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ABSTRACT
As of the beginning of this century, the United Nations (UN) human rights system had comprehensively elided persons with disabilities from its purview. The Convention on the Rights of Persons with Disabilities (CRPD) responded to this lacuna in 2006. The CRPD obligates states parties to mainstream disability by protecting and promoting the human rights of persons with disabilities in all policies and programs and intersects disability with other discriminated-against populations. This article investigates the success of the UN in mainstreaming disability throughout its human rights treaty bodies over the period 2000–2014 by comparing the seven years before and the eight years after the CRPD's adoption for six core UN treaty bodies. In doing so, the article provides initial and unique insight into how well the UN implements human rights norms into treaty bodies and provides a template for future research on the inclusion of vulnerable group-based rights in the UN and beyond. Despite some significant variations between treaty bodies, we find an overall dramatic increase in the quantitative incidence of disability rights being referenced. Nevertheless, a closer look into the practices of two treaty bodies shows that the human rights of persons with disabilities, while noted by those bodies, are included fully only on occasion. For the UN to truly mainstream disability (or other) human rights, those rights must go beyond mere formal references and also be substantively integrated.
Notes
1. The data for this article were gathered from the Web site of the Office of the High Commissioner of Human Rights (OHCHR) using the Human Rights Index (OHCHR Citation2015b) that allows users to search for content within COs. Our replication datasets can be found at the Harvard Dataverse portal for The Journal of Human Rights.
2. Hence, our point is not that the medical model does not have anything to offer to persons with disabilities but that as an ideology it is incompatible with a full human rights-based understanding of disability (in the same manner as charity is).
3. Quite tellingly, the preamble proclaims that “assisting mentally retarded persons” and “promoting their integration as far as possible in normal life” as its goal while at the same time noting “that certain countries, at their present stage of development, can devote only limited efforts to this end.”
4. The Declaration on the Rights of Disabled Persons, for instance, decrees as a matter of fact that disabled persons are “unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency” (United Nations General Assembly Citation1975: para. 1) and thus the goal of “promoting their integration” is circumscribed “as far as possible in normal life” (United Nations General Assembly Citation1975: preamble). The World Programme of Action refers to the many people who “suffer from disability” and emphasizes their rehabilitation and the prevention of disability itself.
5. Paragraph 2 of Article 23: “States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child” (UN General Assembly Citation1989).
6. The 2008 Office of the High Commissioner of Human Rights strategic management plan explicitly noted that, due to the CRPD, disability human rights were to be mainstreamed across the United Nations. The subsequent 2010 and 2014 strategic plans lacked similar averrals (OHCHR Citation2008, Citation2010, Citation2014).
7. A striking example are girls with disabilities, who in certain societies are at significant risk of being raped by HIV-positive men due to the misconception that sex with a virgin will cure their HIV infection and that persons with disabilities are asexual (Stein, Mcclain-Nhlapo, and Lord Citation2013).
8. General principles guide the interpretation of the whole text (Lord and Stein Citation2009: 258).
9. In addition to the six listed treaty bodies, as well as the Committee on the Rights of Persons with Disabilities, the UN treaty body system includes the Committee on Migrant Workers, monitoring the implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; the Committee on Enforced Disappearances, monitoring the implementation of the ICCPED; and the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Those committees, however, entered into force after 2003 and are thus excluded from the present analysis.
10. Other important committee tasks include issuing General Recommendations or General Comments, adjudicating individual complaints, arranging thematic discussions, and conducting investigations. Although we refer to General Recommendations and General Comments that include disability, this article otherwise limits itself to the issuance of COs.
11. In terms of evaluating committees, one caveat to bear in mind is that COs are the outcome of a process based on committee dialogue with states parties, as well as civil society, in which the committees rely on information provided by those actors.
12. Hence, the average number of times disability is referenced in the pre-CRPD period is statistically different from the average number of times disability is referenced post-CRPD adoption.
13. See Appendix 1 for an illustration of this interaction effect.
14. The interaction term is significant at a 10% level.
15. For detailed results, see Appendix 2.
16. We stress that committees need not point out human rights issues that are only relevant for persons with disabilities to have a statement coded as a particular concern. Hence, a statement like “the rights of disabled women and women from ethnic minority groups should be integrated into national law and policies” would be coded as a particular disability-rights concern.
