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AD HOC COMMITTEE ON
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| Documents and contributions |
| NGO Participation |
Ad Hoc Committee :
Contributions :
NGOsDisability Awareness in Action (DAA)Submission to the United Nations Ad Hoc Committee on a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilitiesRichard Light |
Contents: |
2. |
Introduction |
2.1 |
Human rights for disabled people: a promise still to be honoured |
| 2.1.1 | The landmark report by Leandro Despouy[2], Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities [as was], stated:
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| 2.1.2 | As we approach the tenth anniversary of this Report it must, regrettably, be acknowledged that the intervening decade has not brought a significant improvement in the situation of disabled people, particularly those in the developing world. |
| 2.1.3 | As Ann Elwan[3] has noted, disability and poverty are too often synonymous (1999:i) and, as DAA have consistently shown,[4] breaches of the Universal Declaration of Human Rights are frequently endured by disabled people, at least 5,500 of whom have died as a direct result of such abuse since 1987.[5] |
| 2.1.4 | Although goodwill and rhetoric exist in abundance, effective and enforceable measures to better protect the human rights and fundamental freedoms of disabled people are conspicuous by their absence. The elaboration of an enforceable international instrument to promote and protect the human rights and fundamental freedoms of disabled people is not an idea whose time has come; it is an idea whose urgency has been too long disregarded. |
2.2 |
Toward a Convention |
| 2.2.1 | We are aware that there is not yet a UN mandate for the elaboration of a convention, or indeed any other instrument, to protect the human rights and fundamental freedoms of disabled people and, accordingly, this submission is largely confined to over-arching principles. |
| 2.2.2 | DAA is committed to contributing to the UN task of elaborating a convention and will, whenever we have competency in the areas under examination, seek to provide further submissions. |
| 2.2.3 | There is an understandable sense of urgency amongst many disabled people and their representative organisations to expedite the process of elaborating and implementing a convention; we entirely understand this desire to avoid unnecessary delay but are equally aware that an inefficiently or inappropriately constructed legal instrument is likely to be more harmful than no instrument at all. |
| 2.2.4 | An issue of fundamental importance, to which reference will undoubtedly be made again, is the vital role that disabled people and our representative organisations must play in the elaboration of a convention. Too often, our views are marginalised and diminished because disabled people are viewed in patronising terms: as ‘clients’, ‘users of services’ or ‘vulnerable people for whom others must act’, rather than as equal participants with expertise and competency in our own right. We would assert that it is essential that disabled people are allowed a full and active role, in all processes that contribute to the elaboration of a convention. |
| 2.2.5 | Whilst a convention will be addressed to States parties, we are also keen to ensure that UN agencies benefit from the process of elaborating a convention and highlighting the needs of disabled citizens. In this regard, we sincerely hope that the UN will review its own policies and procedures for the effectual inclusion of disabled people in all its programmes as well as promoting the appointment of disabled people within UN agencies.[6] |
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3. |
Overarching principles |
| 3.1 | Need to promote disabled people’s human rights |
| 3.1.1 | DAA is convinced of the pressing need to elaborate an effective international and enforceable instrument to promote and protect the human rights and fundamental freedoms of disabled people.[7] |
3.2 |
Mainstreaming |
| 3.2.1 | Vital though we believe a thematic convention to be, we are anxious to ensure that the promotion of disabled people’s human rights and fundamental freedoms is not postponed until such a convention is implemented. Accordingly, we would encourage the UN, individual States parties and national human rights institutions to mainstream disability within existing human rights standards and programmes. |
| 3.2.2 | For example, we believe that both national and thematic Rapporteurs within the UN High Commission for Human Rights should, without delay, more effectively include disabled people within their mandate. DAA is particularly concerned about the plight of disabled people in areas of armed conflict, the situation of disabled women and children and the protection of disabled refugees. We believe that vital progress could – and should – be achieved, prior to the implementation of a thematic convention, by ‘mainstreaming’ disability within these areas. |
