Trends in Focal Points: Monitoring the CRPD

by Meredith Raley 

As explained previously, Article 33 of the Convention on the Rights of Persons with Disabilities is one of the most innovative and important articles in the Convention, as it has the potential to transform the way that human rights treaties interact with national laws. This potential will only be realised, however, if the framework laid out in Article 33 is effectively established and maintained.  Therefore, it is important to keep track of the progress made by state parties to the Convention, to establish best practices and encourage continual progress. The first component of the Article 33 framework mentioned in the Convention is the focal point.  According to Article 33.1 of the CRPD, “States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention”.  This single sentence does not provide much guidance as to either what the focal point should be, or what duties and functions it should have.

The UN has established some guidelines for the placement of focal points, although they note that, due to the variety of governments around the world, it is impossible to prescribe any particularly specific rules. A few general principles can be outlined, however.  First, the focal should be established at the ministry level in government.  The implementation of the Convention requires action at the most senior levels of government, as well as requiring action in all ministries or departments.  The focal point must be placed high enough within government to ensure all necessary action and cooperation takes place.  While placing the focal point within an existing ministry can make it easier to ensure funding and staff, by taking advantage of structures that already exist, the use of a Health Ministry or similar body is discouraged, as it promotes the medical, rather than social, model of disability. Wherever it is place, a focal point must be able to lead the process of implementation within a state party’s government.  The goal of creating focal points is to ensure that some part of a state party’s government will remain focused on the process of implementation, and therefore avoid the delays and slow progress that have so far been all to common in the implementation of human rights treaties.  The Convention also allows for, and even encourages multiple focal points for federal states or other states that have multiple levels of government, all responsible for some part of implementation.

So far, a few distinct trends have emerged in state parties that have established focal points, and in general, these trends line up with the guidelines provided by the UN and the function and purpose of the focal point.  One popular location for focal points is within already established Ministry level disability rights offices.  This is the case in Canada, with the Office on Disability Issues as well as New Zealand (the Office for Disability Issues) and the UK (The Office for Disability Issues).  In addition, the UK will establish multiple focal points, one within each of the devolved governments of Scotland, Wales and Northern Ireland. Another common location for the focal points is within the Ministry of Social Affairs, or similar ministries.  This is the case in Denmark (Ministry of Social Affairs), Austria (Federal Ministry of Labour, Social Affairs and Consumer Protection), and Germany (The Federal Ministry for Labour and Social Affairs), though Germany, like the UK, will use multiple focal points, with some of the Länder establishing their own focal point, in addition to the one at the national level.

Outside of these trends are countries such as Australia, which has appointed it’s Attorney General’s office and the Department of of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) as joint focal points (see here).  Another example is Ecudaor, which has appointed its Ministry of Justice and Human Rights, working in Coordination with CONDAIS (see here). (Note: CONDAIS is a National Disability Council.  Variations of this acronym are common for National Disability Councils throughout Latin America, and many of them are involved at the focal point level in some way.)  While many of these trends are encouraging, it is important for activists and other promoters of disability rights and human rights more generally to carefully watch the process of appointing and maintaining focal points.  So far, only a small minority of state parties to the CRPD have named focal points, and there is a vast difference between simply naming the body that will serve as the focal point, and actually creating and maintaining a body that can effectively implement a human rights treaty.  While currently the framework of Article 33 only applies to the CRPD, if the process is successful, it could be applied to other areas of human rights.  For all of these reasons, it is important to keep a close watch on developments in this area.

Seminar Series on the UN Disability Convention

The Scottish Human Rights Commission has begun to host online seminars on the CRPD.  The rationale for holding the seminars is that there is promote accessible information on the CRPD and how it relates to persons lived experiences.  Seminar 1: The first seminar examined disability equality and human rights in the context of public spending cuts and welfare reform.  Each seminar runs for an hour and is scheduled 12 -1pm – so that they can be viewed during lunchtime…  The first seminar ran on Monday 12 December 2011 and examined Rights in a Recession.  Seminar 2: The next seminar is scheduled for 16 January 2012 and is entitled “Getting Justice”.  The guest speaker will be from the Legal Services Agency and the seminar will cover some things disabled people have already told the Commission’s about access to justice - such as concerns from learning disabled people about using and accessing the court system, fears about reporting harassment and alternatives to court action - then the seminar will outline what the Convention says about access to justice and about how the Convention could be used in Scotland.  You can join the next live seminar: http://www.crpdscotlandseminar.com/gettingjustice.htm 

Seminar 3: 13 February 2012: Independent Living

Seminar 4: 12 March 2012: Children and Young People

For some information on viewing and participating in these seminars see here.