17. Notably, 11 states mention women with disabilities during this three-year period (albeit none of them in a profound way) while the committee itself notes disability in only four of its COs.
18. COs were coded as substantially addressing disability if they asked particularly for information on disability rights.
19. The CEDAW Committee has not specified what might be considered a serious threat to life and health, thereby leaving such a qualification open to interpretation and possible misuse.
20. The CEDAW Committee did, however, request states parties to report on such issues. For example, in 2012, it directed Jamaica to “systematically collect data on women and girls with disabilities and use data to develop appropriate policies and programmes to promote equal opportunities for such women and girls in education, skills training, employment and access to services, including mental, sexual and reproductive health services” (CEDAW Citation2012).
21. To illustrate, in 2005, the rights of women with disabilities was a suggested topic for a new General Recommendation, but no committee members were assigned to the task and hence no new recommendation was created (CEDAW Citation2005: para. 36a).
22. See Appendix 2 for full results.
23. A few notable exceptions include Congo (CRC Citation2001a), Guinea-Bissau (CRC Citation2002b), and the Netherlands (CRC Citation2004c) where euthanizing children with disabilities is marked as a concern; the CO on Finland (CRC Citation2005) addressed bullying and violence in school.
24. Violence and sexual abuse was mentioned in a few COs before 2012, particularly in 2010 and 2011. Sexual abuse within the home specifically was addressed for the first time in 2012 (Madagascar; CRC Citation2012n).
25. From 2000–2014, the CRC Committee also advised developing states to seek technical cooperation from The United Nations Children's Fund (UNICEF), The World Health Organization (WHO), or The United Nations Educational, Scientific and Cultural Organization (UNESCO). The practice of recommending states to elicit advice from these UN organs is commonplace in the early years studied but decreases substantially during the later years. Furthermore, although the CRC Committee frequently encouraged states to ratify the CRPD after 2006, it rarely referred to the obligations in the CRPD in those COs.
26. The earliest mainstreaming effort during the period examined is the 2008 CO on the United Kingdom wherein the rights of children with disabilities were mentioned both generally and specifically outside of Article 23 in relation to several rights. The language of the CO, however, is neither as strong nor specific as that of many of the 2012 COs.
27. Disability was not deemed relevant in terms of sport, culture, and leisure in any of the 2012 COs.
28. Thus, El Salvador is directed that “inclusive education should be encouraged as much as possible” (CRC Citation2010c: 57c) and Macedonia is advised to ensure “rights to education to the maximum extent possible” (CRC Citation2010g: para. 53c).
29. Due to the CRPD being the first convention that explicitly acknowledged the issue of multiple and intersectional discrimination, we also did a preliminary analysis into the extent to which the Committee on the Rights of Persons with Disabilities mainstreamed the rights of women and children. We found that 17 of the 19 COs up to 2015 addressed the human rights of both women and children with disabilities in a substantial manner outside of the two CRPD articles where those rights are explicitly delineated. The two exceptions were the COs on Azerbaijan and Denmark.
Additional information
Notes on contributors
Kjersti Skarstad
Kjersti Skarstad is a PhD Candidate at the Department of Political Science, University of Oslo, focusing on the human rights of persons with disabilities. She consults with civil society organizations and government agencies in Norway on the topic, is a human rights lecturer and has also written about the effect of human rights violations on the onset of violent civil conflicts.
Michael Ashley Stein
Michael Ashley Stein is an internationally recognized expert on disability law and policy, Stein participated in the drafting of the UN Convention on the Rights of Persons with Disabilities, works with disabled peoples organizations around the world, actively consults with governments on their disability laws and policies, advises a number of UN bodies and national human rights institutions, and has brought landmark litigation. His path-breaking scholarship has been published globally by leading journals, and he is the coeditor of seminal book collections. Stein has received numerous awards for his work, including the inaugural Morton E. Ruderman Prize for Inclusion, the inaugural Henry Viscardi Achievement Award, and the ABA Paul G. Hearne Award, and was appointed by President Obama to the United States Holocaust Council.