Disability Rights and the United Nations: Developing Hard Law

Sherrie Brown

LSJ/CHID 434

January 2007

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Jamaica case #2 Clement Francis v Jamaica (1994)

Death row prisoner complained that his mental health had substantially deteriorated:

As result of stress of waiting for execution Absence of appropriate psychiatric

attention. As his attorney, what laws and

articles will you argue were violated

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Specific UN Documents… Standard Rules for the Equalization

of Opportunities for Persons with Disabilities

Convention on the Rights of Persons with Disabilities

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International Decade of Disabled Persons 1983-1992 1981 – Designated Year of

Disabled Persons 1982 – General Assembly adopted

the World Programme of Action 1987 – Global Meeting of Experts

recommended that GA begin process of drafting convention

1993 – Standard Rules developed

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World Programme of Action A global strategy to enhance disability

prevention, rehabilitation and equalization of opportunities, which pertains to full participation of persons with disabilities in social life and national development.

Emphasizes need to approach from a human rights perspective vs ?

3 prongs: Analysis of principles, concepts and definitions relating to

disabilities Overview of the world situation Recommendations for action at national, regional and

international levels

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Equalization of Opportunities

Central theme of WPA Idea that issues concerning

disabled persons should not be treated in isolation

Achieve primarily through political and social action

National human rights legislation is one approach

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Standard Rules for the Equalization of Opportunities Main UN Rules guiding action at national level Four parts:

Preconditions for equal participation Target areas for equal participation Implementation measures Monitoring mechanism

Purpose is to ensure all disabled persons exercise same rights/obligations as others

Rehabilitation and prevention taken a back seat to the idea of equalization of opportunity.

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How successful? Some dimensions of disability policy have

not been treated sufficiently—e.g., children, women, persons with developmental and psychiatric disabilities, refugee or emergency situations.

Rules don’t have strategy to deal with conditions of extreme poverty

No guidance concerning housing or institutions.

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Development of Convention Really since 1987 July 2002 Promoting Rights of

Persons with Disabilities Committee Meet once or twice a year from

2002-2006 December 2006 General Assembly

adopted the Convention

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Convention on the Rights of Persons with Disabilities

Comprehensive, modeled after CRC and CEDAW

Purpose (article 1) Definitions (article 2):

Discrimination Reasonable Accommodation Disability

Optional Protocol

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Article 1Purpose

  The purpose of the present Convention is to

promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

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Article 2Definitions

Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

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“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

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Ashley Case and Convention WPAS v. Children’s Hospital Physicians

Ashley is a 9 year old severely disabled (cognitively and physically) girl who was given large amounts of hormones, a hysterectomy and other surgeries, to limit her growth and prevent menstruation and other changes related to female maturation.

You are WPAS attorneys and have Ashley’s rights under the Convention to argue human rights violations. Which ones?

You are Children’s attorneys and are preparing your defense…using the Convention. Which articles?