1. This paper has been prepared by the Asia Pacific Forum of National Human Rights Institutions (APF). The APF is a regional organisation comprised of the following independent national human rights institutions:

Afghanistan Independent Human Rights Commission
Australian Human Rights and Equal Opportunity Commission
Fiji Human Rights Commission
National Human Rights Commission of India
Indonesian National Commission on Human Rights
Malaysian Human Rights Commission
Mongolia National Human Rights Commission
National Human Rights Commission of Nepal
New Zealand Human Rights Commission
Palestinian Independent Commission for Citizens Rights
Philippines Commission on Human Rights
National Human Rights Commission of the Republic of Korea
Human Rights Commission of Sri Lanka, and
The National Human Rights Commission of Thailand.

See www.asiapacificforum.net for further details on the APF and each of the above institutions, including their powers, functions and composition.

2. The purpose of this paper is to assist in the development of a new international Convention on disability. It specifically focuses on the following six areas that are the subject of ongoing discussions in the Working Group (WG) and Ad Hoc Committee process – (i) Definitions; (ii) Monitoring; (iii) Existing Normative Principles; (iv) State Obligations; (v) International Cooperation and (vi) ‘What’s missing from the Convention’. A brief executive summary of the main points under each of the above headings is provided below:

Definitions

3. The use of the Convention is likely to be easier if a definitions section at the front only contains definitions which apply to several articles. Definitions which only apply to one substantive article should be contained within that specific article.

General Principles

4. The draft Principles are appropriate to support for inclusion in a Convention, but attention needs be given to ensuring that the Principles are reflected more directly in operative provisions. The principles, as placed in the working group draft, may be more likely to be picked up in this manner than if left within the preamble structure.

5. There could, however, be clearer linkages provided between the rest of the body of the draft Convention and the Principles, so as to make it clearer (i) which of the principles is to be applied within the context of a specific article and (ii) to provide clear guidance on the application and implementation of rights and obligations specified. Optimally, operative articles would be drafted throughout to articulate the principles as they apply to a particular right.

Disability

6. It is important that the Convention includes a definition of disability. The definition of disability should be broad and inclusive, along the lines of the Chair’s Draft. Without a definition, or some other form of clear statement on what is meant by disability for the purposes of a Convention, it is likely that:

some States would refuse to ratify the Convention on the grounds that its meaning and the obligations it generates are too uncertain;
the Convention would fail to fulfil its potential in providing a template for development of national law and policy and for guiding awareness of disability in society; and
States which lack legal protection or policy for some types of disability (whether through a lack of awareness or more active forms of disapproval or prejudice) will not receive any stimulus from the Convention towards more inclusive approaches.

Accessibility

7. The Chair’s Draft provides a definition of ‘accessibility’ which is an important attempt to state a number of significant concepts concisely. The drafting, however, may not be instantly understood by people not already familiar with the concepts. This could be helped by providing examples. This would also assist in ensuring that understanding of accessibility issues is not confined to physical access and that information and communication issues are not restricted to technology related issues.

8. The instances provided of areas where accessibility is required appear designed to be comprehensive but, while important, are not the only areas relevant in this respect. A list of areas where accessibility is required would also need to include areas such as employment, education, goods and services, housing and accommodation and social and cultural life.

Communication

9. The Working Group report questions whether there is a need for a definition of communication separate from draft substantive article 19. One respect in which there may be merit in retaining a separate definition of communication is that this may provide substance to the meaning of ‘accessibility’, since this uses, but does not define, the term communication.

Discrimination on the ground of disability

10. The Chair’s Draft provides a superior formulation compared to that provided in the Working Group draft. The WG draft makes it slightly clearer that States will need to consider a wider range of approaches than simply passing legislation, while the Chair’s draft perhaps makes it clearer that disability discrimination law needs to address the issue of reasonable accommodation.

11. Any limitations of the Chair’s Draft definition in emphasising positive obligations may be unimportant if other articles on general obligations are accepted as being sufficiently clear for States to take all appropriate measures to remove discrimination.

12. Alternatively, limitations of the WG Draft in this area might be addressed by modifying this draft to require States to take measures to “ensure” as well as “provide”, so as to make clear that taking appropriate measures will include legislative and other measures to ensure that non-State actors provide reasonable accommodation.

Special measures

13. There are a number of issues that the concept of ‘special measures’ might appropriately address in a Convention, but which this draft does not currently do so, including the following:

Some measures to ensure access for people with disabilities involve the balancing of competing needs of people with different disabilities. In such a situation, authorities require some degree of protection rather than being constrained in their ability to act. A special measures provision should provide that protection so long as decisions are reasonably intended as beneficial;
It may be necessary to make it clear that in addressing disability related needs States and other responsible authorities are permitted to adopt reasonable priorities rather than being required to address all needs at once or face claims of discrimination as between different levels or types of disability;
Most importantly, in the context of disability a special measures provision needs to address issues of segregation of services for people with disabilities and access to the facilities and services available to the general community and ensure that services intended to benefit people with disabilities are not regarded as immune from all scrutiny on human rights grounds.

14. This issue is addressed among the draft guiding principles for the Convention, but text on this issue also needs to appear in any provision on special measures, to ensure that such a provision is not interpreted as a blank cheque for segregation or other limitations on rights.

Discrimination against associates or based on past future or imputed disability

15. Coverage of discrimination against associates is important both for the persons affected and in recognition that disability discrimination is a social phenomenon rather than being concerned wholly with individual pathology. Coverage of discrimination based on imputed or future disability is likely to increase in social importance with further developments in relation to human genetic information.

Language

16. The need to include a separate definition of language is not overtly obvious. However the convention needs to consider:

whether it is clear enough that ‘accessibility’, as it applies to various rights covered by the draft Convention, includes issues of communications and language access; and
what obligations ought to be included regarding making information and communication accessible to people with intellectual disabilities including whether and how ‘plain language’ ought to be defined for this purpose.

Reasonable accommodation

17. Issues relevant to ‘reasonable accommodation’ are discussed above in the context of paragraphs 10 to 12 on the definition of discrimination.

Universal Design and Inclusive design

18. There is a need for an appropriate definition of ‘universal design and inclusive design’ notwithstanding proposals for a separate substantive article on this issue since the concept of universal design may also be used in the concept of accessibility and/or into State obligations in a range of areas. Established usage regards universal design as part of accessibility. This involves goods, services, equipment, facilities, processes and systems being designed to be directly accessible to people with disabilities as far as possible, and for the widest range of people possible, without any adaptations having to be made.

19. ‘Adaptability’ should be considered as a related and important but distinct concept. If it is not feasible to make, for example, a facility directly accessible to a person with a disability, it should at least be made adaptable. The concept of universal design is not restricted to technical features of goods, services, equipment and facilities, but may also usefully be applied in considering accessibility of social systems and processes more generally.

Monitoring

20. The Convention should not simply replicate existing treaty monitoring structures. The formulation of this new Convention is an opportunity to engage with the treaty reform agenda for an effective monitoring system. For example, one option is that States could be obliged to develop, in consultation with the disability community, a strategic implementation plan that identifies key areas of performance for submission and review. The States would be required to report against developments in the key performance areas. This would create a proactive response to treaty obligations at a national level and give a clearer focus to the work of treaty monitoring bodies. The Convention could also establish a new specialist committee to monitor State implementation which contains a majority of members of persons with disabilities who have expertise in human rights. The Committee will need a clear programme of work and rules of procedure with provide it with a focus for interpretation and jurisprudence to facilitate implementation and manage compliance.

21. The Convention could develop and strengthen the relationship to regional mechanisms, where they exist, and this would provide an opportunity to encourage regional planning and implementation as well monitoring procedures. The current informal relationship that committees have established with competent bodies could be formalised. As this is the first Convention negotiated since the adoption of the General Assembly endorsed Principles Relating to the Status of National Human Rights Institutions (the Paris Principles), the role of national human rights institutions should be formally recognised. For example they could provide a treaty body with a reference point for monitoring State action.

