United Nations Convention on the Rights of Persons with Disabilities (UNCRPD): The Content Analysis
Background
The United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities (UNCRPD) and its Optional Protocol on 13 December 2006. On 30 March 2007 both were opened for signature at United Nations Headquarters in New York. An unprecedented 81 countries signed the UNCRPD on the opening day. But what led to this momentous event?
Before the adoption of the UNCRPD other human rights instruments already addressed disability, either as part of a general focus or more specifically. Some, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights — which together constitute the International Bill of Human Rights — promote and protect the rights of everyone, including persons with disabilities, through the non-discrimination clause. In all the three instruments, Article 2 obliges States Parties to guarantee human rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The reference to other status encompasses disability as grounds for protection from discrimination.
Specialized human rights treaties, like the
Convention against Torture, the Convention on the Elimination of Discrimination against Women, the Convention on the Rights of the Child and others, contain provisions protecting against discrimination. The Convention on the Rights of the Child specifically recognizes the need to protect against discrimination on the grounds of disability. It also specifically recognizes the right of the child with a disability to enjoy a full and decent life.
There have also been regional developments in Africa, the Americas and Europe, such as the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (1999). Other relevant human rights instruments are the Declaration on the Rights of Disabled Persons (1975); the World Programme of Action concerning Disabled Persons (1982); and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993). Although not legally binding, these instruments, adopted by the United Nations General Assembly, symbolize the moral and political commitment of States Parties to take measures to protect persons with disabilities, including through national legislation and policies.
Therefore, if an international legal framework already existed, why was it necessary to have UNCRPD? There were different reasons which included following:
(1) The UNCRPD was necessary to reaffirm the human rights of persons with disabilities and to ensure their participation in society as equal members and subjects of rights. Persons with disabilities continued to be perceived as passive recipients of assistance rather than rights holders. Both progress and challenges related to the development agenda failed to take into account the reality of persons with disabilities. Economic growth did not always result in social equality; and subsistence economies, such as in poor countries, sometimes marginalized groups with less power and fewer means. Persons with disabilities faced numerous patterns of exclusion. While standard-setting led to some improvements, the overall situation remained very unbalanced. Generally, persons with disabilities continued to be invisible in their societies and their marginalization often increased the risk of human rights abuse.
(2) The UNCRPD was necessary to address more comprehensively the challenges facing persons with disabilities and to better protect and promote their rights through a legally binding instrument. In 2001, OHCHR commissioned a study on the rights of persons with disabilities and the existing human rights system. The study concluded that existing instruments and mechanisms were not paying sufficient attention to the promotion and protection of the rights of persons with disabilities; that the absence of an explicit legal protection of persons with disabilities represented a gap; that a human rights approach required reinforcing certain concepts to replace or clarify previous standards. For example, the right to free and compulsory education for persons with disabilities means the right to an inclusive education, to be enjoyed with the other members of society. Existing treaties did not make this clear. It was therefore crucial to review some of the previous approaches and adopt a legally binding instrument that could provide clarity to human rights concepts and standards as well as set out clear legal obligations on States. The study also underlined that persons with disabilities and their representative organizations were not using existing human rights standards and mechanisms, such as petitions systems under human rights treaties, to protect and promote their rights. This reaffirmed the need for a disability-specific human rights treaty.
(3) The UNCRPD was the result of a strong advocacy strategy put in place by organizations of persons with disabilities, civil society and States. Civil society, particularly organizations of persons with disabilities (DPOs), international organizations and academics supporting the disability movement were at the forefront of efforts to advocate and lobby for the UNCRPD. Their action defined the overall approach towards the UNCRPD, making it clear from the beginning that any development in the area of disability had to be fully comprehensive, which ensured the involvement of all relevant participants rather than States only. The participation of persons with disabilities in important international forums and activities which preceded the UNCRPD, such as the first international review of the implementation of the World Programme of Action concerning Disabled Persons, was key in preparing the path for a different approach.
What is UNCRPD?
The Convention on the Rights of Persons with Disabilities (UNCRPD) is a human rights treaty, i.e., an international agreement among States setting out human rights and the corresponding obligations on States.
(1) The UNCRPD recognizes the rights of persons with disabilities — these are the same rights as everyone else — but reaffirms that persons with disabilities must also enjoy these rights. This in itself is significant as persons with disabilities are often denied their rights or are simply not aware that they have rights. The treaty underlines that persons with disabilities should enjoy those rights without discrimination and on an equal basis with others.
