Arab Regional Meeting on Norms and Standards Related to Development and the Rights of Persons with Disabilities
Beirut, Republic of Lebanon, 27-29 May 2003

Pre-Seminar

Elements of a United Nations Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities

Issues and approaches

A Convention on the Rights of Persons with Disabilities will be like other human rights conventions, but will also be different in significant respects. It will be similar in terms of the structure of the document, but it will have distinctive content in major respects. Like all other international instruments it will draw on existing, agreed language for many elements as a means of maintaining consistency in the human rights regime and expediting agreement. It will also refer to the draft of elements provided by the Government of Mexico to the first session of the Ad Hoc Committee (A/AC.265/WP.1). [1]

With these factors in mind, this paper uses the basic structure of a human rights treaty, but explores issues that would be specific to a convention on the rights of persons with disabilities. It also presents, where relevant, what agreed language in other international agreements concerning disability show.

These other agreements include:

• Other human rights conventions, especially the Convention on the Elimination of All Forms of Discrimination Against Women

• The United Nations Standard Rules for the Equalization of Opportunities for Persons with Disabilities

Persons and organizations wishing to make comments on a convention for transmittal to the Expert Group Meeting and Seminar on an international convention to protect and promote the rights of persons with disabilities that will take place from 2-4 June 2003 in Bangkok, Thailand should do so according to this structure and, if possible, address the issues raised.

Preamble

The preamble to a convention essentially sets out the factors that indicated the need for the convention. The rationale in the preambular paragraphs establishes the factual context for interpreting the Convention.

The preamble also shows the Convention's links to other instruments. This is particularly important in the human rights area, where consistency in the regime is critical. It has to show where the disability convention fits in the larger regime.

For example, the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities essentially makes a point about need and a linkage:

BEARING IN MIND that disability can lead to situations of discrimination, and that it is necessary therefore to encourage actions and measures to bring about a substantial improvement in the situation of persons with disabilities in the Hemisphere;

RECALLING that the American Declaration of the Rights and Duties of Man proclaims that all human beings are born free and equal, in dignity and in rights, and that the rights and freedoms of every person must be respected without distinction of any kind;

The elements Working Paper 1 suggests a rationale based on the inability of existing instruments to ensure enjoyment by persons with disabilities of their rights. They say:

d) Recognizing also that discrimination against all persons for reasons of any disability is a violation of the principles of equality of rights and respect for human dignity and hinders the participation - under equality of conditions - of persons with disabilities in civil, social, economic, political, and cultural life;

i) Recognizing that, despite the numerous efforts made by governments, bodies and relevant organizations within the United Nations system and non-governmental organizations aimed at increasing cooperation and integration, as well as raising awareness about questions regarding disability since the adoption of the World Program of Action (1983-1992), these efforts have not been enough to eradicate violations and discrimination against persons with disabilities in different parts of the world;

j) Recognizing that in order to achieve equality of opportunities for persons with disabilities, the exercise of all political, civil, economic, social, and cultural rights established in the International Covenants and other instruments of Human Rights, must be guaranteed, as well as their accessibility to the physical environment;

The rationale for having a new convention rather than finding ways of enforcing existing conventions differently needs to be clearly stated in the preamble.

In addition, because the genesis of concern for a new convention came in the context of development, the Preamble should make an appropriate reference to development.

Basic Articles

All conventions have to have articles that define who is covered by the convention, what are the general obligations of States parties and what are the most important general principles that guide the convention. In the case of a convention on disability, these are particularly important and not necessarily easy. This is because disability is a condition rather than an attribute, the responsibility of the State for ensuring equality of opportunity is not always clear, and policies to provide equality of opportunity may imply compensatory or affirmative measures.

Who is covered

Because disability is a condition rather than an attribute [2] , who is covered must be carefully defined to ensure that no one who should be included in the provisions of the convention is left out. Existing agreed definitions may lack the necessary precision, particularly in terms of what are called "invisible" disabilities. Additionally, given that most people have some impairment, there needs to be a sense of the threshold that has to be reached to be included in the provision of the convention.

