Out of darkness into light? Introducing the Convention on the Rights of Persons with Disabilities

Human Rights Law Review

Volumn 8, Issue 1, 2008, Pages 1-34

  Kayess, Rosemary ^a   French, Phillip ^a  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 40349116642     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngm044     Document Type: Article

References (152)

1. The CRPD and the CRPD Optional Protocol were adopted during the 61st Session of the General Assembly: See GA Res. 61/611, 13 December 2006, A/61/611; 15 IHRR 255.
2. See Disabilities - Handbook on the Convention on the Rights of Persons with Disabilities and its Optional Protocol, (Geneva: OHCHR, 2007), available at: http://www.ohchr.org/english/about/publications/ docs/ExclusionEqualityDisabilities.pdf [last accessed 13 November 2007].
3. The International Convention on the Protection of All Persons from Enforced Disappearance 2006, GA Res. 61/177, 20 December 2006, A/61/488, was adopted by the GA one week later.
4. Official Statement of the UN Secretary-General, Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities, 13 December 2006, SG/SM/10797, HR/4911, L/T/4400, available at: http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm [last accessed 13 November 2007].
5. The CRPD and its Optional Protocol are the first UN human rights treaties to be signed by the European Union. Under Article 44 of the CRPD and Article 12 of its Optional Protocol the European Union may act on behalf of its members in relation to the treaties to the extent of its mandate, which must be the subject of a formal declaration, deposited with the Secretary-General. While the European Union may also ratify the treaties, only the direct ratifications of its member States count towards the treaties coming into force.
6. Report of the Secretary-General as to the Status of the Convention on the Rights of Persons with Disabilities and the Optional Protocol, 14 August 2007, A/62/230, at para. 4, available at: http://www.ohchr.org/ english/issues/disability/docs/A.62.230.en.doc [last accessed 13 November 2007].
7. See also UN Press Release, Record number of countries sign UN treaty on disabilities on opening day, 30 March 2007, available at: http://www.un.org/apps/news/story.asp?NewsID=22085&Cr=disab&Crl= [last accessed 13 November 2007].
8. The United Nations maintains an up-to-date register of nations that have signed and ratified the treaties on its UN Enable website, available at: http://www.un.org/disabilities/countries.asp?navid=12&pid=166 [last accessed 13 November 2007].
9. Article 45, CRPD and Article 13, CRPD Optional Protocol respectively.
10. Jamaica ratified the CRPD at its Signature Opening Ceremony on 30 March 2007. Since then the CRPD has been ratified by Panama, Hungary, Croatia, Gabon, Cuba and India. So far, Panama, Hungary and Croatia have ratified the Optional Protocol, see supra n. 6.
11. Statement of the UN Secretary-General, supra n. 3.
12. The International Disability Caucus was a coalition of international, regional and national non-government organisations (principally disabled peoples' organisations) accredited as observers to the GA Ad Hoc Committee responsible for the development of the CRPD. It claimed a participating membership of more than 70 such organisations.
13. UN Press Release, supra n. 5, quoting Yannis Vardakastanis for the International Disability Caucus. These words are an English translation of lines from 'The Ballad of Mack the Knife' from The Three penny Opera, 1928.
14. Ambassador Don MacKay, Permanent Representative of New Zealand in the UN and Chair of the Ad-Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Commentary at a High-Level Dialogue held in association with the Signature Ceremony of the Convention, From Vision to Action: The Road to Implementation of the Convention on the Rights of Persons with Disabilities, New York, 30 March 2007, available at: http://www.un.org/disabilities/ default.asp?id=160 [last accessed 13 November 2007].
15. Statement by Louise Arbour UN High Commissioner for Human Rights on the Ad Hoc Committee's adoption of the International Convention on the Rights of Persons with Disabilities, 5 December 2006, available at: http://www.ohchr.org/English/issues/disability/docs/ statementhcdec06.doc [last accessed 13 November 2007].
16. Many officials made this point in addresses to the Opening for Signature Ceremony, and in the associated Press Conference. For example, Juan Manuel Gomez Robledo, Mexico's Under-Secretary for Multilateral Affairs and Human Rights, said 'the negotiating process had been unprecedented in the history of the United Nations because disability-rights activists and representatives of non-governmental organisations had participated in the talks on a nearly similar footing as Member States.' See UN Press Release, Press Conference by High Commissioner for Human Rights on Signing of Convention, 30 March 2007, available at: http://www.un.org/ News/briefings/docs//2007/070330.Disabilities.doc.htm [last accessed 13 November 2007].
