UNDERSTANDING THE HUMAN RIGHTS
OF PERSONS WITH DISABILITIES
The information contained in Part I will prepare participants to use this manual effectively by developing a fundamental understanding of the following:
· Basic human rights concepts;
· The international human rights framework, including basic information about principal human rights documents;
· The Convention on the Rights of Persons with Disabilities (CRPD), including its purpose, structure, and key concepts;
· The challenges and barriers persons with disabilities commonly face in claiming their human rights; and
· How and why to express issues and frame advocacy strategies in human rights terms.
INTRODUCTION TO THE HUMAN RIGHTS OF PERSONS WITH DISABILITIES
According to the latest statistics provided by the World Health Organization (WHO) and the World Bank, one billion individuals in the world today live with disabilities. All persons with disabilities have the same human rights as all other persons. However, for a number of reasons, they often face social, legal, and practical barriers in claiming their human rights on an equal basis with others. These reasons commonly stem from misperceptions, negative attitudes, myths, and stereotypes about disability.
The adoption of the CRPD provides new entry points into human rights advocacy and the broader human rights movement for advocates with disabilities and their representative organizations. A human rights-based approach to disability challenges outmoded understandings of disability as belonging to medical or charitable spheres of action. The CRPD offers opportunities not only for disability rights advocates to press their claims in human rights terms in respect of civil, political, economic, social, and cultural rights, but potentially carves out new space for advocacy in other parts of the human rights movement. In strengthening human rights protections for persons with disabilities, the human rights of all persons is made stronger.
Negative Myths and Stereotypes about Persons with Disabilities
· Persons with disabilities:
· Cannot be self-sufficient/are excessively dependent;
· Are to be pitied;
· Are helpless;
· Are cursed/disability is a punishment for evil;
· Are bitter because of their fate;
· Resent the non-disabled world;
· Have lives not worth living;
· Are better off at home;
· Cannot work;
· Cannot have a family/cannot be good parents;
· Are asexual;
· Need to be cured and/or helped by medical professionals;
· Cannot be educated or need special, separate educational programmes;
· Cannot be involved in cultural/recreational activities;
· Are unable to learn.
GETTING STARTED: THINKING ABOUT HUMAN RIGHTS
To provide a foundation for examining the human rights of persons with disabilities, this section begins by examining fundamental human rights principles and the general human rights framework. The sections that follow examine human rights in the context of disability.
What are Human Rights?
Human rights are based on human needs. They assert that every person is equally entitled not only to life, but to a life of dignity. Human rights also recognize that certain basic conditions and resources are necessary to live a dignified life.
Human rights have essential qualities that make them different from other ideas or principles. Human Rights are:
Universal: Human rights apply to every person in the world, regardless of their race, colour, sex, ethnic or social origin, religion, language, nationality, age, sexual orientation, disability, or other status. They apply equally and without discrimination to each and every person. The only requirement for having human rights is to be human.
Inherent: Human rights are a natural part of who you are. The text of Article 1 of the Universal Declaration of Human Rights (UDHR) begins: “All human beings are born free and equal in dignity and rights.”
Inalienable: Human rights automatically belong to each human being. They do not need to be given to persons by their government or any other authority, nor can they be taken away. Nobody can tell you that you do not have these rights. Even if your rights are violated or you are prevented from claiming your human rights, you are still entitled to these rights.
Human rights relate to one another in important ways. They are:
Indivisible: Human rights cannot be separated from each other;
Interdependent: Human rights cannot be fully realized without each other; and
Interrelated: Human rights affect each other.
In simple terms, human rights all work together and we need them all. For example, a person’s ability to exercise the right to vote can be affected by the rights to education, freedom of opinion and information, or even an adequate standard of living. A government cannot pick and choose which rights it will uphold for the persons who live in that country. Each right is necessary and affects the others.
Human Rights Instruments
Human rights are outlined in a variety of international human rights documents, (sometimes called instruments) some of which are legally binding and others that provide important guidelines but are not considered international law. This section looks at the overall human rights framework.
1. The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations in 1948. Many other documents have since been developed to provide more specific details about human rights; however, they are all based on the fundamental human rights principles laid out in the UDHR. The full text of the UDHR, as well as a plain-language version, may be found in Annex 1. Below is the official abbreviated version of the UDHR, which lists the key concept of each article in the Declaration.
The Universal Declaration of Human Rights (UDHR)
(Official Abbreviated Version)
Article 1 Right to Equality
Article 2 Freedom from Discrimination
Article 3 Right to Life, Liberty, Personal Security
Article 4 Freedom from Slavery
Article 5 Freedom from Torture and Degrading Treatment
Article 6 Right to Recognition as a Person before the Law
Article 7 Right to Equality before the Law
Article 8 Right to Remedy by Competent Tribunal
Article 9 Freedom from Arbitrary Arrest and Exile
Article 10 Right to Fair Public Hearing
Article 11 Right to be Considered Innocent until Proven Guilty
Article 12 Freedom from Interference with Privacy, Family, Home and Correspondence
Article 13 Right to Free Movement in and out of the Country
Article 14 Right to Asylum in other Countries from Persecution
Article 15 Right to a Nationality and the Freedom to Change It
Article 16 Right to Marriage and Family
Article 17 Right to Own Property
Article 18 Freedom of Belief and Religion
Article 19 Freedom of Opinion and Information
Article 20 Right of Peaceful Assembly and Association
Article 21 Right to Participate in Government and in Free Elections
Article 22 Right to Social Security
Article 23 Right to Desirable Work and to Join Trade Unions
Article 24 Right to Rest and Leisure
Article 25 Right to Adequate Living Standard
Article 26 Right to Education
Article 27 Right to Participate in the Cultural Life of Community
Article 28 Right to a Social Order that Articulates this Document
Article 29 Community Duties Essential to Free and Full Development
Article 30 Freedom from State or Personal Interference in the above Rights
2. International Human Rights Conventions
A convention (also known as a treaty) is a written agreement between States. Conventions are often drafted by a working group appointed by the UN General Assembly. Once the convention is drafted, it goes to the UN General Assembly for adoption. The next step is for countries to sign and ratify it. By signing a convention, a country is making a commitment to follow the principles in the convention and to begin the ratification process, but the convention is not legally binding on a country until it is ratified. Ratification is a process that takes place in each country, whereby the legislative body of the government takes the necessary steps to officially accept the convention as part of its national legal framework. Once a country signs and ratifies a convention, it becomes a State Party to that convention, meaning it has a legal obligation to uphold the rights the convention defines. Each convention must be ratified by a particular number of countries before it enters into force and becomes part of international law.