Existing Normative Principles

22. The drafting process needs to consider the role of existing normative principles such as the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in informing and guiding the nature and structure of proposed text. The Standard Rules provide an illustrative template for developing draft text. Drafting needs to recognise the nature of a thematic Convention and the need for an applied focus to support State implementation. It is how these fundamental principles are applied that provides the ‘value adding’ within a thematic Convention. The Standard Rules provides a substantial body of knowledge in a framework that applies these principles within a disability context and, as such, is well placed to inform the development of a thematic Convention.

State Obligations

23. It is important to include a general provision on State obligations to address, in general terms, issues that may not be addressed elsewhere in the Convention. Draft article 4 of the WG text is in general satisfactory, but the Convention needs to address explicitly (as did the Chair’s draft text):

(a) the question of whether some or all of the rights (and which ones) are to be guaranteed immediately or realized progressively;

(b) the obligation to make available appropriate remedies;

(c) the obligations of States in relation to private or non-State actors. This should clearly define the responsibility of States when State functions are delegated or subcontracted to private entities.

24. The Convention needs to address the question of permissible limitations on rights (as do both the ICCPR and ICESCR). No greater limitation on any existing right should be permitted than is already permitted under other treaties or under general international law.

International Cooepration

25. The inclusion of international cooperation needs to be an explicit provision worded in a broad sense as suggested by members of the Working Group (i.e. annex 2 paragraph 4). A broad understanding of international cooperation is an essential requirement for successful implementation. Possible elements include the harmonisation and development of standards and incorporating the principle of non-discrimination to the provision of aid and services. The UN and its agencies should have a central role in promoting cooperation. The objectives of the Convention could be pursued through member States agreeing to ensure priority in trade liberalisation agendas for measures to improve access to facilities and services for people with disabilities. The promotion of stronger regional and international relationships and cooperation between national human rights institutions and with other relevant agencies should also be explored as a means to developing capacity and facilitating implementation.

What’s Missing

26. The final section of this paper discusses some topics identified as “missing” from the WG draft prepared at its January 2004 meeting in New York. It also includes topics identified by national human rights institutions in various regional and national consultations. Issues addressed include (i) particular sub-groups of people with disabilities (ii) immigration (iii) access to the right to health and (iv) formal aspects of the Convention such as reservations, entry into force etc. This section of the paper is intended to provide a basis for further consideration and discussion.

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ASIA PACIFIC FORUM AND DISABILITY}

Asia Pacific Forum

27. The Asia Pacific Forum of National Human Rights Institutions (APF) is a regional organisation comprised of the following independent national human rights institutions:

Afghanistan Independent Human Rights Commission
Australian Human Rights and Equal Opportunity Commission
Fiji Human Rights Commission
National Human Rights Commission of India
Indonesian National Commission on Human Rights
Malaysian Human Rights Commission
Mongolia National Human Rights Commission
National Human Rights Commission of Nepal
New Zealand Human Rights Commission
Palestinian Independent Commission for Citizens Rights
Philippines Commission on Human Rights
National Human Rights Commission of the Republic of Korea
Human Rights Commission of Sri Lanka, and
The National Human Rights Commission of Thailand.

See www.asiapacificforum.net for further details on the APF and each of the above institutions, including their powers, functions and composition. The above institutions have a direct responsibility for the protection and promotion of the human rights of people with disabilities.

7^th APF Annual Meeting

28. In response to the decision of the Ad Hoc Committee on a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities (the Ad Hoc Committee) to invite the participation of national human rights institutions in its work, the APF placed this issue on the agenda its 7^th Annual Meeting.[1] At that meeting, APF member institutions adopted the following recommendations:

That Forum member institutions consider the recommendations of the Ad Hoc committee that:

Human rights institutions make available suggestions and possible elements to be considered in proposals for a convention;
Organisations’ views be sought on proposals for a convention including
- Questions relating to its nature and structure;
- Elements to be considered including the work done in the field of social development, human rights and non-discrimination;
- Follow-up and monitoring issues;
- The complementarity between a new instrument and existing instruments.
That Forum member institutions consider what role they can play in responding to recommendations of the Ad Hoc committee in relation to the development of a convention (a) at the national level and (b) in the regional forums within the UN system;
That Forum member institutions consider how they can best respond to recommendations that national institutions should consult with NGOs in their respective countries in relation to the development of a convention;
That Forum member institutions adopt reasonable efforts to facilitate the participation of persons with disabilities in the course of NGO consultations;
That the APF take steps to develop a disability rights component within its work programme;
That Forum member institutions request that the Forum secretariat provide support, as requested and to the extent possible, for the activities of its member institutions in responding to the Ad Hoc Committee’s recommendations.
That Forum member institutions request that the Forum secretariat, in cooperation with its member institutions, develop and advocate proposals for a possible new convention for the consideration of the Ad Hoc Committee.[2]

New Delhi Workshop

29. In line with the decision of APF member institutions to respond positively to the invitation of the Ad Hoc Committee to participate in the development of the possible new convention, from 26-29 May 2003, a workshop was organised by the APF, the National Human Rights Commission of India, the British Council and the Office of the United Nations High Commissioner for Human Rights (OHCHR) to discuss the contribution of national human rights institutions to the development of the proposed Convention. Additional financial support for the workshop was provided by the United Kingdom Foreign and Commonwealth Office.

30. Participants at the workshop included national human rights institutions (NHRIs), representatives from the Commonwealth and the Asia Pacific region, NGOs working in the field of disability from India, government officials and the OHCHR. Particular efforts were made to facilitate participation of people with disabilities themselves. 39 participants took part (excluding the delegation from the National Human Rights Commission of India, which was represented by the Chairperson, Commissioners and supported by senior staff members). NHRIs represented at the workshop included those from Afghanistan, Australia, Fiji, Ghana, Iran, Korea, Malawi, Malaysia, Mauritius, Mongolia, Nepal, New Zealand, Nigeria, Northern Ireland, Philippines, South Africa, Sri Lanka, Thailand and Uganda.

31. The workshop held nine working sessions relating to various aspects of the rights of persons with disabilities. It considered, inter alia, country papers on the impact of national legislation and administrative practice; the role of NHRIs in promoting the rights of persons with disabilities; “mainstreaming disability” – experiences of UN Conventions (hard instruments); existing (soft) UN instruments relevant to disability; international monitoring mechanisms and complaints procedures; the nature and key elements of the proposed new Convention on disability – perceptions of NHRIs and NGOs; and partnership strategies for action in the lead up to the new UN Convention. Following discussion, a consensus outcome was achieved and the ‘Conclusions and Recommendations’ of the workshop were finalised and adopted.[3]

32. At the second session of the Ad Hoc Committee, held from 16 to 27 June 2003, Commissioner Dayal of the National Human Rights Commission of India represented the APF and presented the Conclusions and Recommendations adopted at the New Delhi workshop to the members of the Ad Hoc Committee.

8^th APF Annual Meeting

33. In addition to the above, APF member institutions have participated in both regional and national meetings to assist in the development of the Convention.[4] As a result of these activities, at the Eighth Annual Meeting of the APF, held in Kathmandu, Nepal from 16 to 18 February 2004, APF member institutions “welcomed progress to develop a new international convention on the rights of people with disabilities, as advocated by national institutions at the workshop held in New Delhi, India in 2003. Forum institutions agreed to establish a working group to assist in the development of the proposed convention.”[5]

APF Working Group on Disability

34. The APF working group on disability was comprised of the national human rights institutions from Australia, India and New Zealand. The APF working group developed this paper for the consideration of the broader APF membership and for submission to the Ad Hoc Committee.

35. The purpose of this paper is therefore to assist in the development of the Convention. It specifically focuses on the following six areas that are the subject of ongoing discussions in the United Nations Working Group (WG) and Ad Hoc Committee process – (i) Definitions; (ii) Monitoring; (iii) Existing Normative Principles; (iv) State Obligations; (v) International Cooperation and (vi) ‘What’s missing from the Convention’.

