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Some thoughts on the elaboration of a disability convention

MAINSTREAMING THE DISABILITY PERSPECTIVE IN DEVELOPMENT COOPERATION

From: David M. Clapp
Date: 6/20/2002
Time: 9:21:31 AM
Remote Name: 67.25.15.199

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United Nations development cooperation is vital in building capacities to further implement international norms and standards, including the current initiative concerning an international convention to protect and promote the rights and dignity of persons with disabilities (per General Assembly resolution 56/168). However, the data available indicate that current United Nations development cooperation procedures are inadequate in their treatment of disability as a mainstream issue; the observed tendency is to address disability as a sectoral issue of concern to health and medical rehabilitation or labour and social welfare. There is no consideration of disability in the context of mainstream development.

Particularly in the context of a detailed convention, as per the Mexican Government draft in the documentation of the Expert Group Meeting, it will be important to include the issue of mainstreaming the disability perspective in development cooperation. The present articles 23 to 25 do not cover this topic sufficiently well. Rather a highly conventional approach to monitoring progress and outcomes is proposed. There is an evident need for fresh thinking and improved approaches, particularly given the well documented capacity issues prevailing among the current set of treaty monitoring bodies.

The existing legislative basis for action to mainstream the disability perspective in development cooperation activities of the United Nations system is contained in General Assembly resolutions 54/121 and 56/115, which request: “the Secretary-General to support initiatives of relevant bodies and organizations of the United Nations system … to integrate persons with disabilities in technical cooperation activities, both as beneficiaries and decision makers.” Rule 21 of the Standard Rules on Equalization of Opportunities for Persons with Disabilities, “Technical and economic cooperation” also, “urges that measures to achieve the equalization of opportunities of persons with disabilities … [should] be integrated into all forms of technical and economic cooperation, bilateral and multilateral, governmental and non-governmental. ” Clearly this language could usefully be strengthened in a convention – for example, the term “urge” in Rule 21 is decidedly weak. Further explanation should also be added concerning the policy and technical implications.

The basic premise should be that disability-sensitive technical cooperation activities best further the goal of a “society for all in the twenty-first century” as a mainstream issue and not as a specific category of development cooperation concern. Only through promotion of full and effective involvement, on the basis of equality, of people with disabilities as agents and beneficiaries of mainstream development cooperation activities can the aims of the proposed convention be achieved.

Pursuant to this agenda, I prepared, in February 2002, a draft technical monograph for the United Nations Development Group (which is concerned with coordinating programme approaches between the diverse agencies and programmes of the United Nations system) entitled: “Issues in Quality Assurance for Technical Cooperation from a Disability Perspective.” This paper reviews development cooperation activities and procedures of the United Nations system, discusses options for integrating the disability dimension in development cooperation activities and presents a “quality assurance” checklist of actions to reinforce the disability dimension in planning and evaluation of mainstream development cooperation activities. The paper also considers the applicability of ISO (International Organisation for Standardisation) 9000 concepts and procedures. Agreement is needed to incorporate disability-sensitive considerations (along the lines proposed in the technical monograph) in CCA (Common Country Assessment) UNDAF (United Nations Development Assistance Framework) processes and to produce an appropriate “guidance note” for consideration by concerned members of the United Nations system for development cooperation.

Expected outcomes of disability sensitive development cooperation would be reflected in more accessible, participatory-based and empowering development cooperation activities, which will contribute to enhanced capacities to further the aims of the convention. From an operational perspective, disability sensitive development cooperation activities are expected to contribute to (a) improved planning and design of programmes and projects in terms of appropriateness to local conditions and involvement of stakeholders, (b) improved coordination and implementation management in terms of pro forma and procedures appropriate to local conditions and capacities, (c) more realistic valuation of development cooperation inputs, conversion factors as well as results to be produced, and (d) enhanced programme and project environments to promote sustainable and effective implementation and follow up.

Difficulty with Chat

From: Tina Minkowitz
Date: 6/6/2002
Time: 7:54:17 AM
Remote Name: 64.154.73.231

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I was interested in participating in the chat today, but found that the download for the mIRC software was only for Windows, not for a macintosh. If there is a macintosh availability, please let me know.

From: Bengt Lindqvist
Date: 6/5/2002
Time: 1:31:14 AM
Remote Name: 195.67.203.212

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Some thoughts on the elaboration of a disability convention, by Bengt Lindqvist, UN Special Rapporteur on Disability

Background

When the 1987 expert meeting recommended the elaboration of a convention on the rights of persons with disabilities, the main reason was the growing frustration arising from the insight that the momentum and guidance, created by the International Year of Disabled Persons and the World Programme of Action Concerning Disabled Persons, would not be sufficient to bring about the intended change in disability policy and development. In the opinion of the experts an international convention, a legally binding document, was needed to achieve the goal of full participation and equality.

The question was, however, what policies and measures governments would be willing to agree upon. Both the Italian and the Swedish governments made proposals in the General Assembly, but these initiatives were rejected. A number of reasons were mentioned for turning down the proposals: A convention would marginalise the needs of persons with disabilities, there was a “convention fatigue”, because the resource issue in connection with both the gender convention and the child convention had not been settled. One must also remember that disability-related problems at the time were not recognised as a human rights concern.

From a principal point of view, the only really acceptable reason for not starting the elaboration of a convention, was that the world development had not yet reached a point where there was enough common ground for a binding agreement. However, many delegations thought that the UN should strengthen its leading role and therefore agreed to elaborate the Standard Rules. These Rules, elaborated during the period 1990-93, built on the principles in the World Programme of Action, but were more straight forward concerning the responsibility of Member States (governments) for initiating and establishing this new approach to disability, based on the right to participation and equal opportunities in all spheres of society.

