I am extremely pleased to note the decision by the Human Rights Brief Co-Editors-in-Chief to add Disability Rights to the existing areas of concentration for the publication. This addition reflects the growing importance of disability rights as human rights, an importance that is reflected in the ten-year anniversary of the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD) but both precedes and extends beyond that enactment. This is thus a propitious time to begin a sustained focus on disability rights within a human rights context.
Although broad declarations and treaties such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights certainly can be read to include the rights of people with disabilities, the absence of specific mention of disability rights in these documents has had the effect of rendering them a virtual nullity for people with disabilities. Starting in 1971, various non-binding declarations, such as the Declaration on the Rights of Mentally Retarded Persons (1971), the Declaration on the Rights of Disabled Persons (1975), and the United Nations Decade of Disabled Persons (1982-1993) expressed rhetorical support for the rights of people with disabilities, even as they reflected an increasingly outmoded medical model of disability. The World Programme of Action Concerning Disabled Persons (1982), the Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care (MI Principles) (1991) and the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) added more content to substantive disability rights but nevertheless were limited in scope because they were neither treaty obligations nor regarded as customary law.[i] Prior to the adoption of the CRPD, the only international treaty that explicitly mentioned disabilities was the Convention on the Rights of the Child (CRC) (1989), Article 23 (1) of which provided that states “recognize that a mentally or physically disables child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.” In addition to being limited to the rights of children with disabilities, however, the remainder of Article 23 of the CRC spoke more to access to special care or addressing special needs than to a rights-based view of disability.
The invisibility of disability in a broader UN context is evidenced in the complete absence of disability from the UN’s Millennium Development Goals (MDGs), which were in effect from 2000-2015. Fortunately, the successor to the MDGs, the Sustainable Development Goals (SDGs), which will cover the period from 2015-2030, addresses this elision by considering disability issues in five of the 17 SDGs.[ii]
Beyond the legal landscape, tradition human rights organizations, such as Human Rights Watch and Amnesty International, paid little attention to the rights of people with disabilities. One of the only organizations to advocate for people with disabilities (and specifically mental disabilities) was Mental Disability Rights International (MDRI), now called Disability Rights International, which Eric Rosenthal founded in 1993, and which was housed here at American University Washington College of Law in the first several years of its existence. Eric and other DRI staff have written a number of the articles on disability rights that have appeared in the Human Rights Brief.[iii]
Against this backdrop, the process of drafting and deliberating on the document that was to become the CRPD in 2006 reflected a true paradigm shift in thinking about disability rights. That shift, epitomized by the slogan “Nothing about us without us,” was effectuated through a treaty that emphasized the autonomy, dignity, right to non-discrimination and equality of people with disabilities, and that evinced a social model of disability, which emphasizes the need to view disability through the interaction of the person with a physical or mental impairment and his or her physical and attitudinal environment. People with disabilities and disabled people’s organizations were actively involved in the Working Group that advised the Ad Hoc Committee charged with drafting the Convention. The result was a treaty that recognized the universal legal capacity of people with disabilities and their rights in a broad array of areas such as community living, health, employment, education, voting, access to justice, accessibility, and many more.
As of this writing, 172 countries or regional organizations have ratified the CRPD, with 160 of those countries having signed the Convention. Regrettably, the United States has not yet ratified the CRPD, though President Obama did sign the treaty in 2009.[iv] But notwithstanding the formal absence of the United States from the treaty and its bodies, the CRPD is shaping legal opinion in the United States, especially in the area of support for legal capacity (Article 12 (3) of the CRPD) and the concomitant concept of supported decision making.[v]
The Committee on the Rights of Persons with Disabilities, which meets twice per year in Geneva, Switzerland, and is about to hold its Seventeenth Session this spring, has been active and aggressive in interpreting the treaty rights of people with disabilities and issuing Concluding Observations for the 48 states or regional organizations that have gone through the complete evaluation process.[vi] The Committee’s conclusions, along with the jurisprudence that is developing through individual cases brought under the CRPD’s Optional Protocol, are a rich source for elaborating on the content and meaning of the CRPD. An important part of the Committee’s review process is the opportunity for non-governmental organizations (NGOs) and Disabled People’s Organizations (DPOs) to submit “shadow reports” that provide a critical civil society perspective on the country reports the States file. In conjunction with the requirement in Article 4 of the CRPD that States adopt laws consistent with the CRPD, and modify or abolish ones that are inconsistent with it, many countries are engaging in an extended and intensive analysis of the rights of people with disabilities within their borders.
