JURIST Guest Analyst Sally Chaffin is the author of "Challenging the United States Position on the United Nations Convention on Disability," 15 Temple Political & Civil Rights Law Review 121 (Fall 2005) and a 2006 graduate of the University of Cincinnati College of Law. JURIST Guest Analyst Katherine Guernsey is an international lawyer and adjunct professor at the American University School of International Service; she participated in all sessions of the treaty negotiations, providing legal counsel to governmental and non-governmental delegations.

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On March 30, 2007, the United Nations Convention on the Rights of Persons with Disabilities (CPRD) was opened for signature. Adopted by the UN General Assembly in December 2006, the CPRD became one of nine core international human rights conventions, and as such is of great relevance for anyone working or studying in the field of human rights. Though it is beyond the scope of this analysis to examine more nuanced issues of interpretation, we hope it will nevertheless assist those interested in exploring such questions of interpretation in the future.

I. Background

It is estimated that there are at least 650 million people with disabilities in the world, or at least ten percent of any given population, with at least eighty percent living in developing countries. [1] In many societies people with disabilities are among the most marginalized, subject to wide-spread discrimination and abuse of their human rights. As a result, people with disabilities are placed at risk of poverty, which in turn exacerbates their marginalization and segregation. [2] Fewer than fifty countries currently have disability-specific anti-discrimination legislation, meaning there are few domestic mechanisms in place to effectively address this situation.

Despite the dearth of domestic legislation, there are a variety of core international human rights conventions [3] and disability-specific human rights instruments [4] that pre-date the drafting of the CRPD. Given these existing instruments, it is reasonable to ask why a specific convention addressing the human rights of persons with disabilities is needed. Although people with disabilities are subjects of the existing human rights instruments, and as such are just as entitled to enjoy the human rights articulated in them as other people, the human rights reality faced by most people with disabilities falls far short of these standards. Not only have the existing human rights standards not been enjoyed by people with disabilities, but the international human rights monitoring mechanisms have typically failed to apply these standards to people with disabilities. [5] Governments generally do not reference the situation of people with disabilities in their reports to the treaty monitoring bodies, and the treaty monitoring bodies have historically not pressed governments for this information, leading some to characterize people with disabilities as effectively “invisible” in the international human rights system. [6] This situation is compounded by the lack of legally binding international standards addressing human rights in the disability context. Among the core human rights conventions only the Convention on the Rights of the Child expressly references disability, [7] and the UN Standard Rules, though reasonably comprehensive in its coverage of disability issues, is not legally binding.

In addition to these factors, another issue contributed to calls for the adoption of a legally binding instrument focusing on the human rights of people with disabilities. In 2000, world leaders adopted the Millennium Development Goals (MDGs), which set forth internationally agreed upon development targets in areas such as poverty, health, education and environmental sustainability. [8] In time though, it became clear that the MDGs would be unattainable as long as the human rights of people with disabilities were ignored and they continued to be marginalized from society. [9] Concerns over the attainability of the MDGs in the absence of meaningful inclusion of people with disabilities in societies led many developing countries to be at the forefront of the process to develop the CRPD. [10]

II. The drafting and adoption process

A. Mechanics of drafting the CPRD

In response to this need, the CRPD drafting process was initiated in December 2001, when the government of Mexico successfully sponsored a General Assembly resolution calling for the establishment of an Ad Hoc Committee (AHC) 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 fields of social development, human rights and non-discrimination and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development. [11]

As a temporary sub-body of the General Assembly, the AHC met for a total of eight sessions at UN Headquarters in New York between July 2002 and December 2006, with each session lasting approximately two weeks. [12] In addition, a temporary sub-body of the AHC, known as the Working Group, met for two weeks in January 2004, for the purpose of drafting the “Working Group Text” that later formed the basis for negotiations. Subsequent AHC sessions provided opportunities for delegations to read, consider, and respond to the draft text, as well as propose amendments. Amendments for which there was sufficient support were later synthesized in two further texts, the “Chair’s Text” (issued in October 2005) and the “Working Text” (issued in February 2006).