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DEFINITIONS}

Background

36. This section of the paper discusses the definitions provided in the WG draft and Chair’s draft. There are of course many other draft texts also available from States and other organisations, and more will emerge as the process continues. In the time available it is not possible to provide comments on each draft text currently available. It is hoped however that these comments will assist in providing a framework for the assessment of such proposals.

General Principles

37. This section begins by discussing the General Principles contained in the WG draft. These Principles, although not part of the definitions section of the draft Convention, are discussed here since they similarly have or could have significance flowing across a number of other provisions of the Convention.

38. The WG text includes draft Article 2 which states:

The fundamental principles of this Convention shall be:

dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
non-discrimination;
full inclusion of persons with disabilities as equal citizens and participants in all aspects of life;
respect for difference and acceptance of disability as part of human diversity and humanity;
equality of opportunity.

39. This section recommends the draft Principles as appropriate to support for inclusion in a Convention, while also recommending that in the drafting process from this point on attention be given to ensuring that the Principles are reflected more directly in operative provisions.

40. The principles may perform an important role in ensuring that some specific concepts from the disability context are included in and applied within this Convention. The identification of specific principles to aid in the interpretation and implementation of a treaty and establish its overall aims is a well-recognised practice.

41. Principles are more commonly contained in the Preamble to an instrument rather than in an article within the body of a Convention. The inclusion of the General Principles as an article is a welcome innovation noting that in practice preambular material may often be overlooked, or regarded as formulaic recitals having little connection with the substantive text, indicating what negotiating parties wish to be seen as having done rather than reflecting what the agreement between them has actually done, or at best regarded as purely aspirational.

42. In particular, one of the major benefits of an international Convention in many countries may be to serve as a template for national legislation and policy. Principles placed as they are in the working group draft may be more likely to be picked up in this manner than if left within the more normal preamble structure.

43. There could, however, be clearer linkages provided between the rest of the body of the draft Convention and the Principles, to make it clearer which of the principles is to be applied within the context of a specific article and to provide clear guidelines in the application and implementation of rights and obligations specified. Optimally, operative articles would be drafted throughout to articulate the principles as they apply to a particular right – with text stating a right based on the principles of equality, non-discrimination and dignity and then applying that concept to the right concerned within a disability context.

44. A short discussion of each of the draft principles is provided below for reference, drawing on the Discussion Paper on Founding Principles of Convention on Rights of Persons with Disabilities submitted to the 2nd Meeting of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities New York, 16-27 June 2003 by the Danish Institute for Human Rights.

Dignity, individual autonomy and independence

45. Human dignity is a crucial concept with regard to human rights in general and in the context of people with disability specifically. The human rights model focuses on the inherent value of human beings and subsequently, only if necessary, on the person’s medical characteristics. The limitation or disablement is not to be found within the person with a disability, but in the response of society to impairment or disability.

46. The principle of autonomy has clear relevance to the situation of people with disabilities. People with disabilities continue to have less than equal opportunities in seeking self-realisation and inclusion in community and political life. Issues of privacy are important in the context of disability as dependence on technical and personal aids may lead to situations of vulnerability. The rights to integrity and liberty are also highly relevant with regard to people with disabilities, for example in the context of treatment or incarceration. The principle of autonomy bridges both civil/political rights and socio-economic rights. Civil and political rights derived from the principle of autonomy are e.g. the right to privacy and freedom of thought. Socio-economic rights derived from the same principle are e.g. the right to accessibility and support services enabling an independent life.

47. The right to independence or an independent life embodies one (very important) aspect of the principle of autonomy. It underlines the right to live a life outside of institutions, where barriers for full social inclusion are removed and the necessary technical aids and personal assistance are provided.

Non-discrimination

48. Where equality is the positively formulated principle and ideal, non-discrimination is the corresponding legal standard as it has been commonly formulated in national legislation.

49. Non-discrimination and equality before the law is sometimes taken to imply that the role of the state should be reduced to prohibiting less favourable treatment of individuals who are similarly situated and to bestowing individuals with identical rights.

50. Even within the context of national discrimination laws however, this formal understanding of non-discrimination fails to reflect the widespread recognition of the concept of indirect discrimination which recognises that uniform treatment, rules, practices or features of physical or other environments can be (and in the context of disability often are) discriminatory in effect, and should be modified so far as this can reasonably be done. While anti-discrimination legal measures are clearly not the only measures necessary for achieving or promoting equal enjoyment of human rights (in particular for people with a disability) neither should they be approached as necessarily confined to addressing issues of purely formal equality.

51. An important clarification, or translation for the disability context, of non-discrimination models in this respect is the concept of Reasonable Accommodation. A duty to provide reasonable accommodation is imposed within a range of national laws on social institutions with regard to physical and social environments, which unchanged would constitute a discriminatory barrier preventing persons with disability from full participation. As discussed below in relation to definitions of discrimination it is appropriate for the Convention to reflect this principle. Whether this is done within the definition of discrimination or as a distinct provision appears to be of secondary importance.

Full inclusion of persons with disabilities as equal citizens and participants in all aspects of life

52. The notion of human rights elaborated in international and regional instruments is one of inclusion. Inclusion describes the ideal situation in which equality and respect for the inherent dignity of all human beings has been realised. This incorporates the concept of participation that is directed both towards the majority who should allow for participation and the minority wanting to participate actively. Full inclusion is not just based on passive acceptance by the majority but requires social structures that ensure active participation of people with disabilities. An ideal of equal partners living side by side in an integrated, inclusive society where all are equally entitled and enabled to the exercise of rights and obligations.

Respect for difference and acceptance of disability as part of human diversity and humanity

53. This principle is based on, and states quite effectively, the concept that disability is a universal feature of the human condition and that legislation, social policies and environments should accordingly reflect the full range of diversity of abilities that exist in society.

Equality of Opportunity

54. This concept gives appropriate acknowledgement to the importance of ‘difference’ and takes account of both personal and environmental barriers, which may restrict participation. According to this understanding of equality, ignoring differences may result in invalid differentiation. Thus positive actions may be required to accommodate differences. Implicitly, the end goal is understood to be a society that is genuinely inclusive, a society that values difference and respects the equality of all human beings regardless of difference.

55. Unlike other common grounds of discrimination such as race or gender, equality of opportunity for people with disabilities may necessarily only be achieved through continuous accommodation, technical and personal assistance services. Disability does not become irrelevant once past discrimination has been remedied. Even after a person has, for example, been employed, he or she may continue to require technical and personal assistance. This point is discussed further below in relation to special measures but is also relevant more broadly to concepts of equality for the purposes of this Convention.

Disability

56. The WG did not agree on a definition of disability. Its Report contains the following footnote:

12: Many members of the Working Group emphasised that a convention should protect the rights of all persons with disabilities (i.e. all different types of disabilities) and suggested that the term "disability" should be defined broadly. Some members were of the view that no definition of 'disability' should be included in the convention, given the complexity of disability and the risk of limiting the ambit of the convention. Other delegations pointed to existing definitions used in the international context including the World Health Organisation's International Classification of Functioning, Disability and Health (ICF). There was general agreement that if a definition was included, it should be one that reflects the social model of disability, rather than the medical model.

57. NHRIs have to date supported the Convention containing a definition of disability (including in the context of the Bangkok workshop for the Asia Pacific and the New Delhi workshop for the Commonwealth and the Asia Pacific) and that definition being a broad one, reflecting a social model of disability.

