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Pulication in doc format - Irish Human Rights Commission

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    The UN Convention on the Human Rights of Persons with

    Disabilities

    ;Gerard Quinn.

    Dublin

    19 April, 2007.

     ; Professor of law, NUI Galway Faculty of Law, Disability Law & Policy Research Unit. Member of the Irish Human Rights Commission and delegate to the UN Ad Hoc Committee on the disability treaty.

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1. Introduction.

2. The Treaty.

    ; The Treaty as a Mirror to Society.

    ; The Core Values of the Treaty.

    ; A Non-Discrimination Treaty Mixed with Substantive Rights.

    ; The Treaty Combines Obligations of Result with Obligations of

    Conduct.

    ; The General Obligations of States.

    ; The Rights.

    ; Enforcement.

3. The Treaty as a Blueprint for Reform & Research.

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1. Introduction.

    Along with over 40 States, Ireland signed the UN disability convention on 30 March last. This is normally a preliminary step to formal ratification and to be greatly welcomed. Once a treaty is ratified it does not necessarily bind a State internally - rather, it makes a State answerable to international bodies - in this instance for its disability laws and policies. So the real value of such a treaty will therefore be revealed in how intermediate bodies such as those here today internalise its values, principles and rules in moving Irish law and policy forward.

    This is as it should be. Too often international law is shunted to one side and only invoked reactively when there is a problem. It is a much better use of international law to reflect on how it helps States - rather than restricts them - in appropriate policy formulation.

    th Ad Hoc session on December 5th I spoke for Human Rights At the 8

    Commissions and said the following:

    A process has already begun in Capitals reflecting on how to bring law

    and practice into line with the convention to enable ratification to take

    place. In this sense the Convention is already a success in that it

    is spurring a process of reflection and law reform that might not

    otherwise take place or at the speed desired.

In saying so I was mindful of what one of my old professors Lon Fuller -

    used to tell us: if people are taught to do things the right way they generally do the right thing. If the treaty is seen as an occasion for the right process of reflection getting people to address the right issues with a sound value system they will generally reach agreement on legislative change. This is why the domestic law reform process is so important. And this is why a sustained law reform process is now vital in all States that ratify.

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    And we are indeed blessed in this country with a rich tapestry of public institutions - such as the National Disability Authority, the Equality Authority and the Human Rights Commission - all dedicated to identifying the public interest and advising Government accordingly. All these institutions and many others such as the Law Reform Commission will play a vital role in giving life to the treaty here at home.

    Others no doubt at the coal face of service design and delivery will also have to deal with the alignment of their programmes with the norms and structures of the treaty. Their early involvement is a good sign that this treaty will play a constructive role into the future.

    So, although styled as a human rights instrument it should be owned by all public institutions - not just those focused on 'problems' - but also those working towards evidence-based and research informed 'solutions'. We in Ireland have a unique pedigree in the disability field we have a

    traditional social concern for disability. The Commission on Status of Persons with Disabilities was a unique experiment in „listening to citizens‟ and in yielded an important blueprint for change. We pioneered anti-discrimination law in Europe on disability in the mid 1990s. We were the first to do so alongside UK and Sweden. And Ireland was winner of the prestigious FDR prize in late 1990s (1999) a global acknowledgement of our early legislative and policy successes.

    We have the wealth now we need the imagination. And the the treaty does complement and underpin much of the imaginative thinking behind the National Disability Strategy.

    Ireland is now going beyond discrimination to legislative for positive measures (Disability Act). We need to make this work to show others what can be achieved. Ireland was a strong backer of the UN Convention on disability. The disability reform process is now truly global and we have done our bit to set standards - and not just follow them. We can be proud of the role played

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    by our Dept of Foreign Affairs as well as by our Human Rights Commission in negotiating the treaty.

