It is a great honor and a pleasure for me to participate in this discussion together with many professionals and activists considering the elaboration of a convention on the rights of persons with disabilities. I hope to be able to contribute to today's debate from my perspective of expert on children's rights and implementation of UN Convention on the Rights of the Child (CRC).
The Panel is invited to argue on the following issues:
- Nature of the Convention,
- Structure and Substantive elements of the convention,
- Monitoring mechanism of the convention.
All the background materials - the consultation papers, reports and other documents, clearly show a significant progress towards the elaboration of a convention on the rights of persons with disabilities. According to me some non-controversial concepts have been elaborated during that long process of thoughts and evaluations, which could serve as a starting point and a basis of our today's discussion. Let me summarize them:
- The status of disability not longer defines people as a vulnerable or a minority group within the society. The World Programme of Action concerning Disabled Persons does not consider persons with disabilities as vulnerable but as development agents and beneficiaries; it directs special attention to environmental factors that influence progress in equalization of opportunities.
- There is a need for a disability-specific convention. The thematic conventions address disability rights issues in a limited way. A new convention should be a binding instrument incorporating norms with an equal emphasis on both human rights and social development.
- Since the December 1975 Declaration on the Rights of Disabled Persons introduced a new conceptual approach to disability issues as human rights issues a new specific convention should reflect this move in thinking about disability at the international level from a social welfare model to a rights-based model.
- A new convention should be viewed as an integral part of the whole complex of international human rights (HR) standards that are contained in the UN treaties. It should strengthen the existing rights and instruments without diluting or undermining them.
I. My comments in the discussion on the Nature of a Convention derive from the following context:
- We have been suggested to consider three models, namely:
- Holistic rights-Model of the Convention on the Rights of the Child (CRC),
- Non-discrimination Model of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and
- Hybrid Model , combining social development and human rights elements.
- The model or the nature of a convention should be suitable to meet the expectations of two groups of subjects:
- Disability rights advocates and
- The governments. Their concerns relate to the justifiability of the resources at a time when the UN HR treaty system has been criticized for its inefficiencies and duplication and the onerous reporting burdens it already imposes on States1.
- The discussion so far on the three models mentioned above outlines as a central the concern regarding the nature of a new treaty - should it formulate new rights or if it should reaffirm the application of the existing HR focusing on non-discrimination issues.
The UN CRC as one of the "model" conventions
Each of the conventions suggested as models addresses particular group and reaffirms to different extend the universal human rights which members of those groups enjoy. At the same time each convention spells out the implications of those generally stated rights for the particular situation faced by the protected groups.
The conceptualization of the global children's rights at the international level dates back to the Geneva declaration of 19242. Since then one can identify over 80 international instruments that concern, in one way or another, the situation of children and many of them are binding. It became clear over the years that those provisions are not child specific, whilst being applicable to children and do not account to their special needs, which often require in principle setting of standards that are higher than those for adults.
That is why the initiative for drafting a child specific convention provided the opportunity to define more clearly and to harmonize the HR standards for children, to fill in the many gaps identified in the relevant provisions.
There were voices against that saying that this approach creates a danger in apparently distinguishing between children and other human beings. To calm those concerns the approach was defined that children have special HR rather than special rights as opposed to other humans. Furthermore standards frequently do have to be higher for children than for adults.
As one of the model conventions discussed in a process of elaboration of a convention on the rights of persons with disabilities the CRC is famous not only with its holistic approach bringing together all categories of human rights - civil, political, economic, social, and cultural, applicable to children but also with its method to develop some HR related to the specific situations of children. Although these rights are based on existing human rights applicable to all human beings they are specifically tailored to the needs of children. Nevertheless the substantial proportion of the CRC consists of a restatement of the rights contained in earlier instruments.
In general the CRC:
- reaffirms or reflects rights applicable to human beings of whatever age, e.g. protection from torture, the right to nationality and name, right to privacy, social security;
- improves of upgrades, with regard to children, standards, applicable to human beings in general thus taking in consideration the specific situations of children, e.g. special conditions for employment, administration of juvenile justice and deprivation of liberty;
- lastly, the CRC addresses issues and establishes standards specifically related to children, but not to other human beings - adoption, access to primary education, contacts with parents.
Most of the HR of children fall into the second and third of the above categories: they raise the standard or add to the general HR. They do so in order to take account of the principle needs of children as specially vulnerable, dependent and developing human beings. Developing all these categories of HR of children in one instrument, the CRC demonstrates their interdependence and integrated nature. That is why the convention moves away from the traditional typology of the HR but describes them in a manner that overall range of needs of the child have to be addressed by rights.
Finally, we must not forget also the major innovation of the CRC, which are the "participation" rights of children. This brings to the light the need of a similar explicit standard to be incorporated in a convention on disability.
What are the lessons of the CRC for the purposes of today's debate?