58. The WG Chair’s draft is consistent with views put forward by NHRIs on these issues. This draft is as follows:

"Disability" is the loss or limitation of opportunities to take part in the life of the community on an equal level with others due to physical, social, attitudinal and cultural barriers encountered by persons having physical, sensory, psychological, developmental, learning, neurological or other impairments (including the presence in the body of an organism or agent causing malfunction or disease), which may be permanent, temporary, episodic or transitory in nature

59. Important features of this definition are that:

it recognises that disability may be episodic or transitory rather than needing to be permanent;
it does not include a “substantially limited in major life activity” component of the kind that has caused significant problems in applying disability discrimination laws in the United Kingdom and United States (such as denial of protection against discrimination to cancer survivors because they were not impaired enough);
it adopts a social model in referring to barriers to opportunity and participation while also making clear that this concept of disability retains an objective connection with a person having an impairment.

60. The Bangkok meeting also provided several alternative draft definitions having similar features to commend them.

61. This paper recommends that NHRIs maintain support both for including a definition of disability, and for that definition being broad and inclusive, along the lines of the Chair’s Draft, and also suggests some means by which concerns of participants opposing a definition might be met.

62. Without a definition or some other form of clear statement on what is meant by disability for the purposes of a Convention, it is likely that:

Some States would refuse to ratify the Convention on the grounds that its meaning and the obligations it generates are too uncertain
The Convention would fail to fulfil its potential in providing a template for development of national law and policy and for guiding awareness of disability in society
States which lack legal protection or policy for some types of disability (whether through lack of awareness or more active forms of disapproval or prejudice) will not receive any stimulus from a Convention towards more inclusive approaches.

Arguments against defining disability

63. The principal opposition to the Convention defining disability has been expressed by the European Union. Most other States and other participants have supported a definition, albeit in various terms.

64. Arguments against defining disability have focused on dangers of limiting the concept of disability by defining it. This argument of course can also be, and has been, used to oppose codification of substantive rights in national laws and constitutions (including in debates over the United States Bill of Rights). The same arguments apply to substantive rights as to definitions affecting their application. A decision to proceed with a Convention on human rights and disability seems necessarily to involve rejection of the argument that to define rights and their application is to inappropriately limit them. Arguments raised against a definition therefore seem more appropriate to consider as arguments affecting the kind of definition that should be used.

65. One set of arguments concerns the danger of inappropriately fixing the development of the concept of disability in time. Approaches to disability in international standards and in national law and policy and discussion have obviously undergone considerable development in recent decades. It is entirely possible that this process of development is not yet complete and so, it is argued, a Convention should not freeze the concept of disability in its current state.

66. A related point is that it may be difficult to secure agreement to a single definition of disability, as illustrated by the range of proposed definitions which have been put forward. (A converse view of course would be that the range of definitions put forward both for disability and for other important terms and concepts represents a wealth of experience which should be used appropriately rather than discarded by abandoning the task of definition altogether.)

67. In particular, some states may be reluctant to support a Convention if it includes disabilities which are seen as closely associated (either as cause or consequence) with behaviour which is disapproved of officially and /or socially – such as addictive disorders and psychiatric disabilities or other disabilities which may result in inappropriate behaviour.

68. A number of contributions to date (including the contribution from the Government of Japan and the report of the African Regional Workshop) have supported the Convention providing a definition of disability but also emphasised the need to provide for flexibility of application over time and between different national circumstances.

69. Clearly, a complete lack of definition provides maximum flexibility in both respects, but at the expense of providing ascertainable obligations or guidance to development of law and policy. Such an approach, while it may be appealing as a matter of academic or theoretical discourse or in national or regional circles where a broad approach to disability is already well understood and accepted, does not appear appropriate in an instrument intended to have worldwide application. More bluntly, European participants in particular may need to be reminded that their perspectives are not universally appropriate or applicable. NHRIs in view of their independence may have a particularly important role in such a discussion. A number of other mechanisms for flexibility over time and to ensure appropriate application in different circumstances can however be suggested.

No definition but refer to ICD or other international standard

70. If a definition within the Convention itself cannot be agreed, an obligation within the Convention at least to have regard to some international standard – such as the International Classification of Disorders – in applying the Convention and in developing national law and policy would mean that the Convention did not completely fail to give guidance.

71. The ICD has several advantages for this purpose, being an existing international standard, which is subject to ongoing updating, and which is broad and inclusive and despite its medical context does incorporate important elements of a social model of disability. Its main disadvantage as a model for implementation in national law and policy is that it is not concise.

72. This approach is presented as a fallback position (as one step better than no definition at all) rather than a preferred model. If this approach were adopted there could still be questions in this case for some States regarding whether the obligations created by the Convention were sufficiently definite in law to permit ratification. A Convention which does not itself contain a definition also seems likely to be less effective as a template for national law, policy and awareness raising than a Convention which states what it means by disability within the text.

Capacity for national and regional mechanisms to expand on provisions of Convention

73. Although the WG text does not provide as clear a statement on this point as may be desirable (the Bangkok draft providing a better model in this respect), in any event the position would be that nothing in the Convention would prevent national or regional provision applying more favourable standards or applying the Convention to a more broadly defined group of people with disabilities. So, for example, if European Union member States considered now or in future that a broader concept of disability were appropriate to apply than that specified in the Convention they would remain free to act accordingly. A more formal procedure for applying a developing understanding of disability to the Convention itself may also be possible as discussed below.

Possible capacity to expand Convention meaning of disability over time

74. If in future, or for some States, the meaning of disability adopted for the purposes of the Convention were found to be unduly restrictive, it would be possible to adopt a broader meaning by subsequent negotiation of an optional protocol.

75. A less cumbersome model however is also available, and one which allows the Convention itself to provide for its own expansion, rather than relying on an entirely separate and subsequent process. This model would follow the provision of the International Labor Organisation’s Discrimination (Employment and Occupation) Convention 1958 (ILO Convention 111) for parties to expand the application of that Convention to them by declaring additional grounds of discrimination to be covered (after consultation with national representative bodies of employers and employees).

76. A similar provision might usefully be included in a Convention on human rights and disability, providing a means by which development of concepts and policy on disability over time could flow into the operation of the Convention. In association with this, the Committee or other monitoring mechanism established by the Convention could be given a function of making recommendations on concepts of disability to be adopted by States in their national laws and policies and for the purposes of the Convention.

77. This is not, however, an argument for NHRIs to accept a definition of disability in the Convention which leaves protection of particular groups of people with disabilities who can be identified now as particularly needing protection, such as people with psychiatric disabilities, entirely to the discretion of States. The African Workshop recommendation for States to be able to build on a foundation provided by the Convention also very clearly supports an inclusive approach to definition of disability rather than a flexible drafting approach being used to cover an effective abandonment of protection of people with “less favoured” disabilities.

78. NHRIs should take the same principled approach, continuing to support the core definition of disability being as inclusive as possible, while pursuing other means for addressing concerns of States which could otherwise lead to adoption of a definition which excludes groups whose inclusion could be seen as presenting difficulties. Some approaches in this respect are discussed below.

Addressing concerns regarding behaviour and public/personal risk

79. Most difficulties in gaining support for a broad definition of disability are likely to arise in relation to disabilities which affect a person’s behaviour and capacity to make decisions, or which are associated with behaviour which is subject to social and/or official disapproval.

80. These same factors however may mean that people with these types of disabilities – including intellectual disabilities, mental illnesses or psychiatric disabilities and infectious diseases such as HIV/AIDS or leprosy, are in particular need of human rights protection.

81. This paper recommends that these issues be addressed by appropriate limitations on the concept of discrimination rather than by exclusion of classes of disability from protection.

82. States will clearly not support, ratify or implement a Convention which they consider prevents them responding appropriately where a person’s behaviour (which occurs because of disability) impinges on the rights of other people or endangers that person. For example, people with addictive disorders would clearly be within a definition of disability based on the International Classification of Disorders and are also clearly subject to stigma and social exclusion in many countries.

83. However, when in Australia a court decision confirmed that people addicted to prohibited substances were covered by the Disability Discrimination Act in that country, the response of government has been to prepare amendments to the legislation to exclude addicts from coverage – because of concerns that employers and others would otherwise have to tolerate illegal and unacceptable behaviour such as drug use and intoxication at work. Australia’s NHRI does not consider that this is in fact the effect of the legislation, but the debate highlights the need, if these issues are not to be dealt with by exclusions from the concept of disability, for clear provisions preserving the capacity of States to make legitimate responses where a person’s disability affects their behaviour or otherwise affects the rights of other people.

