10 years of Convention on the Rights of Persons with Disabilities

When the Committee on the Rights of Persons with Disabilities celebrated the 10th anniversary of the Convention on the Rights of Persons with Disabilities (CRPD) on 1 September 2016 at Palais Wilson, the Office of the High Commissioner for Human Rights, Chair Maria Soledad Cisternas Reyes emphasised the importance of universal ratification and the fact that the CRPD was only 37 countries short of this goal. The High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, reminded the audience of the historic step that was taken when the General Assembly adopted the CRPD in December 2006 as the first binding human rights instrument which recognised that persons with disabilities are subjects of human rights.

The treaty of firsts

Within ten years, the CRPD had gained 166 ratifications and its Optional Protocol had been ratified by 89 State Parties. With this speedy record, the CRPD is champion among United Nations’ core human rights treaties. No other treaty has been ratified by such a large number in such a short time. There are other innovations the CRPD brings to international human rights law: it is the first human rights treaty to allow regional integration organisations, such as the EU, to become parties (Article 44 CRPD). The CRPD establishes a national monitoring mechanism which has a broader scope than the mechanism established by the Sub-Committee on Prevention of Torture. Article 33 CRPD demands that State Parties designate focal points and a governmental coordination mechanism for the implementation of the treaty and additionally establish an independent national monitoring mechanism. Both national monitoring mechanisms need to engage meaningfully with civil society, notably disabled persons and their representative organisations. Further, the CRPD has stand-alone articles on development and humanitarian action that bring a human rights based approach to this field. Article 32 emphasises the importance of international cooperation for the realisation of human rights and Article 11 demands that State Parties ensure the protection and safety of persons with disabilities in situations of risk. The CRPD is also the first human rights treaty to legally recognise the concept of multiple discrimination in Article 6 on disabled women. Additionally, the CRPD extends the definition of discrimination in international law by including “denial of discrimination” as a form of discrimination (Article 2). The enumerations of firsts the CRPD brings to the international human rights community could be continued.

Within its first ten years, the treaty has gained more public recognition than most of its sister treaties. Disability organisations around the world spread words on the new inclusive freedom and inclusive equality agenda the CRPD brought to the table of human rights and disability policy. The motto of the drafting of the convention, “nothing about us without us”, became the guiding principle of future implementation steps. Both at the national and at the international level, there is great concern about having persons with disabilities as experts and their representative organisations as voices of the disability community involved in the implementation process. Many States Parties’ reports are drafted in consultation with disabled persons’ organisations. Moreover, the two international monitoring bodies of the treaty, the CRPD Committee and the annual States Parties Conference include a high number of experts with disabilities.

United Nations and accessibility

The CRPD Committee, which was initially established in 2009 with 12 independent experts, had to be enlarged to 18 experts in 2011 after the 80th ratification of the Convention. The Committee meets in Geneva and since the beginning the vast majority of its experts have been disabled persons. This composition of treaty body experts brought new challenges to the administration of the United Nations, since the organisation had never paid much attention to accessibility issues. Ramps and lifts for wheelchairs had to be installed at the UN headquarters in Geneva and in New York, websites had to be made accessible for blind and visually impaired persons, and sign language interpreters and captioning had to be provided. Travel rules had to be changed to allow for personal assistants. The CRPD Committee also contributed to green policy innovations by being the first treaty body to adopt a green bureau strategy, meaning that all documents were produced electronically.

The Committee started with two meetings for five days each in 2009. Due to its high number of ratifications and the comparably short meeting time, the backlog of States Parties reports review reached seven years in 2012, which was the highest among all treaty bodies. ¹ The meeting time was thus extended to the current eight-and-a-half weeks in 2014 as a result of the treaty body strengthening process. ² Though the backlog has decreased to some extent, the exact impact of the increased meeting time will be assessed at the end of 2017.

