Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
In many countries, people with disability are deprived of their rights, liberties and they are usually excluded from the society. People with disability especially those with mental disability, may be involuntarily locked up in institutions and may also be subjected to neglect and abuse, they are further dispossessed of their right to live as equal citizens with others in the community. 2 The estimated ten percent of the world’s population of six hundred and fifty million people live with disabilities. The convention supports and defends the human rights of persons with disabilities in civil, cultural, economic, political and social life1. It is true all over the world that persons with disabilities are usually faced with gross human right violation by denying them the rights of equal participation, legal capacity, voting rights and the freedom to live free in the community. There has been a developed specialized instrument by the United Nations2 that covers a specific group of population (women, children and racial minorities) to ensure the rights of those groups that suffer similar type of discrimination. Although there has been the adoption of some international laws that prohibits the ill-treatment and discrimination of persons with disability, but no specific legally binding international human right convention has openly protected the rights of person with disability to live freely in the community or to be free from indefinite institutionalization. After many years of advocacy by various human rights activist, lawyers, the UN recently began a process to develop a convention on the rights of persons with disabilities and ensure that the convention is adopted by every country in the world. The convention was of great necessity because it was universal unlike the other instrument (as stated above) which were limited in itself. It was observed that the declaration used negative language about disability such as the 1991 Mental Illness principles supposedly a human rights instruments, which has been made without the active involvement of persons with disabilities and the principle was centred only on treatment. In the last two decades, disability thinking has progressed and there has been a need for dis – ability friendly concept, norms and procedures. The UN convention stood in the gap to fulfil the specific recognised diversity of disability. The convention was  Proposed ‘’ to ensure the full, effective and equal enjoyment of all human rights and the fundamentals freedom by persons with disabilities3.
The Significance of the Convention.
The expression of the Convention on the right of persons with disability (CRPD) has been flagged down as a great pointer in the struggle to reframe the needs and concern of persons with disability in term human rights. The UN contribution towards disabilities4 is an historic achievement of its kind, introducing its convention for rights of person with disability. The CRPD is an international human rights convention. It is made up of two documents. The convention was adopted on the 13th of December 2006 at the United Nations headquarters in New- York and opened signatories in history to a UN convention on the 30th of March 2007. The countries that have signed up to the convention are legally binding by the international instrument which clarify state parties obligations to respect and ensure equal enjoyment of all human rights by all persons with disabilities5. There has been a remarkable shift of concept in the approach and attitudes towards persons with disability. People with disability are viewed as ‘’subject’’ (with rights who are capable to execute and claim those rights to which they are entitled and can take decision for their lives based on their free and informed consent as an active member of the society) rather than as ‘’object’’ of charity, medical treatment and social protection. This shift also involves the professed central of persons with disability and their representative organization in the CRPD negotiation process.
The convention on the rights of persons with disabilities was not the first human rights instrument to deal with the concern of the disabled. However, different from its forerunners, it offers persons with disabilities an extraordinary level of protection. The convention details the rights that all persons with disability should enjoy, and the obligation of states and other actors to ensure that these rights are respected. The United Nations has addressed the issue of human rights and disability on several occasions prior to the intervention and approval of the convention. The general assembly in 1982 adopted the world programme of Action concerning disabled persons, which promotes the full involvement and equality of persons with disabilities in social life and development in all countries, irrespective of their level of development6. The General Assembly also proclaimed the decade from 1983 to 1992 ‘’ the united nation decade of disabled persons’’ and it encouraged member states to implement the world programme of action concerning disabled persons during that period7. At the first most important international review of the implementation of the world programme of Action concerning disabled persons, which took place in Stockholm in 1987, persons who were in attendance recommended the drafting of a convention on the human  