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Introduction to the United Nations Convention on the Rights of Persons with Disabilities and it Optional Protocol (CRPD)

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Over 650 million people - or approximately 10 per cent of the world's total population - suffer from some kind of disability. They are the world's largest minority. According to the data of World Health Organization (WHO), this figure is increasing through population growth, medical advances and the ageing process. Nevertheless comparative studies on disability legislation show that only 45 countries in the world have national anti-discrimination and other disability-specific laws (United Nations Enable, undated). Moreover over two thirds of all people with disabilities live in developing countries. While their living conditions vary, they are united in one common experience: being exposed to various forms of discrimination and social exclusion. This evidence the need for the global, international discourse of the disability as the factor of development, poverty reduction, increasing participation and realization of the rights of high number of population worldwide.
The United Nations (UN) as an international organization was founded with its aims for facilitating cooperation among countries member states in international law, international security, economic development, social progress, human rights, and achievement of world peace. Its main principle is equality for all. The Preamble to the United Nations Charter affirms the dignity and worth of every human being and gives primary importance to the promotion of social justice.
The history of the concept of "human rights" reveals its historical evolution and political and social use from the Second World War until the Universal Declaration of Human Rights (1948). Since then the international instruments protecting human rights have broadened and developed and is now constituting international human rights framework that impose obligations on governments to respect and protect human rights, including the rights of people with mental disabilities. These human rights frameworks are a critical means of promoting the rights of people and guiding the development of national human rights laws, policies, specific services and strategies (including for persons with diabilities). The essence of the human rights framework is that human rights are afforded to all people on the basis of their humanity and consequently people with mental disabilities too, are entitled to the enjoyment of the same human rights, in equal measure, as all other people. International human rights law place duties on governments to a) respect human rights, that is, refrain from infringing on rights; b) protect human rights, that is, states have a duty to take action to prevent violations by third parties; and c) fulfil human rights, which requires states to adopt appropriate legislative, administrative budgetary, judicial and other measures to promote human rights.
Since the adoption of the Universal Declaration of Human Rights in 1948, all UN Member States have ratified at least one core international human rights treaty, and 80 percent have ratified four or more (OHCHR data). Governments decide freely whether or not to become parties to a human rights treaty. However, once this decision is made, there is a commitment to act in accordance with the provisions of the treaty concerned. Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.
As mentioned above, the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms are universally accepted . A fundamental aspect of human rights is that they protect human dignity and integrity. They are based on generally accepted principles of equality and justice. In this way they protect individuals and groups from elementary forms of injustice. Human rights belong to all and must never be regarded as a favour, gift, or privilege conferred by the state or by any organization or individual. Thus, persons with disabilities are, de facto, entitled to all the fundamental human rights upheld by the Charter and other human rights instruments. Nevertheless, it is only presently persons with disabilities have started to be viewed as holders of rights. For a long time people with disabilities have been invisible citizens because of the segregation and social exclusion produced by society. They have been discriminated against, not having equal opportunities. They have been subject to unjustified differential treatment compared with other citizens, which continually caused violations of their human rights, they tended to be viewed as "objects" of protection, treatment and assistance rather than subjects of rights. As a result of this approach, persons with disabilities were excluded from mainstream society. A dramatic shift in perspective has been taking place over the past two decades and resulted in the new international human rights treaty - UN Convention on the rights of persons with disabilities. With the changed paradigm shift persons with disabilities have started to be viewed as holders of rights and subjects of law. The final aim of such human rights approach is to empower disabled persons, and to ensure their active participation in political, economic, social, and cultural life in a way that is respectful and accommodating of their difference. This approach is normatively based on international human rights standards and operationally directed to ensure that persons with disabilities can fully enjoy all human rights. Strengthening the protection of human rights is also a way to prevent disability.
Convention on the rights of persons with disabilities (CRPD) - is an international human rights instrument (treaty), adopted by the United Nations Organization. The Convention on the Rights of Persons with Disabilities and its Optional Protocol was adopted on 13 December 2006 by the United Nations General Assembly in New York, and was opened for signature on 30 March 2007. There were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention on the very fist day of its opening for signatures.
What is unique about CRPD?
UN Convention on the rights of persons with disabilities (CRPD) is one of the newest UN's legally binding instruments and the first human rights treaty of the 21st century. Adoption of the Convention on the Rights of Persons with Disabilities (2006) arose from the observation that the 650 million people in the world living with disabilities are subject to continual human rights violations. Studies have shown that the previous Conventions have not protected people with disabilities, who have effectively remained second-class citizens. For this reason a new convention was required to explicitly acknowledge the human rights of people with disabilities. The adoption of the Convention has witnessed how the global movement of persons with disabilities has united to speak with one common voice to demonstrate their commonality of issues, including the day-to-day experience of discrimination which many persons with disabilities are subjected to. Such experience of discrimination has unified disabled persons to fight for disability rights to be recognized as human rights. It should be mentioned, that the text of the Convention was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006, making it the fastest negotiated human rights treaty in UN history .
CRPD is a universal policy instrument which is cross-disability and cross-sectoral, since it provides persons with disabilities with a wide range of fundamental rights guarantees covering all aspects of their lives. Convention does not create any new human rights for persons with disabilities, but rather reiterates rights enshrined in previous universal treaties and ensures realization of existing ones in clarifying their application to the specific situation of persons with disabilities. Nevertheless the principles of non-discrimination, autonomy and inclusion embedded in the convention ensure that it marks a paradigm shift in the concept of disability under international law. CRPD aims to ensure the protection of human rights of people with disabilities by committing all the sectors and responsible institutions of the states that ratify it to acting using suitable policies, legislation and resources.
CRPD is international human rights treaty with the highest number of signatories in history to a UN Convention on its opening day (there were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention). As well this Convention has the shortest time in history before its entry into force. CRPD entered into force on 3 May 2008, after reaching the number of minimum 20 country ratifications required. By the end of 2012 there were in total 127 ratifications and 155 signatories to the CRPD and 76 ratifications and 90 signatories to its Optional Protocol (OP) . Number of ratifications to the CRPD constitute two thirds of all the UN member states and indicate an importance of this human rights treaty worldwide. On the global level CRPD creates united standards for security of human rights of all the disabled and sometimes is called Constitution of the disabled.

