Disabled people across South Africa should be celebrating the signing and ratification of the Convention and the Optional Protocol (without any reservations) in 2007, however many do not know their rights or what it means to them or their family members.

“The Convention is a human rights instrument and can be used as a tool for development”.

A Convention is a legally binding agreement, in writing, between two or more countries.  Once a convention has been adopted (meaning that it is now open for countries to join), countries can choose whether or not to join a convention.  (SA signed on the 31st March 2007and ratified in October 2007).  When they join the Convention, they become States Parties and must comply with the obligations as described in the convention. When enough countries become States Parties, the convention enters into force – meaning that it becomes “active” – and States Parties must act to meet their obligations under the convention.

Why a Convention

There are already general Human Rights Conventions as well as specific Human Rights Instruments (like the convention on the rights of the child), which protect the rights of persons with disabilities through the principles of equality and non-discriminations.

Some human rights instruments do address disability issues (like the UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities) but are not legally binding.

This means that governments are not legally required to follow the recommendations of those documents.  In addition, some of the older human rights instruments that address disability issues are rather outdated in the way that they discuss persons with disabilities.

Therefore, a need for a special convention has been recognised, as this vulnerable group should have, as all the other groups protected by several UN Conventions (refugees, women, children), a single set of binding norms and a specific body to monitor respect for their human rights.

A brief overview of the Convention

What are the main Goals and challenges in the Convention?

For people with intellectual disabilities and their families some articles of the Convention are of a particular importance.

Article 9 on Accessibility

The Convention wants to ensure that persons with disabilities can access to and participate in all aspects of life: this means that information, communication, services and building need to be accessible.

This means that the states have to ensure that persons with intellectual disabilities have access to the information with easy-to-read texts or other means.

Article 12 on Legal Capacity

This article is related to guardianship and supported decision-making issues. The Convention says that persons with disabilities have the right to be recognized as persons before the law like other persons. This means that all persons with disabilities have the capacity to have rights as well as the capacity to act. States parties are asked to provide appropriate support for persons with disabilities they may require in order to exercise their rights.

The translation of Article 12:

Both the wording of the title and of the paragraphs is important.

The key issue is to translate “legal capacity” as the capacity to have rights and the capacity to exercise rights, so to act. There are already several examples where governments have translated “legal capacity” only as “the capacity to have rights” (like any newborn child), but not as “capacity to exercise rights” (like the full citizens rights that people get when they become 18 or 21).

Article 1 of the Convention says that “the purpose of this Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities”.

This cannot be achieved only with the capacity to have rights; it must include capacity to exercise rights.

Many other articles of the disability Convention will not be implemented in a meaningful manner if article 12 is not correctly translated Article 19 on Living in the Community.

The Convention says that persons with disabilities have the opportunity to choose a place of residence and where and with whom they live on an equal basis with others.  Persons with disabilities are not obliged to live in particular living arrangements.

Art 19 also asks States Parties to provide for access to a range of supported living and community services for people with disabilities.

Article 24 on Inclusive Education

The convention promotes the goal of full inclusion and guarantees the rights of every child to attend the regular school with the supports they require.

The Article on Education not only reiterates the right of children with disabilities to an education but explicitly sets the goal of full inclusion in the regular education system.  It also sets out the state obligation to provide the necessary support to enable inclusion in the regular education systems.

Article 27 on Work and Employment

The Convention says that persons with disabilities have the right to work, including access to the open labour market, if they want so.  Persons with disabilities should have the same rights as the other workers and should benefit from reasonable accommodation of the workplace.

Acknowledged in a number of international human rights conventions and other legal instruments, for example; International covenant on economic, social and cultural rights.

Ulrich Hellmann, Lebenshilfe, Germany

Key issues in the field of work and employment

Lack of economic participation has a significant impact on the lives of persons with disabilities, as they are then unable to earn an adequate standard of living (Art. 28) and to live independently in the community (Art. 19)

There is a remarkable gap between working conditions of persons with disabilities and those without disabilities in all regions of the world.

No or insufficient legislations to promote and protect the rights of people with disabilities and insufficient implementation.

Lack of education vocational training and qualification.

Lack of awareness and support by private and public employers.

The “Right to work” belongs to the economic, social and cultural rights which apply – according to the rules of international law – under precondition of the abilities (“…to take measures to the maximum of its available resources…”) of the respective State, with a view to achieving progressively the full realisation for these rights (see article 4, para. 2 of the Disability Convention).

By definition the “Right to work” does not mean an individuals right to a specific workplace, but rather calls for an employment policy and legislation of the States Parties which fulfil the above mentioned principles.

The Status of Family Members

The preamble of the Convention mentions families and the important role they play in enabling persons with disabilities to enjoy their rights.

Diane Richler – President of Inclusion International

Families are what made the UN Convention unique. Recognising the role of families was a huge issue – all other organisations fought Inclusion International in having families included into the convention. Parents are not people with disabilities themselves.

They also questioned the legitimacy of Inclusion International as all other organisations were or had to be a disability run org.  One parent was told to go home and could not be included in the process. After bringing in self advocates (persons with intellectual disabilities), this soon changed the perspective of many.

“For many years I was ignored. I was in the room but it was like I was not really there. No one bothered to ask me what I wanted about really important decision – what school I went to, where I wanted to live and who I wanted to live with.”

(Robert Martin) Inclusion International self advocate.
The Status of Children and Family Members in the UN Convention
Preamble Statement
(x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities.

  1. In applying to all Articles, the Preamble statement on the family’s roles is the key to the UN Convention’s viability for people with severe intellectual/cognitive impairments.
  • Explicit mention of children and families throughout Convention.

Application of Preamble to all Articles, particularly for people with severe intellectual/cognitive disabilities.

  1. For adults with severe intellectual or cognitive disabilities, the family may play the key role in assistance for the individual in multiple areas of functioning over a lifetime.

Challenge – How to best support individual/family to reach decisions which fit individual’s desires and in best interest in long term planning; financial arrangements; choosing guardians/support groups; education; medical choices; where to live; end-of-life treatment; life or death decisions; recreation; with whom to spend time; activities; and religious worship.
III. How can the States support the family in those roles? How can the State Protect the individual when the family is not acting in the individual’s best interests? What barriers must be dismantled?

Where support is needed for decision-making –
-informal supported decision-making
-Powers of attorney – health care, financial – personal contracts
-Guardianships, limited guardianships – government oversight and monitoring.

  1. How can we measure progress toward realisation of the promise of the Preamble statement on families? What benchmarks can we set?

-Establishment of family support structures is important
-Work in coalitions

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