The Draft United Nations Convention on Human Rights and Disability

 

Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner Annual General Meeting of People with Disability Australia Saturday 27 November 2004, Mercure Hotel Broadway Sydney

Introduction and acknowledgments

Allow me to commence by acknowledging the traditional owners of the land on which we meet, the people of the Eora nation.

I do this in all my public speaking not only because it is proper to do so but because this acknowledgment reminds us that human experience has many levels of diversity, and this of course includes disability.

I have been asked to speak about the current development through the United Nations of an international convention on the rights of people with disability.

Although I suspect there are other people here at least as qualified as I am to speak on this I do hope to give you some useful reflections based on my own experience in working on human rights issues including in relation to disability.

You may be familiar with the review I published last year of the first ten years of the impact of the Disability Discrimination Act. We have seen areas of success in using discrimination law to advance human rights for people with disability - such as access to transport, communicatiosn and to some extent in the built environment - and also areas where success has been more limited - in particular employment.

What is interesting is that with the DDA we had domestic legislation first rather than waiting for a comprehensive international treaty.

In the recent inquiry I conducted on children in immigration detention it was the other way around - a modern international convention providing clarity of definition, but not backed by much process except for HREOC's own ability to conduct an inquiry.

The mental health consultations I have been conducting with the Mental Health Council of Australia show some of the limits of an anti-discrimination approach alone, and some of the ned for a broader human rights approach, with serious inadequacy of resources being provided to secure the effective enjoyment and protection of human rights but in a way which does not readily fit the anti-discrimination legislative model.

I was particularly glad to receive this invitation from People with Disability Australia.

Because PWD has been at the forefront among disability organisations in its clear and early recognition of the potential that a Convention presents for people with disability, here in Australia and around the world.

And PWD has led the way in working to ensure that a Convention is as good as we can make it and reflects as much as possible of the knowledge and experience of the Australian disability community.

Community consultations on Convention

PWD is also in my view a model of an organisation which works to communicate clearly and frequently with its constituency.

So I expect everyone here is at least broadly aware of the status of the Convention.

In brief, though, we have now had four sessions of the Ad Hoc Committee established by the United Nations General Assembly to consider a Convention. In its fourth session, in August-September, the Committee concluded a first reading of a draft text and commenced a review of draft articles. A fifth session is planned for New York in January , and I anticipate that our Deputy Disability Discrimination Commissioner Graeme Innes will again be participating.

I also anticipate that you are aware of the work that PWD has been doing in conducting community consultation on the draft Convention, in partnership with other national and state-based organisations and funded by the Federal Attorney-General.

I think that these community consultations have produced hugely valuable results, through the contribution made by participants to consultations and the results distilled from those contributions by PWD.

I commend the government for supporting this work, which I think has been some of the most valuable work done anywhere so far towards the Convention.

Virtually all the recommendations made in the report of the consultations I can say I either agree with in full, or at least regard as raising serious issues needing debate.

There are constructive suggestions in the report on each draft Article of the Convention, on what is in there and what is missing, on controversial issues like compulsory assistance and guardianship, and on the basic structure of the Convention.

I do not want to go over all the detail of that work. But I do want to bring out a few major themes.

Importance of a convention

I would like to start by noting that the consultations indicated a surprisingly high degree of recognition of the potential importance of a Convention on human rights and disability.

I say this is surprising, because on many levels negotiations on the other side of the world on draft legal text could be seen as remote from the day to day concerns of people living with disability in Australia :

• unmet needs for personal support and care and adaptive technology;
•   lack of effective or equal opportunity in employment;
• inaccessible environments;
• even a lack of appropriate accommodation for many people, including the issue of younger people living in nursing homes.

Of course, on these and other issues it is important not to expect too much of international law on human rights. A Convention on human rights and disability will not mean that thousands of blue helmeted United Nations access experts, armed with an access manual in one hand and a gun in the other, will be parachuting in and imposing justice for all.

Equally, it is important not to expect too little.

I arrived in Australia in the 1970s, just in time to encounter that great moment in 1970s Australian culture, the Rocky Horror Show. You might remember these lines from that show:

"I ask for nothing, master."

"Then you shall receive it - in abundance."

It is important for people with disability to expect more than nothing from international human rights law.

Yet, nothing is for the most part just what human rights treaties have had to say on disability.

The Universal Declaration of Human Rights of 1948 and the two human rights Covenants of 1966 list all sorts of grounds on which discrimination is not to occur - sex, race, religion, political opinion and so on - but do not mention disability.

In one sense, we may ask how far this matters. As a matter of law it is pretty clear, once the question is raised, that, of course, rights applying to "all individuals" include people with disability, and that "any discrimination" includes disability discrimination.

Recognising this, the treaty monitoring bodies for the two human rights Covenants are increasingly taking note of disability issues.

So why spend time and money on developing a Convention specifically on disability and human rights?

