Convention on the Rights of Persons with Disabilities: Overview and Next Steps for an Accessible and Inclusive Society

Presentation
by
Vangelis Nikias
Convention on the Rights of Persons with Disabilities (CRPD) Project Manager

Introduction

In March of 2010, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), the first international human rights instrument of the 21st century.

It took only four years to negotiate the text of this international law instrument.  By UN standards, this is a very expeditious conclusion.

The relatively short period of time it took to conclude the negotiations is, in some way, indicative of the fact that, notwithstanding initial hesitation, negotiators were ultimately convinced of the potential usefulness of CRPD.  This momentum, one might say, has continued in that many countries moved to sign and subsequently ratify the Convention.  At last check, CRPD had been ratified by 112 countries and signed by 153.  Its accompanying optional protocol had received 64 ratifications and 90 signatures.

In this context, it is very encouraging and indicative of this momentum that in May 17, the Obama White House transmitted a treaty package requesting the advice and consent of the Senate for ratification of the CRPD.  The disability community in the US is working hard to secure sufficient bipartisan support to have CRPD ratified.

US ratification is especially significant because during the negotiations the then administration had said they would not sign nor ratify CRPD.  Having the US as a state party will add strength to the Convention.

Why CRPD?

The 1948 Universal Declaration of Human Rights (UDHR) does not refer to disability in Article 2, where entitlement grounds are set out.  Disability is only mentioned in Article 25 in the context of social protection.  It is believed that the non-reference to disability in UDHR led to the problem of “invisibility” persons with disabilities experienced over the following sixty years in the UN human rights system, a problem which CRPD came to address.

CRPD also represents the culmination of an effort by people with disabilities to demarginalize themselves, ameliorate their living conditions and become subjects rather than objects of human action.

In this presentation, I will provide you an overview of the content of CRPD, touching on some of the key articles, and share with you some of the steps that must be taken so that CRPD becomes a useful human rights instrument in our efforts to build an inclusive and accessible Canada.

CRPD Overview

CRPD consists of a preamble containing twenty-five paragraphs and fifty articles.  In the preamble, States Parties have set out the reasons for which they have found it appropriate to elaborate this international law instrument.  For example, in para. (k) States Parties put on the official record that “…persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world”.  Persons with disabilities experience these problems notwithstanding various UN instruments and undertakings.

Let me also share with you para. (c), which sets the background for some comments I will make later about the purpose of CRPD and the issue of socio-economic rights.  It reads:

“Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination,”.

In the Convention’s fifty articles, States Parties address its purpose, its principles, the obligations undertaken by States Parties and a number of specific measures intended to give effect through concrete measures to the principles of the Convention.

Thus, article 1 articulates what the Convention is all about.  It states, in part:

“The purpose of the present Convention 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.”

Art. 2 contains definitions of key concepts: communication, language, discrimination, reasonable accommodation, and universal design.

It may be a good starting-point with practical value for those seeking to understand some of these ideas.

Article three sets out the general principles which govern CRPD.  Of the eight principles, I want to mention accessibility, as this is the first time accessibility is included in an internationally binding instrument.  I also want to bring to your attention para. (d), which reads as follows:  “Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;”.  This statement is of fundamental significance as it shifts the understanding of disability from a medical question to a characteristic of human diversity.  Disability is not an abnormality but essentially human.  Moreover, states parties to this international law instrument recognize this transformational shift. 

Art. 4 deals with the general obligations of the States that have ratified CRPD.  In part, it states:

“1. States Parties undertake 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;”

Two other key provisions are 4.3. and 4.5. para. 3 incorporates the long-standing position and demand by persons with disabilities to participate in decision-making processes that concern them.  In para. 3, states agree to do exactly that by consulting closely representative organizations.

In the development of CRPD, the demand not to be excluded from decisions that affect them was expressed by persons with disabilities through the motto:  “nothing about us without us”.  I should mention here, by the way, that CCD’s motto is:  “A Voice of our Own”.

