Training session

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Training session

« Human rights and disability… towards an International Convention to promote and protect the

Rights and Dignity of Persons with Disabilities »

Training material produced by Handicap International -Rights and Policies Unit, in collaboration with the Human Rights Institute

of Lyon

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Outline

Introduction

Part I : Disability and Human Rights – core notions

Part II : The process of elaboration of an international convention on disability

Part III : The International Convention on protection and promotion of the rights of persons with disabilities

Part IV : Participation of civil society in the elaboration process of the convention

Conclusion

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INTRODUCTION The disability field is going through a transition period :

– The perception of disability is changing,– The disabled are finally recognized as having the

same rights as everyone, – The international community has realised the great

difficulties faced by disabled people in the world, – The UN invests into this theme in order to improve the

respect of the rights of the disabled people and to allow them to be taken into account in policies,

– The States and civil society work together since 2002 on the elaboration of an international Convention on the rights of the persons with disabilities.

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=> It represents a real and durable opportunity to allow progress to be made concerning the situation of disabled people.

We have to allow for the greatest possible number of actors to mobilise in order to make this Convention a tool for change.

=> International and national actors, public or from civil society, in order to ensure a process of dialogue.

It is to facilitate access to information regarding this process that Handicap International has produced this CD Rom.

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Part I : Disability and Human Rights – core notions

1) What is « law » ?

2) Disability is a Human Rights issue

3) The general human rights texts apply to all

4) International texts concerning disabled people

5) In fact : the invisibility of persons with disability

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1) What is « law » ?

• Law = Rules established to prevent the law of the strongest from applying.

• Characteristics of law :

punishes violations

+ makes up for the loss sustained by the victim

Example : an apple has been stolen the thief will be fined = sanction + the apple will be given back to its owner = reparation

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Law, is : • Domestic Law (2 types) :

- Of Romano Germanic origin (such as French law) : Written laws and regulations,

- Of Anglo-Saxon origin ( « common law » system) : The law stems from courts themselves (“case law”).

• International Law : Treaties and international agreements (conventions,

covenants, treaties…).

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International Law, two types of texts :

• Legally BINDING

While agreeing on the text, a State party accepts to :

- change its own laws, - or create new ones

so that they would be in conformity with the international text.

Example: Convention on the Rights of Child, the future convention on the rights of the disabled

• Not legally binding

Guidelines that States parties undertake to respect

No specific obligations

Example: Standard Rules

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2) Disability is a Human Rights issue

«Disability (is) a Human Rights issue. As long as people with disabilities are denied the opportunity to participate fully in society, no one can claim that the objectives of the Universal Declaration of Human Rights have been achieved».

Bengt Lindqvist / UN ex-Special Rapporteur on disability

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• Disability is an unavoidable and universal part of human diversity.

• A shift in perspective has taken place on how to consider the person with disabilities :

– From object of charity and burden = approach of assistance,

– To subject with rights = approach based on the respect of any human being.

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What does this shift imply ?

Four core values of human rights are especially relevant in the context of disability :

– Dignity - respect of physical and moral integrity of the person...

– Autonomy – capacity for self-directed action, decision and behaviour…

– Equality – prohibition of discrimination…– Solidarity - collaboration, support…

Hence human Rights apply to persons with disabilities.

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Human Rights

Human Rights were born when it was clearly admitted that every human being must be respected, as part of Humanity

• Human Rights are reference norms : they define limits under which human life and dignity are violated (example : freedom, food, housing…)

• Human Rights are prioritary norms : nobody can be deprived of them without being a victim of a serious injustice.

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The main Human Rights categoriesCivil and political Rights

Civil Rights

• Protect people against abuses of power

• Examples : right to life, freedom of association, right to freedom …

Political Rights

• Enable individuals to participate in public life, and to exercise democratic control over State power

• Examples : right to vote, freedom of expression...

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Enable the individual to live a decent life and to fulfil his essential needs.

– Economic Rights : right to work, right to fair wages…– Social Rights : right to health, right to education, right to healthy food

at regular intervals, protection of the family...– Cultural Rights : right to cultural expression...