Seminar 1 

E-Petition Aims to Increase Participation of Persons with Disabilities in Political Life in the UK

Disability Politics UK have initiated an e-petition aimed at increasing the number of disabled MPs in the United Kingdom.  The e-petition "Allow MPs to serve on a job share basis" has now been published.  See here. 

The e-petition reads as follows:

“We the undersigned recognise that for some disabled people (and others), a main barrier to being able to participate in public and political life is that it is not currently possible to job share as a Member of Parliament therefore we ask that the law be changed to allow MPs to serve on a job share basis.”

The underrepresentation of persons with disabilities in political life is well acknowledged.  Article 29 of the United Nations Convention on the Rights of Persons with Disabilities deals with participation of persons with disabilities in political and public life and places obligations on State Parties to the Convention to facilitate greater political participation of persons with disabilities.

You can sign the petition here.

Irish conference discusses why disability must be embedded in development

by Mary Keogh

Recently, we have heard a lot of headlines about the 7th billion baby born to the world. The exact location and timing of the birth was debated and it was even suggested that we could be past this figure already given the fact that some countries do not register births. What we do know is that this child was born into a world, which comes under continuous pressures to support its growing population. A world where poverty levels are high and millions of people go hungry on a daily basis. There is no disagreement that 7 billion people inhabiting our planet is without a doubt a staggering number.

In June this year, the Word Report on Disability estimated that 1 billion people live with some form of disability and this figure is expected to grow as people grow older and develop age-related impairments. This means 1 in every 7 of us has some form of disability. 1 in every 7 makes disability a significant policy issue for all governments to consider, some would say a call to action to ensure this large population of people is included in all aspects of life. Yet disability remains on the periphery. As a policy issue, it is usually situated in categories such as the socially excluded, or the marginalised or the most vulnerable. There is no denying that all of these categories describe how people with disabilities live their lives on a daily basis in both rich and poor countries. For example, research shows that 98% of children with disabilities do not attend schools in developing countries;[1]that 80% of persons with disabilities of the 1 billion persons with disabilities are estimated to live in developing countries. Similarly, in what we describe as rich or more ‘developed’ nations, disability continues to remain a peripheral issue. From both a ‘developing’ and ‘developed’ perspective, the disability movement is calling for all persons with disabilities to be able to fulfil their capabilities such as the opportunity to be educated and to work and for acceptance in their communities and families. In every country, rich or poor, how this inclusion is realized, depends on how governments and also the wider public respond to the call for including persons with disabilities as citizens.

The Convention on the Rights of Persons with Disabilities adopted by the UN in 2006 provides governments, policy and lawmakers with tools to bring about inclusion for persons with disabilities. With over 105 countries ratified, the political commitment is now there on paper, and the challenge ahead is how to ensure these commitments are put into practice across.

On October 20th, CBM Ireland and the Centre for Disability Law and Policy (CDLP) National University of Ireland Galway in conjunction with Dochas and the Disability Federation of Ireland organised a major conference The Convention on the Rights of Persons with Disabilities “Promoting Disability inclusion in Ireland and World “. The conference was designed to bring together a wide range of stakeholders to discuss how nations need to realize that disability is a growth area and that strategies for inclusion must now be sustainable for the long term rather than piecemeal approaches. These strategies for inclusion must not be confined within our own borders but must reach out to other countries that Ireland supports through its overseas development programmes.

The overarching message of the conference was that Irish International Cooperation must be inclusive and accessible to those with disabilities. The conference had a number of distinguished speakers. Ms Judith Heumann, Special Advisor for International Disability Rights at the U.S. Department of State, delivered the keynote address. Ms Heumann commented that there is a need to acknowledge the disability is unquestionably a development issue and furthermore that if the Millennium Development Goals are to be achieved then people with disabilities need to gain access to changes brought by development money and programmes.