In the last sixty years, many human rights conventions have been developed that elaborate on the human rights contained in the UDHR. Of these, nine instruments are considered “core” human rights conventions: they cover a major human rights issue and have a treaty-monitoring body that assesses and enforces how a State meets its obligations to that treaty.
Two of these conventions are called covenants and address broad human rights issues:
- The International Covenant on Civil and Political Rights (ICCPR, adopted 1966, entered into force 1976). It is monitored by the Human Rights Committee.
- The International Covenant on Economic, Social and Cultural Rights (ICESCR, adopted 1966, entered into force 1976). It is monitored by the Committee on Economic, Social and Cultural Rights (CESCR).
The two Covenants and the UDHR combine to create a trio of documents known as the International Bill of Rights.
An additional seven UN human rights conventions address either thematic issues or particular populations. Each of these conventions is monitored by a treaty body, a committee of appointed experts who receive reports on how States Parties are implementing the convention and investigate violations of rights guaranteed by the convention.
THE HUMAN RIGHTS FRAMEWORK
|| Entered into Force
|Universal Declaration of Human Rights (UDHR)
|International Covenant on Civil and Political Rights (ICCPR)
|International Covenant on Economic Social and Cultural Rights (ICESCR)
|Convention on the Elimination of All Forms of Racial Discrimination (CERD)
|Convention on the Elimination of all forms of Discrimination against Women (CEDAW)
|Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
|Convention on the Rights of the Child (CRC)
|Convention on Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)
|Convention on the Rights of Persons with Disabilities (CRPD)
|International Convention for the Protection of All Persons from Enforced Disappearance (CPED)
The core human rights conventions form an interdependent human rights framework. It is useful to be familiar with them and to know which of these your country has ratified and is therefore legally obligated to enforce and implement.
3. Regional Human Rights Conventions
In addition to the UN human rights framework, which applies globally, some regional institutions have developed human rights instruments specifically for the countries in their region. These include –
- The African Charter on Human and Peoples’ Rights, developed by the Organization of African Unity (now the African Union), 1986;
- The European Convention for the Protection of Human Rights and Fundamental Freedoms, developed by the Council of Europe, 1953; and
- The Inter-American Convention on Human Rights, developed by the Inter-American Commission on Human Rights, 1978.
While the Asia-Pacific region does not have a regional human rights system, the Association of Southeast Asian Nations (ASEAN) adopted in 2007 the ASEAN Charter, which sets forth the legal and institutional framework for ASEAN and calls on ASEAN Member States to adhere to “the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms.” Although the ASEAN Charter is not a human rights convention, it is noteworthy as it calls for the creation of the ASEAN Intergovernmental Commission on Human Rights (AICHR). Under Article 4(2) of AICHR’s Terms of Reference, the Commission is required “to develop an ASEAN Human Rights Declaration (AHRD) with a view to establishing a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights.” The forthcoming ASEAN Human Rights Declaration will be adopted in the summer of 2012. Similarly, while the Arab region does not have a human rights system, the League of Arab States has addressed human rights within the context of its work, for example, adopting the Arab Charter on Human Rights in 1994.
Who Is Responsible for Human Rights?
Governments: Governments are the primary actors with responsibility for respecting, protecting, and fulfilling human rights. Governments must ensure that political and legal systems are structured to uphold human rights through laws, policies, and programmes, and that they operate effectively. In some cases, international conventions and treaties are the main source of a State’s legal obligations with respect to human rights. However, in many countries, national constitutions, bills of rights, and legal frameworks have been developed or amended specifically to reflect universal human rights principles and standards in international law, providing a double layer of protection and reinforcement of these principles on the national level.
Governments have a legal obligation to respect, protect, and fulfill human rights.
Respecting, Protecting, and Fulfilling Human Rights
Respect: The obligation to “respect” human rights means that States must not interfere with the exercise and enjoyment of the rights of persons with disabilities. They must refrain from any action that violates human rights. They must also eliminate laws, policies, and practices that are contrary to human rights.
Protect: The obligation to “protect” human rights means that the State is required to protect everyone, including persons with disabilities, against abuses by non-State actors, such as individuals, businesses, institutions, or other private organizations.
Fulfil: The obligation to “fulfil” human rights means that States must take positive action to ensure that everyone, including persons with disabilities, can exercise their human rights. They must adopt laws and policies that promote human rights. They must develop programmes and take other measures to implement these rights. They must allocate the necessary resources to enforce laws and fund programmatic efforts.
