How to “Create” a New Human Right: the U.N. Convention on the Rights of Persons with Disabilities

by Julian Ku

The BBC reports that delegates in New York appear to be close to an agreement on a Convention on the Rights of Persons with Disabilities. This new, potentially expansive human rights treaty, will be submitted to the U.N. General Assembly this September and then opened for signatures and ratifications in the fall.

I don’t have any views on the substance of the treaty (yet). I do think the treaty is a useful example of the modern mechanisms for creating international human rights. This Convention (rightly or wrongly) is the product of lots of hard work and lobbying by national and international non-governmental organizations that advocate on behalf of the disabled. Governments are involved, of course, but the CRPD may be a classic NGO-driven treaty that is the result of the increasing effectiveness of NGOs in the international sphere.

http://opiniojuris.org/2006/08/24/how-to-create-a-new-human-right-the-un-convention-on-the-rights-of-persons-with-disabilities/

2 Responses

  1. An excellent philosophical and ethical discussion that may help one appreciate the need for such a convention is found in Martha Nussbaum’s Frontiers of Justice: Disability, Nationality, Species Membership (2006), pp. 96-223.

    In addition, Jonathan Wolff, of the Philosophy Dept., University College London, has a well-argued paper, ‘Disability among Equals,’ available for download at his website: http://www.homepages.ucl.ac.uk/~uctyjow/

  2. Update (I hope you don’t mind Professor Ku):

    From the JURIST we learn: ‘The US has indicated, however, that it will not sign [New Standard report] the new international accord, insisting that US domestic measures on the federal, state and local levels are already adequate for the purpose. Critics say the US position is a slight to the principle of international regulation and monitoring. The treaty is expected to take effect in 2008 or 2009 after the necessary number of ratifications has been reached.’

    From the The New Standard:

    “Our view is that the US actually already has in existence on the federal level, the state level and the local level a very good framework of laws and practices to assist citizens with disabilities,” Paul Denig, with the US State Department, told The NewStandard, referring to the 1990 Americans with Disabilities Act (ADA). “In our view, this treaty would not add to that.”

    In response to a question about whether the ADA is stronger than the draft UN convention, Denig said they are “two different instruments and we do not want to rank them, particularly since the disabilities convention is still under negotiation.”

    Silvia Yee, staff attorney at the California-based Disability Rights Education and Defense Fund, said it is important for the US to sign the treaty to show support for the world’s 650 million people who have disabilities, many of whom currently have few rights. But she agreed it is “very difficult” to directly compare the UN convention to the ADA.

    “They are [like] apples and oranges,” Yee told TNS. “The ADA is so linked to American civil rights and the American legal system, and also the history of the movement in the disabled community … so that’s very different than the human rights approach of the UN convention which is broader and more encompassing [of social rights issues].”

    Though the US refuses to sign the convention, it has been heavily involved in negotiations on many of the draft’s provisions, including end of life issues; parental decision-making regarding children; the prohibition against involuntary sterilization; and informed consent for genetic testing, medical research and scientific experimentation.

    The US remains “concerned” about some areas of the draft convention, though Denig told TNS that negotiators will not comment on any particular provision still under negotiations “regardless of whether they are controversial.” He added that the US “led the way to include language expanding political participation of persons with disabilities” and worked with others to address “end of life issues to prevent euthanasia.”

    Yee said she does not believe US opposition to signing the convention has anything to do with the issue of disability rights.

    “I think it’s because the US just doesn’t necessarily believe in the international treaty and rights monitoring model,” she speculated. “I think it has always been very staunch about the sovereignty of the United States and not necessarily in favor of any giving up of that sovereignty in terms of recognizing international bodies.”

    According to the UN Secretariat Thomas Schindlmayr, only 45 countries have anti-discrimination legislation protecting disabled people. The General Assembly’s ad-hoc committee is scheduled to wrap up negotiations today.

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