1. This paper is a submission to the working party set up by the United Nations Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities. It outlines New Zealand's view on the approach, elements and scope of the proposed Convention.
Background and general approach
Re-stating New Zealand's support for the development of a convention
2. New Zealand's community of disabled people and human rights organisations have long been actively involved in working towards a United Nation's convention that promotes and protects the human rights and fundamental freedoms of disabled people. The New Zealand Government also fully supports the development of such a convention.
3. The six core UN human rights conventions apply to all people, including disabled people. New Zealand is party to all six, and we take our obligations under those conventions seriously. But despite the existence of these treaties, as well as four non binding disability specific instruments, disabled people throughout the world continue to experience violations of their human rights. In our own experience for example, the second largest group of complaints under the New Zealand's Human Rights Act are those claiming discrimination on the grounds of disability, especially in employment matters.
4. New Zealand considers, therefore, that a new rights-based convention, specific to disabled people, is needed to complement the existing human rights instruments.
Context and philosophy of this submission - the New Zealand Disability Strategy
5. In developing New Zealand's contribution to the Working Group we have been guided by our own national Disability Strategy, which was produced after extensive consultation with the disability sector. We believe that the approach we have taken, and the experience we have gained in developing and implementing our Disability Strategy, has application and resonance internationally.
6. The aspirations of disabled New Zealanders provide the vision for the New Zealand Disability Strategy and can be summarised as a desire to live 'an ordinary life' where disabled people can say 'our lives are highly valued and our participation is continually enhanced'. An 'ordinary life' is one which involves the same sorts of choices, rights and responsibilities that non disabled people expect to experience. To elaborate the pathways towards realising these aspirations the Strategy takes a rights based approach and builds on core principles of inclusion, participation, interdependence, equity and partnership. It also challenges historic ways of considering or defining disability within a medical or charity frame.
An understanding of disability - disablement - as a process
7. In the New Zealand Disability Strategy disablement is understood as a process that occurs when people, with a diverse range of impairments, are disabled by barriers to their participation and independence in society. To ensure a society that is inclusive and which enables disabled people to exercise their human rights, it is necessary to design and reframe the social and physical environment in a way that accommodates people with impairments.
8. Disabled people are not a homogenous group. In reality, some disabled people do not wish to identify as disabled. However, New Zealand believes it is very important that an understanding of disability is adopted for the Convention that is as broad and inclusive as possible, so that it is not possible for some groups to be more easily denied their human rights. The understanding should seek to encompass the full and diverse range of impairments including physical, sensory, neurological, psychiatric, intellectual and other. Furthermore it should also encompass people with permanent, intermittent, temporary and perceived impairments (To understand this idea of perceived impairment it is important to make a distinction between impairment and disability. Someone who is deaf or who experiences voices may not consider this experience as an impairment but society may discriminate against the individual because of what society perceives to be an impairment and therefore the individual experiences disablement).
9. By understanding disability as a process, we can include in the scope of the Convention all people who experience barriers associated with any form of functional impairment and as a result cannot enjoy fundamental human rights. In this sense 'disablement' or 'disability' is the common experience that provides a common framework for a convention promoting the rights of disabled people whereas the experience of impairments is very diverse.
Scope of the Convention
10. With this understanding of disability, it is clear that measures to ensure the rights of disabled people require affirmative action to change and develop the social infrastructure. We note that these affirmative measures can be of a significantly different nature to those proposed to eliminate discrimination on the basis of race or gender. The latter aim to equalise opportunities for certain population groups, with the assumption that once this has occurred the measure will no longer be required. In contrast to this, affirmative action for disabled people might be targeted at permanent changes in the environment or involve the provision of ongoing and specific support to ensure individuals are able to exercise their rights.
11. Consistent with the rights based social model for dealing with disability issues, New Zealand believes it is important to retain a primary focus on supplementing the assertion of rights contained in the International Bill of Rights and other instruments. The Convention should highlight, reaffirm and articulate the rights of disabled people. It does not need to create new rights but will need to elaborate on what is required by States to give effect to existing rights. This must involve consideration of the social, cultural, economic, civil and political conditions that are required to ensure the full and diverse population of disabled people are able to exercise their rights. This will also entail explicit recognition and understanding of disability in a rights framework rather than the historically more typical health or welfare frameworks.
