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Extending your knowledge: Developing the Convention

In this video, Gerard Quinn and Rosemary Kayess give a background to the development of the UN Convention on the Rights of Persons with Disabilities.
MAN: FutureLearn. [THEME MUSIC] UNSW Australia. Developing the Convention.
GERARD QUINN: What people don’t realise or remember now– because it’s funny how the history is lost in time– that in the 1980s two countries, namely Sweden and Italy, tried to get the issue of drafting a thematic treaty on the rights of people with disabilities on the agenda, and failed. One of the reasons they failed had nothing to do with disability. It was that a lot of states were going through what’s called treaty fatigue in drafting the Rights of the Child Convention, which took many, many years to actually bring to finalisation. So in a sense, they said to people with disabilities, wait.
We will craft a very specific resolution in the UN General Assembly dealing with equal opportunities and disability, in 1993 I believe. No legal effect whatsoever, but the hope was that that would spark change throughout the world. Well, guess what. It didn’t. And therefore the issue of a thematic convention came back on the agenda in the late 1990s. One of the prime movers behind the scenes was Mary Robinson who has newly become UN Human Rights Commissioner.
And studies were commissioned– I was part of one of the major studies– to demonstrate how the existing system, the existing treaty system, didn’t adequately encompass people with disabilities and even if they could be improved, there was nevertheless a case to be made for a thematic convention on the rights of people with disabilities.
And the rest is kind of history, because Mexico blindsided everybody– and we’ve a lot to thank them for– by pushing a resolution through the UN General Assembly to inaugurate an ad hoc committee. And ad hoc meant ad hoc. Any state that wanted to turn up, could turn up– not to draft a convention but to consider proposals for drafting a convention. And eventually, that ad hoc committee morphed into an actual drafting committee and met for six or seven occasions from 2002 up to late 2006, early 2007.
ROSEMARY KAYESS: The convention drafting was an interesting experience. It had an overwhelming participation by people with disability. Compared to any other human rights instrument, its civil society engagement was really, really strong. People with disability and their representative organisations had access to the negotiation process, a lot more than any other convention negotiation.
At any given meeting, there was up to 100 disabled persons’ organisations present for the negotiations. Many of the government delegations had people with disability on their delegations. Australia had two people with disability on the delegation at most of the– well, just about all of the convention negotiation meetings in New York. It was a significant process of capacity building. But it wasn’t just capacity building for governments. It was also a bit of capacity building for civil society. Disability was an area, civil society area, that hadn’t engaged very much with international law, and governments really didn’t have a very strong knowledge base around disability, or a contemporary understanding of disability. Policy and legislation were very much embedded in care, treatment and protection.
A human rights approach was trying to break that paternalistic approach to disability. And it was an opportunity to build both the knowledge base of DPOs, disabled persons’ organisations, and how international law and human rights law operates, as well as to take governments, to take states– member states– beyond care, treatment and protection.
GERARD: One state party turned up during the negotiations and said, if this is just the social model of disability, and if therefore we’re only concentrating on equal opportunities and nondiscrimination, then all we need is a convention with one or two operative paragraphs prohibiting discrimination on the basis of disability. Now, it’s quite obvious that the Disability Convention goes much further, much deeper than that. And that’s because the human rights model, although it’s built on the social model, goes much further and much deeper, I would say. It has to be sensitive to real difference where it occurs, and to accommodate it positively, not negatively. In other words, it doesn’t deny the actuality of the difference of disability.
And furthermore, it’s not just about removing barriers. It’s not just about an equal opportunities agenda. It goes further. It goes deeper than the traditional social model-inspired, equal opportunities law. If you’re looking for a place that’s emblematic of the paradigm shift in the convention– a very overused, misused phrase– then you probably should look at the combination between Article 12 on the right of people with disabilities to make their own way in the world, make their own choices in the world, and have them respected, with Article 19, which really emphasises your right to be in the world, your right to live in the community and so forth.
So these personhood issues didn’t really loom large in the other conventions, but they’re front and centre in the Disability Convention.
ROSEMARY: There were some very contentious articles. Article 24, education, was very contentious. And it was very contentious because there isn’t an agreed position even within the disability sector. There are still very strong calls from within the disability sector for segregated education. Article 12– legal capacity, equal recognition before the law– or what’s called legal capacity. Very contentious. It is pushing for a significant shift away from substituted decision making to universal recognition of legal capacity. That has been a very contentious issue, still continues to be a very contentious issue– will continue to be a very contentious issue.

In the above video, Gerard Quinn and Rosemary Kayess tell the story of how the UNCRPD came to fruition, and how it was drafted.

Gerard suggests that a separate Convention was needed for people with disability because addressing disability-related discrimination requires different mechanisms than addressing other forms of discrimination. He refers to human rights as a model of disability which “goes much further and much deeper” than the social model. Specifically, it positions people with disabilities as people with different needs who require not only express recognition of their personhood but also express accommodation of their diverse bodies and minds within society.

Rosemary reiterates that the representation of people with disabilities during the drafting of the Disability Convention resulted in a large degree of capacity-building for all involved stakeholders — including policy-makers, disabled people’s organisations (DPOs) and civilians.

Talking points

  • In terms of human rights, what makes disability different from other dimensions of human diversity?
  • Why was personhood more emphasised in the Disability Convention that in other conventions?
  • Why was it so important for the Disability Convention to include the voices of people with disabilities?

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