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United Nations Human Rights Convention
The Ad Hoc Committee on a Comprehensive and Integral International Convention on the Promotion and Protection of the Rights and Dignity of Persons with Disabilities has thirty minutes left to reach a resolution of the session before the lights go out and the translators go home. The Moroccan and Cuban representatives continue their filibuster. After two weeks of the session, it looks like a resolution may not be in sight. Calls that the official working day is over, that the translators are about to end their shift, and that the lights and electricity will automatically turn off are heard. Chairman H. E. Luis Gallegos Chiriboga, the Ambassador and the permanent representative of Ecuador to the UN, is presiding over the session, urging the parties to consent. The implications are clear: no translators, no decision. In other words, a good try, but a failure. Meanwhile, the translators carry out their threat and leave their posts. The microphones and electricity are shut down. After briefly shifting to Spanish, the mother-tongue of Chairman Gallegos Chiriboga, he requests a consent to continue the discussion in the main official language, English. At the end of the 11th hour he finally draws the session to a successful close. After two weeks of intense formal and informal meetings, the international disability community can finally pat itself on the back for scoring at least three noteworthy achievements. The first is that a new comprehensive and legally binding international convention on people with disabilities will be drafted. The second was a definite and an unprecedented participation of the disability community in the working group that was established to draft the convention. Third, there will no longer be the traditional pitying approach toward people with disabilities, but an equal and human rights based one.
Before delving into future work, the disability community could momentarily pause and look back at the intense events and achievements that had taken place in the session. What was it all about?
People with disabilities constitute one of the most vulnerable and largest minorities worldwide. More then 600 million people around the world are currently categorized as having a disability, including both physical and mental disabilities such as blindness, deafness, mental, developmental and intellectual disabilities. About 80 percent of people with disabilities live in developing countries; some suffer from multiple disabilities. It is further estimated that most people will experience some sort of disability during their lifetime, either as a result of injurious events such as armed conflict or accidents or naturally by disease, aging and the like. Despite these numerical estimations, the community of people with disabilities is still invisible, marginalized and ranks high among the most discriminated groups. People with disabilities often suffer from grave human rights violations in a variety or areas, such as work, education, access to public places and exclusion from civil, political and social activities. Additionally, subgroups of people with disabilities, particularly women and children, the elderly and other marginalized groups, often experience dual or multiple-discrimination.
In the past two decades there has been a growing recognition of the advocacy for people with disabilities within the framework of international law. Changing trends as to what constitutes a disability have accelerated the process. In contrast to the traditional monopoly of the medical paradigm, which is based on functional deficient as determined by a so-called objective standard of normality, the current approach stresses that disability is a social construct, and draws attention to environmental, accessibility and social accounts as significant reasons for the marginalization of people with disabilities. Consequently, the previous welfare approach to address the needs of people with disabilities gave way to a rights-based approach, instilling a concept that utilizes a developmental, accommodative and non-discriminatory method instead.
These shifts have slowly started taking roots in the legislative field. Specific references to people with disabilities were formulated in various human rights instruments, such as Article 23 of the International Convention on the Rights of the Child (CRC). A few conventions were adopted by the International Labor Organization that surround the occupations of people with disabilities. A string of provisions was also adopted in a variety of other documents. The vast majority of them are in the form of the so-called soft law instruments, covering different aspects of human rights of people with disabilities. This includes the Declaration of the Rights of Mentally Retarded Persons (1971) and the Declaration on the Rights of Disabled Persons (1975). Additionally, specific references in World Programmes of Action, such as the International Decade of Disabled People and World Programme of Action (WPA) and the Vienna Declaration and Programme of Action, 1993 are considered soft law provisions.
Perhaps the most significant step so far was taken with the adoption of the Standard Rules of the Equalization of Opportunities for Persons with Disabilities in 1993. The Standard Rules established as its goal the full and equal enjoyment of human rights and participation in society by people with disabilities, and provided accommodating models for political decision-making to attain this goal.
However, with the possible exception of the Standard Rules, which some have argued reach the status of customary law, these soft law provisions are generally considered as non-binding instruments under international law. More importantly, due to the array of reports that document the persistence of pervasive human rights violations of people with disabilities, from the Special Rapporteur and national and international organizations—both governmental and non-governmental—the call for a special convention has emerged.
The deliberations about the need for a new convention and its scope were articulated during the plenary meetings of the Ad Hoc Committee in the statements that were delivered by states’ delegates. These were international organizations such as the International Labor Organization (ILO), human rights commissions and NGOs, including the 200 or so members of the International Disability Caucus who attended the session.
It is not a new debate. Definitely, the primary goal of the disability community was to attain the states’ members’ agreement to press ahead with the drafting of a new legally binding convention on the protection and the promotion of the rights and dignity of people with disabilities. It took almost two decades to bring the issue of people with disability to this stage at the UN. Yet the disparities and disagreements that were raised in the previous session still echoed. As Chairman Gallegos Chiriboga, pointed out, “I came with a lot of enthusiasm for the session. And yet the actual expectations are met only at the end of the session.”
However, it soon became clear the necessity for creating a new convention is no longer the issue of controversy. Even Kofi Annan, the UN Secretary-General, expressed his solidarity with the process of drafting a convention—indeed a boost to the international disability effort! Thus, with the exception of the U.S. delegation that maintained its traditional preference for national and domestic policies rather than international government, the decisive position of the states members at the plenary was for drafting a new convention. As Chairman Gallegos Chiriboga stressed, “This is a great success in itself!”
