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Materials : Basic DocumentsKeynote Address:
Preliminary Thoughts on a Binding Treaty to Promote Rights of People with Disabilities.
Keynote Address by Anuradha Mohit
Special Rapporteur for Disability of the Natioanl Human Rights Commission, India
Delivered on 2 June 2003
The new millennium is gradually unfolding its challenges and opportunities. For people
with disabilities, the passage of Resolution 56/168 of 19 December 2001, by the UN General
Assembly marks a fresh beginning towards a binding treaty. The effort to harmonize
experience from the field of social development and human rights into a single,
comprehensive and integral treaty in itself is a unique opportunity to underpin the
cultural shift.
The concept of human rights is based on the assumption that all human beings are born
free - equal in rights and dignity. For the effective enjoyment of rights by all, the
State has an important role. As Dr. Amartya Sen points out "rights are entitlements
that require correlated duties". International treaty is one such option which sets
out mutually agreed principles for State and private action.
In last 20 years many efforts have been made to bring forth a legally binding treaty on
the theme of disability. In 1987, the expert meeting on World Programme of Action
emphasised the need for a disability convention. In the same year, the Government of Italy
and in 1988, the Government of Sweden, proposed the idea of a disability convention to the
UN General Assembly. On both occasions however, no consensus was reached as many
governmental representatives were of the opinion that existing human rights documents
guaranteed persons with disabilities the same rights as other persons, and there was,
therefore, no need for a special convention.
The World Programme of Action noted "incidents of gross violation of basic human
rights as a potential cause of mental and physical disability." Therefore, the UN
Sub-Commission on the Prevention of Discrimination and Protection of Minorities appointed
a Special Rapporteur, Mr. Leandro Despouy, to undertake a comprehensive study on the
relationship between human rights and disability. His report made it clear that disability
is a human rights concern with which the UN monitoring bodies should be involved.
Subsequently, in 1994, the Committee on Economic, Social and Cultural Rights assumed this
responsibility by adopting General Comment No. 5 which notes "The Covenant does not
refer explicitly to persons with disabilities. Nevertheless, the Universal Declaration of
Human Rights recognizes that all human beings are born free and equal in dignity and
rights and, since the Covenant's provisions apply fully to all members of society, persons
with disabilities are clearly entitled to the full range of rights recognized in the
Covenant."
In the 54th session the UN Commission on Human Rights adopted resolution 98/31 in which
a series of recommendations for further development of disability rights were made.
Subsequently in year 2000, the Commission adopted another Resolution 2000/51 since the
State Parties had not been reporting adequately on disability issues. A possible factor
behind the apathetic response could be the absence of an explicit reference to people with
disabilities in the treaties (except the Convention on Rights of the Child) and
non-binding character of instruments on the theme of disability.
In view of these facts and considering the decision of the first meeting of UN Ad Hoc
Committee to invite national human rights institutions to its future sessions, the seventh
meeting of Asia Pacific Forum of national human rights institutions, analyzed the need for
a disability convention. The forum members firmly believe that a coherent and integrated
approach to disability in the international law cannot be developed under the present
treaty system. Therefore, an exclusive convention is necessary to give "status,
authority and visibility" to disability issues which cannot be achieved through the
process of reform of existing international instruments and monitoring mechanisms.
Moreover, a single comprehensive treaty would enable the State Parties understand their
obligations in clear terms and it would set clear targets for the development of
disability-inclusive infra structure and processes. Adding a new treaty would also
complement existing international standards for the rights of the disadvantaged.
The UN General Assembly has backed the concept of a comprehensive and integral treaty,
which must harmonize the experience in the fields of social development and human rights.
Certainly, this provides an occasion to demonstrate indivisibility and interdependence of
rights on one hand and, on the other, symbiotic interplay between development and human
rights. To string the diverse human rights and social development doctrine into a single
coherent treaty would require careful crafting, to ensure that the treaty is comprehensive
as well as concise and flexible enough to accommodate diversity and scope for its
continuous evolution.
