Stronger Together: How the Organized Blind Movement Benefits from the Global Advancement of the United Nations CRPD; Gerard Quinn, United Nations Special Rapporteur on the Rights of Persons with Disabilities; Ireland

MARK RICCOBONO: Thank you for the PAC report, and I encourage to you hit the forward button, actually, to go to the virtual PAC table. 

Our next presenter is going to bring some world perspective to us. You know, the National Federation of the Blind tries to contribute to the understanding around the world about blindness and to the conversation. We also attempt to learn from what others are doing around the world. Our next speaker was appointed as the UN Special Rapporteur on the Rights of Persons with Disabilities by the Human Rights Council at its 45th session in October of 2020. He has a lot of credentials. So I won't have time to share them all with you. But he holds two research chairs at the Raul Wallenberg Institute on Human Rights in the University of Lund, and Leeds, and at Leeds University, excuse me. He's a graduate of Harvard Law School, and he has been quite involved with, and was a key negotiator in the development of the United Nations Convention on the Rights of Persons with Disabilities. He is not completely new to the National Federation of the Blind. We first got to know him at our Jacobus tenBroek Disability Law Symposium about a decade or so ago, and we appreciate him bringing his perspective to us, although our nation has not yet ratified the CRPD, we continue to seek what we can learn from the efforts that are happening around the world so that we might raise expectations in this nation. 
So here to present Stronger Together: How the Organized Blind Movement Benefits from the Global Advancement of the United Nations CRPD, is Gerard Quinn! 

(Song playing -- "it's all around the world and everybody it's singing la la la!") 

GERARD QUINN: President Riccobono, thank you for the 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 try to reach out and impact the world, and my remarks very much follow in his spirit. I often say that the U.N. 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 you could do with being present in it. Nearly all the issues you mentioned, President Riccobono, in your wonderful speech, resonate very strongly with the jurisprudence of the U.N. disability treaty. And as Secretary Buttigieg said, people want to belong to the economy, to society, and to their culture, and we all need them to belong. And 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, President, it's one of the most widely ratified treaties in the world. 182 countries ranging from every single corner in 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, 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. And 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? 

So, first things first. If I can get my computer to work -- okay. 

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 Benk Lenkfus, 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 10, 15 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 now, instead of con fined to the U.S., U.K., Australia, or Canada, projected out onto a global level. 
But something really interesting happened in drafting the treaty. A lot of 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 in the Convention on personhood, on your autonomy, on the right to be the self, the way the slogan of the organization goes, the way to live life your waive. There are 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 personhood seriously. 

The second interesting thing that happened is we took the equality theory embedded in the ADA and in U.K. legislation, Canadian legislation, and then broadened it and deepened it, and 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 such as the right to vote and the right to freedom from exploitation, to rights like education and access to health and so forth. Important to note, where this doesn't exist in a country, it doesn't necessarily force it to exist, but helps to shape it where it does exist, to ensure that if you have an elaborate Social Security system that genuinely does not entrap people and so forth. We could get into some technicalities and so forth here, but I'll try to avoid that. Also important, the U.S. 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. And that would include your development assistance perhaps around the world. If you can't build inclusive schools in the United States, you certainly should not be using taxpayers' dollars to build noninclusive 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 U.N. disability treaty, helping other countries to meet standards of the U.N. 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. Also important to note in the history of the drafting of the treaty, the World Federation of the Blind, led by Kiki Nordstrom of Sweden, and the World Federation of the Deaf, were present and active during the drafting, and ensured that, for example, the provisions on education took into specific account the learning needs of blind students as well as deaf students as well as deafblind students, and they also collaborated in drafting Article 9 on the right to accessibility. This is not in any other U.N. treaty. This is specific to this particular treaty, and is very important. In fact, there was a complaint already, an individual complaint to the U.N. treaty body on inaccessible ATM machines in Spain, and the complaint was won. It's in process of what's called an optional protocol. So if the U.S. ratifies the treaty, it also has the option of opting into the complaints mechanism if it wants to do so, and about 2/3 of the countries that have ratified the Convention have in fact done so. Sorry, my computer is giving me problems -- ha ha -- as usual! 

So, moving on. 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 U.N. Committee on the Rights of Persons with Disabilities. What it does sounds pretty boring, but is 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 option 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 unfortunate, I would have thought, nor do you get to vote on who gets to be elected to 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 Australia, Ron McAllen. The point is the U.S., because it has not ratified, cannot elect its own member and therefore cannot influence the committee and cannot vote for others 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 ratify the treaty meet once a year for an extended period for conversations on sharing solutions with each other. Again, unfortunately, you cannot be part of that, or at least not a formal part of it, unless or 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 U.N. specialized agencies, for example, UNESCO, the ILO -- you were mentioning issues about remuneration, the ILO is very engaged on that -- and other bodies like World Intellectual Property Organization, they're all now influenced by the CRPD. In fact, there is a U.N. Disability Inclusion Strategy only put together two years ago exclusively driven by the U.N. disability treaty. The U.S., of course, is a member of these specialized agencies, but the agenda is not set there. It's set by the U.N. disability treaty. And again, I think you're kind of missing out on the center of gravity in global conversations. 

Also, there are annual discussions in the U.N. general assembly and the U.N. 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 do say that I 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 going to be on artificial intelligence, the risks as well as some of the opportunities into the future. So the international layers 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 U.N. system. 

Just as important, the treaty imagines that there will be a domestic institutional architecture to drive change. It's very unusual. Other treaties don't do this. And the drafters of the disability treaty said, huh, 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 -- requires -- states that ratify 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 then ideas, or the input of third parties like your U.S. Civil Rights Commission, National Council on Disability, and so forth. So the idea here is a triangular image for change between government, 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 that'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 to all sorts 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. And the WHO just two weeks ago just published an amazing compendium of practice around the world away from civil commitment ideals. And 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, for example, in the British disability discrimination legislation, in the Australian legislation, or in the American legislation. The U.N. treaty body has adopted what it calls a theory of inclusivity. 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 the recognition of a diversity of disability, and 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 they liberate and don't trap people in the future. That's very important for us in Europe, I can't speak to you in 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. Also, the right to accessibility was added in  Article 9, and one of the first things the treaty body did was introduce 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. What 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. 
And what of 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 argument sort of 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, well, they obviously didn't work, but it was based on supposition that the treaty affirms everything in U.S. 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 U.S. 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 eventuate understand 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. In addition, all states enter into the treaty in good faith. We call that pacta sunt servanda. Treaties don't override sovereignty, they inform it, and courts are not bound by it, but may be persuaded to take it into account. And it would allow you to enter a global conversation about what personhood, equality, and inclusion mean in the context of disability around the world. The U.S. has a lot of value to offer, but it simply cannot join that global conversation at present. 

The way I put it, and in fact I produced an essay after the last time I spoke before the NFB, 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 France. Thank you so much, Mr. President. I look forward to interaction. 

MARK RICCOBONO: Thank you very much, Gerard. I can't imagine anybody doing a nicer job of making us feel so good and disappointed at the same time about being off the mothership. So thank you, and it was really informative in terms of keeping us grounded in why this organization, we need to revisit the CRPD conversation to see if we can again encourage the United States Senate to provide leadership on this issue so we can be informed by the conversation that's happening around the world. So thank you for your expertise and for appearing on this stage again and being a friend to the organized blind movement. Thank you and best of luck for your travels around the world.