Thursday, June 9, 2011

Day 4: CDLP NUI Galway & Harvard Disability Project Summer School

by Mary Keogh & Charles O’Mahony

Professor Rosemary Kayess started Day 4’s proceedings with a session on Article 24 (Education) of the Convention on the Rights of People with Disabilities. The article on education was one of the hotly debated articles of the negotiations, as education is so central to persons with disabilities reaching their full potential. Persons with disabilities marginalisation from education systems has been recognised in many reports. For example, UNICEF in a 2005 report found that barriers to education for person with disabilities included discrimination, stigma and low quality curricula. These barriers exist across all borders, for example the World Bank cites that 90% of children with disabilities in developing countries do not attend school.

To begin with, Rosemary traced the shift in International Human Rights law, which provides the general legal and policy framework for inclusive education. This included the Universal Declaration on Human Rights, the Dakar Framework for Action, the Convention on the Rights of the Child and its move towards inclusive education (Article 23, paras 1,3 and 4), the Salamanca Statement of Principles, Policy and Practice in Special Needs Education; Goal number 2 of the Millennium Development Goals and finally Article 24 of the Convention on the Rights of People with Disabilities.

In discussing Article 24 in more detail, Professor Kayess stated a number of important points. First, that it reaffirms the need for education in a non-discrimination context. Second, it identifies that support measures must be offered in an environment to maximize the academic aspect of education ensuring the quality of the curriculum is of the highest standard. This goal of achieving the highest standard must be supported with trained personnel.

In discussing the various commentaries on the right to education, Professor Kayess also highlighted the remarks made by the Committee on the Rights of Children in 1997, on the rights of children with disabilities which concluded that ‘the segregation of children with disabilities for care, treatment or education’ represented a breach of the CRC. The topic of the need for segregated education remains a topic of discussion among the disability community and was a topic of intense debate during the negotiation of the Convention. A participant of the summer school from the deaf community raised the point that it is important for deaf students to receive a quality education in an appropriate setting to their needs. This of course is important, however, Professor Kayess suggested that if segregated places of education existed, creative thinking would be required to open up the schools to accept other students from the wider community.

The summer school was also lucky to have Dr Gauthier de Beco co-presenting with Professor Kayess. Dr de Beco gave an overview of the normative framework on the right to education. The session finished of with a discussion on a number of legal actions taken on the right to education for people with disabilities. The case citations are Autism Europe V France, MDAC V Bulgaria and the Western Cape Case.

Afternoon Session

Eric Rosenthal the Executive Director from Disability Rights International led the afternoon session of day 4 of the Summer School. Eric stated that Article 16 marks the point where the rubber hits the road in terms of the CRPD. He stated that no abuses are more serious than those faced by persons with disabilities. He proposed that advocates need to put the CRPD's abstract legal rights to work and that might involve taking serious personal and professional risks. He proposed that Article 16(1) of the Convention establishes a duty to protect against abuse and exploitation. He noted that international law requires State Parties to protect and make the rights real in whatever ways necessary. In that regard Article 16 applies to abuse both inside and outside the home. He pointed out that it is difficult to identify abuses against persons with disabilities in the community and particularly in the home. He discussed the movement against domestic violence and noted that much of that knowledge has been instrumental in our understanding abuse against persons with disabilities. The best way to protect people from abuse in institutions is through community integration. In that regard Article 19 is extremely relevant as it embodies the right of everyone to be part of the community.

It was suggested that orphanages were places where abuse can be prevalent and that children with disabilities were more likely to be placed in orphanages. It is essential that the work on the ground be linked to promoting systems reform. The discussion progressed to discuss Article 16(2), which provides a duty to prevent abuse. Eric suggested that Article 16(3) is also about prevention but also monitoring all systems and programmes. He made the point that procedural protections in isolation have limited effectiveness; advocacy, monitoring and inspection are also required. The lack of monitoring and independent outside exposure leads to the use of restraints.

There was then a discussion between the correlation between abuse and disability. It was suggested that the correlation was strong and that people in the disability community need to engage with this parallel. There was a proposition that abuse makes "victims" more vulnerable to future abuse and coercive “treatments” tend to exacerbate underlining trauma. Identification of abuse against persons with disabilities and investigation and prosecution is vital. Eric put forward the suggestion that peer examination of institutions was key to reducing abuse and good investigation should involve peer support. Eric suggested that peer involvement under Article 16 of the Convention is not an abstract right. Peer support needs to be part of the system to allow individuals the safe space to receive services and have someone to talk to about abuse.

Eric then directed discussion to the laws of a State, which will sometimes justify abusive practices. He cited the example of the failed litigation to end the use of electric shocks to punish children with disabilities at the Judge Rotenberg Center in Massachusetts. The meaning of international law is that you can appeal to a higher authority. Eric also spoke about the nature of abuse and that “victims” of abuse often find it too difficult to talk about. As such advocates have to be aware and not passive in terms of monitoring.

Eric played a video filmed as part of Disability Rights International’s investigation into psychiatric institutions in Mexico. The footage was very disturbing in terms of the abuse in the institutions. Eric discussed the DRI Report from 2000, which exposed abuse in psychiatric institutions in Mexico and its failure to bring about change. Responding to a question from a summer school participant Eric stated that mandatory reporting and criminalising abusive behaviour was important. Eric engaged in a discussion of torture and suggested that abuse of the nature shown in the video amounts to torture under international human rights law. Another participant asked Eric how we make States be honest in its reporting under the CRPD. Eric stated it was important to be sceptical of State reporting and highlighted the importance of shadow reporting.

Eric stated that while the Convention was hugely important it was essential to look to other sources of human rights law, such as the Council of Europe and the Convention Against Torture. It was suggested that violence has been continued due to a lack of communication between the authorities and cross disability expertise and that that bringing about effective protection is extremely difficult. A participant discussed the abuse reported by the BBC Panorama programme against persons with disabilities and the need for peer support.

A colleague of Eric's from Serbia spoke about her work in Serbia. She stated that the need to label abuse properly was essential and that the abuse of persons in institutions amounts to torture. The Serbian Government now sees that they have to address this issue, as they cannot avoid the continuation of torture. Disability Rights International’s advocacy was able to show the evidence of abuse and torture. UNICEF supported findings and the Government realised that they needed to take action. She commented that things do not change overnight and that abuse was still being discovered on a large scale. There was a discussion around Disability Rights International’s successful challenge to the use of structural funding from the EU for institutions. It was noted that DRI used arguments based on the CRPD in its advocacy on this matter. Disability Rights International has been arguing for increased independent monitoring and it is in the process of signing a memorandum of understanding to allow it to inspect institutions for children with disabilities. Eric made the point that advocacy has spill over effect into other areas such as inclusive education.