ADHOC COMMITTEE ON
AN INTERNATIONAL CONVENTION

Pursuant to operative paragraph 5 of resolution 57/229, the Office of the High Commissioner for Human Rights (OHCHR) wishes to submit its views on proposals for a new convention on the rights and dignity of persons with disabilities. OHCHR’s contribution will focus on: a) the elements to be considered in a new convention, including the work done in the field of human rights and non-discrimination, and b) monitoring of such convention.

1. Work done in the field of human rights and non-discrimination

No United Nations human rights treaty applies solely to persons with disabilities. However, the seven core United Nations human rights treaties[1] apply to this category of individuals by virtue of the principle of non-discrimination which underpins the UN human rights framework. Some of these treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child include specific provisions relating to non-discrimination, whereby States Parties undertake to guarantee that the rights recognized in the treaty will be exercised 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.” Although disability is not explicitly included among the prohibited grounds for discrimination (except in article 2(1) of the CRC), it is included in the concept of “other status,” and is accordingly one of the prohibited grounds of distinction. The implementation of the six human rights treaties which are currently in force is monitored by a committee of independent experts – referred to as a “treaty body”.[2]

A comprehensive analysis of the work carried out by United Nations human rights treaty bodies with respect to disability can be found in a recent study,[3] entitled Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability.

Examples of the work of the treaty bodies in this area include:

a) General Comments/Recommendations

Although many of the general comments/general recommendations of the human rights treaty bodies are relevant to the issue of disability,[4] two focus specifically on the rights of persons with disabilities.

CESCR General Comment No. 5 (Persons with disabilities) spells out the relevance of economic, social and cultural rights in the context of disability.[5] It includes:

• a definition of disability-based discrimination;[6]
• a reference to the United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities[7] as a “valuable reference guide” for the interpretation of the relevant obligations of States parties under the Covenant;[8]
• a focus on equality and non-discrimination;
• a reference to the concept of reasonable accommodation as a way to reduce structural disadvantages and to give appropriate special treatment to persons with disabilities.[9]

General Comment No. 5 also provides guidance for tailoring ICESCR provisions to the specific situation and needs of persons with disabilities.

CEDAW General Recommendation No. 18 (Disabled women) highlights the need to take measures (including temporary special measures) to ensure that women with disabilities have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life. States parties are also urged to provide information on the situation of women with disabilities in their reports.[10]

b)  Individual complaints

Although there is scope under the various optional individual complaints procedures to the CERD, ICCPR, CAT and CEDAW to protect the rights of persons with disability, few complaints of this nature have been received. Three of the communications which have been considered by the  Human Rights Committee (HRC) under the first Optional Protocol to the ICCPR address disability issues:

• In Clement Francis v Jamaica (Communication No. 606/1994), the Committee found that the prolonged detention of the author on death row and the circumstances of his incarceration caused a serious deterioration of his mental health leading to a disability, and therefore amounted to cruel, inhuman or degrading treatment and a lack of respect for his dignity contrary to article 7 and 10 (1) of the ICCPR.
• Hamilton v Jamaica (Communication No. 616/1995) involved the treatment and conditions of confinement of a prisoner with a physical disability on death row. The HRC affirmed that the failure by prison authorities to take his disability into account and make proper arrangement for him violated the victim’s rights under article 7 and 10 (1) of the Covenant.
• In C v. Australia (Communication No. 900/1999), the HRC found that the State party’s failure to attend properly to the author’s deteriorating mental health and to take the steps necessary to ameliorate the author’s psychiatric illness constituted a violation of his rights under article 7 of the Covenant (freedom from torture or cruel, inhuman or degrading treatment or punishment).

c) The Day of General Discussion on Children with Disabilities

In 1997, the Committee on the Rights of the Child (CRC) devoted one day of its session to discussion of the theme of “The rights of children with disabilities,”[11] to enhance understanding of the content and implications of the provisions of the Convention with regard to the situation and needs of children with disabilities.

The discussion focused on such issues as non-discrimination (article 2), the right to survival and development (article 6), self-representation and fullest possible participation of the child in decisions affecting him/her (article 12), the right of children with disabilities to equal access to education (article 28). The CRC adopted several recommendations on the basis of the discussion. A working group on the rights of children with disabilities was established in follow-up to the day, with the aim of developing a strategy for the implementation of the recommendations of the CRC. This led to the establishment in 2000 of the NGO “Rights of Disabled Children,” which provides regularly country-based information to the CRC on the situation of children with disabilities.

