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ADHOC COMMITTEE ON
AN INTERNATIONAL CONVENTION

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Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities
New York, 16-27 June 2003

Panel I: Typology of international conventions and options for a convention on the rights of persons with disabilities, June 16

Professor Andrew Byrnes, Faculty of Law, Australian National University1

It is a privilege for me to be present at this meeting and to have the opportunity to contribute to discussion of what is a significant process in the development of international human rights and the rights of persons with disabilities.

My contribution comes from the perspective of an international human rights lawyer and I wish to identify some of the central issues which the discussions so far have raised or which will need to be addressed during the elaboration of a new convention on the human rights of persons with disabilities.

There are two questions I wish to address:

  1. Do we really need another convention or is there some other way of strengthening the protection of the human rights of persons with disabilities; and
  2. If we do need a new convention, what should it look like?

Need for a new convention?

There is already an enormous level of support for a new convention among the NGO community and evidenced by some governments. Yet we already have six major United Nations treaties in force (with their associated treaty committees), with a seventh to enter into force in just a couple of weeks, on 1 July 2003. The human rights guarantees in those treaties apply for the benefit of everyone, including persons with disabilities; at the same time the existing human rights treaty body system has been diagnosed as suffering from inefficiency, duplication or overlapping of standards.

There is no doubt that there are widespread and serious violations of the human rights of persons with disabilities, as well as failures to promote and fulfil their rights. This is so, notwithstanding the existence of disability-specific international instruments and the other human rights treaties. We must ask ourselves how well the existing UN human rights treat bodies have addressed disability issues and whether there is any realistic prospect that they may be able to devote the level of time and consideration to these issues that we consider they merit. If not, do we need to supplement them by the adoption of a new convention, or is there some other, more effective strategy that we should adopt?

In answering this question, it is important to recall that the most effective way of addressing a particular human rights issues may very well be a multi-pronged approach - one line of attack will rarely provide an adequate or effective response. This is one important lesson we can learn from the experience of the international women's human rights movement. So support for a convention does not mean that we should abandon mainstreaming, or not bother to strengthen the existing social developments strategies, or the mandate and work of the Special Rapporteur on Disability of the Commission on Social Development.

Do the existing mechanisms do enough? There is no doubt that there has been some important progress made in the consideration of disability issues by some of the human rights treaty bodies, reflecting the change in thinking about disability from a welfare or charity-based approach to a rights-based approach. The high point, though by no means the only significant development, has been General comment 5 of the Committee on Economic, Social and Cultural Rights on the human rights of persons with disability, adopted in 1994.

Yet despite these clear increase in attention to disability issues, the overall attention given to these issues is still relatively limited. This is because the existing bodies are subject to many demands, have limited time and resources, and must respond to a range of competing priorities. In reaching an assessment of how the existing treaty bodies have done, we are fortunate to have the recent and comprehensive study by Professors Gerard Quinn and Theresia Degener (and their collaborators) for the Office of the High Commissioner for Human Rights2. In that study, Quinn and Degener conclude3:

"[I]t must be frankly acknowledged that the treaty monitoring bodies will continue to have many different constituencies to keep in focus and many intractable and general issues to wrestle with. The pressure they are under is bound to increase. In other words, there is probably a limit to the extent to which these bodies can focus on disability - a limit that is explained by other pressing priorities. This is in no sense a criticism of the bodies concerned. It is simply a recognition of the reality that other matters will always compete for their attention."

It seems unlikely that the existing human rights treaty bodies would in the future be able to bring the focus and attention to disability issues that they do not now provide in a sustained manner. Thus, the case for a new convention is a compelling one if we want to achieve a satisfactory focus on disability issues at the international level, to influence national policy-making, and to stimulate greater awareness of disability issues in the existing human rights bodies.

What should a new convention look like?

Many proposals have already been put forward as to the principles that should guide the drafting of a new convention as well, as detailed suggestions of content. The challenge is to draw on existing human rights norms while innovating as appropriate to explicate the dimensions of rights which are of particular importance to persons with disabilities. It is critical not to allow existing standards and obligations of States to be diluted, which is a common danger when new human rights drafting exercises are undertaken.

Although the General Assembly in resolution 56/168 asked the Ad Hoc Committee to explore the issue of a convention "based on the holistic approach in the work done in the fields of social development, human rights and non-discrimination", there has been strong support for a "human rights" treaty. By this, I understand supporters to be calling for an instrument with clear statements of rights and specific enforceable obligations on States - rather than a statement of aspirational goals or very open-ended obligations which leave the question of what needs to be done largely to the State itself. Whether an instrument of this sort could be called a social development instrument as well is not clear, although it can be argued that guaranteeing the human rights of persons with disabilities in this way would itself contribute to human and social development.

