Binding Obligations in International Law

A Convention or treaty is a binding legal obligation in International Law. The treaty or Convention has special binding quality because the obligations specified in it are those which States Parties have voluntarily entered into after a process of negotiation. The volition of the States enters into every stage of the process from negotiating to signing to ratifying. Even as State sovereignty is constantly asserted in the formulation of a Convention it would be important to appreciate that this freedom is relative. States are at different junctures subject to pulls and pressures from both the international community and their own citizenry. It is important to note that these pressures sometimes pull in the same direction and sometimes in opposite directions. It becomes thus a matter of speculation as to which pressure will win state assent and approval on the day. Along with Conventions there are softer instruments of international law such as General Assembly Declarations and Resolutions which are not binding on the States but which specify the direction that States are expected to adopt in relation to the issue on which the Declaration has been promulgated.

Factual Background

It is in background of this very basic understanding of international law that we need to appreciate the present international negotiations around the UN Convention on Disability Rights. Even though international law history makes mention of some unsuccessful efforts at attempting to frame a United Nations Convention on Disability, the UN law on disability has primarily been contained in some soft law instruments. Some of which are the UN Declaration on the Rights of the Disabled; the UN Declaration on the Rights of Persons with Mental Retardation and the United Nations Rules on the Equalization of Opportunities for Persons with Disabilities. In the present phase, a resolution for a Disability Convention was first introduced by Mexico in the World Conference Against Racism and when it received support,

Mexico pushed the resolution setting up the Ad Hoc Committee through the General Assembly. Consequent to this effort the UN General Assembly set up an Ad hoc Committee under the chairpersonship of the Ambassador of Ecuador to draft a Convention on the Rights of Persons with Disabilities. Mexico had also prepared a draft, which was presented publicly in connection with an inter-regional experts meeting in April 2002. It was also made available online for comment. A revised version was published before the first AHC meeting in July-August 2002. Besides the Mexico expert meeting, there were regional meetings held in Quito (Americas region), Bangkok (Asia Pacific) & Johannesburg (Africa). The Bangkok meetings held under the sponsorship of ESCAP were the most well developed and took place over a longer period of time, resulting in an actual text in October 2003. The Bangkok draft became the main source for the Chair’s draft submitted to the Working Group. This draft provided the framework for discussion in the Working Group although the Group was free to depart from it in substance. The Group consisted of State parties, non governmental organizations and one National Human Rights Inistitution. The Working Group met for a two-week period in January 2004 and finalized its draft in that time . It is this working group Draft which is providing the foundational basis for negotiations between States parties.

The Working Group Draft , the suggestions by various States Parties as well as Disabled Persons Organizations can be electronically accessed on the United Nations website:
http://www.un.org/esa/socdev/enable/rights/adhoccom.htm

It is also important to note that there has been in the first instance various disability organizations, country and regional representatives of persons with disabilities started to participate as disparate groups. However increasingly through a process of continuous dialogue this disparate group of organizations has come to establish itself as a Disability Caucus on the Convention and is working hard

at speaking in one voice to the States. Details on the membership of the Caucus and some of its position papers can also be obtained from the above-mentioned UN website.

After having provided some general information on international law making and the working out of this in the realm of Disability I would in the rest of this note wish to focus attention on, one, some key conceptual controversies surrounding the Convention and two, specially zero in on those parts of the Convention which are of special interest to persons with psycho social disabilities.

Crucial Controversies

What should find inclusion in the Convention?

One issue which keeps resurfacing at the deliberations on the Convention in one form or the other revolves around what should find inclusion in the Convention? These questions arise because the Convention includes within its conspectus civil political rights such as : the right to life, liberty, freedom of expression or social economic rights like the right to work, health or rehabilitation or even special interests rights such as the rights of women or children. A number of States are at pains to point out that Conventions encompassing such like rights already exist and as these rights would also extend to persons with disabilities their reenactment in the Disability Convention was unnecessary. Whilst questions around the rights extending to special groups are still pending discussion the reiteration of the civil political rights has been conceded to on the reasoning that if these rights were in fact accessible to persons with disability there would be no need to deliberate on this Convention. Further these primary rights require inclusion in the Convention because they need to be tailored to the specific concerns of persons with disabilities. It should be noted that even as this reasoning is being conceded States are at pains to point out that the Convention is arising on the plank of non discrimination which means what is available to all other persons should also be available to persons with disabilities but not that rights which have not been conceded to the non disabled should be provided to persons with disabilities. Here the controversy very often is whether a reasonable accommodation provision is granting the same or more to persons with disabilities?

desire that this provision should not only make reference to persons with disabilities but to persons with disabilities and where appropriate their families. The Disability Caucus is contending that the participation should be of persons with disabilities and their representative organizations. Such a formulation it is contended allows for families and family organizations to be consulted where they are the representative organization and yet accords primacy to the aspirations of self advocacy. It allows for a merger of aspirational norms and pragmatic implementation.

