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Niluka Gunawardena

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. (Article 1, Universal Declaration of Human Rights, 1948)

All men are created Equal, but some are more Equal than others. (George Orwell, 1945)

Universal Human Rights


Post -WW ll United Nations (1948)

Universal Declaration of Human Rights (UNDHR)Non binding statement, international customary law Universal, natural, indivisible, inalienable, individual rights International Bill of Rights 1. UNDHR 2. International Covenant on Civil and Political Rights (1966) 3. International Covenant on Economic, Social and Cultural Rights (1966)
Explicit/ implicit rights divide, foundation for all other conventions

Core Human Rights Treaties


The International Convention on the Elimination of All

Forms of Racial Discrimination The Covenant on the Elimination of All Froms of Discrimination Against Women The Convention Against Torture The Convention on the Rights of the Child The International Convention on the Protection of the Rights of All Migrant Workers and Their Families The International Convention for the Protection of All Persons from Enforced Disappearances The Convention on the Rights of Persons with Disabilities

(Binding, multilateral international law, sign and ratify/ accede, includes reservations and interpretative declarations and optional protocols)

Decades of efforts to establish binding international convention. Preceded by: Declaration on the Rights of Mentally Retarded Persons (1971) Declaration on the Right of Disabled Persons (1975) Declaration on the Right of Deaf-Blind Persons (1979) International Year of Disabled Persons (1981) Asian and Pacific Decade of Disabled Persons (1993-2002), the African Decade of Disabled People (2000-2009), and the Arab Decade of Disabled Persons (2003-2012) World Programme of Action Concerning Disabled Persons (1982) Convention (No. 159) concerning Vocational Rehabilitation and Employment (Disabled Persons) (1983), ILO (article 2,4) Convention on The Rights of the Child (1989) (article 2, 6, 12, 23, 28) Principles for the Protection of Persons with Mental Illness and the improvement of Mental Health Care (1991) Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) Beijing Declaration on the Right of People with Disabilities (2000) Biwako Millennuim Framework for Action (2003)

Background to CRPD

Shifting Paradigms
Depart Medical/ Rehabilitation approach

Until International year of disabled persons (1981) twin track approach


Emphasis on Social Model and Rights discourse

Persons with disabilities are not viewed as "objects" of charity, medical treatment and social protection; rather as "subjects" with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.

First monitoring mechanism set by Standard Rules on the Equalization of Opportunities for Persons with Disabilities through Special Rapporteur. Rapporteur continues to play vital role in CRDP era Rapporteurs: Bengt Lindqvist, Sheikha Hessa Khalifa bin Ahmed alThani, Mohammed Al-Tarawheh

Need for UNCRPD


Disabled people overlooked in current human rights

and development instruments and agendas Existing instruments are not adequatly applied to cover disabled people The specific aspects of the rights of disabled people need to be highlighted within the broader human rights framework Existing instruments non-enforcable Need to incorporate disabled people and DPOs to the process

Process
December, 2001 - Mexico sponsors General Assembly (GA) resolution

calling for an Ad Hoc Committee (AHC) to draft convention 2002 2006 AHC negotiations, unprecedented DPO participation AHC members
27 country representatives I national human rights institution representatives 7 DPO representatives

International Disability Alliance Disabled Peoples International Rehabilitation International Inclusion International World Blind Union World Federation of the Deaf World Network of Users and Survivors of Psychiatry World Federation of Deaf/ Blind 5 regional representatives

Nothing about us without us


(International Disability Caucus)

Transmitted to GA 4 December 2006 Unanimously adopted on 13 December 2006 Opened for signature - 30 March 2007 Entry into force 3 May 2008 First Conference of States Parties 31 October & 3 November 2008 Second Conference of States Parties 2 4 September 2009 First session of the Committee on the Rights of Persons with Disabilities 23-27 February 2008

Historic convention
On paper, they have enjoyed the same rights as others; in real life, they have often been relegated to the margins and denied the opportunities that others take for granted.
First human rights treaty to be adopted in the twenty-

first century
Most rapidly negotiated human rights treaty in the

history of international law


First to emerge from lobbying conducted extensively

through the Internet


(Kofi-Annan, Secretary Generals statement, 2006)

Aspects of Human Rights Philosophy applicable to CRPD


Explicit vs. Implicit rights (Political and Civil vs.