The closing para. of Article 4 clarifies that “The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions.”

Art. five addresses the fundamental concepts of “equality and non-discrimination”.  As, I am sure you appreciate, equality and non-discrimination go to the core of a human rights instrument.  Art. five is also interesting in that it tracks very closely Section 15 of the Canadian Charter of Rights and Freedoms.

Other articles address from a disability perspective specific issues, such as: education, health, participation in political and public life.

Articles nine and nineteen set out measures intended to enable persons with disabilities to live independently and be included in the community.

In particular, I want to draw to your attention that states undertake to ensure that “Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

The achievement of an accessible and inclusive Canada requires the implementation of these two articles.

One of the state commitments that concern specifically professionals working with persons with disabilities relates to training.  Both in articles 4 (General Obligations) and 25 (Health), this commitment is made explicit.

I think it is useful to go over both of them. In Art. 4.1. (i) States undertake: 

“To promote the training of professionals and staff working with persons with disabilities in the rights recognized in this Convention so as to better provide the assistance and services guaranteed by those rights.”

And according to 25 (d), States shall:
“Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care.”

The above are, undoubtedly, state commitments.  In practice, it may turn out that the realization of these commitments may require persistent reminders to public policy-makers and funders by persons with disabilities and other allies, including professionals.  This, in turn, cannot happen without awareness.  So, on behalf of the Council of Canadians with Disabilities, I am grateful to have the opportunity to bring them to your attention today.

The Challenge of Definitions

The definition of disability was, during the negotiations, one of the most contested matters.  It constituted a focus point and a recurrent theme all along the elaboration process.  Art. two in CRPD does not include a comprehensive definition of disability.  CRPD includes two references to disability and persons with disabilities which may be understood as constituent elements of a potential definition.

Let me share with you the two references before I comment on them briefly.  In para. (e) of the Preamble, it is recognized 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,”

Art. 1, CRPD’s purpose, states, in part:

“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.”

The above descriptions are not comprehensive definitions of “disability” or “persons with disabilities”.  The development of comprehensive definitions of either term was not possible during the CRPD elaboration process.  This impasse is indicative of the political nature of the human rights development process itself.  In short, the potential allocation of resources and benefits is at stake.  Both of these descriptions, though, point undoubtedly to the changing understanding of disability and persons with disabilities as being socially constructed concept and entity, respectively.  Impairments, in both cases, lead to disability or persons with disabilities only when coming into interactions with environments, as a result of which barriers are experienced.

The recognition of disability as an evolving concept is helpful.  Let me illustrate this point by referring to the Canadian Charter of Rights and Freedoms.  It only mentions physical and mental disability.  Now, imagine having to define disability in that context.  It would have probably been virtually impossible and possibly a deal-breaker.  And if a definition had been somehow achieved, HIV, for example, given the particular timing (early 80-s) would not have been included.  This omission might have made it so much more difficult to read it in a definition in the future.

Another reason for which the reference to “persons with disabilities” is in Art. one and not in the definitions is because this way States cannot opt out, according to Article 46.1. Of the Convention, which reads:

“Reservations incompatible with the object and purpose of the present Convention shall not be permitted.”

Some Key Issues

Before I talk about next steps and draw this to a conclusion, I would like to touch briefly on three other key aspects of CRPD on whose implementation will depend whether CRPD will prove a useful legal and political initiative and instrument.  These are: compliance, progressive realization and monitoring.

Compliance

Compliance addresses the degree to which the legal framework in any given jurisdiction corresponds to the principles and rights set out in CRPD. 

It also addresses the relationship of legal frameworks and policies and practices.

Genuine compliance is a question of continuous effort as described in Art. 4 of CRPD already cited above.

In Art. 4, States have undertaken 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 just over two  years ago following federal-provincial consultations and a unanimous resolution in the House of Commons.