Concerns of persons with psychosocial disabilities

Whilst the Convention is being negotiated on a global version of disability, it is still evident that some rights are of greater concern to people with some disabilities over others. In this section I recount the deliberations around the issue of legal capacity and forced interventions which have assumed special importance for persons with psychosocial disabilities because they more than any other persons with disability have been on the receiving end of incapacity labeling and compulsory civil commitment.

The working group has recommended that in article 9 (which deals with legal capacity) states parties should recognize persons with disabilities as individuals with rights before law equal to all other persons. They should also accept that persons with disabilities have full legal capacity on an equal basis with others. Where assistance is necessary to exercise legal capacity it should be proportional to the needs of a person. Such supported decision-making it is contended shall keep the wishes and aspirations of persons with disability in the forefront and in no case can the person providing support supplant the person with disability. The working group recommendation to the Committee took the stance that all persons could take decisions with support and substituted decision- making or guardianship was not required. In the reading of this recommendation in the May meeting of the Ad hoc Committee there was a proposal by Canada which was accorded support by other countries whereby a new paragraph was to be added to the article which allows for the appointment of substitute decision-makers or guardians for those persons with

disabilities who are unable to take decisions even with support. These guardians are to be appointed after the observance of fair procedure safeguards which is usually understood to mean a court, hearing , representation by a lawyer etc.

The ground of controversy here is once the provision is included its applicability shall be tested against all persons with psychosocial disability. The very stereotype of incapacity which the Convention is intended to challenge shall be reinforced by the Convention. Hence the Disability Caucus and some states are contending that an effort should be made to see whether the functions of guardianship can be fulfilled through supported decision making and legal devices such as advance directives and powers of attorney. In mooting supported decision-making the disability caucus is making a distinction between the need to provide support to those who need it and allowing people the dignity of risk.

Guardianship is problematic as it in the name of providing the first also takes away the second.

The other issue of concern is how should the Convention deal with forced interventions? The Disability Caucus takes the view that a Disability Rights Convention should necessarily endorse the position of persons with disability that compulsory treatment was a contradiction in terms. And if it was not possible to unequivocally take this position then it was better that the Convention did not deal with the issue. It is further being asked is not the compulsory commitment of persons with disability because they are a danger to self or others discrimination? No other risk behaviour it is pointed out invites such like treatment. The Disability Caucus is therefore contending that behaviour dangerous to others should be dealt with under the criminal law and dangerous to self conduct should be prevented only if the State is planning to intervene in relation all risky behaviour.

Conclusion

The above note is aimed to provide an information update on the deliberations around the Convention and the discussions which transpired in the recently concluded meeting of the Ad hoc Committee from 23rd August to 3rd September 2004. As we ponder on the pros and cons of various proposals

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ADOLESCENCE………

The key word brings as a hallmark to our general mental canvas of the profile of an “adult” in the making, with a health full of vitality, vigour, energetic, enthusiastic, colourful dynamic youth vibrating with spasms of life in possible positive directions. It is the time when individual talent begins to manifest itself in academic as well as in cultural dimensions. Negative profiles in the context is no rarity. Yet they should be considered as deviations.

Definition
Adolescence can be defined as a multi-dimensional developmental period, having distinctive behavioural ornaments here and there.

The existing scenario
A transitional life stage between childhood and adulthood is now evident in most of the societies of the world with their associated culture, specific patterns and practices. The new form of adolescence now taking hold across societies, however, are distinguished by a common set of historically recent elements associated with globalization that create a longer, more distinct transitional period [Schlegel and Barry(1991)]. These include longer schooling, earlier puberty, later marriage and for many youth, urbanization particularly, and greater separation from the world of adults. The pathways to adulthood-- these adolescences -- take different forms in different social, cultural and economic settings (Caldwell, Caldwell, Caldwell and Pieris, 1998; Larson,2002). In many societies, for example, this period does not involve the task of psychic separation from parents or carry the connotations of emotional turmoil with adolescents in the West (Dasen, 2000).

Adolescence in all parts of the world has been in in-flux of energy despite the changing socio-cultural fabric of current day societies due to globalization, urbanization, nuclear family and telecommunication revolution.

The basic process of adolescent development involves changing relations between the individual and the multiple levels of the context within which the young person is embedded. Variations in the substance and timing of these relations promote diversity in adolescence and represents sources of risk or protective factors across this life period.