Mr Bob McMullan who served as an MP in the Australian Labour government and who championed the inclusion of people with disabilities in the Australian governments overseas programmes also addressed the conference. Starting with what he called an imaginary country, he gave the audience some stark statistics. This country has up to 500 million people, the under 5 mortality rate is up to 80%; the school attendance is 10%; the literacy rate is 3% and the unemployment rate is up to 80%. These statistics in any country would be unacceptable from a human rights perspective. Mr McMullan went onto explain that while the country might be imaginary, the statistics are true when it comes to describing disability within a developing country.

Mr McMullan, then outlined to conference participants the 10 low cost steps that can be taken to make Aid or International Cooperation more inclusive. These steps are:

1. Establish reference or advisory group
2. Review mainstream programmes for compatibility with CRPD obligations
3. Develop strategy documents focused on rights
4. Fund DPO strengthening (e.g. DRF)
5. Adapt scholarship programme for PWDs
6. Ensure infrastructure programmes reduce barriers
7. Develop disability focus in volunteer programmes
8. Establish partnerships with NGO’s
9. Undertake research
10. Become a global advocate for the post 2015 priorities

Other speakers at the conference included NUIG Centre for Disability Law and Policy Director Professor Gerard Quinn who commented that “This is a pioneering event at European level which gives space to reflect how regions like the EU and states like Ireland can be a force for good in the world where the vast majority of persons with disabilities live in developing countries.  He went onto comment that  “Good practice from around the world – including particularly USAID – will help us reflect on the positive role of development aid programmes in lifting people with disabilities out of poverty and opening up new opportunities in their lives.  Inclusion does not necessarily require more money – just that existing monies are spent smartly to avoid exclusion and to create pathways into the mainstream.”

CBM Ireland National Director David McAllister called for disability support to be systematically embedded in Ireland’s Overseas Budget. Having been involved in delivering high impact programmes to address the targets of the Millennium Development Goals Mr McAllister talked about his astonishment at lack of inclusion of persons with disability in the mainstream development programmes. He called on all mainstream development organisations funded by Irish Aid to engage with organisations such as CBM to learn more about disability and to work in partnership on creating inclusive development programmes. Mr McAllister’s final remarks concluded by stating that Ireland has an opportunity to be a leader in this field through ensuring that the Overseas Development is inclusive and accessible to those with disabilities. However this inclusion will not happen merely because of legislation or the development of discussion papers. It must be dynamically imbedded in Irish Development Policy for Overseas Development Aid.

My Daughter is Leaving Home: Reflections on Living Independently

by Noelin Fox

This month, my daughter, like thousands of her peers across the country, is moving away from home for the first time. She is 18 years old and is taking up her place in college, embarking on her journey to independence. Over the coming months she will have to learn a whole array of new skills which she has no previous experience of. She will have to manage her (limited) budget, feed herself properly, learn to live with people who are not her immediate family, manage the academic work she is assigned, deal with the bank, figure out bus time-tables, forge new friendships and a whole array of other tasks. In the process she may well make mistakes. She may submit work late for college, spend too much money on going out leaving herself short at the end of the week, get involved in unwise relationships, among many things. Hopefully she will learn from such mistakes and manage better the next time. Throughout this process she will have plenty of support – from us her parents, from the school-friends she is living with and from new friends – and if she gets her heart broken or bruised we will take care of her until she heals and help to her move on. The college too is well attuned to the needs of in-coming first years – it has good structures in place to ease them into college life and help ensure they progress through their first encounters with third level academic studies.

How different all this would all be if she had a disability, especially if she had an intellectual disability. Would she be leaving home at all at this stage of her life at all? Probably not – and there are many reasons why this is so. On a practical level she may not be allowed to open a bank account or sign a lease for her accommodation. If she were deemed by a medical doctor to be unable to manage her money, any disability benefits she received would probably be paid directly to us.

And where would she go anyway? There are so few mainstream third level education options open to people with intellectual disability. Third level colleges may have disability support services for students, but gaining access to the regular courses is a problem and there are few courses designed to meet the needs of people with intellectual disability in this sector.

On another level we may feel that she would be safer at home, worried that she would not be able to cope with life without our immediate support and guidance – would she be vulnerable to being exploited, would she be able to manage getting the bus, would she get involved in inappropriate relationships, would she manage her course work? And if she needed support at home where would this come from and how would it be paid for?