Social, Economic and Cultural) Negative rights equal treatment that requires protection Positive rights equal treatment that requires special treatment Implicit/ positive rights needed for explicit/ negative rights to flourish

The Convention
Purpose
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

Unique features
Both a development and a human rights instrument
A policy instrument which is cross-disability and cross-

sectoral Legally binding

Disability
The Convention does not explicitly define disability
Preamble of Convention states:
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 states:


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.

Structure
50 Articles 1. General principles and obligations 2. rights and privileges 3. Monitoring and implementation

The Convention: General Principles


Respect for inherent dignity
Autonomy, including the right to make ones own choice Non discrimination and equality of opportunities Respect for difference and disability as part of human

diversity Equality betwen women and men Respect for evolving capacities of children (First convention to explicitly state general principles)

General Obligations
Process of law reform in all countries
Abolish/modify laws, policies, programmes wihich are

inconsistent with the CRPD Promote new legislation to make the CRPD applicable

Mainstreaming of disability: not just disabilityspecific legislation. Obligation for public, but also private entities Consultation with organisations of persons with

disabilities Progressive realisation: major challenge related to economic, social and cultural rights

Non discrimination
Definition of discrimination in article 2 includes all

forms of discrimination (direct and indirect) and the denial of reasonable accommodation Reasonable accommodation is immediately applicable and not subject to progressive realisation (accessibility) The concept of disproportionate burden Discrimination on the basis of disability: perceived, association, in the past Positive action is not to be considered as discrimination National disability anti discrimination legislation

Accessibility
Important as a means to empowerment and inclusion Both a general principle and a stand-alone article (article 9) Access must be ensured to:

(article 19) Information and communication services (article 21) Education (article 24) Health (article 25) Habilitation and rehabilitation (article 26) Work and employment (article 27) - human resource policies and practices Adequate standard of living and social protection (article 28) Participation in political and social life (article 29) Participation in cultural life, recreation, leisure and sport (article 30) Note access also includes sign languages (Article 2, Article 21)

Justice (article 13) Living independently and being included in the community

Sub-groups
Multiple discrimination repeatedly recognized in text

(preamble, article 5,6 and 7) Twin track approach to disabled children and women Strong emphasis on gender throughout Article 6 focuses primarily on women (Proposed by Korea. Initial opposition) Article 7 Children reifies and expands provisions in CRC

Rights

Equality before the law without discrimination (article 5) Right to life, liberty and security of the person (articles 10 & 14) Equal recognition before the law and legal capacity (article 12) Freedom from torture (article 15) Freedom from exploitation, violence and abuse (article 16) Right to respect physical and mental integrity (article 17) Freedom of movement and nationality (article 18) Right to live in the community (article 19) Freedom of expression and opinion (article 21) Respect for privacy (article 22) Respect for home and the family (article 23) Right to education (article 24) Right to health (article 25) Right to work (article 27) Right to adequate standard of living (article 28) Right to participate in political and public life (article 29) Right to participation in cultural life (article 30)

International Cooperation (Article 32)


International cooperation, including international

development programmes should be inclusive of, and accessible to, persons with disabilities Focus is on mainstreaming disability into all development activities, though disability specific measures may be necessary to accelerate or achieve de facto equality of persons with disabilities'. (Article 5) Millennium Development Goals will not be achieved if persons with disabilities are not included

Resource limitations
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

No gap policy
No entity can achieve the goal of equality for persons with disabilities

on its own. An interconnected network of actors is required to reach this goal. Example: In order for a person with disabilities using a wheelchair to access decent work, the person needs to be able:

to physically move in and out of his or her home to access the public space and transportation to access the work facilities (both the built environment and

its information and communications systems)

Different entities need to ensure that their respective spheres of

responsibility provide the necessary opportunities and access to persons with disabilities, on an equal basis with others. If any one element of the network fails in this obligation, persons are not able to reap the benefit from the other elements.

Implementing bodies
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.