(2) The treaty sets out obligations on States to promote and protect the rights of persons with disabilities. While persons with disabilities have the same rights as persons without disabilities, sometimes States must take different or additional steps to ensure the realization of those rights. The UNCRPD sets out these obligations in considerable detail.
(3) The treaty also sets out the national and international institutions necessary for implementing and monitoring the UNCRPD. At the national level, these could be government focal points and coordination mechanisms as well as independent implementation and monitoring mechanisms. At the international level, the UNCRPD establishes the Committee on the Rights of Persons with Disabilities to assist States in implementing the UNCRPD and a Conference of States Parties to consider any aspect of implementation.
Why is UNCRPD Important?
The UNCRPD is to:
1. Clarifies the rights of persons with disabilities. As noted already, many persons with disabilities are unaware of their rights and these rights are often neglected. The UNCRPD recognizes that persons with disabilities have the same rights as everyone else and that they should enjoy them on an equal basis with people without disabilities.
2. Sets out responsibilities to respect those
rights. It recognizes that asserting rights is not enough on its own and that it is equally important to identify the various steps that States (and others) should take to respect those rights. In this sense, the UNCRPD is very comprehensive as it sets out in some detail the responsibilities to respect, protect and fulfil the rights of persons with disabilities.
3. Recognizes disability as a social construct and society should dismantle the barriers preventing persons with disabilities from participating fully in society.
4. Promotes inclusive and accessible development. It is often described as a human rights treaty and a development tool. This continues a trend in human rights
law that recognizes the need for States to take positive steps to guarantee rights and highlights the role of the international community in helping States to achieve those rights. Indeed, development is essential if the UNCRPD is to be implemented properly. For example, many provisions require improvements in access to goods and services which rely, in part, on having effective development strategies
and policies. Importantly, development should be inclusive of and accessible to persons with disabilities (art. 32). This requires a twin-track approach: specific programmes for persons with disabilities coupled with mainstreaming their rights into development projects, programmes and other interventions.
5. Ensures national and international monitoring of rights. While this is not the same as ensuring legal enforceability, the fact that the UNCRPD establishes national and international mechanisms to support implementation and monitoring is a way to support rights as well as the implementation of the UNCRPD.
What is Purpose of the UNCRPD?
The purpose of the UNCRPD is set out in its Article 1: 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.
It is explained below:
(1) Promote, protect and ensure rights: This underlines the multiple layers of State obligations under the UNCRPD which are to promote (e.g., raise awareness about the rights of persons with disabilities), protect (e.g., adopt laws and policies that recognize the rights of persons with disabilities and provide remedies for violations) and ensure rights (e.g., promote physical and informational accessibility to services).
(2) Full and equal enjoyment of all human rights: This asserts that persons with disabilities have the same rights as others and that they should be able to enjoy those rights on an equal basis with everyone in society.
(3) Respect for inherent dignity: This underlies all aspects of human rights as it emphasizes the notion that respect for human rights is the bottom line which in many ways defines our humanity. A failure to respect rights is a failure to respect an individual’s dignity and this is the experience of many people with disabilities around the world.
What are General Principles of the UNCRPD?
Principles are very important for interpreting and implementing the rights of PWDs in the UNCRPD. Thus, Article 3 of the UNCRPD identifies a set of general principles to assist States in understanding and implementing its provisions effectively. They include following:
(1) Respect for the inherent dignity and individual autonomy, including the freedom to make one’s own choices, and the independence of persons: Inherent dignity refers to the worth of every person. When the dignity of persons with disabilities is respected, their experiences and opinions are valued and are formed without fear of physical, psychological or emotional harm.
Individual autonomy means to be in charge of one’s own life and to have the freedom to make one’s own choices. Respect for individual autonomy means that persons with disabilities have, on an equal basis with others, reasonable life choices, are subject to minimum interference with their private lives and can make their own decisions, with adequate support if required.
(2) Non-discrimination: Non-discrimination is a fundamental principle of all human rights treaties and the basis of the Convention on the Rights of Persons with Disabilities. It essentially prohibits discrimination against anyone on the basis of disability, given that discrimination prevents people enjoying their rights on an equal basis with others. However, today, non-discrimination is understood as a much broader principle which encompasses not only prohibiting discriminatory acts but also taking steps to protect against potential future discrimination and hidden discrimination and promoting equality.
