New law-making under the UN: the example of the CRPD.

1. New law-making under the UN: the example of the CRPD.

2. 2. Outline: • Understanding of and attention to disability in the UN before the CRPD. • The decision to negotiate the CRPD. • The negotiation process. • What kind of instrument? • What actors? • Modus operandi • The essence of change: understanding of disability and Article 3 on General principles.

3. 3. Before the 1970’s • Almost all work in relation to disability took place in the World Health Organization and the Commission on Social development. • Disability was an issue of prevention, cure and rehabilitation. • Work in the UN human rights framework largely ignored disability. • UDHR, Article 25 on social protection • ICCPR and ICESCR do not mention disability at all. • Disability is understood as an individual, medical issue only.

4. 4. The 1970’s • Declaration on the Rights of Disabled Persons (1971). • Integration, but by changing the individual, not society. • CEDAW (1979) does not mention women with disabilities.

5. 5. The 1980’s • The International Year of the Disabled(1981) • “Full participation and equality” • United Nations Decade for Disabled Persons (1982-1993). • The World Program of Action Concerning Disabled Persons (1983) “Prevention, rehabilitation and equal opportunities” • A shift to focus on the limitation of the environment, not the individual. • Connection to UN human rights bodies. • Suggestions for a human rights convention on disability (1987, 1989). • Universality and stigma v. Visibility and concretisation

6. 6. The 1990’s • CRC • Articles 2 and 23 mention disability. • General Comment 18 by the CEDAW Committee (1991). • UN Standard Rules for the Equalisation of Opportunities for Persons with Disabilities (1993). • Goals: Participation and equal opportunities. • Four categories: Prerequisites, areas, measures, implementation mechanisms. • Mirrored the aims and contents of human rights law. • General Comment by the ICESCR Committee (1995) • Spells out the relevance of each article.

7. 7. 2000 til now… CRPD- A Human Rights Convention on Disability (2001-2008)! CRC General Comment 9 The Rights of Children with Disabilities (2006).

8. 8. Disability in the reporting procedure pre CRPD: All CO’s 2002-2006: “disability”, “handicapped”, “vulnerable groups”. • HRC 13% (12/91) • CESCR 59% (46/77) • CERD 8% (13/159) • CEDAW 36% (27/73) • CAT 6% (6/87) • CRC 81% (146/180) Source: IDC Fact-sheet, 25 July 2006

9. 9. A Changed Understanding of Disability Paved the Way for Human Rights:

10. 10. The decision to develop the CRPD • December 2001 – Mexican proposal in the General Assembly to establish an “Ad Hoc Committee on A Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities” to consider proposals for a “comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities”. • Grounded in disappointment in silence on disability in Millennium Development Goals. • Representatives of UN member states, UN organs, National Human Rights Institutions and human rights and disability NGO’s (no-going back!). • Ideological/institutional clash: • A question of health and social development/human rights? • Commission for Social Development/Commission on Human Right (compare two websites).

11. 11. The decision to develop the CRPD • Sessions 1-2 2002-2003: • What kind of instrument? • OP/free standing convention? Monitoring body? • General/detailed? • Non-discrimination/minimum standards? • Principled positions: how to understand the target group and the situation facing them? → Preamble e) (portraying “disability”) Article 1 on Purpose (portraying “persons with disabilities” and Article 3 on General principles.

12. 12. CRPD: the Process • January 2004 – the working group met and produced a working draft of the convention text, taking into account the numerous draft texts submitted by States and others. • May 2004 –August 2005: sessions 3, 4 and 5: Negotiations based on the Working group draft. • The debated role of civil society – massive impact on the text of the CRPD. “Nothing about us without us”. • Immense ideological change among State representatives – language, proposals etc. • January 2006- December 2006: sessions 6, 7 and 8:Negotiations based on the Chair persons draft convention. • Limitation of the mandate of civil society to speak in plenary – lobbying in sess. 8.. • The difficult task and the influence of the Chair person. • 13 December 2006 – the UN General Assembly adopted by consensus the Convention on the Rights of Persons with Disabilities and its Optional Protocol. • 30 March 2007 – the Convention and Optional Protocol opened for signature at UN Headquarters in New York. States or regional integration organizations may now sign the Convention and Optional Protocol at any time at UN Headquarters in New York. • 3 April 2008 - The Convention on the Rights of Persons with Disabilities received its 20th ratification on 3 April 2008, triggering the entry into force of the Convention and its Optional Protocol 30 days later • 3 May 2008 - The Convention on the Rights of Persons with Disabilities and Optional Protocol entered into force. • Ratification status CRPD (R141/S158) OP CRPD (R79/S92).

