Checkagainstdelivery
Social Forum
5 October 2016; 11:30-12:15
TheresiaDegener
Panel, Realizing the Human Rights of Persons with Disabilities
I thank the OHCHRfor the invitation to the panel on realizing the human rights of persons with disabilities. I have 3 questions to address:
1. What are the next steps to increase compliance from a treaty perspective?
2. How can different stakeholders make the best use of the CRPD committee recommendations?
3. What is needed to translate the CRPD and the committee’s jurisprudence into national policies?
Let me start with the first question:
1.What are the next steps to increase compliance from a treaty perspective?
The first indicator for compliance with human rights treaties is of course its ratification. With 166 state parties, the CRPD is close to universal ratification. That is a very good record for an international treaty. Out of 193 United Nations members less than 30 now still need to come on board. The Committee is very active in this regard. During our last session we met with several country representatives in order to discuss ratification. Between the sessions committee members traveled to regional conferences in Asia, Africa and Europe to celebrate the 10th anniversary of the CRPD and communicated with countries who haven’t become party to the treaty yet. The Human Rights Council, civil society, UN organizations, and other stakeholders need to firmly work towards universal ratification of the CRPD.
State parties, that have ratified the convention but have made reservations or declarations to some of the provisions of the CRPD, can improve compliance by withdrawingthese reservations or declarations. The CRPD’s purpose is to ensure that all persons with disabilities can enjoy the full range of Human Rights and fundamental freedoms on an equal basis with others. This cannot be achieved if state parties declare caveats to the realization and implementation of some of the rights enshrined in the CRPD; the right to inclusive education, or equal recognition as a person before the law, or the right to independent living within the community. These articles of the CRPD were some of the most pressing issues when the CRPD was negotiated between 2002 and 2006. They remain the biggest challenges as of today. The road to equality and freedom for persons with disabilities is long, hilly and curvy. Segregation in education needs to be abolished, guardianship laws must be repealed and institutionalization put to an end. These are only the first steps for realizing inclusive education, supported decision-making, or independent living in the community. Reservations and declarations to these provisions of the CRPD need to be withdrawn. They are unnecessary thresholds and very often in conflict with the purpose of the convention itself.
Further, state parties need to understand the Human Rights model of disability which goes beyond the social model of disability. It not only recognizes that disability is a social construct, the Human Rights model of disability is based on modern human rights theory. According to this theory Human Rights cannot be gained or taken away based on status or personal features. Human rights are given to us because we are human beings. They do not require certain health status, a certain ethnicity, a particular gender or any other personal feature. Thus, legal capacity, cannot be denied or restricted on the basis of impairment. Neither can institutionalization be legitimized by impairment or perceived dangerousness in context of impairment. The incapacity approach to disability in law and policy is the result of a long tradition of the medical model of disability. The CRPD has put an end to the medical model of disability. United Nations organizations, member states, human rights organizations, civil society, are all called upon to raise awareness about this new Human Rights model of disability.
2.How can different stakeholders make the best use of the CRPD Committee recommendations?
I would like to address three different stakeholders: governments, National Human Rights Institutions (NHRIs), andorganizations of disabled persons (DPOs.)
Government should make sure that our concluding observations, the documents which we adopt after each country dialogue, are widely disseminated among different branches of the Government, and discussed. A very good example is to organize a national conference after the State party review has taken place in Geneva. At such a conference all stakeholders from governments, civil society, and business sector should be invited to meaningfully participate. Government representatives should enter into a dialogue with other stakeholders and discuss the various recommendations made by our committee in the concluding observations. For each initial country report we adopt about 50 to 60 recommendations with respect to all the substantive articles of the convention. Because we have a word limit for our documents our recommendations are short.But we try to be very concrete. It is important to read the concluding observations carefully and produce a to do list which should be discussed and implemented by all relevant stakeholders. Each branch of the government needs to understand the duties and tasks which result from these concluding observations. Of course they are not binding, they are just recommendations, but they have been drafted very carefully and are the result of a constructive dialogue between the committee and governments.
