” Disability is a human rights issue! I repeat: disability is a human rights issue.”
Those of us who happen to have a disability are fed up being treated by the society and our fellow citizens as if we did not exist or as if we were aliens from outer space. We are human beings with equal value, claiming equal rights…
If asked, most people, including politicians and other decision makers, agree with us.
The problem is that they do not realize the consequences of this principle and they are not ready to take action accordingly. “
Speech by Bengt Lindqvist, Special Rapporteur on Disability of the United Nations
Commission for Social Development, at the nineteenth Congress of Rehabilitation
International, Rio de Janeiro, 25 – 30 August 2000
2 March 2012, Budapest (Hungary) and London (UK).
The UK’s reputation as a country which empowers people with disabilities is “in jeopardy” following an in-depth Parliamentary inquiry.
This week, the UK Joint Parliamentary Committee on Human Rights published its report on implementation of the right to live in the community in the UK, as set out in Article 19 of the UN Convention on the Rights of Persons with Disabilities (CRPD).
Dr Hywel Francis MP, the Chair of the Committee, said that, “[t]he Government is unable to demonstrate that sufficient regard has been paid to the Convention in the development of policy with direct relevance to the lives of disabled people”.
The hard-hitting report covers a broad range of issues, and makes several targeted recommendations.
The report is critical of the Minister for Disabled People who told the Committee that the CRPD was “soft law”.
The Committee criticised this as “indicative of an approach to the treaty which regards the rights it protects as being of less normative force than those contained in other human rights instruments.” (para. 23)
The Committee’s view is that the CRPD is hard law, not soft law.
The term soft law is used to denote agreements, principles and declarations that are not legally binding.
Soft law instruments are predominantly found in the international sphere.
UN General Assembly resolutions are an example of soft law.
UN Conventions, are legally binding instruments concluded under international law.
Hard law refers generally to legal obligations that are binding instruments on the parties involved and which can be legally enforced before a court.
The sources of international law can be found in Article 38 of the Statute of the International Court of Justice (ICJ), an Annex to the UN Charter adopted in 1945.
Article 38 defines the sources of law that the ICJ shall apply to settle disputes:
The binding instruments, composed of Treaties (which can have different titles such as Conventions, Covenants, Pacts and Agreements) confer legal obligations upon States Parties.
Binding instruments, or ‘hard law’, such as Treaties and Conventions, are recognized by the contracting States (Article 38 (1) of the Statute of the International Court of Justice).
States should explicitly express their consent through a specific procedure to be bound to the terms of a treaty.
The procedure of adoption and entry into force of treaties was codified by the Vienna Convention on the Law of Treaties adopted on 22 may 1969.
It is composed of three main stages: negotiation (to reach an agreement on the text), authentication (formalized by the signature) and ratification.
Ratification should be made in accordance with constitutional law of each country. In general, States must obtain the authorization of their national legislative body (Parliaments) to do so.
Once this procedure is accomplished, the Head of State deposits a ratification instrument with the depositary of the treaty (generally the Head of the intergovernmental organization or the hosting country of the international conference by which it was adopted).
By ratifying the instrument, States explicitly recognize their obligation to respect the terms of the treaty.
- a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states ;
- b. international custom, as evidence of a general practice accepted as law;
- c. the general principles of law recognized by civilized nations ;
- d. subject to the provisions of Article 59 [“The decision of the Court has no binding force except between the parties and in respect of that particular case”], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
International conventions, or treaties, are the most straightforward instruments used by states to consent to limitations of their sovereignty.
They become legally binding after a process of signature and domestic ratification.
In accordance with the principle of primacy of international law over national law, States Parties are bound to adapt their national legislation to the provisions of the treaty and introduce all relevant measures in their national legal system to implement their obligations under this treaty.
To be legally bound by a treaty, a state has to ratify it – its signature is not sufficient.
The UN no longer defines Dementia as a Mental Health Disorder, rather as a Cognitive Disability, which reinforces that the Articles of the CRPD apply to people living with their diagnosis of Dementia.
Those articles form hard law c/o International Law via the UN CRPD and form the basis of decisions and services/support relating to people living with Dementia and those that care for them.
Countries are free to choose the way in which they want to respect international law, but they are always accountable if they fail to adapt such as the CRPD into their national legal system in a way that respects international law.
The UK signed the CRPD in 2008 and ratified in 2009.
In doing so it also accepts and is bound by the CRPD as International Law, even though it has failed to fully integrate the CRPD into National Law and decision making processes.
Disability is a Human Rights Issue !
Everything to do WITH a person living with a disability/Dementia,
every decision made WITH them,
every decision made FOR them,
every funding decision,
every decision on service/support provision,
every decision made after a person loses mental capacity, remembering and recognising that THEY STILL HAVE legal capacity including “best interest meetings”
Replacing the “Medical Model” of care/support/services with the “Social Model” of care benefits not only the person living with a disability including Dementia but also to carers and family.
The CRPD includes things such as the right to financial support and respite which benefits carers/family as well.
It also provides a framework for decision making for professionals and politicians which if not followed could in the future require them to justify their actions to the UN or in extreme circumstances to the International Court.
Following Sir Philip Alston, the special Rapporteur to the UN’s investigation into poverty and disability in the UK last year, the UK has become the first G8 country to be sanctioned by the UN for poverty and disability rights abuses.
I repeat: Disability is a Human Rights Issue.