By James Felakos, Disability Rights Fellow
The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD, or "the Convention") on May 3, 2008, was an historic event that promises to improve the lives of some 650 million people with disabilities throughout the world. The Convention has been called "revolutionary" by some commentators for its holistic and visionary approach to disability. Critical to the CRPD's progressive nature is the replacement of the traditional medical-social welfare model of disability that focuses on the inability of individuals, with the social-human rights model that focuses on capability and inclusion.[1] This approach posits that the real barriers to full participation reside not in the individual, but rather in the "social, attitudinal, architectural, medical, economic, and political environment,"[2] most clearly evidenced by the language of Article 1, which emphasizes that impairments in "interaction with various barriers may hinder...full and effective participation in society on an equal basis with others."[3] In addition, the Convention "combines the type of civil and political rights provided by anti-discrimination legislation (also called negative or first-generation rights) with the full spectrum of social, cultural, and economic measures (also called positive or second-generation rights) bestowed through equality measures."[4]
The CRPD is noteworthy in several other respects: it is the first human rights treaty of the 21st Century, it was negotiated in record time (fewer than five years), and had record input from people with disabilities acting under the umbrella of the International Disability Caucus, an advocacy organization.[5] In little more than one year after being opened for signature, having been ratified by more than the requisite twenty nations, the CRPD became a legally-enforceable treaty. One-hundred thirty-six countries (States Parties) have signed the Convention.[6]
The United States — although it did participate in the negotiating sessions — has thus far chosen not to ratify the CRPD.[7] The Convention has significant overlap with the Americans with Disability Act (ADA). However the Convention changes the framework around which disability is defined in a more positive, inclusive manner. It also addresses the problems individuals with disabilities encounter in society in a more holistic manner, accounting for past discrimination and problems with the current built environment, as opposed to the discrete manner in which the ADA typically addresses problems. Under the Convention, States Parties' are obligated to prevent discrimination against, promote accessibility by, and work to achieve the full realization of economic, social, and cultural rights for persons with disabilities.[8]
The CRPD consists of a Preamble setting forth its visionary philosophy, and fifty Articles. The Convention's purpose is stated in sweeping language: "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."[9] The first five Articles (sometimes referred to as "Cornerstone Principles") state the Convention's purpose, define key terms, articulate fundamental principles, and establish the general obligations of ratifying nations. Articles 6 through 30 set goals and mandates regarding civil and political rights (Articles 12 through 20) and economic, social, and cultural rights (Articles 22 – 30); they also contain several "tailored" provisions covering specific matters such as natural disasters and emergency planning. The remaining Articles address the Convention's monitoring and enforcement mechanisms and other procedural issues (Articles 31 through 50).
The Convention creates a United Nations oversight committee ("the Committee") to monitor compliance with the Convention. An Optional Protocol accompanying the Convention establishes Committee procedures for addressing complaints of Convention violations made against particular State Parties by individuals or groups. By ratifying the Optional Protocol, a State Party consents to the Committee's jurisdiction to address such complaints; in the absence of such ratification, the Committee will not receive or consider complaints regarding that State Party. The Convention does not create a private right of action on its own, and it does not require State Parties to create such a right. Instead, enforcement of the Convention's requirements occurs through the reporting and monitoring mechanisms created in Article 34 and, responses to complaints directed to the Committee by individuals or groups if the State Party has signed the Optional Protocol.
Notably, the Convention's authors were unable — due to philosophical differences — to agree on a definition of "disability." [10] The resulting compromise was to define it parenthetically at paragraph (e) of the Preamble and to offer another non-exhaustive definition in the body of the Convention. The Preamble states:
Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others, . . .
This description of disability as not an individual's condition but rather the flawed interaction between that impaired condition and society's adaptation to it, departs radically from conventional thought and is a core concept of the Convention. "Disability" is then partially defined in Article 1:
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.
These two approaches combine to at least partly define who is to be protected by the Convention.
The Preamble identifies myriad factors underscoring the need for the Convention, including each individual's inherent dignity, worth, and right to equality; the importance of mainstreaming disability issues as part of strategic development; the need to fight discrimination and to protect human rights; the need to improve the living conditions of persons with disabilities; the importance of autonomy and self-determination; the particular risks faced by women and children with disabilities; that the majority of persons with disabilities live in poverty; the crucial need to make all spheres of life accessible to persons with disabilities; and the key importance of the family. Echoing the aspirational concepts highlighted in the Preamble, eight core principles governing the Convention are identified in the text: respect for the individual's inherent dignity, autonomy, and independence; non-discrimination; full participation in society; respect for human diversity; equality of opportunity; accessibility; gender equality; and children's rights.[11]
A number of terms are given broad definitions in the Convention,[12] including "reasonable accommodation," which is described as "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." The concept of "universal design", critical to the Convention (and absent from the ADA) is defined as the design of products, environments, programs, and services which do not require additional adaptation for use by all persons.[13] Finally, "discrimination on the basis of disability" is defined to include conduct which has the purpose or effect of denying equal rights and freedoms.