In August 2006, the AHC reached final agreement on the content of the draft text, and forwarded the consensus text to a technical Drafting Committee: another temporary sub-body of the AHC charged with ensuring linguistic concordance between the six official UN languages, and internal consistency in use of concepts and terms. The final product of this Drafting Committee was accepted by consensus by the AHC at a brief “resume” meeting of its Eighth Session on December 5, 2006, and immediately transmitted to the General Assembly (GA). The GA unanimously adopted the CRPD on December 13, 2006, making it, as then UN Secretary General Kofi Annan noted, the most rapidly negotiated treaty of its type in the history of international law. [13] The Convention was opened for signature at UN Headquarters in New York on March 30, 2007, where over 80 countries and one regional integration organization (the EU) signed and one country (Jamaica) ratified, setting a record for the most signatures for any UN human rights convention on its opening day. The CRPD will enter into force on the thirtieth day after the deposit of the twentieth instrument of ratification or accession. It is widely expected that entry into force will occur within the next year.

B. Unique aspects of the negotiations

Not only was the drafting process unique in its brevity and for the hosting of the negotiations by the General Assembly, [14] but the negotiations are particularly notable for their inclusive nature. The CRPD negotiations were arguably more inclusive of civil society than any other UN process to date, with disabled people’s organizations (DPOs), other non-governmental organizations (NGOs), inter-governmental organizations (IGOs), and also national human rights institutions (NHRIs) all participating in the convention development process. Not only were representatives of these groups entitled to observe all sessions of the AHC, but they were also entitled to speak, to receive documents, and to freely interact with government delegations. [15] This process was further aided by the introduction of a specific accreditation process for the AHC, designed to facilitate the participation of groups not possessing more formal consultative status with the UN. [16]

During the Working Group meeting the inclusion of non-governmental representatives was taken to an unprecedented level, with one NHRI and twelve DPO representatives being granted full membership in the Group, each with rights of participation equal to those of the government representatives. This level of participation facilitated access to the wealth of experience and expertise in the international disability community, and also respected the disability community’s principle of “Nothing About us Without Us.”

III. Understanding the Convention

A. Guiding Principles

The CRPD is unusual among human rights conventions for its inclusion of an Article specifically addressing the guiding principles of the Convention. Typically such principles must be ‘divined’ from the text by the appropriate body mandated to interpret and monitor implementation of the instrument. However, drawing upon other fields of international law (especially the environmental field, where such provisions are common) and in deference to the need to ensure accessibility of the text, the AHC chose to include a specific article outlining the applicable principles. The principles as expressed in Article 3 are:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

As with the other articles of general application (discussed below), Article 3 is to be applied to the text as a whole, and its principles should be adhered to in both the interpretation and implementation of the CRPD.

B. Overview of structure and content of the CRPD

The first structural feature of note is the extensive use of article headings, which is an unusual feature in UN human rights conventions. Though the headings were initially included to assist the drafters in navigating the draft text, it was decided to retain them in order to make the CRPD more readily accessible to all users.

Though the CRPD does not explicitly do this, its provisions can be divided into a number of sections: [17]

• Preamble – Consistent with other human rights conventions, the CRPD begins with a non-legally binding preamble, which sets forth the rationale for the Convention. In particular it highlights the historic marginalization and discrimination faced by people with disabilities, the nature of disability as an evolving concept, and also the need to be attentive to the situation of women, children, and indigenous persons with disabilities.
  
  
• Introductory articles (Articles 1 & 2) – Again, drawing on prevailing practice in the international environmental law field, the CRPD includes a “purpose” article (Article 1), in addition to an article providing definitions (Article 2). Though some AHC delegations suggested that Article 1 was superfluous in light of the Convention’s title and Preamble, the decision was made to retain the article in order to prevent any ambiguity in interpretation. Article 1 also provides a non-exhaustive list of people with disabilities covered by the CRPD’s provisions. Article 2 sets forth a number of important definitions, including “discrimination on the basis of disability,” “reasonable accommodation,” and “universal design.” It should be noted that neither “disability” nor “persons with disabilities” is defined anywhere in the Convention, in deference to the evolving understanding (as noted in Preambular Para (e)) of disability as an interaction between persons with impairments and the attitudinal and environmental barriers that hinder their full and effective participation in societies on an equal basis with others.
  
