Frequently asked questions
- Introduction
- Why a Disability Convention?
- What difference will the convention make?
- Are there risks associated with the Convention?
- Is the government committed to both the letter and the spirit of the convention?
- So does this mean that you are completely content with what the government is doing?
- Does the convention apply to states now?
- So does the fact the UK has signed the Convention mean anything?
- What are reservations and interpretative declarations?
- Does the Convention contain rights that I can enforce?
- Does the convention create legal rights?
- Is it important that the UK signs and ratifies the Optional Protocol to the Disability Convention?
Introduction
This page provides personal responses to questions that have frequently been put to me by disabled people and/or our representative organisations.
I have tried to deal with as many issues as possible, balancing the need for accuracy with my experience of human rights mechanisms and government responses to them.
I do not believe there is much value in providing textbook answers to questions; finding out what 'should' happen is straightforward, explaining why things may - or may not - happen as they are supposed to is, I hope you will agree, more useful.
If you have questions about the Convention (but not individual cases please) that have not been addressed on this page, please forward them to me, and I will do my best to add your questions - and my responses - to the page as soon as possible.
The issues dealt with on this page have also been affected by the appearance of a 'frequently asked questions' page on the UN enable web site, which I would wholeheartedly recommend that you visit. As stated elsewhere on the site, this UN site increasingly provides an unparalleled resource on disability and human rights.
Why a Disability Convention?
Because disabled people's human rights are inadequately respected and promoted!
Whilst it has been clear that all adults were entitled to equal enjoyment of their human rights, both experience and evidence have shown that this is a goal yet to be achieved for disabled people.
Prior to the Disability Convention, there were a number of conventions which sought to address discriminatory barriers to the equal enjoyment of human rights, including discrimination based on race, colour, descent, or national or ethnic origin, discrimination against women and children.
Nonetheless, the international community felt it appropriate to negotiate separate treaties, for what had been considered 'minority' interests, since 1966. These treaties, including the recently adopted Disability Convention, do not mean that they will never be mainstreamed: the expansion, protection and promotion of human rights is very much a 'work in progress': an evolving thing that will continue to develop and mature, not least through the work of the various treaty monitoring bodies at the UN (the Human Rights Committee, for example) and through the European Court of Human Rights, in Strasbourg (for members of the Council of Europe, including the United Kingdom).
Whilst there will, undoubtedly, be some that will claim that the Disability Convention is nothing more than political correctness, the extent to which disabled people's human rights have been ignored - including the right to life - should not be underestimated.
It will come as a surprise to many to learn that human rights abuse is not confined to poor states, but remains a problem in the UK and other European States [see, for example, 'The consideration missing behind closed doors', Guardian, Wednesday April 11, 2007 and Mencap's report: Death by indifference].
Whatever the alternatives, I view the international community's [through the UN] elaboration of a disability-specific convention to be a vitally important restatement of disabled people's equal right to the enjoyment of human rights and, perhaps more controversially, acknowledgement of our very humanity.
What difference will the convention make?
Only time will tell.
The Convention categorically reaffirms that disabled people are fully entitled to enjoy our human rights on an equal basis with others.
I used the phrase "reaffirms" deliberately: the Convention does not create new rights, it merely seeks to ensure that disabled people are better able to enjoy those rights that have, demonstrably, been denied us.
In theory, states that sign and ratify the Convention are agreeing to be bound by its terms and to ensure its implementation. However, as has been repeatedly stated by UN agencies and conferences, disabled people were entitled to the equal enjoyment of our human rights for as long as everyone else (since 1966), so whilst this Convention implicitly acknowledges that such equal entitlement does not exist, only time will tell whether states that ratify will fully implement the Convention rights.
What I have said so far may be seen as implying that disabled people have to passively accept their state's compliance - or non-compliance - with the Convention, but nothing could be further from the truth.
If disabled people abdicate responsibility for monitoring implementation of the Convention, it would be surprising if the obligations were met at all or in what we would consider to be an acceptable period.
However, quite apart from any quasi-legal benefits (see discussion of international law below) provided by the Convention, it offers substantial political and campaigning benefits, if we are prepared - and have the capacity - to use them. Indeed, addressing the shortage of adequately resourced representative organisations of disabled people is, arguably, the first requirement of effective implementation.
In short, unless we have effective representative organisations, the Convention is unlikely to make very much difference at all.
Are there risks associated with the Convention?
Of course...
Although written some years before work on the Convention began, Colin Barnes and Mike Oliver's - Disability Politics: Where did it all go wrong? is remarkably relevant to it and the things that have been done in relation to the Convention over the last few years. I would strongly recommend that everyone with a genuine interest in disability equality reads that paper and considers the risks highlighted in it.
Political ideologies and vested interests have a tendency to 'co-opt' or 'colonise' progressive ideas and language for their own purposes.
There is a danger that much will be proposed in the name of the Convention, but that the content of the proposals will bear little resemblance to the ethos of the Convention.
We must all be alive to the risks created by political or commercial exploitation of the ideals contained within the Convention.
