Professor Nancy Carr, “Expanding the Rights of Persons with Disabilities”
Nancy Carr, Professor of Management and Marketing, presented a paper entitled “Expanding the Rights of Persons with Disabilities: The United Nations Convention on Rights of Persons with Disabilities,” to the Academy of Legal Studies in Business Annual Conference in Indianapolis. Dr. Carr also served as moderator of sessions on Employment Law and Taxation. Below is the paper in its entirety.
Expanding the Rights of Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities
By Nancy Carr
Academy of Legal Studies in Business 2007
ABSTRACT
While the Convention on the Rights of Persons with Disabilities has created a giant step toward a worldwide treaty recognizing the rights of the world’s 650,000,000 people with disabilities, the proposed Convention on the Rights of Persons with Disabilities Treaty has yet to be ratified by the United Nations. The treaty, which uses a broad categorization of persons with disabilities, has been ratified only by Jamaica as of Spring 2007. This paper discusses the treaty, its’ inclusion of pain as a disability, and the possibility of expanding Americans With Disabilities Act type rights in scope and into worldwide coverage.
BACKGROUND TO THE UNITED NATIONS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
The United Nations officially came into existence on October 24, 1945 with the ratification of the United Nations Charter signed on June 26, 1945 by fifty-one original member states. The name United Nations was coined by President Franklin D. Roosevelt during World War II.[1] By 2007, the United Nations membership had grown to one hundred and ninety-two members.[2] Organized into seven Main Bodies—the General Assembly, Security Council, Economic and Social Council, Trusteeship Council, Secretariat, and International Council of Justice[3]–the United Nations is structured so “virtually every United Nations body and specialized agency is involved to some degree in the protection of human rights”.[4] To further that goal, on December 10, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.[5] The Preamble begins “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and Article One states “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”[6]
BACKGROUND TO THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES TREATY
It is estimated that there are six hundred and fifty million persons living with a disability in the world today.[7] If members of their families are included, there are approximately two billion persons in the world who are directly affected by disabilities. This means nearly one-third of the world population is deeply affected by disabilities and they present a significant, overlooked development challenge to ensure equality of rights and access.[8] The Convention on the Rights of Persons with Disabilities Treaty is a broad based treaty, proposed by Mexico, to give worldwide equality to persons with disabilities. The Treaty and Optional Protocol are included in Appendices A and B.[9],[10] There are eight guiding principles that underlie the Convention and each one of its specific articles. They are: 1) respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons 2) non-discrimination 3) full and effective participation and inclusion in society 4) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity 5) equality of opportunity 6) accessibility 7) equality between men and women 8) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.[11]
The proposed treaty is broad-based, for example it goes beyond employment and physical disabilities. Author Jay Levy, who wrote “A Pained Life, a Chronic Pain Journey,”[12]suffers from trigeminal neuralgia, a pain disorder so severe that it is often called “the suicide disease.” Ms. Levy champions the inclusions of ‘invisible disabilities’ in the proposed treaty.[13] Dr. Linda Misek-Falkoff, who also endures trigeminal neuralgia, is on the communications coordination committee of the United Nations says “the whole thing is crafted to give health coverage without favoritism.”[14]
TERMS AND TIMELINE
The Charter of the United Nations divides human rights bodies into two groups: charter-based and treaty-based.[15] Charter-based human rights systems aim to promote human rights and include the Human Rights Council and the Commission on Human Rights Sub-commission. The treaty-based human rights bodies exist as a result of specific legal instruments, hold a narrower mandate, and address only those countries that have ratified the legal instrument at issue. Currently there are seven treaty-based human rights bodies. They are the Committee Against Torture, Committee on Economic, Social and Cultural Rights, Committee on Elimination of Discrimination Against Women, Committee on Elimination of Racial Discrimination, Committee on the Protection of the Rights of All Migrant Workers and Their Families, Committee on Rights of the Child, and Human Rights Committee. The Convention on the Rights of Persons With Disabilities will become the eighth treaty committee if and when their treaty is ratified so they can seek to enforce implementation.
