Disability Rights: The Conversation Between International Law and Domestic Law

Vangelis Nikias, CCD CRPD Project Manager

Introduction

The motto of the Council of Canadians with Disabilities is: "a voice of our own".

During the negotiations of the United Nations Convention on the Rights of Persons with Disabilities: "nothing about us without us" became, progressively, the unifying force, the common reference point around which increasing numbers of people rallied.  "Nothing about us without us" not only influenced the elaboration of the Convention, it is, in fact, written into its provisions, including Art. 4 which sets out the general obligations agreed upon by States Parties.

The document I am using today to share with you CCD's position is written in Braille, the writing and reading system that has enabled blind people around the world to partake of the gift of literacy, a defining characteristic of civilized humanity.

You may know that Louis Braille is now considered a national hero in France.  He is also honored by blind and sighted people around the world for his contribution to our collective and personal advancement.

What you may not know, however, is that the establishment of the Braille system as the means of literacy for blind people has been the fruit, the outcome of a struggle by Louis Braille and other blind persons for a good part of the 19th century.

You see, for some time, well-meaning, mostly sighted educators wanted to educate blind pupils using various symbols that looked appropriate to the eye of the sighted.  The blind, on other hand, advocated that what should, surely, matter is what felt appropriate and effective to the touch of the blind readers and writers.  

I am not going today into the details of these disputes, known in history as the “war of dots”, except to say that what links “a voice of our own”, “nothing about us without us” and the war of the dots is a common thread, that is, the effort by persons with disabilities to achieve self-affirmation in matters and decisions that affect our lives.

This is the essence of today’s disability advocacy movement.  It has, progressively, come to adopt, adapt and articulate a human rights discourse.  Currently, the most advanced self-representational organizations of persons with disabilities, both internationally and in Canada, espouse a human rights perspective.

Canada

The Canadian story, at the national level, of this thread, the constant effort by persons with disabilities to achieve self-affirmation, has its own landmark.  It is linked to what, we hope, many of you are studying, the Canadian Charter of Rights and Freedoms.

Did you know that the first draft of the Canadian Charter of Rights and Freedoms did not include protection from discrimination against Canadians with disabilities?  It was left to a then young organization, the Coalition of Provincial Organizations of the Handicapped (COPOH), subsequently renamed as the Council of Canadians with Disabilities, to take up the challenge of publically arguing for inclusion.

"To fail to prohibit discrimination on the grounds of disability in any constitutionally entrenched Charter of Rights and Freedoms which does prohibit discrimination on the grounds of race, national or ethnic origin, color, religion, sex or age is tantamount to rejecting the fundamental humanity of disabled Canadians."

The above words, written by Allan Simpson in 1980 (the then Chairperson of the Coalition of Provincial Organizations of the Handicapped), were aimed at Canada's legislators, who, at that moment were willing and prepared to ignore the rights of Canadians with disabilities.  People with disabilities fought back and proved to the world that the voices of the disenfranchised can make a difference.

While the impact of Section 15 on our understanding of equality, non-discrimination, and the kind of society we want, is evolving, we argue that if disability had not been included, we would, today, face even more barriers.  In other words, the Charter has had a preventative effect.  It has empowered Canadians with disabilities, along with other disadvantaged groups, to pursue our goal of an inclusive and accessible society.

Inclusion of disability in the equality provision of the Charter made Canada one of the first countries in the world to protect the rights of persons with disabilities in the constitution.  Having participated in the CRPD negotiations, I can also assure you that it had a tangible and positive influence on the elaboration of CRPD itself.  The Charter was one of the reference points during the elaboration process of CRPD.  In fact, article 5 of the Convention echoes recognizably our Charter and our human rights law.

CRPD

CRPD is the first UN human rights instrument of this century.  Canada ratified it in 2010 following a unanimous resolution of the House of Commons and a wide consultation process.  It is our view and hope that CRPD will prove a useful instrument in the effort to achieve an inclusive and accessible society.  Not only is CRPD consistent with our constitution and human rights legislation in principle, it comes, in fact, to provide specific, concrete measures that can be implemented to give effect to the principles of equality and non-discrimination.   

Developing an implementation plan is, we suggest, the logical follow-up to ratification.  It is also necessary if we are to make further progress in this historical, transformational process. 

In Canada, working together over the last 30-40 years, the disability rights movement, the government sector, and other allies, we have made significant progress.  CCD has compiled a record of this effort in an anthology called: Celebrating Our Accomplishments, available at www.ccdonline.ca.

The fact of the matter is, though, that Canadians with disabilities continue to experience disproportionate poverty, higher rates of unemployment, lack of needed disability-related supports and barriers to our full participation in society.  

According to the World Health Organization (WHO), World Disability Report (WDR): “More than one billion people in the world live with some form of disability…”.  In his Forward to the WHO World Disability Report, Professor Stephen W Hawking, the internationally acclaimed theoretical physicist, states: “It is my hope that, beginning with the Convention on the Rights of Persons with Disabilities, and now with the publication of the World Report on Disability, this century will mark a turning point for inclusion of people with disabilities in the lives of their societies.”

