Social Structures
Author: Harry Chikasamba, PhD Researcher, Assistive Living and Learning (ALL) Institute, School of Law and Criminology, Maynooth University
Until 2006, persons with disabilities were invisible in core legally binding human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Unsurprisingly, this was the case because persons with disabilities were being considered as having a lower social status, being dependent and inferior in society. In the early and mid-2000s, persons with disabilities convened as self-advocates in the historical halls of the United Nations (UN) in New York where they exhibited an unwavering spirit of resilience and genuine pursuit of equality which shaped and brought to life the first ever legally binding international human rights treaty in the 21st century: the Convention on the Rights of Persons with Disabilities (CRPD). In principle, the CRPD protects and promotes the rights and dignity of persons with disabilities, ensuring their full and equal participation in society.
Sadly, the draft Convention on the Right to Development, currently undergoing negotiations at the UN, risks undermining the feeble progress painstakingly made over the past 15 years since the CRPD came into force in 2008. Among other gains, the CRPD has served as the major global catalyst towards viewing persons with disabilities as equal members of society, positioning disability as both a matter of human rights and of development which is evident in the inclusion of disability issues in the 2030 Agenda for Sustainable Development. Worth noting, disability and persons with disabilities are referred to 11 times in the 17 Sustainable Development Goals (SDGs) that make up the 2030 Agenda. Dishearteningly, the invisibility of persons with disabilities in the draft Convention means that, at this juncture, any prospects of advancing disability-inclusive development remain bleak and devoid of hope.
It is important to note that the draft Convention seeks “to promote and ensure the full, equal and meaningful enjoyment of the right to development by every human person and all peoples everywhere…” and Article 4(1) states that “every human person and all peoples have the inalienable right to development, by virtue of which they are entitled to participate in, contribute to and enjoy civil, cultural, economic, political and social development.” One would rightly argue that persons with disabilities are implicitly included in the phrase ‘every human person and all peoples’. However, history reminds us that the international Bill of Rights (which is made up of the Universal Declaration on Human Rights (UDHR), ICCPR and ICESCR), guaranteed rights to all people; and the lack of explicit recognition of persons with disabilities resulted in their continued exclusion and marginalisation. Even today, there is a discernible disconnect between disability as a development issue and the realities of development policy and practice. For example, the most recent draft of Global Sustainable Development Report of 2023 does not include any indicators on disability or persons with disabilities. This should be a serious cause of concern and, unless the draft Convention on the Right to Development explicitly refers to persons with disabilities in its text, we should all brace ourselves for an era in which disability will be completely removed from development policy and practice.
Interestingly, Article 4(2) of the draft Convention proclaims that “every human person and all peoples have the right to active, free and meaningful participation in development” and this resonates with the CRPD’s aspiration of ensuring equal and effective participation of persons with disabilities in society. However, for persons with disabilities to equally participate in society there is need to remove barriers and/or provide reasonable adjustments, which may not usually be the case for everyone else. This is why the draft Convention ought to include a stand-alone provision on persons with disabilities, and explicitly include them in other provisions. Of course, the draft Convention mentions ‘disability’ twice, but it does so contentiously and only in a manner that classifies disability as one of the grounds of discrimination under Article 8(1) and Article 15(1). The Committee on the Rights of Persons with Disabilities has already spoken about this, describing the ‘classification of disability with other grounds of discrimination as failing to recognise the cross-cutting dimension of disability.’ Arguably, the group-specific concerns of persons with disabilities cannot be said to be compensated in the manner disability is presented under Article 8(1) and Article 15(1).
It is important to note that gender equality is provided for as a stand-alone provision under Article 16. In addition to recognising the equality between men and women, Article 16(2)(b) goes a step further to require governments to adopt appropriate measures to “ensure women’s full, equal, effective and meaningful participation and equal opportunities for leadership at all levels in the conceptualisation, decision-making, implementation, monitoring and evaluation of policies and programmes.” Similarly, Article 17 is a stand-alone provision on indigenous persons. Surprisingly missing are stand-alone provisions on children, persons with disabilities and old people. Nevertheless, persons with disabilities, children and old people face disproportionate and intersecting discrimination, just as women and indigenous people. Therefore, the same rationale for including stand-alone provisions on gender and indigenous people should equally hold for persons with disabilities and children. In addition to stand-alone provisions, one would expect both persons with disabilities, children and old people to be mainstreamed in several provisions including Articles 16 and 17.
Another area of concern is Article 27 which establishes an implementation mechanism “to facilitate, coordinate and assist, in an adversarial and non-punitive manner, the implementation and promotion of compliance with the provisions of the Convention.” Specifically, Article 27(2) defines the composition of that mechanism, stating that it “shall consist of independent experts, consideration being given to, inter alia, gender balance and equitable geographic representation as well as to an appropriate representation of different legal systems.” It is crucial that the draft Convention is being negotiated in an era in which the CRPD places disability at the centre of development and public policy. A more appropriate direction for the Convention on the Right to Development would therefore be to explicitly list disability as one of the areas to be considered when constituting the implementation mechanism under Article 27. Doing so would represent an act of compliance with Article 4(3) and Article 33(3) of the CRPD which oblige States Parties to ensure genuine participation and active involvement of persons with disabilities in decision-making, public policy formulation and implementation, and development practice.
In conclusion, the disappointment surrounding the invisibility of persons with disabilities within the draft Convention on the Right to Development is compounded by the fact that we find ourselves in a time and age where such oversight should be unthinkable. This should evoke a profound sense of anger within us. Looking ahead, it is crucial for Organisations of Persons with Disabilities (OPDs) and other passionate disability activists to remain vigilant in forging a path forward that not only safeguards human rights but also amplifies the voices of persons with disabilities all over the world.