(3) Full and effective participation and inclusion in society: The concepts of full and effective participation and of inclusion mean that society, both in its public and in its private dimensions, is organized so as to enable all people to take part fully. They mean that society and relevant actors value persons with disabilities and recognize them as equal participants—for example, in processes related to decisions that affect their lives or in the freedom to run for public office. Participation goes beyond consultation and includes meaningful involvement in activities and decisionmaking processes, the possibility to voice opinions, to influence and to complain when participation is denied. Inclusion requires an accessible, barrier-free physical and social environment. It is a two-way process that promotes the acceptance of persons with disabilities and their participation, and encourages society to open up and be accessible to persons with disabilities
(4) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity: Respect for difference involves accepting others in a context of mutual understanding. Despite some visible and apparent differences between people, all have the same rights and dignity. In relation to disability, it involves accepting persons with disabilities for who they are, rather than pitying them or seeing them as a problem that needs to be fixed.
(5) Equality of opportunity: Equality of opportunity is closely linked with non-discrimination. It refers to a situation where society and the environment are made available to all, including persons with disabilities. Equality of opportunity does not always mean that the exact same opportunities are made available to all, as treating everyone the same might result in inequalities. Rather it recognizes difference
between people and ensures that, despite this difference, everyone has the same opportunity to enjoy rights.
(6) Accessibility: Making accessibility (and equality) a reality means dismantling the barriers that hinder the effective enjoyment of human rights by persons with disabilities. Accessibility enables persons with disabilities to live independently and to participate fully in all aspects of life. Accessibility is important in all areas of life, but in particular in the physical environment, such as buildings, roads, housing and so on, transport, information and communications, and other facilities and services open to or provided to the public.
(7) Equality between men and women: The principle of equality between men and women indicates that the same rights should be expressly recognized for men and women on an equal footing, and suitable measures should be taken to ensure that women have the opportunity to exercise their rights. Despite the overlap with the principle of non-discrimination, the reiteration of equality between men and women is expressly included in treaties, especially because there are still many prejudices preventing its full application.
(8) Respect for the evolving capacities of children with disabilities and for their right to preserve their identities: Respect for the evolving capacities of children is a principle set out in the Convention on the Rights of the Child. It should be seen as a positive and enabling process that supports the child’s maturation, autonomy and self-expression. Through this process, children progressively acquire knowledge, competences and understanding, including about their rights. Their participation in decision-making processes that affect them, including their right to preserve their identities, should be expanded over time in step with this evolution.
What are General Obligations of the UNCRPD?
Apart from recognizing the rights of persons with disabilities, the UNCRPD also identifies who is responsible for meeting those rights and what they have to do and when (e.g., immediately or progressively). Hence, the Article 4 of UNCRPD outlines the following general obligations:
1. States Parties shall 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 UNCRPD;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
(d) To refrain from engaging in any act or practice that is inconsistent with the UNCRPD and to ensure that public authorities and institutions act in conformity with the UNCRPD;
(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the UNCRPD, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;
(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, giving priority to technologies at an affordable cost;
(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;
(i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the UNCRPD so as to better provide the assistance and services guaranteed by those rights.
2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the UNCRPD that are immediately applicable according to international law.
3. In the development and implementation of legislation and policies to implement the UNCRPD, 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.
4. Nothing in the UNCRPD shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the UNCRPD pursuant to law, conventions, regulation or custom on the pretext that the UNCRPD does not recognize such rights or freedoms or that it recognizes them to a lesser extent.
5. The provisions of the UNCRPD shall extend to all parts of federal States without any limitations or exceptions.
What is “Disability” and Who are “Persons with Disabilities (PWDs)” in the UNCRPD?
The UNCRPD does not provide a closed definition of disability. It describes that disability is an evolving concept. Nevertheless, the UNCRPD does reflect a social model of disability as it clarifies that disability results from the interaction between persons with impairments and external barriers that hinders their participation in society.
In this perspective, the framework reflected in the UNCRPD is built on the understanding that it is the external environment, and the attitudes that are reflected in its construction, that plays a central role in creating the condition termed “disability”. This contrasts sharply with the medical model of disability, which is instead built on the concept of the “broken body”, with disability being the obvious result of a physical, mental or sensory deficiency of the person.