Although only governments have the official legal responsibility for respecting, protecting, and fulfilling human rights under international human rights law, human rights are not their exclusive responsibility. Human rights represent more than legal requirements; they signify a moral code of conduct designed to promote human dignity, understanding, equality, fairness, and many other values and principles essential to just and peaceful societies. In addition to governments, a wide range of other actors have important roles to play in the promotion and implementation of human rights, including individuals, civil society organizations such as disabled people’s organizations (DPOs), inter-governmental organizations, such as the United Nations, and the private sector, such as small businesses or multinational corporations.
Individuals: Each person must know and understand their human rights in order to be able to claim them, defend them, and hold themselves, as well as other persons, their governments, and societies, accountable for the actions that affect them. Because human rights are common to all persons, even an effort by a single individual to assert his or her human rights represents an important initiative on behalf of every person. Likewise, the actions of an individual that violate somebody else’s human rights represent a threat to everyone’s human rights.
Civil Society Organizations: Civil society organizations, including women’s rights organizations, disabled people’s organizations, and human rights organizations, have a crucial role to play in promoting, assisting in implementation, and monitoring human rights obligations. In many instances civil society organizations are given informal as well as formal roles in monitoring human rights conventions. They may participate in meetings of States Parties, undertake independent monitoring of State conduct, or make formal complaints alleging violations of treaty obligations to treaty monitoring committees.
The Private Sector: Members of society interact with the private sector every day, especially in countries with free-market economies. Private sector actors include: employers large and small, providers of goods and services, entertainers, and builders of houses, banks, and even government buildings. Individuals depend on the private sector for many things. While private sector actors are often required to adhere to certain laws and standards that uphold human rights, it is impossible for governments to oversee every aspect of how the private sector operates. Businesses, organizations, and other private sector players must make their own commitment to ensuring that their practices do not violate human rights but, in fact, support and promote them.
Although persons with disabilities are entitled to the human rights described above, they very often face serious discrimination based on attitudes, perceptions, misunderstandings, and lack of awareness. For example, the misconception that persons with disabilities cannot be productive members of the workforce may lead employers to discriminate against job applicants who have disabilities, even if they are highly qualified to perform the work. Or it might mean that buildings or facilities where jobs are located are not constructed in a way that persons with physical disabilities can access them.
Such limitations can affect other population groups as well. For example, in some societies, attitudes toward women prohibit them from owning property or participating in public life. Members of racial or ethnic minorities are often forbidden to speak their own language or practice their religion. A person with a disability who also belongs to another group that experiences discrimination may face multiple layers of discrimination and barriers to realizing her human rights (for example, a woman with a disability who belongs to an ethnic minority).
In addition to attitudes and perception coming from external sources, each individual’s attitude directly affects how he or she exercises human rights. A person who believes a disability makes her or him somehow different in respect to human rights will claim – or not claim – those rights very differently.
Ways of Approaching Disability Issues
Disability has traditionally been conceptualized as a medical, welfare, or charity issue. These perspectives have in many ways contributed to stigmatization and discrimination against persons with disabilities. They have also served as the basis for the adoption of often highly discriminatory and paternalistic policy and legal frameworks that have excluded persons with disabilities from participation in decision-making and separated them from others in segregated schools, long-term care institutions, and sheltered workshops for employment. Where persons with disabilities are unable to participate fully in the life of the community, the result is social isolation and human rights infringement.
Advocates for the rights of persons with disabilities need to be aware of both traditional and contemporary understandings of disability.
The Medical Model of Disability: The “medical model of disability” refers to an understanding of disability as a narrow, medical problem that needs to be “fixed” or an illness that needs to be “cured.” This perspective implies that a person with a disability is somehow “broken” or “sick” and requires fixing or healing. While persons with disabilities require medical care like other persons, defining disability simply as a medical problem that needs a medical solution ignores the many barriers that prevent persons with disabilities from full participation in society. Many of these barriers are created by society and cannot be “fixed” or “cured” by doctors. It is problematic to view disability only through the medical model because it allows individuals, societies, and governments to avoid the responsibility of addressing the human rights obstacles that exist in the social and physical environment.
The Charity Model of Disability: This conception of disability regards persons with disabilities as objects of pity and charity, helpless dependents who are unable to live independently. As passive recipients of social welfare, they are viewed as a burden on family and society instead of contributing members in their community. Such approaches have long dominated legislative frameworks and policy and continue to foster negative attitudes towards persons with disabilities.
The medical and charity models are narrow perspectives that do not reflect a comprehensive understanding of persons with disabilities as holders of rights and as active participants in their communities. It is for this reason that disability advocates, disability rights scholars, and others have worked to develop other models and approaches to disability issues.
The Social Model of Disability: An alternative way of understanding disability is through a social and contextual perspective, often referred to as the “social model of disability.” This model focuses on eliminating the barriers created by the social and physical environment that inhibit the ability of persons with disabilities to exercise their human rights. This includes, for instance, promoting positive attitudes and perceptions, modifying the built environment, providing information in accessible formats, interacting with individuals with disabilities in appropriate ways, and making sure that laws and policies support the exercise of full participation and non-discrimination.