The main Human Rights categories Economic, Social and Cultural Rights

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3) General Human Rights treaties apply to everyone

• International Convention on the Elimination of all forms of Racial Discrimination (1966)

• International Covenant on Civil and Political Rights (1966)• International Covenant on Economic, Social and Cultural

Rights (1966)

• Convention on the Elimination of all forms of Discrimination Against Women (1979)

• Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984)

• Convention on the Right of the Child (1989)

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The role of the committees attached to international texts

Attached to some texts, there are monitoring committees= composed of independent experts. Role :

- receive periodical reports from States parties on the implementation of the convention in their country

- receive alternative reports from NGOs to counterbalance the state reports,

- receive individual and interstate complaints - produce recommendations, inquiries...

But : committees do not work efficiently, and do not consider the disability issue as a priority. ⇒ there is a need for a specific protection of persons with disabilities

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The UN set out great principles specific to the disability issue, but lacking legal effect.

– Several resolutions and recommendations were adopted. The adoption in 1982 of the World Programme of Action reveals a new objective : the equalisation of opportunities.

– 1993 : adoption of the « Standard rules on the equalisation of opportunities for persons with disabilities »

– 2002 : supplement to the Standard Rules, that completes and gives precisions on the text.

4) International texts concerning disabled people

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Standard Rules on the equalisation of opportunities for persons with disabilities

All human beings are equal in rights (they have the same rights)

However, they are not equal in fact : they do not have the same access to rights not the same opportunities

Aim of Standard Rules : favour equalisation of opportunities to allow for equality in fact.

=> measures have to compensate the disadvantages that prevent disabled people from having an equality of opportunities compared to the other members of society.

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The introductory paragraph number 24 of the Standard Rules defines the concept of equalisation of opportunities :

The term 'equalization of opportunities' means the process through which the various systems of society and the environment, such as services, activities, information and documentation, are made available to all, particularly to persons with disabilities.

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they require States to :

• remove obstacles to equal participation of persons with disabilities

• actively involve disabled peoples NGOs in an active collaboration.

As long as the convention is not adopted, the Standard Rules is the text of reference concerning the rights of persons with disabilities.

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• Are not principles but practical measures :

indicate what should be done for the persons with disabilities to access the rights intended to all.

• 4 parts with a practical scope for an equal participation :

– Preconditions (awareness-raising, health care…)

– Target areas (accessibility, employment, education…)

– Implementation measures (planification, legislation, policies…)

– Monitoring mechanism.

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• They are not very visible (different living places…) ;• Their marginalisation is linked to the refusal to see

them ;• Public exposition is difficult (they are looked at).

The invisibility of persons with disabilities results in the non-respect of their fundamental rights.

Statement : International Law does not efficiently protect the rights of

persons with disabilities.

5) In fact : the invisibility of persons with disabilities

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A few key points :

• The disability theme is considered only in non-legally binding texts.

• Need for a specific and legally binding text, which would efficiently protect the rights of persons with disabilities (ie. the convention in progress).

• The convention, when entering into force, will highly influence States parties’ national policies.

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Part II : The process of elaborating a convention on

disability

1) Why elaborate a convention on disability ?

2) First step

3) Ad hoc committee sessions

1) Why elaborate a convention on disability ?

The perception of disability has evolved :

• Disabled people are no longer considered as objects, but as rights bearing subjects.

• Disability is no longer considered as a problem linked to the person, but it depends upon the environment of the disabled individual (social model of disability).

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Why elaborate a convention on disability ?

to allow disabled people to enjoy the same rights as others:

- Define the opportunity equalisation measures to allow access by disabled people to everyone’s rights

- Have a implementation framework and monitoring mechanisms aimed at ensuring that States parties fulfill their obligations.

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2) First step

• 1987 : 1st proposal of convention (Italy/Sweden), but there was no agreement between States on the necessity of a specific convention : it was considered that general treaties are sufficient.

• 99/2000 : several experts meetings clearly recognised that a specific and legally binding text on disability is needed.

• 2001 : Mexico suggested to work on a new convention, which was accepted by a United Nations General Assembly resolution.