Our systems and structures are designed to support my daughter’s progress from home to college and on to employment. The pathways are clear and open. It is assumed by her family, her schools and her community that she will learn the skills she needs to progress through the systems and become a fully-fledged independent adult. These positive assumptions about her abilities are built into and supported by our structures and systems. For people with intellectual disability the opposite is the case. Quite apart from the worries of parents’ about the ability of their disabled sons or daughters to manage life independently, the lack of clear pathways is an enormous obstacle. For young adults with intellectual disabilities the most likely route after school is some form of training or day services provided by a disability service provider and funded by the health services – not education. Although FAS funds some training programmes for people with disabilities, the vast bulk of day services and training for people with intellectual disability is funded from the health budget. So, while our educational obligations to most young adults continues into their twenties, it seems to end at eighteen for those with intellectual disability. This means that if a young adult with intellectual disability does not want to attend a specialist (and in effect a segregated) post-school education or training programme, she will in general have to forge a path largely unassisted by our state systems – which in the main only provides recognized pathways to specialist/segregated services for her. There are some notable exceptions such as the Certificate course in Contemporary Living offered by TCD and the new ‘Going to College’ pilot scheme starting this Autumn in NUIG. But the point is that these are the exceptions and third level colleges are only just beginning to develop options for people with intellectual disability.

Article 19 of the UN Convention on the Rights of Persons with Disabilities asserts the equal right of all persons with disabilities to live in the community with choices equal to others, and to be fully included and participate in the community. People with intellectual disability, just like everyone else, must learn the skills they need to achieve this successfully, and have the opportunity to develop their own relationships with others, independent of family. This will mean that they, just like everyone else, probably will make mistakes along the way and hopefully they will learn from their mistakes. Many of us, however, disabled or not, never learn from our mistakes and may in fact end up repeating the same mistakes over and over again – how many people, for example do we know who repeatedly make poor decisions about relationships. Family or friends may offer advice when this happens, but we do not and cannot stop them, nor should we unless they break the law. Yet if a person with intellectual disability makes a mistake she probably won’t be allowed to make it again, and indeed it is more likely still that she will never be provided the opportunity to make the mistake in the first place. This will probably be framed as protecting her, but it has the consequence of stopping her from learning what she needs to learn in order to get on with her life. How else will she learn if she is protected and segregated from real life in the community? To become adults in charge of our lives we all need the chance to learn from experience, and to learn the skills we need we all have to given our independence and the chance to live in communities.

Making real the right to independent living and community inclusion means:

1. Ensuring that our legislation – and particularly our new legal capacity legislation – makes positive assumptions about people’s abilities and supports people in their decision-making where this is needed.
2. Ensuring that our policies, structures and practices are truly open to all citizens, including people with intellectual disability, and that any barriers currently blocking people’s path to independence are eliminated.
3. Developing recognized and accessible pathways to independence for people with intellectual disability, which are not separate from those of their peers.
4. Using our resources to support people in living their lives as part of the community so that they too can make their way in life as they see fit.

A sea-change in attitude is needed , away from paternalism and protection – which has served people badly – to inclusiveness and expectation. We always assumed that our daughter would leave home for college. For her, this time of her life is full of excitement, challenge and expectation. For us, of course, it is a little sad and not a little costly! But we are delighted for her and would never attempt to stop her going. It should not be so different for the many young adults with intellectual disability at the same stage as her, and their parents. There is a great injustice in this and it is something we can change – it is not so difficult but it does require some determination to change on all our parts.

Article 33: Bridging the Gap Between Domestic and International Law

by Meredith Raley

The United Nations Conventions on the Rights of Persons with Disabilities (CRPD) is a milestone achievement for human rights in many ways. In addition to the many important substantive rights it guarantees, such as the right to education, independent living and health, the convention also contains important procedural innovations that will encourage its implementation. One of the biggest obstacles to realising the rights laid out in all UN human rights conventions has always been the difficulty of translating international treaties into domestic law, or implementation. Historically, this process has been slow and uneven, even for treaties that are widely ratified. In an effort to prevent the same problems from befalling the current convention, the CRPD includesArticle 33 which is an attempt to bridge the gap between international and domestic law, with the goal of fuller and faster implementation of the rights enshrined the Convention.