The CRPD integrates other relevant existing human rights instruments into its text. The CRPD combines the anti-discrimination rights found in the International Covenant on Civil and Political Rights (ICCPR) with rights related to an adequate standard of living and equality found in the International Covenant on Economic, Social and Cultural Rights (ICESCR).[14] This integration follows the United Nations "human right to development" theory, which posits that both sets of rights are necessary to development and must be enforced in tandem.[15] For example, civil rights laws prevent prejudicial harm while equality measures remedy inequities that are already in existence as a result of a history of discrimination.[16]
In addition to these international documents which comprise the International Bill of Rights, the CRPD also specifically includes articles related to the rights of women with disabilities and children with disabilities, the core principles of which are found respectively in the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).[17] These articles do not stand on their own, but rather interrelate to all other CRPD Articles and are meant to be horizontally integrated into the Convention.[18]
If adopted by the United States, the CRPD's unique combination of first and second generation rights and holistic approach to equality would inspire a more comprehensive approach within the U.S. to the myriad injustices still suffered by persons with disabilities. Moreover, if the U.S. were to commit to the CRPD, the human rights of other socially excluded groups, such as ethnic and racial minorities, women and people living in poverty would undoubtedly also be advanced.[19]
Signature and ratification of the CRPD, which would require member States to share best practices and technical assistance, would also signify the commitment of the U.S. to providing critical global leadership on disability rights issues.[20] It would ensure that the United States promotes disability-inclusive development practices at home and abroad, helping to increase equality for persons with disabilities throughout the world, not just within our own country.[21]
[1] Tara Melish, The UN Disability Convention: Historic Process, Strong Prospects, and Why the U.S. Should Ratify, Human Rights Brief, Vol. 14, No. 2, 2007 at p. 37 ("Melish"), http://www.wcl.american.edu/hrbrief/14/2melish.pdf?rd=1.
[2] National Council on Disability, A White Paper: Understanding the Role of an International Convention on the Human Rights of People with Disabilities (2002) ("NCD White Paper") at p. 28, http://www.ncd.gov/newsroom/publications/2002/unwhitepaper_05-23-02.htm.
[3] CRPD, Article 1.
[4] Michael Ashley Stein, A Quick Overview of the United Nations Convention on the Rights of Persons with Disabilities and Its Implications for Americans with Disabilities, 31 Mental & Physical Disability L. Rep. 679, 679 (2007) ("Stein, Overview").
[5] The text of the Convention, reports of the negotiating sessions leading to its completion, lists of the myriad non-governmental organizations participating in the sessions, lists of the countries that have signed and ratified the Convention, and a wealth of additional background information are available at http://un.org/esa/socdev/enable.
[6] As of October 23, 2008, there are 136 signatories to the Convention, 79 signatories to the Optional Protocol, 41 ratifications of the Convention, and 25 ratifications of the Optional Protocol.
[7] Of the current major party presidential candidates, only Senator Obama has indicated that he would sign the Convention.
[8] CRPD, Article 4.
[9] CRPD, Article 1.
[10] See International Disability Caucus News Page, Feb. 1, 2006, http://conventionyes.org/content.cfm?ID=58547F.
[11] CRPD, Article 3.
[12] CRPD, Article 2.
[13] This concept has relevance to the current debate within the United States about how to revamp our currency so as to make bills of different denominations distinguishable from one another to the blind, as a federal appeals court has recently ruled is required. Am. Council of the Blind v. U.S. Treasury, 525 F.3d. 1256 (C.A.D.C. 2008).
[14] Civil and Political Rights are usually termed first-generation or negative rights, whereas Social, Economic and Cultural Rights are termed positive or second-generation rights. Stein Overview.
[15] Stein, Overview at 679-80.
[16] Id.
[17] The United States has failed to ratify the CRC or CEDAW.
[18] Stein, Overview at 679.
[19] Michael Ashley Stein & Penelope J.S. Stein, Beyond Disability Civil Rights, 58 HASTINGS L.J. 1203, 1240 (2007). These groups will also benefit from the rights protections found within the Convention because the category of persons with disabilities intersects significantly with other socially marginalized groups. In addition, measures taken to ensure the full breadth of rights located within the UNCRPD will also benefit these other groups. ("Stein, Beyond Disability").
[20] Stein, Overview at 680.
[21] Stein, Beyond Disability at 1240.