The Development of Disability Rights Under International Law

From Charity to Human Rights

Arlene S. Kanter

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134444731
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The adoption of the Convention on the Rights of People with Disabilities (CPRD) by the United Nations in 2006 is the first comprehensive and binding treaty on the rights of people with disabilities. It establishes the right of people with disabilities to equality, dignity, autonomy, full participation, as well as the right to live in the community, and the right to supported decision-making and inclusive education. Prior to the CRPD, international law had provided only limited protections to people with disabilities.

This book analyses the development of disability rights as an international human rights movement. Focusing on the United States and countries in Asia, Africa, the Middle East the book examines the status of people with disabilities under international law prior to the adoption of the CPRD, and follows the development of human rights protections through the convention's drafting process. Arlene Kanter argues that by including both new applications and entirely new approaches to human rights treaty enforcement, the CRPD is significant not only to people with disabilities but also to the general development of international human rights, by offering new human rights protections for all people.

Taking a comparative perspective, the book explores how the success of the CRPD in achieving protections depends on the extent to which individual countries enforce domestic laws and policies, and the changing public attitudes towards people with disabilities. This book will be of excellent use and interest to researchers and students of human rights law, discrimination, and disability studies.

1 The development and adoption of the United Nations Convention on the Rights of People with Disabilities

Introduction

The Convention on the Rights of People with Disabilities was the product of nearly two decades of advocacy efforts by individuals, nongovernmental organizations (NGOs), disabled people’s organizations (DPOs), and governmental representatives. However, the formal negotiations and drafting process took only five years. The process began on December 19, 2001, when General Assembly Resolution 56/168 established the Ad Hoc Committee on a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities. This resolution charged the Ad Hoc Committee with considering “proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and nondiscrimination and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development.”¹ The Ad Hoc Committee included representatives of over 40 countries, and over 400 different NGOs and DPOs. The negotiation and drafting process ended on December 13, 2006, when the CRPD was adopted by the UN General Assembly. It opened for signature on March 30, 2007.

Today, over one billion people in the world have a disability; making people with disabilities the fastest growing minority in the world.² However, the development of international laws to protect the rights of people with disabilities occurred relatively slowly. Prior to the adoption of the CRPD, the UN had adopted several international instruments related to the rights of people with disabilities, but none of them were binding, and none adopted a human rights approach to disability, as explained more fully below.

History of the UN’s human rights treaties

The international legal scholar, Beth Simmons, has observed that the development of international human rights law was not “inevitable.”³ Indeed, but for the atrocities of World War II, occurring when they did, international human rights law would likely not be as developed as it is today. Classical international law had completely rejected the notion of fundamental human rights in favor of a theory of State sovereignty.⁴ The early years of international law therefore focused on relations between States and not on conduct of States towards their own citizens. According to this view, human rights violations that occurred within a country’s borders were considered an “internal affair” and not appropriate for scrutiny by outsiders. Further, they were and subject only to enforcement through the use of existing domestic remedies. As such, it was the very principle of international law which prohibited States from intervening on behalf of individuals within another State’s border.

The unprecedented violence of World War II and the Holocaust exposed the vulnerability of the individual in an international system that was based solely on State sovereignty. It also showed the failings of prior attempts by the international community, to protect individual rights and freedoms.⁵ Under the leadership of Hitler, the Nazis sought to place Germany in a position of national preeminence in which the individual, in accordance with classical international law theory, was irrelevant. Although Germany ultimately failed in its quest for world dominance, World War II demonstrated to the world the risks of unbridled State sovereignty and the need for international cooperation to limit the use of State power against its own citizens. With millions of soldiers and civilians killed during World War II, human rights were no longer a matter between citizens and their governments – even democratically elected governments. Rather, human rights became a matter of international law enforceable against the State. Following World War II, therefore, the world’s leaders had a moral impetus to afford greater protections to the individual under international law.

In forming plans for a new world order following World War II, international leaders as well as legal scholars considered the protection of human rights both as an end in itself and as a means of ensuring national security. They looked to philosophers such as John Locke and Jean-Jacques Rousseau who had recognized early on that certain fundamental human rights are beyond the scope of State control.⁶ The post-World War II human rights movement therefore challenged the preeminence of national sovereignty and elevated human rights as an international priority, thereby permanently altering the scope and coverage of international law.