17. See, for example, Statement by Hon Ruth Dyson, Minister for Disability Issues, New Zealand Mission to the UN, for Formal Ceremony at the Signing of the Convention on the Rights of Persons with Disability, 30 March 2007: 'Just as the Convention itself is the product of a remarkable partnership between governments and civil society, effective implementation will require a continuation of that partnership.' The negotiating slogan 'Nothing about us without us' was adopted by the International Disability Caucus, available at: http://www.un.org/esa/ socdev/enable/documents/StatConv/nzam.doc [last accessed 13 November 2007].
18. The UN estimates that there are 650 million persons with disability in the world. This estimate is based on a population incidence of 10%. Reported population incidence varies widely from <1% (eg Yemen 0.5%) to more than 30% (eg Norway 33% in urban population and 39% in rural populations), see DISTAT, The United Nations Disability Statistics Database, Human Functioning and Disability, available at: http://unstats.un.org/unsd/demographic/sconcerns/disability/disab2.asp [last accessed 13 November 2007].
19. See, for example, statements made by the High Commissioner for Human Rights, Louise Arbour, and the Permanent Representative of New Zealand and Chair of the Ad-Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Ambassador Don Mackay, at a Special Event on the Convention on Rights of Persons with Disabilities, convened by the UN Human Rights Council, 26 March 2007, available at: http://www.unog.ch/80256EDD006B9C2E/(httpNewsByYear.en)/ 7444B2E219117CE8C12572AA004C5701?Open Document [last accessed 13 November 2007].
20. For example, in popular culture persons with disability may be referred to as 'vegetables', monsters, and 'freaks'.
21. For example, in many countries persons with intellectual and psycho-social impairments have been, and may still be, denied democratic voting rights.
22. See generally Oliver, Understanding Disability: From Theory to Practice (Hampshire: Macmillan, 1996)
23. and Finkelstein, Attitudes and Disabled People: Issues for Discussion (New York: World Rehabilitation Fund, 1980H, available at: http://www.leeds.ac.uk/disability-studies/archiveuk/finkelstein/ Reflections%20on%20the%20Social%20Model%20of%20Disability.pdf [last accessed 13 November 2007].
24. Michael Oliver locates the origins of disability as a socially constructed category at the beginning of the Industrial Revolution. He argues that one of the most important differences between the pre- and post-industrial revolution is the replacement of the notion of impairment as something conferred by an external, often supernatural, force with rational and scientific explanations. The Industrial Revolution resulted in a classification of people according to their ability to contribute to the forces of production. The boundaries of the concept of normal were restricted by the individual's capacity to participate in economic life. Impaired persons were seen as unproductive with little social value or individual human worth and were exiled from the productive centre into institutions and an existence outside society where their only claim to social resources was in the charity of others. This resulted in an environment constructed on an able-bodied, productive norm. See Oliver, supra n. 20
25. and Finkelstein, supra n. 20.
26. The medical model views disability as a deficiency or deviation from the norm, located in the individual, and carries an action implication to treat or change the person so that they can conform to existing social processes and structures. This treatment is typically provided in service systems and settings isolated from the general community. The medical model is not confined to the health domain, but for many persons with disability, has pervaded all areas of life. Examples include institutional residential services, special education systems and sheltered employment.
27. French, 'What is Disability?', in French (ed), On Equal Terms - Working with Disabled People (Oxford: Butterworth-Heinemann, 1994) at 4.
28. Finkelstein and Stuart, 'Developing New Services', in Hales (ed.), Beyond Disability: Towards an Enabling Society (London: Sage Publications, 1996) at 175-6.
29. The concept emerged in the mid 1960s through the reflections and writings of Paul Hunt, a British disability rights activist. It crystalised in 1976, when Hunt and his colleagues within the UK organisations Union of the Physically Impaired Against Segregation (UPIAS) and The Disability Alliance published Fundamental Principles of Disability - Being a Summary of the Discussion Held on 22 November 1975, November 1976, available at: http://www.leeds.ac.uk/ disability-studies/archiveuk/UPIAS/fundamental%principles.pdf [last accessed 14 November 2007], which claimed that disability is 'the disadvantage or restriction of activity caused by a contemporary social organisation which takes little or no account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities.'