    And I hope we are about to put our money where our mouth is. Irish Aid is moving in the right direction. I think now is the time to officially commit to disability proofing our development aid programme (more or less in Development Aid White paper). If we do so we will be among the first Governments in the world to do this. No inaccessible schools should be built with taxpayers money in the developing world where at least 500 million of the 650 million persons with disabilities live. There is a UN statistic to the effect that only 2% of children with disabilities ever see the inside of a school house. We have a chance to be good global citizens on disability - and the treaty gives us the occasion.

    In the time available, I want to share some reflections on the new UN treaty on the rights of persons with disabilities.

As you know this convention is for all States no matter their level of socio or

    economic development. As mentioned there are over 650 million persons with disabilities in the world 80% of whom live in developing countries. That

    would make at least 100 million persons with disabilities in China and India respectively. I will come back to the development aid implications of this treaty later. All countries are facing the challenges Ireland is facing. And there are „solutions‟ out there in comparative law than we all can lean from.

    st century. The disability treaty is the first human rights treaty adopted in the 21It was agreed in August and was adopted by the UN General Assembly on December 13 in New York. A new UN Committee on the Human Rights of Persons with Disabilities will be established to assess periodic State reports on the progress they have made under the treaty once sufficient ratifications are in.

    The treaty covers a very broad range of areas such as employment, accessibility, education, freedom from exploitation, independent living and a

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    right to be recognised as a person before the law. All of these fields have undergone major change in Ireland in the past decade. All of them will be touched by the treaty. And all of them can benefit from the fresh perspective the treaty offers.

The treaty is accompanied by an optional Protocol which is just that

    optional. This Optional Protocol enables States to recognise the competence of the new UN Committee on the Rights of Persons with disabilities to lodge complaints and have them adjudicated upon. So when Ireland ratifies the treaty it will also have the option to ratify the Optional Protocol allowing persons to bring complaints before the new UN Committee. I would encourage it to do so.

    Assessing periodic State Reports every few years is one thing. The process can be quite abstract and devoid of the human element. Allowing the individual‟s perspective to emerge through a complaints procedure enables the raw edge of human experience to be expressed. It is mainly through such cases that bodies such as treaty monitoring bodies can develop and deepen the jurisprudence or caselaw. And the clarification of State obligations that results can only be of benefit to States as well as to the individuals affected. That, at least is my own view and that is why I would urge Ireland to ratify both the treaty and the Optional Protocol.

    The disability treaty is expected to become one of the most widely ratified treaties in part because it carries no baggage from the Cold War.

    ; It should underpin the reform processes underway in many countries

    as diverse as Ireland and China and give them more coherent

    direction.

    ; It should inspire reform processes to take place in countries where

    none currently exists.

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    ; It gives a language and a philosophical frame of reference to those

    who feel aggrieved but who will now acquire a language to engage with

    power.

    And the development aid provisions should have a dramatic effect throughout the world not least in the way we deliver development aid in Africa.

2. The Treaty.

    First things first. You may ask, why a treaty? Indeed, you may ask, so what? Even if a treaty is adopted there is no guarantee no mechanism to ensure

    strict domestic compliance which is where the rubber hits the road.

Treaty as a Mirror to Society.

    I think a disability treaty was needed for many reasons but one stands out

    for me. It has nothing to do with law and everything to do with the war of

    ideas.

Persons with disabilities were legally and politically disappeared in most

    countries of the world (this is my phrase and it is an exaggeration). Their absence from the mainstream was explained as somehow „natural‟. William

    Blackstone, a famous English legal historian writing several centuries ago once said “upon marriage women suffer civil death”. What he meant was that their legal personhood their recognition as a full human being in the eyes of the law was merged with that of their husband‟s. They became in effect, property; objects and not subjects. And the history of law reform ever since has been to return to women the full indicia of the legal personhood.

Somewhat similarly, persons with disabilities suffered a form of “civil death”. It

    is remarkable how in many different cultures throughout the world persons with disabilities were effectively treated as lesser human beings. It is as if the rationality of our values (valuing each human being equally) pointed in one direction and our culture pulled in the other. And the contradiction was not even experienced or acknowledged a contradiction.