Bearing in mind the characteristics of the CRC listed above, according to me its main advantages are:
- It provides for a good model of combination of HR and social development - as a rights holder the child should also benefit from the developments in each sector of the society.
- Using its model would facilitate the development and application of universal human rights norms to the different situations and needs of persons with disabilities.
- It proclaims participation rights.
At the same time, the model of CRC has some disadvantages:
- It is an example of restatement of rights already contained in other HR treaties, thus focusing on the difference. This is a potential to marginalize some rights by developing rights outside the scope of the general human rights framework provided by the International Bill of Rights. (UDHR, ICCPR, ICESCR). Moreover, the "Vienna Program of Action" recognizes that "all human rights and fundamental freedoms are universal, and thus should unreservedly include people with disabilities."
- The CRC does not provide for specific guarantees in situations of discrimination, which is of a vital importance for the convention that is under a discussion.
- Disability is not an attribute to the person but a condition. As a contributed paper to the first session of the Ad Hoc Committee notes, the proposed convention needs to be clear in its definition of the population that is to be covered. Unlike existing HR instruments the comprehensive and integral international convention on the rights of persons with disabilities involves populations defined by a condition - a disability - and not an attribute, such as gender, in the CEDAW, or age, in the CRC. That is why the CRC model should not be followed without reservations.
The model of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
Alternatively to the CRC, the other two (CEDAW and the Convention on the Elimination of All Forms of Racial Discrimination (CERD) thematic conventions do not provide for the specific rights. They reaffirm the universal human rights of women and racial minorities focusing on how discrimination impedes their equal enjoyment of universal rights.
The advantage of these two Conventions is their non-discrimination approach - through identifying specific areas where discrimination is most likely to occur to specify appropriate measures to eliminate discrimination in these areas.
Such a model makes possible the approach that recognizes the elimination of discrimination against persons with disabilities as a principal requirement for the equalization of opportunities as well as developing guarantees to combat such discrimination, including special attention to addressing their specific needs or situations such as employment, education, treatment and rehabilitation.
This approach seems to be favoured by many commentators, which suggest that: "the central approach of a new convention should be to reaffirm the application of existing human rights norms to persons with disabilities, while expanding on what the full realisation of those rights means for persons with disabilities." It is the model that should be used in my opinion too.
According to the "Bangkok report" - two real options exist with their pro and contra arguments:
- The monitoring functions should be conferred on a new committee, with the possible exception of the inter-State procedures:
- a reporting procedure under which all States parties are required to report regularly on the steps they have taken to implement the Convention (this appears in all the conventions and is compulsory for any State which ratifies or accedes to the conventions);
- an individual complaint procedure under which an individual may bring a complaint to the committee that his or her rights have been violated (after exhausting remedies at the national level);
- an inquiry procedure under which the committee may on its own initiative institute an inquiry into a situation in a State party where the committee has received reliable information indicating that there are serious violations of the convention.
Arguments "pro" this model come from the good experience with the CRC and CEDAW (focal point for the government analyses, participation of disabled people).
Arguments "contra" - duplications, overburdens the government with reporting obligations.
- Second option - would be conferring on the Committee on Economic, Social and Cultural Rights the task of carrying out monitoring functions under the new convention.
The advantages of the CRC monitoring model
A number of aspects of the CRC monitoring mechanism would provide useful examples for monitoring a convention on the rights of persons with disabilities. They are:
- The committee comprises independent experts elected by state-parties to examine the reports on the implementation of the convention.
- The official implementation procedure provides for involvement of the NGOs, which may submit "alternative reports". This partly is a reflection of the active participation of the sector in the elaboration of the convention. Most of those NGOs become involved in the NGO Group coordinating their efforts. This group now is a privileged partner to the CR Committee.
- The Committee on the Rights of the Child emphasizes constructive dialogue with State parties about improvements and obstacles to the implementation of the convention. This approach responds to two realities: firstly - that monitoring by the Committee has a limited direct effect as such, because of the absence of sanctions that can be applied; secondly, that most countries would have little or no chance of complying with the convention's provisions unless provided with appropriate technical and other assistance. As a result, ratification by a wide range of counties has been facilitated and maximum potential impact of the convention has thereby been greatly assisted.
- The Committee's "General Comments" and "Days of General Discussion" also provide useful examples for monitoring mechanisms.
On the other hand, the individual petition mechanisms instituted by other conventions, such as CERD and the Optional Protocol to CEDAW, would be instrumental in addressing specific rights violations.
Thank you for your attention.
1. Bangkok recommendations on the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities - Outcome of an expert group meeting and seminar held in Bangkok at the headquarters of the Economic and Social Commission for Asia and the Pacific from 2 to 4 June 2003 (A/AC.265/CRP.10).
2. Background materials used: Nigel Cantwell (1995) Introduction to the UN CRC. In the DCI International standards concerning children's rights. The Future UN CRC. DCI/UNICEF Briefing Kit. Third edition, 1989.
Return to top