84. This will need to include an approach to issues of impaired capacity which is more consistent with State practice (and relevant human rights “soft law”) in the areas of mental health and guardianship law in particular than the current draft on those issues. For example, the current draft – providing in absolute terms that there shall be no detention on grounds of disability – simply does not appear sustainable if the Convention is to cover psychiatric disabilities, or infectious diseases (noting that in some although by no means all such cases quarantine or other detention measures may be justified on public health grounds and thus be within the “ordre public” exception within the existing Covenants).

85. In the area of discrimination, WG draft article 7 does include the following:

3. Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and the means of achieving that aim are reasonable and necessary.

86. This provision is very sweeping and in legal terms should provide more than sufficient assurance to States in relation to discrimination – although the words “by the State Party” may cast some doubt on whether this provision also applies to legitimate limitations applied by other actors in society.

87. The Chair’s Draft provides alternative text in this respect and as discussed below in relation to the definition of discrimination appears superior in this and other respects to the WG draft.

Accessibility

88. The Bangkok meeting supported a definition of accessibility being included in the Convention.

89. As noted in the WG report, the approach to be taken to defining accessibility will depend on the outcome of discussions on substantive articles in this respect. In principle, if a definition only relates to one article then it should for ease of reference be contained within that article.

90. The Chair’s Draft provides the following:

"Accessibility" means the measure or condition of things and services that can readily be reached or used by people including those with disabilities, which could be achieved, through inclusive and universal design or adaptation and by legal and programmatic means, in order to promote their access to the physical environment, public transportation and information and communication, including information, communication and assistive technologies, and to societal structures and decision- and policy-making processes.

91. This definition represents an important attempt to state a number of significant concepts concisely. The drafting, however, may not be instantly understood by people not already familiar with the concepts. This could be helped by use of the technique (increasingly popular in seeking to make legislative drafting more readily understood) of providing examples. This would also assist in ensuring that understanding of accessibility issues is not confined to physical access and that information and communication issues are not restricted to technology related issues.

92. The instances provided of areas where accessibility is required appear designed to be comprehensive but while important are not the only areas relevant in this respect – a list of areas where accessibility is required would also need to include areas such as employment, education, goods and services, housing and accommodation, and social and cultural life.

Communication

93. The WG report provides the following definition:

"Communication" includes oral-aural communication, communication using sign language, tactile communication, Braille, large print, audio, accessible multimedia, human reader and other augmentative or alternative modes of communication, including accessible information and communication technology

94. It notes, however, that the Ad Hoc Committee may wish to consider whether there is a need for a definition of communication separate from draft substantive article 19.

95. One respect in which there may be merit in retaining a separate definition of communication is that this may feed into the meaning of accessibility, since this uses but does not define the term communication.

Discrimination on the ground of disability

96. The recommendation of this paper on this issue is that the Chair’s Draft provides a superior formulation compared to that provided in the Working Group draft. Other available proposals provide further material on some issues but as noted earlier detailed comments on these proposals are not included here.

97. The WG notes that this issue is addressed in draft Article 7 and invites consideration of the best placement of this definition. As already noted, use of the Convention is likely to be easier if a definitions section at the front only contains definitions which apply to several articles, with definitions only applying to one substantive article being contained within that article in each case.

98. Both the Chair’s Draft and the WG draft address discrimination in several articles (including general obligations as well as obligations specifically regarding equality and non-discrimination, indicating a need for a separate definition.

99. Working Group draft article 7 reads as follows:

Draft Article 7

EQUALITY AND NON-DISCRIMINATION

1. States Parties recognise that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. States Parties shall prohibit any discrimination on the basis of disability, and guarantee to all persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to all persons with disabilities equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, source or type of disability, age, or any other status.

a. Discrimination shall mean any distinction, exclusion or restriction which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by persons with disabilities, on an equal footing, of all human rights and fundamental freedoms.

b. Discrimination shall include all forms of discrimination, including direct, indirect and systemic, and shall also include discrimination based on an actual or perceived disability.

4. In order to secure the right to equality for persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to provide reasonable accommodation, defined as necessary and appropriate modification and adjustments to guarantee to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.

5. Special measures aimed at accelerating de facto equality of persons with disabilities 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; those measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

100. The Chair’s Draft provides an alternative formulation of a definition of disability as follows:

1. "Discrimination on the ground of disability" includes:

(1) any distinction, exclusion, restriction on the ground of disability which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field;

(2) any act, criterion, provision, practice, policy, rule or arrangement which, although not explicitly based on disability-

(a) has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of their human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field; and

(b) cannot be objectively justified as a reasonable and proportionate means of achieving a legitimate aim;

(3) a failure to make reasonable accommodation,

(4) less favourable treatment of an associate of a person with a disability because of that other person's disability or because of the association, and a reference to disability includes a suspected, imputed, assumed or possible future disability, perceived disability, a past disability or the effects of a past disability, or the characteristics of a disability.

The WG draft will be taken as the starting point for discussion here.

101. The first paragraph of this draft is operative rather than definitional and is not commented on here.

102. Part (a) of paragraph 2 is based on the well established definition of discrimination in the Convention on the Elimination of All Forms of Racial Discrimination. The only comments here are that it would be better to refer to impairment of “any” rather than “all” human rights; and that the formulation of this paragraph in the Chair’s Draft is slightly clearer.

103. Part (b) refers to direct, indirect and systemic discrimination. The concepts of direct and indirect discrimination have established meanings in a number of legal systems which have adopted these concepts from United States jurisprudence. However, it may be questioned whether these terms are of sufficiently universal applicability to be suitable for use in an international instrument. As discussed below, the Chair’s Draft appears to provide a more appropriate model in this respect by stating the applicable concept of discrimination more fully.

104. Systemic discrimination, although a term frequently used in academic writings does not have a clearly established legal meaning. Proponents of this term could usefully be asked to provide examples for use here of what States would be undertaking to prohibit by prohibiting systemic discrimination. Again, the Chair’s Draft definition of discrimination seems less dependent on a specific legal or theoretical context and thus more suitable for use in an international instrument.

105. Paragraph 3 of the WG draft as already noted provides an exception for measures which are justifiable, reasonable and necessary but appears to restrict the benefit of this exception to measures by States, and thus may not be adequate as a template for national discrimination laws. The Chair’s Draft provides a broader formulation in this respect.

106. Paragraph 4 provides a positive obligation on States to undertake measures of reasonable accommodation, defined as “necessary and appropriate modification and adjustments to guarantee to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.” This definition appears adequate but NHRIs may wish to consider the additional material in this respect provided in a number of contributions including from India and from the seminar of Quito, to include “failure to eliminate environmental or attitudinal barriers or the creation of new barriers that impede access to services and to full participation in the activities of civil, cultural, economic, political and social life”.

107. Instead of creating a separate obligation to make reasonable accommodation, the Chair’s Draft takes the approach of defining failure to make reasonable accommodation as part of the concept of discrimination.

108. The difference between the two drafts may be more a matter of theoretical interest than practical significance. The WG draft perhaps makes slightly clearer that States will need to consider a wider range of approaches than simply passing legislation, while the Chair’s draft perhaps makes clearer that disability discrimination law needs to address the issue of reasonable accommodation.

109. Any limitations of the Chair’s Draft definition in emphasising positive obligations may be unimportant if other articles on general obligations are accepted as providing sufficiently clearly for States to take all appropriate measures to remove discrimination.

110. Alternatively, limitations of the WG Draft in this area might be addressed by modifying this draft to require States to take measures to “ensure” as well as provide, so as to make clear that taking appropriate measures will include legislative and other measures to ensure that non-State actors provide reasonable accommodation.