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General Assembly resolution 19/12/2001

• Recognises that the international efforts are not sufficient to promote full and effective participation for persons with disabilities

• Establishes an ad hoc committee, in charge of considering proposals for a convention.

• Suggests to elaborate an integral convention (which would be exhaustive), based on a holistic approach (global).

• Invites all relevant stakeholders (NGOs, international treaty bodies, UN agencies...) to make contributions to the work entrusted to the Ad Hoc Committee

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Ad hoc committee

The ad hoc committee is composed of :

• States representatives

• Civil society (NGOs): its participation is exceptional

• United Nations organs et agencies (High Commissioner for Human Rights, Commission on social development, World Health Organisation, International Labour Organisation …)

• National Human Rights Institutions

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Stakeholders positions

• Developing countries want practical obligations for States parties, but which do not imply a cost too high.

• Scandinavian countries fear that international norms would be lower than their national norms.

• The cultural differences in the perception of society (individualistic or communitarian) lead to a different perception of rights.

• Development organisations insist on development and eradication of poverty as a means to reach the aim of the convention.

• Disabled People Organisations : « Nothing about us without us »

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3) Ad hoc committee sessions

First and Second Sessions, 2002-2003 : Choosing the type of text and creation of a working group

The Committee has discussed :

– The necessity of drawing up a new convention, or would it be enough to add a text to an existing convention ?

It was decided to draw up a new convention, specific to persons with disabilities

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– What should the convention deal with? Solely non-discrimination, the interaction between disability and Human Rights or a more global approach ?

the text will deal with related and complementary issues

It will focus on : - Dimensions of Human Rights and Disability, on

one hand, and - The core issues of social development, on the

other hand (gender equality, eradication of poverty...)

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During its 2nd session, the committee established a working group, composed of :

• 27 States representatives • 12 Disabled People Organisations • 1 national institution of Human Rights

January 2004 : Working Group meeting

The working group was in charge of drawing up a draft text which would be the basis of the negotiations ; the draft text is composed of 25 articles.

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3rd et 4th sessions (May 2004; August 2004) : The committee discussed the draft text, and every

stakeholder could suggest amendments (first reading).

5th session (January 2005) : The committee has made a second reading of the first part

of the convention.

6th session (August 2005) : The committee has started the second reading of the

second part of the convention.

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October 2005 : publication of the « Chairman Text »

After the sixth session, the committee’s chairman proposed a « Chairman text », which is a new version of the convention with rewritten articles.

This text tries to set up a compromise between the different positions of the participants (states and civil society) after the last reading.

The chairman hopes this text will serve as the basis for negotiations during the future sessions.

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A few key points :

• Exceptional participation of civil society. • The elaborating process is long and complex, in order to:

– Get a text that would be really efficient, and that would take into account every dimension of disability, in a perspective of human rights and social development.

– Take into account every stakeholder’s objectives and positions.

• The article on monitoring is considered by all as crucial, and it’s efficiency will be important.

• The recent publication of the « Chairman text » helps progress of the convention.

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Part III : Comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities

1) Presentation of the convention : articles and structure of the « Chairman’s text »

2) The central principles of the convention

3) Transversal subjects

4) Zoom on important notions

5) Implementation and monitoring

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1) Presentation of the convention: articles and structure of the Chairman’s text

PART 1

Art 1- Purpose

Art 2- Definition

Art 3- General principles Art 4- General Obligations Art 5- Equality and non-discrimination

Art 6- Women with disabilities Art 7- Children with disabilities

Art 8- Promotion of positive attitudes to persons with disabilities

Art 9- Accessibility

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Presentation of the convention: articles and structure

PART 2

Art 10- Right to life Art 11- Situations of riskArt 12- Equal recognition as a person before the law Art 13- Access to justiceArt 14- Liberty and security of the personArt 15- Freedom from torture or cruel, inhuman or degrading

treatment or punishment Art 16- Freedom from violence and abuse Art 17- Protecting the integrity of the personArt 18- Liberty of movementArt 19- Living independently and being included in the communityArt 20- Personal mobility

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PART 2 (continued)

