Mauritius reservations to the CRPD and its impact on rights of persons with disabilities

Reference: http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-15&chapter=4&lang=en#EndDec

It was recently I had an opportunity to visit Mauritius and interact with the warm people there. My interaction was mostly with people with disabilities ands their organizations. There struggles and challenges seemed to be the same as ours and their advocacy movement had familiar traits. I for one felt very at home and one with them.

It was during our discussions while preparing a stakeholders report from the Universal Periodic Review of Mauritius did we realise that Mauritius while ratifying the convention had three reservations. The more I think of these reservations the more amazed I get by how the State could ratify on one side and make these reservations they did on the other sides. The reservations seem to go against the principles of the convention. I cannot help but express myself aloud my opinion of these reservations on people with disabilities in Mauritius with a Disclaimer that I am not an expert in human right law and the expression is solely my thoughts.

Reservation 1

At the time when the State signed the convention in 2007 put a reservation on Article 11 Situations of risks and Humanitarian Emergencies. The state said that "The Government of the Republic of Mauritius (…) does not consider itself bound to take measures specified in article 11 unless permitted by domestic legislation expressly providing for the taking of such measures."

What this reservation seems to imply is that the State will not take any measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters unless their domestic law specially suggests that they must provide them protection and safety to persons with disabilities.  So would this on ground mean that at the time of an emergency the State will protect all other people except persons with disabilities?  More over with this reservation there is an implication on Article 9 1(b) that talks about removing barriers to make emergency services accessible.

Reservation 2

For accessibility they say -  “The Republic of Mauritius declares that it shall not for the time being take any of the measures provided for in Articles 9.2 (d) and (e) in view of their heavy financial implication.”

Accessibility for all persons with disabilities is a pre-requisite for their inclusion. Without making provision for accessibility realization of a number of articles in the convention including living independently, education, employment, sports and culture, personal mobility, access to justice etc. is not possible. Accessibility is one of the cross cutting articles and is also one of the general principles; hence a reservation on any aspect of accessibility will effect most other articles.

Article 9 2(d) talks about making public signage available in public places available in braille and in easy to read formats. And article 9 2(e) talks about availability of live assistance and intermediaries such as sign language interpreters, scribes, and readers etc. to make facilities more accessible.

These reservations create discrimination between the disability constituencies as signage in Braille is largely used by blind persons and easy to read formats is most required for persons with intellectual disabilities.  Also while live assistance and intermediaries may required by any person with disabilities, but they are very much required for Deaf persons, blind persons and deafblind persons to enable them to have access to information and be able to communicate effectively.

Reservations to these two articles would have an adverse effect on the implementation of Article 21 of the convention that apart from other things talks about recognition and promotion of sign language and braille to enable all persons with disabilities to have freedom of expression and opinion, and access to information.

Additionally “heavy financial implication” as a reason for these reservations seems unfair considering that article 4.2 of the convention requires the state to a use to maximum of its available resources to progressively achieve full realization of economic social and cultural rights and without accessibility these rights cannot be achieved.  Considering that implementation has to be achieved progressively and not be achieved overnight then why have the reservations at all.

Reservation 3

With regard Education, they have a reservation to Article 24.2 (b), the Republic of Mauritius has a policy of inclusive education which is being implemented incrementally alongside special education.”

In discussion the DPO’s expressed that while education is free for all children but for children with disabilities since they are admitted only to special schools run by NGO’s, they were required to pay some amount towards their education for books, special aids etc. Moreover since few communities have special schools there is an additional transport costs that parents of children with disabilities have to incur. This transport costs are high as the bus company charged for the entire year including the holidays.

Children with disabilities having to pay for what is free for other children is discriminatory. Moreover inclusive education is not being incrementally provided as claimed by the state and how can it be if there is a reservation to Article 9.2(e). For inclusion in schools there is a definite need for live assistance and intermediary services.

Having put a reservation on the article 24.2(4) that says “Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;” the State seems to have comfortably abstained from its duty to provide inclusive education. Special education is highly prevalent and that too not available in the child’s community. Moreover special education is of poor quality and costs money to children with disabilities. It seems difficult that this situation will change in the near future as by making this reservation the state seems to have boldly stated their plan to continue with special education and discriminatory practices.

The first step towards inclusion must be for the State to not have such reservations. These reservations make their intent clear hence it is important for the DPO’s to advocate and have these reservations taken away thereby, taking a step closer to progressively achieving full inclusion of all persons with disabilities.

