I. Obligations
Obligations appear at two levels: article 4 sets out general obligations and each subsequent article sets out obligations in relation to specific rights.
A first question to ask is who is responsible for meeting these commitments? As with all human rights treaties, the Convention places obligations on States.
However, several articles also highlight the role of private enterprises in realizing the rights of persons with disabilities.
While it is up to States to ensure that private enterprises respect the Convention (i.e., obligations are not placed directly
on private enterprises), it is important to acknowledge the role of private enterprises and underline the need to engage this
part of society in partnerships to promote disability rights. Other human rights treaties mention the private sector as well
and the responsibility of business enterprises in relation to human rights is an area that has attracted considerable attention
in recent years. However, the Convention certainly goes further than other treaties in identifying specific areas for action
by the private sector. The private sector or private entities/enterprises are mentioned in the articles on: general obligations
(art. 4 (1) (e)); accessibility (art. 9 (2) (b)); personal mobility (art. 20 (d)); freedom of expression (art. 21 (c)); health
(art. 25 (d)); and work (art. 27 (1) (h)).
In addition to private enterprises, it is possible to identify other actors, beyond States, with responsibilities to respect
the rights of persons with disabilities. For example, article 25 refers to health professionals. Several articles refer to
support services and community services (for example, art. 12 in relation to support for exercising legal capacity and art.
19 on independent living). Article 24 refers to the employment of qualified teachers to promote inclusive education. So even
though the legal responsibility to respect the Convention lies with the State, many other actors have a role to play.
What then are the obligations on States? Here is a summary of these obligations, which are discussed in greater detail in later
modules:
-
Review existing laws and policies—to ensure that they respect the Convention and do not set out inconsistent rules and standards—and adopt new ones to ensure
that the legal and policy framework supports the Convention's implementation. Such laws could be anti-discrimination laws
and comprehensive disability laws (if they exist—it is not a requirement), but also guardianship laws, education laws, mental
health laws and so on. Secondary legislation and regulations are also covered. Policies could be national development strategies,
national disability strategies or social inclusion strategies, as well as departmental and ministerial strategies to improve
disability rights.
-
Provide funding—it is not enough simply to pass legislation. While some prohibitions on discrimination might not have financial implications,
others will require funding (e.g., making public spaces accessible for persons with disabilities). Laws and policies which
are not funded are unlikely to be fully implemented.
-
Make goods and services accessible— much of the Convention relies on access to goods and services, such as assistive technologies and health care and education.
Such services must be accessible to persons with disabilities if these persons are to enjoy their rights on an equal basis
with others. This may require disability-specific services, while at other times it may require mainstream services (e.g.,
education) to be accessible to persons with disabilities.
-
Awareness-raising—many of the barriers facing persons with disabilities are negative attitudes. Raising awareness of the rights of persons
with disabilities, as well as the capabilities of persons with disabilities, is important to reduce such negative attitudes.
-
Training—training on the Convention for professionals, such as teachers and health professionals, is important to realize many of
the rights of persons with disabilities, in particular those related to access to services. For example, teachers need to
have the knowledge necessary to support inclusive education and health professionals need to understand the shift to a social/human
rights approach so that persons with disabilities can access health services on an equal basis with others.
-
Data collection—good data are necessary to develop good laws and policies to implement the Convention. Consequently, States should undertake
research and collect data so that the situation of persons with disabilities and the barriers they face to enjoy their rights
are better understood.
-
Build capacity—in keeping with a human rights approach to disability, building the capacity of States to meet their obligations under the
Convention and that of persons with disabilities so that they can claim their rights is essential for the full implementation
of the Convention.
There are several ways to present State obligations in relation to human rights treaties. The international human rights system
is based on the identification of two broad obligations:
-
Negative obligations—the obligation to refrain from doing something or freedom from the State
-
Positive obligations—the obligation on the State to take steps to promote rights or freedom through the State
It is increasingly popular to rely on the formula “respect, protect and fulfil” to present obligations on States. This is
the formulation proposed to explain obligations here:
-
The obligation to respect—States must refrain from interfering with the enjoyment of rights;
-
The obligation to protect—States must prevent violations of rights by third parties such as private enterprises, medical professionals and so on;
-
The obligation to fulfil—States must take appropriate legislative, administrative, budgetary, judicial and other action to realize rights.
It is possible to go back to the general obligations and fit each one into one of these three categories. For example:
- Respect—refrain from any act that is inconsistent with the Convention;
- Protect—take steps to eliminate discrimination in the private sector;
- Fulfil—introduce legislation that is compatible with the Convention; take steps to achieve the progressive realization of
economic, social and cultural rights.