  
• Articles of general application (Articles 3-9) – These articles address concepts and issues relevant to the interpretation and implementation of the CRPD. Consequently, all other articles must be read and understood in light of Articles 3-9. As discussed above, Article 3 elaborates general principles. Article 4 addresses the general obligations of States Parties, and includes such requirements as the consultation and active involvement of people with disabilities and their representative organizations in the development and implementation of legislation and policies to implement the CPRD. [18] Article 4 also addresses the progressive realization of economic, social and cultural rights and, consistent with international law, highlights the obligation of States Parties to immediately implement those economic, social and cultural rights provisions that are capable of immediate implementation.
  
  Article 5 addresses equality and non-discrimination, and the need to ensure that people are not subjected to discrimination on the basis of disability. When read in conjunction with the definition of “discrimination on the basis of disability” in Article 2, Article 5 prohibits disability-based discrimination, regardless of whether the person discriminated against self-identifies as, or is considered by others to be, a disabled person. In this regard the CRPD approaches discrimination on the basis of disability in a manner similar to approaches often seen regarding discrimination on the basis of race or ethnicity, ie. it views “disability” more as a social construct (like race), rather than an inherent characteristic.
  
  Articles 6 and 7 address two sub-populations of people with disabilities: women with disabilities and children with disabilities. Given the multiple discrimination faced by these groups, the drafters decided to both mainstream gender and children’s issues, as well as highlight these groups in separate articles. With respect to children with disabilities, the inclusion of a separate article also reflects the drafters’ desire to provide an updated and more principled approach to the issues of children with disabilities than that adopted in Article 23 of the Convention on the Rights of the Child.
  
  Articles 8 and 9 highlight issues around a number of societal barriers to the full and effective inclusion of people with disabilities in societies, specifically attitudinal, physical, informational and communication barriers. Article 8 obligates States Parties to engage in awareness-raising measures, especially with regard to combating stereotypes, prejudices and harmful practices, and promoting respect for the human rights of people with disabilities. Article 9 explores issues of accessibility both in terms of steps to be taken and areas of focus (such as transportation, the physical environment, information etc.). It should be noted that during the negotiations some delegations sought to identify Article 9 as subject to progressive realization, but it was quickly pointed out that its provisions are equally relevant to the implementation and enjoyment of civil and political rights, as well as economic, social and cultural rights. Thus, questions of application of the principle of progressive realization to Article 9 will likely have to be contextualized according to the nature of the rights implicated in the application of Article 9.
  
  
• Specific Articles (Articles 10-30) – Too many to explore in full here, Articles 10-30 address a wide variety of human rights issues. In conjunction with prior articles, Articles 10-30 attempt to elaborate human rights in the context of disability and the experiences of people with disabilities, in order to clarify the obligations of governments with regard to the human rights of people with disabilities. In this regard the articles address the full range of human rights (encompassing both civil and political rights as well as economic, social and cultural rights), and challenge traditional notions of disability as purely a ‘health’ or ‘social welfare’ issue. Of particular note is Article 12, which addresses issues of legal capacity. Breaking away from the traditional domestic approach of denying legal capacity to people with disabilities, Article 12 recognizes “that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life,” and obligates States Parties to provide support that may be needed to enable people with disabilities to exercise that capacity. Theoretically the support provided could exist on a continuum, from no support to full support depending upon an individual’s circumstances, and oversight of this support (in order to prevent abuses) would similarly be proportional to the degree to which support measures “affect the person’s rights and interests.” Though the approach of Article 12 differs markedly from that taken in many domestic contexts, the Ad Hoc Committee agreed to adopt Article 12 with the understanding that failure to recognize the legal capacity of people with disabilities has historically deprived many people with disabilities from full enjoyment of their human rights.
  