The Standard Rules for the Equalization of Opportunities for Persons with Disabilities have a definition that is very imprecise. They state:

17. The term "disability" summarizes a great number of different functional limitations occurring in any population in any country of the world. People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature.

18. The term "handicap" means the loss or limitation of opportunities to take part in the life of the community on an equal level with others. It describes the encounter between the person with a disability and the environment. The purpose of this term is to emphasize the focus on the shortcomings in the environment and in many organized activities in society, for example, information, communication and education, which prevent persons with disabilities from participating on equal terms.

The Inter-American Convention uses a definition that is largely drawn from a major national legislation, the Americans with Disability Act:

a) "Disability" means a physical, mental (psychic), or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment.

While the Act itself does not specify what substantial limitation or major life activities mean, the United States Census applied a definition for the purpose of collecting data. It used three different categories of life activities:

1. Functional activities: seeing, hearing, speaking, lifting and carrying, using stairs, and walking
2. Activities for daily living (ADL): getting around inside the home, getting in or out of a bed or chair, bathing, dressing, eating, and toileting
3. Instrumental activities of daily living (IADL): going outside the home, keeping track of money or bills, preparing meals, doing light housework, and using the telephone Working Paper 1 one uses the Inter-American Convention definition.

Whether these definitions are adequate to ensure coverage of all those who should be included remains to be determined.

The terms disability and handicap were derived from the WHO's International Classification of Impairment, Disability and Handicap, an internationally accepted method for classifying health conditions. This classification has subsequently been revised, and the new classification, called the International Classification of Functioning, Disability and Health (ICF), was adopted by the World Health Assembly on 22 May 2001. The classification is intended

"to establish a common language for describing health and health-related states in order to improve communication between different users, such as health care workers, researchers, policy-makers and the public, including people with disabilities..." [3]

It is not a definition per se, but provides some sense, from a combination of a medical and a social model, what disability implies.

In the ICF, disability is the result of an impairment that leads to an activity limitation or participation restriction. The key starting term here is the idea of impairment. The ICF is rather specific about this:

Impairments represent a deviation from certain generally accepted population standards in the biomedical status of the body and its functions, and definition of their constituents is undertaken primarily by those qualified to judge physical and mental functioning according to these standards. [4]

Even in the ICF, what is an impairment and what it means is elusive. It is clearly an observer term (its definition is "undertaken primarily by those qualified to judge"). An impairment is not necessarily serious. For example, a person who is near-sighted would have an impairment, given that the "norm" is 20-20 vision, but the impairment is easily corrected with glasses. And, whether something is an impairment or not could change if there are changes in "generally accepted population standards."

Impairments have to be seen in terms of their consequences for activity and participation. In the ICF, activity is the execution of a task or action by an individual and participation is involvement in a life situation. The ICF specifies nine domains for activity and participation

1. Learning and applying knowledge
2. General tasks and demands
3. Communication
4. Mobility
5. Self-care
6. Domestic life
7. Interpersonal interactions and relationships
8. Major life areas
9. Community, social and civic life

While this is helpful, the concept of limitation (which is the interface between an impairment and being able to undertake the activity or participate) is also an observer term. The ICF says that [5]

Limitations or restrictions are assessed against a generally accepted population standard. The standard or norm against which an individual's capacity and performance is compared is that of an individual without a similar health condition (disease, disorder or injury, etc.). The limitation or restriction records the discordance between the observed and the expected performance. The expected performance is the population norm, which represents the experience of people without the specific health condition.

Thus, while they point in the direction of a definition, they can only be operationalized if there is either a clear specification of "normal" or of some mechanism to make the assessment.

Some key questions include:

1. To what extent can the definitions set out in the Inter-American Convention be refined and extended to ensure a clear understanding of who is covered by the Convention.
2. To what extent is it necessary to have some mechanism for determining whether a given person is covered or not.

