Comment: the CRPD and children with disabilities.

• Author: McCallum, Ron
• Position: Convention on the Rights of Persons with Disabilities - Creating New Futures for All: International Law and the Protection of Migrant Children at Risk

Abstract

This comment considers how international law responds to children with disabilities, particularly children with disabilities in situations of forced migration. We argue that the Convention on the Rights of Persons with Disabilities ('CRPD') revolutionises the way international law responds to people with disabilities, particularly children. This comment recognises the established status of children as rights bearers deserving of special protection under international law and examines how the CRPD interacts with and builds upon two existing human rights treaties. We argue that the CRPD and its expert monitoring committee are uniquely placed to offer a constructive, rights-based framework for the protection of children with disabilities.

I Introduction

It is well settled under international law that children are rights bearers who are entitled to special protections which accrue to them simply because they are children, and they apply equally to all those who are children. But not all children do experience those rights equally. Having a disability puts a child in a situation of particular vulnerability. Since 2008, it has been recognised that international law should go further for these children: not by giving them greater rights, but by providing extra protection so that they can enjoy ordinary rights on an equal basis with other, non-disabled, children.

International law (and the international community) was relatively slow to recognise the human rights of persons with disabilities, including children. Only in the last decade has disability been 'mainstreamed' as a human rights issue and the situation of children with disabilities taken seriously as a discrete human rights issue. The turning point was 2008, when the United Nations Convention on the Rights of Persons with Disabilities ('CRPD') (1) came into force. The CRPD is an instrument that revolutionises the way international law responds to people with disabilities, particularly children.

The primary purpose of this comment is to analyse how the CRPD operates to respect and protect children who experience disability. We examine how the CRPD interacts with the Convention on the Rights of the Child ('CRC') (2) and critique the reach and scope of the CRPD and its specific accommodations for children. We argue that the CRPD is uniquely placed to offer a constructive, rights-based framework for the protection of children with disabilities. The CRPD's unique monitoring committee has begun this task. As we will explore, this relatively new committee has carved out an important interpretive and educational function.

This article will then consider how international law might develop to respond to and protect children at risk. Considerable momentum is building for the inclusion of disability in development law and policy for the post-Millennium Development Goals (post 2015) era, and we will consider how children with disabilities should be included in these developments. But the world today presents another challenge in respect of which we argue that children with disabilities are not being adequately considered. The challenge is that of forced migration, which is today at an 18-year high. (3) We therefore conclude this article with brief observations on the application of the CRPD to children who are in situations of forced migration. Those children should also be protected by anther international human rights instrument: the Convention on the Status of Refugees, (4) but that Convention sits awkwardly outside the United Nations human rights treaty system, even though it is indeed a treaty that protects human rights. We will briefly discuss the interaction of the CRPD and the Refugee Convention and evaluate the strengths and gaps in the protection which they offer.

II The Human Rights of Persons with Disabilities and the Establishment of the CRPD

This part briefly sketches the recent incorporation of disability rights into the UN human rights treaty body system, describes the context in which the CRPD was developed and indicates the similarities and differences the CRPD has with other human rights instruments.

Until quite recently, international human rights law was largely silent on persons, including children, with disabilities. Prior to the CRPD, the CRC was the only treaty to include a stand-alone article on the rights of children with disabilities (art 23) and indeed the first treaty to contain a specific reference to disabilities. (5) The CRC makes very clear that children's vulnerability is not to be equated with worthlessness, and that children have equal value, irrespective of their circumstances. It is clear that the drafters of the CRC and the Committee on the Rights of the Child (CRC Committee) were ahead of their time in 'mainstreaming' disability as a human rights issue. Reflecting the importance and innovation of art 23, the the CRC Committee gave particular attention to the situation of children with disabilities in some of its early General Comments. (6) It also adopted a General Comment on the rights of children with disabilities in 2006. (7)

As the CRC Committee paid more attention to disabilities as a human rights issue, so too did the other UN human rights treaty bodies and indeed the entire UN human rights system. As the CRC Committee observed, the new focus on disability 'is explained partly by the fact that the voice of persons with disabilities and of their advocates from national and international non-governmental organizations (NGOs) is being increasingly heard. (8) It is no coincidence that as their voices became louder, the agency, capacity and rights of persons with disabilities came to be recognised. (9)

The CRPD was the first human rights treaty concluded after the Vienna Declaration and Plan of Action. (10) It was adopted by resolution of the General Assembly of the United Nations on 13 December 2006, (11) and it was opened for signature on 30 March 2007. It came into force on 3 May 2008, 30 days after the 20th ratification. (12) Over the last five years, ratifications of the CRPD have taken place at record pace. By September 2013, 134 states parties and the European Union had ratified the CRPD. These figures make it the fastest ratified Convention amongst all of the United Nations human rights treaties. In our view, this is because there is general recognition that persons with disabilities, (13) and more especially children with disabilities, must have their human rights protected by an international treaty. It has been clear to those 134 states that so many persons with disabilities are unable to enjoy fully all of the human rights which most able-bodied people take for granted.

The CRPD is distinctive in that it fulfils its basic protective function while proposing a significant paradigm shift. Rather than approaching people with disabilities from a benevolent welfare mindset, it places their human rights, their agency and their dignity front and centre. Its purpose, set out in the first sentence of art 1, is 'to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity'. The CRPD does not set out to create new rights for people with disabilities. (14) Instead, it articulates and asserts the application of earlier human rights instruments to people with disabilities and provides a conceptual and practical framework for ensuring those rights.

In this respect the CPRD follows the lead of the CRC, which recognises the inherent dignity and worth of all children and their rights to participate in all matters affecting their future. The CRPD similarly proposes equality for persons with disabilities, but adopts a more radical approach to understanding the rights of such people. It frames the disadvantage faced by its subjects differently. Rather than equating disability with impairment, the CRPD frames vulnerability, and indeed disability itself, as the failure or inability to accommodate a person's impairment (whether physical, sensory or mental). Put in concrete terms, the CRPD recognises that it is not the loss of a leg that makes a person disabled; it is the absence of a prosthesis.

Article 3 sets out eight principles that underpin the CRPD. These principles require governments, persons and bodies to treat all persons with disabilities with respect because of their inherent dignity, and to ensure that their disabilities do not restrict their full participation in society. The form of these 'General Principles' is unique to the CRPD. No other human rights treaty sets out its founding and unifying principles so clearly. (15) As we will show in section four, these general principles are very relevant to the way the CRPD Committee interprets specific obligations under the Convention and determines a state Party's compliance or otherwise. The general principles make very clear that the spirit of the CRPD requires states parties not to treat people with disabilities as the objects of charity, but instead to recognise them as citizens, as subjects and rights-holders who are as equally deserving of their place in the community, civil society and the law as other citizens. This applies equally to children with disabilities as it does to adults with disabilities.

Two concepts are central to the working of the entire CRPD. The first is nondiscrimination. Article 5 of the CRPD is its lynchpin provision. It prohibits discrimination against persons with disabilities. Discrimination is defined as:

any distinction, exclusion or restriction on the basis of disabilities which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. (16) The very concept of discrimination is tied to, and measured against a...