United Nations Convention on the Rights of Persons with Disabilities A Critical Commentary on the Evolution of Ireland’s Legal and Policy

approach of the Court to interpreting the Convention to extend to persons with disabilities despite their initial exclusion has been relatively ineffective. This leads to significant deference being granted to Member States, with the ECHR protection operating in a highly limited capacity.

II. United Nations Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities (CRPD) is an international human rights treaty of the United Nations which aims to protect the rights and dignity of persons with disabilities. It was the first comprehensive human rights treaty of the 21st century as well as the fastest negotiated one, from 2002 to 2006.

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It was later adopted on the 13th of December 2006 before becoming effective on the 3rd of May 2008. Jamaica was the first country to ratify the CRPD and following Ecuador’s ratification of the Convention, there was a sufficient number of parties for the Convention to enter into force. To date, it has 163 signatories, and 182 States are parties to the Convention.

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The Convention received the highest number of opening-day signatures of any document of its kind. It has been described as “the last of the great human rights Conventions”, as well as “utopian” in nature

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. Following its introduction, the general response to the CRPD was largely positive. The then-Secretary-General of the UN, Ban Ki-Moon, declared it “a powerful tool to eradicate the obstacles faced by persons with disabilities”.111 John Flanagan, Officerin-Charge of the UN Mine Action Service at the time of , described it as being particularly relevant for survivors of accidents with landmines and other explosives and asserted that such victims are “entitled to all the same human rights as every other member of their societies, and this new Convention will help level the playing field in terms of access to services and

108 United Nations Department of Economic and Social Affairs, ‘10th anniversary of the adoption of Convention on the Rights of Persons with Disabilities’ (2016) <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/the10th-anniversary-of-the-adoption-of-convention-on-the-rights-of-persons-with-disabilities-crpd-crpd-10.html> accessed on 13th November 2021. 109 United Nations Treaty Collection Chapter IV, Convention on the Rights of Persons with Disabilities <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en> accessed on 13th November 2021. 110 Jan Grue, ‘The high cost of living in a disabling world’ (2021) <https://www.theguardian.com/society/2021/nov/04/the-high-cost-of-living-in-a-disabling-world> accessed 13th November 2021. 111 UN News, ‘Landmark UN treaty on rights of persons with disabilities enters into force’ (2008) <https://news.un.org/en/story/2008/05/258222-landmark-un-treaty-rights-persons-disabilities-enters-force> accessed 13th November 2021.

opportunities”112

. However, the CRPD has faced criticism as well, especially in America with various Republican Senators and interest groups claiming that the Convention reduces State sovereignty and gives the UN legal jurisdiction over national law.

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The CRPD was in the making for decades before its introduction. Various documents calling for action were issued such as the 1971 Declaration on the Rights of Mentally R*tarded Persons and the 1975 Declaration of the Rights of Disabled Persons. The UN also declared 3rd December to be the International Day of Persons with Disabilities in 1992.

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The Convention provides for the protection and promotion of the human rights of people with disabilities, including ending discrimination on the grounds of disability, enabling persons with disabilities to live independently, ensuring persons with disabilities have reasonable access to an inclusive education system and protecting persons with disabilities from all forms of exploitation, violence and abuse. One of themain goals of the Convention is to change attitudes, perspectives and approaches towards persons with disabilities. It embodies the idea of viewing persons with disabilities as individuals with rights who can make important decisions and choices themselves for their lives based on their free and informed consent and be active members of society, rather than ‘objects’ of charity, and it supports the translation of this ambition into national legislation.

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The CPRD does not necessarily create any new rights, but seeks to ensure that the persons with disabilities can effectively enjoy existing rights. The Convention also adopts a broad categorization of persons with disabilities to ensure that all persons it intends to target are covered and protected under its scope.

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As well as being a human rights instrument, it also acts as a social development mechanism which aims to bring about significant social change in conjunction with legal change. The Convention expressly recognises that “disability results from the interaction between persons

112 PBS, ‘What prevents the U.S. from signing the U.N. disabilities treaty?’ (2014) <https://www.pbs.org/newshour/show/prevents-u-s-signing-u-n-disabilities-treaty> accessed on 13th November 2021. 113 PBS, ‘What prevents the U.S. from signing the U.N. disabilities treaty?’ (2014) <https://www.pbs.org/newshour/show/prevents-u-s-signing-u-n-disabilities-treaty> accessed on 13th November 2021. 114 United Nations General Assembly Resolution 47/3 (1992). 115 United Nations Department of Economic and Social Affairs, ‘Convention on the Rights of Persons with Disabilities’ <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-withdisabilities.html> accessed on 13th November 2021. 116 United Nations Department of Economic and Social Affairs, ‘Convention on the Rights of Persons with Disabilities’ <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-withdisabilities.html> accessed on 13th November 2021.

with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”,117 thereby locating disability within the failure of an environment to accommodate persons with impairments rather than as the product of the person’s impairment. Some of its most noteworthy provisions include Article 4 which provides that countries that join in the Convention must engage to develop and implement policies, laws and administrative measures for securing the rights recognized in the Convention and abolish any laws, regulations, customs and practices that constitute discrimination against persons with disabilities. Articles 29 and 30 deal with participation in public life and cultural life respectively for those with disabilities. Article 8 which states that ratifying countries is to combat stereotypes and prejudices and promote awareness of the capabilities of persons with disabilities, expressly outlining that this is because a change of perceptions is essential to improving the lives of persons with disabilities. Article 10 provides that signatory States guarantee that persons with disabilities enjoy their inherent right to life on an equal basis with others, with Article 6 specifically addressing ensuring the equal rights and advancement of women and girls with disabilities. Additionally, Article 27 recognises the right of persons with disabilities to work, including the right to the opportunity to gain a living by work in a labour market and work environment that is open, inclusive and accessible to them.

The Convention also established the Committee on the Rights of Persons with Disabilities, which monitors the implementation of the CRPD. This was created by Article 34 and consists of 18 independent experts, all of whom serve in their individual capacity and not as government representatives.

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They are elected from a list of persons at the Conference of the State Parties for a four year term with a possibility of being re-elected once. The Conference is attended by over 1000 participants from governments, UN Agencies, and NGOs such as the Disabled Persons Organisations and the National Human Rights Institutes.

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All States parties have to submit regular reports on their actions fulfilling their obligations under the Convention, which the Committee reviews and then makes suggestions and recommendations on. States must

117 Convention on the Rights of Persons with Disabilities, Preamble, Section (e). 118 United Nations Human Rights Office of the High Commissioner, ‘Committee on the Rights of Persons with Disabilities’ <https://www.ohchr.org/EN/HRBodies/CRPD/Pages/QuestionsAnswers.aspx> accessed on 13th November 2021. 119 United Nations Department of Economic and Social Affairs, ‘10th anniversary of the adoption of Convention on the Rights of Persons with Disabilities’ (2016) <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/the10th-anniversary-of-the-adoption-of-convention-on-the-rights-of-persons-with-disabilities-crpd-crpd-10.html> accessed on 13th November 2021.