Optional Protocol
Creates additional functions for the Committee on the

Rights of Persons with Disabilities:


Individual communications: Committee considers

communications from individuals or group of individuals claiming to be victims of a violation of the provisions of the Convention by a State Party of the party to the Protocol Inquiries: Committee member may conduct an inquiry on a State Party, following information received indicating grave or systemic violations of the Convention by State Party

Inter- Agency Support Group

United Nations Inter-Agency Support Group for the Convention on the Rights of Persons with Disabilities (IASG) established. First meeting was held in December 2007 Through the IASG, the United Nations will support the States parties, based within a framework of coordinated planning and action. The IASG will ensure that the programmes and policies of the United Nations are inclusive of persons with disabilities, and will work to strengthen recognition of and respect for the principles of the Convention on the Rights of Persons with Disabilities. Membership of the IASG: United Nations departments, regional commissions, agencies, funds and programmes whose work is relevant to the Convention.

Special Rapportuer on Disability


Role of the Special Rapporteur on Disability Monitor the implementation of the Standard Rules for the Equalization of Opportunities of Persons with Disabilities Advocate the equalization of opportunities for, the full enjoyment of all human rights by, and the well-being of persons with disabilities in all respects Create awareness of the Convention on the Rights of Persons with Disabilities, including for its wider signature and ratification by Member States Act as a catalyst to promote international and technical cooperation on disability issues, including by identifying strategic areas for the exchange and sharing of expertise, best practices, knowledge, information and relevant technologies in order to enhance the capacity-building of Member

States Collaborate, in the fulfillment of the above tasks, with all relevant stakeholders, including organizations of persons with disabilities Special Rapporteur reports yearly to the Commission for Social Development.

International Committment
144 Signatories to the convention 88 signatories to the optional protocols 80 ratifications of the convention 51 ratifications of the proticol
UK: Convention Signed 30/03/07 Ratified: 7/08/09

Protocol 26/02/09 07/08/09

DAA Archive of Rights Violations


A woman tortured her adopted disabled daughter for years, beating her, kicking

her in the stomach, pulling her hair. She kept her in a coffin-shaped box at night "for wanting more food or for talking too much. (Austria) Articles 10, 15 and 16
A man who was charged on two counts of sexually abusing his blind daughter

was acquitted because the judge stated that the visual disability of the girl prevented her from making a reliable identification. (Hong Kong) Article 6, 12, 13 and 16
Twenty-six countries deny deaf people a driving license. Quarantine of dogs

when crossing national borders does not allow guide dog users to travel freely (UK) Article 9, 18, 20, 30
A British doctor and his family faced deportation because his daughter had

cerebral palsy. (Australia)- Article 18

Blind people cannot be legal guardians of children (Chile,

Uruguay, Honduras)- Article 23


Disabled people are not allowed to own businesses. (Venezuela)-

Article 27
Wheelchair users cannot become Church of England priests;

disabled people cannot become Buddhist monks; most places of worship are inaccessible. - Article 30
A senior official of the Commonwealth Games said integration of

disabled athletes was an embarrassment. (Canada)- Article 30

One disadvantaged group after the other fought lengthy battles to be included on the list of individuals entitles to citizenship, only to find that social justice and equality still eluded them (Phillips, 1997)

Cultural Relativism Individual vs. community rights Political landscape (NGOs, Human Rights and the

State) Resources Replication of existing laws Customary law- common law- international law Does not address structural sources of oppression Participation in abstract legal framework Reservations and definitions

Reservations
Article 12 - persons with disabilities enjoy the capacity

to acquire rights and assume legal responsibility ('ahliyyat al-wujub) but not the capacity to perform ('ahliyyat al-'ada'), under Egyptian law(Also Syria)
Article 15: consent' applies to two different

situations: 1. consent given by a person who is able to consent, and 2. in the case of persons who are not able to give their consent, permission given by their representative or an authority or body provided for by law. (Netherlands)

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND Reservations: Article 27 does not apply to armed forces Education Article 24 reserves right to provide segregated/ special education parents have right to decide Equal recognition before the law Article 12 State may appoint representative for those unable to act social security payments and claims

UNCRPD in Action
UN Committee on the Rights of Persons with Disabilities set up working group on the situation of Haitians with Disabilities on 5 March 2010 (Article 11)
Investigate needs and assess situation Urge Haitian government to incorporate disabled

peoples needs and participation in to reconstruction plans

Way forward