ARTICLE: A New Human Rights Treaty for People with Disabilities (8 September 2005)

Summary: As a new UN Convention for people with disabilities is being drafted, Gerison Lansdown looks at the how children's rights are addressed in the draft Convention and what Save the Children, through the umbrella of the International Disability Caucus, is lobbying for.

A new human rights treaty for people with disabilities

Sept 2005

Gerison Lansdown

People with disabilities have argued for many years that disability is a human rights, not a welfare issue. Their arguments were finally accepted when the UN, in 2001, agreed to set up an Ad Hoc Committee to consider proposals for a new human rights convention to address the rights of people with disabilities. After a series of regional consultations, the Ad Hoc Committee appointed a Working Group to prepare a first draft of the Convention. This draft was produced in January 2004. Since then, the Ad Hoc Committee has been meeting in New York twice a year to review the draft and finalise the text. It is anticipated that there will be two more meetings - in January and August 2006 - to complete the process.

The aim of the Convention is not to create new human rights standards. All the rights embodied in the existing human rights treaties apply equally to people with disabilities. The problem lies in their implementation. People with disabilities, for example, are widely denied equal civil rights, rights to family life, recognition of legal capacity and are disproportionately vulnerable to both physical and sexual violence. Yet any review of the government reports on implementation of the two international covenants reveals a virtual total absence of any acknowledgement of how the rights of people with disabilities are being realised. Furthermore, those violations are not being challenged by the treaty monitoring bodies. In many ways, people with disabilities are rendered invisible. Accordingly, the aim of the new Convention is to introduce obligations on governments to implement existing human rights for people with disabilities on an equal basis with non-disabled people.

Children with disabilities have experienced exactly the same difficulties in the realisation of their rights. Despite the unique provision in the CRC which explicitly includes disability as a ground for protection from discrimination, children with disabilities continue to face extreme forms of discrimination in most countries around the world. Analysis of government reports to the Committee on the Rights of the Child reveals that virtually the only issues ever addressed by governments in respect of children with disabilities relate to education and social welfare. Other rights — to participate, to play, to information, to freedom from violence, to an adequate standard of living, and indeed, the right to life are rarely, if ever, addressed. It is therefore imperative that this new treaty pays attention to children as well as adults with disabilities in imposing obligations on governments to ensure that all people are afforded equal respect for their rights.

To date, the text does not achieve this objective. It contains one article dedicated to children. However, the wording is largely lifted from Article 23 of the CRC and as such, serves to add very little to strengthen existing rights. Children’s rights are not addressed anywhere else in the Convention except in relation to education. Urgent action is needed to ensure that this unique opportunity to introduce significant and positive changes in the lives of one of the most marginalised groups of children on the planet is not to be wasted

Save the Children UK has been lobbying, through the umbrella of the International Disability Caucus, an alliance of 50 plus disabled people’s organisation and allied NGOs, to try and introduce the necessary changes to the existing text. Unfortunately, it is not pushing at an open door. The EU, in particular, has been strongly opposed to the inclusion of specific references to children arguing that children already have their own Convention and references in the new treaty would potentially undermine those rights. This is an inconsistent and flawed argument. The same critique could be applied to adults with disabilities who have the International Covenants, and therefore should need no additional protection. The EU also argues that children will be adequately protected by the general provisions in the text and do not require additional or special provisions. Of course, many of the articles in the draft text do extend equally to children. However, there are many issues which only apply to children and will be ignored in a text which fails to allow for the specific concerns faced by particular constituencies.

The key issues being lobbied for by Save the Children include:

• Birth registration — children with disabilities are far less likely to be registered at birth in many developing countries, resulting in denial of citizenship and often inability to access education or health care. At worst, it can render children invisible, such that they can be killed with impunity. Governments must be required to take measures to address this serious violation of rights.
• Right to education - the principle of every child having an equal right to education is already included in the draft text, but it needs to be strengthened to ensure that the right to inclusive quality education is clearly established. Governments must be required to take the necessary action to make genuine inclusion a reality for all children.
• Child protection measures — although the current draft addresses the need for measures to protect people with disabilities from violence, it is also important to include obligations on governments to ensure that child protection systems are adapted to ensure that children with disabilities are equally protected. At present they are largely inaccessible to children with disabilities. And violence against children is nearly always dealt with by different government departments than violence against adults. Unless specific obligations are included, children with disabilities are at risk of simply be sidelined in any measures taken under the new Convention.
• Evolving capacities — one of the general principles in the draft text relates to recognition of people with disabilities to autonomy, and the freedom to make one’s own choices. However, children do not have autonomy in law, nor do they have the freedom to make their own choices. Without explicit recognition that, in respect of children, regard must be given to their evolving capacities in the exercise of their rights, these principles exclude children and effectively render them invisible.
• Access to justice — children with disabilities are consistently deemed to be incompetent witnesses and therefore lack opportunities to achieve justice when their rights are violated. Governments must be required to introduce the necessary measures to ensure that children with disabilities can gain access to justice.
• Right to family life — families of children with disabilities need to be provided with appropriate support to enable them to promote their children’s optimum development and to prevent abandonment, concealment and neglect. In addition, while some children will inevitably lack a family able or willing to care for them, children should never be required to be institutionalised simply because of their disability. And finally, sterilisation of children with disabilities should be prohibited.
• Right to cultural life and recreation — the current draft text fails to mention play, and reads as a set of obligation relating exclusively to adults. But play is a fundamental right. It is widely denied for children with disabilities and must be included.
• Consultation and participation — the current text acknowledge the obligation on governments, when drawing up policies and legislation impacting on people with disabilities, to consult with them and their representative organisations. It also needs to include obligations to consult with children with disabilities and their representative organisations
• Monitoring — no provisions have yet been drafted in respect of international monitoring mechanisms. However, when they are produced, it is imperative that they address the need for children’s perspectives to be included. For example, if it is proposed to establish a treaty monitoring body, it must include representatives with expertise on the rights of children with disabilities.

With these changes, the new Convention would offer a real opportunity to give effect to the rights of children with disabilities. However, the time for lobbying is fast running out. The next meeting in January 2006 will be critical. Any pressure that can be brought to bear on government delegations between now and January would be invaluable, particularly within the EU, where the resistance is strongest.

For more information and more detailed briefings, contact:

Gerison Lansdown: [email protected]

Gerison Lansdown:

Tina Hyder: [email protected]