When the 17th session closed in April 2017, the Committee had reviewed about 50 initial States Parties’ reports. While pre-CRPD soft law instruments framed disability primarily as an economic, social and cultural rights issue, the constructive dialogues with States parties focused on both sets of human rights. The freedom and equality agenda being as important as the values of solidarity, inclusion and social protection. It has been repeatedly emphasised that the CRPD did not create new human rights but tailored the existing catalogue of international human rights to the context of disability. The right to freedom of expression and opinion as enshrined in Article 21 is a good example of this tailoring. It copies the text of Article 19 Universal Declaration of Human Rights on freedom of expression and opinion and adds to it disability-specific aspects, such as the right to accessible information, the right to use sign language, to Braille and to other modes and forms of a communication. Tailoring the existing catalogue of international human rights to the context of disability additionally led to more interdependence and interrelatedness of both categories of human rights. Article 19 CRPD on living independently and being included in the community enshrines both social and cultural rights as well as civil rights. The dialogues with States Parties reflect this modern understanding of human rights.

Remodeling human rights concepts

As is common practice among treaty bodies, dialogues on initial States Parties’ reports cover all rights enshrined in the treaty. Thus, the focus of the dialogues was rather broad during the first years. However, some issues can be identified as particularly challenging for States Parties in the implementation of the CRPD. It is of no surprise that these topics are the same issues which had been major conflicts when the treaty was negotiated at the beginning of this millennium. ³ Among these are denial of legal capacity, institutionalisation, segregation in education and employment, and above all the human rights model of disability. ⁴ The latter reflects a new understanding of disability in the convention as an issue of human rights rather than merely an issue of medical rehabilitation and social welfare. The human rights model of disability negates the assumption that persons with disabilities need to be institutionalised or segregated from the rest of society because of their impairments. It further condemns the idea that impairment might limit a disabled person’s right to legal capacity. It assumes that all disabled persons are rights holders and that human rights cannot be conditioned upon physical, mental or health status.

The human rights model of disability has far-reaching implications for Members States, and thus they struggle with a number of articles in the treaty. Most challenging are Article 12 on the right to be regarded as a person before the law, Article 14 on the right to liberty and security, Article 19 on independent living, and Article 24 on inclusive education, to name a few. Article 12 requires that States Parties abolish traditional guardianship and mental health laws which are based on a system of substituted decision-making. In all its concluding observations, the Committee has emphasised that substituted decision-making needs to be replaced by supported decision-making based on the preferences and will of the disabled person. Article 14 prohibits impairment based detention and other forms of disability-specific forms of deprivation of liberty. Again, many countries have legislation that legitimises this practice, which is commonly applied in mental-health settings and in the context of services for intellectually disabled persons. Article 19 provides that each and every disabled person, irrespective of his or her impairment, has the right to choose where and with whom to live in the community. It denounces institutional settings as a barrier to independent living and as a form of discrimination. The right to inclusive education as enshrined in Article 24 is a particular challenge to those countries which have a dense system of special education schools which are incompatible with the right to inclusive education. The Committee has adopted a number of general comments in order to address these issues. General Comment No. 1 of 2012 interprets Article 12 as not allowing any form of guardianship or interdiction or other forms of substituted decision-making. Furthermore, in combination with its guidelines on the right to liberty and security (Article 14) of 2015, it clarifies that forced medical treatment and forced institutionalisation are a violation of the CRPD. ⁵ The second General Comment ⁶ focuses on accessibility (Article 9), which according to some experts in the field is the heart of the Convention, together with its nondiscrimination clause. In the context of disability, access to the built environment, to public transportation, and to information and communication is a precondition and essential for the realisation of all human rights. While most States Parties have accepted the importance of this provision, implementation rarely covers all three areas adequately. General Comment No. 3, adopted in 2016, addresses the human rights of disabled women and girls (Article 6). ⁷ Among the core human rights treaties of the United Nations, the CRPD is the first to address and adopt the concept of multiple discrimination. General Comment No. 3 addresses intersectional discrimination and other forms of violations such as sexual violence and infringement upon sexual and representative health rights. General Comment No. 4 interprets the right to inclusive education as enshrined in Article 24 CRPD. It clarifies often misunderstood terminology:

Exclusion occurs when students are directly or indirectly prevented from or denied access to education in any form. Segregation occurs when the education of students with disabilities is provided in separate environments designed or used to respond to a particular or various impairments, in isolation from students without disabilities. Integration is a process of placing persons with disabilities in existing mainstream educational institutions, as long as the former can adjust to the standardized requirements of such institutions [footnote omitted]. Inclusion involves the process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with division serving to provide all students of the relevant age range with an equitable and participatory learning experience and environment that best corresponds to the requirements and preferences. ⁸

A draft General Comment on Article 19 CRPD is expected to be adopted at the 18th session in August 2017. ⁹

Case law

Ten years after the adoption of the Convention, the CRPD committee has registered 39 cases and adopted 14 decisions in relation to individual complaints. Legal topics addressed range from treatment of disabled persons within criminal law systems and prisons (Noble v. Australia) over impairment based exclusion from the election process (Bujdosó v. Hungary) to inaccessible ATM machines at banks (Nuysti et.al. v. Hungary). ¹⁰

Conference of state parties

Committee members are elected by the Conference of States Parties (Article 40 CRPD) which meets annually in New York. While “balanced gender representation” (Article 34 para 4 CRPD) has been a recognised principle from the inception of the committee, the last election in July 2016 resulted in only one female member left among 18 experts. In addition to election of committee members, the conference of States Parties has a vast mandate to address any matter concerning the implementation and monitoring of the treaty. The usually well attended conferences have addressed a diverse range of themes covering issues such as accessibility, employment, children with disabilities, poverty, equality, international cooperation, political participation, education, independent living, and development and humanitarian action.

The impact of ten years CRPD

The impact the CRPD had within its first ten years is rather impressive. Since 2016, the 2030 Agenda for Sustainable Development has replaced the Millenium Development Goals (MDGs) of the United Nations. Whereas the MDGs did not mention disability at all, the Sustainable Development Goals reference persons with disabilities in all main areas. Other human treaty bodies have adopted disability in their agenda ¹¹ and responded to the CRPD committee’s jurisprudence. While not all treaty bodies agree with the committee’s transformative views. particularly with regard to legal capacity and freedom from detention, ¹² regional human rights institutions, such as the European Court of Human Rights, have taken significant decisions that reflect the committee’s jurisprudence. ¹³ Many States Parties have started legal reforms with regard to mental-health laws and guardianship. Others revised election laws or introduced new antidiscrimination legislation that include “denial of reasonable accommodations” as a form of discrimination. Charter-based bodies such as the Human Rights Council have established a task force on accessibility in order to ensure that its meetings and documents become more accessible to the disability community. Annually, the Human Rights Council organises an interactive debate on the rights of persons with disabilities. In 2014, Catalina Devandas Aguilar (Costa Rica) became the first Special Rapporteur on the rights of persons with disabilities following Human Rights Council resolution 26/20 establishing the new special procedures mandate. With the establishment of an inter-agency support group for the CRPD immediately after the adoption of the convention, which now comprises more than 40 UN organisations and programs, ¹⁴ an important step was taken to ensure mainstreaming of human rights of persons with disabilities across UN institutions. Overall, it can be said that the CRPD has visualised disability as a human rights theme. The challenge for the second decade of the treaty will be to seize the momentum and to develop indicators for measuring implementation at national level. This will not be easy given the complex framework of disability rights and taking into account the national experiences, good practices and hurdles. A further task is to reach universal ratification. For the latter, civil society will be the major driving force. Those countries which have not yet signed the convention already are confronted by a growing civil society from the disability community and its allies.