Art 21- Freedom of expression and opinion and access to information

Art 22- Respect for privacy

Art 23- Respect for the home and the family Art 24- Education

Art 25- Health

Art 26- Habilitation and rehabilitation

Art 27- Work and employment

Art 28- Adequate standard of living and social protection

Art 29- Participation in political and public life

Art 30- Participation in cultural life, recreation, leisure and sport

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PART 3

Art 31- Statistics and data collection

Art 32- International cooperation

Art 33- National implementation and monitoring

Art 34- International monitoring

PART 4• Signature• Ratification• Accession• Entry into force• Amendment• Reservations• Dispute settlement• Depositary• Authentic texts

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2) The central principles of the convention

• It does not create new rights

Objective : The full enjoyment of all human rights and fundamental freedoms by the disabled person.

=> The goal is to allow disabled people to enjoy the same rights as others.

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• It rests upon a vision of an inclusive society in which everyone has the same rights and opportunities.

This vision is illustrated through 6 general principles : • Dignity, autonomy and freedom of choice • Non-discrimination and respect for differences • Integration• Equality of opportunities• Accessibility• Equality between men and women

The vision of the society upheld by the convention makes room for individual choices, while recognising the importance of collective responsibilities.

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The principles are upheld throughout the convention

*Dignity

Insure the physical and moral integrity of the person :• by affirming the inherent right to life for all (art 10),

but no consensus on when this right begins.

• by protecting the person against :

violence and abuses (art 16)

inhuman and degrading treatments (art 15)

forced intervention or institutionalisation (art 17)

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*Autonomy and freedom of choice

Insure that the disabled person has the possibility of being autonomous and has the freedom of choosing :

• his/her place of residence (art 19), in order not to force the person to live in a specialised institution

• the medical treatment of his/her impairment (art 25)

• to have a family life and personal relations (art 23)

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*Non-discrimination

Discrimination in the draft text means : - any distinction, exclusion or restriction,- based on disability,- limiting, as a consequence, the access to rights

Encompasses double discrimination (sex, ethnic origin, age…)

Encompasses all forms of discrimination, be they direct and indirect discrimination.

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*Full integration

Disabled people are integrated in all aspects of existence, considered as equal citizens and participants.

This principle :• expresses the desired result of the convention,

• echoes the principle of respect of differences within the society and to the acceptation of disability as being part of human diversity.

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* Equality of opportunities

Enable persons with disabilities to access, in equality with other persons, services, information and activities…

It is thanks to the Standard Rules that the notion of equalisation of opportunities has become central in the treatment of the disability theme.

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*Accessibility

= to fight against the barriers to participation of disabled people.

1. Physical environment Implements international standard norms for every building, either public or private (Universal design).

Example : standards demanding that doors be wide enough to allow a wheelchair to go through

Allow and facilitate the movements of disabled people.

Example : access to public transportation thanks to low-floor buses.

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*Accessibility

2. Accessibility to information and communication

allow access to information and the enjoyment of the freedom of expression.

Example : information available in Braille, websites specially adapted for the needs of disabled people…

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*Equality between men and women

• This principle has been included in the general principles of the Convention by the « chairman text »

• We still do not know how it will be articulated with the different articles of the convention.

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3) Transversal subjects

Participation of persons with disabilities and their representative organisations to decision-making processes (articles 4, 8, 9, 29 et 31).

Mainstreaming : (article 4) take disability into account in all development actions and at all stages (planning, implementation, evaluation…)

Examples : take disability into account during the elaboration of a general policy concerning health, education, housing…

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Transversal subjects

Community based support (local level):

The appropriate services and resources have to be available at the community level (in the fields of education, health…). This contributes into allowing disabled people to have the opportunity to live autonomously within their local community.

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4) Focus on important notions

Reasonable accommodation measures Affirmative actions Legal capacity Vulnerable groups Situations of risk

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Reasonable accommodation measures

A reasonable accommodation measure is a material measure aiming at favouring equalisation of chances.

= individual measures = do not imply a disproportionate burden

in all fields : financial, education, employment…

The absence of reasonable accommodation constitutes a form of indirect discrimination.

according to the General Observation n°5 from the ICESCR Committee

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Affirmative actions

Measures of preferential promotion of a usually disadvantaged category of persons.

