New to the UN CRPD

What is the United Nations Convention on the Rights of Persons with Disabilities?

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is a legally binding international human rights treaty which addresses the rights of people with disabilities.  It was adopted on 13^th December 2006, and entered into force on 3^rd May 2008.

The CRPD created the United Nations Committee on the Rights of Persons with Disabilities.  The Committee monitors how states implement the CRPD by making observations on reports submitted by states.  The Committee can also offer guidance on how particular elements of the CRPD should be interpreted by writing ‘General Comments’.

Some states have also signed an Optional Protocol on the CRPD (OPCRPD), which allows individuals or groups to submit complaints to the CRPD Committee who believe their rights have been violated.  The Committee has already found several violations.

Why was the CRPD created?

Although earlier international human rights treaties applied to everybody, including people with disabilities, there was a sense that the specific situation of people with disabilities was invisible in these instruments (Dhanda, 2012).  For example, important human rights treaties such as the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the European Convention on Human Rights (ECHR) include specific equality provisions on many other groups who have historically been discriminated against, but do not mention disability as a protected characteristic.  To give but one example, the ECHR was signed in 1950, but it took until 2009 for the European Court of Human Rights to make its first finding of disability discrimination (Glor v Switzerland, 2009); a finding which was influenced by the CRPD.

In Beijing in the year 2000, leading national and international disability organizations met to discuss a new strategy ‘for the full participation and equality of people with disabilities’.  They felt that existing international human rights instruments had ‘yet to create a significant impact on improving the lives of people with disabilities’.  The Beijing Declaration sent out a call to action across the world to ‘strive for a legally binding international convention on the rights of all people with disabilities to full participation and equality in society.’  Following this, the Office of the High Commissioner for Human Rights initiated a comprehensive review of the treatment of disability in existing human rights instruments (conducted by Quinn and Degener, 2002).  The UN then adopted a resolution proposed by Mexico to set up an ad hoc committee to consider the case for a disability Convention; its mandate was eventually extended to the drafting of a Convention.  The negotiations of the CRPD benefited from very high levels of involvement of people with disabilities and their representative organizations; their contributions can be seen throughout the negotiations archive.  Six years after the ad hoc committee was set up, the CRPD was signed.

Who has signed and ratified the CRPD?

The CRPD received the highest number of signatures in history for a UN Convention on its opening day (UN Enable).  It is the first human rights Convention in history which has been open for signature by regional intergovernmental organizations; the European Union played an active role in the negotiations of the treaty and has signed and ratified it.

A full list of states who have signed and ratified the CRPD and OPCRPD is available online.  At the time of writing, there were 158 signatories and 145 fully ratified parties to the CRPD, whilst the Optional Protocol has 92 signatories and 80 fully ratified parties.  The UK has both signed and ratified the CRPD and OPCRPD.

States must submit a report within two years of ratifying the CRPD, and every four years thereafter, ‘on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard’ (Article 35).  The CRPD Committee then considers these reports and may request further information from the state (a ‘list of issues’), before offering its concluding observations.  Civil society organizations can submit ‘shadow reports’ to the CRPD Committee, to help guide the Committee in the questions it poses to states.

Why is the CRPD sometimes described as a ‘paradigm shift’ in approach to disability?

The CRPD is often described as embodying a ‘paradigm shift’ in approach to disability.  There are at least two important strands to this shift of approach.

Firstly, the CRPD is based on an approach to disability known as the ‘social model of disability’, which identifies disability as arising from the interaction of an individual’s ‘impairment’ with wider social and environmental barriers (see the definition of disability in Article 1 CRPD).  As Thomas Hammarberg, the former Council of Europe Commissioner for Human Rights, puts it:

From viewing disability as a personal problem that needs to be cured (the medical model), we have come to see the source of the problem: the society’s attitude towards persons with disabilities. This means that we have to act collectively as a society in order to remove the barriers that hinder persons with disabilities from living among us and contributing to our society, and to fight against their isolation in institutions or in the back-rooms of family homes.