The Universal Periodic Review and Disability– an Indian experience

Introductions

The Universal Periodic Review (UPR) is a new and unique mechanism of the United Nations, which was created in March 2006.   Currently, no other universal mechanism of this kind exists. The UPR is an automatic process of peer reviews the human rights practices of all 192 UN member states in the world, once every four years. The UPR is a significant innovation as it is is based on equal treatment for all countries. 

                                                                    

The UPR is a State-driven process under the Human Rights Council that provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations. There are three reports that are prepared and made available on the website of Office of High Commissioner of Human Rights (OHCHR) for each State before the their UPR session namely:

1.    The report prepared and submitted by the State

2.    The Stakeholders report – a compilation of several reports received by the OHCHR from various national NGO’s and the NHRC

3.    A UN report - compiled by the OHCHR based on information contained in the reports of treaty bodies, special procedures, and other relevant official UN documents.

My Experience of engaging in the process

My experience of the UPR began when I attended a meeting organized by the Working Group on Human Rights (WGHR) who were in the process of compiling a stakeholder report and therefore were consulting with different stakeholders. It was my first experience of working with a group that represented stakeholders from varying human rights organisations such as women, children, LGBT, Dalits and many others.

My biggest realization from attending this consultation was that everybody was talking about their issues and in spite of disability being such a cross cutting issue it is alien for everybody. This is to say the women’s organisations are not talking of disabled women, children’s organisations are not talking about disabled children and so on. Therefore we need to be there to represent our issues ourselves. Members of the National Disability Network (NDN) were present in all WGHR consultations yet their final report included nothing on disabled. I believe it was so because it was the first time for all of us and with regular interaction I am sure things would change.

Following this were the regional and national consultations orgaised by the National Human Rights Commission (NHRC) for the preparation of their report. Here again no body understood disability issues and in spite of participation of disabled persons and DPO’s in all consultations their report had negligible mention of disability issues.

The National Disability Network was keen to make a strong presentation on disability and therefore decided to draft our own stakeholders report. With inputs from over 20 national DPO’s the NDN prepared a report focusing on disability issues. It was with great delight that we noticed an inclusion of one recommendation from the NDN report. Though only one recommendation was taken into the main stakeholders report but it represented the recognition of a disability organizations network for the first time.

With the support of the International Disability Alliance, I got an opportunity to meet with persons working on human rights and disability issues as a representative of NDN. I met with five missions in Geneva namely – Denmark, Sweden, Austria, Maldives and Canada. It was in these meeting that I gained clarity of the process and how it works. I also realized that the three reports though important yet had limited function and the actual advocacy began a month before the actual UPR session was to happen. How it works is that the missions in Geneva and elsewhere sends recommendations to their home office, who finalizes them based on diplomatic relations with States being reviewed and the thrust areas of the country preparing recommendation. These recommendations need not always be dependent on the three reports.

India is going to have its second UPR in the 13^th session in May 2012. The country will be reviewed on how it has progressed on recommendations made during the first cycle additionally there will be an opportunity for other States to make new recommendations. Each country’s UPR session is for three hours, which is podcasted live. Every State will have not more than a minute to make their points and therefore the recommendations they make have to be very crisp.

During my meetings, I did get a confirmation from the Austrian and the Maldives missions that they would make recommendations related to disability to India at the upcoming UPR. This would be an achievement from the last UPR where India had zero recommendations pertaining to disability. There is further opportunity for getting more recommendations by meeting various missions in Delhi and presenting our issues to them.

Main leanings from my participating in the UPR process

1.    UPR is a big and the only one of its kind international advocacy opportunity for the disability sector to highlight our issues and make them heard by our government especially in a scenario where the UNCRPD Treaty body would review India several years after our State report is submitted owing to their work backlog. Further the UPR recommendations on disability will be fed into the CRPD treaty body report.

2.    Regular and constant networking with other human rights organisations is crucial for us to ensure integration of our issues and getting more support and partners to have our concerns heard.

3.    Our preparation for the UPR has to begin well in advance by sending in the stakeholders report before the submission deadline and then advocating with various missions at least two weeks before the actual session.

4.    We need to provide specific, crisp and concrete recommendations to the missions that are as cross cutting as possible. Related background material on the recommendations would make acceptance of our recommendation easier and better.

5.    Different missions must be provided with different recommendations, as it would be an opportunity lost if all States make the same recommendation to country being reviewed.

6.    Most importantly it is a process that gives us an opportunity to unite and review our specific matters together. It requires us to recognise each other’s issues and work on them collectively as an individuals voice has no place in the process.
     

Living Independently and being included in the community

Living Independently and being included in the community

 In my first reading of the Rights of Persons with Disabilities Bill 2012, I was very glad to see it being included under the heading ‘Right to Live in the Community’ the words used in this section are very similar to what the CRPD says making it even better. Until yesterday when I was sitting and reading the Bill along with colleagues when we together looked at it trying to understand it more deeply and understand the changes it would bring to lives of disabled people.