rights of persons with disabilities. The general assembly in 1991 implemented the ‘’ principles for the protection of persons with mental illness and how to improve healthcare’’ known as the MI Principles. The MI principle comprises of standards and practical security and provides protection against serious human rights abuses which could occur in institutional settings, such as misuse or inappropriate use of physical restraint or involuntary seclusion, sterilization, psycho – surgery, and irreversible treatment for mental disability. The MI at that time was new and original, unlike today the value of the MI principles is disputed and unclear. Also in 1993, the general assembly adopted the ‘’ standard rules on the Equalization of opportunities for persons with disabilities. These rules ensured that ‘’ girls, boys, men and women with disabilities; as members of a society, exercise the same rights and obligations as others’’, and required states to remove obstacles to equal participation of persons with disabilities in the society. The standard rule became the major United Nations instrument guiding state action in human on human rights and disability, and represented an important position in identifying state obligation under existing human instruments. The standard rule does not protect the rights of persons with disabilities as comprehensively as the new convention does. (The international human rights instrument promotes and protects the right of everyone including persons with disabilities). The International covenant on Economic, Social and Cultural rights(ICESR)8 , the universal declaration of human right( UDHR)9 and the International covenant on civil, cultural, economic, political rights(ICCPR)10 make up together the international bill of human rights which recognises the civil, cultural, economic, political and social rights that are indisputable to every human being; thus the international bill of human rights recognises and protects the rights of persons with disabilities when they are not explicitly mentioned. We also see that the convention on the rights of the child was the first human right treaty to clearly prohibit discrimination against children known with disabilities. It also identifies the right of children with disabilities to enjoy a full life and to have access to special care and assistance. Before the adoption of the new convention, active human rights treaties had not comprehensively dealt with the protection of the rights of persons with disabilities; and persons with disabilities had not been able to utilise the various protection mechanism under those treaties. The adoption of the convention on the rights of persons with disability and the establishment of a new human rights protection and monitoring instrument should thus extensively improve the protection of the rights of persons with disabilities. The convention protects and promotes the rights of persons with disabilities in economic, social, political and cultural life. It ensures the disabled to a non- discriminatory treatment and equality in access to justice when institutionalized or place in an institution, and at the same time living autonomously and in the community, undertaking administrative tasks, while treated by the courts, the police, in education, in healthcare, in the work place, family life, cultural and sporting activities, in participating in public and political life. It also recognises that every one with a disability is recognised before the law. The convention forbids exploitation, violence, abuse (Article 16), torture (Article 15) and protects life (Article 10), liberty and the security of persons with disabilities (Article 14), their freedom of expression and movement, and the respect for their privacy (Article 22).
What is disability?
The convention does not clearly define the word ‘’disability’’ but the preamble to the convention acknowledges that ‘’disability’’ is an evolving concepts (subpara (e). It does not also define the term ‘’persons with disability’’. On the other hand, the treaty defines the terms as persons who have long- term physical, mental, intellectual or sensory impairments that, when faced with various negative attitudes or physical impediment may prevent them from fully participating in the society (Article 1). The acknowledgment that ‘’disability’’ is an evolving concept recognises the fact that opinions within the society are not static. The convention does not impose a rigid view of disability but rather presumes an approach that is self- motivated and allows for adaptations overtime and within different Socio- economic settings. The convention’s approach to disability emphasises the important impact that personal opinions or feelings and environmental barriers in society may have on the enjoyment of the human rights of persons with disabilities. For instance a person in a wheel chair might encounter difficulties in boarding a public transport or getting employed, not only because of his or her condition, but also because there are environmental obstacles, such as inaccessible buses or staircases in the work place, that obstructs his or her access. Similarly, a child who has an intellectual ability might have difficulties in school because of teachers’ attitudes and possibly parents who may not be able to adapt to students with different learning capacities.
How has the Convention protected Persons with Disabilities?
