Reflections
An
Information Update
By Prof.
Amita Dhanda, Faculty of Law, NALSAR, Hyderabad.
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/socdevenable/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?
The Progressive Realization of
Social- Economic Rights
It has been an accepted tenet of international law that whilst
civil-political rights were immediately realizable social-economic
rights had to be progressively realized. The fact that social
-economic rights are resource driven is provided as the reason
for the delayed implementation of these rights. One of the questions
which is being vociferously argued in the present negotiations
relates to the inclusion of an explicit provision which states
that those social economic rights which do not require resources
shall be immediately implemented. The States opposing such a
provision are providing a multiplicity of reasons. Some of these
reasons are that the idea of progressive realization implicitly
acknowledges that those rights which do not require resources
should be immediately enforced. An explicit mention is not needed.
On being asked as to why which is implicit cannot be made explicit
the reply is that if that were done persons with disabilities
would be provided rights not available to others in the population.
What
is meant by reasonable accommodation?
Evidently if discrimination of persons with disabilities is to
be actively addressed it is necessary that their particular needs
should be accommodated. And to ensure that this accommodation
is not disproportionate and unlimited it is provided that such
accommodation should be unreasonable. Here in contrast to the
reasoning which was put forth in the provision relating to progressive
realization of social -economic rights a number of states are
contending that the article itself should state that such accommodation
should be made unless it results in disproportionate burden.
The anxiety being expressed here is that such a qualifier would
provide states with an escape route and negate one of the core
concepts of disability rights.
How
should the Convention mention families?
One of the key obligations of the States in the Convention relate
to recognizing the participation and representational rights
of persons with disabilities. A number of States underscoring
the fact that several persons with intellectual or multiple disabilities
may be unable to represent themselves 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 it would be appropriate
to remember that an international Convention in contrast
to a domestic law and policy is aimed to be futuristic in
its purport. It is made for not just for the near but also
the distant future. Hence it should be providing direction
setting principles. And the principles which we accept should
be those which whilst acknowledging the limitations of the
present do not stranglehold the future.
Prof.
Amita Dhanda, a steadfast advocate for the rights of persons
with psycho-social disabilities, has been a part of the UN
Ad Hoc Committee meetings, as a part of the World Network of
Users and Survivors of Psychiatry. For more details, and a
continuing dialogue on the Convention, please contact:
Prof.
Amita Dhanda
21/1 Janakpuri, Gunrock Enclave,
Secunderabad 500 009, A.P. India.
(Tel): 0091-40-27816033
(m): 09849064951
Email: amitadhanda@rediffmail.com