Twin-track approach has been widely advocated and it seems there is a general agreement
that the new disability convention should built on established international human rights
norms and standards and social justice. The recently concluded International Workshop of
National Human Rights Institutions at New Delhi on 29 May 2003, resolved that "In
addition to the application of existing international human rights law, the Convention
should contain specific articles dealing with specialized areas and issues relating to
civil, political, economic, social and cultural rights that, by the very nature of the
context of disability, require codification, with due respect being paid to the principles
of natural justice."
In the context of a thematic convention it becomes necessary to define its target
group. There are a number of definitions of disability in use, most treat disability as an
individual pathology - a condition grounded in physical, intellectual, sensory and
psychological impairments. The national human rights institutions from Asia Pacific region
and Commonwealth countries in their proposal to the Ad Hoc Committee have suggested that
"disability has a range of implications for social identity and behaviour, and
largely depends upon the context and is a consequence of discrimination, prejudice and
exclusion." Therefore, disability must be defined with reference to inadequacies in
basic structures and processes which fail to accommodate difference in human potential.
A possible definition could be "People with disabilities are those who
temporarily or permanently, experience physical, intellectual or psychological impairment
of varying degrees. Most often, their lives are handicapped by social, cultural,
attitudinal and infrastructural barriers, which hamper their freedom of participation,
access to opportunities and enjoyment of rights on equal terms."
The UN Ad Hoc Committee has called for suggestions regarding the nature of proposed
treaty. The existing thematic treaties are broadly of two kinds. One is premised on the
principle of non-discrimination such as ICERD and CEDAW. The second takes a holistic view
in terms of the range of rights it covers such as CRC. If the primary objective of
disability convention is to transact shift from a welfare to human rights model, then
certainly, the treaty norms must be framed and organized in a manner in which full range
of rights flow logically and should provide space for the flourishing of special rights as
a unique contribution in the field of ethics.
The problem of discrimination though has been the overriding concern in the disability
debate; however, it is also widely recognized that discrimination is a consequence of
denial of basic and fundamental rights. The World Programme of Action notes
"incidents of gross violation of basic human rights itself is a potential cause of
mental and physical disability." Therefore, a rights based treaty on the theme of
disability would be more appropriate as in its wake it would provide safe guards against
all forms of discrimination by firmly grounding its norms on the principles of equality,
dignity and autonomy.
A comprehensive and holistic treaty can promote the model of equality of outcome vis-a
vis the other models of equality as the equality of outcome incorporates the principle
'that all humans - in spite of their differences - are entitled to consideration and
respect as equals, and have the right to participate in the social and economic life of
society.' Unlike the other models of equality, it takes into account the conditions and
means of participation that may vary for each individual, entailing special accommodation
to make this possible. "Although the equality in the outcome model is based on
universal principle, however, the programs or means to ensure equality may justifiably be
targeted to enable support on a temporary or long-term basis. Political and legal
decisions would have to take differences in the achievement of well-being into account in
the distributive paradigm of social justice." (Rioux Marcia)
In principle we must aspire to have a most effective monitoring mechanism in which the
organizations of people with disabilities should play a very important role. Keeping in
view the UN's effort to reform monitoring and redressal systems we may keep our
recommendations for the time being on hold and should concentrate on gathering as wide a
support as possible for the elaboration and the adoption of a disability convention.
Subsequently in the light of changes proposed for more efficient functioning of
international monitoring mechanisms we can formulate a well considered proposal for
establishing an effective system for the monitoring of State Party performance and for the
redressal of group or individual complaints. In any case most of the international
procedures currently in use have been established through an additional protocol, and same
should be possible in our case.
These are preliminary thoughts about nature, elements and content of the new treaty.
These ideas are likely to undergo change as treaty elaboration is an evolving process. It
would engage cross-sectoral debate. Diverging views, ideological stands, emotional
positions, background experience, cultural factors, economic diversity and political
beliefs will all come into play. Therefore, openness and objectivity is an imperative to
sustain the momentum.
It must be acknowledged that people with disabilities have offered the world a precious
opportunity to redefine the norms of social justice, citizenship, democracy and
development. They insist on openness and tolerance to difference and greater acceptance of
variation in human potential. In that sense, disability is a means to transformation, but
for the consolidation and equitable expansion of new gains an international treaty is a
viable option.
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