On 25 August 2006, the United Nations’ Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities adopted the draft International Convention on the Rights of Persons with Disabilities and its Optional Protocol. The Ad Hoc Committee has forwarded the draft convention and optional protocol to the General Assembly for adoption at its 61st session in 2006. The draft convention is the culmination of eight sessions of negotiations of the ad hoc committee which the General Assembly established in resolutions 56/168 of 19 December 2001. The only Pacific island country that consistently participated in these negotiations and discussions was Vanuatu.
This is truly an historic achievement for the 600 plus million people with disabilities around the world of which approximately 800,000 live in Forum Island Countries (FICs) (approximately 10% of the total populations have some kind of disability).
The convention will protect the human rights of people with disabilities and further enhance the promotion of a “rights-based” approach to policy and legislation.
The UN Secretary General in his message regarding the convention stated that “it is worth noting that people with disabilities have hitherto lacked adequate protection, and hopes that this long overdue convention will mark the beginning of a new era in which people with disabilities will have the same rights and opportunities as everyone else.”
This is very relevant in FICs where the rights and needs of people with disabilities have not received the proper attention of Governments and communities. When the General Assembly endorses the convention all member states are encouraged to support ratification.
Purpose of the Convention
The Convention states that its purpose 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. The convention goes on to say that persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with physical, social or cultural barriers and attitudes may hinder their full and effective participation in society on an equal basis with others.
Current situation and effects of the Convention
Following the endorsement by Forum Leaders in 2004 of the Biwako Millennium Framework for action toward a barrier-free, rights-based and inclusive society for all in Asia and the Pacific (BMF), the Pacific Plan included an explicit reference to implementation of the BMF which is largely consistent with the provisions outlined in the new Convention. Many FICs are already addressing priorities identified in the BMF and therefore are already taking steps to addressing Convention obligations.
Now the Convention on the Rights for People with Disabilities is in place it will surely strengthen the BMF in terms of its focus and reach. The passing of this treaty at the General Assembly and the signing for ratification by our FICs will begin to make a difference where it counts the most. We are encouraged to do our part wherever we are to ensure that the momentum being created becomes a permanent part of our society.
FICs have experience in confronting the distinctive and undesirable difficulties faced by persons with disabilities. This convention is addressing squarely the multifaceted issues that need to be clarified in order to ensure that persons with disabilities can enjoy their human rights on an equal basis with everyone else.
The Treaty will help in making our facilities, our methods of work, even our attitudes and understanding geared towards treating persons with disabilities equally, towards accommodating and respecting differences while at the same time acknowledging equality in their rights and dignity.
FICs have much to learn and much to change from this treaty and the experience of achieving such a milestone has taught us many useful lessons.
The role of the convention
This new treaty will play a key role in affirming the rights of persons with disabilities and explicitly spell out the action needed to implement them.
Moreover it will also raise awareness about the human rights of persons with disabilities not least within the existing human rights mechanisms, as well as our own government’s policy division in FICs.
Key areas of the Convention
Consideration has been given to a broad range of rights that are fundamental to all human beings, covering a number of key areas such as accessibility, personal mobility, health, education, employment, habilitation and rehabilitation, participation in political life, and equality and non-discrimination.
The convention marks a shift in thinking about disability from a medical or social welfare concern to a human rights issue, which acknowledges that societal barriers and prejudices are themselves disabling. The Convention will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres.
FICs want to congratulate all those involved for the extent to which they have acknowledged the need for innovative measures and approaches to ensure equality. We thank the Government of New Zealand for enabling Ambassador Don McKay, New Zealand’s Permanent Representative to the UN to undertake the role of chairing the latest session which lead to this Convention. Inclusive in this process were many others including civil societies whose contributions towards this great achievement should be acknowledged as well.
A change in the level of thinking is needed at different levels of society if we are really going to eliminate discrimination against persons with disabilities and to provide reasonable accommodation to ensure they can claim and enjoy their rights.
Women and Children with disabilities
The convention provides for special protection for children with disabilities, while at the same time recognising the rights that all children are entitled to under the Convention for the Rights of the Child (CRC).