30. See also Finkelstein, Reflections on the Social Model of Disability: The South African Connection, 13 April 2005, available at: http://www.leeds.ac.uk/disability-studies/archiveuk/finkelstein/ Reflections%20on%20the%20Social%20Model%20of%20Disability.pdf [last accessed 13 November 2007].
31. See Oliver, supra n. 20 and n. 21
32. Finkelstein, supra n. 20
33. Barnes, Disabled People in Britain and Discrimination (London: Hurst and Co, 1991)
34. Abberley 'The Concept of Oppression and the Development of a Social Theory of Disability, (1987) 2 Disability, Handicap and Society 5
35. and Quinn, 'The Human Rights of People with Disabilities under EU Law,' in Alston, Bustelo and Heenan (eds), The EU and Human Rights (Oxford: Oxford University Press, 1999) at 281.
36. The very simplicity of the idea that 'people are disabled by society' has been enormously effective in highlighting systemic discrimination and mobilising political action for social change.
37. See Shakespeare and Watson,'The Social Model of Disability: An Outdated Ideology?', (2002) 2 Research in Social Science and Disability 9, available at: http://www.leeds.ac.uk/disability-studies/archiveuk/ Shakespeare/social%20model%20of%20disability.pdf [last accessed 13 November 2007]
38. and Corker and Shakespeare (eds), Disability/Postmodernity: Embodying Disability Theory (London: Continuum, 2002).
39. See, for example, Light,'Social Model or Unsociable Muddle?' at Disability Awareness in Action web site, available at: www.daa.org.uk/ social.model.html [last accessed on 26 October 2007], where critical disability studies are positioned as 'harmful,' 'repeated attacks' on the social-model, as offering 'no acceptable alternative' to persons with disability, and critical scholars are accused of forgetting that the 'social model originated with us [that is, disabled persons], and that we still have use for it.'
40. This was particularly evident in the Ad Hoc Committee debate concerning a definition of disability. As we shall discuss later in this paper, on a number of occasions the International Disability Caucus intervened in the debate claiming the right to 'self-determine' a disability identity, and rejecting 'externally imposed definitions.' The implication of this view is that there are no intrinsic, objectively ascertainable characteristics upon which to base a definition: Kicki Nordstrom, former President, World Blind Union, Intervention in debate on behalf of the International Disability Caucus with respect to Article 2: Definitions, 7th Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Rights and Dignity of Persons with Disabilities, 31 January 2006, authors'direct observation.
41. This is most evident in the outcome of the drafting of Article 12 and Article 17, CRPD - which border on a complete denial of instrumental limitations associated with cognitive impairments.
42. Fredman, 'Disability Equality and the Existing Anti-Discrimination Paradigm - European Discrimination Law', in Lawson and Gooding (eds), Disability Rights in Europe: From Theory to Practice (Oxford: Hart Publishing, 2005) at 211.
43. Fredman, 'Providing Equality: Substantive Equality and the Positive Duty to Provide', (2005) 21 South African Journal of Human Rights 163.
44. Fredman, supra n. 32 at 204.
45. The Australian Disability Discrimination Act 1992 also has some substantive equality elements, but it is essentially based on a formal equality model: Purvis v State of New South Wales (2003) 217 CLR 92 per Gummow, Hayne and Heydon JJ (in the majority) at para. 203
46. see also Giessen CJ (in the majority) at para. 8, and Kirby and McHugh JJ (dissenting) at para. 104.
47. This 'difference' may either result from impairment (for example, recognising and accommodating a person with diabetes who requires facilities and work breaks to inject insulin) or disability (for example, flexible work hours to accommodate mobility restrictions arising from inflexible personal care services or unreliable parallel transport systems).
48. Maguire v Sydney Organising Committee for the Olympic Games (2001) EOC 93-123. In fact, the Maguire decision was not adequately complied with, leading to a successful claim for damages. Nevertheless, the decision had extensive impact in improving the accessibility of web-based information in Australia.