| 3.2.3 | We are aware that the principle of mainstreaming disability within existing programmes, whilst simultaneously elaborating a thematic convention, is often described as a ‘twin-track’ approach. It would also appear that the phrase ‘multi-tracking’ is used to extend discussion to embrace the continued promotion of other UN programmes, particularly the UN Standard Rules on the Equalization of Opportunities for Disabled Persons. In our experience, the precise meaning intended by the use of these phrases is unclear and tends to impede, rather than promote, understanding amongst relevant stakeholders. Whilst we prefer the more widely understood phrase: ‘mainstreaming’, we unequivocally support the continued use of the UN Standard Rules and recently published Supplement to the UN Standard Rules. |
| 3.2.4 | DAA and its subsidiary DAART Centre, in particular, would be delighted to assist in the development of activities to mainstream disability within existing programmes with any governmental or human rights agency. |
3.3 |
Defining the protected class |
| 3.3.1 | As a review of existing legislation in favour of disabled people will show, there are substantial regional variations in the way in which “disabled person” is defined. To a large extent, such variation reflects differing cultural responses to disablement but, further, also bears witness to sometimes very different perceptions of, and attitudes toward, disabled people. |
| 3.3.2 | Whilst there is an understandable desire for states to be able to classify those included within the protected class of “disabled people”, there is an equally understandable abhorrence amongst many disabled people to the creation of a medically-based taxonomy. |
| 3.3.3 | We believe that constructing a mutually acceptable definition of “disabled person” offers the greatest, but entirely avoidable, risk of deadlock, both between States parties and between States parties and disabled people. |
| 3.3.4 | DAA urges the Ad Hoc Committee to postpone the task of defining “disabled person” to the final stages of the elaboration of a convention, so as to better ensure that all parties engage in the debate from a broadly similar and well informed base. We believe that the process of elaborating a convention offers vital opportunities to increase awareness of the views of disabled people, revise outdated assumptions and combat prejudice. Thus, we see it as imperative that this process be allowed the opportunity to ‘mature’, before seeking to resolve this technical issue. |
3.4 |
Human rights and economics |
| 3.4.1 | Whilst much of DAA’s work is devoted to the situation of disabled people in developing and transitional countries, we reject, out of hand, any suggestion that the protection of human rights should be made conditional on economic criteria. We believe that such a suggestion is intellectually and ethically insupportable and that, as a matter of fundamental legal principle, respect for human rights and fundamental freedoms cannot be made conditional on external social or economic criteria. |
| 3.4.2 | The existing human rights instruments already acknowledge the differing resources available to States parties and the implications for the development of human rights, with the inclusion of caveats like: “to the maximum of its available resources”, “the highest attainable standard” and “in accordance with the organization and resources of each State”. We contend that additional references to economic criteria are unnecessary and inappropriate. |
| 3.4.3 | Further, whilst it is entirely appropriate to acknowledge the disparity in resources available to States parties, we are anxious to avoid this disparity being used to prevent progress. Accordingly, we urge that the convention specifically refer to the principle of progressivity. |
3.5 |
The vital role of disabled people |
| 3.5.1 | Whilst the disabled population is widely heterogeneous, it is generally agreed that there are recurring factors that are synonymous with disablement: poverty, exclusion, discrimination and disempowerment. |
| 3.5.2 | It remains the case that there is little room made for the views of disabled people when drafting policy of direct concern to us; whether founded in prejudice, fear or patronising assumptions, the contribution that disabled people can – and we would argue, should – make to the development of disability policy is too often discounted. |
| 3.5.3 | The phrase: “Nothing about us without us” has now achieved international currency within the disability movement and any attempt to elaborate a thematic convention on the human rights and fundamental freedoms of disabled people cannot be allowed to exclude our community. |
3.6 |
The rights to be protected |
| 3.6.1 | A thematic convention must commence with an unequivocal statement that disabled people are entitled, without discrimination, to the equal enjoyment of human rights and fundamental freedoms, without exception, abrogation or diminution. |
| 3.6.2 | In any consideration of disabled people’s human rights, we would emphasise that it is essential that the monitoring body assess genuine levels of enjoyment of human rights and fundamental freedoms, on the basis of tangible and demonstrable evidence of progress within States. |
| 3.6.3 | It is patently the case that disabled people would benefit from human rights defined with specific regard to their situation and, if there were political consensus to adopt such an expansive approach, we would welcome the inclusion of explicit disability rights within a thematic convention. However, we do not believe that States parties are, at this time, prepared to contemplate the expansion of human rights beyond those contained within existing instruments. |