The social model recognizes the various ways in which the social environment creates barriers for persons with disabilities and impacts their enjoyment of their human rights. For example, where a person who uses a wheelchair is confronted by a staircase, the result is a disability: it is the interaction between the fact that the person is using a wheelchair and the inaccessibility of the staircase. When a building has a ramp, persons who use wheelchairs and others can enter the building without any distinction between persons with or without disabilities. In the same way, if a child with autism is confronted by negative attitudes among teachers that the child cannot learn or is not intelligent, these attitudes operate as a barrier to the child receiving an education: the interaction between the cognitive functioning of the child and the negative attitudes of teachers is the disability. Another example to consider is persons who are blind accessing information on the internet. When society ensures that websites are fully accessible to screen-reading technology, a person who is blind can access all the information on the website, but when a website is not accessible to that technology, then that person experiences the social impact of disability.
A social model perspective understands that there is a need to break down these barriers in society and to address not only the medical and rehabilitation needs of persons with disabilities, but all of their needs and the fulfilment of all of their human rights. The social model approach to disability creates a broad awareness of the many types of barriers that exclude persons with disabilities from participating in society. Once there is awareness and appreciation of these barriers, identifying and correcting human rights problems that impact persons with disabilities becomes much easier.
Disability as a natural part of human diversity: Everyone is different, whether that difference relates to colour, gender, ethnicity, size, shape, or other characteristics. A disability is no different. It may limit a person’s mobility or their ability to hear, see, taste, or smell. A psychosocial disability or intellectual disability may affect the way persons think, feel, or process information. Regardless of its characteristics, disability neither subtracts from nor adds to a person’s humanity, value, or rights. It is simply a feature of a person.
The Implications of the Social Model for Language and Terminology
Under the social model, disability is not inherent in the person, but rather is part of an individual’s interaction with society, and therefore society should not define someone by their disability. As part of the shift to the social model, it is important to avoid defining people by any single characteristic such as a disability. Disability advocates often emphasize the importance of referring to persons with disabilities first as a person. Using “person-first language” ensures that we refer first to the person, not their disability, when speaking about persons with disabilities.
Other advocates stress that person-first language is important because it avoids placing a label on a person with a disability and does not emphasize someone’s disability instead of their ability. For example, the term “disabled person” is often thought to label a person and makes their defining characteristic their disability. When it is converted to “person with a disability” the message is that someone is a person before pointing out they have a disability. Additionally, terms like “blind person,” “deaf person,” or “intellectually disabled person” label people and focus on the fact that someone may or may not have a disability rather than the fact that they are equal members of society.
The CRPD utilizes person-first language throughout (for example, the full title of the CRPD, the Convention on the Rights of Persons with Disabilities; Article 6, Women with disabilities; Article 7, Children with disabilities; and Article 34, Committee on the Rights of persons with disabilities). Thus it is important for disability advocates to understand this concept and consistently utilize it in their work.
Many people think it is difficult to use person-first language systemically, but the following list provides a few examples of how person-first language can be applied in all situations:
· Children with disabilities
· Women with disabilities
· Voters with disabilities
· Employees with disabilities
· Prisoners with disabilities
· Members of Parliament with disabilities
· Persons who are blind
· Persons who are deaf
· Persons with intellectual disabilities
· Persons with mobility impairments
· Persons with psychosocial disabilities
· Persons with learning disabilities
New York State’s Person First Bill
Many domestic laws have incorporated person-first language. In 2007, New York State adopted the Person First bill, which among other things, requires the use of person-first language when describing or referring to persons with disabilities in all new and revised statutes, local laws, ordinances, charters or regulations, legal documents, and any publication released by the state. Language such as "the mentally ill," "the epileptics,""confined to a wheel chair," or "suffering from multiple sclerosis," must be replaced with person-first language such as "individuals with mental illness," "individuals with epilepsy," and "individuals with disabilities."
Source: Sheila M. Carrey, “Governor Spitzer Signs Person First Legislation,” New York State E-Bulletin, Developmental Disabilities Planning Council (August 2007): http://ebulletin.us/archive/2007/september/09_07_spitzer_signs_per_first_leg.php
Although it is important for advocates to understand the concept of person-first language, it is also important to note that some persons with disabilities prefer to identify their disability first. For example, many persons with autism refer to themselves as “autistic persons” because they believe autism is an important and inherent part of who they are, and they want to make that clear to society. Of course, persons with disabilities have the right to identify as they wish, but in thinking about person-first language, the point is to prevent society from labelling or putting persons with disabilities in certain categories based on their disability.
DISABILITY AS A HUMAN RIGHTS ISSUE
The social model of disability, which focuses on the responsibility of governments and society to ensure access, inclusion, and participation, sets the stage for the adoption of a human rights-based approach to disability and empowered disability rights advocacy. While the social model of disability and the human rights approach are often assumed to be one and the same, this is not the case. Rather, a social model perspective shifts the focus away from individual deficit and brings into focus the many barriers in society that inhibit the participation of persons with disabilities. Once reconfigured in this way through the social model understanding, a rights-based approach to disability becomes possible. The rights-based approach:
- Identifies persons with disabilities as rights holders and subjects of human rights law on an equal basis with all persons;
- Recognizes and respects a person’s disability as an element of natural human diversity, on the same basis as race or gender, and addresses the disability-specific prejudices, attitudes, and other barriers to the enjoyment of human rights; and
- Places the responsibility on society and governments for ensuring that the political, legal, social, and physical environments support the human rights and full inclusion and participation of persons with disabilities.
The UN Office of the High Commissioner for Human Rights (OHCHR) has provided a helpful analysis of the rights-based approach, stressing the following elements:
First, a human rights approach asks what are the long-term or underlying reasons why a particular group within society is vulnerable, marginalized, or experiences discrimination.