Important as the CRPD is for the development of disability rights, it is not the only game in town. On September 30, 2016, the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities entered into force. The treaty facilitates access to published material by people with vision and print disabilities by easing copyright limitations on the dissemination of material. Disability is also the subject of the comprehensive 2011 World Report on Disability, published by the World Health Organization and The World Bank, which provides important information about, and recommendations regarding, the status of people with disabilities and the kinds of supports they need to thrive in society.
With these and other developments in mind, it is easy to see the potential for practical scholarship in the area of disability rights to go along with the practical human rights scholarship for which the Human Rights Brief is justly known. As noted above, over its 23-year history, the Human Rights Brief has published a number of articles on disability rights.[vii] Going forward, I see ample opportunities for articles on such topics as regional disability rights protection; ongoing analysis of the work of the Committee on the Rights of Persons with Disabilities and its cases under the Optional Protocol; national enforcement, and monitoring, of CRPD rights; intersectional rights of people with disabilities (including the rights of women, immigrants, racial and ethnic minorities, and children with disabilities); and assessment of the meaning, and implementation, of specific articles of the CRPD, including Articles 9 (accessibility), 12 (legal capacity), 13 (access to justice) 14 (liberty and security of person) , 19 (community living), and 29 (participation in political and public life), to mention just several key provisions. And in addition to monitoring the development of implementation of the Marrakesh Treaty, exploration of the access of people with disabilities to the internet and other forms of virtual communication will be critical in ensuring that people with disabilities are not left behind in the technological and communications revolution, as they have too often by revolutions in the past.
I hope you will join me in congratulating the Human Rights Brief in undertaking this initiative and that you will consider contributing to the ongoing effort to vindicate at long last the human rights of people with disabilities.
[i] See National Council on Disability, Understanding the Role of an International Convention on the Human Rights of People with Disabilities (June 12, 2002), at 21-22 & n.57 (citations omitted).
[ii] See UN Division for Social Policy and Development: Disability, Sustainable Development Goals (SDGs) and Disability, https://www.un.org/development/desa/disabilities/about-us/sustainable-development-goals-sdgs-and-disability.html (indicating disability is addressed in Goals 4, 8, 10, 11, and 17).
[iii] See Eric Rosenthal & Laurie Ahern, When Treatment is Torture: Protecting People with Disabilities Detained in Institutions, 19 (2)HR Brief 13 (Winter 2012); Tara J. Melish, The UN Disability Convention: Historic Process, Strong Prospects, and Why the US Should Ratify, 14(2) HR Brief 37 (Winter 2007); Alison A. Hillman, Protecting Mental Disability Rights: A Success Story in the Inter-American Human Rights System, 12(3) HR Brief 25 (Spring 2005); Debra Benko & Brittany Benowitz, The Application of Universal Human Rights Law to People with Mental Disabilities, 9(1) HR Brief 9 (Fall 2001); Max Lapertosa & Eric Rosenthal, MDRI: Pioneering Strategies for International Enforcement of Mental Disability Rights, 3 HR Brief 6 (Fall 1995); Eric Rosenthal, MDRI Fosters Dialogue on Human Rights in Psychiatric Institutions at Montevideo Conference, 2(1) HR Brief 5 (Fall 1994); and Fatimah A. Mateen, NGO Advocates for Rights of People with Mental Disabilities, 1(1) HR Brief 3 (Spring 1994).
[iv] The CRPD was open for ratification in early 2007, during the Bush Administration. Although the U.S. delegation was actively involved in the treaty-drafting process, the Bush Administration refused to sign the CRPD. Two government officials defended that position in Tracy R. Justesen & Troy R. Justesen, An Analysis of the Development and Adoption of the United Nations Convention Recognizing the Rights of Individuals with Disabilities: Why the United States Refused to Sign this Convention, 14(2) HR Brief 36 (Winter 2007). For a contrary view, see Melish, supra note 2.
[v] I addressed supported decision making and Article 12 of the CRPD in Robert D. Dinerstein, Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making, 19(2) HR Brief 8 (Winter 2012).
[vi] See http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=5
[vii] In addition to the articles cited previously, the HR Brief has published Oliver Lewis, Stanev v. Bulgaria: On the Pathway to Freedom, 19 (2) HR Brief 2 (Winter 2012); Jennifer W. Reiss, The Convention on the Rights of Persons with Disabilities in Post-Lisbon European Union, 19(2) HR Brief 18 (Winter 2012); and, on a domestic issue, Edwin R. Hazen & Robert D. Dinerstein, The Rights of Bar Examination Applicants with Disabilities in the United States, 6 (2) HR Brief 5 (1998-99).