Chapter Two: The Convention in detail
- Historical developments leading to a new convention
- The Convention at a glance
- The rights and principles enumerated in the Convention
- Obligations of States parties under the Convention
- Comparing the Convention to other human rights treaties
THE CONVENTION AT A GLANCE
The purpose of the Convention
Article 1 of the Convention on the Rights of Persons with Disabilities states that the purpose of the Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
The scope of the Convention
The Convention promotes and protects the human rights of persons with disabilities in economic, social, political, legal and cultural life. It calls for non-discriminatory treatment and equality in access to justice, in treatment by the courts and by the police and in undertaking administrative tasks by providing the necessary reasonable, procedural and age-appropriate accommodations, in education, in health care, in the work-place, in family life, in cultural and sporting activities, and when participating in political and public life. The Convention ensures that all persons with disabilities are recognized before the law. It also prohibits torture, exploitation, violence and abuse, and protects the life, liberty and security of persons with disabilities, their freedom of movement and expression, and respect for their privacy.
The Convention does not explicitly define the word “disability”; indeed, the Preamble to the Convention acknowledges that “disability” is an evolving concept (subpara. (e)). Nor does the Convention define the term “persons with disability.” However, the treaty does state that the term includes persons who have long-term physical, mental, intellectual or sensory impairments that, in the face of various negative attitudes or physical obstacles, may prevent those persons from participating fully in society (article 1).
The recognition that “disability” is an evolving concept acknowledges the fact that society and opinions within society are not static. Consequently, the Convention does not impose a rigid view of “disability,” but rather assumes a dynamic approach that allows for adaptations over time and within different socio-economic settings.
The Convention’s approach to disability also emphasizes the significant impact that attitudinal and environmental barriers in society may have on the enjoyment of the human rights of persons with disabilities. In other words, a person in a wheelchair might have difficulties taking public transport or gaining employment, not because of his/her condition, but because there are environmental obstacles, such as inaccessible buses or staircases in the workplace, that impede his/her access.
Similarly, a child with an intellectual disability might have difficulties in school because of teachers’ attitudes toward him/her, inflexible school boards and possibly parents who are unable to adapt to students with different learning capacities. It is thus vital to change those attitudes and environments that make it difficult for persons with disabilities to participate fully in society.
The Convention indicates, rather than defines, who are persons with disabilities. Persons with disabilities “include” those persons with long-term physical, mental, intellectual or sensory impairments; in other words, the Convention protects at least those individuals. Implicit in this indication is the understanding that States may broaden the range of persons protected to include, for example, persons with short-term disabilities.
We are now enacting a National Disability Act, which is an all-embracing legislation that will serve to give legislative teeth to the protection of persons with disabilities. We are also putting in place a number of programmes and initiatives to improve the educational capacities of persons with disabilities because we believe that if the lives of persons with disabilities are to be transformed in a sustainable way, it has to be done through education. And so we are deeply proud to be the first country to have ratified the Convention.
Senator Floyd Emerson Morris,
Minister of State in the Ministry of Labour and Social Services (Jamaica)
NON-DISCRIMINATION AND EQUALITY
The principle of non-discrimination is a cornerstone of human rights law and a principle included in all other human rights treaties. Discrimination on the basis of disability is defined in the Convention as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.”
States must stop discrimination both in law, such as discrimination embodied in legislation, and in practice, for example when discrimination occurs in the workplace. However, States may still discriminate in favour of persons with disabilities when this is necessary to ensure that persons with and without disabilities have equal opportunities.
“Reasonable accommodation” means carrying out, when necessary, appropriate modifications and adjustments, which do not impose a disproportionate or undue burden, so that persons with disabilities can enjoy their human rights and fundamental freedoms on an equal basis with others (article 2). Given this principle, an individual with disabilities can argue that the State and, through the State, other actors, including the private sector, are obliged to take steps to accommodate his/her particular situation, as long as those steps do not impose a heavy burden.
For example, if an employee has an accident, in or outside the workplace, that results in a physical disability that requires the employee to use a wheelchair from then on, the employer has a responsibility to provide ramps, wheelchair-accessible toilets and clear corridors, and to make other adjustments and modifications so that the person can continue working as an active employee. The failure to make such accommodations could prompt the individual employee to bring a claim of discrimination to an appropriate judicial or quasi-judicial body.
However, the accommodations that the employer must undertake are not unlimited; they must only be “reasonable.” Thus, disproportionately expensive reconfigurations of the work site would not be mandatory, particularly if the enterprise concerned is very small or if its facilities cannot be modified easily.