Why is “a turning point” needed?  In CRPD’s preamble, for example, States Parties have recognized that persons with disabilities experience marginalization, poverty and discrimination.  The situation is not limited to economically under-developed countries.  In Eldridge, the Supreme Court of Canada has acknowledged that: "It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization." 

In order to address the above-described situation, concerted action is required to change our society and to remove existing barriers.  The views, the voice of persons with disabilities, must be part of this process.  States Parties to CRPD have agreed to this in Art. 4.3, where it is stated:

“In the development and implementation of legislation, and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.”

We believe that the above state obligation is important because it formulates in international law a domestic practice which has proven effective.  Without the voice of persons with disabilities, the Charter would not have included in S. 15 the equality of persons with disabilities.  Art. 4.3 of CRPD is really a contribution to the very concept and practice of democracy. 

In fact, enabling the democratic participation of organizations of persons with disabilities has also been an important Canadian innovation.  Much of the progress we have achieved thus far has been made possible through government support for the independent voice of persons with disabilities.  There are signs that this approach may be at risk.  It is imperative, therefore, for Canada to continue to support representative organizations of persons with disabilities.  We suggest that such support is also called for by CRPD’s Art. 29, which states, in part:

“States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: … (b) Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
…
(ii) Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.”

This position of safeguarding the independent voice of persons with disabilities is closely linked to one of the principles articulated in CRPD.  In Ar. 3, States Parties have agreed on the importance of: 

“(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;”. 

We strongly believe that enabling the collective self-representation by persons with disabilities is inextricably linked to the exercise of choice and autonomy. 

While I am on the subject of CRPD principles, let me share with you another principle, (d).  It states:

“(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;”

This is important because it marks at the level of a United Nations convention, the paradigm shift from the long entrenched understanding of disability as a deficit and a deviation.

Let me now put forward our views in relation to three key issues of implementation.  They are the issues of compliance, progressive realization and monitoring. 

In article 4 of the CRPD, States Parties, including federal states, have undertaken “to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.  To this end, States Parties undertake:

(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;”.

This is a very significant and key commitment, as a whole.  I do, however, want to underline two phrases in particular: “full realization of all human rights” and “for all persons with disabilities”.

This undertaking places firmly on the agenda the question (and it is always a question) whether we are achieving “full realization… for all persons”.  In other words whether we are compliant with an international human rights instrument, an instrument that is consistent with and, in fact, inspired by Canadian human rights principles, and an instrument that we ratified only three years ago.

The question of compliance, I submit, must be considered in a context of change.  To some extent, this is captured by the principle of progressive realization.  But the context of change involves other aspects.  It involves changes, possibly, in our legislation and, certainly, in our practices.  Otherwise, we would have to conclude that we have already achieved “nirvana” for Canadians with disabilities.  Would anyone seriously claim that?  Or would anyone argue that we are a static society?  For one thing, our technological progress creates new opportunities for access, inclusion and participation.  And, unfortunately, if we are not vigilant, it also creates new barriers. 

The idea of change is built right into the Convention itself.  Let me mention here some specific examples: Disability itself is understood “as an evolving concept” and it always occurs in interaction with the environment. 

The relevance of technological change is recognized in article 4, where states parties have agreed “(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities,”..

To reiterate, then, existing barriers to full participation must be removed.  New barriers must be prevented from coming into being.  And in order to accomplish all that, we must not hesitate to make changes at the legislative, policy or practice levels.

In relation to social and economic rights, Canada has the obligation “to take measures to the maximum of its available resources” (Art. 4.2 of CRPD).  And, in accordance with Art. 28, persons with disabilities and their families have the right to an adequate standard of living, and “to the continuous improvement of living conditions”.  I draw your attention here to the adjective “continuous”. 

It is CCD’s view that the CRPD sets a framework for new policy development and creates a government obligation through the “progressive realization” clause for continuous improvements and removal of barriers that will make Canada more inclusive and accessible.  Progressive realization is not a postponement strategy but rather a positive obligation for moving forward to improve the status of Canadians with disabilities.  This is the combined effect of Articles 4.2 and 28 of the Convention.

CRPD in art. 33 contains a definite role for persons with disabilities in the monitoring of Convention implementation.  It states:

“3. Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.”

CCD and other disability organizations have already endeavored to fulfill the role envisaged in the above provision.

We have provided concrete and constructive comments to the outline of the first Canadian report.  We understand that the report is now in the final stages of approval.  Consistent with our record, we will review it and comment on it carefully, with a view to advancing the attainment of an inclusive and accessible Canada.

Toward this goal, CCD is currently making an effort to inform the disability community of CRPD’s content and assist the community to advocate for itself, for policies and measures that meet its needs and its hopes.  We do so based on our experience that an informed disability community is an empowered agent of change and social transformation.

Conclusion

In conclusion, I would say that, based on our experience including the elaboration of CRPD, the role of advocacy groups is indispensable to achieving an inclusive and accessible Canada.  Without self-representative groups of persons with disabilities, our experience and our needs cannot be adequately and legitimately described, appropriate solutions cannot be developed, and difficult challenges cannot be taken up.  The Charter initial exclusion and subsequent remedy attest to this position.