Listing further unique things about CRPD, it should be mentioned that the Convention is the first human rights convention to be open for signature by regional integration organizations (such as European Union, etc.). The EU formally acceded to the Convention on 23 December 2010 and CRPD became the first legally binding international human rights instrument to which the EU is party. Upon the confirmation of the Convention European Community undertook legal obligations under the Convention to conform all its existing and developing european legislation on disability to the requirements of the CRPD.
The Convention follows decades of work by the United Nations to change attitudes and approaches to persons with disabilities. It marks the paradigm shift in attitudes and approaches to persons with disabilities. Persons with disabilities are not viewed as "objects" of charity, medical treatment and social protection; rather as "subjects" with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society. It also adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. The Convention does not explicitly define disability. Preamble of Convention states, that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders full and effective participation in society on an equal basis with others. Such new social model of disability highlights the fact that disability is a social relationship that people with disabilities undergo the limitations and prejudices created by society . This approach emphasizes that disability depends on the interaction between environmental, social and personal factors. The more society embraces people's characteristics and develops their abilities, the more it is able to remove barriers, obstacles and prejudices. Article 1 of the Convention states, that "persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others" . Since it does not prove an exhaustive list of disabilities that are/could be benefiting from the entitlements enshrined in CRPD, it gives opportunity to the countries to expand the protection of the rights under the CRPD to the broader group of persons (for instance, with short-term psychosocial impairments). Essentially the focus of the Convention is on "discrimination" and not on disability itself. Thus it clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced .
The Convention is intended as a human rights instrument with an explicit, social development dimension. There are estimates that 10 per cent or even up to 15 percent of the world's total population suffer from some kind of disability. The day to day life of around 25 per cent of the world's population is affected by disability. Disability is very closely connected with the poverty. 80 per cent of the world's persons with disabilities live in low-income countries - the majority are poor and cannot access basic services. Only 2 per cent of children with disability in the developing world receive any education or rehabilitation. Thus CRPD can catalyze development and sustainable growth of developing countries in both economic, social, human rights by essentially influencing development and implementation of laws and policies that comprehensively address disability, mental health and other related issues .