The Bill recognizes the right of all persons with disabilities shall have the right to live in the community and have choices equal to others. I am assuming the choices means choices of places and living arrangements they can live in, but from the Bill it is not clear so as a non legal person I am not sure how the courts would interpret these choices as.

The bill puts a duty on the State to ensure that persons with disabilities are not forced to live in a particular arrangement; that the persons with disabilities must have access to community support services; and community services and facilities must be available to persons with disabilities. All these are very much needed  and must be provided, but there are some serious concerns looming in my mind that I would like to share. I am not a lawyer and hence not sure if they are legitimate.

As I see the Article 19 of the CRPD in the Indian context there seems to be a wide difference in what it means in urban and rural India. While in the urban areas it may for some persons with disabilities mean living with their family yet being able to exercise their autonomy while for some it may mean living outside their family setup with the support they require. I the rural setup where a lot of times there is a struggle to meet the bare minimum basic requirement, where rights have little meaning, for a disabled person it can often mean just being allowed to exist within their family setups. Considering 70% Indian population is in rural areas, it will be a pity if this extremely important section does not address their needs most explicitly and bring a positive change in their lives.

Right to live in the community and have choices equal to others

Having Access to an accessible home or shelter is one of the basic requirements to fulfil Article 19. That is the only way to provide those ‘choices’ the Bill promises in real terms. When I see this in the Indian context, I would not hesitate to say that we are far from having ‘choices equal to others’ but that doesn’t mean that we would never get their. Appropriate steps by the government in the right direction can definitely get us their someday.

 But today when I see the situation the basic need of accessible shelter is often denied to persons with disabilities. In Delhi I know of countless persons with disabilities who live in homes that are inaccessible and are often unable to even step out of homes living on upper floors without a lift. From my recent experience with home modifications for persons with disabilities in rural areas, it came as a surprise to me when parents and joint family members refused to allow modifications to be made to their house so that the resident with disabilities could have access just till the toilet and out of the house. They refused for modifications even if they were not going to bare the cost of modifications.

Homes are not public buildings hence not covered by the Bill. It is the parents or the family not agreeing to either shift to an accessible accommodation or make modifications; so what is the recourse for the persons with disabilities or for DPO’s  can take to enable these people with disabilities who are jailed in their own homes to realise their human rights?

·      Should the State not protect this basic right of the all persons with disabilities to have access to an accessible shelter/home even if it means ensuring that parents/families provide accessible living spaces?

·      Should the State not provide support to such families that need to shift or make modifications?

·      Should not all new public housing projects by default be universally designed?

·      Should not the right to rent accommodation by a persons with disabilities be protected and should not the persons with disabilities by allowed by the property owner to make reversible adaptations on their own cost?

These are just some questions that are in my mind based on my limited experience, I confess I have no idea of what Right to live in the community and have choices equal to others even mean in the context of persons with psychosocial disabilities and also Intellectual disabilities where being institutionalized. I am more cautioned in light of the probability that the Metal Health Care Act may be tabled for discussion in the winter session in spite of all our collective advocacy against it.

Access to community support services

It is good to see that the State has recognized the importance of community support services such as personal attendants to enable persons with disabilities to live independently and participate in the community. Again seeing it from an Indian context the way they are provided in rural and urban areas may greatly differ and would require a lot of debate and understanding of what are the community support services required for persons with different disabilities and what may be the mechanism to provide it based in the geographic and socio-economic backgrounds. Of course this can be postponed till the Bill becomes and act.

My thoughts right now are around whether ensuring access to community support services can be interpreted as State also providing financial support to those who may be eligible to avail of this community support and Subsidizing the cost of community support services?

Community services and facilities

The bill says “making community services and facilities for the general population available on an equal basis to persons with disabilities”

Again I am very happy that the State has recognized the importance of this aspect in being able to live independently but I am a little alerted by the use of the word ‘available’ and not ‘accessible’. In my opinion the two are very different and can take it from a right based to a medical model.

I am also concerned that there is a definition of services (which is very urban centric if I may say so) but there is no definition provided of facilities.

Again my concerns are around urban and rural differences and the need to ensure that clean drinking water points, sanitation even if it is shared and village roads, panchayat meeting places, local market, ration shop etc. must get adequate attention and be included as part of community services and facilities.

Lastly in the entire section in the bill why is the concept of ‘Living Independently’ been completely eliminated? As a layperson I am unable to comprehend the implications of it but as a disabled person I value the concept and would like it to be provided in the Act.