On June 16, 1945, following a series of meetings with Winston Churchill, Joseph Stalin, and Franklin Delano Roosevelt, the five permanent members of the Security Council (China, France, the Soviet Union, the United Kingdom, and the United States) agreed to draft a charter to create the United Nations. This new UN Charter was signed by representatives of 51 countries. After it was ratified by the five permanent members of the Security Council and a majority of the other signatories, the United Nations officially came into existence on October 24, 1945.

The UN Charter itself was drafted by the UN Human Rights Commission, under the leadership of Eleanor Roosevelt. The Commission represented a group of people with vastly differing backgrounds. It included a Chinese Confucian philosopher and diplomat, Pen-Chung Chang; a Lebanese spokesperson for the Arab League and existentialist philosopher, Charles Malik; and a Jewish French legal scholar who had lost many of his relatives in the Holocaust and who would later win a Nobel Prize, René Cassin. These Commission members worked to overcome obstacles posed by their own divergent cultures and ideological differences that had been a source of war among nations, some for centuries. These Commissioners agreed to transcend their differences in order to develop a new international charter, premised on the view that human rights extend beyond the “narrow limits of the Western tradition.”⁷ Therefore, as early as the drafting of the UN Charter itself, human rights were seen as based on a universal notion of the common good.⁸

Today, many scholars and activists argue that there is no fully universal concept of human rights.⁹ Instead, they argue, human rights must take into account the diverse cultures, political systems, and economic realities of each country or region of the world. Such critics believe that the dominant discourse in human rights continues to reflect a Western, liberal, “developed” or Global North perspective.¹⁰ Others condemn human rights discourse as a front for Western imperialist values, while others contend that human rights are universal and that respect for human dignity is a “borderless and unbounded concept.”¹¹

Regardless of one’s view of the role of human rights from a cultural relativist or a universalist perspective, most scholars agree that the purpose of the UN Charter is more pragmatic than philosophical. The Charter seeks to secure and maintain peace among nations, regardless of, or even in spite of, the various beliefs of people within those nations. Thus although the UN Charter affirms the fundamental human rights, dignity, and worth of all human beings, it refers to the term “human rights” only a few times, and only in nonbinding terms such as “assisting in the realization of human rights,” “promot[ing] … universal respect for and observance of human rights,” and “encouraging respect for human rights.”¹² Therefore, the main purpose the Charter, as stated in Article 2(3), is to require UN Member States to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”¹³ The human rights of individuals or groups was not the primary focus of the Charter.

Following the adoption of the Charter, the UN adopted a series of treaties, beginning with the Convention on the Prevention and Punishment of the Crime of Genocide (1948), as well as the first international human rights document, the Universal Declaration of Human Rights (1948). According to the Universal Declaration of Human Rights (UDHR), one of the fundamental goals of the UN is to promote and encourage respect for human rights of all. As it states:

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom … Now, therefore the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations …¹⁴

In the years that followed, the UN adopted two additional human rights treaties, the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966), which, together with the UDHR, are referred to as the “International Bill of Rights.” Subsequently, the UN adopted additional human rights treaties, nine of which today are considered the “core” human rights treaties. These core treaties include the International Covenant on Civil and Political Rights (ICCPR, 1966), the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984), the Convention on the Rights of the Child (CRC, 1989), the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW, 1990), the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED, 2006), and, finally, the Convention on the Rights of Persons with Disabilities (CRPD, 2006). Yet prior to the CRPD, none of these human rights treaties recognized people with disabilities as a group worthy of legal protection.

One exception is the CRC that refers to children and parents with disabilities in Articles 2 and 23. Article 2 requires:

States Parties [to] respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.¹⁵

Article 23 of the CRC requires that children with disabilities be provided with the assistance they need to enjoy “a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community,” as well as the “special” care, assistance, and access to information they need. Notwithstanding these two articles, the CRC nonetheless fails to state unequivocally that children with disabilities are entitled to be treated on an equal basis in all aspects of life with children without disabilities.

The remaining core human rights treaties do not mention disability at all, although some provide a catch-all phrase that protects people based on “other status.” This “other status” category could provide l...