CRDP rights: the existing rights or new rights?

For many years, persons with disabilities were hardly considered human and were denied their basic rights. They have always been denied human rights both in law and practice and then they have been victims of gross violations of human rights such as genocide, eugenism, and have suffered from massive discrimination resulting from a denial of their basic rights.[1]

 

In 2006, the General Assembly adopted the CRPD and opened for signature in 2007. The CRPD is a paradigm shift in approaches to disability by moving from a model where persons with disabilities were objects of medical treatment, charity and social protection to subjects of human rights, active in the decisions that affect their lives and able to claim their rights. The CRPD has a broad scope, including a non-exhaustive definition of the term ‘persons with disabilities’ which could be broadened further through the adoption of wider definitions in national level. Moreover, the CRPD contains general principles, including respect for human dignity and autonomy, equality and non-discrimination, participation and inclusion as well as accessibility and respect for the evolving capacities of children in Article 3 of the Convention.

 

The goal of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities. Regarding this, state parties have the general obligation to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities. Moreover, various rights are simply reaffirmed by the Convention and oblige states to recognize or to guarantee them.

 

The CRDP rights: the existing rights or new rights?

 

The CRPD rights that are the object of this recognition include: the right to life (Article 10); equality before the law (Article 12), liberty and security of person (Article14), respect for physical and mental integrity (Article 17), liberty of movement (Article), to marry and found a family (Article 23), education (Article 24), the highest attainable standard of health (Article 25), to work (Article 27), an adequate standard of living, social protection, and to take part in cultural life (Article 30). Freedoms include: freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 15), freedom to choose one’s residence and to a nationality (Article 18), freedom of expression and opinion (Article 21), and freedom from arbitrary or unlawful interference with his or her privacy (Article 22). In addition, political rights are also listed as a category (Article 29).

 

Regarding abovementioned, there are basic human rights and fundamental freedoms which have been also recognized by the three cores international human rights law instruments that is, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Even though several articles might seem to embody new rights for person with disabilities, for example, the articles on living independently (Article 19), personal mobility (Article 20), and habilitation and rehabilitation (Article 26) but these rights are only included in order to direct the means by which other Convention rights are realized.[2] The CRPD does not provide newly created rights for persons with disabilities. It only reaffirms and reinforces those already existing rights and freedoms in relation to and be necessary in the case of persons with disabilities.

 

The innovations of the CRPD

 

Hence, the CRPD does not create any new rights for person with disabilities, but rather sets out the obligations on states parties to meet the existing rights and obligations such as civil, cultural, economic, political and social rights under the UDHR, ICCPR and ICESCR in the specific context of persons with disabilities. In addition, the CRPD also provides some extraordinary innovations in the application of these rights and freedoms in particular context of persons with disabilities.

 

Civil and political rights’ innovations

 

Articles 10 to 23 and Article 29 are based in civil and political rights. Even though these rights are existing rights which are recognized by UDHR and ICCPR but in some cases there are new or amplified applications or extensions of these rights in the CRPD. For example, Article 11 extends the right to life and survival to situations of emergencies. States are required to ensure the protection and safety of persons with disability in situations of risk, including armed conflict, humanitarian emergencies and natural disasters.

 

Furthermore, Article 13 significantly extends the right of equality before the law into a positive obligation to ensure access to justice for person with disabilities on an equal basis with others. Article 16 extends the traditional right to freedom from torture or cruel, inhuman or degrading treatment to freedom from all forms of exploitation, violence and abuse. Articles 17, 19 and 20 extend the right of liberty and security of the person in ways that are unexpected and difficult to predict. Article 17 is particularly directed towards non-interference with both the physical body and the mind.

 

Economic, social and cultural rights’ innovations

 

Not only in the cases of civil and political rights but the CRPD also provides the detail for the application of economic, social and cultural rights in its provisions. Article 24 extends the right to education for person with disabilities in an inclusive education system at all level and lifelong learning directed. Article 26 extends the right to health regarding habilitation and rehabilitation. Article 27 and 28 provide the details of the right to work and adequate standard of living according to the needs of person with disabilities.[3] These provisions do not provide any newly created rights, they only to direct the means for application the CRPD rights for person with disabilities.

 

To sum up, as a ‘paradigm shift’ in international human right law, the CRPD does not create any new or different rights for persons with disabilities under international human rights law. Rather, the CRPD reaffirmed the existing human rights and fundamental freedoms, which have been recognized in international human rights and provide some innovations regarding the application of those existing rights law in the context of persons with disabilities.

 

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[1] F. Mégret, The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?, Human Rights Quarterly, 30(2008), p. 500.

[2] M. A. Stein and J. E. Lord, The United Nations Convention on the Rights of Person with disabilities as a Vehicle for Social Transfprmation, p. 9 <www.kynnys.fi/images/stories/VIKE-web/prof.stein20.5.doc> accessed 1 November 2009.

[3] Frédéric Mégret, supra note 1, p. 504.