| 3.6.4 | So, whilst DAA could, in principle, tolerate an instrument that ensures the effective enjoyment of existing human rights standards, we would emphasise that there are some disability-specific issues that must be addressed within a thematic convention, including but not confined to explicit acknowledgement of disabled people’s fundamental right to life, liberty and security of the person, freedom from torture and cruel, inhuman and degrading treatment or punishment. |
3.7 |
Development |
| 3.7.1 | In order to pursue the right to development, States parties should ensure that their own policies and programmes, together with partnership arrangements with foreign aid and development agencies, guarantee that disabled people are equally supported within all development programmes and projects and endorse equal access to credit and loan facilities, employment opportunities and appropriate rehabilitation and technical support services. |
3.8 |
Monitoring |
| 3.8.1 | DAA is convinced that the protection and promotion of disabled people’s human rights and fundamental freedoms will be rendered meaningless without precise and enforceable monitoring procedures. Such procedures must be included within a thematic convention. |
3.9 |
The role of the UN human rights bodies/agencies |
| 3.9.1 | DAA are concerned that the UN human rights bodies/agencies do not have primary responsibility for the administration and development of the thematic convention in favour of disabled people. As we are convinced of the need for a human rights instrument, the relegation of the human rights bodies/agencies to a supporting role is unfortunate. |
| That a thematic convention on the human rights of disabled people should be administered outside the usual UN human rights machinery is particularly regrettable and of enormous symbolic importance. Traditional attitudes toward disablement have been both medical and paternalistic: ‘special’ policies are ‘owed’ to disabled people as a ‘vulnerable group’. The elaboration of a human rights convention, by those bodies/agencies charged with primary responsibility for human rights, more easily, in our estimation, sends a clear signal of the transition from a welfare to a human rights approach. | |
| For the reasons outlined above, DAA urges the Ad Hoc Committee to recommend to the General Assembly that primary responsibility for the administration of a thematic convention be passed to the UN human rights bodies/agencies based in Geneva. | |
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4. |
Organisational information |
4.1 |
Disability Awareness in Action |
| 4.1.1 | Disability Awareness in Action [DAA] is a collaborative project between Disabled Peoples’ International, IMPACT, Inclusion International and the World Federation of the Deaf, which was established in 1993. |
| 4.1.2 | DAA is an international disability and human rights network that aims to provide information, resource material and advice to disabled people, and their representative organisations, around the world. Since inception, DAA has especially sought to promote the interests of disabled women, disabled children and disabled people living in developing and transitional countries. Whilst particular groups are at the forefront of our efforts, DAA offers its services to all disabled people and other stakeholders engaged in the promotion of disabled people’s citizenship, civil and human rights. |
| 4.1.3 | DAA publish a monthly bulletin – The Disability Tribune – which is translated into 43 languages, circulated globally and regularly read by over 100,000 people. |
| 4.1.4 | Since 1999, DAA has maintained an international database of human rights abuse inflicted on disabled people. That project was, and remains, unique, providing valuable information on the human rights situation of disabled people. |
4.2 |
DAART Centre |
| The DAART Centre is a subsidiary of DAA, charged with responsibility to provide specialist advice, training and information on disability as a human rights issue. DAART Centre staff have already played a key role in disseminating information about human rights and the elaboration of an international instrument amongst disability, governmental, mainstream human rights and academic organisations | |
Notes:
[1] References to “disabled people” in this document refer to disabled people, family members and advocates for disabled people.
[2] DESPOUY, L., (1993), Human Rights and Disabled Persons, United Nations Publications, New York.
[3] ELWAN, A. (1999), Poverty and Disability: A survey of the literature, World Bank, Washington DC.
[4] See, for example, LIGHT, R. (2002), A Real Horror Story: the abuse of disabled people’s human rights, DAA, London.
[5] The year in which a member state (Italy) first unsuccessfully proposed an international instrument to protect the human rights of disabled people.
[6] We would also wish to emphasise that disabled people should not be ghettoised within departments or programmes related to disability. Equal opportunity demands that disabled people should have access to all types and grades of employment within UN agencies.
[7] In the event that empirical data concerning the abuse of disabled people’s human rights is required, DAA would be delighted to provide evidence from our international database. The database records cases of abuse measured against the Universal Declaration of Human Rights and currently contains evidence of abuse against over 2 million disabled people.