Second, a human rights approach provides strategies based on international human rights law to address these root causes of discrimination.
Drawing on the OHCHR framework, the following ideas capture a rights-based approach to disability:
Empowerment: A human rights approach to disability aims to empower persons with disabilities to make their own choices, to advocate for themselves, and to exercise control over their lives.
Enforceability and Remedies: A human rights approach to disability means that persons with disabilities should be able to enforce their rights at the national and international levels.
Indivisibility: A rights-based approach to disability must protect the civil and political rights, as well as the economic, social, and cultural rights of persons with disabilities.
Participation: A human rights approach to disabilities says that persons with disabilities must be consulted and participate in the process of making decisions that affect their lives.
Barriers to exercising human rights can stem from attitudes, prejudice, a practical issue, a legal obstacle, or a combination of factors, but a disability itself does not affect or limit a person’s entitlement to human rights in any way. Defining persons with disabilities first and foremost as rights holders and subjects of human rights law on an equal basis with others is a powerful approach to changing perceptions and attitudes, as well as providing a system for ensuring the human rights of persons with disabilities. A human rights approach identifies minimum legal standards necessary for persons with disabilities to participate freely in society. It holds certain actors, such as government and the private sector, responsible for respecting those standards and requires that individuals have access to justice in cases where those standards are not respected.
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
Persons with disabilities have long fought to have their human rights formally recognized in human rights law. In 2006, the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD), the first international convention that specifically addresses the human rights of persons with disabilities.
From the first meeting to draft this Convention, members of the global disability rights movement insisted that persons with disabilities be included in deciding what it should say. The disability community was able to exercise a greater level of participation and influence in the drafting of the CRPD than any other specific group has ever been able to achieve in a UN human rights treaty process. As a result, the CRPD covers the full spectrum of human rights of persons with disabilities and takes much stronger positions than it would have if governments alone had drafted it. In addition, disability organizations, individuals with disabilities, governments, and the United Nations forged important relationships during this drafting process.
Now that the human rights of persons with disabilities have been recognized in international law through the CRPD, the next step is for persons with disabilities in all countries to continue to advocate and work with their governments to ensure that the Convention is ratified and/or implemented. Every person who advocates for their rights under this Convention becomes an important member of the global disability rights movement!
Cross-cutting Articles in the CRPD
All human rights are indivisible, interdependent, and interrelated, and all of the articles in the CRPD are important and relate closely to one another. However, certain articles are fundamentally cross-cutting and have a broad impact on all other articles. Sometimes referred to as articles of general application, these articles are therefore placed at the beginning of the Convention to reinforce their importance. Article 3, General principles, and Article 4, General obligations, which are discussed above, clearly fall into this category. The other CRPD articles of general application are:
Article 5, Equality and non-discrimination
Article 6, Women with disabilities
Article 7, Children with disabilities
Article 8, Awareness-raising
Article 9, Accessibility
Developing a familiarity with all of the rights included in the CRPD will help develop an understanding of how Articles 3-9, the cross-cutting articles, interrelate and help inform obligations throughout the Convention.
Specific Rights in the CRPD
Articles 10-30 address specific rights, such as the right to work, the right to political participation, and many others. In most cases, these topical articles correspond closely to articles found in other human rights conventions, except that they explain the particular right in the context of disability.
Article 10, Right to life
Article 11, Situations of risk and humanitarian emergencies
Article 12, Equal recognition before the law
Article 13, Access to justice
Article 14, Liberty and security of the person
Article 15, Freedom from torture or cruel, inhuman or degrading treatment or punishment
Article 16, Freedom from exploitation, violence and abuse
Article 17, Protecting the integrity of the person
Article 18, Liberty of movement and nationality
Article 21, Freedom of expression and opinion, and access to information
Article 22, Respect for privacy
Article 23, Respect for home and the family
Article 24, Education
Article 25, Health
Article 27, Work and employment
Article 28, Adequate standard of living and social protection
Article 29, Participation in political and public life
Article 30, Participation in cultural life, recreation, leisure and sport
A few articles, however, address subjects unique to the CRPD, such as:
Article 19, Living independently and being included in the community
Article 20, Personal mobility
Article 26, Habilitation and Rehabilitation.
These are areas of human rights in which persons with disabilities either have specific requirements that may not apply in other contexts, or in which persons with disabilities have traditionally experienced unique types of discrimination and human rights violations. While these articles do not create any new rights, they explain rights in the level of detail required for States to understand their responsibilities and in many cases do articulate new specific obligations or measures not previously included in international law.
Purpose of the CRPD
The purpose of the CRPD is set out in Article 1, Purpose. It 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.
Article 1 therefore makes clear that persons with disabilities are entitled to the same human rights as all other persons.
General Principles in the CRPD
One important feature of the CRPD is the inclusion of a provision that sets forth its general principles. Set out in Article 3, General principles, they are intended to provide guidance for understanding and interpreting the CRPD.
CRPD Article 3, General principles
The principles of the present Convention shall be:
a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.
c) Full and effective participation and inclusion in society.
d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.
e) Equality of opportunity.
g) Equality between men and women.
h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
All of the general principles in Article 3 of the CRPD are important and should serve as the foundation for development of laws, policies, and practices that have an impact on the lives of persons with disabilities. In addition, the interpretation of all of the rights in the CRPD, as well as its monitoring and implementation measures, must take into account the principles set forth in Article 3. The following examples demonstrate the important connection between the general principles of the CRPD and the rest of its provisions:
Dignity, Autonomy, and Choice: The implementation of CRPD Article 25, Health, on the highest attainable standard of health, must reflect principles of dignity, respect, choice of medical services, and facilitate the autonomy of persons with disabilities.