The answer I think is that a focus on legal meaning alone, which can be stretched to cover disability, misses the point.

If you are putting a public or political argument, for example to a journalist or even to most government ministers, rather than writing a legal or academic paper, and you have to refer to the finer points of interpretation of general human rights treaties in comments by the treaty monitoring committees, the battle is almost always going to be lost before it starts.

They will simply lose interest before you finish the explanation, or not understand what you are talking about. One of my senior staff vividly remembers having precisely this experience in the office of a senior minister in a previous Federal government when we were trying to explain that the Covenant on Civil and Political Rights did include discrimination people with disabilities.

All law, international law in particular, is a guide for practical conduct, and to have the best chance of affecting what happens in the real world it needs to be as clear as possible.

All law, but international law in particular, works - if it works at all - mostly not as something enforced by courts and legal sanctions but as a guide to action.

So a convention on human rights and disability could provide directions for action by governments and others, including legislation, programs, and education; and for action by activists and advocates to get governments to act.

The simple starting point of a clear and authoritative statement that human rights does include people with disability matters for this.

Beyond this, though, there is the potential for a Convention to do important work in translating general human rights concepts into a more specific framework for action to ensure the realisation of human rights for people with disability.

Lost in translation?

Speaking of translation, I agree with the PWD report that there is a need to translate the U.N.- speak in much of the current draft into clearer and plainer terms, so that a Convention can be as useful as possible in advocacy to government and in the media as well as speaking clearly to people with disability themselves.

This process should start with the title - surely something shorter is possible than a "Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities". But the translation process needs to go further and deeper than this.

Recitation of rights or translation into reality?

Rather than simply duplicating rights already recognised by existing instruments, a new convention should ensure that people with disabilities can effectively exercise and enjoy those rights.

Restatement of rights in the terms contained in the two Covenants is clearly not sufficient in itself to ensure their practical realisation for people with disabilities.

I share the view indicated in the PWD report that the draft Convention still contains too much restatement of existing human rights treaty provisions, and not enough by way of measures to ensure the realisation of rights in practice and in relation to specific issues which arise in relation to disability.

General discrimination prohibitions and general human rights protections do need a process of translation to have operational effect.

This is the point of standards development processes under the Disability Discrimination Act here in Australia on issues like access to premises, transport, and education.

Performance, prescription, outcomes and processes

I do not mean that a Convention should seek to prescribe every point in technically or legally precise terms. The PWD report rightly points to the need for a Convention to avoid provisions that presuppose a particular state or type of technology, or particular legal system approaches, if it is to be applied in different places and times.

What is needed, I think, is a more performance and process based Convention - one that that clearly marks out issues needing attention and requires Governments to develop processes to address these issues, rather than a Convention which attempts to specify final and detailed results.

These issues of accountability for performance and process rather than prescription of results are familiar from the work that many of us are engaged in at the national level on issues like disability access to education, public transport and buildings.

Clearly, getting these issues right is not easy or quick even within one country, let alone in the context of international negotiations. In these sorts of processes no-one can expect that the result will be 100% based on their own view in preference to others.

What sort of Convention?

The PWD report points to different ideas of what sort of convention this should be: a pure anti discrimination instrument; a broader human rights treaty, or one which emphasises a social development approach.

While I agree that there are important differences in emphasis, I am not convinced that the differences are as absolute as some participants in debates so far appear to believe.

Anti-discrimination of course sounds like an emphasis on "negative" rights rather than positive rights.

But within Australia , HREOC has always considered that although anti- discrimination law has its limits compared to a general human rights charter, the DDA does include a mandate for positive measures.

I am thinking in terms of reasonable adjustment in employment and education and also in terms of substantial requirements to achieve accessible environments in transport, telecommunications, buildings and so on.

The key issue seems to me to be not whether we call a Convention a human rights or a discrimination convention, but what measures and obligations it provides for: whether it is restricted to envisaging narrow legal measures or whether it marks out a broader program for equal enjoyment of human rights.

On that issue, I take the same view as the great French human rights lawyer Rene Cassin stated in development of the human rights Covenants, and which my predecessor Elizabeth Hastings also quoted in her report at the end of her term as Commissioner:

"it would be deceiving the peoples of the world to let them think that a legal provision was all that was required ... when in fact an entire social structure had to be transformed".

Without naming names, or continents, here, some approaches in the discussion of this Convention have been more narrow and legalistic than I think is justified by a decision to stay within the framework of existing human rights law. We should also not fall too easily into dismissing good ideas because they come with a "social development" flavour, but which in substance are means for implementing existing human rights.

In particular, a document which emphasises action plans and other processes can still be a human rights document.

International co-operation

The PWD report points to debates about international co-operation as one of the major divides between a social development and human rights approach.

This I think is true for those people who want provisions on international co-operation to require major resource transfers from "North" to "South" to fund improvements in the terribly disadvantaged position of people with disabilities in the developing world. My own view is that there is very little prospect of a human rights treaty driving such a process.