Because of this approach, the notion of “disability” cannot be rigid but rather depends on the prevailing environment and
varies from one society to the next. While the UNCRPD recognizes disability as an evolving concept, it clearly endorses the understanding of it as a social construct, when it states 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”.
In line with this understanding, the UNCRPD does not provide a closed definition of who persons with disabilities are, but states that they “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.
Some important elements to consider are:
(a) Evolving versus fixed concept: The UNCRPD recognizes that “disability” is an evolving concept resulting from attitudinal and environmental barriers. Consequently, the notion of “disability” is not rigid and can be adapted to the prevailing environment in a particular society (the focus will be on the type of attitudinal and environmental barriers present in those societies and ways to overcome them).
(b) Disability not as a medical problem but as an interaction between an impairment and the surrounding environment: The focus of the UNCRPD is not on disability as a medical problem; for the UNCRPD, persons become disabled when they clash with an unwelcoming or inaccessible environment. Persons with disabilities do not require to be “fixed” before accessing an environment (society); it is instead the environment that needs to be uniformly open to all its members. It does so by dismantling attitudinal and environmental barriers so that everyone can actively participate and enjoy the full range of rights.
(c) The Convention includes all disabilities: The UNCRPD does not restrict coverage to particular persons; rather, it identifies persons with long-term physical, mental, intellectual and sensory disabilities as its beneficiaries. The reference to “include” in Article 1 could therefore extend the application of the UNCRPD to all persons with disabilities, e.g., those with short-term disabilities or persons who are perceived to be part of such groups.
(d) Categorizing barriers rather than human
beings: Categorizing a person can be the first step towards excluding that person and violating his or her inherent dignity. The UNCRPD does not preclude the use of definitions in national legislation; definitions might be particularly necessary in some sectors, such as employment or social security. What is important is that definitions informing policies and laws reflect the social model of disability where the challenge facing a person with a disability is measured in terms of the existing barriers and not on the category or percentage of the impairment.
The UNCRPD identifies two categories of persons with disabilities who might be particularly vulnerable to discrimination and abuse of rights: women with disabilities and children with disabilities.
Women and girls with disabilities
The Article 6 UNCRPD explains that:
1. States Parties shall recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.
2. States Parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.
Children with disabilities
The Article 7 of UNCRPD explains that:
1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.
What are Human Rights of PWDs in the UNCRPD?
While the UNCRPD does not create new rights, it does define with greater clarity the application of existing rights to the specific situation of persons with disabilities. They include the following:
Article 10: The right to life,
Article 11: Situations of risk and humanitarian emergencies,
Article 12: Equal recognition before the law,
Article 13: Access to justice,
Article 14: Liberty and security of the person,
Article 15: Freedom from torture or cruel, inhuman or degrading treatment or punishment,
Article 16: Freedom from exploitation, violence and abuse,
Article 17: Protecting the integrity of the person,
Article 18: Liberty of movement and nationality,
Article 19: Living independently and being included, in the community,
Article 20: Personal mobility,
Article 21: Freedom of expression and opinion, and access to information,
Article 22: Respect for privacy,
Article 23: Respect for home and the family,
Article 24: Education,
Article 25: Health,
Article 26: Habilitation and rehabilitation,
Article 27: Work and employment,
Article 28: Adequate standard of living and social protection,
Article 29: Participation in political and public life,
Article 30: Participation in cultural life, recreation, leisure and sport.
Other Clauses in the UNCRPD
The UNCRPD also contains a series of provisions in relation to a range of issues which are necessary for the full enjoyment of human rights for PWDs. These include the following:
Equality and Non-discrimination
1. States Parties shall recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the UNCRPD.
Awareness-raising
1. States Parties shall undertake to adopt immediate, effective and appropriate measures:
To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities;
To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life;
To promote awareness of the capabilities and contributions of persons with disabilities.
2. Measures to this end include:
(a) Initiating and maintaining effective public awareness campaigns designed:
To nurture receptiveness to the rights of persons with disabilities;
To promote positive perceptions and greater social awareness towards persons with disabilities;
To promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market;
(b) Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities;
(c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention;
(d) Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities.
Accessibility
1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, among other things:
Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
Information, communications and other services, including electronic services and emergency services.
2. States Parties shall also take appropriate measures to:
Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;
Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;
Provide training for stakeholders on accessibility issues facing persons with disabilities;
Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms;
Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;
Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;
Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;
Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.