12. We appreciate that this rights approach does not deal with some very important issues such as those relating to public health matters, including prevention of illness and injury. We believe, however, that these matters are more adequately dealt with in other settings. Promotion of the social, economic and political conditions necessary to prevent illness or injury and related impairments are extremely important. The general improvement of the overall economic, social and political conditions within a State, however, is likely to help promote the realisation of the rights of all people, including disabled citizens. Social and economic development activities that help prevent impairment are targeted at, and assist, whole populations. New Zealand believes, therefore, that such activities are more appropriately addressed within the context of more general instruments. A convention on the rights of persons with disabilities should focus on its unique role to promote and protect the rights of those who require special consideration in order to enjoy their rights and freedoms.
Typology and/or models to inform the Convention
13. We urge the working group and participants of future Ad Hoc Committee meetings to help prevent misunderstandings around the nature and scope of the Convention, by continually using concrete examples when discussing typology or models. We believe this to be particularly important around the use of terms such as 'social development', 'discrimination' or 'holistic'.
14. We propose four considerations, models or methods for analysing how the rights of disabled people can be protected and promoted when drafting the elements of the Convention.
15. Firstly drafters should ensure the elements cover all aspects of life (Figure One) for disabled people including employment, housing, education, recreation, mobility, political process, sexuality, relationships, families and parenting, personal and health care, access to information, communicating and income.
Figure One: Areas of life
16. Secondly drafters should consider the aspiration for an 'ordinary life'. This can be achieved through first considering the choices, rights, and responsibilities that non-disabled people expect to experience (in all 'areas of life'). And then considering what sort of social changes, supports, safeguards and environmental factors are required to ensure that disabled people are able to experience the same range of choices, rights and responsibilities.
17. Thirdly the Convention should give special consideration to those disabled people who experience double-disadvantage, such as indigenous peoples, ethnic minorities, and women. We are also mindful of the rights of people who experience the most profound or significant impairments often lifelong and life defining. This latter group have perhaps most often been denied the most fundamental human rights across all nations.
18. Fourthly the Convention should consider the whole life cycle. This means considering how to guarantee the rights of disabled children, adolescents, adults and seniors regardless of the type, the cause or severity of impairment.
Bangkok Asian and Pacific ESCAP meeting in June 2003
19. New Zealand supports the recommendations developed by the Asian and Pacific regional expert committee in Bangkok June 2-4 2003 (A/AC.265/2003/CRP/10). That meeting proposed a comprehensive convention that restates the rights contained in existing human rights instruments, but goes further than a simple statement of the right to equality and non discrimination in the enjoyment of human rights and fundamental freedoms. They offer a very pertinent outline of the scope, elements, principles and objectives for such a convention. The following text draws upon aspects of the notes from the Bangkok seminar and also from the approach of the New Zealand Disability Strategy.
20. New Zealand considers that the Convention should include the following elements:
21. New Zealand considers that the preamble should recognise the great value of all existing international human rights instruments, in particular those that are specific to disabled people. However, it should acknowledge the continuing widespread denial to disabled people of their guaranteed human rights and fundamental freedoms. It should emphasis the responsibility of States to eliminate the barriers to full participation of disabled people in society and the need to explicitly elaborate what honouring the core human rights treaties actually means in relation to disabled people.
Statement of principles and objectives
22. New Zealand proposes that the Convention should:
Scope - understanding of disability and disablement as a process
23. New Zealand suggests that rather than define disability it should adopt an understanding of disability as a process rather than something which individuals possess. The process of disablement occurs when people with impairments experience barriers to their full participation in society and their enjoyment of human rights. The understanding should also seek to encompass the full and diverse range of functional impairments including physical, sensory, neurological, psychiatric and intellectual all of which may be permanent, intermittent, temporary or perceived as impairment by society but not by individuals.
