Progress on the drafting of the Disability Convention by the U.N. Ad Hoc Committee
While the major U.N. conventions relate “indirectly to the rights of persons with disabilities”, only the U.N. Convention on the Rights of the Child (C.R.C.) makes explicit reference to the issue of disability. Apart from C.R.C., international human rights instruments with explicit reference to people with disabilities are generally non-binding, such as, the U.N. Declaration on the Rights of Disabled Persons and the U.N. Standard Rules on Equalization of Opportunities for Persons with Disabilities 1993 (‘Standard Rules’). Although ‘Standard Rules’ were drafted and adopted as an alternative to a Convention, they are neither comprehensive nor legally binding.
Therefore, over the last 20 years, many advocates have pushed for the development and adoption of a legally binding international treaty specifically focussed on the issue of disability.
In 1987, the ‘Global meeting of experts to review the implementation of the world programme of action concerning disabled persons’, at the mid-point of the U.N. Decade of Disabled Persons, had recommended that the U.N. General Assembly convene a special conference to draft an international convention on the elimination of all forms of discrimination against persons with disabilities. A draft outline of a convention was prepared by the government of Italy. At a subsequent meeting of the U.N. General Assembly, a further effort was made by the government of Sweden. On both occasions, however, no consensus was reached as many government representatives were of the opinion that existing human rights documents guaranteed persons with disabilities the same rights as other persons, and there was, therefore, no need for a special convention.
It is true that international human rights standards require that people with disabilities should enjoy the same basic human rights as all other human beings. It is also true, in many respects, that people with disabilities throughout the world are subjected to widespread violations of their human rights.
In September 2001, the final declaration of the ‘World conference against racism’, held in Durban, South Africa, recommended that UN General Assembly should “…consider elaborating an integral and comprehensive international convention to protect and promote the rights and dignity of disabled people, including, especially, provisions that address the discriminatory practices and treatment affecting them”.
This was also articulated during a meeting of international disability related non-governmental organizations (N.G.O.s) in March 2000, which adopted the Beijing Declaration on the Rights of People with Disabilities.
In response to this continued advocacy, the U.N. General Assembly passed Resolution 56/168 on December 19, 2001, establishing an Ad Hoc Committee (A.H.C.) “to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the field of social development, human rights and non-discrimination, taking into account the recommendations of the Commission of Human Rights and the Commission for Social Development”.
The Ad Hoc Committee held its first session between July 29 and August 7, 2002. During this session the Committee heard general statements from representatives of a number of countries, UN agencies like the International Labour Organization and the Office of the High Commissioner for Human Rights as well as a number of N.G.O.s. By and large the Committee recognised the need for a new thematic Convention to give “status, authority and visibility” to disability issues which cannot be achieved through the process of reform of existing international instruments and monitoring mechanisms. Moreover, a single comprehensive treaty is important to enable the State Parties understand their obligations in clear terms as it would set clear targets for the development of disability-inclusive infrastructure and processes.
To gain further clarity as regards the nature, structure and key elements of the Disability Convention, the U.N. Secretary General sought views of States, U.N. bodies and organisations through a very well structured questionnaire. These were made available for the consideration of the Ad Hoc Committee during its second session, which was held in June 2003.
National Human Rights Institutions (N.H.R.I.s) also contributed proposals to the A.H.C. One such proposal was formulated by N.H.R.I.s from the Commonwealth and Asia Pacific countries who met in New Delhi from May 26 to 29, 2003. This proposal was also considered by an expert meeting convened by U.N.E.S.C.A.P. that framed the Bangkok Draft.
At its second session, the Ad Hoc Committee decided to establish a Working Group -- composed of 25 governments, 12 NGOs and one National Human Rights Commission -- to prepare and present a draft text of the Convention, taking into account all proposals received. It met in January 2004 at the U.N. headquarters in New York. The Working Group identified possible approaches, and narrowed down the options so as to provide a basis for further work by the Ad Hoc Committee. The draft is popularly known as the Working Group Draft.
As on date the Ad Hoc Committee has held six two-week sessions. The process has been extremely democratic, open and transparent. The pace, intensity and the level of negotiations point to the fact that the process is heading towards completion. The Committee has made considerable progress and a large measure of agreement has been reached. There are a number of issues on which wide support is available. However, sharp differences continue to persist regarding:
- The current state of jurisprudence relating to the nature of economic, social and cultural rights and the issue of progressive and immediate realisation of those rights.
- The definition of “discrimination” under international law and how it relates to disability (including the issue of intersectionality, or multiple discrimination under existing human rights law).
- Private freedoms and obligations of the State.
- d) Elaboration of rights incorporating treaty body interpretations through General Comments.
The Committee convened its seventh session from January 16 to February 3, 2006. During this session the Committee considered the Chair’s Draft of the Convention. Ambassador Don McKay of New Zealand had harmonised the entire discussion of preceding sessions of the Committee in this draft.
This draft attempted a provision for national monitoring but has not touched upon the mechanism for international monitoring. This is mainly due to an effort by the United Nations to reform the existing Treaty Monitoring System.
The human rights community is watching the process with keen interest as the Disability Convention holds the potential to complement existing international standards for the protection and promotion of the rights of persons with disability. Apart from playing the conventional watchdog role, human rights institutions have actively contributed to the treaty elaboration process. They have also acted as a bridge between the civil society and the member States. Their contribution in the monitoring provisions is of significant importance, as this would ultimately ensure the translation of international obligations in practical action on the ground where it matters most.