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ADHOC COMMITTEE ON
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The European Union is prepared to work with a view to elaborate a new thematic convention on the protection and promotion of the rights of persons with disabilities in order to ensure their equal and effective enjoyment of human rights. A fundamental principle in elaborating a new convention is that it should have a rights-based approach. The rights-based approach to disability essentially means viewing persons with disabilities as subjects of law. Its final aim is to empower disabled persons, and to ensure their full enjoyment of human rights.
The Secretary General, in the report on "Views submitted by Governments, International Organisations and UN bodies on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities", identifies three models for the Ad hoc committee to consider in order to elaborate a convention on the rights of persons with disabilities. The three models are: the holistic rights model, the non-discrimination model and the hybrid model.
Of these three models the European Union believes that the non- discrimination model offers the most appropriate and constructive approach for elaborating a convention on the promotion and protection of the rights of persons with disabilities. As has been repeatedly acknowledged [by experts, non-governmental organisations and governments alike], the full range of human rights - as set out in international human rights law - apply to all human beings, naturally including persons with disabilities. Therefore the disability rights debate is not about the enjoyment of specific rights or the creation of new rights. Rather, it is about ensuring the equal effective enjoyment of all human rights, without discrimination, by persons with disabilities. Regretfully experience tells us that there are certain obstacles to persons with disabilities' full enjoyment of their human rights. Thus the non- discrimination principle would help make human rights relevant in the specific context of disability, just as it does in the contexts of for example gender and children. Non-discrimination, and the equal effective enjoyment of all human rights by persons with disabilities should therefore be the dominant theme of the long overdue reform in the way disability and persons with disabilities are viewed throughout the world. Moreover such an approach should integrate the core values that are of particular importance in the context of disability, including autonomy, participation, non- discrimination, integration and equality of opportunity.
The advantages of elaborating a convention based on the non- discrimination model include the recognition of the universality of human rights while simultaneously underlining the specific situation for persons with disabilities' full enjoyment of their rights. By identifying specific areas where discrimination is likely to occur, a convention for the promotion and protection of the rights of persons with disabilities would be instrumental in giving visibility to and acknowledging the disability dimension of human rights. Moreover, elaborating a convention based on the non-discrimination model would exclude the risk of diluting or diverging from human rights as laid down in existing human rights instruments.
Furthermore, the non-discrimination model would place disability- related problems in an internationally established legal framework, whereby no legal standard lower than already established human rights norms can be accepted.
As for the holistic model, its focus on tailoring existing human rights provisions to the specific situation of persons with disabilities does provide certain interesting elements that deserve further reflection. Nevertheless, the European Union believes that the primary aim of a new thematic convention is to raise awareness and recognition of disability as a human rights issue and to deepen the understanding and observance of UN member states with regard to their existing obligations towards persons with disabilities under international human rights law. The aim should not be to create new human rights, to promote enumerations or new interpretations of existing human rights.
The disadvantage of the holistic model is exactly that it could entail an unnecessary exercise which, apart an unfortunate focus on differentiation between universal human rights and those of persons with disabilities, could include a risk of diluting the protection offered to persons with disabilities under existing international human rights law. The EU would prefer to see a short and effective convention which focuses on the core issues relevant to persons with disabilities.
The third model presented by the Secretary General is the hybrid model. A model that recommends the integration of human rights norms with social development policy. As a model this approach provides an interesting example of how governments could proceed to adopt policies that bring to light the specific needs of persons with disabilities. But it is not an appropriate approach for elaborating a binding instrument which aims to ensure the equal and full enjoyment of persons with disabilities' rights within the framework and on an equal footing with existing human rights norms. Such a model could serve as a plan of action - in line with the already existing UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities - but not as a human rights convention that creates obligations for states and concurrent rights for individuals. Social development measures could be included in a human rights convention, but should in that case be formulated as examples of measures that should be taken in order to ensure the enjoyment of the rights referred to in the convention.
In this context it is also worthwhile to remember the multi-track approach, that is integrating disability further into the work of existing human rights mechanisms and elaboration of a new convention should be seen as complementary approaches. Together with continuing efforts to address the social development dimension of the problems faced by persons with disabilities.
The choice of the type of convention is also of symbolic significance. To select a human rights model rather than a social development model, or a hybrid model, would send a clear political signal from the international community of the transition from a welfare to a human rights approach. It would make it clear that disabled persons should no longer be viewed as vulnerable "clients" or "patients" but rather as equals. A strict human rights approach has also been clearly favoured by the disability movement and other experts in the field, including the former Special Rapporteur on Disability.
16 June 2003