“soft” law
2.7 United Nations expert seminars on disability
The United Nations Secretariat arranged a series of important expert meetings on disability throughout the world.
Berkeley
One such meeting, a United Nations Consultative Expert Group Meeting on
International Norms and Standards relating to Disability was hosted by the Boalt Hall School of Law, University of California at Berkeley, in cooperation with the World Institute on Disability (WID) from 8-12 December 1998. The Meeting was convened to offer findings and recommendations with respect to: (a) ways of increasing
understanding of international norms and standards relating to disability in relation to domestic law and politics; (b) promoting their application in the domestic context; and (c) appropriate legislative frameworks to promote relevant application of international norms and standards, including the formulation of model national legislation. The report of the Meeting may be consulted on the Department of Economic and Social Affairs web site.
The Berkeley meeting acknowledged the many positive developments in respect of the issue of disability in the various treaty monitoring bodies. It nevertheless considered that
there was still much that needed to be done to ensure that violations of the human rights of persons with disabilities were both recognized and responded to by human rights organs.
The Meeting considered various wide-ranging strategies for implementation of international standards at the national level and also looked at the question of strategies for implementation at the international level. Interestingly, the Berkeley Meeting recommended (in part 5 of its report) that:
A working group of the Commission on Human Rights should be established to address specific violations in the area of the rights of persons with disabilities. The working group should include persons with disabilities as its members. The Office of the High Commissioner for Human Rights should include persons with disabilities as its members. The Office of the High Commissioner for Human Rights should consider the possibility of holding the meetings of the working group in places around the world in order to ensure accessibility to persons with disabilities from the most number of countries.
The Berkeley Meeting also suggested that the rights of persons with disabilities should be considered under all the human rights procedures, including the thematic procedures, resolution 1235 and resolution 1503.
The Meeting furthermore reviewed the arguments for drawing up a convention on the rights of persons with disabilities. One concern expressed (in part 6 of the report) was that any new disability-specific instrument:
might have the unintended consequence of marginalizing persons with disabilities, and that discrimination could be perpetuated by attention to the rights of persons with disabilities special instrument.
On the other hand, the Berkeley Meeting acknowledged that:
many of the existing norms, principles, declarations, standards, and guidelines dealing with disability issues are dispersed through various instruments; some are not sufficiently specific, legally binding; others are not overall, they do not ensure widespread and effective legally operative freedom from discrimination on the basis of disability. A new convention would afford the opportunity to revise or discard existing standards or statements of rights which were inconsistent with current thinking about the human rights of persons with disabilities or which were unsatisfactory in other respects. It was observed that group-specific instruments, for example those guaranteeing the rights of children, women, minorities, and indigenous peoples, have focused attention on issues that would have remained much less visible under the general human rights instruments.
One of the conclusions of the Berkeley Meeting was to recommend that the United Nations Division for Social Policy and Development should “examine the desirability of a new international instrument and the form and content of such an instrument; and solicit input and proposals … from interested parties” (part 7 of the Meeting report).
Hong Kong
A follow-up to the Berkeley Meeting, the Interregional Seminar and Symposium on International Norms and Standards Relating to Disability, was held in Hong Kong, China, from 13 to 17 December 1999. Its recommendations were clustered under three headings: (a) international norms and standards relating to disability; (b) capacity-building to promote and monitor implementation of norms and standards;
and (c) approaches to the definition of disability.36 The proceedings were wide-ranging.
Among the many interesting recommendations made by the Hong Kong meeting under cluster 1 (international norms and standards, p. 4 of the draft report) was that:
The United Nations Commission on Human Rights should consider appointing a thematic special rapporteur on human rights violations against persons with disabilities to investigate systematic and individual violations of the human rights of persons with disabilities (the mandate, which should be drawn up in consultation with disability groups, should include a comprehensive range of issues, such as gender-based and cross-disability matters).
This is an idea whose time has come.
36 See also T. Degener, “International disability law – a new legal subject on the rise: the Interregional Experts Meeting in Hong Kong”, Berkeley Journal of International Law, vol. 14 (1999), pp. 180-195.