Special measures

111. The WG draft uses the same concepts in relation to special measures as are used in the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women, in that:

special measures are seen as measures “aimed at accelerating de facto equality”;
maintenance of unequal or separate standards is prohibited; and
special measures are to be discontinued when objectives of equality of opportunity and treatment have been achieved.

112. The special measures provisions in CERD and CEDAW are intended to address the possibility of claims, or the actuality, of reverse discrimination: that is, to protect beneficial measures for disadvantaged groups from being struck down through complaints by people outside those groups, while preventing those measures from become a source of injustice or denial of human rights if broader than or maintained longer than needed to offset the effects of past discrimination. The effect of race-based quotas in particular, in areas such as employment and education, has been controversial in a number of countries. Neither of these issues is relevant in the disability context.

113. A discrimination law would have to be very badly drafted to allow people without a disability to complain about beneficial measures for people with that disability, and the prospect of privileged status for people with versus without disabilities does not seem a real world proposition.

114. Racial discrimination and sex discrimination laws in principle protect a person of any race or either gender against discrimination. Disability discrimination in all national laws and in all drafts of the proposed convention is not status neutral in this way. There is simply no suggestion that the Convention will or should protect people against discrimination because they do not have a disability. People who do not have a disability are addressed only insofar as they may acquire a disability in future, or may have a disability imputed to them, or may be family members or other associates of people who do have a disability. There is no need accordingly for a special measures provision to defend beneficial measures for people with disabilities against claims that these measures are discriminatory against people who lack the “privileged” status of having a disability.

115. As a practical matter, while instances of “reverse discrimination” on grounds of race or sex may be accepted as real although rare, it defies credibility to suggest that (notwithstanding a few reserved parking spaces and priority seats on buses or trains) there is any significant issue anywhere in the world of disability being a privileged status, and lack of disability being a source of disadvantage, such as to require limitation on scope and duration of positive measures for the benefit of people with disabilities.

116. It may indeed be hoped that as accessibility and universal design are increasingly built into social systems, facilities and technologies, and as attitudes and awareness regarding disability progress, the need for specific positive measures to redress disadvantage and accommodate disability issues may diminish, but this is not the same thing as a Convention in effect requiring that positive measures be time limited from the outset.

117. Not all needs for positive measures in the disability area are concerned with redressing disadvantages resulting from past or current discrimination. Many important needs relate to the realities of impairments which are more disabling if appropriate social responses are not made.

118. For the foreseeable future, many people with disabilities affecting communication, mobility, or decision making will require various forms of human assistance to participate in society and exercise their civil, political, economic, social and cultural rights on a basis of equality or at all. Provision of such assistance where and if it is provided offends no-one else’s rights to non-discrimination and there is no coherent basis, in particular in human rights law, for requiring such measures to be time limited.

119. There are, however, a number of issues which the concept of special measures might appropriately address in a Convention but which this draft does not address:

Some measures to ensure access for people with disabilities involve balancing competing needs of people with different disabilities. For example, tactile ground surface indicators which assist blind and vision impaired people in finding direction and avoiding hazards (such as knowing when a footpath reaches a road crossing) present a barrier to smooth passage for people using wheelchairs and some other people with mobility disabilities; but a lack of such indicators may (in the absence of other appropriate cues) present a barrier to blind and vision impaired people being able to use the area safely. In such a situation, authorities require some degree of protection rather than being damned whatever they do or do not do. A special measures provision should provide that protection so long as decisions are reasonably intended as beneficial.
It may be necessary to make clear that in addressing disability related needs States and other responsible authorities are permitted to adopt reasonable priorities rather than being required to address all needs at once or face claims of discrimination as between different levels or types of disability.
Most importantly, in the context of disability a special measures provision needs to address issues of segregation of services for people with disabilities and access to the facilities and services available to the general community, and ensure that services intended benefit people with disabilities are not regarded as immune from all scrutiny on human rights grounds.

120. This issue is addressed among the draft guiding principles for the Convention, but text on this issue also needs to appear in any provision on special measures, to ensure that such a provision is not interpreted as a blank cheque for segregation or other limitations on rights.

121. For example, the most unsatisfactory institutional accommodation with a lack of any recourse against abuse or neglect could still be said to be a measure taken to ensure equal opportunity to enjoy the right to housing. Some reference to concepts of “most integrated setting possible” and/or “least restrictive alternative” seems necessary – noting that these concepts are given some recognition in the Declaration on the Rights of Disabled Persons (principle 9) and Declaration on the Rights of Mentally Retarded Persons (principle 4) and still more in more recent documents – as well as requiring more generally that special measures be consistent with the human rights and dignity of people with disabilities.

Discrimination against associates or based on past future or imputed disability

122. The other features of the Chairs Draft definition of discrimination which are more comprehensive than the Working Group draft are the coverage of discrimination against associates and coverage of discrimination based on disability which is not current but may be past, imputed or future. Coverage of discrimination against associates is important both for the persons affected and in recognition that disability discrimination is a social phenomenon rather than being concerned wholly with individual pathology. Coverage of discrimination based on imputed or future disability is likely to increase in social importance with further developments in relation to human genetic information.

Language

123. The Working Group draft includes a definition as follows:

"Language" includes oral-aural language and sign language.

124. The Chair’s Draft and Bangkok drafts are the same on this point. The WG report indicates that:

Some delegations were of the view that the separate draft articles of the Convention specify that language included sign language, and questioned the need for this definition in the present article. Others expressed the view that the definition was needed.

125. This paper does no express any view on whether a separate definition of language has any work to do beyond what is provided in other, substantive articles. Obviously, needless repetition should be avoided.

126. More significant issues to consider may be:

whether it is clear enough that accessibility as it applies to various rights covered by the draft Convention includes issues of communications and language access; and
what obligations ought to be included regarding making information and communication accessible to people with intellectual disabilities including whether and how plain language ought to be defined for the purpose of possible provisions in this respect.

Reasonable accommodation

127. Issues in this respect are discussed above in the context of definition of discrimination.

Universal Design and Inclusive design

128. The WG and Chair’s drafts do not provide separate definitions of these terms. There appears to be a need for consideration of an appropriate definition notwithstanding proposals for a separate substantive article on this issue since, depending on the further course of negotiations, the concept of universal design may feed also (or instead) into the concept of accessibility and/or into State obligations in a range of areas (in particular if it is decided that obligations to implement or promote universal design in specified respects may have more operational effect than a “right to universal design” ).

129. The Chair’s draft article 28 on right to universal design recognises:

“the right of all persons with disability to universally/inclusively designed goods, services, equipment and facilities, which require the minimum possible adaptation and cost to meet the specific needs of an individual with disability.”

130. It is not clear from the face of this text whether the intention here is to define universal or inclusive design as being design which requires minimum possible adaptation and cost; or whether two concepts (universal or inclusive design, and adaptability) are being presented but with the first of these not defined.

131. It appears more helpful and more consistent with established usage including in national law and policy to regard universal design as part of accessibility. This involves goods, services, equipment, facilities, processes and systems being designed to be directly accessible to people with disabilities as far as possible, and for the widest range of people possible, without any adaptations having to be made.

132. The Centre for Universal Design for example (http://www.design.ncsu.edu) provides the following definition:

“The design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.”

133. Adaptability should be considered as a related and important but distinct concept, such that if it is not feasible to make a facility etc directly accessible to a person, it should at least be made adaptable (whether that involves modification to the facility or requires ensuring compatibility with adaptive equipment or other adaptations which the person with a disability brings with them).

134. For example, the Telecommunications Act in the United States requires telecommunications equipment and services to be accessible to and usable by individuals with disabilities so far as this is readily achievable. Where the primary goal of direct accessibility and useability is not readily achievable, there is a requirement that the equipment or service is compatible with adaptive devices or specialised equipment commonly used by people with disabilities to achieve access, if that is readily achievable.