Convention Bodies.

UN Conventions generally have a system for monitoring and controlling the implementation of the norms contained within them. The highest monitoring body of CRPD is Conference of States Parties, which meets regularly (biennially or upon decision by the Conference) with representation of all the countries that ratified the Convention in order to consider any matter with regard to the implementation of the Convention.
Other "treaty bodies" are created in accordance with the provisions of the treaty that they monitor. Generally these are independent committees, made up of experts, which follow the application of the various conventions. Treaty monitoring bodies meets regularly to review State Party reports and to engage in a constructive dialogue with governments on how to live up to their human rights obligations.
The Committee on the Rights of Persons with Disabilities (CRPD Committee) plays a significant role as a monitoring tool of the implementation of the CRPD. CRPD Commitee was elected on 3 November 2008, during the first meeting of the Conference of State Parties as required by CRPD no later then 6 month after its entering into force. Initially it comprised 12 independent experts, with this number rising to 18 members after an additional 60 ratifications or accessions to the Convention. According to CRPD all States parties have to submit regular reports to the Committee on how the rights of persons with disabilities are being implemented in their country. States must report initially within two years after ratifying the Convention and then every four years. The Committee examines each report and makes suggestions and general recommendations on the report as it may consider appropriate and forwards these to the State Party concerned. States are required to submit their progress reports to the treaty bodies, and to make them widely available to their own populations. Thus reports can play an important catalytic role, contributing to the promotion of national debate on human rights issues, encouraging the engagement and participation of civil society, and generally fostering a process of public scrutiny of governmental policies. At the end of the session, the treaty body makes concluding observations which include recommendations on how the government can improve its human rights record. Even though the recommendations are not legally binding, it is a convenient tool for the disability movement to monitor the concrete improvements of its country or regional organization. Besides there is possibility for disability and/or other civil society organisations to present shadow report(s) to the CRPD Committee in order to inform it about inadequate or non existing efforts of the government to effecive implement CRPD in the counrty.
It should be noted, that despite very high level of ratification in a short time, the CRPD Committee up to recently (2012) was authorized for only one one-week session and one two-week session meetings per year. Such meeting time is obviously not enough, because since the start of its work in 2008 the Commitee held in total 8 session and has managed to review and adopt concluding observations only with regards to 6 states. And there are 35 initial reports presented by the State Parties awaiting for their review .

Optional Protocol to CRPD
As it was mentioned the Convention was negotiated and adopted together with its Optional Protocol. Nevertheless the Optional Protocol is considered as a separate legal instrument requiring separate signature and ratification procedure. The main feature of the Optional Protocol, that it allows individuals from any particular country to submit complaints to the CRPD Committee in case they consider their rights were violated against CRPD by the state/its authorities, bodies, institutions. Thus by ratifying Optional Protocol State Parties recognize the authority of the Committee on the Rights of Persons with Disabilities to receive individual complaints alleging violations of any of the provisions of the CRPD. This is known as a quasi-judicial procedure, since the Committee is not the court and its decision is not legally-binding. However it is adversarial and the decision is available publicly. States Parties to the Optional Protocol may further accept the authority of the Committee to undertake investigations - including country visits - in the case of reliable information of grave and systematic violations of human rights. It is important to note that a State Party to the Optional Protocol must accept the individual complaint procedure, but may opt-out of the inquiry procedure. Both these additional procedures can, as a result of experience in relation to other human rights treaties, be very effective in considering the protection of rights of specific individuals.

