in all sections of the community, disability is a dimension of human diversity like gender, race and culture. This is true even where there are not the additional causes of disability that exist in many places – such as war or the after effects of war, or because of poverty and poor health.
International human rights law has not always adequately acknowledged people with a disability as part of what the "human", in human rights, means, even where it is included in conventions such as the Rights of the Child, and some General Recommendations on CEDAW.
Despite this one of the arguments used against the development of a United Nations Disability Convention is that disability is already covered by existing international Human Rights law. International Human rights standards do require that people with disabilities should enjoy the same basic human rights as all other human beings.The United Nations Charter, the Universal Declaration of Human Rights, the Covenants on Civil and Political Rights, and on Social Economic and Cultural Rights implicitly include disabled people but make no specific mention of them or their particular rights.
But if disabled people are already covered then why did the international community agree to establish Conventions for other groups who are presumably covered in the same way. Why a specific convention to protect the rights of migrant workers, and specific conventions to protect the rights of refugees, women, children? All of these specific conventions were established because it was recognised that each of these vulnerable groups should have a single set of binding norms and a specific body to monitor respect for their human rights
It might be argued that The UN, by not having a control body to provide disabled persons with particular and specific protection, could be in fact discriminating against them.
The United Nations is not oblivious to the situation of disabled people. The Committee on Economic, Social and Cultural Rights, publicly acknowledged almost ten years ago that governments devoted very little attention to disabled people in their reports on how they were in compliance with the existing instruments. The Committee's explicit conclusion was that 'it is now widely accepted that the human rights of persons with disabilities must be protected and promoted through general, as well as specially designed, laws, policies, and programmes.'
The current process is not the first attempt to develop a disability convention. Two earlier attempts culminated in the development of The Standard rules on the Equalisation of Opportunity for Disabled People as a non binding alternative. However their non-binding status means they are not monitored in the same way as Conventions, Neither are they formally reported on by country reports as conventions are, but are monitored by a Special Rapporteur based in the UN Commission for Social Development.
The Standard Rules were adopted by the UN in 1993. They cover a wide range of areas of everyday life such as access, employment and education. They also include rehabilitation and international co operation. But there are some major omissions such as housing and transport and basic rights such as the right to exist. Like other international instruments and declarations relating particularly to disability they focus more on development than on
They cover a broad range of specific areas such as mental illness and intellectual disability. There are also ILO Conventions 111 concerning Discrimination in respect of Employment and Occupation 1958, and Convention 159 concerning Vocational Rehabilitation and Employment (Disabled Persons) 1983
Like the Standard Rules these international instruments and declarations relating to disability are action-oriented, but they too are non-binding. This does not mean that they should be abandoned, or that they are not useful. Indeed they are still necessary.
A recognised lack of progress has resulted in widespread international agreement that a legally binding disability convention is necessary to ensure visibility for and progress in realizing the human rights of disabled people. There is increasing acknowledgement of the discrimination faced by disabled people, including people with experience of mental illness.
The most compelling reason of all for a disability Convention is the appalling truth that every day, throughout the world, disabled people are being subjected to widespread discrimination and violations of their human rights. These violations include malnutrition, forced sterilisation, sexual exploitation, denial of educational and vocational training opportunities, inaccessible public services, institutionalisation, and denial of an identity and of voting rights. These violations have been clearly documented by NGO organisations such as Disability Awareness in Action.
Taking as an example violations of the Convention against torture
In their report The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability Quinn and Degener say "It is sometimes said that torture or cruel inhuman or degrading treatment of the disabled is invisible, yet this invisibility does not mean that no abuses occur. Pioneering NGOs such as Mental Disability Rights International help to bring such abuses to light and ensure that they are seen for what they are: violations of international law." Quinn and Degener P135.
In their influential report prepared for the UN Quinn and Degener stress the importance of the need for explicit reference to disability in a binding convention to ensure the visibility of disability issues, by providing a clear focus for the issues of disability within the UN system. It would mean that human rights norms could be tailored specifically for the particular circumstances faced by disabled people. Precise obligations would be clear, and focused in one place. Such a convention would underpin and not undermine existing human rights law. It should facilitate the mainstreaming of disability into the human rights system.
Already the process has begun a debate about how best to use the whole range of human rights to achieve full participation for disabled people.
Western countries such as Australia and New Zealand, the USA, Canada and the UK have experienced the growth of a disability rights movement during the last twenty years. This has spread to other countries in Africa, South America and Asia. It has resulted in the passage of domestic Human Rights legislation in a number of countries.
International coalitions such as the International Disability Alliance have developed as the growth of the disability rights movement has created strong disability advocacy NGOs of disabled people. They are speaking the language of rights and articulating issues in
a human rights based framework.
Over the last twenty years many advocates have continued to push for the development and adoption of a legally binding international treaty specifically focused on the issue of disability. For example, a meeting of international disability related non-governmental organisations (NGOs) in March 2000 adopted the Beijing Declaration on the Rights of People with Disabilities. This Declaration called for a wide consultation process between NGOs, UN organisations and governments aimed at the preparation and adoption of an international convention to promote and protect the rights of people with disabilities.
Other voices have joined the chorus. Recently the final declaration of the World Conference against Racism, held in Durban, South Africa in September 2001, invited the UN General Assembly to consider elaborating a Convention to protect and promote the rights and dignity of disabled people, particularly including anti discrimination provisions.
The development of a disability convention is an important step in the advancement of the rights of disabled people worldwide. It is about ensuring eauality of opportunity and equity, as well as non-discrimination.
I want to close with a quote from the Quinn and Degener report.
"The disability rights debate is not so much about the enjoyment of specific rights as it is about ensuring the equal effective enjoyment of all human rights, without discrimination, by people with disabilities." P 1