Americas regional seminar/workshop - Norms and Standards by J. Mathiason

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Presentation:

Norms and Standards related to the Rights of Persons with Disabilities

presented by AIMS

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Norms and Standards related to the Rights of Persons with Disabilities

Their relation to the process of negotiating a new convention

John Mathiason, AIMS

My task to present the relationship between the process of negotiating a new convention and the existing norms and standards. To do this, I want to be less theoretical than practical. This seminar is convened according to a resolution of the General Assembly that requests governments to organize seminars to explore a future convention. It is one of four seminars and the first to take place.

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Two objectives

Give a sense of the process of negotiating a human rights instrument
Give a sense of what the Member States of the United Nations have already agreed and what they have not yet agreed.

The context of my presentation is the basic document that was prepared for the seminar. My purpose is to discuss its content to achieve two goals. First, I wish to give you a sense of the negotiating process for a human rights instrument, so that the results of this seminar are realistic and useful for the process in June. Second, I want to give you an idea about what the Member States of the United Nations have already agreed and what they still have to agree.

3 The need for realism in considering a convention

Do not dwell on whether rights have been violated
Do not spend much time trying to define new rights

My first point is that if we want to be able to influence the process, we have to be realistic. Very often non-governmental organizations focus on what I would call the rhetoric of disability. That is, they focus on a sense of rights violated or not obtained, in attacks, carelessness and injustice. There is no doubt that these violations occur, but if we only focus on the violations, we won't get a convention. The fact that the General Assembly has begun the process of negotiating a convention indicates that there is international recognition of the problem.
We should also not spend much time talking about the rights of persons with disabilities in the sense of defining new rights. Persons with disabilities have the same rights accorded in the Universal Declaration as any other human being, no more and no less. These rights have been accepted by all the countries in the world. To spend time thinking about new or different rights, such as when we hear talk of "third generation rights" is to waste time, since there is no international consensus about new or different rights.

It is not a question of whether persons with disabilities have these rights, but rather whether they are able to enjoy those rights.

Realism means that we work within the agreed and accepted framework of human rights, building on the basis of instruments and language on which a consensus already exists or where a new consensus is realistic.

4 What is the process?

An Ad Hoc Committee is charged with negotiating a convention
The Committee began its work last July.
The next meeting of the Committee is in June where they should advance the process of deciding on the type and scope of a convention.

Well, what is this process? An Ad Hoc Committee has been charged with the negotiation of a new convention. The Committee is a direct subsidiary of the General Assembly. It reflects the fact that a convention on disability does not fall easily into the traditional categories. It is not something that is purely concerned with social development, and not purely of human rights. Since it is under the Assembly, the process is open to all of the Member States.

The Committee began its work in July of last year. In its two weeks of meetings it was able to organize itself, had the first exchanges of views and agreed to continue the process. There were no negotiations on text, since there was no consensus on which document would serve as a basis. The Government of Mexico, based in part on the results of an expert group, submitted a document with suggestions about elements for a convention. This is Working Paper 1 that we are using in the basic document for this seminar. The European Union was not willing to begin so quickly. Its position is presented in Working Paper 2, and its central argument is "The European Union would like, at this point, to maintain an open attitude with respect to the form and definitive content of this legal instrument." The Government of China also expressed some points of view, in Working Paper 3, in which it states "The convention should be a programmatic document that provide ample guidance to all countries, promotes the adoption of positive and practical criteria and establishes effective dispositions and means."

The next meeting of the Committee is in June, when it should advance the process of defining the type and scope of the convention. It should reach agreements on the basic structure on which it will work in subsequent sessions.

5 The Role of the regional seminars

To assist in this task, Member States and organizations of the United Nations system have been requested to make comments about the convention that will be included in a report by the Secretary General. Member States have also been urged to organize seminars, whose results also should be available to the Committee.

Our seminar is one of these and if we have positive and constructive results, it can help ease the process of obtaining a consensus in the Committee.

6 First question: Do we need a convention?

There was an effort to create a convention in the 1980's
It did not succeed and the Standard Rules were an intermediate compromise

The idea of a convention is not new. As a result of the International Year of Disabled Persons in 1981, two activists, Maria Rita Saule of Italy and Barbra Carlsson of Sweden, proposed a convention and were supported by their governments. But in the debate, there was no consensus about the idea. There was a series of arguments against it. As an intermediate compromise, it was decided to formulate the Standard Rules to provide guidance to governments about the policies that would be necessary to achieve equalization of opportunities. Although the Standard Rules were adopted by consensus, indicating that the Member States were all in agreement about its provisions, they are not legally binding. That have moral force, but lack legal force.

Given this history, we should begin with an analysis of the arguments made against a convention. If we cannot overcome these, will not have a convention.