2. Elements to be considered in the new convention: complementarity between a new treaty and existing instruments

A new convention would allow for the consolidation – in a single legally binding instrument – of normative standards elaborated within the United Nations over the past two decades in the field of human rights, including non-discrimination, as well as in the field of social development. Any new convention should build upon existing human rights norms and standards in the Universal Declaration of Human Rights, the seven core human rights treaties, and other human rights instruments. It should also reflect the jurisprudence of the human rights treaty bodies with regard to disability, and in particular the content of CESCR General Comment No. 5. The experience of disability NGOs and National Human Rights Institutions should also be taken into consideration. OHCHR welcomes the decision of the Ad Hoc Committee at its first session to invite United Nations bodies, commissions, experts, national disability institutions, National Human Rights Institutions and other entities to future meetings.

A new convention should be regarded as an addition to existing system of protection, rather than an instrument replacing the protection afforded by existing human rights treaties in the disability field. It should enhance the promotion and protection of the human rights of persons with disabilities by ensuring a more tailored approach and through any gaps that may be identified.

3. Options relating to the nature of a new convention

1. A first option could be to elaborate a comprehensive human rights convention, such as CRC. Such convention would include civil, cultural, economic, political and social rights and tailor them to the specific situation and particular needs of persons with disabilities. In addition, it could include rights that are specific to this group of individuals.
2. A second option could be to elaborate a convention focusing on general human rights principles particularly relevant in the context of disability, such as equality and non-discrimination (as well as dignity, autonomy, reasonable accommodation, temporary special measures and full participation). Examples of this kind of instrument are the CEDAW or the CERD. The focus on discrimination could facilitate the elimination of de jure and de facto obstacles to the equal enjoyment of human rights in the civil, political, economic, social and cultural fields, and thus favour the achievement of full participation and equality of opportunities for persons with disabilities.
3. A third option could be theelaboration of a convention focusing on standards developed in the field of social development, which could include some human rights provisions, in particular with respect to non-discrimination and equality.

4. Monitoring mechanisms

In considering the appropriate mechanism which would be tasked with monitoring implementation of any new instrument, the report of the Secretary-General, “Strengthening of the United Nations: an Agenda for Further Change,”[12]and particularly those parts relating to the human rights treaty body system, should be taken into account. The report notes that the existing treaty mechanisms and procedures constitute a large, intricate and increasingly complex network, and identifies the strain of the burden of reporting obligations on the resources of States and the Secretariat.  The Secretary-General concludes that one effect of these reporting demands is a failure of States parties to report, either on a timely basis or at all.

OHCHR is currently consulting with treaty bodies, States parties and other stakeholders on new streamlined reporting procedures. The outcome of such discussion, expected to be presented to the Secretary-General in September 2003, will be made available to the Ad Hoc Committee.

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Notes

[1] International Covenant on Economic, Social and Cultural Rights (ICESCR); International Covenant on Civil and Political Rights (ICCPR); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Convention on the Rights of the Child (CRC). The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Convention) will enter into force on 1 July 2004.

[2] The six treaty bodies are: the Human Rights Committee, which monitors the implementation of the ICCPR; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of Discrimination against Women; the Committee against Torture; the Committee on the Rights of the Child. The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families will be established in 2004.

[3] G. Quinn and T. Degener, Human Rights and Disability: the Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability, HR/PUB/02/1, United Nations, New York and Geneva, 2002.

[4] See for example HRC General Comment No. 19 (Protection of the family, the right to marriage and equality of the spouses) and No. 20 (Replacing General Comment 7 concerning prohibition of torture and cruel treatment or punishment) and CESCR General Comments No. 13 (The right to education) and No. 14 (The right to the highest attainable standard of health).

[5] CESCR General Comment No. 5, Persons with disabilities, 9 December 1994.

[6] The Committee defines “disability-based discrimination” as including

any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights. (para. 15)

[7]Adopted by General Assembly resolution 48/96 of 20 December 1993.

[8] General Comment No. 5, para. 7.

[9] The Committee notes that  in so far as special treatment is necessary,

States parties are required to take appropriate measures, to the maximum extent of their available resources, to enable such persons to seek to overcome any disadvantages, in terms of the enjoyment of the rights specified in the Covenant, flowing from their disability. (para. 5)

[10] CEDAW General Recommendation No. 5, Disabled women, 4 January 1991.

[11] Day of General Discussion on “Children with disabilities”, CRC/C/66, Annex V, 16^th session, 6 October 1997.

[12] A/57/387.

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