Article 33 requires state parties to the CRPD to set up a framework to guide and monitor the implementation of the Convention. It also requires that civil society be involved in the implementation process. The framework required by Article 33 is divided broadly into three parts: The focal point, the coordination mechanism, and the monitoring mechanism. Article 33.1 requires states to ‘designate one or more focal points within government for matters relating to the implementation of the present Convention’. This focal point will be the government body responsible for overseeing the implementation of the CRPD. The purpose of a focal point is not to make a single government body solely responsible for ensuring that all domestic laws and regulations conform to the CRPD, as the convention is wide-ranging and covers areas that are the responsibly of many different ministries, branches, and levels of government. Rather, by focusing responsibility for overseeing the implementation process with a single body, Article 33.1 ensures that someone within government is always focused on the implementation process, and can encourage action to bring national laws in line with treaty obligations. This way, the complex problem of implementation is not simply ignored, postponed, or constantly assumed to be the responsibly of a different party. The article also allows for multiple focal points, largely to accommodate federal systems that have multiple levels of government responsible for different parts of implementation.

Article 33.1 also asks state parties to ‘give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels’. As mentioned, full implementation of the CRPD will require action from many different sectors of government, and for many state parties, action at multiple levels of government will also be necessary. For this reason, states are encouraged--but not required--to designate a coordination mechanism, which will be responsible for harmonising actions across all levels of government. The necessity of this part of the framework depends largely on a state party’s legal system.

While 33.1 is about the governmental side of implementation, 33.2 addresses the need for independent monitoring. In order to ‘promote, protect, and monitor’ implementation of the CRPD, state parties must establish or designate ‘a framework, including one or more independent mechanisms’. For many states, it is expect that this framework will include their National Human Rights Institution (NHRI). See here. For most states that have a NHRI, it typically takes the form of a Human Rights Commission, such as the New Zealand Human Rights Commission (see here) or an Ombudsman, such as Sweden’s Equal Opportunities Ombudsman (see here). NHRIs such as these are established under the Paris Principles (see here), a set of guidelines that ensure a NHRI remains independent of government and so can effectively monitor the human rights within its country. The Paris Principles are referenced within Article 33.2, which states that when establishing a monitoring body under 33.2 ‘States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.’ This means that even states that do not have and do not plan to establish a NHRI must take the Principles into account in order to establish a mechanism that fulfills 33.2. The monitoring mechanism helps the process of implementation by providing oversight, ensuring that implementation is not postponed, and that the rights in the CRPD are properly and fully implemented. The monitoring process must also, according to 33.3, fully involve civil society.

The goal of Article 33 is to correct one of the longest-standing problems in human rights law: how to translate international treaties into domestic law. There are certain assumptions about why states fail to implement treaties built into this article. It assumes that a states fail to implement treaties not out of malice, but instead because implementation is continuously postponed, or poorly managed, or it is not clear who is responsible for the implementation process. Hopefully, for the CRPD, many of these problems can be avoided, and full implementation will be achieved more quickly and easily than it has been in the past.

Mexico and Republic of Korea Submit Report CRPD Committee

Mexico and the Republic of Korea have now submitted their national reports to the Committee in on the Convention on the Rights of Persons with Disabilities. The advance unedited version of the Republic of Korea's report is available in English and the report from Mexico is available in Spanish. See here. Article 35 (1) of the Convention on the Rights of Persons with Disabilities requires each State Party to submit to the Committee on the Rights of Persons with Disabilities a report on measures taken to give effect to its obligations under the Convention. This is suppose to occur within two years after the Convention enters into force in the state. Reports are then requrired to be submitted at least every four years and whenever the Committee requests a report. Article 36 (1) also empowers the Committee to request further information from the States Parties. For a guide on State Reporting on the CRPD see here and for a previous blog on shadow reporting see here.

Day 3: CDLP NUI Galway & Harvard Disability Project Summer School

by Charles O'Mahony & Noelín Fox

Professor Gerard Quinn & Professor Michael Stein began morning 3 with a presentation on Article 12 (legal capacity) of the Convention on the Rights of Persons with Disabilities. Professor Quinn noted that even before the advent of the Convention there had been an evolution of thinking on reforming laws on legal capacity. The Council of Europe led the way for a time by way of Recommendation (99) 4E on Principles Concerning the Legal Protection of Incapable Adults. However, the CRPD by way of Article 12 now leads the way. It was noted that theories of personhood might cause difficulties in restoring legal capacity to persons with disabilities.

