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Disability Disability Rights

Using the Convention on the Rights of Persons with Disabilities as a tool for progress

International Conference
Disability, Disadvantage and Development in the Pacific and Asia, September 2008

Graeme Innes AM

Human Rights and Disability Discrimination Commissioner
Australian Human Rights Commission

There are around 400 million people with disabilities in the Asia and Pacific region.  Over 40 per cent of these people are living in poverty. These people are prevented from accessing entitlements that are available to other members of their society such as health, food, education and employment.

Today I want to speak to you about the importance and the use of the Convention on the Rights of Persons with Disabilities as a tool for progress.

There are numerous international human rights conventions, plans of action and declarations which should ensure that the rights of everyone – including these 400 million people with disabilities – are respected, protected and promoted. In theory, a Convention on the Rights of Persons with Disabilities should not be necessary. Yet, it is an unfortunate fact that people with disability are amongst the “poorest of the poor.”

Ratification of human rights treaties is the first step towards a government recognising the rights of their citizens. It creates a framework for identifying rights-holders and duty-bearers.

I would like to focus my presentation today on the Pacific region. Ratification of international human rights treaties in the Pacific region is the lowest in the world. I am cautious here not to be artificial and arbitrary when I speak of the Pacific Island Countries as a group. Each country, and indeed, each island and even each village, is unique. They each have different ethnicities, languages and political structures. However, they do share some similarities – in their history of Western colonisation, democracy and Christianity, their small populations, vulnerability to natural disasters and their reliance on subsistence economies.

Ratification of human rights treaties does not seem to be a priority amongst Pacific Island Countries. It is important to understand why there is a reluctance to ratify human rights treaties. It is also important to understand what pressures are placed upon the governments of the pacific island nations.

I will address just some of these reasons.

Most Pacific Island Countries’ constitutions contain bills of rights, something which I note, Australia lacks. However, these bills of rights tend to refer only to civil and political rights and not to economic, social and cultural rights. The reason for this can be traced back to their constitution and political history of the Pacific Island nations. At independence, the majority of constitutional frameworks resulted from the constitutional ideas dictated by Western colonial leaders. Constitutions were drafted without any significant local participation. At that time, the prevalent human rights thinking within the realm of British constitutionalism were civil and political rights. Accordingly, Constitutions of the Pacific Islands followed suit.

This can lead to two conflicting arguments. First, that human rights are enshrined in the constitution and therefore should be adopted on the international level. Alternatively, that international human rights treaties are not needed as they are already enshrined in the Constitution.

However, many Pacific Island citizens are unaware of the existence of their Constitution let alone its contents. The rights of people with disabilities are also not included in their Constitutions. Joining the international human rights treaty system, affords an additional layer of protection for citizens. Civil society groups can also use the treaty framework in their promotion of human rights.

The Convention on the Rights of Persons with Disabilities seeks to address the specific needs of people with disability in a similar fashion to other thematic human rights conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). CEDAW and the CRC are the two most ratified human rights treaties in the Pacific. The ratification of these two conventions has assisted in improving peoples’ understanding and awareness of women and children’s rights through the review of domestic legislation, development of policies and court jurisprudence. Likewise, the ratification of the Convention on the Rights of Persons with Disabilities will raise awareness about the human rights of persons with disabilities.

An often cited reason for not ratifying human rights treaties – especially those containing economic and social rights – is the increased resource burden that the  international human rights treaty framework imposes. This resource burden is felt in terms of both human and financial resources, and at different stages of the treaty process.

First of all, at the decision stage. It takes resources to review domestic legislation and decide whether the conventions are culturally offensive or acceptable.

Secondly, at the ratification stage. Submitting and responding to the reporting process under human rights treaties necessarily imposes a human and financial resource burden.

Thirdly, at the implementation stage, especially in implementing economic and social rights. Traditionally, these rights are seen to incur an outlay of resources on behalf of the state.

This additional resource burden is seen as too overwhelming and the primary focus of PIC governments tends to be on economic growth and responding to the pressures of an exploding and young population.

Pacific Island Countries have a rapid population growth with over half the population under the age of 24 in some countries. Of these, there are almost 360,000 Pacific Islanders living with disability. As a result, young Pacific Islanders with disabilities are the population group most likely to be living in poverty today and in the future. It is these youth who are the future of the Pacific Island Nations.

Less than 10 percent of children and youth with disabilities have access to any form of education compared with an enrolment rate of over 70 per cent for non-disabled children and youth in primary education in the Asia and Pacific region. This exclusion from education for children and youth with disabilities results in exclusion from opportunity for further personal, social and vocational development. Persons with disabilities also remain disproportionally undereducated, untrained, unemployed, underemployed and poor. As I mentioned previously, economic and social rights such as the right to work and the right to education are not recognised under the current bills of rights of most Pacific Island countries.