During the more than 8 years since their adoption, the Standard Rules have proved to be a widely used and effective tool for policy development and legislation. A great number of countries have adopted new legislation and initiated national policies and plans in the spirit of the Standard Rules. In this sense, the Rules have obviously paved the way for international policy norms and for an international agreement.

In the field of human rights, a series of important initiatives have resulted in the principal recognition that disability-related problems are a concern for the UN human rights system. This opens up for building a disability dimension in the human rights monitoring system and for making a new attempt to elaborate an international convention on a number of principles and necessary measures, with a human rights perspective as the basis.

The Mexican initiative

When the Mexican president, Vicente Fox, in the general debate of the UN General Assembly in 2001, proposed the elaboration of an international convention, the claim for a UN convention on the rights of persons with disabilities had already been made by a number of international disability organisations. Mexico had also managed to get the proposal for a convention into the outcome document of the World Conference against Racism etc. (Durban, South Africa, 2001). Nevertheless, the delegations in the General Assembly seemed to be taken by surprise, when this concrete proposal for a convention was presented. Long discussions and negotiations followed and the original Mexican proposal for a convention was reduced to a decision to establish an Ad Hoc Committee open to the participation of all Member States and observers of the United Nations to consider proposals for a “comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities”.

Since the General Assembly decision, many interested parties have contacted the Mexicans to discuss the planning of the Ad Hoc Committee meeting. The Mexicans have said that they themselves will prepare a draft, which, after consultations with experts, will be presented to the Ad Hoc Committee. It will, of course, be very interesting to study what the Mexicans have prepared, but in order not to lose time it is important that other forms for international exchange of ideas take place. This is the reason for circulating this paper among disability policy makers around the world.

What general principles should be applied in the elaboration?

In order to lay the foundation for the elaboration of legal texts in a number of areas, it would be suitable to establish some general principles and points of departure. Some such statements are tentatively made in the following.

a) A disability convention should be based on and reflect established UN human rights norms and standards, as expressed in the Universal Declaration, the two covenants and the other four major conventions. b) The elaboration should be based on the principle that the standards of new international human rights instruments must be relevant to fundamental issues and that new standards must not be less than existing standards, which was expressed in a resolution by the UN Commission on Human Rights in 1985. c) A disability convention should build on the principles, expressed in General Comment No. 5, issued in 1994 by the Committee monitoring the Covenant on Economic, Social and Cultural Rights.

General Comment No. 5 contains the statement that persons with disabilities are entitled to the full range of rights recognised in this covenant. In addition, in so far as special treatment is necessary, States Parties are required to take appropriate measures to enable persons with disabilities to seek to overcome any disadvantages, in terms of the enjoyment of the rights specified in the convention, flowing from their disability. The rights enunciated will be exercised without discrimination of any kind, including discrimination on the grounds of disability.

These principles were formulated by the committee concerning one of the covenants, but they should be recognised generally.

d) A convention should be drafted, building on the assumption that the UN Standard Rules will serve as guidelines for action when seeking remedy for the infringements of human rights of persons with disabilities. e) When elaborating the text of the convention, special attention should be paid to the needs of persons with disabilities in developing countries and in countries in transition. This is probably best done by ensuring that delegations from such countries have real opportunities to participate actively in the elaboration process. f) The Ad Hoc Committee must ensure that the elaboration of a convention takes the needs of all groups of persons with disabilities into account. g) The United Nations must ensure the active participation by representatives of the major international disability organisations.

What approach should be applied and what areas should be covered in a future convention?

This section is far from complete. It contains some ideas and formulates a number of questions, which will hopefully stimulate the debate preceding the actual elaboration. If nothing else, this text may illustrate the complexity of the task and the great number of possible approaches.

The Kallehauge initiative

About a year ago the High Court Judge, Holger Kallehauge of Denmark, presented a “draft Convention on the Fundamental Rights of Persons with Disabilities” (attached). His draft is very short and simple in construction. As a matter of fact there are only six articles of substance and, in addition to this, a well-elaborated monitoring mechanism. This is an excellent example of one available alternative, namely to formulate a couple of broad guiding principles and leave the application and interpretation of these principles to the monitoring and judging bodies. Kallehauge also builds his draft on using the Standard Rules as the main reference document, in the way formulated by the UN Commission on Human Rights in operative paragraph 1 of resolution 2000/51.

Convention based on a limited number of principles

Would it perhaps be realistic to identify a few fundamental principles, such as the right to life and survival, the right to self-determination, the principle of non-discrimination, the right to participation, the right to development and an adequate standard of living?

One discussion here would concern the concepts of participation and inclusion. Are they to be considered more or less synonymous? If not, should both be elaborated and what should be the basic meaning of each of these two concepts?

Convention built on disability-specific concepts

Would it be possible to build a convention partly or completely on disability-specific areas like habilitation, rehabilitation, technical aids, personal support services? These are often pre-requisites for participation and for the enjoyment of human rights. Should the provision of such facilities be presented as special rights? What about the concept of accessibility, which has such general meaning in disability policy? Could accessibility be formulated as a right in itself or would that be more of a measure of “special treatment”, in the sense mentioned in General Comment No. 5?

A comprehensive and integral convention

The words “comprehensive” and “integral” are used in the Mexican proposal and in the General Assembly resolution. What do these words mean in this context. Should a convention be more or less complete in bringing into focus all areas of concern? Does this mean that no attention should be paid to the Standard Rules and the World Programme of Action? With such an approach the convention would become very long and perhaps complicated to handle from a monitoring point of view.

How should a disability convention relate to already existing instruments?

Should a disability convention recognise the already existing major covenants and conventions? Should this be done by making an obvious and explicit recognition at an early stage of the text or could other forms be used to connect the provisions and principles of the disability convention with the six major instruments?