Bangkok Recommendations on the Elaboration of a Comprehensive and Integral
International Convention to Promote and Protect the Rights and Dignity
of Persons with Disabilities
We, the participants in the Asian and Pacific regional expert group meeting on an international convention to promote and protect the rights and dignity of persons with disabilities, met from 2-4 June 2003 in Bangkok.
As experts from governmental and non-governmental organizations, national disability and human rights institutions and independent experts, we have formulated these recommendations in response to the invitation by the General Assembly in Resolution 57/229 to "make available to the Ad Hoc Committee suggestions and possible elements to be considered in proposals for a convention."
We are convinced that a new international human rights treaty is necessary to ensure that persons with disabilities enjoy all their human rights.
A. BACKGROUND AND GENERAL APPROACH
1. While international human rights standards require that people with disabilities should enjoy the same basic human rights as all other human beings, persons with disabilities throughout the world are subjected to widespread violations of their human rights. These violations include malnutrition, forced sterilisation, sexual exploitation, the denial of educational and vocational training opportunities, inaccessible public services, institutionalisation, the denial of voting rights, rights to communication, and the right to participate in policy-making.
2. There is a pressing need for the elaboration of a new international convention on the human rights of persons with disabilities. A coherent, integrated and focused approach to disability in the international law cannot be developed under the present treaty system. Therefore, an exclusive convention is necessary to give "status, authority and visibility" to disability issues which cannot be achieved through the process of reform of existing international instruments and monitoring mechanisms.
3. A single comprehensive treaty would enable the States Parties to understand their obligations to set targets for the development of disability-inclusive infrastructure and processes. Adding a new treaty would complement existing international standards for the rights of the disadvantaged.
4. A new convention should be a human rights treaty, which reaffirms that human rights and fundamental freedoms apply to all human beings, including persons with disabilities, thus reflecting the movement from a social welfare approach to a rights-based model embodied at the international level in documents such as the World Programme of Action concerning Disabled Persons and the Standard Rules for the Equalization of Opportunities for Persons with Disabilities. A new human rights convention would play a critical role in enhancing the advancement of persons with disabilities in the context of all aspects of development.
5. A new convention should reaffirm and build on human rights norms laid down in the existing UN human rights treaties (including treaties adopted by the specialised agencies such as the International Labour Organisation) and other norms (such as the Standard Rules). A new treaty should in no way diminish existing guarantees of rights under those treaties, but should supplement existing guarantees as appropriate and address issues of particular concern to persons with disabilities.
6. A new convention should include guarantees of both civil and political and economic, social and cultural rights, and should provide for appropriate remedies at the international and national levels for violations of all the rights it guarantees.
7. The adoption of a new convention should be one part of a multi-track approach to the fulfilment of the human rights of persons with disabilities and the achievement of the goals of human and social development. In particular:
- existing human rights bodies and mechanisms should increase their efforts to address issues of disability that arise within the scope of their activities;
- there should continue to be strong support for the work of the Special Rapporteur on Disability of the Commission on Social Development (and the panel of experts) in monitoring the implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities;
- governments, international organisations, and civil society groups (including DPOs and NGOs) should continue to work to implement the Standard Rules, as well as to implement other instruments or programmes which address disability issues, such as the World Programme of Action and the Biwako Millennium Framework.
The meeting noted the importance of the role of national institutions in realising the human rights of persons with disabilities and the need for governments to establish national human rights institutions and other appropriate bodies to give effect to those rights at the national level.
8. Member States and the United Nations system should take steps to ensure the full participation of representative disability groups and persons with disabilities, especially those from developing countries, in the process of elaboration of a convention. Governments which are in a position to do so are urged to make contributions to the United Nations Voluntary Fund on Disability for this purpose. All governments in the Asia-Pacific region should ensure that they consult DPOs for their views on the issue of a convention, facilitate the participation of DPOs in the discussions of the Ad Hoc Committee established by General Assembly resolution 56/168, and should include persons with disabilities from DPOs in their official delegations to the Ad Hoc Committee.
B. ELEMENTS OF A CONVENTION
NATURE OF THE CONVENTION
9. The convention should be comprehensive, containing an explicit restatement of the rights contained in existing human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and other relevant instruments. . The Convention should thus go further than a simple statement of the right to equality and non-discrimination in the enjoyment of human rights and fundamental freedoms..