Even if we are agreed that it is a human rights instrument that we want, there are still many important issues to be resolved. Already there have been many proposals, from previous meetings and from non-governmental organisations - a recent statement drawing on many of these earlier suggestions is the Bangkok Recommendations, adopted in June 2003 at a regional meeting organised by the United Nations Economic Commission for Asia and the Pacific4.

One issue is whether we should pursue a non-discrimination convention or a holistic convention. The former term is used to refer to a convention such as the Inter-American Convention on the Prevention of Discrimination against Persons with Disabilities, which contains a simple statement of non-discrimination, or the CEDAW and CERD Conventions, which contain similar general prohibitions on discrimination on the grounds of sex and race respectively, in conjunction with a list of specific rights which the drafters felt appropriate to include specifically.

The notion of a holistic convention appears to refer to a convention which would include not only guarantees of non-discrimination and equality, but also separate statements of existing rights guarantees, tailored to particular issues which persons with disabilities face. The Convention on the Rights of the Child and the Convention on the Rights of All Migrant Workers and Members of Their Families are the two most recently adopted United Nations human rights treaties that would seem to fall into this category.

There is much to be said for the adoption of a holistic convention, rather than a simple non-discrimination convention, given the need to explain how many existing rights should be interpreted so as to apply fully to persons with disabilities.

We also need to address which rights to include in any list of rights. It seems difficult to justify leaving out any of the specific rights guaranteed in the Universal Declaration of Human Rights and the UN human rights treaties (though a collective right such as the right to self-determination of peoples might not be appropriate to include). However, we also need to address the issue of how to treat the categories of civil and political, and economic, social and cultural rights, in respect of which States have historically been subject to different obligations of implementation - the former category of rights being immediately realisable and direct enforceable by courts, the latter aspirational, requiring progressive implementation, and not being justiciable.

The developments of the last 15 years or more within the UN human rights system have shown that such a view is a crude oversimplification of the nature of the rights concerned and that economic, social and cultural rights can be immediately effective in many cases, and may also be justiciable in a number of respects. It will be a challenge to capture these developments and not simply to reproduce the thinking of 40 years ago when the two Covenants were drafted. It will be not sufficient simply to copy over the language of the two Covenants which draws the distinction between the two categories of rights, as was done in the Convention on the Rights of the Child.

In addition to these general issues, there are many other matters that need to be addressed, including the need for definitions of disability, discrimination, reasonable accommodation, and accessibility, as well as how affirmative action and positive measures fit into the concept of discrimination. It may also be useful to consider whether it would be useful to make clear how the existing non-binding instruments such as the Standard Rules and the World Programme of Action would relate to the provisions of a convention.

Monitoring

There are a number of possible models for a monitoring procedure, though the UN human rights treaty bodies are currently undergoing reform and this may well result in some significant changes to the current system. However, from the various proposals which have been put forward a number of important elements for any monitoring procedure have emerged:

  • there must be an independent body to engage in assessments of the extent to which States parties to the convention have given effect to their obligations under the treaty
  • there must be significant participation by persons with disabilities and representative disability organisations in the nomination and selection of members, as well as in the membership of any supervisory body
  • expertise in disability issues should be an essential criterion for eligibility for nomination to and membership of a supervisory body
  • any monitoring system must provide for a number of procedures, including a reporting procedure, but should also provide an opportunity for individuals to seek redress for alleged violations of the convention through an individual communications procedure, and also permit inquiries by the supervisory body into situations in which there are alleged gross and systematic violations of the convention in a State party.

Conclusion

We are engaged in an ambitious and demanding task in which human rights specialists and disability rights specialists will have to learn from each other and work collaboratively with governments in order to ensure that the guarantees proclaimed in the Universal Declaration of Human Rights and the United Nations human rights treaties will be enjoyed by all of us.

-----------------------------------

Notes

1. For further development of some of the issues raised in this presentation, see Byrnes, "Reflections on the proposed international convention on the human rights of persons with disabilities in the light of existing international human right standards: form, process and substance" paper presented at Expert Group Meeting and Seminar on an International Convention to Protect and Promote the Rights and Dignity of Persons with Disabilities, Bangkok, 2-4 June 2003 (organised by the United Nations Economic Commission for Asia and the Pacific), available at http://www.worldenable.net/bangkok2003/paperbyrnes.htm
2. Gerard Quinn and Theresia Degener (and other coauthors), Human Rights and Disability: The current use and future potential of United Nations human rights instruments in the context of disability (New York and Geneva: United Nations, 2002).
3. Id at 13.2, p 299.
4. Bangkok recommendations on the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp10.htm

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