24. Non-discrimination measures should cover direct and indirect (hidden or systematic discrimination) including all arrangements, practices and social structures that might lead to the denial of rights and freedoms to disabled people. Discrimination must be considered to include a failure to accord reasonable accommodations or supports to ensure equal access to the choices, rights and responsibilities in all areas of life.
25. As outlined in the Bangkok statement New Zealand believes that the Convention should contain a clear statement of the obligations of States to implement its provisions. To ensure that the Convention places realistic and achievable obligations on States, there is a need to recognise and distinguish between those specific rights which are immediately applicable (as already required under existing human rights treaties), and those which are required to be progressively achieved. The latter would acknowledge that structural and social changes to society occur over time with proactive intervention from governments and legal systems. States should be obliged to ensure an enabling environment and a barrier-free society.'
26. States should be obliged to take legislative, programmatic and policy actions to implement the provisions of the Convention, in particular the obligations to respect, ensure and provide enforcement mechanisms for violations of the rights set out in the Convention. These measures should include specific constitutional or legislative guarantees of the rights of disabled people to enjoy human rights and fundamental freedoms without discrimination.
27. The Convention should also clearly set out the obligations of States in relation to the acts of non-State actors that involve the denial of the human rights of disabled people. In these ways States should provide guarantees of equality of opportunity and of non-discrimination, both generally and in the enjoyment of rights guaranteed in the Convention.
28. New Zealand considers that an essential and successful part of its approach to ensure that disability issues are adequately understood and addressed, and to ensure disabled peoples' rights are realised, is to develop government policy in partnership with disabled people. This principle of partnership is a goal in its own right as well as an important part of the process for achieving other goals for disabled people. New Zealand believes this principle of partnership needs articulation as a general obligation in the Convention. That all States and international bodies should develop all polices and practices, in relation to the Convention and any other matter with a significant impact on disabled people, in partnership with their disabled citizens.
Guarantee of equality and non-discrimination
29. New Zealand considers that the Convention should contain a general guarantee of equality and non-discrimination in the enjoyment of the rights set forth in the Convention, as well as a free-standing guarantee of equality and non-discrimination as set out in article 26 of the International Covenant on Civil and Political Rights.
30. In relation to people who experience double disadvantage the Convention should make specific reference to the right to equality and non-discrimination in the enjoyment of human rights and fundamental freedoms for disabled women, children, minority ethnic or cultural groups and indigenous peoples.
Guarantees of specific rights
31. New Zealand believes that all existing human rights and guarantees need to be further elaborated to ensure a consistent understanding about what they mean for disabled people. However it is also important to acknowledge the diversity of contexts that disabled people are living in and therefore maintain a non-prescriptive approach to the elements of the Convention. The measures that States must employ to ensure equal opportunities for, and the realisation of the fundamental rights of, disabled people are intimately related to the local social infrastructure. They are dependant on the specific institutional, social, political, economic and cultural contexts. It is therefore not desirable to exactly prescribe the measures but rather to focus on the intended outcomes that would be expected to result from disability specific measures.
32. For example the Convention will need to consider the universal right to political participation. For disabled people this requires (amongst other things) that all information related to the political process is available in accessible formats. This could be articulated as 'ensure public information is accessible to disabled people'.
33. The specific rights elaborated in the Convention should ensure the (non-discrimination) rights for disabled people to experience the same choices and responsibilities as non-disabled people in relation to employment, housing, education, recreation, mobility, political process, sexuality, relationships, families and parenting, personal and health care, access to information, communicating and income. An approach that considers all areas of life may be a useful format for the Convention to adopt. This approach helps States to regard the problems related to disability as rights issues - rather than health or welfare issues, which while very important only relate to one aspect of a disabled persons life. An 'all areas of life' format will help to promote and reflect the shift from understanding disabled people as charity cases or patients to an understanding of disabled people as citizens.
Other state obligations and monitoring mechanisms
34. New Zealand supports the considerations and recommendations outlined in the statement from the Bangkok seminar in relation to obligations around appropriate institutions and monitoring processes. In particular, New Zealand wants to restate its support of proper representation of disabled people in all organisations and processes set up in relation to the Convention.