The United Nations Treaty Reference Guide (1999) includes Part One Definitions of Key Terms used in the United Nations Treaty Collection and Part Two Glossary of Terms relating to Treaty actions.[16] To understand the status of the Convention on Rights of Persons With Disabilities, a working knowledge of United Nations terms is necessary. It is often confusing that words such as treaty, agreement, convention, statute, covenant, and accord are often used interchangeably. The title assigned to such international instruments has no overriding legal effect.[17] A “protocol” may be with any of the above-named documents and serves to establish additional rights and obligations. A protocol is usually adopted on the same day, but is of independent character and subject to independent ratification.[18] The Optional Protocol to the Convention on the Rights of Persons With Disabilities basically establishes an international grievance committee. Other terms needed to understand the status of the Convention on the Rights of Persons with Disabilities are “signature” and “ratification.” While ratification shows that a state consents to be bound to a treaty, a signature on a document subject to ratification, acceptance, or approval only expresses willingness of the signer for the document to proceed to ratification, acceptance, or approval. The signature also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.[19]
STATUS OF CONVENTION ON RIGHTS OF PERSONS WITH DISABILITIES
While the United Nations General Assembly adopted by consensus the Convention on the Rights of Persons with Disabilities and its Optional Protocol on December 13, 2006 and it opened for signature on March 30, 2007[20], there were eighty-two countries signing the Convention, forty-four countries signing the Protocol[21],but only the country of Jamaica ratifying the treaty and protocol.[22] While this is the highest number of signatories in history to a United Nations Convention on its opening day and the first comprehensive human rights treaty of the twenty-first century,[23] it fell far short of ratification. Six years after General Assembly Resolution 56/168 was brought into being in December 2001 by the Mexican Ambassador[24], the Convention received only one of the twenty votes needed for ratification.[25] Some United Nations officials believe that number can still be reached during 2007.[26]
A NOTE ON THE AMERICANS WITH DISABILITIES ACT (ADA)
In 1990 the Americans with Disabilities Act (ADA) was passed in the United States. The four largest categories of disabilities are physical (prosthetic, wheelchair, carpal tunnel), disease (heart, lung, cancer, AIDS), sensory (sight, speech, hearing), and mental (developmentally disabled, emotionally disabled, chemical dependency).[27] The Americans with Disabilities Act requires employers with fifteen or more employees to not discriminate against people with impairments which limit one or more life activities. These employers must also provide “reasonable accommodation.” The Americans with Disabilities Act also applies to public accommodations.
AUTHOR’S THOUGHTS ON LACK OF RATIFICATION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
To disabled people individually and collectively through their supporting organizations, it was a major disappointment to not gain ratification of the Convention on the Rights of Persons with Disabilities after having many signatories on the opening signature day. Disappointment was intensified by not having a single ratification vote by other than Jamaica. Since the convention would in many ways be an expanded worldwide Americans with Disabilities Act, perhaps viewing the implementation, case history, and rumors about the Americans with Disabilities Act influenced the vote. Even the United States, with the seventeen year old Americans with Disabilities Act and the previous Rehabilitation Act of 1973, did not ratify this treaty. The United States and United Nations countries viewing the United States may have seen the case history of the Americans with Disabilities Act and chosen not to get involved with a similar Act. With cases including professional golf, AIDS, reasonable accommodation effect on small business, co-employee reaction, and definitions of disabilities, the United Nations members may have been afraid of the responsibilities and legal entanglements, especially within a worldwide forum. Being scrutinized within the United Nations, especially if the Optional Protocol passed, may have been more than to which even a well intentioned country would voluntarily subscribe. The United States representatives did not ratify the Convention, perhaps considering that an expanded version of the Americans with Disabilities Act was too much to handle.
The Convention on the Rights of Persons with Disabilities is broader than the Americans with Disabilities Act in both scope of disability and application. In the words of a representative from the International Disability Alliance and Disability Caucus, this Convention includes “not just the visible but those disabilities that are invisible and not readily apparent.”[28] When many people hear of these disabilities, words like feigning, subjective, suspicion, and disbelief enter their minds. Some sufferers are even suspected of being mere “doctor-shoppers” or drug-seekers.[29] While even doctors are stumped by pains and ailments that defy diagnosis, the duty of an employer to accommodate the mysterious is also difficult. It took Cynthia Toussaint fourteen years to get a diagnosis of Reflex Sympathetic Dystrophy (RSD), a disease which causes debilitating chronic pain.[30] Other “invisible” disabilities which are hard to diagnose include fibromyalgia, chronic fatigue syndrome (CFS), varieties of neuralgia, and mitrochondrial dysfunctions in addition to mental and developmental disabilities. No doubt even the United States, despite the Americans with Disabilities Act, was hesitant to expand the scope of coverage and add to the cases already pending.
There most likely have been serious concerns about the cost of implementing the Convention. The wild rumors of compliance costs and business burdens that abound in the United States may have scared potential ratifiers away. While proponents of the Treaty talked of “rights not pity”,[31]the fear of accommodation and implementation costs may have stopped United Nations members from moving beyond the signatory stage. This author believes that subscribing to a broad-based worldwide treaty in a competitive world was simply a bigger and more complicated step than the countries were ready to undertake.