135. Another example is that access requirements for premises open to the public emphasise universal design, while standards for private housing in many cases aim for the less inclusive but still important concept of adaptability. For example universal design for a public building entrance will feature level or ramp access from the outset. Adaptability for a private house by contrast involves design such that access can be achieved reasonably cheaply if a family member or friend acquires a disability or if a person with a disability buys the house.

136. It should also be noted that the concept of universal design is not restricted to technical features of goods, services, equipment and facilities, but may also usefully be applied in considering accessibility of social systems and processes more generally.

^{4.
MONITORING}

137. International monitoring was not considered by the WG and as such the WG draft text does not contain any provisions. Whilst monitoring mechanisms are best dealt with once the nature of State obligations and the format of the instrument is established it is useful to explore the issues in light of focused drafting discussions to come. As this section is not in response to a specific recommendation it provides a more general discussion of international monitoring as it relates to a thematic convention on human rights and disability within in the context of treaty body reform. It raises some issues for consideration and includes a more detailed background paper to assist in the negotiations.

138. This section considers monitoring within the context of treaty body reform and the main areas of focus that have been identified, reporting and engagement of the non-government sector. There are legitimate concerns that the current treaty monitoring system has failed to deliver an effective strategy in achieving compliance. The gap between the articulation of universal rights and compliance by States has become significant and threatens the integrity of the international human rights legal regime. To date there have been two key reports The UN Human Rights Treaty Process: Universality at the Crossroads (Bayefsky) and Enhancing the long-term effectiveness of the United Nations human rights treaty system (Alston).

139. Two key themes have emerged from these reports:

A reduction in the reporting burden and effective engagement of civil society.

To make the reporting obligations on States more efficient and effective in monitoring compliance. More focused reports by member states to reduce the volume of repetitive and duplicate work and allow monitoring bodies to focus on key identified areas of concern.
The role and engagement of the non-government sector has been a central focus. The call is for a more transparent process that develops partnerships rather than an adversarial approach.

140. The development of a thematic convention on human rights and disability has the opportunity to not just replicate existing structures but engage the treaty reform agenda for an effective monitoring system. It needs to be recognised that the strength of thematic conventions is the application of rights within a specific context so as to guide State action in implementing their obligations. This concept is demonstrated through the existing normative non-binding international frameworks – the World Programme of Action and the Standard Rules – of which both focus on planning and implementation. There has been substantial work at the international level on the development of non-binding normative principles. This process has actively engaged the disability community and taken a different approach to implementation than the treaty system.

141. The current treat monitoring emphasis is on reporting against outcomes whereas the WPA and Standard Rules focus on planning. An option is that States could be obliged to develop – in consultation with the disability community – a strategic implementation plan that identifies key areas of performance for submission and review. The States would be required to report against developments in the key performance areas. This would create a proactive response to treaty obligations at a national level and give a clearer focus to the work of treaty monitoring bodies.

142. This focus would create a clearer emphasis on dialogue rather than judgment as a means to encouraging and managing compliance. It would enhance the facilitation of the exchange of information and development of capacity in the area of disability.

143. It recognises the prime importance of implementation planning and accountability at the national level and the importance of the national NGO role.

144. The Convention could establish a new specialist committee to monitor State implementation. A specialist Committee with a clear programme of work and rules of procedure would create a central focus for interpretation and jurisprudence to facilitate implementation and manage compliance. A specialist Committee with the majority of members being people with disabilities who have expertise in human rights and international law would be in recognition of the need for capacity building at the international level.

145. The development of a new thematic convention has the potential to develop and strengthen the relationship to regional mechanisms where they exist. For example the framework of the Inter American Convention, the African Decade Plan and West Asia regional meeting declaration, this would provide an opportunity to encourage regional planning and implementation as well monitoring procedures.

146. The current informal relationship that committees have established with competent bodies could be formalised. This is the first convention negotiated since the adoption of the Paris Principles relating to the status of National Human Rights Institutions (NHRI). NHRIs established in accordance with the Principles provide a treaty body with a reference point for monitoring State action.

Background

147. In December 2001, the United Nations General Assembly (UNGA) voted to establish an ad hoc committee to consider proposals for a comprehensive and integral international convention to protect and promote the rights and dignity of people with disabilities. The move towards a Convention is happening within a context where there are demands for the reform of the UN committee process and where States are claiming that they are reluctant to adopt yet another thematic human rights treaty. The concern is that the level of current human rights treaty obligations has created “treaty fatigue” in member States and that the existing committee process is not working. States claim they are already burdened by, and unable to fulfil, their existing reporting obligations.

148. Operating within this context any proposed instrument will need to respond to the reform agenda. This paper considers the nature of a thematic convention on human rights and disability what it implies for monitoring and compliance in the context of treaty reform. In recognition of the nature of disability and the need for reform, the paper advocates for a convention which establishes a collaborative planning framework for States upon which to base their domestic policy responses. This would create a framework based on a coherent plan that establishes a set of key performance areas for policy implementation. The central element is the collaborative nature in developing a transparent process that builds capacity and understanding.

Compliance

149. The strength in having a convention is the binding nature of the obligations on States and the legal rights it accords people with disabilities. It is this relationship between States and their citizens that means that compliance through domestic implementation is an essential feature of an effective convention. The various developments in soft law at the international level have provided a significant framework of principles that have not necessarily delivered reform and social change. The normative nature of a convention means compliance is fundamental and that domestic application and implementation are essential goals. The binding nature gives credibility to the intentions of States and clearly establishes a role for international governance.

150. If treaties are at the centre of the cooperative regimes by which states and their citizens seek to regulate areas of concern then, there must be some means of assuring that the parties perform their obligations at an acceptable level. To provide this assurance what tends to be sought are treaties with ‘teeth’, that is, they have some enforcement measures. In part this reflects an easy but incorrect analogy to domestic legal systems, where the application of the coercive power of the state is thought to play an essential role in enforcing legal rules[6]. Chayes and Chayes have suggested that it is not about the enforcement of obligations but the management of compliance[7].

151. The principal source of noncompliance is not willful disobedience but the lack of capacity, clarity or priority hence the idea of enforcement is misguided as a means for compliance[8]. A more sophisticated strategy that directly addresses these deficiencies is needed to deal with compliance problems. Strategies that include elements such as transparency and capacity building are more effective in generating compliance. Transparency – the generation and dissemination of information about the requirements of the regime and the parties' performance under it – is an almost universal element of management strategy. Transparency influences strategic interaction among parties to the treaty in the direction of compliance. Capacity building – or international co-operation, addresses deficits of technical and bureaucratic capability and limited financial resources[9].

The Treaty System

152. Each Convention has its own treaty monitoring system. The implementation of the core human rights conventions is monitored by committees, or "treaty monitoring bodies". The legal basis for the establishment of most treaty bodies can be found in the treaties themselves; in the case of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the monitoring body, the Committee on Economic, Social and Cultural Rights, was established by a subsequent resolution of the Economic and Social Council. Treaty bodies are composed of independent experts of recognised competence in the field of human rights who are elected by States parties.

153. In addition to the Committee on Economic, Social and Cultural Rights, there are currently five other treaty bodies functioning today: the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR); the Committee against Torture; the Committee on the Elimination of All Forms of Racial Discrimination; the Committee on the Rights of the Child; and the Committee on the Elimination of Discrimination against Women. All treaty bodies are serviced by the Office of the High Commissioner for Human Rights in Geneva, with the exception of the Committee on the Elimination of Discrimination against Women, which is serviced by the Division for the Advancement of Women in New York. Treaty bodies meet periodically throughout the year in either Geneva or New York. The treaty bodies fulfill their monitoring function through one or more of three different methods.

154. All states parties are required by the treaties to produce state reportson the compliance of domestic standards and practices with treaty rights. These reports are reviewed at various intervals by the treaty bodies [10], normally in the presence of state representatives. Concluding observations, commenting on the adequacy of state compliance with treaty obligations, are issued by the treaty bodies following the review.