  
• Implementation and monitoring measures (Articles 31-40) – Again borrowing from international environmental law, Articles 31 and 32 address measures relevant to effective implementation of the CRPD. Article 31 addresses the collection of data and statistics – not with regard to monitoring of implementation of the CRPD, but with regard to information that will be needed in order for governments to “formulate and implement policies to give effect to” the Convention. Article 32 addresses “international cooperation,” which is broadly understood to encompass not only financial assistance but also the international sharing of knowledge and experiences. Although international cooperation is a concept often referenced in human rights conventions, Article 32 represents the first time the concept has been elaborated so thoroughly. Article 40 represents the first time that a conference of States Parties has been established with regard to a UN human rights convention. Though a short article, it is anticipated that the conference will draw on the experiences of conferences of States Parties utilized in the environmental and weapons control arenas, where such conferences have been used to great effect to facilitate international cooperation and interaction between governmental, non-governmental, and inter-governmental actors.
  
  Article 33 addresses national level monitoring of implementation of the CRPD. It is widely anticipated that national human rights institutions, which by definition under the Paris Principles must be “independent,” will have a critical role to play in achieving the national level monitoring envisioned in Article 33. Articles 34 – 39 address international level monitoring, and call for the establishment of a committee of experts (including people with disabilities) who will be mandated to consider reports of States Parties and interpret the provisions of the CRPD. Pursuant to the Optional Protocol to the CRPD (which was adopted and opened for signature at the same time as the CRPD), the committee will also be mandated to receive communications (complaints) from individuals and groups alleging violations by CRPD States Parties who are also parties to the Optional Protocol.
  
  
• Final provisions (Articles 41-50) – Articles 41- 50 contain final provisions typical of a human rights convention, and address such issues as depository, signature, consent to be bound, entry into force, and reservations. Notable though is the inclusion of Article 44, which allows “regional integration organizations” to formally consent to be bound by the CRPD to the extent of their competence. Thus, Article 44 facilitates the ability of entities such as the European Union (EU) to be bound by provisions of the CRPD, and indeed the EU (acting as the “European Community”) was one of the first to sign the Convention.

V. Conclusions

Though it is acknowledged that the CRPD cannot be a panacea for the problems faced by people with disabilities around the world, it is hoped that it will nevertheless provide an additional tool for people with disabilities and governments to use in ensuring the full enjoyment of human rights by people with disabilities on an equal basis with others. Specifically, it is hoped that the CRPD will: [19]

• Increase the visibility of persons with disabilities, both within the UN human rights system and in society more generally
  
  
• Clarify the human rights obligations of governments to persons with disabilities, and ensure that governments who become States Parties to the convention make legislative and programmatic changes at the national level to implement their legal obligations under the convention
  
  
• Encourage existing human rights monitoring bodies to pay attention to disability issues when they review compliance of governments with the other core human rights conventions
  
  
• Encourage other bodies within the UN system (such as UNICEF, UNIFEM, WHO, UNESCO, and others) to pay attention to disability issues in their work
  
  
• Establish systems for comprehensively monitoring the human rights situation of persons with disabilities around the world
  
  
• Establish systems for international cooperation, through which governments, disability organizations and other actors can share knowledge and ideas and work together to improve the lives of persons with disabilities.

The true impact of the CPRD remains to be seen. As former Secretary of the UN, Kofi Annan, stated “[o]nce the Convention is adopted, signed and ratified, it will have an impact on national laws that will transform how people with disabilities can live their lives. It will offer a way forward to ensure that those with disabilities enjoy the same human rights as everyone else -- in education, employment, access to buildings and other facilities, and access to justice.” However, “[i]t will not happen overnight. Much work remains to be done to produce the results that are aspired from the Convention.” [20]


Notes

1. “Frequently Asked Questions Regarding the Convention on the Rights of Persons with Disabilities,” UN Department of Economic and Social Affairs, available: http://www.un.org/esa/socdev/enable/convinfofaq.htm