What are state obligations

All Conventions have specifications of State obligations, the things that States agree to do as a condition for becoming a party. Usually these are in the form of the types of legislative and policy actions that would be necessary to achieve the convention's objectives.

For example, Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women sets out a series of obligations:

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; [plus six additional measures.]

The obligations specified in the Inter-American convention's Article 3 are set out as follows:

To achieve the objectives of this Convention, the states parties undertake:

1. To adopt the legislative, social, educational, labor-related, or any other measures needed to eliminate discrimination against persons with disabilities and to promote their full integration into society, including, but not limited to:

a. Measures to eliminate discrimination gradually and to promote integration by government authorities and/or private entities in providing or making available goods, services, facilities, programs, and activities such as employment, transportation, communications, housing, recreation, education, sports, law enforcement and administration of justice, and political and administrative activities;

b. Measures to ensure that new buildings, vehicles, and facilities constructed or manufactured within their respective territories facilitate transportation, communications, and access by persons with disabilities;

c. Measures to eliminate, to the extent possible, architectural, transportation, and communication obstacles to facilitate access and use by persons with disabilities; and

d. Measures to ensure that persons responsible for applying this Convention and domestic law in this area are trained to do so.

The term "measures" involves a lesser obligation than "embody the principle of equality ... in their national constitutions or other appropriate legislation..." The proposed obligations presented in Article 3 in Working Paper 1 are more explicit :

States Parties agree to adopt legislative, judicial, administrative, and any other kind of measures aimed at achieving the objectives of this Convention. To this end, they shall:

1. Include in their legislation, policies and programs aimed at promoting the full participation of persons with disabilities.

2. Adopt the necessary measures to eliminate all forms of discrimination against persons with disabilities and promote and protect the exercise of their rights. Among others, these measures shall include the following:

a) Incorporate in their national legislations the principle of equality and non-discrimination for all people and abolish or amend any legislation that permits the contrary.

b) Establish measures to prevent and sanction any practice which constitutes discrimination against persons with disabilities.

c) Ensure that the rights contained in this Convention and other related international instruments have the legal protection of the competent national courts.

d) Establish in their national legislations the necessary positive actions to promote the autonomy and independent lives of persons with disabilities and to achieve their full participation, under conditions of equality, in all activities of economic, social, cultural, civil, and political life.

3. In the elaboration and evaluation of legislation and policies adopted for persons with disabilities, special circumstances and needs of persons with disabilities, shall be taken into account and shall secure their participation and that of their families.

4. Promote the elaboration national census-taking of the population with disabilities and their access to public services, rehabilitation, education, and employment.

Key questions in this area include

1. the extent to which obligations should be expressed as specific types of measures to take
2. the limitations on what States undertake to accept as the function of the State.

What affirmative or compensatory policies need to be implemented

Some conventions dealing with elimination of discrimination make provisions for what are called "temporary positive measures," a kind of positive discrimination that essentially says that it is necessary to take special measures to compensate for the present day consequences of past discrimination that impede the present-day enjoyment of rights. This is an important element in the Convention on the Elimination of All Forms of Discrimination Against Women's Article 4 that states:

1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

The Inter-American Convention does not have language of this type, nor do the Standard Rules. Article 4 of the elements suggested in Working Paper 1 does contain similar language:

1. In order to guarantee equality of rights and opportunities for persons with disabilities, States Parties shall promote, among others, positive or compensatory measures.

2. States Parties shall adopt specific measures to protect persons with disabilities who are in special situations of vulnerability.

The difference between a convention on disability and the other conventions in this respect is whether the positive or compensatory measures are temporary. In all likelihood, they would have to be permanent. In the reference national legislation, the Americans with Disabilities Act, there is a concept of "reasonable accommodation", steps that have to be taken to ensure that opportunities for persons with disabilities are equal. While these would be defined in terms of specific areas, the general concept would have to be built into the basic articles of the convention.