Non-discrimination: In implementing the right to an adequate standard of living in CRPD Article 28, Adequate standard of living and social protection, persons with disabilities may not be barred from public housing on the basis of disability.
Participation and Inclusion: In implementing the right to linguistic identity of persons with disability in CRPD Article 30, Participation in cultural life, recreation, leisure and sport, it is essential to include persons with disabilities, for example, in formulating policies regarding sign language.
Respect for Difference: In implementing CRPD Article 8, Awareness-raising, disability awareness campaigns may emphasize pride in and respect for difference as a natural part of human diversity.
Equality of Opportunity: In developing employment legislation to implement CRPD Article 27, Work and employment, measures to ensure equality of opportunity must be provided, for example, provisions to ensure that recruitment processes are truly open to applicants with disabilities.
Accessibility: In planning for an election process under CRPD Article 29, Participation in political and public life, measures must be undertaken to ensure accessibility to voting materials for persons with disabilities.
Equality Between Men and Women: In monitoring the right of women with disabilities to access justice under CRPD Article 13, Access to justice, it is important to appreciate that women experience barriers to justice that are often different from those of men.
Respect for the Evolving Capacities of Children: In implementing CRPD Article 26, Habilitation and rehabilitation, respect for the evolving capacities of children with disabilities will require, among other things, opportunities for children with disabilities to articulate their own rehabilitation needs.
Many of the principles articulated in CRPD Article 3 are only implicit in the substance of other core human rights conventions. In this sense, the CRPD makes an important contribution to the development of human rights principles, for example, in relation to the principles of accessibility, respect for difference, and inclusion in society. It also expresses for the first time in a human rights convention provisions on rehabilitation and the right to live independently in the community.
Disability is a complex concept, and as yet there is no definition of disability that has achieved international consensus. Nevertheless, each person involved in advocating for disability rights must be able to explain to others what group of persons they are talking about when they refer to persons with disabilities. How disability is defined and how the concept of disability is expressed strongly impacts the understanding, attitude, and approach of others toward the human rights of persons with disabilities.
The CRPD explains the concept of disability as follows in Article 1, Purpose:
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
World Report on Disability
The World Report on Disability estimates that more than one billion persons live with a disability, or about 15% of the global population. The World Report emphasizes that:
· The number of persons with disabilities is growing, due to the ageing global population and the increase in chronic health conditions that are associated with disability (such as diabetes and mental illness).
· Disability is diverse and the disability experience likewise varies.
· Disability disproportionately affects vulnerable populations or persons in situations of risk.
Source: World Health Organization & World Bank, “World Report on Disability” (2011): http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf
General Obligations in the CRPD
Following Article 3, General principles, Article 4, General obligations, clearly defines the specific actions governments must take to ensure that the rights of persons with disabilities are respected, protected, and fulfilled. Many of the general obligations in the CRPD are common to other human rights conventions. However, the general obligations of States with respect to the rights of persons with disabilities include certain unique requirements that are not mentioned in other human rights instruments. These include such things as promoting universal design for goods and services and undertaking research on accessible technologies and assistive technologies. It is crucial to understand these principles as foundational, overarching obligations that are applicable to every other subject within the CRPD.
One objective of this comprehensive article on general obligations is to counteract the historic failure of States to truly understand their obligations to persons with disabilities as fundamental human rights obligations. States have tended to view these responsibilities as representing exceptional treatment or special social measures, not as essential requirements under human rights law. Clearly expressing them as general obligations in the Convention is an important step toward reversing this flawed perspective.
Non-discrimination and Equality in the CRPD
The prohibition against disability discrimination is cross-cutting and applies across all of the CRPD. Thus, each article concerns both protection from discrimination and the promotion of conditions required to achieve equality for persons with disabilities.
Equality and non-discrimination in the CRPD consist of two fundamental and related components. First, the CRPD requires the protection of equality through the prohibition of discrimination in law and in fact. In other words, States must take action to prohibit both direct and indirect discrimination, meaning acts of discrimination that have either the purpose or the effect of denying persons with disabilities the exercise of their human rights. This includes denying reasonable accommodation to persons with disabilities where it is needed. Second, the CRPD requires the promotion of equality through measures aimed at addressing inherent disadvantages and discrimination within society. This includes the introduction of specific measures to support persons with disabilities in order to achieve equality, but also measures that address the conditions within society that can lead to discrimination, such as training of health care professionals or teacher training on accommodating students with disabilities.
The Convention on the Rights of Persons with Disabilities:
· Recognizes non-discrimination as a core principle in Article 3, General principles.
· Requires the protection of all persons from discrimination and provides for equal and effective legal protection against discrimination on all grounds, including the denial of reasonable accommodation, in all fields of public and private life, in Article 5, Equality and non-discrimination.
· Recognizes the need for specific measures to promote equality for persons with disabilities.
· Defines discrimination on the basis of disability in Article 2, Definitions.