The CRPD also represents a shift from a welfare or charity based approach to disability to a rights and equality based approach.  Hammarberg writes:

In short, persons with disabilities used to be considered as victims and objects of pity, charity, institutional care, medical rehabilitation or welfare benefits. This view has been replaced by one that regards them as active subjects with equal rights, capable of taking their own decisions and contributing to our societies.

What is ‘legal capacity’ and what does the CRPD say about it?

Legal capacity is hard to define precisely, but (roughly speaking) it means the ability to bear rights and duties under law and exercise legal agency.  For example, entering into a contract is an exercise of legal capacity, and so is giving or refusing consent to medical treatment.  Legal capacity is connected with lots of other rights contained within the CRPD, because it is intimately connected to a person’s right to make legally recognised decisions about their life.  For example, it is connected with rights to give or refuse informed consent to medical treatment under the right to health, or to choose where and with whom one lives under the right to independent living.  Legal capacity is also connected to access to justice, as both legal agency and effective access to justice are pre-requisites to vindicating one’s rights through litigation.

Legal capacity is different from ‘mental capacity’, which is an individual’s purported ability to make decisions.  Currently, most national legal instruments say that people should only have legal capacity if they also have mental capacity.  Article 12(2) CRPD says that ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’  The CRPD Committee has written a General Comment setting out its interpretation of Article 12.  This General Comment is critical of approaches which say that people should only have legal capacity if they have mental capacity.  The Committee says that ‘perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity’.  The Committee says that these approaches are discriminatorily applied to people with disabilities, and it is sceptical about claims that ‘mental capacity’ is ‘an objective, scientific and naturally occurring phenomenon’.  It emphasises that ‘Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.’  However, no state has as yet taken the step to totally disconnect legal capacity and mental capacity.

Instead of limiting people’s legal capacity and imposing ‘substitute decisions’ on them in their best interests, the CRPD Committee say that people with disabilities should be offered the support they need in exercising their legal capacity.  This is derived from Article 12(3) CRPD, which says that ‘States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’.  Article 12(4) says that measures relating to the exercise of legal capacity must have appropriate safeguards to ensure that they respect the rights, will and preferences of the person, and are free from undue influence and conflicts of interest.  Several states do have systems which – to a greater or lesser degree – recognise supported decision making; some of these are listed on the resources page.

Both ‘support’ and ‘substitute decision making’ are terms of art which have very specific definitions within the General Comment and elsewhere in the wider literature on the CRPD.  Those who are new to legal capacity under the CRPD should read the General Comment very carefully indeed before jumping to any conclusions about what ‘support’ and ‘substitute decision making’ means.  A common thread throughout the ‘support paradigm’ approach under the CRPD is an emphasis on the person’s will and preferences.  Support cannot be imposed against a person’s will and preferences.  Sometimes, where a person’s communication cannot be understood by others, the General Comment says that supporters must try to form a best interpretation of a person’s will and preferences.  Substitute decisions are defined (in part) as situations where a decision maker can be imposed against a person’s will, or where decision makers are bound to give effect to ‘objective best interests’ rather than a best interpretation of a person’s will and preferences.

Impact of the CRPD

The CRPD has already had a significant impact, and is likely to continue to do so.  On the Resources page you can read about how it has influenced the work of intergovernmental organisations such as the Council of Europe and the European Union, how it has influenced judgments by the European Court of Human Rights, the European Courts of Justice and domestic courts in the UK.  Article 12 CRPD has spawned a large and growing literature on legal capacity, support for legal capacity (including supported decision making) and reform of mental health and guardianship laws.  Around the world, many states are undertaking reviews of their laws to see whether they comply with the CRPD and several states have set up dedicated inquiries or initiated legislative reforms to better reflect the requirements of Article 12.