The Disabilities Convention

1. The Disabilities Convention Origin, nature and prospects

2. Disability • 10% of the world’s population (600 million inidividuals) • 80% in the third world

4. United Nations Convention on the rights of persons with disabilities • Adopted: December 2006 • 20th ratification on 3 April 2008

5. “concern” that “despite (the main international human rights instruments and undertakings) persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world”

7. Preamble of Convention : • ‘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 of the Convention : • ‘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’. « Impairment » « Barriers »

9. Affirmation: « no more, no less » • « Right to have rights » • Right to: life, recognition before the law, liberty and security of person, respect for physical and mental integrity, liberty of movement, and to family life, to education, to the highest attainable standard of health, work, adequate standard of living, social protection, to take part in cultural life • Freedom from: torture or cruel or degrading treatment, freedom to chose one’s residence, freedom of expression and opinion, freedom from arbitrary interference with privacy • Equality: « on an equal basis with others » (x 35)

10. Reformulation 1: Content • Examples: • “right to recognition before the law and equality before the law”(legal capacity) + “the support they may require in exercising their legal capacity” and “appropriate and effective safeguards to prevent abuse • “respect for privacy” is to be protected “regardless of place of residence or living arrangements” and specifically includes “the privacy of personal, health and rehabilitation information of persons with disabilities”; • right to family life includes “the right to “decide freely and responsibly on the number and spacing of their children” and “retain their fertility on an equal basis with others”;

11. Reformulation 2: Style • Types of rights: • Civil and political and economic and social: • Eg: “freedom of expression and opinion” = “all appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion”, for example by “facilitating the use of sign languages, Braille, etc” or by “recognizing and promoting the use of sign language”. • Actors: • Freedom from exploitation, violence and abuse (article 16) • State is “to raise awareness throughout society (…) regarding persons with disabilities”; to “combat stereotypes, prejudices and harmful practices relating to persons with disabilities” • Intensity of obligations: • Respect and protect: “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise”;“Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities”

12. Reformulation 3: Intensity Absolute and immediate « Progressive realization » « Reasonable accommodation » “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”

13. British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, ("Grismer") • Three part test to determine whether an employer can defend a workplace rule or standard by claiming it is "bona fide occupational requirement" ("BFOR"): • 1) Did the employer adopt the standard for a purpose rationally connected to the performance of the job? • 2) Did the employer adopted this particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work –related purpose? • 3) Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. • Justice McLachlin: "Excessive cost may justify a refusal to accommodate those with disabilities, but one must be wary of putting too low a value on accommodating the disabled," "Impressionistic evidence of increased expense will not generally suffice -- and there may be ways to reduce costs."

14. Reformulation 3: Implementation • To repeal or adopt certain laws • To mainstream concern for peoples with disabilities • To launch public awareness campaigns • To build or adapt certain infrastructures • To train specialized personnel • To employ certain individuals • To provide certain forms of services or assistance • To consult with the representative organizations of peoples with disabilities

15. Extension 1. Exploitation • Participation: promoting actively “an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs” • 26. Habilitation and rehabilitation • goal of measures of “habilitation and rehabilitation” is described as enabling “persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability.” • 20. Personal mobility

16. Extension 2. Participation • “full and effective participation and inclusion in society” • political rights, right to cultural life • But states have to: • “promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs” • “take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of (…) their full inclusion and participation in the community.” • Goal of right to education: “persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community.”

17. Innovation • “personal mobility”, “accessibility”, “right to live independently” • goal of measures of “habilitation and rehabilitation” is described as enabling “persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability.” • obligation of State Parties to “(…) render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities” • “legal capacity for rights”

18. Domestic Implementation • National Human Rights Institutions (NHRIs) play important role • National focal points & coordination mechanisms within governments • Multi-sectoral involvement of all government ministries • Outreach to other national stakeholders (civil society organizations, academic/scientific institutions, private sector)

19. Problem of limited resources • International human rights law recognizes the limitations on resources • Limitations on resources is not an excuse to delay implementation • Limited resources have to be prioritized according to reasonable and objective criteria and funding must be proportional • Strategies for effective use of limited resources: • Target low-cost programmes • Target people in the most marginalized situations • Be non-discriminatory • Draw on international cooperation • Include persons with disabilities in all stages

20. International implementation • Conference of States Parties • meets in order to consider any matter with regard to the implementation of the Convention (biennially or upon decision by the Conference) • Committee on the Rights of Persons with Disabilities • a body of independent experts serving in their personal capacity • tasked with reviewing States’ implementation of the Convention.  • initially comprises 12 independent experts; rises to 18 members after an additional 60 ratifications or accessions to the Convention.

21. MAINSTREAMING • Article 4.1.(c): ‘States Parties undertake to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes’ • Mainstreaming of disability issues according to the Convention in: • Work of existing human rights treaty bodies • Human Rights Council • Millennium Development Goals (MDG) - national and international strategies • Common Country Assessment (CCA)/United Nations Development Assistance Framework (UNDAF) • Poverty Reduction Strategy Papers (PRSP) • The development activities of international donors and NGOs • Census data • Sectoral and cross-sectoral policies • Programmes and policies for women (article 6) and children (article 7) • and others...

22. Identity, culture • “all organs of the media” should be encouraged to “portray persons with disabilities in a manner consistent with the purpose of the (…) Convention” • “Persons with disabilities shall be entitled (…) to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture” • “encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels” • “ensure that persons with disabilities have an opportunity to organize, develop and participate in disability-specific sporting and recreational activities, and to this end, encourage the provision of appropriate instruction, training and resources”