Progressive Realization in Relation to Economic, Social, and Cultural Rights
While some aspects of implementing the CRPD, such as prohibiting disability discrimination, are relatively cost-free, other obligations do carry cost implications. Like other human rights conventions, the CRPD recognizes this fact and uses the principle of “progressive realization” for the implementation of economic, social, and cultural rights set out in CRPD Article 4, General obligations. The concept of progressive realization recognizes that States have different economic capacities. It also acknowledges that full enjoyment of human rights cannot occur over night and that some things take time to achieve. Progressive realization therefore allows States to take steps to the maximum extent possible with regard to their available resources. This does not mean that implementation can be delayed, however; it means that implementation can occur over time based on available resources. In implementing economic, social, and cultural rights, such as the right to education, the right to health or the right to work, the following must be taken into consideration:
· States must take immediate action to advance the realization of economic, social, and cultural rights over time. Thus, they may not ignore their obligations or do nothing by claiming that they have no resources.
· Many obligations in the CRPD may be implemented at little to no cost and thus should be respected immediately (for example, repealing discriminatory law is cost free).
· Where obligations do have cost implications, States must develop a plan that sets out what can be achieved immediately and what can be achieved gradually over time.
· There should be no retrogressive steps: in other words, once improvements in disability rights have been achieved, the State should maintain funding at that level and should not allow it to diminish.
Monitoring and Implementing the CRPD
The CRPD sets out international human rights standards for persons with disabilities that, like other core human rights conventions, require both national and international monitoring, as well as implementation measures. Article 33, National implementation and monitoring, addresses national monitoring and requires States to set up focal points in government in order to monitor implementation of the CRPD and also requires some type of independent monitoring mechanism, which usually takes the form of an independent national human rights institution. Article 33 also recognizes the important role of civil society, in particular persons with disabilities and their representative organizations, in the national monitoring and implementation process.
International monitoring is achieved through both the Committee on the Rights of Persons with Disabilities (CRPD Committee) and a periodic meeting at the Conference of States Parties to the CRPD (COSP). The CRPD Committee is responsible for reviewing mandatory reports that all States Parties must submit on how they are implementing the CRPD. In addition, the Optional Protocol to the CRPD provides a means for individuals to complain when their rights are not respected and for an independent international committee of experts, the CRPD Committee, to undertake inquiries into serious rights abuses. Monitoring and implementing the CRPD is discussed more fully in Part 3, Section 2.
Regional Disability Rights Conventions
The only regional institution with a disability-specific convention is the Inter-American Commission on Human Rights, which developed the Inter-American Convention on the Elimination of all forms of Discrimination against Persons with Disabilities in 1999. In some instances, regional institutions have adopted optional protocols, treaties that modify another treaty, to existing conventions or have developed non-binding resolutions, recommendations, and/or plans that address disability rights. In some cases, persons with disabilities are specifically mentioned in the general regional human rights instruments, such as the Revised European Social Charter. Discussions are currently underway regarding the development of a disability rights convention for Africa.
Key Non-binding Instruments on Disability
While the CRPD is the first global legally binding international convention addressing the rights of persons with disabilities, there are important non-binding documents that lay out important principles and guidelines and that helped to inspire some of the provisions of the CRPD. Such documents are described as “non-binding” because they are not documents agreed upon by States to create international law. Rather, they are principles or guidelines that may provide helpful direction for States, but they do not create obligations under international law.
World Programme of Action Concerning Disabled Persons: The UN declared 1981 as the “International Year of Disabled Persons” (IYDP) with the theme of full equality and participation of persons with disabilities, as well as a call for plans of action at the national, regional, and international levels. One important outcome of the IYDP was the development by the UN of the World Programme of Action Concerning Disabled Persons with the stated purpose “to promote effective measures for prevention of disability, rehabilitation and the realization of the goals of ‘full participation’ of disabled persons in social life and development and of equality.” To provide a timeframe for governments to implement the World Programme of Action, the UN declared 1983-1992 the United Nations Decade of Disabled Persons.
UN Standard Rules on the Equalization of Opportunity for Persons with Disabilities: Many persons believed that the World Programme of Action, although valuable, would not achieve the results needed to ensure that the rights of persons with disabilities were respected. In 1987, the UN convened a meeting to consider drafting a convention on disability rights; however, at that time there was not enough support to move ahead. In 1990, the UN decided to develop another kind of instrument that was not a legally binding treaty, but a statement of principles signifying a political and moral commitment to equalizing opportunities for persons with disabilities. The resulting UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules), adopted in 1993, was the first international instrument to recognize that the rights of persons with disabilities are greatly affected by the legal, political, social, and physical environment. The Standard Rules are still an important advocacy tool for the disability community, and many of its principles served as a basis for drafting the CRPD.
The UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (The MI Principles): These principles were developed in 1991 to establish minimum standards for practice in the mental health field. The MI Principles have been used as a blueprint for the development of mental health legislation in many countries. They include some important concepts, such as the right to live in the community. At the same time, the terminology used in the MI Principles is outdated and offensive from the perspective of disability rights advocacy, for instance it refers to “patients,” and some of its provisions appear to limit the human rights of persons with mental disabilities, such as its provisions on informed consent. For that reason, many advocates focus exclusively on the CRPD, or where they do refer to the MI Principles, they are careful to note their limitations. In any case, it is clear that the MI Principles should now be interpreted in the light of and in a manner consistent with the CRPD.
SOME USEFUL HUMAN RIGHTS TERMS
ADOPTION: Usually refers to the initial diplomatic stage at which the official text of a treaty is accepted (in the case of a UN treaty, by the General Assembly). After adoption a treaty must usually be ratified by individual governments.
ARTICLE: A numbered section of a legal document, such as a treaty or declaration.
COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES: The treaty body that monitors implementation of the Convention on the Rights of Persons with Disabilities (CRPD Committee).
CONVENTION: Binding agreement between governments; used synonymously with treaty and covenant. Conventions are stronger than declarations because they are legally binding for States that have ratified them.