The monitoring of the Treaty, even without the Optional Protocol, was also a likely concern to potential ratifiers. Article 33 of the Convention explains “that States must set up national focal points governments in order to monitor implementation of the Convention’s precepts. States must also set up some sort of independent monitoring mechanisms—which usually takes the form of an independent national human rights institution. The full participation of civil society, in particular persons with disabilities and their representative organizations, is essential in the national monitoring and implementation process. International monitoring is achieved via the Committee on the Rights of Persons with Disabilities and the Conference of States Parties.[32] The Conference of States Parties would be made up of the signatories to the Convention and would have the authority to consider any matter with regard to implementation of the Convention. The Committee on the Rights of Persons with Disabilities would have an eventual membership of eighteen experts with four year terms who would receive reports from the States Parties every two years on their implementation.[33] Even without the Optional Protocol, this writer senses that many countries feared too much United Nations involvement in their own countries handling of rights for persons with disabilities. The overlap with rights of women, children, and poverty-stricken people may have presented additional concerns.
Perhaps the timing for ratification of the Convention on the Rights of Persons with Disabilities was simply not right. Even the popular press is running articles such as “Can Ban Ki-moon save the UN?” and discussing discord within the United Nations.[34] Still, according to a recent Gallup poll, some seventy-five per cent of Americans believe the United Nations should play a “major” or “leading” role in world affairs.[35] If the rest of the world shares this view, then a time may come when the rights of persons with disabilities are dignified with passage of the Convention on the Rights of Persons with Disabilities Treaty.
CONCLUSION
This author will be surprised if the broad-based Convention on the Rights of Persons with Disabilities Treaty is ratified by the United Nations in 2007 but many advocates from disabilities groups remain highly optimistic.
BIBLIOGRAPHY
Bingaman, Brian. “’Invisible Disabilities’: Dealing with Chronic Pain.” The Reporter Weekly.” 27 April 2007, sec. A, p. 3.
“Charter Based Bodies.” Child Rights Information Network.” <http://www.crin.org/resources/infodetail.asp?ID=13423&flag=report>. Accessed 6 June 2007.
Convention on the Rights of Persons with Disabilities. <http://www.un.org/esa/socdev/enable/rights/convtexte.htm#convtext>. (6 December 2006). Accessed 6
“Convention on the Rights of Persons with Disabilities and Optional Protocol.” <http://www.un.org/esa/socdev/enable/conventioninfo.htm>. Accessed 30 May 2007.
“Guiding Principle of the Convention.” <http://www.un.org/esa/socdev/enable/convinfoguide.htm>. Accessed 6 June 2007.
“History of the United Nations: Basic Facts – About the United Nations.” <http://www.un.org/aboutun/unhistory/>. Accessed 6 June 2007.
Levy, Carol Jay. “UN Convention on Rights for People with Disabilities.” <http://www.useless-knowledge.com/1234/07apr/article095.html> (24 April 2007). Accessed 30 May 2007.
“List of Ratifying States and Regional Integration Organizations.” <http://www.un.org/esa/socdev/enable/conventionratif.htm>. Accessed 6 June 2007.
“Main Bodies of the United Nations.” <http://www.un.org/aboutun/mainbodies.htm>. Accessed 6 June 2007.
“Monitoring of the Implementation of the Convention.” <http://www.un.org.esa.socdev/enable/convinfomonit.htm>. Accessed 6 June 2007.
Moran, John Jude. Employment Law: New Challenges in the Business Environment. 3rd Edition. New Jersey: Pearson/Prentice Hall. 2005.
“More Information/Human Rights.” <http://www.un.org/rights/morerights.htm>. Accessed 6 June 2007.
Optional Protocol to the Convention on the Rights of Persons with Disabilities. <http://www.un.org/esa/socdev/enable/rights/convtexte.htm#convtext>. (6 December 2006). Accessed 6 June 2007.
Press Release HR/4914. <http://www.un.org/news/press/docs/2007/hr4914.doc.htm>. (29 March 2007). Accessed 30 May 2007.
“Relationship between Development and Human Rights.” <http://www.un.org/esa/socdev/enable/convinfodevhr.htm>. Accessed 6 June 2007.
“Timeline of Events.” <http://www.un.org/esa/socdev/enable/convinfohist1.htm>. Accessed 6 June 2007.
Toussaint, Cynthia. “My Mystery Disease.” Woman’s Day. 6 March 2007. p. 108.
“Treaty Reference Guide.” United Nations Treaty Collection. <http://untreaty.un.org/english/guide.asp>. Accessed 30 May 2007.