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    So, for me, the treaty basically places a mirror before society. It makes us face up to our own values to our so-called legacy values of dignity,

    autonomy equality and social solidarity. It forces us to acknowledge the large gap that still exists between the myth system of our values and the

    „operations system‟ of how these values are in fact dishonoured in daily

    practice.

    The treaty, then, is a force for rationality as well as a vehicle for carrying these values squarely to the heart of the disability field. It contains an ethic of justification that requires States to respond.

    As with all mirrors we can refuse to look at it, or we can look at it but ignore its reflection or we can take notice of our reflection and commit to a process of change. The treaty is a trigger for this worldwide process of change which is likely to accelerate in the next five years.

The Core Values of the Treaty.

    Why is this treaty important in the Irish policy process? What does it add?

If you want to unpack the heart of the Treaty and to glean its added-value in

    the domestic disability debate - look to Article 3. In that Article the values or principles that animate the treaty are said to be:

    dignity,

    individual autonomy (including the right to make one‟s own

    choices), non-discrimination,

    full and active participation and inclusion,

    respect for difference,

    equality of opportunity,

    accessibility,

    equality between men and women and

    respect for the evolving capacities of children with disabilities.

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    These values are important, for in the words of the Chair of the drafting committee, „they embody the paradigm shift‟ away from welfare and towards equal rights; back from object to subject.

    The other, more established core human rights treaties proved unavailing in the disability context. They could have been put to good use in the disability context but suffered from the same „invisibility‟ of persons with disabilities.

    A Non-Discrimination Treaty Focused on Substantive Rights. As to the kind of treaty that the disability treaty could have become, the drafters were presented with a choice at the outset.

    ; The treaty could have become a substantive treaty containing

    stand-alone substantive rights like the Rights of the Child

    Convention. This would have been quite robust. It was my

    preferred format.

    ; Or, to go to the other extreme, it could have been just a simple

    non-discrimination convention containing a bald proscription

    against unfair treatment. Indeed, there were one or two

    proposals to this effect on the table at the beginning of the

    process. That would not have been of much use because it

    would simply have focused on the need to ensure equal

    treatment in the abstract without reference to any particular

    policy area and without reference to go the extra mile to provide

    material support to enable persons with disabilities to exercise

    their rights in reality and not merely on paper.

    ; Or, it could have been a mix of a non-discrimination treaty that

    attached to a broad swath of rights such as life, liberty,

    education, etc. This was in fact the approach adopted. So the

    treaty blends together a large continuum of substantive rights

    like the right to education and then animates them from the

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    perspective of the equal effective enjoyment of these rights

    using the non-discrimination tool.

The goal, in the language of Ambassador McKay, was not to create new

    rights but to ensure through the use of the non-discrimination principle that all existing rights were made equally effective for persons with disabilities. So the arguments for particular articles focused on the existing continuum or rights under international law and to identify what extra was needed in order to give equal effect to these rights an to tailor them in the context of disability.

    So non-discrimination is the animating principle and it interacts with the various substantive rights some of which are more substantive than others.

    While on the subject of non-discrimination, it has to be recalled that comparative law throughout the world adds an obligation of „reasonable

    accommodation‟ in the context of disability. Failure to achieve it is automatically deemed to be discrimination under most comparative law.

For purely technical drafting reasons the notion of „reasonable

    accommodation‟ was separated from the notion of non-discrimination in the

    EU Framework Employment Directive of 2000. This led the EU Presidency to argue in a crucial session in 2004 that while failure to achieve „reasonable accommodation‟ under the treaty might be regrettable it did not amount to

    discrimination. Thankfully the Presidency did not pursue this line of reasoning and failure to achieve „reasonable accommodation‟ is now deemed by Article 2 to be a form of discrimination.

The concept is not the same as „positive action‟.

    Importantly, the treaty requires „reasonable accommodation‟ in general as well as within many of the specific rights covered. What does this mean? Well, the first thing it means that the obligation we already have to achieve „reasonable accommodation‟ under the EU Framework Employment Directive

    must now be generalised across a broad sweep of areas including, education,

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