General principals and main paradigm shifts of CRPD
Article 3 of CRPD states general principals among which respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons, non-discrimination principal, full and effective participation and inclusion in society, equality of opportunity could be mentioned. Full and effective participation and inclusion of persons with disabilities in all areas of life, as well as all policy formulating and implementation processes. Participation is important to correctly identify specific needs, and to empower the individual to act have possibility for independency and exercise of own legal capacity. Full and effective participation and inclusion in society is recognized in the Convention as a general principle (article 3), as well as a general obligation of the State (article 4). It also is an entitlement and the right of participation in political and public life and participation in cultural life (articles 29 and 30). Principal of participation and inclusion in society is directly and inevitably related to the few most important and challenging rights enshrined within the CRPD. The right of equal recognition before the law (art.12) is crucial in introducing the paradigm shift of CRPD towards recognizing persons with disabilities as holders of the rights at all times and in all areas of life. This provision is very significant since it requires countries to abolish existing systems of full legal incapacity and plenary guardianship as the basis for removal of rights of persons with mental disabilities. Article 12 of the CRPD states that people with disabilities have the right to recognition everywhere as persons before the law. It also re-asserts the rights of people with disabilities to exercise their legal capacity on an equal basis with others in all aspects of life. (art.12). They must therefore remain central to all decisions that affect them, including about their treatment, where they live and their personal and financial matters. Article 12 also states that, when needed, people should be given support in exercising their legal capacity.
The right to live independently and being included in the community enshrined in Article 19 is one of the major paradigm shift found in CRPD. This provision reaffirms that living in the community is an inalienable right not subject to proving one's 'ability', 'eligibility' or 'entitlement'. This right should drive the direction of policy in many countries of establishing a range of services in community settings , and to provide a right for everyone to have the "opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement". In addition, this right requires that all community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs, thus making requirement for regular services to be available, accessible and adapted to the needs of persons with disabilities (including mental disabilities).

Implications of CRPD
After CRPD entering into force there are few tools and guidelines developed based on one or several provisions of CRPD. Those are aimed at proper monitoring, assessing and improving quality and human rights in mental health and social care facilities, as well as recommending ways forward to promote, protect and realize rights of persons with mental disabilities. In 2010 European Commission funded ITHACA project "Institutional treatment, human rights and care assessment" developed an exhaustive Toolkit for assessing general health care and human rights situation in mental health institutions (ITHACA Toolkit, 2008) . In 2012 World Health Organization published WHO QualityRights tool kit: assessing and improving quality and human rights in mental health and social care facilities (WHO QualityRights tool kit, 2012) . In 2012 European Expert Group on the Transition from Institutional to Community-based Care launched Common European Guidelines on the Transition from Institutional to Community-based care and Toolkit on the Use of European Union Funds for the Transition from Institutional to Community-based care (European Guidelines on Deinstitutionalization, 2012) . Hopefully those tools will help to identify problems in existing health care practices and to plan effective means to ensure that the services for people with mental disabilities within the existing mental health care settings are of good quality, respectful of human rights, responsive to the users' requirements and promote the users' autonomy, dignity and right to self-determination. Besides all other human rigths of people with mental health disabilities should be respected, promoted and fulfilled in all societies and in all areas of life (WHO QualityRights tool kit, 2012).

In conclusion approval of a new convention on human rights is an important moment of political and social recognition of the will to protect the rights of the segment of population concerned. This means that it puts a new issue on the global and national agenda, creating the conditions to change policies and legislation. CRPD is the first legally binding international documents focusing on the rights of persons with disabilities. Thus it is a strong tool that can bring about changes internationally and nationally. It can facilitate creation of a level playing field that equalizes opportunities and thereby help build better lives for all persons with disabilities and their families. It can likewise serve to hasten the inclusion of persons with disabilities in the life and activities of their communities wherever in the world they live .

 


 
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