International Human Rights for Individuals with Disabilities

Sherrie Brown LSJ/CHID 434January 28, 2009

Topics for Review and DiscussionA question at the heart of the matterHistory of the UN actions concerning discrimination on the basis of disabilityConvention on the Rights of Persons with Disabilities (CRPD)America and disability rightsDoes CRPD-or will it-make a difference?

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Who Qualifies for Rights?*What is it about disability that makes some people with this characteristic less worthy of the power to make independent decisions and exercise rights like other adults?* Title of book by Judith Failer*

Is the source of all discrimination the label of disability?The nondisabled world sees powerlessness as the natural product of dependence and dependence as the natural product of our needs. Harriet McBryde JohnsonDisabled individuals considered objects of not subjects of rights.Historically, racial minorities, women, immigrants all denied citizenship, or access to full panoply or rights, on the basis of disability. Douglas BayntonThe core problem is the invisibility of people with disabilities in the system of freedom. Quinn & Degener*

*United Nations and Disability1940s-50s, UN actively promotes rights through social welfare activitiese.g., disability prevention and rehabilitation by training personnel and establishing rehabilitation centers.1960s, revamped policy to call for full participation in society.1970s, concept of human rights for people with disabilities and equal opportunity for them.

*International Decade of Disabled Persons 1983-19921981- Designated Year of Disabled persons1982 General Assembly adopted the World Programme of Action (WPA)1987 Global Meeting of Experts recommended that GA begin process of drafting convention1993 Standard Rules developed

*World Programme of ActionA global strategy to enhance disability prevention, rehabilitation and equalization of opportunities, which pertains to full participation of persons with disabilities in social life and national development.Emphasizes need to approach from a human rights perspective3 Prongs:Analysis of principles, concepts and definitions relating to disabilitiesOverview of the world situationRecommendations for action at national, regional and international levels.

*Equalization of OpportunitiesCentral Theme of WPAIdea that issues concerning disabled persons should not be treated in isolationAchieve primarily through political and social actionNational human rights legislation is one approach

*UN DeclarationsDeclaration on Rights of Mentally Retarded PersonsGeneral Assembly adopts in 1971Declaration on the Rights of Disabled PersonsAdopted in 1975People with disabilities should have equal civil and political rights.

*UN GuidelinesPrinciples for the Protection of Persons with Mental Illness and the Improvement of Mental Health (1991)Standard Rules for the Equalization of Opportunities for Persons with Disabilities (1993)

*Standard RulesMain UN Rules guiding action at national level prior to UN ConventionPurpose is toensure that girls, boys, men and women with disabilities, as members of their societies, may exercise the same rights and obligations as others.

*Rules CoverPrecondition for equal participationTarget areas for equal participationImplementation measuresMonitoring mechanism (Special Rapporteur on Disability)

*How successful? Some dimensions of disability policy have not been treated sufficiently. This is true concerning children with disabilities, in the gender dimension and for certain groups, mainly persons with developmental and psychiatric disabilities. It has been pointed out that the Rules do not include a strategy for improving living conditions of disabled people in regions with extreme poverty. Disabled persons in refugee or emergency situations are other areas that have not been dealt with. [T]he whole area of housing has not been included. Among other things this means that there is no guidance concerning the handling of the institutions where a great number of persons with disabilities still spend their whole lives under miserable circumstances.*

* Second Report (2000) of Special Rapporteur

*Development of the ConventionEfforts beginning in 1980s but concentrated during 2002-2006 with 8 sessions of Ad Hoc Committee appointed by General Assembly.Modeled after CEDAW, CRC, CERD13 December 2006 adopted by UN; opened for signature 30 March 2007; entered into force 3 May 2008.Status of treaty and optional protocol (January 2010)143 signatories/77 ratifications to Convention88 signatories/48 ratifications to Optional Protocol

* Visual Snapshot of Status

*8 General PrinciplesRespect for the inherent dignity, autonomy, freedom to make ones own decision, independenceNon-discriminationFull and effective participation; inclusion in societyRespect for difference and acceptance of persons with disabilities as part of human diversity and humanityEquality of opportunityAccessibilityEquality between men and womenRespect for the evolving capacities of children.

Why a Convention?A response to a development challenge10% of the worlds population are defined as disabled; 80% living in developing countries.Although other UN treaties include people with disabilities, these treaties were not used to ensure access to rights.CRPD mandates state parties take action; does not create new rights.So is it a hybriddevelopment document and human rights treaty?*

Purpose (Article 1)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.

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*Disability DefinitionPreamble: Disability is an evolving concept, and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders full and effective participation in society on an equal basis with others.Article 1: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.

*DiscriminationAny 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.

*Reasonable AccommodationCarrying out, when necessary, appropriate modifications and adjustments, which do not impose a disproportional or undue burden, so that persons with disabilities can enjoy their human rights and fundamental freedoms on an equal basis with others (Article 2).

Equal Recognition Before LawReflects the debates in the Ad Hoc Committees on legal capacity and capacity to act.Paradigm shift from assumption of incapacity (exclusion) to one of capacity (inclusion)?Not all human beings have the same capabilities but all can develop capacity with support. (Amita Dhanda)Does not preclude substituted decision making/judgment but also read in conjunction with other articles that support universal capacity (legal capacity and capacity to act). *

States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

*Article 12

Article 12 and Ashley XAshley is a 10 year old severely disabled (cognitively and physically) girl who was given large amounts of hormones, a hysterectomy and other surgeries at age 6, to limit her growth and prevent menstruation and other changes related to female maturation.Her parents worked with the physicians and the ethics board at Childrens Hospital in designing this new treatment. You are a disability rights lawyer and are arguing that her rights under Article 12 have been violated. How?*

*Optional ProtocolIndividual communications: Committee considers communications from individuals or group claiming to be victims of a violation of the CRPD.Inquiries: Committee member may conduct an inquiry on a SP, following information received indicating grave or systemic violations of the CRPD.

Does it or will it make a difference?Pros/cons of a separate human rights treaty?What does it do that Standard Rules dont?Does it make disabled people more visible?Optional Protocols allow some redress for some individuals but what consequence for violators?*

From my perspectiveDisability discrimination is ultimately based on power differentiallargely due to fear of being like that.Powerlessness (label of incompetency) results in learned helplessness and self-fulfilling behavior.To the extent the CRPD changes those dynamics, it will be instrumental.*

But the Elephants in the Room areImpairment what will we ask of society in terms of changes to structural barriers?Reasonable accommodations/modificationsUniversal design? Mental capacity what do we do with the legal standards of competency and surrogate decision making (universal capacity)? Parens PatrieSupported Decision Making?*

Should the US sign/ratify?Does it add anything to our national nondiscrimination and civil rights laws? Compare purposes of ADA and CRPDCovered individualsWhat is considered discriminationConcept of universal capacity *

Will we sign and/or ratify?Obama made campaign commitment to sign and urge ratification.He signed the Convention in July 2009.A commitment to the new treaty merely to appear deferential to the needs of individuals with disabilities would be disastrous. (Justesens)

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