“”Universal Declaration of Human Rights.” General Assembly Resolution 217 A (III). <http://www.un.org/overview/rights.html> (10 December 1948). Accessed 6 June 2007.
Winik, Lyric Wallwork. “Does the UN Still Matter?: Can Ban Ki-moon Save the UN?” Parade Magazine. 24 June 2007. p. 6.
[1] “History of the United Nations: Basic Facts – About the United Nations.” <http://www.un.org/aboutun/unhistory/>. Accessed 6 June 2007.
[2] Ibid.
[3] “Main Bodies of the United Nations.” <http://www.un.org/aboutun/mainbodies.htm>. Accessed 6 June 2007.
[4] “More Information/Human Rights.” <http://www.un.org/rights/morerights.htm>. Accessed 6 June 2007.
[5] “Universal Declaration of Human Rights.” <http://www.un.org/overview/rights.html>. Accessed 6 June 2007.
[6] “”Universal Declaration of Human Rights.” General Assembly Resolution 217 A (III). <http://www.un.org/overview/rights.html> (10 December 1948). Accessed 6 June 2007.
[7] “Relationship between Development and Human Rights.” <http://www.un.org/esa/socdev/enable/convinfodevhr.htm>. Accessed 6 June 2007.
[8] Ibid.
[9] Convention on the Rights of Persons with Disabilities. <http://www.un.org/esa/socdev/enable/rights/convtexte.htm#convtext>. (6 December 2006). Accessed 6 June 2007.
[10] Optional Protocol to the Convention on the Rights of Persons with Disabilities. <http://www.un.org/esa/socdev/enable/rights/convtexte.htm#convtext>. (6 December 2006). Accessed 6 June 2007.
[11] “Guiding Principle of the Convention.” <http://www.un.org/esa/socdev/enable/convinfoguide.htm>. Accessed 6 June 2007.
[12]Bingaman, Brian. “’Invisible Disabilities’: Dealing with Chronic Pain.” The Reporter Weekly.” 27 April 2007, sec. A, p. 3.
[13] Ibid.
[14] Ibid.
[15] “Charter Based Bodies.” Child Rights Information Network.” <http://www.crin.org/resources/infodetail.asp?ID=13423&flag=report>. Accessed 6 June 2007.
[16] “Treaty Reference Guide.” United Nations Treaty Collection. <http://untreaty.un.org/english/guide.asp>. Accessed 30 May 2007.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20]“Timeline of Events.” <http://www.un.org/esa/socdev/enable/convinfohist1.htm>. Accessed 6 June 2007.
[21] “Convention on the Rights of Persons with Disabilities and Optional Protocol.” <http://www.un.org/esa/socdev/enable/conventioninfo.htm>. Accessed 30 May 2007.
[22] “List of Ratifying States and Regional Integration Organizations.” <http://www.un.org/esa/socdev/enable/conventionratif.htm>. Accessed 6 June 2007.
[23] “Convention on the Rights of Persons with Disabilities and Optional Protocol.” <http://www.un.org/esa/socdev/enable/conventioninfo.htm>. Accessed 30 May 2007.
[24] Levy, Carol Jay. “UN Convention on Rights for People with Disabilities.” <http://www.useless-knowledge.com/1234/07apr/article095.html> (24 April 2007). Accessed 30 May 2007.
[25] Press Release HR/4914. <http://www.un.org/news/press/docs/2007/hr4914.doc.htm>. (29 March 2007). Accessed 30 May 2007.
[26] Ibid.
[27] Moran, John Jude. Employment Law: New Challenges in the Business Environment. 3rd Edition. New Jersey: Pearson/Prentice Hall. 2005.
[28] Levy, Carol Jay. “UN Convention on Rights for People with Disabilities.” <http://www.useless-knowledge.com/1234/07apr/article095.html> (24 April 2007). Accessed 30 May 2007.
[29] Ibid.
[30]Toussaint, Cynthia. “My Mystery Disease.” Woman’s Day. 6 March 2007. p. 108.
[31]Bingaman, Brian. “’Invisible Disabilities’: Dealing with Chronic Pain.” The Reporter Weekly.” 27 April 2007, sec. A, p. 3.
[32] “Monitoring of the Implementation of the Convention.” <http://www.un.org.esa.socdev/enable/convinfomonit.htm>. Accessed 6 June 2007.
[33] Ibid.
[34]Winik, Lyric Wallwork. “Does the UN Still Matter?: Can Ban Ki-moon Save the UN?” Parade Magazine. 24 June 2007. p. 6.
[35] Ibid.