Once this first barrier was crossed, the next project was to describe the character of the new convention. From the standpoint of the disability community, the answer was clear: a comprehensive and integral treatise tailoring the full range of human rights—including civil, political, social, economic and cultural—to the situation of people with disabilities. Would the member states go ahead with that?
Three proposals were submitted during the session by Mexico, New Zealand and the European Union. The Mexican proposal called for a holistic model, one that provides a comprehensive scope of the rights—including specific reference to the civil, political, social, economic and cultural rights—of people with disabilities. This model follows the model set up in the International Convention on the Rights of the Child.
In contrast, the European proposal focuses on a narrower model of non-discrimination. This model attempts to mainstream disability into the general human rights system and to guarantee the full exercise of the already recognized rights to people with disabilities, including equality and full participation of people with disabilities. This follows the model adopted in the International Convention on the Elimination of All Forms of Discrimination Against Women and the International Convention on the Elimination of All Racial Discrimination.
The last proposal, raised by New Zealand, offers a hybrid model, which combines both a non-discrimination and equality protection with separate reference to civil, political, social, economic and cultural rights that are adapted to specific situations of people with disability, i.e. social development.
Elaborate discussions about the text of the future convention—by the panels, the states’ delegates and the other organs—took place in both formal and informal consultations. Despite the disability community’s campaign for a comprehensive and broad scope of the future convention, the discussion as to the exact content of the convention was found somewhat premature. Suddenly a new obstacle was raised: the proposal to establish a working group to draft the future convention.
According to the common procedure of the UN, drafting a new convention requires a good drafting team. Such a team must understand, have expertise in the issues at stake and be able to take into account the obligations the member states would be willing and able to accept. Considering the UN is a political organ that is comprised of the member states, traditionally, these working groups have always been experts on behalf of the states. Thus, for the time being, the most pressing issue from the perspective of the disability community was sustaining a continuing and substantive role in the process of developing the convention. Indeed, that is what stands behind the motto that was repeatedly held: Nothing about us without us!
Although the involvement of the disability community had gained support and acknowledgment in the resolutions that were previously adopted by the General Assembly (res. 56/100 and 57/229) and the report of the first session, maintaining these achievements was not an easy task. Thus, the controversy revolved around the number of seats in the working group that would be designated to representatives of the disability community, if at all, and the capacity in which these NGO representatives would serve.
The wisdom of permitting people with disabilities to advocate on their own behalf and to point out the necessary measures for removal of the existing environmental and other social barriers is not questionable. There were representatives at the forum using wheelchairs, crutches, walking sticks, personal assistance and communication devices including hearing aids, translators and computerized programs such as computerized note taking and scanner of printed text into Braille. It was made plainly clear that no one else could better know what the disability community needs. However, a resolution to establish a working group within the system of the UN, which grants a formal status to NGOs had never taken place before. Thus, a few states’ delegations (particularly the European Union) expressed a concern that such a resolution would have complicated future consequences because of the change in the traditional distribution of power between states and NGOs in the arena of international law. Technically, entities that are not states representatives would be drafting the prospective states’ obligations. Other states’ delegations (especially Morocco) insisted that the representatives of the disability community would serve only in an advisory mandate, and not share an equal role to the states’ delegates. As such a narrow role stands in contrast to the full participation that was demanded by the International Disability Caucus—the struggle started.
Like ants in a nest, with each ant knowing its job, the International Disability Caucus rolled up its sleeves. The caucus was established as the official body to represent the NGOs and the disability community, and to deliver its messages and statements at the plenary meetings. A steering committee was established to facilitate the NGOs’ cooperation and coordination. Additional regional, non-alliance NGOs and communication working groups were established. All these committees continuously gave their input to the process and played a significant role in changing the traditional petty approach to disability toward an equal one. They held numerous meetings with the Chairman Gallegos Chiriboga, with states’ delegates and with one another, printing a daily summary of the plenary meetings and a bulletin. Communicating the information about ill-positioned states in comparison to the structure of the caucus members in the working group achieved the goal. As Chairman Gallegos Chiriboga affirmed, “Having such a great and strong participation of NGOs was important to show how involved they are, and how urgent and unique their involvement is. Their motto has come to the states’ understanding.”
The exact role the NGOs’ representatives will take during the working group, whether advisory or as equal participants, is still somewhat ambiguous. “After all,” says Chairman Gallegos Chiriboga, “it is impossible to forget the UN is built on states.” However, in light of the intensive support from the NGOs’ involvement during the present session, the good dynamics that have developed during the meetings and the twelve reserved seats for NGOs representatives in the working group, it seems that a new spirit of cooperation has emerged.
The Ad Hoc Committee is planning to hold its third session in May or June 2004. Clearly, in the present session, NGOs’ representatives were highly visible and involved in the panels, discussions, and negotiations. According to figures given by Mr. Ngoran, the Chief of the NGO Unit, the Division for Social and Policy Development at the UN, the number of NGOs has tripled itself and the number of the individuals that were present has multiplied by nearly six!
Yet, improvements are essential. “NGOs should do their homework, and be better prepared,” says Chairman Gallegos Chiriboga.
With this instruction in mind, and with the strong spirit shown in this session, the disability community will continue to press ahead in the fight for the right to actively participate in the drafting of a comprehensive and integral international convention for the promotion of the rights and dignity of people with disability.
After all: Nothing about us without us!
by Maya Sabatello, JD PhD
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