Webinar on Disability Rights June 17, 2013 WCL Center on Human Rights and Humanitarian Law Prof. Robert Dinerstein

Human rights framework

• • • Disability is the interaction between an individual and his or her environment (physical and attitudinal) Movement from the medical model to the human rights/social model of disability Convention on the Rights of Persons with Disabilities (CRPD) reflects this “paradigm shift”

CRPD in a Nutshell

• • • • • First human rights treaty of the 21 st century Introduced in 2001; adopted by UN General Assembly in 2006 Entered into force on May 3, 2008.

As of today, 155 signatories to the CRPD and 132 ratifications (Palau most recent—6-11-13) 91 signatories to the Optional Protocol; 77 ratifications

CRPD, con’t

• • • • US did not sign the CRPD under the Bush Administration (though it was actively involved in the drafting process) Pres. Obama signed the CRPD on 7-30-09 US submitted the ratification package to the US Senate in May 2012; Sen Foreign Relations Committee held hearings last summer US Senate rejected ratification 12-4-12 61-38 (two-thirds of the Senate must approve)

CRPD, con’t

• • • • “Issues” that derailed ratification Likely to be brought up again this term (must go back to Sen. For Relations Committ.) Note: US treaties are not self-executing so it would not have immediate force of law Consequences of ratification

CRPD-content

• • Broad emphasis on individual autonomy, dignity, equal rights Defines persons with disabilities as “those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” (Art. 1)

CRPD-content, con’t.

• Does not define disability as such (that is left to each State Party) but defines “Discrimination on the basis of disability” as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment, or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.” Art. 2.

CRPD-content, con’t.

• • Although many (including supporters) have described the CRPD as the “international ADA,” that is a somewhat misleading description Unlike the ADA, the CRPD covers areas such as guardianship (Art. 12), civil commitment (Art. 14), and rights in the family (Art. 23) that are matters of state law in the US.

CRPD-content, con’t.

• • CRPD also extends coverage to some areas that are un- or under-developed in US law (e.g., personal mobility, Art. 20; adequate standard of living, Art. 28; participation in cultural life, Art. 30) CRPD addresses rights of women (Art. 6), children (Art. 7), education (Art. 24), health (Art. 25) and work and employment (Art. 27)

Key provisions of the CRPD

• • • • Art. 12, Equal Recognition before the law: limiting guardianship and surrogate or substituted decision making in favor of supported decision making Art. 14, Liberty and security of person Art. 19, Living independently and being included in the community Art. 29, Participation in political and public life (voting)

Creative use of the CRPD

• Guardianship: – In re Mark C.H., 906 NYS 2d 419 (NY Surr. Ct. 2010)(Judge Kristin Booth Glen)(requiring periodic review and reporting in Art 17-A guardianship for people with intellectual disabilities.

– In re Dameris L., 956 NYS 2d 848 (NY Surr. Ct. 12 31-12)(Judge Glen)(terminating guardianship and advocating supported decision making for individual with intellectual disabilities)

Creative use of the CRPD, con’t.

• • Judge Glen (former Dean of CUNY Law School; now mandatorily retired) has also written on this issue, 44 Colum Hum Rts L Rev 91 (2012), as have I (19 (2)Hum Rts Brief 8 (Winter 2012) Not the first judge in a disability context to refer to international norms—see Wyatt v. Stickney, 344 F Supp 387, 390 n. 6 (M D Ala. 1972)(subsequent history omitted)

CRPD—Art. 14

• Limits—bans?—deprivation of liberty on the basis of disability

CRPD—Art. 19

• Right to live in the community

Other Sources

• • • • Convention Against Torture (US has ratified) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Feb. 1, 2013)— report on abuse in health-care settings Bans use of solitary confinement and restraint (Para. 63) Calls into question coercive treatment on the basis of disability (Paras. 67-69)

Torture, con’t.

• DRI argument that practices of Judge Rotenberg Center in MA amount to torture, supported by the Special Rapporteurs.

Other possibilities

• • • Accessibility (including to websites, printed text)—CRPD Art. 9) Inclusive Education (Art. 24) Access to justice (Art. 13)

Conclusion

• • Human rights principles fully consistent with US disability rights law Another tool in one’s toolbox • Contact: [email protected]

Resources

• • • • Disability Rights International (Washington, DC), http://www.disabilityrightsintl.org/ Mental Disability Advocacy Centre (Budapest, Hungary), http://www.mdac.info/en US International Council on Disabilities (USICD)(Washington, DC), http://www.usicd.org/template/index.cfm

UNEnable, http://www.un.org/disabilities/