155. Individual complaintsof violations of rights are accepted under four treaties (ICCPR, CERD, the CAT, and CEDAW). These complaints are considered by the treaty body which expresses a view as to the presence or absence of a violation. The individual complaint systems allows for individual cases to be heard by the Committee provided all domestic remedies have been exhausted. It is through individual complaints that human rights are given concrete meaning. In the consideration of individual cases, international norms that may otherwise seem general and abstract are put into practical effect. When applied to specific cases, the standards contained in international human rights treaties find their most direct application. The resulting jurisprudence provides States, non-governmental organizations (NGOs) and individuals the contemporary meaning of the texts concerned[11].

156. The Convention Against Torture (CAT) and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), include an inquiry procedurewhich provides for missions to states parties in the context of concerns about systematic or grave violations of treaty rights.

157. In addition, the treaty bodies contribute to the development and understanding of international human rights standards through the process of writing General Comments or Recommendations. These are commentaries on the nature of obligations associated with particular treaty rights and freedoms. The specialist Committees contribute significantly to international jurisprudence. The various working methods – individual complaints, inquiry procedures and general comments – of the Committees create a focal point for ongoing discourse and interpretation of areas of concern.

Monitoring & Reporting

158. The human rights treaties are the core instruments of the international system for the promotion and protection of human rights. There is extensive coverage with every UN member state being a party to one or more of the six major human rights treaties. Eighty per cent (80%) of states have ratified four or more[12]. The Universal Bill of Human Rights and the five thematic conventions is a universal human rights legal system which applies throughout the world. Participation in the treaty system has expanded enormously. The number of ratifications, acceptance of individual communication procedures, the number of reports produced and considered, the individual cases decided, and the meeting time of six different treaty bodies has increased dramatically. This participation and the assumption of legal obligations by states has been voluntary, with treaty rights generating corresponding legal duties upon states, to protect against, prevent, and remedy human rights violations[13]. The treaty system establishes limitations on sovereignty and underlines the validity of international supervision, accountability and governance.

159. Effective information sharing is central to a transparent monitoring process. The quality and validity of information is critical in an effective monitoring system. The current treaty monitoring system of the core human rights treaties is structured around a dialogue between State and the various treaty monitoring bodies[14]. Reporting is central to the compliance systems in international human rights regimes, with its aim to generate information about the policies and programmes of the parties to the treaty in complying with treaty obligations. The transparency of the regime as a whole is crucially dependant on the nature and scope of the reporting requirements and the quality of the response to them[15]. Effective reports are developed in collaboration with the non-government sector in a transparent process.

160. The current treaty monitoring process has failed to be an effective mechanism through which to achieve compliance. The gap between the articulation of universal rights and compliance has become significant and threatens the integrity of the international human rights legal regime. There are overwhelming numbers of overdue reports, untenable backlogs, and widespread refusal of states to provide remedies when violations of individual rights are found[16].

161. For several years one specific reform discussion within the United Nations organisation (UN) has been related to the monitoring mechanisms established under the six major international human rights treaties[17]. How do these mechanisms function and how should they be developed? There have been extensive discussions conducted both within academia and between governments[18]. Among others, the governments of Australia, Canada and New Zealand have been active in looking for reform ideas on the political level[19]. The treaty bodies themselves have contributed to the debate, both in the form of developing their own working methods within the current normative framework and by participating in the discussion on long-term reforms[20].

162. Some of the identified problem areas in the work of the treaty bodies, calling for reform are:

Non-submission of periodic reports by States, or long delays in submission.
Duplication of work due to overlapping provisions in the six treaties: duplication in reporting by States and duplication in the work of the treaty bodies.
Further delays in the consideration of submitted reports, partly due to the editing and translation of the report before it is issued as a UN document, partly due to a backlog in the work of the treaty bodies themselves.
The problem of “a reporting burden” as experienced by many governments: governments of small countries, governments of poor countries and governments of federal States.[21]

The Role of Non-Government Organisations

163. The treaty bodies have become heavily dependent on information from non-government organizations (NGO) in preparing for the dialogue with states parties. State reports can be self-serving documents which rarely knowingly disclose violations of treaty rights[22].

164. NGOs have played a significant role within the international human rights regime and the work of treaty monitoring bodies[23]. NGOs from the national level have unique information on the application of the treaties in the domestic context[24]. The treaty bodies have been heavily dependent on information from NGOs in preparing for the dialogue with states parties. This dependence has led to a close working relationship between NGOs and most of the treaty bodies. It is important to note that working relationships between NGOs and most of the Treaty Monitoring Bodies have evolved on an informal basis. It has also drawn criticism from States. They claim that adequate recognition is not being given to the primary role of democratically elected governments. They contend that the role of NGOs should be subordinate[25], whereas, commentators believe for a successful and transparent reporting process NGOs should be recognized as key partners[26]. NGOs should have a central role in a process of (a) understanding and awareness of the standards (b) review of laws, policies and practices against those standards (c) planning or the creation of action plans to improve the shortfalls revealed; and (d) monitoring the implementation of those plans[27].

165. The discourse around the reform process has been extensive. Broad ranging recommendations have come from the two key reports The UN Human Rights Treaty Process: Universality at the Crossroads and Enhancing the long-term effectiveness of the United Nations human rights treaty system. Two key themes have emerged from these reports: a reduction in the reporting burden and effective engagement of civil society. An over-arching aim of reform is to make the reporting obligations on States more efficient and effective in monitoring compliance. Various reports have called for more focused reports by member states to reduce the volume of repetitive and duplicate work and allow monitoring bodies to focus on key identified areas of concern[28]. Secondly the role and engagement of the non-government sector has been a central focus. The call is for a more transparent process that develops partnerships rather than what is often perceived as an adversarial approach[29].

Disability and the Reform Agenda

166. Disability as an area of human rights concern presents an interesting challenge for compliance and treaty reform. The very nature of disability – and the inherent systemic discrimination and social exclusion that is an element of it – means that many governments have very limited expertise in disability. People with disabilities have been excluded from key social institutions which has isolated them and issues that disability raises from mainstream public policy. This was repeatedly demonstrated through the failure of successive treaties to specifically recognise disability as an area of concern. The dominance of the medical model has meant disability has been a clinical issue within medicine and rehabilitation. Further segregation in education has meant historically low levels of academic achievement which have kept people with disabilities out of key professions and public administration[30]. This has meant people with disabilities have not been represented in the decision-making process. Disability has not been an area for academic concern in the areas of law, policy, public administration, planning and architecture which has led to limited understanding of the issues raised by disability[31]. This has meant that even since disability emerged as a significant human rights issue governments have been slow in implementing remedial programmes[32].

167. In recognition of the call to more tightly focus the reporting by States, combined with the need to develop capacity within policy processes in the area of disability, it is suggested that this Convention consider a more overt planning process. Bayefsky has suggested that the theory behind the existing reporting structure is about planning and dialogue. The production of a report, in theory, is intended to generate a dialogue within civil society about the requirements of the treaty, the application of the standards to local conditions, the shortfalls in compliance, priorities for redress, and the design of a plan of action. A cycle of pre-report consultation followed by post-report planning at the national level is supposed to be created via the periodic drafting of State reports[33]. In practice this has not always happened and the development of a report in itself has become the focus. This singular focus on the reporting element may be seen as a natural consequence as the particular articles within each of the treaties do not mention planning and focus on the production of a report[34].

168. There has been substantial work at the international level on the development of non-binding normative principles. This process has actively engaged the disability community and taken a different approach to implementation than the treaty system. Planning and national implementation mechanisms, are a central focus of the existing normative principles or soft law approaches at the international level. Both the World Programme of Action Concerning Disabled Persons[35] (WPA) and the Standard Rules[36] place significant importance on national planning and impl

Main	Programme	Materials	Online	Bangkok

	UN ESCAP/APDF Workshop on Regional Follow-up to the Third and Fourth Sessions of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities Bangkok, Thailand, 11-12 October 2004