10. The meeting considered that a convention should include the following elements:
- Statement of objectives and general principles
- Scope/Definitions (including definitions of disability and discrimination)
- General obligations of States parties to respect and ensure the rights guaranteed in the convention
- Guarantee of equality and non-discrimination (generally and in the enjoyment of the rights guaranteed in the Convention; statement of gender equality)
- Guarantees of specific rights (drawing on the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and other instruments, expanded by reference to disability perspectives)
- Other State obligations
- Monitoring mechanisms
- Miscellaneous provisions
11. The meeting considered that the following matters might be usefully addressed in a Preamble:
- Recognition of the value of international human rights guarantees in existing United Nations human rights instruments
- Recognition of international and regional disability-specific instruments, declarations, norms, and guidelines to promote human rights and non-discrimination against people with disabilities
- Recognition of the continuing widespread denial to persons with disabilities of their internationally guaranteed human rights and fundamental freedoms
- Recognition of the fact that, despite the increase in emphasis placed on disability issues by mainstream human rights institutions, the adoption of a new convention is necessary to ensure that the human rights of persons with disabilities and their representative organizations receive adequate attention and action;
- Noting the relevance of the Standard Rules to the interpretation and implementation of the convention;
- Recognition of the efforts, achievements and obstacles during the Asian and Pacific Decade of Disabled Persons (1993-2002)
- Reaffirmation of disability-focused documents such as the Biwako Millennium framework, the Manila Declaration on Accessible Information and Communication Technologies, the World Summit for Information Society, and other regional instruments.
STATEMENT OF PRINCIPLES AND OBJECTIVES
12. It would be important to set out clearly the objectives of the Convention and the basic principles underlying its interpretation and application. The statement of principles and objectives of the convention might include reference to an affirmation of dignity, autonomy, equality, solidarity, and representative participation as overarching values underpinning any convention.
13. The Convention should:
- be a "rights-based" instrument built on international human rights norms and standards of social justice, citizenship and well-being. Standards below already existing human rights standards must not be accepted.
- ensure that that all persons with disabilities, without exception, are entitled to the full benefit and enjoyment of all fundamental human rights and freedoms on the principles of equality, dignity, autonomy, and without any discrimination.
- stress that the situation of all disability groups and the diverse conditions related to gender, race, colour, age, ethnicity and other considerations must be taken into account, and recognise the impact of dual disadvantage and multiple discrimination faced by individuals such as, women, children or indigenous people with disabilities.
- ensure that the principles of non-discrimination and equal opportunity apply to persons with disabilities and their organizational issues
- acknowledge that the lack of provision of reasonable accommodation and/or positive actions to eliminate barriers to full participation is a form of discrimination
- primarily contain rights that are enforceable, and should incorporate measures to enable persons with disabilities to exercise their human rights and fundamental freedoms
- provide for a mechanism for the participation of organization of persons with disabilities in the monitoring and implementation of the treaty
- promote international cooperation to support national efforts
- promote cooperation between governments and DPOs at the national level and ensure recognition of the successful initiatives of DPOs
- promote an inclusive, and barrier-free society
- promote the participation and proper representation of persons with disabilities in policy and decision-making,
14. The convention should include definitions of disability, discrimination, and accessibility.
15. There is a range of definitions of disability adopted at the international level. This reflects different purposes as well as changes in the understanding of disability. The meeting noted that the WHO-ICF definition might be taken as a starting-point, but also noted that there were concerns about some definitions currently employed, particularly in relation to survivors of mental illness or users and survivors of psychiatry.
16. The convention should contain a definition of disability that reflects an understanding of disability as something which is the result of social and environmental factors. There should be an inclusive approach to all categories of impairment, covering physical, sensory, intellectual, psychiatric and multiple disabilities.
17. In elaborating the definition of disability, it should be recognized that, while individuals have impairments, disability is not an individual pathology. It has a range of implications for social identity and behaviour, and largely depends upon context. Disability may also be a consequence of discrimination, prejudice and exclusion.
A definition of disability should not be restrictive. For example it should cover physical, sensory, intellectual, psychiatric and multiple disabilities. It should acknowledge that disability can be permanent, temporary, episodic and perceived.
Discrimination and equality
19. With regard to the definition of "discrimination" the Convention should address all forms of discrimination including direct, indirect, intended and unintended, hidden, and systemic discrimination. The convention should contain a definition of discrimination on the basis of disability which draws on existing international definitions but which modifies them to reflect the particular nature of equality and discrimination in relation to persons with disabilities.
20. There is a consistent approach taken by the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, ILO Convention No 111 on Discrimination in Occupation and Employment, and by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights to the definition of discrimination. Discrimination exists where there is "any distinction, exclusion or restriction on the basis of a prohibited characteristic (i.e. disability) which has the purpose or effect of impairing or nullifying on a basis of equality the recognition, enjoyment or exercise of human rights"..
21. A definition of discrimination should:
- cover direct (disparate treatment), indirect (disparate impact), hidden and systemic discrimination, including all arrangements, practices, and social structures that lead to the denial of rights and freedoms.