COVENANT: Binding agreement between states; used synonymously with convention and treaty. In international human rights law there are only two covenants: The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
DECLARATION: Document stating agreed-upon standards but that is not legally binding. The UN General Assembly often issues influential but legally non-binding declarations.
ENTRY INTO FORCE: The process through which a treaty becomes fully binding on the states that have ratified it. This happens when the minimum number of ratifications called for by the treaty has been achieved.
INSTRUMENT: A formal, written official document, such as a treaty or declaration.
NON-BINDING: Describes a document, like a declaration, that carries no formal legal obligations.
OPTIONAL PROTOCOL: Separate treaty that provides States Parties to the parent treaty with the opportunity to participate or “opt in” with regard to procedures set forth in the optional protocol or additional obligations not found in the parent treaty.
RATIFY: Process by which the legislative body of a State confirms a government’s action in signing a treaty; formal procedure by which a government becomes a State Party to a treaty.
SIGN: In human rights, the first step in ratification of a treaty; to sign a declaration, convention, or one of the two Covenants constitutes a promise to adhere to the principles in the document and to honour its spirit.
STATE PARTY: (Plural: States Parties): A country that has ratified a treaty and is therefore bound to conform to its provisions.
TREATY: Formal agreement between States that defines and modifies their mutual duties and obligations; used synonymously with convention.
TREATY BODY: A group established in a treaty to supervise and monitor how States Parties comply with their treaty obligations. The treaty body for the CRPD is the Committee on the Rights of Persons with Disabilities.
HUMAN RIGHTS ADVOCACY
Every person is entitled to claim her or his human rights and to demand that they be protected, respected, and fulfilled. When you advocate in human rights terms and use the human rights framework to support your advocacy, no one can challenge that you are asking for special treatment or something undeserved. All stakeholders have a role to play to see that the CRPD is fully implemented.
Human Rights.YES! was designed to support you in this effort. Part 1, Understanding Disability as a Human Right, has provided a comprehensive introduction to human rights principles, legal documents, and social attitudes related to disability. Part 4, Facilitating Human Rights Learning, contains activities to facilitate assimilating this information and applying it to your own life and community.
Each of the 17 chapters of Part 2 examines in detail a specific topic related to disability rights contained in the CRPD. They seek to equip disability advocates with the knowledge they need to effect change in both national laws and policies, as well as in the social and cultural environments. Learning activities to accompany each chapter are available in Part 4.
The first section of Part 3 offers specific training on advocacy strategies and techniques, including defining advocacy objectives, developing advocacy action plans, and measuring your advocacy success. Section 2 of Part 3 explains in detail how the CRPD Committee monitors implementation of the Convention and the ways in which advocates can interact with this process, especially through the Optional Protocol to the CRPD.
The existence of human rights law does not make human rights a reality in people’s lives. Positive attitudes and good intentions are not enough either. Without individual efforts, a firm social and cultural commitment reinforced by group action, and strong implementation and enforcement by governments, human rights cannot be guaranteed.
USEFUL RESOURCES ON HUMAN RIGHTS AND THE CRPD
Human Rights Resources
· Office of the High Commissioner for Human Rights: http://www.ohchr.org/EN/Pages/WelcomePage.aspx
Official website of the Office of the High Commissioner for Human Rights.
· United Nations: http://www.un.org/en/rights/
Official United Nations website for human rights.
· University of Minnesota Human Rights Library: http://www1.umn.edu/humanrts/
Extensive online collection of international human rights treaties, instruments, general comments, recommendations, decisions, views of treaty bodies and general and thematic human rights resources.
· Committee on the Rights of Persons with Disabilities: http://www.ohchr.org/en/hrbodies/crpd/pages/crpdindex.aspx
o Official website for the CRPD Committee.
· Conference of States Parties to the CRPD: http://www.un.org/disabilities/default.asp?id=1433
o Official website for the Conference of States Parties.
· Rosemary Kayess & Phillip French, “Out of darkness into light? Introducing the Convention on the Rights of Persons with Disabilities,” 8 Human Rights Law, 2008.
o Excellent scholarly overview of the CRPD.
· Oliver Lewis, “The Expressive, Educational and Proactive Role of Human Rights: An Analysis of the UN Convention on the Rights of Persons with Disabilities in Rethinking Rights Based Mental Health Laws” (Bernadette McSherry and Penelope Weller, eds., 2010).
o Analysis of the CRPD in the context of mental health laws.
· Janet E. Lord & Michael Ashley Stein, “The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities,” 83 University of Washington Law Review 449, 2008.
o Detailed consideration of the CRPD and its implications for domestic law.
· Gerard Quinn & Oddný Mjöll Arnardóttir eds., The UN Convention on the Rights of Person with Disabilities: European and Scandinavian Perspectives (2009).
o Collection of scholarly essays on the CRPD by leading commentators.
· United Nations Enable: http://www.un.org/disabilities/
o Official UN website on persons with disabilities.
· UN-DESA, OHCHR, IPU, Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol: http://www.un.org/disabilities/default.asp?id=248
o Introductory overview of the CRPD for legislators and others.
 See Annex 1 for internet addresses for these documents.
 Association of Southeast Asian Nations [ASEAN], Charter (preamble), November 2007: http://www.aseansec.org/21069.pdf
 Office of the High Commissioner for Human Rights, “Human Rights and Poverty Reduction: A Conceptual Framework,” (2004): http://www2.ohchr.org/english/issues/poverty/docs/povertyE.pdf