HRF/77/03
29 May 2003
Rights of the Disabled
Towards
a New UN Convention
In
June 2003, the United Nations (UN) Ad Hoc Working Committee on the Rights
of People with Disabilities will hold its second meeting to discuss
reports from member states, UN bodies, National Human Rights Institutions
(NHRIs) and NGOs to consider proposals for a new and comprehensive
convention to promote and protect the rights and dignities of persons with
disabilities. The proposed convention would be similar to existing human
rights instruments on the rights of women, children, and refugees. The
movement towards creating an international convention is the next step in
a struggle that has already lasted 20 years. Its goal has been to
integrate the human rights approach into discussions of disability rights
on the international level. Although the process has been a gradual one,
the shift in approach has been quite radical—from treating disabled
persons as objects of charity to mandating changes in society that will
allow disabled persons to participate on an equal level with non-disabled
persons.
The
first changes came in 1982 when the World Program of Action Concerning
Disabled Persons was accepted by the General Assembly of the UN. The
United Nations Standard Rules on the Equalization of Opportunities for
Persons with Disabilities (UNSR), formulated by the UN at the end of their
Decade of Disabled Persons in 1992, followed the World Program as the next
treaty to address the issue of disability. Both of these defined handicap
as “the encounter between the person with a disability and the
environment,” effectively shifting the focus of disability legislation
all over the world from aiding the disabled person to adapting their
surroundings to permit equal participation in society. This change
reflects the lessons learned from the human rights movement, but there is
still considerable scope for integration of the rights based approach with
discussions of disability. The Standard Rules have been criticized for
having many gaps. Neither
the gender dimension nor the needs of children with disabilities are
treated sufficiently. The document also fails to address the issue of
housing. It is
notable that these gaps occur at areas where significant human rights
instruments already exist—the Convention for the Elimination of All
Forms of Discrimination Against Women (CEDAW) and the Declaration of the
Rights of the Child—or where rights legislation has been proposed—such
as in this year’s draft resolution on the right to adequate housing.
Indeed, both the Special Rapporteur on Disability for the Committee on
Social Development and a recent UN Report on human rights and disability
suggest that the existing human rights mechanisms at the UN have been
underused in protecting the rights of persons with disabilities and call
for more integration between the two.
Considering
the existence of powerful human rights institutions that protect all
people, including the disabled, and treaties that protect solely disabled
persons—the World Program of Action, Standard Rules, Beijing Declaration
on the Rights of People with Disabilities, Declaration of the Rights of
Disabled Persons, Declaration on the Rights of Mentally Retarded Persons,
and Principles for the Protection of Persons with Mental Illness—one
might wonder why there is need for a new convention. Firstly, none of the
treaties that deal specifically with disabilities are legally binding.
Secondly, the very existence of human rights conventions for refugees,
women, and children indicates that there are specific groups that are
especially vulnerable and require a single set of binding norms and a
separate body to monitor respect for their rights. Arguably, disabled
persons fall into this category as well. Lastly, a convention will allow
for clarity—it will encourage more robust human rights expertise on
disability as well as creating a focused body to which NGOs can direct
their claims.
The
upcoming Ad Hoc Meeting is a welcome step in the promotion of rights of
people with disabilities. It has the potential for creating a convention
that will complement, not replace, the existing main human rights
instruments, and thereby will encourage increased utilization of the
existing treaty bodies in protecting the rights of people with
disabilities. However, there is still a long road ahead. The Ad Hoc
Committee is only inviting proposals for a convention, so each group that
participates in this conference should emphasize the need for such a
convention. Discussion about the convention should consider the breadth of
coverage of the Standard Rules as a model, while keeping in mind its
deficiencies. The drafting of a new convention can take many years. In the
meantime, the Standard Rules should be revised and upheld. Additionally,
the Committee should consider appointing a Special Rapporteur for
Disabilities who can act as a suitable focal point for disability in the
human rights system during the long drafting process. The last Ad Hoc
Committee meeting in New York was exceptional in its exclusivity; NGOs and
even NHRIs were not invited to attend. It is important that these two
groups are included in the drafting process because, in the absence of
political will, the burden of implementation and monitoring largely falls
on these bodies. Fortunately, the second meeting of the Ad Hoc Committee
will have NGOs and NHRIs as participants. Hopefully, their contributions
to the committee will be emphasized.
Rights of Persons
with Disabilities in the Asia Pacific Context
The
international change in attitudes towards the rights of persons with
disabilities is especially important for the Asia Pacific Region since
approximately 400 million of the world’s 600 million disabled people
live in the region. Nearly one third of disabled persons live below the
poverty line, and less than ten percent of youth with disabilities attend
school. Governments of developing nations, of which there are many in Asia
and the Pacific, have been reluctant to champion the rights of disabled
persons because of the enormous cost involved in implementing suitable
policies. However, the scale of the problem alone should assure
governments that protecting these rights are not a matter of choice.
The
United Nations declared 1981 the International Year of Disabled Persons,
and the adoption of the World Program of Action concerning Disabled
Persons (1982) and the declaration of the Decade of Disabled Persons
(1983-1992) followed soon thereafter.
These events provided the catalyst for major revisions in the way
disabled persons were regarded by governmental and non-governmental
institutions. The Asia Pacific Region was the first to follow up with a
regional Decade of Disabled Persons in 1993. Inter-country meetings to
discuss possible methods of intersectoral collaboration and to assess the
success of the Asian Pacific Decade of Disabled Persons were held in
India, Malaysia, Singapore and South Korea. Partly in response to the
increased international and regional attention, a significant amount of
legislation has been passed in the region regarding disabled persons.
However, the laws are uneven in scope, implementation and monitoring
processes. A closer examination of the legislation of the different
nations will reveal areas where these laws are weak and give rise to
general recommendations.
Australia
and Japan have both passed comprehensive disability laws. In Japan the
process of getting these bills passed involved the initiative of many NGOs
and the input of disabled individuals in high political positions.
However, most other countries have piecemeal legislation that only covers
one aspect of disability rights such as the Rehabilitation Council of
India Bill that only covers education. On the surface, much progress has
been made regionally for the incorporation of the rights perspective into
disability legislation. Examples include the India’s Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act in 1995 and the Philippines’ Magna Carta for Disabled
Persons in 1991. However, appearances can be deceptive. The Indian Persons
with Disabilities Act suffers from vague terminology and lacks adequate
monitoring mechanisms. The caveat that reforms should only be undertaken
within the limits of a state’s economic capacity all but nullifies the
Act’s potential for change. In the Philippines, the Magna Carta relies
on the courts for enforcement of the regulations, but the first talk of a
court case came a full decade after the bill was passed, and the case has
yet to actually be heard.
The example of the Philippines is by no means exceptional. Most disability legislation in the Asia Pacific region relies on the courts as mechanisms of observance and enforcement. Yet, most disabled people, and disability advocacy groups in the region for that matter, do not have the time, money, or expertise to fight long court battles. For example, courts in India are notorious for backlog, which can delay cases for years. The importance of incorporating NHRIs that conform to the Paris Principles and NGOs into the legislation and legislation making process is especially acute here. These are the agencies that have the mandate to monitor and enforce the laws created by legislatures that do not have the political will, financial support and efficient bureaucracy to implement them successfully. NHRIs and NGOs are also important means of spreading information about any legislation, and can create strong advocacy groups that can in turn demand more from the government. The success of the Asia Pacific Decade of Disabled Persons depends not just on creating appropriate legislation regarding disabled persons but putting into place mechanisms for accurately monitoring such legislation.
- Human Rights Features
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