The United Nations (UN) and the Inter- American human rights system has a major body of legal instrument that can be used in the protection of the rights and liberties of persons with mental disabilities. A human rights instrument which was established by International law protects all persons without division of any kind such as colour, language, and race, and religion, political, national or social origin. They also protect the rights and freedoms of persons with mental disabilities. There are certain rights that provide guidance in interpretating and implementing the convention. The civil, cultural, economic, political and social rights specified in the convention covers all human beings, but the convention has to do with actions that states must take to ensure that these rights are enjoyed on an equal basis with person with disabilities. The convention also focuses on specific rights on women and children. The rights that are set out in the convention are Equality before the law without discrimination. Article 12 of the Convention on the Rights of Persons with Disabilities addresses this issue. It reaffirms that persons with disability have the right to recognition everywhere as persons before the law. India constitution is based on the rights to ‘equality before the law’, equal protection of law; and it prohibits states from discrimination on the basis of race, caste, religion and place of birth. The right to Education is another right that was mentioned in Article 24 of the CRPD. It recognises the rights of persons with disabilities to education and to participate effectively in a free society. Article 21(a) of the Indian constitution grants a compulsory and free education to children within the ages of six to fourteen and Article 41 provides that states shall make effective provisions for the right to education8. The convention spells out areas for state action knowing that establishing a right is not the same thing as ensuring that these rights are strictly adhered to or realized. The convention compels state to provide the appropriate environment for persons with disability to enjoy their rights on an equal basis with others. These provisions has to do with raising awareness for persons with disability, making them understand their rights and responsibilities and also giving them accessibility to the enjoyment of all rights and enable them live independently in the community. The right to work was again mentioned in Article 41 of the constitution of India and in the CRPD it prohibits discrimination on the basis of disability regarding matters that involves all forms of employment, including all conditions of recruitment, hiring and employment (Article 27). In relation to the provisions made by the convention, it specifies access to justice for persons with disabilities to claim their rights. It promotes rehabilitation and habilitation (Article 26) for persons with disability from birth and persons who had acquired a disability, to enable them attain and maintain full independence and ability. It also promotes freedom for person with disability as it relates to their personal mobility (Article 20). The Principle of accessibility concern not only with physical access to places, but with information, technologies such as internet, communication, economic and social life. Without access to information or the ability to move freely, other rights are restricted for persons with disability as this principle of accessibility breaks any limitation on the enjoyment of other rights by the disabled. Article 23 of the CRPD provides that ‘in no circumstance shall a child be separated from the parents on the basis of disability of either of the child or parents’ where ones intention is to separate either parties on the basis of psycho-social impairment. No separation shall be done against the will of the parent except on exceptional cases and it should be for the best interest of the child. (Article 23 (4). Equality and non- discrimination to persons with disability is stated in Article 5 of the convention and it also requires that reasonable accommodation is provided120. Reasonable accommodation means that for persons with a disability or disabilities, is made to exercise the same rights and freedom with others on an equal basis, in a way that required adjustment to the environment should be made30. This is the most fundamental instrumental element of the convention. The general obligations to the mentally disabled person are contained in Article 3 – 9. They encompass an overarching or crosscutting principle which are measured and would be applied in all aspects of the implementation of the convention. In Article 3, respect for the inherent dignity of persons with disability, non- discrimination, and the full participation of persons with disability in the society is provided. It provides what has been referred to as the CRPD’s ‘moral compass’. Article 6 and 7 requires the implementation of the CRPD in a way that would ensure women and children with disability to be able to exercise and enjoy their human rights and fundamental freedom on an equal basis with men and other children. In article 8 centres on promoting fundamental change in societal attitudes, by promoting respect for the rights and dignity of persons with disability and by fighting against typecasting and discrimination or injustice and Article 9 requires that persons with disability have an environment that could be easily accessible by them both in the urban and rural areas so it is the duty of State to ensure that these rights are strictly adhered to. The CRPD’s covers a number of economic, social, and cultural rights and also involves a number of geographic impartiality. The civil and political rights for the mental disabled can be seen in Articles 10 – 23 and Article 29. let take Article 11, it broadens the right to life and the survival to situations of emergencies. It is required of state to ensure the protection and safety of persons with disability in situations of risk, including armed conflicts, natural disasters and humanitarian emergencies122. Article 13 extends the conventional rights of equality before the law and transcends it into a positive obligation to ensure access to justice123. Apparently the “right to life” has a wider meaning which includes rights to livelihood, rights to health and medical care, better standard of living, and conditions which are hygienic in the work place or at leisure, this in return would make life meaningful and purposeful in dignifying persons9. Article 16 talks about the right to freedom from torture or cruel, inhuman or humiliating treatment to that of freedom from all forms of violence, abuse and mistreatment124. These articles contain some astonishing developments and the application of civil and political rights to persons with disability. Article 17 is specifically directed towards the non- interference with both the physical body and the mind, and a product of a forceful advocacy against compulsory treatment by activists with psycho-social impairments. The concept of integrity of persons for the first time was included in a core United Nations human rights treaty125 to stand on its own. The rights to liberty equate the rights of persons with disability to live and be associated as a member of that community. This would operate as prevention on institutional representation of supported accommodation for the disabled persons (Article 19). The right to liberty can also be seen in Article 20. it equates the right to liberty with an utmost personal mobility of persons with disability. This would also require national investment in mobility aids, technologies which are assistive to persons with disability and all forms of live assistance. From articles 24 – 28 and 30127 deals with the economic, social and cultural rights of persons with disability. These articles put an over- riding emphasis on the insertion and participation of persons with disability in the mainstream education system and labour market, which is sustained by the accommodations and other positive measures necessary by persons with disability to become conscious these rights. The right to health is exactly directed towards making sure that persons with disability enjoy a non – discriminatory access to an all – inclusive general and specialist health services in the local communities in which they live. Article 26 gives a broad insight into the traditional rights to health, work, education and social security to the right to rehabilitation and habilitation, which was for the first time a central part of the UN human rights treaty. This was directed to ensure that persons with disability have access to process of change in learning and rehabilitation programmes that would enable them recover their maximum potentials. This inclusion involves for the disabled during the process of habilitation and rehabilitation and as an outcome of it.