7 The arguments against a convention

Existing conventions provide adequate protection
The Standard Rules can perform the function
A new convention would be too difficult to implement

What are the arguments against a convention? There are basically three.

The first is that existing conventions, including the two Covenants of human rights, the Women's Convention and the Convention on the Rights of the Child, are sufficient to protect the rights of persons with disabilities. It is only a matter of ensuring compliance during the monitoring process. There are some who say that the existing conventions could be reinforced through optional protocols, but the central idea is that "mainstreaming" will achieve everything that a convention would wish. To some extent this is the position of some European countries and, if I am not mistaken, of some NGOs.

The second argument is that the Standard Rules are sufficient to protect rights and promote equalization of opportunities, given that they are updated. According to this argument is only necessary to publicize the Rules, train people in them and promote them, since these already contain all of the necessary guidance.

The third argument is that a convention on disability would be too difficult for Member States to implement. They recall that the Migrant Workers Convention is very detailed and imposes too many obligations on States party and, as a result, although it will enter into force this summer, it will not have a single receiving state as a State party. There is a fear that a convention on disabilities would also contain too many obligations and would therefore be somewhat utopian. As it is said in Working Paper 2, "In order to expedite the process, the Ad Hoc Committee should avoid considering utopian proposals, or proposals that in other contexts have been shown to be impossible to realize."

8 The experience of the Women's Convention

Faced the same arguments
But had an organized forum
And could prove that the existing conventions were not sufficient

Of the three arguments, the first is most important. If it is possible, with minor arrangements, use existing instruments, it would not be necessary to create a seventh human rights treaty. Now, as part of the response, it is possible to look at the experience of the human rights convention that has the greatest similarity with a convention on the rights of persons with disabilities. I refer to the Convention on the Elimination of All Forms of Discrimination against women. As noted in the basic document, it is useful to use it as a point of comparison.

The same arguments were thrown at the Women's Convention when it was proposed in 1968. And this was even more reasonable since the two Covenants each contain an article (No. 3) that prohibits discrimination on the basis of sex. It was only necessary, according to the critics, to ensure that the States party to those conventions implement their obligations and that the monitoring mechanisms take this into consideration.

The advantage that the women's convention advocates had that persons with disabilities lack was that an intergovernmental forum existed in which these issues could be debated, the Commission on the Status of Women. Made up of women and designated from the outset as a body concerned with human rights, the Commission could articulate the need for a convention.

The response of the Commission was that the implementation of the other conventions was not sufficient to protect women from discrimination nor ensure their advancement. The other conventions did not indicate in a sufficiently precise way what a State party should do to achieve the elimination of discrimination on the basis of sex. And this could be proven on the basis of analyses considered by the Commission. Moreover, the women's movement succeeded in mobilizing tremendous support for the idea of a convention. It took 10 years to be adopted, in 1979, but the results, with now more than 20 years of experience, prove the wisdom of those who lobbied for the Convention.

9 The responses

Lack of interest on the parts of monitoring bodies
Lack of implementation of the Rules
Link with development

The responses to the arguments against a convention should be reflected in the preamble to the new convention. The process of negotiating this text would serve as the point in which the necessity of a convention can be affirmed. There are responses to each of the arguments.
First, in terms of the existing instruments it is clear that their monitoring committees do not have a significant interest in focusing on the problems of persons with disabilities. In the first place, they would consider that it is a minor matter, since there is a stereotype that implies that disabilities represent a limited proportion of the population. Moreover, it is not clear how the obligations of States party differs for the population of persons with disabilities from that of the population that does not have disabilities. Therefore, it is not possible to request that these monitoring committees insist that States party implement their obligations. To make these issues clear, a specific convention will be necessary.

Second, in terms of the relationship with the Rules, it is possible to conclude, as was concluded by the first Special Rapporteur, that there has been some progress but not enough to improve the situation of the majority of persons with disabilities. The reason is that, absent a legal obligation, it is very easy to postpone the implementation of the policies and programs that are suggested by the Rules.

Third, in terms of the realism of the convention, the evidence suggests that for wealthy countries, there would not be many problems to accept obligations, since most have many of the necessary policies and programs. It could be a problem for developing countries. But in this context, it has to be noted that the relationship between promoting the rights of persons with disabilities and development is positive rather than negative. Persons with disabilities are a resource for development and providing them with opportunities will help to accelerate the development process.

