Interview

Volume 4 Issue 13 - July 01, 2006

“In all likelihood, 2007 should see the signing of the Convention”: Anuradha Mohit

Anuradha Mohit, Special Rapporteur for Disability, National Human Rights Commission, India, and Global Representative, National Human Rights Institutions in the U.N. Ad Hoc Committee, shares her views on the Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, in an interview with Chitra S. Shankar.

1. What is Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities?

The key words in the title are Comprehensive and Integral, and then Protection and Promotion of Rights. The present Convention is looking at the complete and full range of rights and freedoms in the context of persons with disabilities. Thus it is a comprehensive convention. As for protection of rights, people with disabilities have faced and are facing direct or indirect discrimination of various kinds all over the world. When the law legitimises discrimination on grounds of disability as in the Hindu Marriage Act, it is direct form of discrimination. There are numerous examples of indirect discrimination. You construct buildings, build transport systems, information systems, but you forget about the needs of people with disabilities. So preventive measures under the law are to see that these discriminations cease to exist.

Promotional aspects of the law are commonly known in the legal parlance as positive rights - the recognition that people have rights and also that the Government has a duty to ensure that people enjoy those rights, and in the enjoyment of those rights all necessary measures are put in place. So the Convention will protect as well as promote the rights of people with disabilities.

2. What is Ad Hoc Committee on Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities?

Italy moved a resolution for the first time along with a Draft Convention in the U.N. General Assembly, asking it to adopt a Convention on the rights of people with disabilities. Somehow that resolution was not adopted. Then in 1988, Sweden came up with a similar proposal and draft. That exercise was also futile. In 2001, the President of Mexico brought a resolution to the General Assembly again making out a case for a Convention. This time the General Assembly did not reject it, but decided to establish an open-ended Ad Hoc Committee to which all member states including civil society organisations were invited. The actual mandate of this Committee was to examine whether there was a need for a Convention or not.

But after the very first session of the Ad Hoc Committee, two important things happened. First, the Committee, after consultations with the member states, decided that there is a need for a Convention. Second, the Ad Hoc Committee in its report emphasised the need for wide participation by disability organisations and national human rights institutions. This is the first international treaty in which during the elaboration process, national human rights organisations are being consulted. The conventional role of national human rights institutions is only to monitor the compliance or implementation of those international instruments domestically. After the third session, the Ad Hoc Committee decided to establish a Working Group to harmonise these various proposals and views on the Convention into one document. And that became the Draft Convention.

3. Who all are serving from India on the Ad Hoc Committee and what position do they hold?

India is a member of the Committee. India attended the first session through its permanent mission in New York. After the second session, the Ministry of Social Justice & Empowerment (M.S.J.E.) started sending a delegation, supported by officials from the Treaty Division of the Ministry of External Affairs.

But I must admit that there are many governments who have disabled people on their delegations because the Chairman of the Ad Hoc Committee had encouraged right through the resolution that governments should bring with them representatives of disabled people and disability experts. I can recall Thailand, Kenya, and Chile’s delegations being headed by disabled people who are not even part of the government. Unfortunately, India doesn’t have any disabled person or a representative on its delegation. I do not know the reasons for that.

After the first Ad Hoc Committee, human rights institutions were invited to participate. We come under the International Coordinating Committee (I.C.C.) of the U.N. High Commission for Human Rights. In the second session, I represented the Asia-Pacific Forum, but from the third session onwards, I have been heading the delegation of national human rights institutions in the Committee. I was also part of the Working Group that drafted the first text of the Convention.

4. What has been India’s role in all the consultations held so far?

India is a very important member of the Committee because it represents the voice of developing countries and also because it has a huge population of people with disabilities. I must tell you that a number of developing countries do align their position with the Indian position.

But definitely there is another set of developing countries which I feel is much more progressive than India. Some of the smaller countries such as Costa Rica, Chile, Mexico, Kenya, Senegal, are very articulate. Their proposals fit very well within international law and they rely more on the progressive provisions that already exist under international law. It’s also wonderful to hear from Jamaica, Trinidad & Tobago, Libya and Jordan. From a disability perspective, I will term their contributions as those that have a potential to add value to the lives of people with disabilities. On the other hand, we have countries that come up with very retrogressive ideas.

I will place India somewhere in the middle – neither too progressive nor too retrogressive.

5. Could you elaborate on the interventions made by you in these meetings and the logic behind these points?

There are a whole range of issues on which I have been speaking that I can say have made an impact. I can give you certain examples.