The meeting recommended that:
The United Nations, Member States and disability rights organizations should initiate the process for the adoption of a international treaty dealing specifically with the human rights of persons with disabilities. In the process of formulating such an instrument, the following principles need to be observed:
(a) The process of drafting any new treaty needs to be open, inclusive and representative of the interests of persons with disabilities.
(b) Persons with disabilities must be principal participants in the drafting of any new treaty at all stages in the negotiation process.
(c) The formulation of any new treaty must not dilute any existing international provisions on the rights of persons with disabilities and not undermine any national disability standards which provide a higher level of protection of rights.
A Seminar on Human Rights and Disability was convened by the United Nations Special Rapporteur on Disability in Stockholm, Sweden, from 5 to 9 November 2000.
The report, entitled Let the World Know, was compiled by the Rapporteur, Marcia Rioux. The purpose of the seminar was to “develop guidelines to support disability NGOs in their work to identify and report human rights infringements and abuses”. It was a follow-up to paragraph 30 of Commission on Human Rights resolution
2000/51, which called for cooperation between the Special Rapporteur and the Office of the United Nations High Commissioner for Human Rights in strengthening the protection of the human rights of persons with disabilities.
More specifically, the seminar objectives were:
• To provide a forum to exchange knowledge and expertise and to dialogue on the integration of disability-related issues into the human rights processes;
• To develop a substantive methodology for relating obstacles to participation, neglect, abuse and other forms of discrimination to legal provisions of existing human rights instruments; and
• To design a process for follow-up and for collection and analysis of information and within this to develop and support a reporting capacity in disability NGOs.
These objectives are significant since they address ways of making the human rights machinery work better in the context of disability. A crucial issue is how NGOs can best engage with that machinery, for instance by gathering, processing and using information to which NGOs have access.
The Stockholm seminar agreed on the importance of mainstreaming disability into the United Nations human rights treaty monitoring system. An innovative element related to the development of tools whereby NGOs can report violations in a way that the system can understand and process. The seminar agreed that clear mechanisms and tools are needed to facilitate information gathering and processing.
The Stockholm seminar proposed a mechanism for the documentation of individual violations. It recommended that NGOs should hire, retain or use the skills of a human rights specialist for this kind of work. The seminar made very detailed and useful recommendations on how this work could be done to maximum effect. It proposed the
creation of a legal cases and jurisprudence database covering national laws and policies which would be maintained by the Office of the High Commissioner for Human Rights. The seminar also recommended a disability rights media watch to document human rights abuses in and by the media.
The Stockholm seminar is notable for raising the debate to a new level. The
participants looked at how best to use the treaty machinery. And they made a strong and well argued case for some sort of international disability human rights watch.
An Informal Consultative Meeting on International Norms and Standards for Persons with Disabilities was convened in New York on 9 February 2001 by the Division for Social Policy and Development of the United Nations Secretariat. Several papers were prepared for the meeting, whose aim was not to produce recommendations as such but to stimulate discussion about the future. The summary of the discussion contained in the Meeting report is extremely revealing. According to paragraph 22, for example:
Several Governments expressed interest in addressing the rights of persons with disabilities by means of a “twin-track” approach, which would involve elaboration of a convention, and studies on options to mainstream promotion and protection of the rights of persons with disabilities in current international instruments. A convention was viewed [by these States] as a complement and not as a mutually exclusive alternative to current international instruments and the rights of persons with disabilities.
The Meeting report (paragraph 25) also refers to the fact that:
(NGOs)…expressed the view that elaboration of a convention on the rights of persons with disabilities is of great importance particularly since disability now is looked upon primarily as an issue of human rights rather than a matter of concern to medical and social welfare services. It also was noted [by the NGOs] that a convention is considered to be a complement to the “Standard Rules” and not an alternative instrument. While the “Standard Rules” are non-binding, they are an essential instrument and provide useful guidance for policy and practice.