Some of the key issues include:

1. To what extent should the concept of positive or compensatory measures be built into law
2. Should the measures be considered permanent or temporary
3. Do positive and compensatory measures clearly embody the concept of reasonable accommodation and should they
4. To what extent should reasonable accommodation apply only to new programs or projects and to what extent should it be applied retroactively.

Specialized Articles

In other conventions there are specialized articles dealing with the main areas of public policy that have to be addressed. For example, the Convention on the Elimination of All Forms of Discrimination Against Women has ten:

• Article 7 Civil and political rights
• Article 8 International participation
• Article 9 Right to nationality
• Article 10 Education and training
• Article 11 Employment
• Article 12 Health
• Article 13 Other areas of economic and social life
• Article 14 Rural women
• Article 15 Legal capacity
• Article 16 Marriage and family relations These areas reflected many of the historical concerns for equality, as well as previous normative work.

The Standard Rules have 8 Target Areas for Equal Participation

• Rule 5. Accessibility
• Rule 6. Education
• Rule 7. Employment
• Rule 8. Income maintenance and social security
• Rule 9. Family life and personal integrity
• Rule 10. Culture
• Rule 11. Recreation and sports
• Rule 12. Religion

The Inter-American Convention has no specialized articles.

Working Paper 1 suggests13 areas:

• Article 5 Stereotypes and media
• Article 6 Accessible movement
• Article 7 Alternative communication
• Article 8 Accessible Information
• Article 9 Violence
• Article 10 Legal capacity
• Article 11 Political participation
• Article 12 Education
• Article 13 Medical and rehabilitation services
• Article 14 Employment
• Article 15 Social Security
• Article 16 Recreation, culture and sports
• Article 17 National institutions

The Convention will have to have one article for each of the main areas that are identified.

Key questions include:

1. What are the specific articles that need to be included.
2. To what extent should they have a common structure
3. For each, what are the main policies that should be incorporated.

Implementation and monitoring

All United Nations human rights conventions have the same type of monitoring system: a committee elected by the States party. While a convention on disability would not necessarily have such a committee, it can be presumed that to be consistent, it would need one.

Neither the Standard Rules (whose monitoring is in the hands of the Commission for Social Development assisted by a Special Rapporteur) nor the Inter-American Convention provide alternative models. In Working Paper 1, a 12 person Committee of Experts on the Rights of Persons with Disabilities is proposed. In the text, the terms of reference of the Committee goes somewhat beyond what is standard for a monitoring body. It also specifies criteria for the members that is somewhat more detailed than normal. The Convention on the Elimination of All Forms of Discrimination Against Women, for example, only requires the members of its monitoring committee to be "of high moral standing and competence in the field covered by the Convention." In contrast Working Paper 1 says that the members should be chosen "from among prominent national leaders of organizations of persons with disabilities, scholars, specialists, scientists, and doctors of recognized high moral integrity and competence in the protection and promotion of the rights and dignity of persons with disabilities."

The proposed reporting by States party is similar to that of other conventions.

Key questions on this section include:

1. What is the most effective monitoring mechanism for a convention on the rights of persons with disabilities.
2. Should the monitoring mechanism have the same functions as other human rights monitoring bodies or should there be different functions.
3. What detailed criteria, if any, should be given for the experts who would serve on a monitoring committee.

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Notes:

[1] There were two other working papers at the session, but they did not make textual suggestions.

[2] For the Covenants and the Convention on Torture, it is the attribute of being human; for the Convention on the Rights of the Child it is age; for the Convention on the Elimination of All Forms of Discrimination against Women it is sex; and for the Convention on Migrant Workers and their Families, it is the legal state of being a migrant worker.

[3] World Health Organization, International Classification of Functioning, Disability and Health, Introduction, p. 5. The ICF can be seen on-line at http://www3.who.int/icf/icftemplate.cfm

[4] Ibid., p. 12.

[5] Ibid., pp. 15-16.

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Last updated 05/25/03. Contact: facilitator@worldenable.net