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:

As already mentioned, 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,”

Progressive Realization

The principle of progressive realization is linked to the question of compliance.  It addresses the rate at which progress may be sought and accomplished.  CRPD presents certain interesting provisions that are critical to the understanding of progressive realization.

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 of social and economic rights 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.

Monitoring

Monitoring refers to the modalities and procedures that may be used in measuring an instrument’s implementation.  CRPD contains innovations in relation to the role of civil society and people with disabilities, in particular.  In this respect, CRPD-related practices may impact the monitoring models developed in relation to other international instruments.

In Art. 33.2., States have agreed that the promotion, protection and implementation of CRPD will be carried out by “independent mechanisms”.  At this point, in Canada, human rights agencies and commissions can fulfill this role.  CCD, CACL, DAWN Canada are working with the Canadian Association of Statutory Human Rights Agencies (CASHRA) to ensure the implementation of an appropriate monitoring process.

Next Steps

As, I hope I have been able to show above, CRPD contains strong human rights principles and practical measures intended to give effect to these principles.  The question is: where do we go from here?  Raising awareness in the disability community and more broadly is, in CCD’s view, a key to further success.  Awareness will help us in claiming our rights both in the policy-making and legal contexts.  We also hope that legal advocates and the Canadian judiciary will utilize CRPD in their work, in advancing arguments and making decisions.

According to Article 35 of CRPD, Canada, having ratified CRPD in March 2010, must now submit “a comprehensive report on measures taken to give effect to its obligations… and on progress made in that regard”.  We understand that this report is in the process of being finalized.  Last August, the Government of Canada shared with a number of organizations the report outline.  In response, we suggested that for an Inclusive and Accessible Canada to become a reality, the Government of Canada must show leadership by enhancing its role in four key areas:

• Initiatives to address the disproportionate poverty experienced by Canadians with disabilities.
• Initiatives to increase labour market attachment for persons with disabilities,
• Initiatives to increase disability supports, and
• Initiatives to remove barriers and increase access.

Addressing the above priorities and challenges can be best pursued, in our view, on the basis of a disability strategy.  In turn, this can be achieved through collaboration of all levels of governments and with the active participation of representative disability organizations.  This approach is consistent with specific CRPD provisions.

Optional Protocol

CRPD also contains an Optional Protocol.  It includes 18 articles.  Its purpose is to provide an avenue whereby individuals or groups can bring a substantiated complaint to the United Nations Committee on the Rights of Persons with Disabilities.  Such a complaint must not be anonymous and domestic remedies must be exhausted.  Canada has neither signed nor ratified this Protocol.  Therefore, it remains for the disability community to decide when and how to pursue Canadian signing and ratification.

Conclusion

In closing, CRPD constitutes a paradigm shift in addressing disability-related public policy as a human rights matter, moving away from the charity model and the understanding of disability as a medically formulated abnormality.  States, persons with disabilities, primarily through their representative organizations and society as a whole have agreed to this paradigm shift.  We all stand to benefit from it.  I would like to reiterate, however, that for the promise of CRPD to become a reality, a number of implementation steps must be undertaken.  The role of persons with disabilities and our allies remains indispensable if the dream of an accessible and inclusive society is to be attained.

CRPD represents an internationally agreed-upon blueprint whose realization persons with disabilities around the world are mobilizing.  In Canada, this process started over thirty years ago with the establishment of self-representational democratic organizations.

An early and successfully faced challenge was the effort by CCD and other human rights activists to include disability in the Canadian Charter of Rights and Freedoms.  You may not be aware that initially the Charter did not make reference to persons with disabilities.  It took determination, courage and perspicacity to overcome that exclusion.  No doubt, the same have to be employed and invested toward making CRPD a reality in the lives of persons with disabilities in Canada and around the world.

Canadian HIV/AIDS Legal Network 4th Symposium on HIV
Law and Human Rights Joint Workshop with
Canadian Working Group on HIV and Rehabilitation
Thursday, June 14, 2012