They aim at realising equalisation of opportunities.

They are temporary measures – they stay in place as long as the disadvantage is not compensated for.

Ex: establish quotas for the employment of disabled people within a company, grant tax incentives…

The convention provides for affirmative actions in order to encourage employers to hire disabled people (article 27).

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Legal capacity

• Legal capacity is the legal aptitude of a person to be a holder of rights and obligations and to be able to put them to use.

• In the common law system, legal capacity is understood as the general capacity of a person to engage in legal acts, such as contracts, etc…

• Legal capacity distinguishes itself from legal personality, which a recognition of a person as a rights holder (= subject of law, ie. The person has rights and the possibility to enforce them in a tribunal.

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Vulnerable groups

The sixth session has tackled the opportunity of including : - an article 6 concerning disabled women since they suffer from a double discrimination and are subject to violence and abuses. - an article 7 conferring a special protection to disabled children.

However, the necessity of having a separate article for the protection of those two categories of vulnerable disabled persons is not decided upon.

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Situations of risk

(for now, this article 11 is still under consideration, and could be moved to the preamble of the convention)

It is important to protect disabled people in cases of armed conflict, natural disasters, and other situations which make them more vulnerable.

This article will define the obligations of States to guarantee a specific and efficient protection of disabled people in situations of risk.

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5) Implementation and monitoring

• Monitoring (articles 33 and 34)To be efficient, the convention must elaborate relevant

monitoring mechanisms, such as :

- establishment of monitoring committees (on national, regional and international levels)

- possibility of individual and interstate complaints - reinforcement of national, regional and international

mechanisms- collaboration with existing UN Human Rights treaty

bodies.

Any monitoring mechanism must include the participation of persons with disabilities (including disabled peoples organisations).

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• International cooperation (art 32)

It would be a transfer of resources, aid and expertise • between States, NGOs, international organisation,

private sector, in a North-South perspective, but also South-South

• all fields : technical, scientific, economical, technological, training, information exchange…

It should allow :• access to new technologies, information sharing, and

harmonisation of standards of access • mainstreaming of disability issues in all development

cooperation programmes • a better implementation of the convention.

The absence of international cooperation can not constitute a motive for non application of the convention.

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The realisation by States

Principle : the compulsory and immediate realisation by the State of the rights sanctioned by the convention.= by modifying national regulation and by guaranteeing the application of the rights.

But : Certain States ask for the possibility of a progressive realisation

= could allow these States to depart temporarily from the implementation of economic, social and cultural rights when the country needs more time for implementation. The States will have to prove that measures are taken to make progress, even if the realisation of the convention is not complete.

It is not allowed for civil and political rights.

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A few key points :

• The convention is not aimed at creating new rights but at allowing persons with disabilities to enjoy their rights, in equality with the other members of society.

• It touches all aspects of life• It states rights but also constraining implementation

principles• Some fundamental topics are still considered, and a

consensus will have to be reached for each of them (such as for international cooperation).

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To follow the elaboration process of the convention

Consult the Enable UN website, where you will find :

– The « Chairman text » as well as the first draft of the Working Group

– The official reports of the ad hoc Committee sessions– The « daily summaries » of the sessions of the

Committee– The different amendments proposed by participants

(States, NGOs, UN agencies, Human Rights institutions…)

http://www.un.org/esa/socdev/enable/index.html

The website is in many languages.






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Part IV :

The participation of civil society in the elaboration process of the convention

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The voice of the civil society during the sessions of the ad hoc Committee : International Disability Caucus (IDC).

Gathers about fifty organisations from around the world (august 2005), from which a majority are disabled peoples organisations.

Holds the unified voice of the civil society during the ad hoc committee sessions.

=> it is civil society’s lobbying body.

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IDC’s actions

1. Active participation to the drafting of the first draft (January 2004) 12 NGOs from IDC among the 40 members of the

working group

2. Amendment proposals from IDC on all the articles of the convention :

• Drafting proposals for every article • Arguments to describe its positions for every

article.