This is where the international human rights framework can assist. The Biwako Millennium Framework and the Biwako Plus Five creates targets to ensure that people with disabilities are no longer excluded. Ratification of the Convention on the Rights of Persons with Disabilities will add an additional layer of protection – legally binding protection for these people. The Convention also assists in the progressive realisation of health, education and other economic and social rights. This approach will assist many people in each country beyond people with disabilities.

Pacific Island Countries are also primarily focussed on economic growth.

However, a recent report by the UN High Commissioner for human rights indicates that economic growth and development have been disappointing in the Pacific and the costs of poor governance have been significant.

What is not understood about the Convention on the Rights of Persons with Disabilities is that it is quite unique in that it is both a development and a human rights instrument. The Convention incorporates a development framework and deals with empowering people with disabilities, who are often amongst the poorest in any country.

By ratifying and implementing the Convention, governments should see results which will, in fact, assist in the economic growth of their country. Ways in which this may eventuate are through

  • Increased workforce participation by people with disabilities and their family members and carers;
  • Increased economic participation by people with disabilities
  • A potential decrease in public expenditure on parallel and specialist services and
  • Potential business opportunities in the development of accessible products and technologies and works in the community.

The Convention on the Rights of Persons with Disabilities can assist because it addresses development including economic development, governance issues and can also attract significant funding. If people with disabilities in the Pacific are to be included in the national development process, then the development of policy, legislation and service provision must be established in full partnership with organisations of people with disabilities and other concerned agencies. The Convention can play a key role here – in affirming the rights of persons with disabilities and spelling out the action needed to implement them.

For donors and aid organisations, ratification of the Convention and adherence to the rule of law will improve the public standing of that country and government. Ratification and implementation will also demonstrate to international aid organisations that governments have goals to work towards that are internationally recognised. As international aid organisations are going to be looking at measuring against convention parameters, ratifying countries will improve their chances of receiving aid.

There is also a perception amongst Pacific island countries that international human rights treaties were not designed for small, developing nations. Rather, they are seen as an external political and legal interference. The indigenous traditional power structures in most Pacific Islands are patriarchal and hierarchal. Identity may be tied up with the inherited chiefly system. This system is strongly resistant to human rights intervention as it is seen as a “western imposition” on culture and identity.

Added to this, the individualistic nature of human rights is seen to be incompatible with the communal nature of Pacific island states.

It is hard to make accurate judgments about the ways and extent to which Pacific cultures are inherently unfavourable or favourable to human rights values. They are foreign in as much as they were not thought up in Pacific societies and Pacific terms. However, this does not mean that human rights should remain foreign to or cannot have applicability in Pacific cultures.

Persons with disabilities represent a significant overlooked development challenge, and ensuring equality of rights and access for these persons will have an enormous impact on the social and economic situation of Pacific Island Countries.

An obvious problem in most PICs is that the vast majority of people know little about their constitution let alone their rights under international human rights treaties. They rely more closely on traditional and religious leadership than on their parliamentarians for their daily needs. Therefore they do not have the tools to lobby their leaders to make changes in policies, laws or practices that affect them.

In relation to advocacy to government to sign and ratify the Convention your chances of succeeding will probably depend upon the strength of your advocacy and your messages and the support that comes from as many people as possible.

This is why it is important to familiarise yourselves with the Convention. Develop your workplan around it. Refer to it when speaking with government and other organisations. Educate people about it. Adopting such an approach provides direction and focus for activity. It also puts the Convention in the forefront of people’s minds.

So I hope that I have highlighted a few of the benefits of the Convention and how it can be used to advocate and progress the rights of people with disabilities. What must be remembered is that it is a journey. Ratification is only a small step on the journey to implementing and using the Convention to its fullest.

Thank you.

United Nations Economic and Social Commission for Asia and the Pacific, Biwako Millennium Framework (BMF) at 44.

Part IV (Fundamental Human Rights & Freedoms), Cook Islands Constitution; Art.II (Bill of Rights), Marshall Islands Constitution; Art.IV (Declaration of Rights) FSM Constitution; Ch.II (Fundamental Rights & Freedoms), Kiribati Constitution; Part II (Fundamental Rights & Freedoms) Nauru Constitution; Part II (Fundamental Rights & Freedoms) Samoa Constitution; Ch.II (Fundamental Rights & Freedoms) Solomon Islands Constitution; Part I (Declaration of Rights) Tonga Constitution; Part II (Bill of Rights) Tuvalu Constitution

Arts. 33 & 39, Fiji constitution.

Huffer (2003):4

Pacific Disability Forum

Huffer, (2003:8)

 

 

 

 

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