Some governments may also co-opt their preferred sections of the Convention - employment, for example - to pursue ideological aims: forcing disabled people into low paid and/or demeaning jobs or workfare programmes, rather than ensuring equal access to meaningful education or careers.
The only defence against the risks associated with the Convention are active and adequately resourced representative organisations of disabled people, as the Convention itself makes clear.
Is the government committed to both the letter and the spirit of the convention?
That is a question which you need to put to the Government, rather than to me.
I know from previous contact that the Minister for Disabled People - Anne McGuire - is committed to seeing the UN Convention through from signature to implementation in the UK. Were this not the case, I would not be continuing to work with the government but would, instead, be criticising it from the outside.
However, recent events in the UK, proposals for future legislation and the delay in ratifying the Convention makes it difficult to believe that commitment to the Convention is shared across Whitehall.
So does this mean that you are completely content with what the government is doing?
The short answer is "no".
Disabled people have endured discrimination and a lack of respect for our human rights for so long that there is a lot of ground to make up.
My assessment of the ratification process is rather like my school reports: 'could do better':
Signature of the Convention has been achieved, but that is not enough.
- The Government must sign and ratify/accede to the Optional Protocol to the Disability Convention; it is simply not credible to trumpet a commitment to human rights but reject the idea that the UK is open to individual and impartial assessment (through the Treaty Monitoring Body) of individual cases.
- The Government needs to pick up greater speed - and efficiency - in providing disabled people with information we can use about the Convention's benefits and it needs to get on with consulting disabled people - through our democratic and representative organisations - about the promotion, implementation and monitoring of the Convention.
- The Government has an equally urgent task with its civil servants and the enormous range of executive agencies and non-departmental public bodies. All Departments and public authorities need to come to an early understanding of how the Convention is designed and the way they will be required to think about - and act in relation to - disability and disabled people. So there is an awareness issue within national and local government which needs to be urgently addressed.
I do not underestimate the size or complexity of the task.
The process of getting an international convention ratified is not something that should be pushed through 'on the nod', not least because to do so provides a very clear indication that the government concerned is either supremely confident of its ability to meet the Convention obligations or, more likely, indifferent about meeting those obligations.
Does the convention apply to states now?
The Convention entered into force on 3 May 2008, after the Convention received its 20th ratification; the Optional Protocol came into force on the same date, 10 ratifications having been received.
The Convention only applies in those States that have ratified it.
So does the fact the UK has signed the Convention mean anything?
Yes!
"Multilateral treaties usually provide for signature subject to ratification, acceptance or approval - also called simple signature.
In such cases, a signing State does not undertake positive legal obligations under the treaty upon signature. However, signature indicates the State's intention to take steps to express its consent to be bound by the treaty at a later date. Signature also creates an obligation, in the period between signature and ratification, acceptance or approval, to refrain in good faith from acts that would defeat the object and purpose of the treaty (see article 18 of the Vienna Convention 1969) (UN 2006, Treaty Handbook, Treaty Section of the Office of Legal Affairs, United Nations, Sales No. E.02.V2, ISBN 92-1-133645-7, emphasis added)."
Put more simply, states should not simply sign a convention without further thought about - or commitment to - its content.
Regrettably, to the best of my knowledge, there is nothing to prevent a state signing a treaty but never ratifying it.
What are reservations and interpretative declarations?
A reservation is a statement by a state through which, it is claimed, that state rejects or alters the legal effect of particular parts of the Convention [or any other treaty - see paragraph 3.5.1, page 12 of the UN Treaty Handbook 2006].
Although often greeted with dismay by campaigners and advocates, the UN views reservations as a way of encouraging states to become a party to a treaty that they would, otherwise, be unwilling or unable so to do.
An interpretative declaration is a formal announcement by a state that describes what that state understands the relevant part(s) of the Convention to mean, that is to say, the way in which that state will interpret parts of the Convention when implementing it [see paragraph 3.6.1, page 16 of the UN Treaty Handbook, 2006].
Reservations and interpretative declarations can be made on 'signature, ratification, acceptance, approval of or accession to a treaty'.
The UK entered no reservations or interpretative declarations when it signed the Convention on 30 March 2007. Looking at the UK's response to existing treaties, it is difficult to believe that the UK will not enter some reservations or declarations on ratification of the Convention.
Note: A reservation is a very clear statement that a state does not intend to be bound by the article - or articles - for which it has entered reservations, whereas an interpretative declaration is often seen as less controversial, because it is thought to indicate how a particular state will interpret particular parts of the Convention.
Unsurprisingly, some states will seek to 'disguise' reservations as interpretative declarations, whilst other states fail to indicate whether they intend their statements to be reservations or interpretative declarations. Such distinctions are, however, according to the Vienna Convention, irrelevant:
"(d) 'reservation' means a unilateral statement, 'however phrased or named', made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby 'it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State [Article 2(1)(d), Vienna Convention on the Law of Treaties, 1969]"
Accordingly, the UN Treaty Section views any unilateral statement made by a state, when signing, ratifying etc., as a reservation.
Does the Convention contain rights that I can enforce?
Citizens of states that do not ratify or accede to the Optional Protocol will not be able to submit complaints (described as 'communications'; in the Optional Protocol) to the Treaty Monitoring Body, when it is established by Article 1 of the Optional Protocol:
'Article 1
1 A State Party to the present Protocol recognizes the competence of the Committee on the Rights of Persons with Disabilities ('the Committee') to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who to be victims of a violation by that State Party of the provisions of the Convention.
2 No communication shall be received by the Committee if it concerns a State Party to the Convention that is not a party to the present Protocol.'
In any event, the Treaty Monitoring Body will only accept communications from citizens who have exhausted all national and/or regional remedies. It should also be remembered that the Convention will only create obligations for those states that have ratified it, subject to any reservations or interpretative declarations.
Does the convention create legal rights?
According to the UN, yes, but for many academics, no.
A common way of defining 'law' is to emphasise that it creates obligatory rules of conduct - one cannot choose whether or not to obey the law, or parts of it and, if I tried to do so, would find little sympathy in court, were I to claim that I did not accept the law in question.
Beyond defeating a government's legislative intentions by democratic means, whether we accept the increasing raft of legislation passing through Parliament or not, there is little that we can do to oppose laws to which we object.
The same cannot be said of international treaties - including the Disability Convention - because states voluntarily accept the obligations contained within the treaty and there is no punishment or enforcement that comes close to that which applies to citizens under domestic law.
It might be argued - as indeed some do - that this is an academic debate of little practical importance, but this is not a view I share.
There is no international police force or judiciary to ensure compliance with - or enforcement of - those obligations that states voluntarily accept in international treaties.
Accordingly, the differences between domestic law (and the threat of coercive force to ensure obedience) and international 'law' (without such coercive powers) emphasises the very purpose of human rights protection (as do the all too frequent reports of states abusing their citizens at will).
Is it important that the UK signs and ratifies the Optional Protocol to the Disability Convention?
In some respects, yes.
Academics, lawyers and activists often claim that human rights fail when the beneficiaries have no voice and cannot make their claim heard.
The UK Government would no doubt claim, with some justification, that the Human Rights Act and the possibility of referring cases to the European Court of Human Rights does give British citizens a voice and the opportunity to make their claim heard (although, particularly in the case of disabled people, there are compelling reasons to deny such claims, including impairment-specific, financial and practical barriers).
It is certainly difficult to believe that where people have been through domestic courts and the European Court of Human Rights in Strasbourg, that they will have any greater chance of success by referring the matter to a treaty monitoring body, even after further delay in obtaining an opinion (the last information I saw suggested an average of six-years between the referral of a complaint to a treaty monitoring body and that body being in a position to express a view on the matter).
However, there are self-evident political benefits to signing Optional Protocols - which as a matter of course the UK refuses to do - on the basis that it demonstrates a state's willingness to allow external review not only of its human rights record, but of citizen's access to a just and reasonable legal outcome.
All that being said, my own view is that the UK's failure to sign Optional Protocols carries a significant political cost, most easily explained by the cliché that the UK fails to practise what it preaches.
On a more practical level, it also means that where the human rights of British citizens are breached - and it is not possible to obtain a domestic remedy - the only solution remaining is for non-governmental organisations to detail the facts in what are known as 'shadow reports' to the treaty monitoring body. States that ratify the Disability Convention will have to produce periodic reports, on the implementation of the Convention obligations, to the treaty monitoring body.
Increasingly over recent years, treaty monitoring bodies for the other conventions have accepted shadow reports from NGOs which, all too often, paint a very different picture to that provided by states and, whilst this may offer little in the way of personal recompense, it does a great deal to highlight the disparity between rhetoric and reality in the enjoyment of human rights.
By denying citizens the opportunity to submit individual communications to a treaty monitoring body, the UK guarantees that those who believe that they have endured human rights abuse - but are unable or unwilling to put the matter in the hands of a court - are encouraged to make public (rather than private) appeals for justice.
Equally, every case that reveals human rights abuse that is reported in the media is likely to invite repeated criticism of the UK's failure to sign the Optional Protocol, arguably doing more to prevent ongoing and systemic abuse than individual complaints, submitted in private, to a treaty monitoring body in Geneva or New York (the place at which the treaty monitoring body will sit has yet to be agreed).
Both the Disability Discrimination Act and the Human Rights Act effectively require individuals to achieve social change: stopping discrimination, prejudice and abuse, safe in the knowledge that very few individuals have the resources necessary (personal, opportunistic, legal, financial and/or emotional) to attempt change through such legal processes.
Many would also argue that, quite apart from individualising a wider social problem, the possibility of legal remedy - no matter how unrealistic or unattainable - allows governments to claim that political issues have been taken out of the political arena: it de-politicises the issue. As feminist writers, in particular, have emphasised, depoliticising issues creates the appearance of objective or impartial results, whilst leaving discriminatory or oppressive power relationships untouched.
For both the reasons described - making individualised and de-politicised references to a treaty monitoring body unavailable - I believe that the UK's failure to sign optional protocols increases political pressure on - and wider cynicism of - successive British governments, all the more so when they make claims to international policy based on ethical principles.