Article 28 places the right for persons with disability the right to an adequate standard of living and social protection. This concept of social protection is not one to be debated and it is extensively broader than the traditional right to social security. It also integrates the responsibility in relation to poverty reduction, provision of specialist disability services, and the assistance with extra cost to disability. The rights of persons with disability to participate in cultural life, recreation, leisure and sport can be seen in Article 30 of the CRPD. It primarily focuses on the access by persons with disability to cultural and leisure facilities, and their being able to participate in cultural and leisure programmes and events on an equal basis with others, that is supported by the accommodations and other positive measures that is necessary for the effective realization of these rights. This article also recognises specific cultural and linguistic identity for persons who are deaf, and it certifies the recognition of sign language and deaf culture. With very limited exclusion116, the CRPD does not say anything relating to family members and other associates of persons with disability, it does not also bestow any rights on them separately from the ones that is given to persons with disability. The participation of persons with disabilities and their representative organization was clearly mentioned in the disability caucas29. Even when there is no direct reference to the family from the CRPD, it inherently positions person with disability in an influential role rather than being reliant117, or on the other hand, it places an obligation on states to assist families in their effort to make sure that the human rights of persons with disability- the family member with disability is the primary recipient118. In article 1 the purpose of the convention is to promote, protect and ensure full and equal enjoyment of all human rights. To promote means to foster recognition, to protect means to prevent interference with while to ensure invariably means to enable the realization of the human rights and fundamental freedom of persons with disability. In the convention, there are three distinct duties that are embedded for every state party to comply with and they are: the obligation to respect. Here state parties must abstain from prying with the enjoyment of the rights of persons with disability. For example, state must not carry out medical experiment on a disabled without his consent or exclude a child from school based on his disability. The other one is the obligation to protect. The violations of these rights must be protected by state parties. For example state must ensure that a just and favourable condition is provided by private employers for persons with disabilities, and also providing reasonable accommodation. The protection for person with disabilities from mistreatment and abuse must be done meticulously by state parties. For the obligation to fulfil, state parties must take proper legislative, administrative, budgetary, judicial and other actions towards full realization of these rights. Such actions includes: that private sector and individual should protect the rights of persons with disability, to protect and promote the rights of persons with disabilities in all policies and programmes, and lastly amongst others is to consult and involve them in developing and implementing legislation, policies and in the decision making process that concerns them. Here are some examples of how these obligations can be fulfilled. In respecting the freedom from torture, state must not subject persons with disabilities to torture and other cruel or inhuman or degrading treatment in any State – run prison. In protecting these rights, they must ensure that privately run prisons psychiatric institutions are not engaged in the practice of torture or something that is similar to such practice on persons with disabilities. Also in fulfilling these rights, State must make sure that prison officers and professionals who are involved in the health of the disabled are given sufficient training and information in other for the human rights of persons with disability are respected. For the respect to the right to health, authorities must not carryout any medical experimentation on a person with disability without their free and informed consent. There must be no discrimination from private health service providers against or refusing to give health care to someone on the basis of his disability. This is how this right can be protected. In fulfilling this right, there must be increased, available, affordable and good quality health care services for persons with disability. Information must not be withheld nor should persons with disability be stopped from freely expressing his/her view. This way the right to Expression can be respected. Private entities should be prevented from leaving out a person with disability from expressing his view. The use of sign language, plain language, Braille, augmentative and alternative communication must be facilitated in official interactions. This way freedom of Expression can be fulfilled for persons with disability. Persons confined in institution should be allowed to express their view as regarding any issue. They should not be left out simply because they have been associated with a disability. The only way that the right to Education can be respected is that school authorities must not reject a student with a disability from education based on the ground that he is disabled. The right to work for persons with disability, their rights should be respected to form trade unions. Private sectors should also respect the right to work for persons with disability. This should be enforced by the state. It must see to it that private sectors duly adhere to the right as it in the convention. They should also provide vocational training, with the resources made available to person with disability.