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3. But alsoDuring the sessions of the ad hoc Committee : Organisation of parallel meetings aside from the plenary

sessions. Organisation of an IDC secretariat (done by Handicap

International).

Between the sessions : Elaboration of new concrete proposals that will be upheld

by the Caucus - via « Yahoo Group »

• on precise themes

• on every article of the convention with one coordinator per article.

Publication of a guide to facilitate the integration of new participants from the civil society.

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A few actions done by IDC members

Writing of daily reports on the debates held in the Committee (daily summaries) by Rehabilitation International, translated into French by Handicap International, into Arabic by the Landmine Survivors Network, into Spanish by the Inter-American Institute on Disability…

Realisation of internet pages concerning the conventionHandicap International, Inclusion International, Landmine Survivors Network, Disabled People International, Rehabilitation International…

Set up of a project to develop the participation of the South’s civil societyHandicap International and Inter-American Institute on Disability.

…

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In conclusion

• Civil society has a great role inside the ad hoc Committee• Civil society has a unified voice through the International

Disability Caucus• It influences the debates, but it is the States that ultimately

decide and ratify the final text• It has to spread the maximum information on the convention

and mobilize the energies of the civil societies from all countries for :– the end of the elaboration process– the later steps (ratification, implementation, monitoring).

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Handicap International’s focus on inclusive development

Handicap International is a member of International Disability and Development Consortium (IDDC): 21 NGOs et DPOs dealing with disability and development.

HI and IDDC, inside the Internationa DisabilityCaucus (IDC) : have proposed an amendment on inclusive

development during the fifth session.have realised a CD Rom they presented in New York,

which includes resources on inclusive development in respect of every article of the convention («The Disability Convention – Making It Work»).

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What is inclusive development ?

=> A development that integrates disabled people in the general process, while at the same time taking into account their specific needs.

Inclusive development :

• implies that the disability dimension has to be taken into account in all the steps of development (programming, implementation, evaluation, follow up),

• guarantees that the civil society (such as the disabled peoples organisations) is an actor in the development process and its implementation,

• bases itself on a rights based approach of development.

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Why talk about inclusive development ? • According to the United Nations, over 600 millions of

persons have a disability, and 82% of them live in developing countries and are among the poorest of the poor.

• The economic and social exclusion that face those persons is a major development issue.

• The elimination of poverty cannot be achieved without : - mainstreaming the disability issue in all

development policies and processes, AND - ensuring that persons with disabilities

participate and are involved in all phases of development programs.

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How the convention can reach the objectives of inclusive development ?

Certain of the identified means to achieve inclusive development are present in the text of the convention (it is however not finalized) :

• Community-based support • Consultation and representation of disabled people• Awareness raising on disability• Information sharing…

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Other aspects have yet to be integrated in the convention :

• The increase of disabled peoples standards of living

• The protection of certain vulnerable categories of populations : refugees, ethnic minorities…

• International cooperation as a means of implementation

• The protection of disabled people in risk situations: the issue is mentionned but is not decided upon yet.

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The monitoring has to be considered :

- at all levels : national, regional, international.

- in the framework of existing human rights instruments.

- in link with development mechanisms, such as the “Poverty Reduction Strategy Plans”.

- on the basis of indicators allowing to measure the effective respect of rights. These indicators stem from the set up of a development policy based on human rights.

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TO COME…

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Convention : the next deadlines

January and August 2006 : 7th and 8th sessions of the ad hoc Committee

third reading of the convention on the basis of the Chairman Text

Discussions on the structure of the text

2007 : The convention should be finished the second aspect of the lobbying action of the civil society will start for the ratification of the convention by States.

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The role of civil society

Following the ratification by States, the civil society’s exceptional role has to continue for the implementation and monitoring aspects.

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The role of civil society after ratification • Insist on an efficient implementation and monitoring of

the convention by States Parties.

• Within the monitoring process : observation, gathering and management of information, in order to :

- submit alternative reports to the monitoring committee,

- plead in front of the monitoring committees (national, regional and international),

- facilitate access to information for the civil society,

- inform on / influence disability policies…

Training session

Documents

Transcript of Training session