49. Scott v Telstra Corporation Limited and Another (1995) EOC 92-717.
50. See 'unjustifiable hardship' section 11, Disability Discrimination Act 1992 (Cth, Aust): 'such steps as is reasonable' section 6 and section 21, Disability Discrimination Act 1995 (UK); and'undue hardship'section 101(10), Americans with Disabilities Act 1990 (USA).
51. Fredman, supra n. 32 at 204-5.
52. Ibid. at 206.
53. Ibid. at 204-6.
54. In our view the universalist approach has enormous transformative potential for all persons who experience disadvantage and discrimination. Nevertheless, its Utopian aspirations may prove impossible to operationalise.
55. Bickenbach, 'Minority Rights or Universal Participation: The Politics of Disablement', in Jones and Basser Marks (eds), Disability, Diver-Ability and Legal Change (London: Martinus Nijhoff, 1999) at 101.
56. Ibid. at 111.
57. Zola, 'Disability Statistics, What We Count and What It Tells Us: A Personal and Political Analysis', (1993) 4 Journal of Disability Policy Studies 9.
58. Rioux, 'Towards a Concept of Equality of Well-Being: Overcoming the Social and Legal Construction on Inequality, in Rioux and Bach (eds), Disability is Not Measles: New Research Paradigms in Disability (Ontario: Roeher Institute, 1994) at 90.
59. Zola, supra n. 46.
60. Fredman, supra n. 33 at 163-4.
61. See Oliver, supra n. 20 at 43-77. Oliver demonstrates the ways in which persons with disability are excluded from and denied their citizenship rights in the British welfare state.
62. See also Davis, 'Riding with the Man on the Escalator: Citizenship and Disability', in Jones and Basser Marks (eds), supra n. 44 at 65-74, discussing the ways in which persons with disability are prevented from exercising their social, civil and political rights, in an Australian context
63. and Abberley, 'Work, Utopia and Impairment', in Barton (ed.), Disability and Society: Emerging Issues and Insights (London: Addison Wesley Longman, 1996) at 61, who argues that participation in economic production is used to define social integration, identity, and 'incapacity', so that persons with disability are necessarily excluded as 'valid' citizens.
64. See Oliver, supra n. 20 at 43.
65. For example, the right to vote is frequently explicitly denied on the basis of mental illness or intellectual impairment.
66. Persons with disability, for example, persons with intellectual impairment may be viewed as unable to contribute meaningful views on public policy questions.
67. Public policy information may not be available in accessible formats and public consultation processes may not make disability related adjustments.
68. For example, involuntary institutionalisation and involuntary administration of medication.
69. For example, many persons with disability are compelled to live in residential institutions, not because they are legally required to do so, but because these are the only environments in which State assistance is available.
70. These postcards were produced by the Landmine Survivors Network (on file with authors).
71. GA Res. 217 A(III), 10 December 1948.
72. UNTS 171.
73. UNTS 3.
74. Other than the Convention on the Rights of the Child 1989 (CRC), 1577 UNTS 3, the thematic Conventions prior to the CRPD are the International Convention on the Elimination of All Forms of Racial Discrimination 1965, 660 UNTS 195; the International Covenant on the Elimination of All Forms of Discrimination Against Women 1979, 1249 UNTS 13; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, 2220 UNTS 93; 12 IHRR 269 (2005).
75. There is also a prohibition on discrimination on the ground of disability in Article 2, CRC.
76. In 2006, the Committee on the Rights of the Child (CRC Committee) issued General Comment No. 9: The rights of children with disabilities, HRI/GEN/ 1/Rev 8, Add.1 at para. 34, which attempts to address this problem by detailing recommended actions in relation to the full range of CRC obligations.
77. HRI/GEN/1/Rev 8, Add.1.
78. Ibid. at para. 34.
79. Ibid. at para. 15.
80. Ibid.
81. November 1989, HRI/GEN/1/Rev 8, especially at para. 10.
82. Ibid. at para. 8.
83. For completeness, it should also be noted that in General Recommendation No. 18: Disabled Women, 10th Session, 1991, HRI/GEN/1/Rev 8 at 301, the Committee on the Elimination of Discrimination Against Women urges States to provide information on the status of disabled women in their periodic reports.