2. Making Inclusion Operational: Legal and Institutional Resources for World Bank Staff on the Inclusion of Disability Issues in Investment Projects (World Bank Law and Development Working Paper Series no.1) (Katherine Guernsey, Alberto Ninio, Marco Nicoli) pp 8-10. Available:

3. At the time the CRPD development process was launched in December, 2001, the following core international human rights conventions were in existence: International Covenant on Economic, Civil and Cultural Rights; International Covenant on Civil and Political Rights, International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination Against Women; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Rights of the Child; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. At that time the International Convention for the Protection of All Persons From Enforced Disappearance was still in draft form and had not yet been adopted.

4. The most comprehensive and widely accepted of which is the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities.

5. A notable exception here is General Comment No. 5 of the Committee on Economic, Social and Cultural Rights, which examines implementation of the Covenant on Economic, Social and Cultural Rights in the context of situations faced by people with disabilities.

6. See generally “Human Rights Are for All: A Study on the Current Use and Future Potential of the UN Human Rights Instruments in the Context of Disability,” Gerard Quinn & Theresia Degener et al (study commissioned by the OHCHR), 2002. Available at: http://www.ohchr.org/english/issues/disability/study.htm

7. Specifically, Article 23 of the Convention on the Rights of the Child explicitly addresses children with disabilities.

8. See generally: http://www.un.org/millenniumgoals/

9. For example, it will be impossible for the goal of “education for all” when UNESCO estimates that fewer than 2% of disabled children worldwide are enrolled in schools. http://portal.unesco.org/education/en/ev.php-URL_ID=38522&URL_DO=DO_TOPIC&URL_SECTION=201.html

10. General Assembly Resolution 56/168 of 19 December, 2001, was co-sponsored by numerous countries, especially developing countries, such as Costa Rica, Ecuador, El Salvador, Morocco, Sierra Leone and South Africa.

11. GA Res 56/168. It should be noted that the Commission on Human Rights (referenced in the AHC mandate statement) no longer exists, and has instead been replaced by the Human Rights Council as part of the wider UN human rights body reform process.

12. Each AHC session lasted for ten working days, with the exception of AHC7, which lasted for fifteen working days in order to facilitate a complete reading of the Chair’s Text.

13. “Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities,” Official Statement of the UN Secretary General, SG/SM/10797, 13 December, 2006. Available at: http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm

14. Historically the now defunct Human Rights Commission and its sub-body (the Sub-Commission on Human Rights) oversaw the development of legally binding human rights instruments. Failure to reach consensus within the Commission on the need for a disability-specific treaty prompted Mexico to turn to the General Assembly as an alternative host for the negotiations. By the second AHC session opposition to a disability-specific human rights convention had dissolved, and all AHC members, including initial opponents such as the EU, agreed that such an instrument was necessary.

15. The modalities of participation are set forth in the decision of the Ad Hoc Committee provided in the report of its first session, A/57/357.

16. Typically, only groups with “ECOSOC Consultative Status” are entitled to participate in the work of the UN General Assembly, and even then the modalities of participation are more restrictive than those permitted for the AHC. The AHC accreditation process was formally agreed to be the UN General Assembly in its resolution 56/510 of 26 July 2002.

17. To facilitate coverage the CRPD’s fifty articles, they will be addressed below in the context of these sections. The full text of the CRPD is available at: http://www.un.org/esa/socdev/enable/conventioninfo.htm

18. CRPD Article 4(3).

19. The following are taken from the Disabled Peoples’ International (DPI) “Implementation Toolkit”: http://www.icrpd.net/implementation/en/toolkit/section2.htm See also, White Paper - Understanding the Role of an International Convention on the Human Rights of People with Disabilities, United States National Council onDisability, May 23, 2002.
Available: http://www.ncd.gov/newsroom/publications/2002/unwhitepaper_05-23-02.htm

20. Statement of former Secretary-General Kofi Annan, SG/SM/10797 (December 13, 2006).