- include a failure to accord reasonable accommodation as discrimination (as does the Committee on Economic, Social and Cultural Rights in its General comment 5), and should include a definition of reasonable accommodation
- clarify the different types of "positive measures" that may be required to ensure equality (some continuing, some which may need to be only temporary) and the relationship of these "positive measures" to the definition of discrimination
- provide that affirmative action or "special measures" to reduce or remove barriers to full participation and to provide enabling environments in order to achieve equality of opportunity and equality of treatment should not be regarded as discriminatory.
- Equality of opportunity requires that any relevant restrictions or limitations caused directly or indirectly by a disability should be remedied by appropriate modifications, adjustments or assistance.
- recognise that discrimination can result where different treatment is based on multiple grounds including disability (intersectionality) - for example, women with disabilities, indigenous people with disabilities - and that there can also be discrimination where different disabilities are treated differently and where in relation to different treatment there is a disparate effect on an individual or group.
- include protection for associates of persons with disabilities against discriminatory treatment because of their association
- provide protection against discrimination where disability is suspected, assumed, perceived or where the discrimination is based on a past disability.
22. The definition of equality should recognize that equality of opportunity requires that any relevant restrictions or limitations caused directly or indirectly by a disability should be remedied by appropriate modifications, adjustments or assistance and requires affirmative action, reasonable accommodation or "special measures" to provide barrier free access in all spheres for full participation and to provide enabling environments, where necessary, in order to achieve equality of opportunity and treatment. Such action or measures should not be regarded as discriminatory. The meeting raised the issue of whether the concept of equality to be adopted was one of equality of opportunity or equality of outcome/result.
23. The concept of accessibility, which was a critical component of any convention, need to be defined carefully. The following definition was proposed:
"Accessibility" means the measure or condition of things and services that can readily be reached or used (at the physical, visual, auditory and/or cognitive levels) by people including those with disabilities, which could be achieved, through design and/adaptation irrespective of any types of disabilities. The term "accessibility", as commonly used in the disability-related field, may include but not limited to:
- access to physical/built environments and public transport;
- access to information and communications, including information, communications and assistance technology.
The meeting also noted the elaboration of accessibility with reasonable accommodation contained in the Manila Declaration on Accessible Information and Communications Technology adopted by the United Nations Interregional Seminar and Demonstration Workshop on Accessible ICT and Persons with Disabilities (Manila, 3-7 March 2003). That meeting was organized in response to General Assembly resolution 57/229, which inter alia calls for accessibility with reasonable accommodation in United Nations facilities and documents.
24. The convention should contain a clear statement of the obligations of a State party to implement its provisions, in particular the obligations to respect, ensure and provide remedies for violations of the rights set out in the Convention. State parties should be obliged to take legislative, programmatic and policy actions to implement the provisions of the convention, in particular the obligations to respect, ensure and provide enforcement mechanisms for violations of the rights set out in the convention. These measures should include specific constitutional or legislative guarantees of the rights of persons with disabilities to enjoy human rights and fundamental freedoms without discrimination. States should be obliged to ensure an enabling environment and a barrier-free society.
25. The convention should clearly set out the obligations of States parties in relation to the acts of non-State actors which involve the denial of the human rights of persons with disabilities.
26. States parties should provide guarantees of equality of opportunity and of non-discrimination, both generally and in the enjoyment of rights guaranteed in the convention.
GUARANTEE OF EQUALITY AND NON-DISCRIMINATION
27. The Convention should contain a general guarantee of equality and non-discrimination in the enjoyment of the rights set forth in the convention, as well as a free-standing guarantee of equality and non-discrimination as set out in article 26 of the ICCPR.
28. The Convention should make specific reference to the right of women and men to equality and non-discrimination in the enjoyment of human rights and fundamental freedoms.
GUARANTEES OF SPECIFIC RIGHTS
29. The convention should reaffirm the entitlement of persons with disabilities to the enjoyment of all human rights and fundamental freedoms. It should therefore contain a statement of specific rights guarantees, drawing on the rights contained in the UDHR, ICCPR, ICESCR and other instruments. These rights should be supplemented by more detailed elaborations of what is required for persons with disabilities to enjoy those rights on the basis of equality, or by new formulations that reflect the perspectives of persons with disabilities. The Convention on the Rights of the Child and the Convention on the Rights of All Migrant Workers and Members of Their Families may provide useful starting-points for developing such an approach.