Role of parents and peers during adolescence

For adolescents, this period is a dramatic challenge, one requiring adjustment to changes in the self, in the family and in the peer group. For both adolescents and their parents, adolescence is a time of excitement and of anxiety, of happiness and of troubles, of discovery and of bewilderment and of breaks with the past and of links with the future. If parents are aware of the path their child’s development is supposed to take, they can be major supports during this period. They can also spot potential problems that need to be brought to the attention of correction and modification.

In this crucial phase of multi dimensional changes, peer relations play a significant role. (Bukowski, Hoza and Boivin, 1994). As children move into early adolescence, involvement with one’s peers and attraction of peer identification increases. As pre-adolescents experience rapid physical, emotional and social changes, they begin to question adult standards and the need for parental guidance. They find it reassuring to turn to advice to friends who understand and sympathize--friends who are in the same position themselves (Laursen, 2001). Yet the word “peer pressure” comes with all the negative connotations of luring the adolescents into learning dangerous and destructive behaviour by discarding the parental values. But, on the other hand, peer pressure has enormous positivity in supplying emotional and moral support in the lives of the adolescents. It keeps youth participating in sports, religious activities and community welfare programmes even when they are not always the leaders.

The peer group is a source of affection, sympathy and understanding, a place for experimentation, and a supportive ambience for achieving two primary developmental tasks of adolescence: identity and autonomy.

DEVELOPMENT DURING ADOLESCENCE

Adolescents grow and develop in more “ways” and more “quickly” than people in any other age group. This “rapid” rate of change combined with changes occurring in all systems at once can produce problems and at best can be a difficult experience for the adolescent. Adolescents change in three ways—physically, cognitively and psycho-socially and no single influence acts either alone or as the prime mover of change.

Developmental path seems to be simpler if changes in all these three systems occurred simultaneously. The asynchrony among these can result in problems and developmental pathologies. In the context of “psychic development” of adolescents, the cognitive as well as the psychosocial growth needs further clarifications and probing.

Cognitive development:

During adolescence, with the development of body in size, strength and reproductive abilities, the mind becomes capable of more abstract thinking, future orientation and ethical convictions.

The key features of this kind of formal thought is the ability to:

These developments in thinking needs nurturing in order to grow further, since developing a realistic self-image is dependent on effective cognitive development.

Psychosocial development

This refers to the teenager’s growing ability to relate realistically to other people, to learn to become a mature partner in an intimate relationship and to see oneself realistically. This type of development may never actually end, but a good deal of it should be accomplished before a person can be considered an adult. There are four tasks involved in becoming psycho-socially developed. They are:

For this type of development, adolescence is divided into three stages

> Early adolescence: from about 10-13 years old

> Middle adolescence: from 14-17 years old

> Late adolescence: from 18-21 or 22 years age

These age changes are not absolute, but they work as a good general guide to pinpoint the different patterns of psychosocial changes at different adolescent stages, like early adolescents desire to become independent in a totally non-rational manner whereas late adolescents acknowledge that parents may not be infalliable, but can be their best friends.

The major psychosocial features of adolescence tend to be:

In the task of such attainments, parental control tend to fall away rapidly and for today’s adolescents, it is true that they search out sources of information

other than parents that give them an independent status as opposed to earlier dependent one. Here the mass media and internet provide attractive alternatives. Adolescents are found to resonate with media content depending on the developmental task at hand. In Indian context specifically, adolescents’ independence is not as much in terms of monetary aspects as it is in the decisions regarding personal appearance, habits and manners, vocational, social, recreational and educational choices of adolescents.

In an overall stance, across cultures and classes, the select ‘psychic’ features of adolescents tend to be:

Sexuality also is a strong component of psychosocial development during adolescence (Browning et al.1999). It involves a person’s sense of self as a man or woman. It is the ability to enter into and maintain an intimate relationship with the significant other, and the ability to relate to other people in general (Kinsman, Romer, Furstenberg and Schwartz, 1998). It is composed of the following factors:

Across the diverse sets of individual and contextual factors that are associated with the actualization of risk behaviours in adolescence—that is teenage pregnancy and abortion, transmission of STDs due to unsafe sex, decline in school attention, performance and educational aspirations and substance abuse and delinquent behaviour- or with the prevention of these risk behaviours, respectively, there are six common characteristics that are involved in the occurrence of one or more of these risk behaviours (Cicchetti and Dawson, 2002). They are as follows:

Hence ‘psychic’ growth and development during adolescence flashes itself as multi-faceted process, involving every aspect of a young person’s being. It is rapid and can be confusing and distressing.

