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Summary: Status of the Drafting of the Disability Convention - "A New Human Rights Treaty for People with Disabilities" by Gerison Lansdown - "Why Segregation Should Never Be A Right", Micheline Mason - Reports submitetd by NGOs - Background information, briefings, articles, etc.
 8 September 2005 CRINMAIL 711: Special Edition on the Drafting of a Disability Convention  ****************************************************  - INTRODUCTION: Status of the Drafting of the Disability Convention  - ARTICLE: "A New Human Rights Treaty for People with Disabilities" by Gerison Lansdown  - ARTICLE: "Why Segregation Should Never Be A Right", Micheline Mason  - REPORTS SUBMITTED BY NGOS  - RESOURCES: Background information, briefings, articles, etc.  ****************************************************  Your submissions are welcome if you are working in the area of child rights. To contribute, email us at info@crin.org. Please note that we are unable to respond to emails addressed to crinmail_english@domeus.co.uk  Adobe Acrobat is required for viewing some of the documents, and if required can be downloaded from www.adobe.com/products/acrobat/readstep.html  ****************************************************  - INTRODUCTION: Status of the Drafting of the Disability Convention  On 12 August 2005, the United Nations General Assembly's Ad Hoc Committee on a convention on the rights of persons with disabilities concluded its sixth session after detailed consideration of draft articles addressing issues such as children with disabilities, education, accessibility and personal mobility.  Don MacKay, Chairman of the Ad Hoc Committee explained that people with disabilities enjoyed the same rights as others; rights that were covered by all core human rights instruments, but the reality on the ground was different. People with disabilities had not been enjoying their rights in the same way as people who were not disabled. The aim of the draft convention is thus to reiterate the rights of people with disabilities and set out a more detailed code of their implementation.  The convention sought to create "a paradigm" shift from a tendency to segregate people with disabilities to inclusion in social life. People with disabilities actually performed, lived and contributed much better if they were included in the community, be it by way of inclusive education, or health care, participation in the political life, or measures to improve accessibility.  Many states participated in the sixth session as well as some 400 civil society representatives. The active participation in the drafting process meant that there had been genuine interaction on the text proposals. MacKay said he hoped the final text would be ready in a year. 2008 had been mentioned as the year when the convention might go into effect, but that would depend on how many ratifications were obtained.  Furthermore, he explained that everyone agreed that women and children with disabilities should be given emphasis in the convention, but there was still a question of how to deal with gender issues structurally. There were also concerns about elderly and rural people with disabilities. While some delegations were reluctant to compartmentalise and identify particular groups, there was no question that women and children would be separately identified. Whether it would be in a specific article remained a question, however.  Among the most contentious issues, he identified institutionalisation, integrated education and issues relating to family. For instance, there was increasing acceptance that there should be no forced institutionalisation, but how to address that question in the convention remained a difficult issue. Some States believed that in some cases, they should have the right to institutionalise people, or establish guardians for persons with some types of disabilities.  There was overwhelming support from States and civil society for the establishment of an effective monitoring system. At its next meeting, the Committee would get a report from the Office of the High Commissioner for Human Rights, making suggestions on the matter.  For more information, go to: http://www.un.org/News/briefings/docs/2005/Disabilitiesbrf050812.doc.htm  -------------------------  - ARTICLE: A New Human Rights Treaty for People with Disabilities  By Gerison Lansdown, September 2005  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 being 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 obligations 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 acknowledges 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.  The full article is also available online at: http://www.crin.org/resources/infoDetail.asp?ID=6161  For more information, contact: Gerison Lansdown: gerison@blueyonder.co.uk Tina Hyder: t.hyder@savethechildren.org.uk  ---------------------------------  - ARTICLE: Why Segregation Should Never Be A Right  By Micheline Mason, Director - The Alliance for Inclusive Education  The disability movement throughout the world has generally taken the position that all forms of segregation on the basis of impairment are an infringement of our human rights. This concept was made concrete in the medical/social model analysis of the oppression of disabled people, created by disabled people themselves.  This analysis explains how impairment is a physical or intellectual condition belonging to an individual whereas disability is a social construct. Whilst time, medicine and rehabilitation may lessen the effects of an impairment on the individual, the disabling factors within their communities and society generally will still impact upon their lives unless they are addressed by social remedies. The greatest of all these are the attitudes of others towards disabled people. As with all oppressions, these attitudes are formed through misinformation, stereotyping and prejudice towards the target group. In the case of disabled people, the continued use of segregation has created a situation in which these false ideas are not challenged but reinforced within mainstream society.  By the removal of disabled people from the mainstream, especially when young, neither group can learn who they really are or how to live together. One of the main purposes of inclusive education is to educate the whole community about impairment and disability and to create mutual empathy resulting from natural relationships within the family, school and community.  For deaf people, mainstreaming took an unfortunate turn in that it was based originally on the medical model, i.e. that deaf people should aspire to be like hearing people, learn to speak, lip-read and cope in an unchanged hearing world. Their language and culture was banned and deaf people were not allowed to become teachers. This had a devastating effect on the deaf community and on the educational attainment of deaf children. Not surprisingly they fought back, demanding the right to be taught in their first language (sign), by deaf educators, and to be raised with a community of deaf people who were proud of their language and culture. This they believed could only happen in segregated schools for the deaf.  