The CRPD is one of the first modern human rights treaties which entail a national monitoring’s mechanism. Few state parties have fully established a national mechanismin line with article 33 of the Convention. According to our committee’s view, NHRI should either be designated as independent monitoring mechanism or be part of the independent monitoring mechanism. Thecommittee usually recommends to government to designate an independent monitoring mechanism which complies with the Paris Principles. Thus, our concluding observations might help to speed up the process in those countries, which have not established a NHRIin compliance withthe UN Paris Principles of 1993.
In those countries which have already designated an independent monitoring mechanism, the NHRI could use the concluding observations to identify stakeholders for the national implementation of the CRPD and hold them accountable. Our concluding observations but also other recommendations such as general comments or statements, or decisions on individual communications, can be used to identify issues for research, education and training for various domestic stakeholders. NHRIs usually have the mandate to advise governments, educate and train stakeholders and the general public in relation to the CRPD. Our recommendations often may be used to strengthen the role of NHRIs in this regard.
Finally, disabled people’s organizations (DPOs) are crucial when it comes to implementing the CRPD. “Nothing about us without us” was and is the mantra of the CRPD. Thus, it is of vital importance, that DPOs take note of all concluding observations, general comments, statements and decisions on individual communications. They often will find that their demands have been replicated and given new authoritative force by a Human Rights treaty body. DPOs can use these recommendations as the baseline for their action plans at home. Only if DPO’s follow-up on our recommendations, identify the respective governmental body that has the mandates to implement these recommendations, will governments feel responsible. It is up to DPO’s to translate our recommendations into feasible domestic action plans which DPOs can identify with and put these action plans on the agenda of their government.
3.What is needed to translate the CRPD and the Committee's jurisprudence into national policies?
Today our committee has reviewed about 50 initial country reports, issued four general comments, adopted a number of statements and guidelines, and decided about a dozen cases on their merits. We have created a significant amount of jurisprudence which gives flesh to the text of the CRPD. Many questions have been answered, and misunderstandings have been clarified. We have modernized Human Rights Law and improved it by applying the universal catalog of Human Rights to the context of disability. For example, we have explained that the right to vote may under no circumstances be restricted or taken away from adult disabled persons on the basis of their impairment. In many countries, disabled people under guardianship, in institutions, or persons with cognitive op psychosocial impairments are denied their right to political participation. We have clearly stated that such a practice is a human rights violation. This is new human rights law, because other treaty bodies have developed different jurisprudence in this regard. Courts in many countries do not find any constitutional problem with the disenfranchisement of disabled people. While not everyone my degree with our jurisprudence, it is now in this world and it is part of the human rights canon. It can be used in domestic courts in domestic parliamentary bodies and in administrative agencies. Judges and other stakeholders in the justice system need to be trained about this new jurisprudence, not only about the CRPD. Strategic litigation is necessary in order to bring this new international law back home. This is especially true in times of economic crisis. Many of our recommendations relate to this issue of globalization. We have developed jurisprudence against discriminatory and arbitrary social cutbacks against disabled persons who are most vulnerable when it comes to economic crisis.
Finally, we need human rights based research that is rooted in disability studies theory and methodology. Often research on disability has been undertaken from the medical model of disability prospective by nondisabled researchers who have no life experience relating to disability. Most often research regarding disabilitylack a human rights perspective and participation by disabled researchers and DPOs. The CRPD in art. 4 (3) and 33 (3) demands participation of persons with disabilities and their representative organizations in all aspects of implementation and monitoring.Right based research is necessary in order to implement and monitor a human rights treaty. But this is a field which is rather underdeveloped in many countries. I hope that in 10 years from now we will have a robust network of human right based research on disability which is directed and controlled by disabled researchers and DPOs
I thank you for your attention!