84. Degener and Quinn, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability, 2002, HR/PUB/02 at 1.
85. GA Res. 2856/26, 20 December 1971, A/RES/2856.
86. GA Res. 3447/30, 9 December 1975, A/RES/3447.
87. For example, Article 4, 1971 Declaration, continues to provide qualified support for institutional accommodation for persons with disability; and Article 1, 1975 Declaration, incorporates a personal deficiency based conceptualisation of disability.
88. GA Res. 37/52, 3 December 1982, A/RES/37/51, 37th Session Supp. No. 51 at para. 12.
89. Report by Special Rapporteur, Leandro Despouy, of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and Disabled Persons, 1993, E/CN.4/Sub.2/1991/31, available at: http://www.un.org/esa/socdev/enable/dispaperdes0.htm [last accessed 13 November 2007].
90. GA Res. 46/119, 17 December 1991.
91. Proposals were sponsored by Italy in 1982 and 1897 and by Sweden in 1989, see Degener and Quinn, supra n. 70 at 30.
92. GA Res. 48/96, 20 December 1993, A/RES/48/96, Supp No. 49, Annex at 202-11, available at: http://www.un.org/documents/ga/res/48/a48r096.htm [last accessed 13 November 2007].
93. See Degener, 'Disabled Persons and Human Rights: The Legal Framework, and Lindqvist, 'Standard Rules in the Disability Field - A New United Nations Instrument', in Degener and Koster-Dreese (eds), Human Rights and Disabled Persons: Essays and Relevant Human Rights Instruments (Dordrecht, Boston, London: Martinus Nijhoff, 1995) at 40 and 63 respectively.
94. Standard Rules, supra n. 79.
95. Many of the statements to the Ad Hoc Committee from the IDC and disabled persons organisations stressed the need for a binding instrument see, for example, Disabled Peoples International, Position Paper regarding a New International Human Rights Convention for Disabled People, 25 February 2003, available at: http://www.un.org/esa/socdev/enable/rights/ contrib-dpi.htm [last accessed 14 November 2007].
96. Degener and Quinn, supra n. 71.
97. See further Annan, UN Press Release, We the Peoples: The Role of the United Nations in the 21st Century, GA/9704, 3 April 2000, available at: http://www.un.org/millennium/sg/report/ch2.pdf [last accessed 13 November 2007].
98. The World Health Organisation (WHO) estimates that, of the 650 million persons with disability in the world, 80% live in the developing world: WHO,'Global Programming Note 2006-2007: Call for Resource Mobilisation and Engagement Opportunities', (2006) Disability and Rehabilitation available at: http://www.who.int/nmh/donorinfo/ vip_promoting_access_health care_rehabilitation_update.pdf.pdf [last accessed 13 November 2007].
99. Bolivia, Chile, Columbia, Congo, Costa Rica, Cuba, Democratic Republic of the Congo, Dominican Republic, Ecuador, El Salvador, Guatemala, Jamaica, Mexico, Morroco, Nicaragua, Pamama, Phillipines, Sierra Leone, South Africa and Uruguay sponsored the Resolution on a comprehensive and integral international Convention to promote and protect the rights and dignity of persons with disabilities, GA Res. 56/168, 19 December 2001, A/56/583/Add.2, available at: http://documents-dds-ny.un.org/doc/UNDOC/ GEN/NO1/488/76/pdf/NO148876.pdf?OpenElement [last accessed 13 November 2007].
100. Ibid.
101. The term 'Ad Hoc' simply means a specific purpose, time-limited committee to distinguish it from the many standing committees that operate under the GA.
102. This appears to be the result of the initial framing of the Convention in social development.
103. The First Session was held in July/August 2002 and the Second Session in June 2003.
104. The Australian delegation made several interventions to this effect in the First and Second Sessions of the Ad Hoc Committee.
105. Comprehensive and integral international Convention to promote and protect the rights and dignity of persons with disability: Position paper by the European Union, 2002, A/AC.265/WP.2, available at: http://www.un.org/esa/socdev/enable/rights/adhocmeetaac265w2e.htm [last accessed 13 November 2007].
106. Comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities: Working paper by Mexico, 2002, A/AC.265/WP.1, available at: http://www.un.org/ esa/socdev/enable/rights/adhocmeetaac265w1e.htm [last accessed 13 November 2007].
107. Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 3 July 2003, A/58/118 and Corr. 1, Part IV (15) 1, available at: http://www.un.org/esa/socdev/enable/ rights/a.58.118.e.htm [last accessed 13 November 2007]. The Working Group was made up of 27 UN member State representatives divided proportionally between each UN region, 12 representatives of disabled persons' organisations, and one representative of national human rights institutions.
108. Report of the Working Group to the Ad Hoc Committee, Draft Articles for a comprehensive and integral international Convention on the protection and promotion of the rights and dignity of persons with disabilities, Annex I, A/AC.265/2004/WG/1, available at: http://www.un.org/esa/socdev/ enable/rights/ahcwgreport.htm [last accessed 13 November 2007].
109. The 3rd (May/June 2004), 4th (August/September 2004), 5th (January/ February 2005), 6th (August 2005), 7th (January/February 2006) and 8th (August 2006).
110. Letter dated 7 October 2005 from the Chairman to all members of the Ad Hoc Committee on a comprehensive and integral international Convention to promote and protect the rights and dignity of persons with disabilities, 14 October 2005, A/AC.265/2006/1, available at: http://daccessdds.un.org/doc/UNDOC/GEN/NO5/555/12/PDF/ NO555512.pdf?OpenElement [last accessed 13 November 2007].
111. Revisions and amendments at the Seventh Session of the Ad Hoc Committee, Discussion Texts presented by the Chair, available at: http://www.un.org/ esa/socdev/enable/rights/ahc7 discussmonit.htm [last accessed 13 November 2007].
112. Australia, China, Russia, Sudan and the USA, among others, were notable objectors to a new treaty body: See Inclusion International, 8th Daily Updates, available at: http://www.inclusion-international.org [last accessed 13 November 2007].
113. A consensus was also developed that broader treaty-body reform efforts ought not to delay the entry into force of the convention, nor should they result in an inferior implementation and enforcement regime being established under the CRPD.
114. Draft Interim Report of the Ad Hoc Committee on a comprehensive and integral international Convention on the protection and promotion of the rights and dignity of persons with disabilities on its 8th Session, 1 September 2006, A/AC.265/2006/L.6. The drafting group was tasked with ensuring uniformity of terminology throughout the text of the draft Convention, harmonizing the versions in the official languages of the UN, available at: http://www.un.org/esa/socdev/enable/rights/ ahc8intreporte.htm [last accessed 13 November 2007].
115. This point was made repeatedly in the course of negotiations, was a feature of the rhetoric associated with its adoption and opening for signature, and now also permeates formative implementation dialogue and planning.
116. UN Press Releases, 'Chairman says draft convention sets out 'detailed code of implementation and spells out how individual rights should be put into practice', 15 August 2005, SOC/4680, available at: http://www.un.org/News/Press/docs/2005/soc4680.doc.htm [last accessed 13 November 2007].
117. Frequently Asked Questions regarding the Convention on the Rights of Persons with Disabilities, available at: http://www.un.org/disabilities/ default.asp?navid=22&pid=151#qg [last accessed 13 November 2007].
118. Although both State and non-government observer delegations advanced many text proposals that were inconsistent with this constraint, none explicitly challenged it.
119. In reality, this constraint was only applied to 'close' controversial issues, like proposed extensions to the right to life that would have referred to pre-birth negative selection.
120. Resolution 56/168, supra n. 85. The reference to a 'comprehensive and integral international convention' is retained in para. (y), Preamble to the CRPD.
121. Disability can only describe one form of oppression. However, persons with impairments may be subject to more than one form of oppression, for example, women may be subject to disability oppression and gender oppression.
122. This was a principal issue in Purvis v State of New South Wales (2003) 217 CLR 92.
123. One possible positive consequence of this drafting is that it places an absolute onus on States to provide the accommodations parents with disability may require to appropriately parent their children.
124. The Ad Hoc Committee made this decision during the first sitting of the 8th Session. The Optional Protocol does not incorporate Article titles.
125. On the use of preambles in interpreting treaties, see Article 31, Vienna Convention on the Law of Treaties 1969, 1155 UNTS 31.
126. The question of such definitions was discussed in the Ad Hoc Committee's 2nd, 4th, 7th and 8th Sessions, and in the Working Group.