10 Second question: what is the difference between this convention and the others?

Another response to the question, "do we need a convention?" can be found by considering the differences between a convention on the rights of persons with disabilities and the other conventions. The fact that it is necessary to have a clear definition of who is covered, that is what is the meaning of disabilities, suggests a reason why it is difficult to mainstream, since there is no currently existing legal definition of who persons with disabilities are. Another reason is that State obligations in a convention on disability have to be precise, practical and realistic. It would not be sufficient to say, for example, that everyone should be able to obtain health services. Persons with disabilities have very specific needs. Finally, for persons with disabilities, many actions to provide equality of opportunities will require positive actions, or discrimination in favor of persons with disabilities in a permanent way. No current convention has these provisions.

11 The need for a clear definition

What is disability?
Who decides?

There are definitions of disability in various instruments. The Standard Rules contain a somewhat vague definition, and is based on a classification of the WHO that has been revised, in part because of pressure of the community of persons with disabilities. The Inter-American Convention also has a definition, but it also contains ambiguities. The new WHO classification, the CIF, has elements that could assist in making a definition but these would have to be translated into legal language.

Obtaining a consensus about the definition of disability is a necessary step prior to reaching agreement on many of the other elements of a new convention.

In the other conventions, it is obvious who are the beneficiaries. No arbitration is necessary. However, in a convention on the rights of persons with disabilities it is necessary to specify the mechanism that will be used to determine who has a disability within the terms of the convention. It is not possible to have a self-definition by the individual, but authorizing the responsibility to a professional or a committee has its own dangers. One task in this aspect is to find language that will indicate who decides.

12 Obligations of the State

Must or should
Role of the public sector relative to private action

Every conventions specifies the obligations of a State party. However, there are alternatives about the strength of the obligation. An obligation can be definitive or it can be merely indicative. It could be a hope, or it could be an order. In instruments like the Standard Rules, the obligations are indicative, since the Rules do not imply an obligation in international law. As is indicated in the basic document, other conventions specify more mandatory obligations. There is no doubt that it is easier to have consensus for a convention whose obligations are weak than for one with strong obligations.

The decision about the general obligations of the new convention will determine the nature of what can be defined in specific situations.

A key decision is whether the government's obligation is legal or moral. This is reflected in the tests that use words like must or will instead of should and promote. Minor obligations are more difficult to measure and therefore to monitor.

To obtain the elimination of discrimination against persons with disabilities and promote the equalization of opportunities, part of the effort of the State, but part is private action. The convention itself can only refer to the actions to be taken by States and therefore a question is the extent to which the State should provide incentives for actions of civil society. An example is the elimination of stereotypes in the communication media. In many parts of the world, newspapers, radio and television stations are in private hands and there is a resistance to regulation of content by the State. The text of the convention should have language that describes State obligations in this context.

13 The role of positive action

Permanent or temporary?
In what fields?

A major difference between a convention about the rights of persons with disabilities is the role of positive action. As was noted in the basic document for this seminar, in a number of fields, in order to have equality of opportunity, persons with disabilities need positive and compensatory measures. This goes beyond have reserved parking or ramps and includes the possibility of having assistants in the workplace and special machinery. A convention will have to express this concept with clarity and precision as a general principle.

Provisions for positive measure exist in other conventions, such as the Women's Convention, but in these, positive action is seen as a temporary measure. It is probable that in a convention on disability, the positive actions will have to be permanent.

There are certain areas where positive measures are more important. It would be important to outline them in the basic articles of the convention so that in that way the meaning of positive action can be shown with more precision.

14 Third question: What are the subjects that should have a specific treatment?

There is no doubt that the majority of the text of a convention will be found in its specific articles. The policies and obligations related to different subject, like accessibility, education, employment, health and rehabilitation service will determine the success of the convention. A first step in the elaboration of this part of the convention is to determine the subjects that deserve a specific treatment. In the basic document there are various options. Working paper 1 proposes 13. The definition of those subjects will affect the negotiation process

15 The role of this meeting

A contrast with the Women's Convention
The importance of having both progress and consensus

As we have indicated from the outset, this seminar is an important element in the process of advancing a convention. It will achieve its role if we manage to present good ideas in the form of text that governments can consider. You are experts and have the capacity of make suggestions. The report of this meeting should contain elements that clearly show the concerns and priorities of this region.

The process that we are following is distinct from that of the Women's Convention. In that case, there was an intergovernmental body to organize discussions. In the case of disability, there is no intergovernmental body other than the Ad Hoc Committee. These regional meetings, therefore, have to undertake the functions of a technical body.

Decision-making in the United Nations is by consensus. This implies that everyone is convinced that the total package of agreements is sufficiently beneficial that problems with some details are not great enough to impede joining the consensus. We hope that this will be the spirit of this meeting. It is important to have progress and consensus that can be reflected in the results of the seminar.

Main	Programme	Materials	Online	Quito

	Américas regional seminar and workshop on norms and standards related to the rights of persons with disabilities and development Quito, Republic of Ecuador, 9-11 April 2003