Professor Quinn spoke about the status approach to legal capacity that linked "deficits" to legal capacity. He suggested that the Convention dissolves these assumptions and presumptions. He then spoke about the outcome approach to legal capacity, which involves an assessment of unwise choices as a test for removal of capacity. He noted that everyone makes unwise choices and repeats unwise choices but that does not result in the loss of legal capacity. The Convention now requires that outcome approaches to the assessment of legal capacity be inconsistent with Article 12. The tensions and concern with risk have led to restricting persons with intellectual disabilities from having intimate relationships and Article 12 requires a move away from this approach.

Professor Stein noted that many voices crafted Article 12 of the Convention on the rights of Persons with Disabilities. At the negotiation of the CRPD there was a suggestion by some State Parties that persons with disabilities could hold rights but not exercise them in the same way that a child could hold rights but not exercise them. Professor Quinn then facilitated a discussion of the different sections of Article 12. He suggested that Article 12(2) is pregnant with ambiguity. There was then a discussion around Article 12(3) and its requirement of supported or facilitated decision making to assist persons with disabilities to exercise their legal capacity.

The discussion then moved to the safeguards provided for in Article 12(4), which might imply that substitute decision making remains. Professor Quinn referred to this as the “co-mingling of two different ideologies”. He suggested that in order to resolve the co-mingling ideologies between supported and substitute decision-making there was a need to look at the object and purpose the CRPD. However, Professor Quinn noted that there is no neat prepackaged answer in relation to questions thrown up by Article 12. There was a discussion around the International Disability Alliance’s position on Article 12. (You can access the IDA’s legal opinion here).

There was then a discussion of the UN Office of the High Commissioner for Human Rights Thematic Study on the Convention (2009). Charles O’Mahony was asked to give an overview of the OHCHR’s statements on the insanity defence. He noted that the OHCHR suggested in the document that Article 12 requires State Parties to the Convention to repeal defences in their criminal law such as the insanity defence and replace them with disability neutral doctrines. He suggested this statement was surprising not least because that issue did not appear to be raised at the negotiations on Article 12. He noted that the defence was linked to many other defences in criminal law such as provocation and infanticide and that reform of the law would be extremely complex and that State Parties would in all likelihood institutively resist this proposal. Eric Rosenthal also made a contribution in relation to the OHCHR’s statements in the same document on Article 14. The OHCHR stated that Article 14 prohibited laws on involuntarily detention and treatment unless they were disability neutral. A participant asked Eric whether Article 12 was relevant to involuntary psychiatric detention and involuntary treatment. He responded that it was profoundly relevant to involuntary psychiatric detention and involuntary treatment.

Dr. Mary Keys from the School of Law at NUI Galway was asked to give an overview of the Irish law reform process on legal capacity. Dr. Keys gave an overview of the current law reform process and the key aspects of the proposed legal capacity legislation that will replace the archaic wardship system. Dr. Keys referred to the review of the Mental Health Act 2001 and suggested that there was a great opportunity to achieve compliance with the Convention. Professor Quinn ended the session by asking participants to consider the following puzzles emanating from Article 12 in a participatory exercise. The puzzles posed are as follows:

1. What does “on an equal basis with others” mean in Article 12(2)?
2. Does Article 12(2) contain an irebuttable presumption of legal capacity to exercise rights?
3. Is substitute decision making ever permissible under Article 12?
4. Is there some elusive point where “supported decision making” amounts to “substitute decision making”? How do you know? Can you successfully guard against it?
5. Is a reservation to Article 12(2) (or a disguised reservation in the form of a declaration of understanding) ever acceptable?
6. Can bits of Article 12 be “progressively achieved”? If so, which parts?