30. The meeting noted that all rights could be further elaborated to ensure that persons with disabilities enjoyed them on an equal basis. A number of specific examples were given:
- the linguistic rights of persons with disabilities (as illustrated by the the rights of deaf persons to use sign language to communicate, to have interpretation services in sign language, education in sign language as well as effective access to all systems of communication; or by the right of persons with visual impairment to use Braille), which might be derived from various rights including the rights to freedom of expression;
- the rights to respect for private and family life, and to freedom of expression might be relied on to underpin the right to sexuality of persons with disabilities
- right to liberty and security of the person and to freedom from cruel, inhuman or degrading treatment could be drawn on in relation to forced intervention, and institutionalisation
- the right to non-discrimination in relation to nationality and immigration might be drawn on to support the rights of persons with disabilities to immigrate to join family members (a field in which some countries discriminate)
- the rights to freedom of association, freedom of expression, and of political participation could be drawn on to ensure the full representation of DPOs in decision-making.
31. The meeting also noted that the implications of some rights for persons were contentious. The example of the right to life and its implications for the use of genetic counselling, or rights of access to abortion was mentioned. It was recognised that a convention would not necessarily resolve debates over these contentious issues.
32. In addition to specific interpretations of existing human rights guarantees, participants identified a number of additional perspectives or aspects of existing rights that might be considered for explicit inclusion in a convention. These included:
- Right to participation/right to inclusion
- Right of access to the physical environment (including access to places, services and facilities)/Right to a barrier-free society
- Right of access to information and to communication (which should reflect the specific modifications necessary for effective access)
- Right to enjoy resources
- Right to personal self-determination and to independent living in the community*
- Right to freedom from violence and abuse
- Right of access to basic economic resources, including safe food and water
- Provisions recognizing that the position of persons with disabilities living in rural areas may be different in important respects to persons living in urban areas.
33. There was some discussion of whether the concept of reasonable accommodation should be seen as involving a separate right or whether it was better understood as part of the concept of discrimination. Some consideration was also given to whether third generation rights, such as the right to development, should appear in the convention. The consensus of the meeting was that, given the complexities of introducing such a collective right into the proposed convention, it might be more appropriate to focus on guaranteeing enjoyment of individual rights as a means to enhancing the participation of persons with disabilities in the development process and ensuring that they enjoy the benefits of development, rather than including the right to development as such in the body of the convention..
OTHER STATE OBLIGATIONS
34. The convention should also contain provisions dealing with other measures to be taken by States parties, which could include:
- provision for national institutional frameworks to monitor and promote compliance with the convention, in which national human rights institutions can play a role;
- provisions requiring national governments ensure that the responsibility for matters relating to upholding the rights of persons with disabilities should be allocated to a specific focal point within Government with authority for implementation;
- provision for setting clear targets for the development of disability-inclusive infrastructure and processes;
- provisions requiring States parties to provide and promote accessibility for all persons with disabilities and their associates;
- provision for collection of statistics and other data for reporting and monitoring purposes;
- provision requiring States parties to promote awareness of the convention
- provisions requiring States parties to set aside specific resources to implement the convention and to provide support for the activities of DPOs.
International and regional
35. The meeting considered that there were a number of international, regional and sub-regional and national level mechanisms that might be used to monitor the implementation of the convention. The establishment of an independent committee of experts similar to that established under other United Nations human rights treaties was seen as a central component of a convention, though it was recognized that monitoring also needed to take place at the regional and national levels.
36. The meeting considered that there should be established a new human rights treaty body, consisting of independent experts in the field of disability, to oversee the implementation by States parties of the provisions of the Convention. Such a new committee should have a general monitoring function, as well as being empowered to consider allegations of violations of rights where the national system concerned has failed to provide a remedy. Any monitoring system should involve an independent assessment of implementation by State parties.
37. The committee should perform the functions of reviewing reports submitted by State parties, have competence to receive individual complaints alleging violations of the rights guaranteed in the convention, and should have the power to initiate an inquiry into the situation in a State party where it appears that serious or systematic violations of the convention are occurring. The committee might also be given the competence to consider complaints by one State party against another alleging violation of obligations under the convention.
38. Membership of that committee should include persons with disabilities, and ways of involving DPOs in the selection of the members of the committee should be explored. Information concerning the Convention produced by governments, and the United Nations should be made available in formats which are available and accessible to all.
39. In addition to the establishment of a new treaty committee, regional intergovernmental organisations should be encouraged to monitor implementation of the rights of persons with disabilities, and existing or future regional human rights charters and mechanisms should expressly incorporate the rights of persons with disabilities. Particular mention was made of the Biwako Millennium Framework monitoring system as having the potential to monitor the implementation of a new convention and to provide input into the work of a new treaty committee.
40. The convention could also include specific obligations relating to national institutional frameworks, in particular providing that States parties should use national institutions to monitor and promote compliance with the convention, in which national human rights institutions can play a role. There should be provision for complaints handling, promotion, litigation, monitoring and reporting functions. There should be enforcement mechanisms including provision of remedies within institutional and/or judicial systems. The meeting considered that such national frameworks should be adequately resourced. The meeting also noted the importance at the national level of the establishment of consultative bodies incorporating persons with disabilities and DPOs.