As noted by the PWD report, however, there are many important aspects of international co-operation which are not a simple bid for increased aid funds and which can and should be addressed in a human rights Convention. These aspects include

• ensuring that existing aid and assistance promotes rather than delaying equality for people with disabilities ;
• ensuring that international agencies such as the High Commissioner for Refugees, the World Bank and the International Labor Organisation appropriately recognise disability in their own areas of work ;
• sharing information and technical assistance and co-operation ;
• harmonisation of standards;
• elimination of barriers to transfer of access technology. That includes tariff barriers. It could also include barriers in the area of intellectual property. I cannot see, for example, why Australian Standards on access issues should not be more readily available on the internet, free or at a more reasonable license fee, so that people in developing countries as well as in Australia can benefit from the expertise that has gone into them.

I think Australia is well placed to play a constructive role in discussions on these issues of international co-operation and I hope that it will play such a role rather than just lining up with positions which might be advanced by some other countries in defence of immediate first world interests.

Monitoring and implementation

One of the other areas where the PWD report contains important discussion and where again I hope Australia can contribute constructively is the area of monitoring and implementation.

I think there is more understanding now than there was at the start of this process, internationally and within Australia , of the concerns that the Australian government has been putting about the value of just reproducing the monitoring arrangements that exist for other human rights treaties.

To be frank, the system of periodic reports to committees is all too often a time consuming but sterile bureaucratic exercise that has little impact in the real world in achieving action or building global awareness of and respect for human rights.

Understandably, though, disability advocates do not want to settle for even less than the existing model in considering monitoring arrangements for this Convention. So we need to move from acknowledging the limitations of the existing model to coming up with something better.

It is not at all surprising that limited value is achieved in 2 hours of discussion of a report from each country every 5 years, whether we are looking for scrutiny of human rights violations or for co-operation in looking for ways to better fulfil human rights.

But that does not mean that reporting processes should be written off as useless.

Australia has rightly been pushing for ways to make reporting more efficient, which include reducing duplication in reports to different human rights committees, and submitting and circulating reports using the internet.

I think the real work though is in making reporting processes more meaningful and less an exercise in bureaucracy for its own sake. An obvious issue here is how to open up the process to broader participation. Possibilities could include requiring draft reports to be posted on the internet so that comments by NGOs could be submitted with final reports.

Another issue is how widely known these reports are within countries. Not very, is the usual answer.

The international dimension of accountability for human rights, and sharing of experience and knowledge through international structures, are of course important. But in the end, the most important dimension is that human rights commitments are commitments to a country's own people. And that is where most accountability and expertise on the situation in each country has to come from.

So the time spent compiling reports would be less of a waste if countries agreed to publicise reports under the Convention, including perhaps tabling reports in their national parliaments and publishing them on the world wide web.

If a specialist Committee is established under this Convention it needs to have something more useful to do than just sit to receive reports, and something more useful to do with the reports than just receive them.

I also think that the suggestion in the PWD report for a treaty based status to be given to the current role of Special Rapporteur on disability deserves further discussion and development.

Some of the key roles I would see for a Committee, or perhaps still more so for an enhanced office of special rapporteur, suitably resourced, would be those I mentioned earlier under the heading of international co-operation:

• promotion of harmonisation of standards, and removal of barriers to sharing of knowledge and technology to promote access and participation;
• co-ordination with other parts of the international system and ensuring that these act on the basis of appropriate knowledge and awareness of disability issues; and
• a key point raised in the PWD report - development of guidelines to assist national implementation efforts. These could include guidance on developing national disability plans as well as more detailed guidance on particular issues , including identifying and making available best practice from around the world.

The PWD report also raises the issue of potential provision for individual complaints to a disability rights committee, comparable to complaints provisions under existing human rights treaties.

I think that in this context there are issues to consider of how far an additional complaints mechanism adds to those already available, and whether an individual complaint jurisdiction would pull a committee in the direction of excessively legalistic procedures and away from the systemic work that needs to be done on disability issues.

Some governments are clearly even more averse to the idea of a complaint procedure than they are to an additional reporting structure.

One innovative idea, which has been raised informally with my office in the last few days and which I would be interested to see developed further, would be to give governments which become party to a Convention a series of mechanisms to choose from.

For example, either you accept individual complaints against you, or you accept visits from a special rapporteur or disability ombudsman. Either you submit reports against each of the articles in the Convention, or develop a national disability rights plan and report on that.

This sort of multiple choice approach could perhaps meet some of the demands from governments for flexibility and reform of treaty monitoring processes without just giving up on the search for ways to make the system actually work.

Conclusion

These are exciting and important processes to be involved in. Again, I commend PWD for its leadership in working to ensure that the knowledge and perspectives of Australians with disability is incorporated into the development of the Convention. I look forward to continuing to work in partnership with you.