Blind people around the world were also amongst the first groups of disabled people to become organised. They fought for the right to special employment and training, and to an education based on the use of Braille at a time when there was nothing for blind people except the bleakest of futures begging on the streets.  Members of both of these groups are still arguing for the right to segregated education despite our general call for the right to inclusive education. We believe this is a misplaced argument and should never become enshrined in any human rights legislation.  For the full article, go to: http://www.crin.org/resources/infodetail.asp?ID=6174  This article forms part of a paper that is based on a meeting held with member organisations specialising in disability rights advocacy. The paper also contains proposals on changes to on Article 17; changes proposed to make treaty apply to disabled babies and children too, and proposal for changes to Article 16.  The full report is available at: http://www.crin.org/resources/infodetail.asp?ID=6174  For more information, contact: Carolyne Willow, National co-ordinator ---------------------------------------  - REPORTS SUBMITTED BY NGOS  - "Children before choice": Briefing (1) From the Centre for Studies on Inclusive Education, July 2005. Go to: http://www.crin.org/resources/infodetail.asp?ID=6170  CSIE's detailed arguments for removing the choice of segregated 'special' education from the Convention as proposed in the current draft by the Working Group to the Ad Hoc Committee have been presented in earlier briefings under NGO documents for the third, fourth and fifth sessions of the Committee.  These arguments take account of research findings on the damage to individuals and society caused by segregation and the feasibility of developing education for all which removes barriers to participation and individualises learning through necessary supports and adjustments in mainstream settings. The CSIE arguments also demonstrate why the Convention must avoid putting Governments in the self-defeating position of having to provide incompatible systems of both separate 'special' and inclusive education. Some examples of inclusive education from around the world are provided in CSIE Briefing (2) July 2005, 'A Worldwide Movement'.  - "Ending Segregation And Developing Inclusive Education" Briefing (2) From The Centre For Studies On Inclusive Education, July 2005. Go to: http://www.crin.org/resources/infodetail.asp?ID=6171  'The rights of students with disabilities to be educated in their local mainstream school is becoming more and more accepted in most countries and many reforms are being put in place to achieve this goal. Further, there is no reason to segregate disabled students in public education systems. Instead education systems need to be reconsidered to meet the needs of all students.' (Organisation for Economic Co-operation and Development, OECD, 1999)  --------  Article 17 on Education, Information sheet prepared by the International Disability Caucus, Prepared by the International Disability Caucus  Section 1 sets out the scope of the provision that is required for children and adults with disabilities to achieve equality of opportunity in education and training.  Section 2 sets out the measures that IDC considers that States should take to provide the support to children and students with disabilities that are required to enable full benefit to be derived from the provisions of IDC Section 1.  For the full report, go to: http://www.crin.org/resources/infodetail.asp?ID=6172  ------------  The Rationale for Choice in Education: Statement on Inclusive Education for Persons who are Deaf, Blind and. Deafblind. 2 August, 2005.  Statement on Inclusive Education for Persons who are Deaf, Blind and Deafblind. The World Federation of the Deaf, the World Blind Union and the World Federation of the Deafblind. Working with the International Disability Caucus at the 6th Ad Hoc Committee Meeting.  Go to: http://www.un.org/esa/socdev/enable/rights/documents/ahc6jointdocwww.doc  ------------  - "Strengthening implementation at the national level", Amnesty International's paper on Article 25 on Monitoring  With this paper Amnesty International aims to contribute to the discussion among non-governmental organisations regarding possible elements of monitoring the proposed Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, which will take place in preparation for the 6th session of the Ad Hoc Committee in August 2005.  The paper builds on Amnesty International's experience of monitoring human rights treaties at the national and international levels, mainly in regard to civil and political rights.  Amnesty International welcomes that the draft Convention prepared by the Working Group in principle takes into account the relevance of national monitoring mechanisms. However, the organisation believes that the concept of the national implementation framework contained in Article 25 lacks clarity and some further specifications to ensure its effective functioning as a complement to the international monitoring mechanism of the Convention.  For the full report, go to: http://www.crin.org/resources/infodetail.asp?ID=6167  ----------  All documents, briefings and comments submitted by NGOs on the draft text made at the Sixth Session are available at the following: http://www.crin.org/resources/infodetail.asp?ID=6176  Visit: http://www.crin.org/disabilitynews  -------------------------------------------------  - RESOURCES: Background information, briefings, articles, etc.  To read Article 23 of the Convention on the Right of the Child relating to children with disabilities, go to: http://www.crin.org/resources/infoDetail.asp?ID=6160  To read the Draft article 17 on education, go to: http://www.un.org/esa/socdev/enable/rights/ahcwgreporta17.htm  To read the full text of the draft convention: http://www.un.org/esa/socdev/enable/rights/ahcwgreportax1.htm  To read the General Comment on the Aims of Education, Committee on the Rights of the Child, 17 April 2001, go to:  http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2001.1.En?OpenDocument  To read the General Comment 5 on 09/12/94, CESCR, Persons with disabilities, go to:  http://www.unhchr.ch/tbs/doc.nsf/0/4b0c449a9ab4ff72c12563ed0054f17d?Opendocument  All these and more available on the CRIN website at: http://www.crin.org/disabilitynews/  ****************************************************  The CRINMAIL is an electronic mailing list of the Child Rights Information Network (CRIN). 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