Janet Lord and Rosemary Kayess led the afternoon session. The session considered the development and meaning of Article 19 of the CRPD – the Right to Independent Living and Community Inclusion. The background to this right was outlined including the policy antecedents at UN and European level and the views of various state parties to the debate prior to agreement on the final text. There was discussion on whether the right to independent level represents a new right and the linking by the drafters of the core elements of the right to other international human instruments articles and comments. The independent living right was eventually linked to Article 13 of the Universal Declaration of Human Rights - Freedom of Movement - in order to validate its place as a right. A discussion about whether Article 19 prohibits institutional care in different cultural contexts ensued. The conclusion was that the right is about creating supports in the community, which enable people to live independently, rather than dictating any particular models of housing. Central to this is the need to ensure that families have the supports needed to enable them and their disabled family member live at home.

Participants engaged with an exercise of translating the effects of individual impairments and the societal barriers, which limit participation, into concrete policy proposals to enable people, realise the core elements of Article 19. The feedback on this exercise gave rise to a lively debate about the use of terminology – in particular what constitutes a disability and what constitutes impairment. In working with people from many different cultural backgrounds it was acknowledged that the words used in the CRPD might represent a compromise for some. Whether one uses “person with a disability” or “disabled person” is reflective of the particular standpoint and historical development of the disability movement in different countries. Agreeing on a final wording will not be fully reflective of any one standpoint, but represent a compromise that we all can live with - this is the essence of negotiation.

Day 1: CDLP NUI Galway & Harvard Disability Project Summer School

by Charles O'Mahony

Professor Gerard Quinn and Professor Michael Stein introduced the curriculum of the Summer School to the participants. The Summer School introduces participants to the nature of the Convention, the treaty interpretation in general, the general concept of equality in the convention (and some of the relevant innovations in the CRPD) and other issues. For more information on the Summer School see here. The Faculty includes senior academics, practitioners and policy makers from around the world who have been directly and actively engaged in drafting and implementing the Convention.

Professor Quinn led the first session of the Summer School, where he placed the Convention in the context of other Human Rights Treaties. He also gave very insightful reflections on how the Convention came about and the drafting process. Other members of the Faculty of the Summer School gave personal reflections on their involvement in the negotiation and drafting of the Convention.

Sir Michael Wood (member of the International Law Commission) led the afternoon session. The afternoon session focused on how to interpret the Convention as a legal instrument. He focused on interpretative approaches, the Vienna Convention on the Law of Treaties, criteria for the acceptability of reservations and understanding and opposing interpretative declarations reservations. Sir Michael noted that it was important to note that there was no special international law for interpreting international human rights law. He said that it would be worth considering whether there was any international customary law in relation to persons with disabilities.

He noted that it was essential that the Convention was interpreted in good faith and that the Vienna Convention was a tool that persons interested in the Convention need to become familiar with. Disability lawyers need to interpret the CRPD looking at its ordinary meaning unless a special meaning can be proved and that provisions need to be read against the Convention as a whole and its “object and purpose”. Sir Michael also stated that disability lawyers and advocates should look to the preparatory work of the Convention in order to shed light on the Convention. This is an interesting prospect as examination of the preparatory work of earlier treaties was not possible as notes and official transcripts of the negotiation and drafting processes do not exist. One of the major issues raised in discussions was interpreting the Convention in different languages and problematic translation of the different articles of the CRPD.

In terms of determining the object and purpose of the CRPD the preamble and Article 4 were identified as being significant. There was some debate around the length of the preamble. Sir Michael noted that the CRPD was very successful in not attracting a lot of reservations and interpretive declarations (see the UN website here) and that he considered only a few of these truly objectionable. (Reservations seek to modify the legal effect of a Treaty while an interpretative declaration involves an interpretative statement on Articles of the Convention). There was much discussion around El Salvador’s Reservation, which states that the “Government of the Republic of El Salvador signs the present Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto, adopted by the United Nations General Assembly on 13 December 2006, to the extent that its provisions do not prejudice or violate the provisions of any of the precepts, principles and norms enshrined in the Constitution of the Republic of El Salvador, particularly in its enumeration of principles.” This reservation was considered to be extremely vague and uncertain to the extent that it was unclear to what extent that El Salvador accepts its obligations under the CRPD. There was also discussion around Egypt’s interpretative declaration and whether it amounted to a reservation. The importance of Article 46 of the CRPD was highlighted and it requires that reservations “incompatible with the object and purpose of the present Convention shall not be permitted.”