The United Nation convention has given tangible protection for persons confined in Institution in the sense that the European Court of Human Rights (ECHR) makes judgement based on the convention. In Herczegfalvy v Austria, the European Court demonstrated that it was becoming more aware of the particular vulnerability of psychiatric patients, and it has willingly increased to find the presence of human rights abuse in institutions192. In July 2001, the ECHR decided the case of Price v United Kingdom193, here rights were established for individuals with disability especially those that were detained in institution. In the Price decision, the ECHR found out that a woman who had been detained in jail for seven years had been subject to degrading treatment after she was made to sleep on a wheelchair and left without an accessible bathroom. The Price decision has brought about a suggestion that International tribunal such as the European Court, recognises that extra attention would be required to ensure that government protect against inhuman and degrading treatment of people with mental disabilities, especially those detained in institutions194. The Inter- America system has also begun to actively respect the rights of people with disabilities who are detained in institutions. In March 1999, the inter- American system for the first time issued its decision on the right of an individual with a mental disability.195 It was the case of Victor Rosario Congo involved Mr. Congo, a man with a mental disability from Ecuador, who died from ’dehydration’ in pre- trial detention after he has been beaten by a guard, was placed in isolation and denied adequate medical and psychiatric care. 196. The Commission found out that it was as a result of Mr. Congo isolation that his mental state degenerated and that holding him in seclusion under these circumstances constituted inhuman and degrading treatment in violation of Article 5 of the American convention.197 The commission did not hold on to the fact that Congo was deliberately deprived of food and water, but that state authorities failed to take proper measures, as regarding his mental health condition, to ensure that he received sufficient food and water and was also protected. Also in the case of Mouissel v France (2002) EHRR the prison authorities failed to provide special facilities or treatment regarding a prisoners health problem was found to be the main cause of his suffering that was beyond an inevitable prison sentence. The international standard that is of relevance to conditions in institutions, especially those with mental illness (MI) is the MI principles. These principles includes a broad selection of rights within institutions, and a set of essential standard and practical protections for those who have been involuntary admitted in hospital such as the protection against ’harm’, including unfair medication, the abuse by other patient, staffs and other people. 176 This principle has also given those detained in psychiatric institutions the right to a hearing before the judicial and other judicial or independent body, the right to be represented and to have independent experts, the rights to be able to attend ones owns hearing, and the right to be given the reasons for any decision that has been made. 179. The CRPD does not creates new rights but only expresses existing rights in a manner that concentrates on the needs and state of affairs of persons with disability. In addition the CRPD includes a high disability and precise interpretations of existing human rights, which alters essentially non-interference based rights or “negative” rights to positive obligations. For example, the right of non-interference with personal opinion expression has been transformed into state obligation to provide public information in a manner that is accessible and to recognise sign language and alternative communication.135 The non-interference base guarantee of equality before the law has been augmented into a positive obligation to ensure access to justice for persons with disability.136 In all these and other aspects the CRPD combines civil and political rights with economic, social and cultural rights, not in its overall structure but also within its individual articles.
The CRPD has a transformative potential for the lives of the mental disabled or the disabled no doubt about that. The CRPD is a high hose down mark not only in the area of disability rights, but also in the development of international human rights law concept and the implementation measures more generally. The adoption of a UN convention on the rights of person with disability would significantly contribute to the rights of people with disabilities to equality and dignity, including those who are confined in institutions. The CRPD has been conceptualized as an “implementation convention” in that it sets aside a detailed code for how existing rights should be put into practice with respect to persons with disability.101 The development of the CRPD began realistic because existing human rights instruments have failed and does not give a precise scope and content for persons with disability to the very least and does not secure their rights in the future. Although the CRPD like any other international instruments, is ultimately a negotiable text. It might be unlikely for it not to fully reflect a coherent or comprehensive exposition of disability rights as it concerns those confined in institutions. An overview of articles in the Convention gives tangible protection to persons who have been confined in institutions especially Article 12 and 13. The role and scope of the CRPD has its potential contribution in securing the human rights of persons with mental disability now and in the future and as such should not be undervalued or overestimated.
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