Intervention 1: Under international human rights law there is a provision of special temporary and positive measures to deal with problems of inequality. From the European Union came a proposal that one of the general obligations on the government is that it should ensure that separate measures are not maintained for people with disabilities. I objected to this and I presented my view with examples. For entry in the government service disabled people are given age relaxation of ten years. That’s a separate measure. Based on common experience that disability in the initial stages either takes away time because of its medical nature, or sometimes due to lack of awareness, children with disabilities often reach school very late. Therefore they will graduate late and thus start applying for jobs late. So you need to make that provision. This intervention was most difficult because the office of U.N. High Commissioner had supported the stand taken by European Union not to maintain separate standards for people with disabilities. But finally we won.

Intervention 2: There was a debate on maltreatment of people with disabilities in institutions. There was a prevention clause being carved out, and I wanted to put it under the Article on prevention from torture. Then again, many states including Europe did not agree. I made a presentation. We, as a national human rights organisation visit institutions. And the conditions that prevail in these institutions are appalling. People are kept in cells, chained and there are judgments where even the Supreme Court of India has observed that incarceration. And this is not an experience exclusive to India. It is a condition that exists in Europe and in many other parts of the world. We impacted the Convention on this point too.

6. There is very little awareness in our country regarding such an important development like the drafting of the Convention. What has been / is being done to ensure greater participation of disabled people in the framing of the Convention?

At the U.N. level there is a genuine effort to ensure greater participation by people with disability, and it has established the U.N. Voluntary Fund to facilitate that participation. Above all the U.N. has urged governments to include disabled people and representatives of disability organisations on their delegation, and some have done so. The resolution has also asked the governments to hold wide consultations with disability organisations.

On that front N.H.R.C. has been convening consultations with disability organisations including Government representatives. We had one in Southern India, one in Eastern India, and one in North India. We convened one Commonwealth & Asia-Pacific Conference. Recently we had a consultation at N.H.R.C. amongst the national institutions from Europe and Asia-Pacific.

On the part of Government of India, I remember participating in two consultative meetings attended by disability organisations and other experts. It was a half-day event. To be very honest it was more like a window dressing, to look good on paper. If you really want to consult people you have to give them time. It’s such a huge Convention and I didn’t see many disability rights activists attending these meetings.

7. Were issues like gender and socio-economic divide adequately addressed during the negotiations?

They were very well addressed. There is a very powerful gender lobby within the Committee. I think there is already a broad agreement about the special circumstances of women with disabilities. But we have problems regarding the way in which this perspective should be built into the Convention. There are two schools of thought right now. One school believes that there should be a separate article on the rights of women with disabilities and there is another that thinks that the gender component should be integrated into several articles which are important from gender perspective.

Economic and social divide has been attended to in the Convention from various perspectives. First of all, the world itself is divided into developed and developing countries. The universe we live in is diverse. In order to address that diversity, we have done two things. One of them already exists under international law – civil and political rights such as right to life, right to vote, freedom of association, etc. These are seen as justiciable rights, which means that they would be immediately enforced by the state, because they are seen as the starting point of any democratic society.

There is another set of rights – economic, social and cultural – the nature of these rights is such that their implementation needs financial resources, time and technical expertise. A measure of international cooperation has been conceived to assist states who have limitations on account of economy and technical know-how. This Convention is also creating a new obligation for the developed countries to bridge that social and economic divide. All the development aid through the World Bank, European Union, Danida, etc., should incorporate a disability component thus ensuring that the money given for development programmes in any country will lead to disability inclusive development.

On international cooperation, I must tell you that in this Convention, it is coming as a stand alone guarantee, which means there’s going to be an article dealing with international cooperation, which is a powerful arrangement, if it gets adopted in the end.

8. When do you expect the Convention to be ratified?

Right now we haven’t even completed the drafting or elaboration of the Convention. The drafts are there, but there is need for further negotiation to reach a consensus position. On at least five Articles there is no agreement. The current text has 34 Articles of which 18 Articles are fully negotiated and there are no issues pending. There are 11 others on which some minor issues are still to be resolved. But the five on which no agreement has been reached till now relate to the recognition of disabled persons as equal before the law; free and informed consent issue; issue of involuntary treatment or forced interventions; issue of right to health; and the integrity of the disabled person.

Apart from this, one Article on which discussion has never taken place is international monitoring. I think this Committee will spend considerable time on discussion on the need for an international monitoring body. On this aspect, the Government of India is not very forthcoming. They are supporting national monitoring but not international monitoring.

In a nutshell, the ratification stage has not come, but we are trying to complete the drafting and negotiation process in the next session. If we are very efficient in our approach, we may achieve that end. If we do not, then there may be another session in January. But in all likelihood, 2007 should see the signing of the Convention.