Dealing with the Adolescents: Some Tips for Parents and Professionals

Each generation of young people and their families face new, and perhaps more challenging, circumstances. Parents are understandably troubled by the confrontational nature of some adolescent behaviour. They also worry about other actions that may threaten the safety of their child. Early intervention with young people who are troubled is crucial to reducing problems, or the resulting acting out behaviour might cause (Collins and Russell, 1991). The parents need to be alert and notice the following warning signs that their child shows when in trouble, indicating that they need help:

While there are no easy answers in parenting, the following strategies may help the parents to support their child during adolescence while reducing the risk of serious harm either to the child or another person (Baumrind, 1991):

- Bukowski,W.M., Hoza, B., & Boivin, M. (1994). Measuring friendship quality during pre and early adolescence: The development and psychometric properties of the friendship qualities scale. Journal of Social and Personal Relationship, 11, 471- 484.

- Caldwell, J. C; Caldwell, P.B.K and Pieris, I. (1998). The Construction of Adolescence In a changing World: Implications for Sexuality, Reproduction and Marriage. ‘Studies in Family Planning’, 29, 137-153

- Cicchetti, D., & Dawson, G. (2002). Editorial:Multiple levels of analysis. Development and Psychopathology, 14, 417- 420.

- Collins, W. A., & Russell, G. (1991). Mother-child and father child relationships in moddle childhood and adolescence: A developmental analysis. Developmental Review, 11, 99-136.

- Dasen, P.R. (2000). Rapid Social Change and the Turmoil of Adolescence: A Cross-Cultural Perspective. ‘International Journal of Group Tensions’, 29, 17-49.

- Kinsman, S. B., Romer, D., Furstenberg, F. F., & Schwartz, D. F. (1998). Early sexual initiation: The role of peer norms. Pediatrics, 102, 1185-1192.

- Laursen, B. (2001). A developmental meta-analysis of peer conflict resolution. Developmental Review, 21, 423-449.

- Schlegel, A. & Barry, H (1991). Adolescence: An Anthropological Inquiry. New York: Free Press.

- Steinberg, L. (2002). Clinical adolescent psychology: What it is, and what it needs to be. Journal of Consulting and Clinical psychology, 70, 124-128.

1. 1. Putting Mental Health on the Agenda of Government and NGOs
2. Promoting early identification of mental illness and community based access to care
3. Enhancing quality in care for the homeless mentally ill
4. Ensuring legal and economic support for the mentally ill

The full report of the working group recommendations can be downloaded from the Banyan website: http://www.thebanyan.org

Workshop Manifesto:

The workshop participants jointly identified the following 24 key areas for action and resolved that these will be the focus of their work:

Need to Distinguish between a Norm and its Implementation

It is next contended by the proponents of guardianship that supported decision-making cannot substitute for guardianship and even if it could such support is not available. These arguments it is submitted conflate the concerns of implementation into the adoption of norms. Should these constraints of implementation provide the basis for adoption of norms under the Convention especially when the norms adopted under the Convention will be the basis of all future discourse on rights of person with disabilities? A pragmatic approach for the implementation of norms is acceptable but a similar perspective towards the adoption of norms is questionable because this is letting the limitations of today confine the developments of tomorrow.

Substituted Decision Making will apply to all persons with psychosocial disability

A further argument by proponents of some form of substituted decision-making is that as a rule all persons with disability have legal capacity but there are a very small percentage of persons with severe disability for whom supported decision-making will not be sufficient and for whom guardianship will need to be provided. Proponents argue that these guardianship arrangements should be put in place subsequent to determination by a judicial body after due observance of fair procedure safeguards. They contend that this substituted decision-making will be the exception not the rule and would apply to a small percentage of cases.

The first consequence of accepting this argument will be that the rule of substituted decision-making will need to be incorporated in the Convention. Now the rule according to its proponents has been incorporated only for a very small percentage of persons with psychosocial disability. It therefore becomes necessary to ask by what procedure this small percentage of persons will be identified. Evidently this will be done from case to case. This process of identification will render the capacity of all persons with psychosocial disability open to question.

This would give rise to a situation where for questionable advantages to a small group of persons all persons with psychosocial disability shall be disadvantaged. The contention of questionable advantage is being made because studies evaluating the functioning of guardianship have found abuse isn’t in fact prevented with guardianship, it is facilitated. Further these arrangements once made cause the guardian to take all decisions on behalf of and without consultation with the ward. This ouster makes for the civil death of the persons subjected to guardianship.

Supported Decision Making the Sole Model

In the circumstances it may be worthwhile to ask if the paradigm of supported decision-making would be a preferable option for all persons with disability as it would keep us at the centre of all decisions affecting us. It would interrogate the cognitive privileging existing in present laws and yet allow persons with disabilities along with others needing help to seek assistance in those tasks which require higher reliance on cognitive capabilities.

Introduction