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Translating the Convention into a domestic context

In this video, various people who work in disability describe the importance and challenges of activating human rights frameworks at the local level.
MAN: FutureLearn. [THEME MUSIC] UNSW Australia. Applying a human rights framework to disability.
THERESE SANDS: Human rights framework really has to underpin all advocacy. So it’s critical to advocacy. Because the whole point of advocacy is– well, obviously from my point of view– the whole point of the advocacy is to progress the rights of people with disability. And those rights are articulated in human rights frameworks. So you have to base your positions and outcomes on those frameworks. So that might be in terms of writing policy positions or policy documents that you’re putting forward, writing submissions to inquiries, letters to ministers, speaking at public forums or conferences, working within legislative frameworks, thinking about advocacy strategies. What legal avenues are open to you? What social policy avenues are open to you? What’s the political climate like?
Who would be useful to progress the human rights issues for people with disability, in terms of politics, for example? How do you get those ideas across? You are always working from a human rights point of view, in terms of advocacy. So that means that you are using human rights tools all the time. So you’re using things like the Disability Discrimination Act, in Australia. You might be using the complaints process to the Australian Human Rights Commission under the Convention on the Rights of Persons With Disability. You might be making individual communications or complaints to the UN Committee on the Rights of Persons With Disability.
You might be appearing before a UN committee to speak about the rights of people with disability and how their rights are violated in Australia. So you’re using all of those mechanisms in your advocacy all the time. And I would see it as human rights work. So it’s not disability work. It’s human rights work. And really, disability advocacy should be seen as part of the human rights movement and part of the human rights sort of NGO sector in that respect. So a lot of– and that’s actually quite important, because you need to be able to work across sectors and not be siloed in a disability space, because human rights cuts across so many different areas.
And people with disability are multi-dimensional and have many different characteristics and facets. So for example, an Aboriginal girl with disability is going to have a very different life than an Aboriginal man, white man who might live in suburban Sydney, for example. So all of those intersectional factors are critical, in terms– from working from a human rights framework. You need to be thinking about women’s rights, children’s rights, disability rights, the rights of Indigenous persons, a whole range of rights and how they intersect. Because people with disability are not an homogeneous group.
GERARD QUINN: One spectacular success of the Convention, and I know I’m speaking in Eurocentric terms for the moment, is prior to ratification by the European Union, alongside its member states, the European Union spent hundreds of millions of euros building institutions for people with disabilities, mainly in Eastern Europe. When those regulations were up for review three years ago, a lot of us managed to lobby hard to persuade the European institutions that henceforth, not one centime of European taxpayers’ money would be spent in building institutions, because of the problem of Article 19 of the Convention and the spending of money for that reason would violate Article 19. And the battle was won. The European institutions completely agreed.
And now, they will only spend money to assist member states to move toward community living arrangements for people in disabilities in general, but also specifically those who now continue to be in institutions. That was a huge victory for us and would not have happened were it not for the actual ratification of the UN Convention. And by the way, the numbers are staggering. There’s still about 1.2 million European citizens in institutions. I’ve written a paper some years ago called, “Beware the Temptation of Elegance.” Don’t assume for a moment that a UN treaty body will solve your problems for you. You can, if your state has ratified the optional protocol, bring an individual complaint.
But of course, the outcome of that complaint and whether your state complies with it depends very much on your domestic legal and political arrangements. I would say your primary focus should be the domestic enforcement machinery, which– and I emphasise again and reiterate again– the Convention demands to be put in place. I think a lot counts on how you interact with that. A lot counts on its capacity to respond. And what we’re talking about there is the monitoring framework that has to be put in place by the contracting parties, which must include an independent mechanism, which is code word for national human rights bodies, ombudsman bodies, entities like that.
So you’re finding now, around the world, that these bodies are really stepping up, in terms of their engagement on the enforcement of disability rights domestically.
ANTONI TSAPUTRA: We have yet to see the progress that we expect when it comes to the implementation of the Disability Rights Convention. This is simply because the lack of government political will. First, Indonesia signed the convention in 2007. And it took four years before the government ratified this convention without reservation. The Indonesian government should have ratified also the optional protocol, which will even ensure the realisation of disability rights in Indonesia, you know. The other challenges also are some domestic laws which are not in compliance of UNCRPD. A husband has a right to divorce his wife when his wife is no longer to run her function as a wife because of disability. And we still have this law.
The really main key here is that for Indonesian government to revise the old disability law as soon as possible. For most Indonesian disability community and organisations, what they want to see first is the revision of the law number four of 1997 with the new law, which is informed by the UNCRPD. This law will ensure the government’s obligations as enshrined in the UNCRPD. And also, this law will be a guideline for disability policy all the way from the central level to the subnational authorities or the local governments.
DINESHA SAMARARATNE: If we are to get about recognising the human rights of women with disability, there has to be a paradigm shift in governance. Disability has to be included in each and every aspect of policy making and governance. So far in Sri Lanka, disability is a subject matter for the Ministry of Social Services. No other ministry will deal with disability. If you are a woman with disability and you are seeking some kind of financial assistance for housing, the regular Minister that’s in charge of that object will redirect you to the Ministry of Social Services. So you’re really separated out from the rest of the population as being different. So things like that have to change. That is the first thing.
Secondly, there has to be broad-based mobilisation, not just for the recognition of rights of women with disability, but generally in recognition of human rights of people in the community. Because that ties up with our conflict as well. We are still trying to understand how to respect each other’s rights, irrespective of our ethnicity. So there are a lot of lessons to be learned in how to recognise and respect each other’s rights and how as the state, you have to respect everyone’s rights, regardless of the differences we have in the community. And that’s easier said than done. There have to be long-term interventions at all different levels– awareness raising, mobilisation, advocacy. But I think a good place to start is education.
Because we have found– research has shown that some of our textbooks include certain problematic stereotypes of the Sri Lankan community. So things like that have to change. And disability must be included in the list of things that we are going to include and that transform Sri Lankan society.
KAREN SOLDATIC: One of the key problems, actually, that emerges in disability rights is that disability itself, or what is disability, is not really defined in concrete. So even though we have– even though countries like Australia and the UK have signed and ratified the UN Convention on the Rights of Persons with Disabilities, their mechanisms of realisation around economic rights in social security is changing, particularly since the global financial crises. And more and more people with disabilities who used to be defined as disabled are no longer being defined as disabled and having their economic rights removed from them. So they’re no longer defined as disabled in social security law.
And therefore, they no longer get access to disability support payments and so forth. Disability budgeting has emerged, really from the feminist movement again, but in the Global South, where people are trying to track, are their governments really implementing processes, policies, institutions, that will realise persons with disability rights? And how can we do that? So one of the things that disability activists are doing, they’re saying, OK, well the law is great. But how do we get from the law to every day. And so what they’ve started to do through budgeting processes, they’ve started to map, what is the investment in disability rights realisation at this broader structural level, in mainstream areas, and more specifically, in the day-to-day areas of disability support.