127. Supra n. 30.
128. World Health Assembly Res. 54.21, 22 May 2001.
129. Ibid. at 6. The introduction to the ICF states that the '...ICF provides an appropriate instrument for the implementation of stated international human rights mandates and national legislation'.
130. Article 25(b), health, requires States to provide 'services designed to minimise and prevent further disabilities...' (emphasis added).
131. Preamble (x), Article 16, freedom from exploitation, violence and abuse; Article 23(4), respect for home and the family; and Article 28(1), 2(c), adequate standard of living and social protection.
132. For example, in Article 23, respect for home and the family, persons with disability are accorded the instrumental role of making decisions concerning the founding a family and the number and spacing of their children.
133. Article 8(1)(a), awareness-raising; Article 23(5), respect for home and the family; and Article 28(1), 2(c), adequate standard of living and social protection. Article 8(1)(a), for example, specifically requires states to raise awareness at the family level of the rights and dignity of persons with disability, and their capabilities and contributions, to combat stereotypes and prejudices that reinforce the belief that persons with disability are a burden to their family and society.
134. For example, by arranging for the sterilisation on women and girls with disability, or by institutionalising persons with disability.
135. This has very important implications for Australian disability discrimination law in light of the High Court of Australia's decision in Purvis v NSW (Department of Education and Training) (2003) ALR 133 to the effect that s5(2) (direct discrimination) of the Disability Discrimination Act 1992 (Cth) imposes no positive duty to provide reasonable accommodation: Per Gummow, Hayne and Heydon JJ (in the majority) at paras 217-218 and per Kirby and McHugh JJ (dissenting) at para. 104.
136. Quinn, Key Note Address to German European Union Presidency Ministerial Conference: Empowering Persons with Disabilities, The UN Convention on the Human Rights of Persons with Disabilities: A Trigger for Worldwide Law Reform, Berlin, 11 June 2007, available at: http://www.eu2007.bmas.de/EU2007/Redaktion/Deutsch/PDF/2007-06-12-rede- quinn.property=pdf,bereich=eu2007,sprache=de,rwb=true.pdf [last accessed 13 November 2007].
137. The CRPD was developed against a backdrop of unprecedented challenges in the international environment, which impacted in aggravated ways on persons with disability. This included the 11 September 2001 terrorist attacks on the United States of America, wars in Iraq, Israel-Palestine and Lebanon, the Asian Tsunami, severe earthquakes in south Asia, and hurricanes Katrina and Rita.
138. This is the first time access to justice has appeared as a substantive right in a UN human rights instrument. A more traditional formulation of the right to equality before the law is found in Article 12, CRPD.
139. This article also, or alternatively, derives from Article 19, CRC.
140. This concept does, however, appear in Article 3, Charter of Fundamental Rights of the European Union 2000, OJ (C 364) 1, 7 December 2000, available at: www.europarl.europa.eu/charter/default.en.htm [last accessed 13 November 2007].
141. This means that nations have an immediate obligation to respect and ensure these rights. Economic, social and cultural rights are subject to progressive realisation. See further, below p. 30.
142. See generally, McCorquodate and Baderin (eds),Economic and Social Rights in Action, (Oxford: Oxford University Press, 2007).
143. Article 1, CRPD Optional Protocol.
144. Article 6, CRPD Optional Protocol.
145. For example, Article 4 (1)(f) and (g), General Obligations, CRPD.
146. Article 8, Awareness-raising, CRPD.
147. Article 28 (2)(b), Adequate standard of living and social protection, CRPD.
148. Article 32, International Cooperation, CRPD, which is not a new concept in international human rights law (cf Article 45, CRC), but its expression in the CRPD supersedes pre-existing formulations.
149. Articles 3, General principles (f), and 9, Accessibility, CRPD.
150. Article 21, Freedom of expression and opinion, and access to information, CRPD.
151. Article 13, Access to justice, CRPD.
152. Article 4(2), CRPD retains the distinction between the basic obligations of State Parties to each of the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (see Article 2(i) of each Covenant). Whereas civil and political rights must be guaranteed immediately, the same is not generally the case with economic and social rights. Article 4(2) of the CRPD reads: With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum extent of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realisation of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.