13. 13. CRPD: The essence of the changesought. • An interactive understanding of disability – placing the individual in the drivers seat and implicating the environment rather than the individual as the locus of change! “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” (Art 1) • Dignity, autonomy , choice and independence Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; (Art3 a). • Participation, accessibility and inclusion in society Full and effective participation and inclusion in society; (Art3 c). Accessibility; (Art3 f). • Equality and non-discrimination Non-discrimination; (Art3 b). Equality of opportunity; (Art3 e) • Disability as a predictable human variation. “Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;” (Art 3 d). • Raising the stakes and questioning of the norm: the demand for all encompassing/alternative solutions which may have cost: HM v. Sweden, SzilviaNyusti and PéterTakács v. Hungary.

14. 14. CRPD: Contents 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. Respects 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 Article 34 and on… International monitoring and final clauses Optional Protocol on monitoring

15. 15. Summing up… • The CRPD is the culmination of 50 years of disability gradually closing in on the human rights framework. It establishes once and for all that the life situation of men and women with disabilities is a question of human rights. • The reality of persons with disabilities has been largely invisible under earlier human rights law, such as the ICCPR, ICESCR, CEDAW and (to a lesser extent) CRC. • The CRPD builds on the rights already protected in theory for ‘everyone’, and gives them meaning in the lives of persons with disabilities. • The CRPD illustrates in detail how current society hinders the enjoyment of human rights for persons with disabilities, and how this can and should be remedied. • The CRPD arguably embodies considerable ideological change... • Does this amount to ”new rights”? • What is ”new rights”? • According to your criteria, does X amount to new rights?

16. CRPD Committee Draft GC Art. 9 11. Article 9 of the Convention clearly enshrines accessibility as the precondition for persons with disabilities to live independently, participate fully and equally in society, and have unrestricted enjoyment of all their human rights and fundamental freedoms on an equal basis with others. The Convention does not create any new rights; indeed, accessibility should not be viewed as a new right. As indicated in the introduction, some of the core human rights instruments recognize the right to access: the International Covenant on Civil and Political Rights (art. 25 (c)) and the International Convention on the Elimination of All Forms of Racial Discrimination (art. 5 (f)). Accessibility should therefore be considered in the context of the right to access, seen from the specific perspective of disability. This is a widely accepted approach in comparative law and is applied in different national laws on equal opportunities and the prevention of disability-based discrimination. [Alternative text: 11. Although reference was made during the negotiations on the Convention on the Rights of Persons with Disabilities to the fact that the intention was not to create new rights, reading the text of article 9 in conjunction with the general rule of interpretation in article 31 of the Vienna Convention on the Law of Treaties, one could conclude that accessibility is in fact a new right. Reading the text in accordance with the ordinary meaning of the terms of the Convention, it is clear that it establishes binding obligations for States and consequently, rights for persons with disabilities that are not included in the other core human rights treaties, although article 25 (c) of the International Covenant on Civil and Political Rights and article 5 (f) of the International Convention on the Elimination of All Forms of Racial Discrimination do contain important precedents.]

17. CRC Committee GC 6 In sum, CRC General Comment 9 appears shaped by Article 23 and its focus on the provision of services and prevention. Albeit the General Comment notes that “the barrier [to the full enjoyment of the rights in CRC] is not the disability itself but rather a combination of social, cultural, attitudinal and physical obstacles which children with disabilities encounter in their daily lives”, this message does not permeate the addressing of other issues throughout the General Comment. It uses the vocabulary of Article 23 in that it repeatedly refers to “special care”. In addition, it refers to children with disabilities as “children who suffer disabilities” and phrases the goal of information on “causes, management and prognosis” of impairment as “enable[ing] them [children with disabilities] to adjust and live better with their disabilities”. It also emphasises the difficulties in bringing up a child with disabilities and directs the reason for such difficulties to the child without recognition of the attitudinal, built and other environment. It thus states that “children with disabilities often pose a challenge in the extra care they may need and the special requirements in their physical, psychological and mental upbringing” and the need for support groups for care takers are justified by the need for assisting them in “coping with their [children with disabilities’] disabilities”. Measured against the CRPD, the identification of the source of difficulties is unbalanced towards the individual diversity rather than the environment and the focus on the challenges posed by children with disabilities is left without recognition of their potential contribution to a family. Finally, unnecessarily negative expressions such as “suffering” are used with an air of generality.

18. Spanners in the wheels.. Preamble (u) Bearing in mind that conditions of peace and security based on full respect for the purposes and principles contained in the Charter of the United Nations and observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation, 25 (a) Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes;