Braille Monitor                  November 2021

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Stronger Together: How the Organized Blind Movement Benefits from the Global Advancement of the United Nations CRPD

by Gerard Quinn

Gerard QuinnFrom the Editor: Mr. Quinn is the United Nations Special Rapporteur on the Rights of Persons with Disabilities. He made his presentation before the 2021 Convention from his home in Ireland, and his perspectives on how the world looks to us for civil rights advancement is both encouraging the sobering. He reveals our potential for good and the consequences when we fail to lead in areas in which we have traditionally been pioneers.

The treaty of which he speaks was written by the United Nations Committee on the Rights of Persons with Disabilities and is properly called the Convention on the Rights of Persons with Disabilities (CRPD). Although the NFB has pressed for its passage since 2009, it has not yet been passed by the U.S. Senate. Here is what he says:

Gerard Quinn: President Riccobono, thank you for the high honor of addressing you and your colleagues today. I'm calling you from my home in the west of Ireland, with many, many links to the United States, and we always intuit that we are always stronger together as we look across the ocean. I was very moved by Reverend Frye's invocation that we should reach out and try to impact the world, and my talk very much follows in his spirit.

I’ve often said that the UN treaty without the United States is like Hamlet without the prince. They're such a natural fit. I think there's so much you could do with it and so much we could do with you being present in it. President Riccobono, nearly all the issues you mentioned in your wonderful speech resonate very strongly with the jurisprudence of the UN Disability Treaty. As Secretary Buttigieg said, people want to belong to the economy, to society, and to their culture, and we all need them to belong. Even disability treaties are an incredibly powerful instrument in leveraging change to make sure that happens.

In the brief time available, I just want to do three things, and I will not descend into legalities or niceties. First of all I want to talk a little bit about the background to the treaty. As you yourself mentioned, it's one of the most widely ratified treaties in the world. One hundred and eighty-two countries from every single corner of the world have now ratified, including your neighbor up north, Canada, and your neighbor down south, Mexico. So I want to just briefly describe what the treaty mechanism is, what kind of implementation and monitoring mechanism is available under the treaty. It's important to understand that it does not exist in isolation. It's part of a number of global mechanisms. But it's at the heart of those global mechanisms. So really, if you want to have an impact around the world, you have to be part of the CRPD, influencing all those other global mechanisms.

Secondly, and very briefly, I just want to highlight some of the substantive innovations in the treaty that are generally applicable to all persons with disabilities, and even intersectionally available to, for example, older people with disabilities, women and children, etc. And there are some provisions in the treaty that have a special relevance to citizens with visual impairments, and I'll explain momentarily.

Thirdly, I just want to anticipate the future a little bit and maybe pose the question, why join? Why ratify? What's in it for you? And I think there are some tangible benefits in it for you. And how can you use it for the benefit of others around the world?

First things first. The interesting thing about the drafting of the treaty is that there were draft versions available in the 1980s, just as you were considering drafting the Americans with Disabilities Act. In fact, Sweden and Italy produced drafts in the mid-1980s. The Swedish draft was produced by Bengt Lindqvist, a very, very famous blind lawyer in Sweden at the time. It didn't go anywhere at the time, but it set the table for what was going to happen in the next ten or fifteen years.

When we began drafting the treaty, we widely assumed—everybody assumed—it would be like the Americans with Disabilities Act, an equal opportunities treaty. But instead of being confined to the US, or the UK, or Australia, or Canada, it would be projected out onto a global level. But something really interesting happened in drafting the treaty. A lot of the disability groups were present, and part of the richness of the treaty is due to their presence during the negotiations. They said, “Hang on a minute. The reason why we need these elaborate equality protections is because you're not treating us seriously as persons.” And that's why there are some fascinating, innovative provisions on the convention on personhood, on your autonomy, on your right to be yourself, as the slogan for your organization goes, the right to live your life your way.

Of course that morphs into other things, like the right to live independently and the right to have your voice heard individually as well as collectively. Many people say, and I say, this is actually the heart of the Convention—revealing the person behind the mask, so to speak, and getting others to treat the personhood seriously.

The second interesting thing that happened is we took the equality theory embedded in the ADA and in UK legislation and Canadian legislation, and then broadened it and deepened it. I'll talk momentarily about that, because it's very important and applies throughout the Convention.

By the way, the Convention mingles or comingles civil and political rights like the right to vote, inclusive education, the right to protection from violence and exploitation, with economic, social, and cultural rights: the right to education and access to health and so forth.

Importantly to note, where this doesn't exist in a country, it doesn't necessarily force it to exist, but it helps to shape it where it does exist, to make sure that if you have an elaborate Social Security system that it genuinely supports people and does not entrap them and so forth. We could get into some niceties and some technicalities here, but I'll try to avoid that for the moment. Also very important, the US had a leadership role in this, but maybe others have now taken that leadership role. The treaty applies both to your domestic policy and to your foreign policy. That would include your development assistance programs around the world. If you can't build inclusive schools in the United States, you certainly should not be using taxpayers' dollars to build non-inclusive schools in Africa and so forth.

The EU Disability Strategy just published two months ago now has a whole section on the European Union in the world, that is to say, based on the UN Disability Treaty, helping other countries to meet standards of the UN Disability Treaty. So the European Union is in the process of becoming a preeminent champion of disability rights worldwide. Personally, I would love to see an alliance between the European Union and the United States in this regard, maybe a new transatlantic alliance.

Here is a very important note in the history of the drafting of the treaty: the World Federation of the Blind, led by Kicki Nordstrom from Sweden, and the World Federation of the Deaf, were present and very active during the drafting of the Convention, and they managed to ensure that some of the articles, for example dealing with the inclusive education took specific account of the learning needs of blind students as well as deaf students as well as deaf-blind students. They also collaborated in drafting Article Nine of the Right to Accessibility. This is not in any other UN treaty. This is specific to this particular treaty and is very important. In fact, there was a complaint already—an individual complaint to the UN treaty body on inaccessible ATM machines in Spain—and the complaint was won. It's in process under what's called an optional protocol. So if the US ratifies the treaty, it also has the option of opting into the complaints mechanism if it wants to do so, and about two-thirds of the countries that have ratified the Convention have in fact done so.

So, what are the treaty mechanisms? I think it's very important to distinguish between international-level treaty mechanisms and domestic treaty mechanisms. At the international level, there is now what's called a UN Committee on the Rights of Persons with Disabilities. What it does sounds pretty boring, but it's actually pretty important. It assesses government reports; every four years your government comes forward with a comprehensive report, and it arrives at conclusions and recommendations to the government based on that report. If your government has opted into the optional protocol, it can additionally receive complaints from individuals and groups.

Because you have not ratified the treaty, you cannot nominate somebody to sit on this body, and that's very unfortunate—I would have thought—nor do you get a chance to vote for who gets to be elected on that committee. So far, there have been some very eminent blind lawyers and other blind activists on the committee, and in fact the very first chair is a very eminent blind lawyer from Sydney in Australia, Ron McCallum. The point is the US, because it hasn't ratified, is not allowed to nominate its own member and therefore lacks influence over the direction of the committee and isn't even allowed to vote for others who are being put forward by the states themselves.

That's just one layer. Another layer is what's called a conference of states parties. This is where all 182 states that have ratified the treaty meet once a year for an extended period for global conversations on challenges and more importantly on solutions—sharing solutions with each other. Again, unfortunately, you cannot be part of that, or at least a formal part of it, unless and until you ratify. That's probably the single most important global platform for conversations on disability law and policy.

I won't belabor you with most of the other detail, but just be aware that the UN specialized agencies, for example, UNESCO (the ILO—you were mentioning issues about remuneration—the ILO is very engaged on other bodies such as the World Intellectual Property Organization) are all now influenced by the CRPD. In fact, there is a UN Disability Inclusion Strategy, only put together two years ago, exclusively driven by the UN CRPD or disability treaty. The US, of course, is a member of these specialized agencies, but the agenda is not set there. It's set by the UN Disability Treaty. Again, I think you're kind of missing out on the center of gravity in global conversations.

Also, there are annual discussions in the UN General Assembly and the UN Human Rights Council on disability issues, where other countries like Canada, New Zealand, and Mexico now take the lead. I won't go into my role, which is rather detailed, but I will say that I do put a spotlight on challenging issues and produce two reports a year. The first is going to be on war, conflicts, peace building, and disability, and the second one is actually going to be on artificial intelligence—the risks as well as some of the opportunities into the future. So the international layer is quite complex, but I think it can be crunched down into the treaty body—the confluence of states parties that meet once a year—and then the other agencies of the UN system.

Just as important, the treaty imagines that there will be a domestic institutional architecture to drive change. This is very unusual. Other treaties don't do this. The drafters of the disability treaty said, "Ha, we kind of have stuff out there in the pure ether of international law, but unless there's a way of owning it domestically, it's not actually going to drive change." That's why the treaty requires states that ratify it to have in place a clear focal point within government to drive change, a right to be consulted among civil society with government—we call this the co-production of policy into the future between power and voice, and those ideas are the input of third parties like your US Civil Rights Commission, National Council on Disability, and so forth. So the image here is a triangular image for change between power and government, voice and civil society, and the power of ideas driving imaginative blueprints for change. That's one of the key drivers for change around the world, and where it's working well, you know that that golden triangle has actually kicked in. So it's like, as it were, the vehicle for internalizing the values of the Convention.

What about some of the substantive elevations? I'll be very brief here. I mentioned personhood and the anchoring of the Convention on personhood. Let me say that that ripples out into all kinds of interesting policy domains and challenges. One of them has to apply, for example, to the future of mental health policy and the trend now that's very pronounced internationally toward non-coercive models for mental health. The World Health Organization (WHO) just two weeks ago published an amazing compendium of good practice from around the world away from traditional civil commitment ideals. That really is kind of personhood ideas coming to life in that particular domain.

I mentioned equality too, and of course, the Convention is very much beholden to an equality theory or vision. But, and here's the important but, it's broader and deeper than the equality idea, as found in the British disability discrimination legislation, in the Australian legislation, or in the American legislation. The UN treaty body has adopted what it calls a theory of inclusive equality. This resonates with what Secretary Buttigieg was saying early on. So it's not just about measuring relativities of treatment between me and somebody else. It's much deeper than that. The committee says it's based primarily on recognition of you as a person. It's based on accommodation of the difference of disability and the recognition of accumulated disadvantages from the past. It's also based on notions of a diversity of disability.

Last but not least—very interesting for us in Europe, maybe slightly less for you in the United States—it also has to do with the need to reengineer social supports to make sure that they liberate and do not entrap people into the future. That's a huge challenge for us in Europe. I can't speak to the United States.

So the personhood stuff is important, the equality stuff is important. That applies across the board to all of the substantive rights like political participation. There's an image of active citizenship, participation, and inclusion in the Convention that cuts through everything. The right to accessibility was added in Article 9, and one of the very first things the UN treaty body did was produce an extensive commentary on what Article 9 means, particularly in the context of the electronic environment. As I say, some of the complaints that have gone to the committee have dealt with this.

I'm sure you're aware of the Marrakesh Treaty in the NFB. The interesting thing to note is that the Marrakesh Treaty, which relaxes copyright in favor of blind readers, would not exist without the CRPD. The CRPD created the spur for the drafting of the Marrakesh Treaty. You in the United States have at least signed Marrakesh—I'm not sure if you ratified—but Marrakesh is an offspring of the CRPD. It's not the mothership itself; the mothership itself is actually the CRPD.

So what about the future? I'll stop here for the sake of time. We have a saying here in my country: If you're not in, you can't win. So you're not really at the heartbeat of changes internationally unless you're formally a part of the actual Convention itself. So the question you really should be asking now is, is it worth it going again back to the Senate, and if so, what arguments or strategies should be used? I'm an outsider, but I have observed your process in recent years. I think the argument used last time around for ratification didn't work. It was based on the supposition that the treaty affirms everything in US law and that the treaty helps project the ADA onto the international sphere, giving Americans the same rights abroad as at home. Well, those arguments clearly didn't work. I would personally say that the CRPD builds on and then complements existing US law. It doesn't break it; it's like the ADA second generation. It just extends its imaginative horizons. A treaty, any treaty, is an act of sovereignty. It's not a time bomb to override sovereignty, and even if there was something ugly that eventuated in the future from it, you can still exercise your sovereign rights to withdraw from the treaty in the future, although I wouldn't like to see that happen. All states enter into treaties in good faith. We call that pacta sunt servanda. It doesn't override national sovereignty; it informs it, and it can inform domestic courts. They're not obliged to follow it, but if they are persuaded by the logic, perhaps they will take it into account. Essentially, therefore the treaty allows you to formally enter a global conversation about what personhood, equality, and inclusion mean in the context of disability rights around the world. The US has a lot of value to offer, but it simply cannot join that global conversation at present.

The way I put it in an essay after the last time I spoke before the NFB was by saying that the treaty creates a new politics of disability. It sparks advocacy for change where none has previously existed in all sorts of corners of the world, and it helps widen advocacy for change at home, whether it's in my country or in your country or in Germany or in France. Thank you so much, Mr. President. I look forward to interaction.

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