In addition the Convention takes account of the specific needs of women with disabilities recognizing that the multiple discrimination faced by women with disabilities, requires specific attention and effort to ensure they enjoy their rights equally and that women with disabilities are empowered, rather than rendered more vulnerable as affirmed in the Convention of the Elimination of Discrimination against Women CEDAW).
The Convention recognizes the need to address stereotypes and prejudices that are at the root of so many of the barriers faced by persons with disabilities; barriers that prevent them from obtaining equal access to education, to employment, to full participation in decision-making and to all their other rights.
But it is not only the public sphere that should concern us. Persons with disabilities are entitled to full equality in the enjoyment of their rights not only with regard to public institutions and services but also in their dealings with society and in the privacy of their own homes and personal relations.
Families, the private sector and the public at large are equally in need of access to appropriate and accurate information, as they are often also in need of support as well as encouragement and pressure so that harmful attitudes and practices based on misconception and misunderstanding are eliminated.
FICs need to understand that some of the efforts needed to implement this convention may imply considerable cost.
The General Assembly has specifically noted that this treaty must address social development, as well as human rights. Ensuring respect for human rights always has resource implications.
International human rights standards both for civil and political rights and for economic and social and cultural rights impose on States a series of obligations, some of which have been labeled ‘negative’ obligations, to refrain from certain action - and others ‘positive’ obligations, the obligation to adopt specific measures.
The resource implications in the implementation of both types of obligations can be significant. In many cases, the efforts deployed by the State will be progressive and proportional, linked to the availability of resources although some rights civil and political as well as economic, social and cultural impose immediate obligations on States. In recognition of the partnership needed for such commitment, FICs are urged to work with our major development partners, namely NZAID, EU, AusAID, JICA etc. towards the implementation of the Convention.
The concept of reasonable accommodation is mentioned in the Convention and this entails the acknowledgement that disproportionate burdens cannot be imposed to provide absolute equality of opportunities, much less equal outcomes.
But available resources must be used in a non-discriminatory manner and accommodation of specific difference must be provided where it does not impose an unreasonable burden. There will also be instances where the current distribution of resources may be discriminatory and require correction.
The concept of “reasonableness” of State action is a well known legal concept and long used in adjudication in the field of civil and political rights. The growing body of jurisprudence at national and regional levels illustrates that it can be similarly employed to assess the extent to which States respect their obligations in the area of economic, social and cultural rights.
Such rights may not be fully achievable for all on an immediate basis, yet they remain rights. The obligations of States in that domain can be fully enforced while taking into account their resource constraints.
Reform will not happen overnight but because the task of genuine improvement is complex and challenging, FICs are encouraged to give their full attention and efforts to this Convention. In the meantime, all FICs are urged to ensure that any monitoring mechanism established by this treaty reflects the lessons that we have learnt and the best practices of the existing system in the region.
Provision of maximum opportunities
International monitoring must provide maximum opportunities for informed national deliberation and reflection on how to improve enjoyment of human rights, must provide useful advice and guidance to States and help raise awareness, must promote international cooperation, and must facilitate full participation of those whose rights are in question and provide effective remedies for those whose human rights are violated.
It is envisaged that deliberations will keep those principles in mind and ensure that any new mechanism established has the flexibility to adjust to any future efforts to strengthen the overall monitoring system.
FICs recognise the excellent collaboration between the Department of Social and Economic Affairs and the office of the UN Human rights commissioner and all stakeholders, which has allowed them to contribute to the work of the UN Ad Hoc committee on the convention in spite of limited resources. FICs acknowledge the examples of how different actors can work together to advance human rights and believe that such positive examples reflect the importance of the great work done on the realization of the convention for people with disabilities.
The Convention challenges al FICs to be committed to increasing awareness of the human rights challenges faced by persons with disabilities.
The Convention provides an excellent framework to ensure the rights of people with disabilities and FICs are encouraged to seriously consider signing the Convention on the Rights for Persons with Disabilities.