In this step we explore the importance of the international human rights framework in local contexts, and the challenges that remain in creating change at the national, local and personal levels.

Therese Sands, a systemic advocate for People with Disability Australia (PWDA), explains that the human rights framework must underpin advocacy work. Within an Australian context, she sees human rights as providing her with a range of tools and processes to pursue advocacy, including:

Gerard Quinn also discusses ways in which a human rights approach has been useful, citing the example of how the UNCRPD was used to justify the direction of funding for disability supports within the European Union. But Gerard also reminds us that human rights in and of themselves are not enough. His 2009 essay Resisting the “Temptation of Elegance” further expands on this point.
Antoni, Dinesha and Karen all talk about some of the limitations of the UNCRPD in their own local context. As an illustration of Gerard’s concern about the necessity of domestic or local enforcement of human rights, Antoni and Dinesha explain that human rights requires a “paradigm shift” in government, along with significant political will. Karen goes further to explain how definitions of disability are unclear in the UNCRPD. As such, governments often change their definitions of disability and with these changes the protection of rights is removed. Karen explains this particularly in terms of economic rights, where changes in government policy around who qualifies as disabled can result in the denial of access to certain protections and services and prevent people from realising their human rights in everyday life.

Talking points

  • What is the usefulness of human rights frameworks at the national, local and personal levels?
  • What are some of the challenges of applying human rights frameworks in a domestic context?
  • Are there recent examples of human rights frameworks successfully being applied in your own local context? (You may need to do some research for this one.)

This ends the Basics for Week 2. In the next step, we Expand our interests by unpacking the development and implementation of disability discrimination acts.

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