Constitutional law and practice regulate the various aspects of the ratification process that generally, although not always, takes place at national level prior to ratification or accession at the international level. It is relevant to note that the Convention does not indicate any specific national process that States should undertake with regard to ratification.
Overall, there are two approaches to national ratification, which are defined by the role of the legislative branch. First, in civil law countries, ratification takes place through the approval of the treaty by the legislative branch. After the vote of approval, the act of ratification is sent to the executive for its promulgation, publication and deposit with its depositary. For example, Argentina, Chile, Croatia, Ecuador, Hungary, Mali, Niger, Panama and Spain ratified the Convention through an act of parliament. Mexico ratified it through approval by one of its legislative chambers.
Second, in most countries with a common law tradition, as well as in other legal systems, ratification of the Convention can take place through an act of the executive. If parliament is involved, it is in a consultative capacity. In other words, a formal vote by parliament is not necessary. For example ratification through executive decisions took place in Bangladesh, New Zealand and Thailand.
Regardless of the differences between the two approaches, and of the specificities of national systems, these domestic processes offer important opportunities for raising awareness and promoting understanding of the treaty under consideration. Indeed, the processes leading to and following ratification can influence the next step, i.e., implementation, for instance by identifying legal and other gaps and galvanizing support.
Some States assess the benefits and challenges of ratification with national analyses. Such reports follow a review of the national legislation and policies for compliance with the Convention, and highlight issues such as the reasons and implications, in terms of obligations and costs, of becoming a party to a treaty and implementing it. National analyses accompany the proposal for ratification internally. Any pre-ratification review should be part of the process that continues in the implementation phase to review existing and proposed legislation. Ideally, the findings of the national interest analysis carried out by the Government should eventually be made public.
Similarly, States should engage in adequate consultation prior to ratification. Indeed, support for this can be found in the Convention itself. Its article 4 (3) states:
In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.
While the State is not yet bound by article 4 (3), as it has not ratified the Convention, undertaking public consultations on ratification is a good practice that could influence implementation at a later stage. Through consultation, the act of ratification may become more than a political act directed towards the international community and actually improve standards on the ground.
If consultations take place, they should take into account the full range of actors that have a role to play in ratification. Government representatives should be consulted. However, many parts of the Government have a role to play in ensuring disability rights and consultations can include different levels, such as central, provincial and municipal government. Similarly, consultations can occur across the Government, not only ministries of social affairs and health, which often have the disabilities portfolio, but also other ministries, such as education, justice, the interior or finance, that will be involved in implementing the Convention.
Persons with disabilities should have a voice in the discussions about ratification, both directly and through their representative organizations (DPOs). Such consultations should reflect the diversity of disabilities. Persons with disabilities are not a monolithic group, but comprise persons with different impairments (including psychosocial, intellectual, physical, sensory) and also different people (men and women, children with disabilities, indigenous peoples, older persons and so on). Consultations should attempt to reflect this diversity as much as possible.
The need to support the participation of organizations of persons with disabilities in consultations, including financially, should be carefully considered. States engaged in ratification processes sometimes find it difficult to ensure wider consultation owing to a lack of funds, for example, developing countries or those facing crises. In such cases, consultation processes have to make the most of scarce resources. However, consultation should nonetheless take place, not only to ensure the participation and inclusion of persons with disabilities, but also because these persons might have proposals relating to the most effective use of scarce resources to ensure the progressive realization of the Convention.
Other civil society actors, such as human rights or development NGOs, should also be consulted. If there is a national human rights institution, it should be consulted and could also have a role in undertaking research on the rights of persons with disabilities and in analysing laws and policies.
The ratification process should be inclusive and representative of society as a whole, including minority groups and political opposition, and not be guided by a political agenda. Such a genuine and inclusive process is in line with the principle of international law according to which a country's subsequent Governments are equally bound by an international treaty previously ratified. The risk is that a Government in power might exclude certain actors, such as the political opposition, so as to ensure freer action in decision-making. Yet, in the longer term, this might thwart implementation and make it unsustainable when there is a change in government.
The Australian ratification process offers a good example of the steps involved. Australia signed the Convention in March 2007 and ratified it in July 2008. The national exercise involved a comprehensive review of all Commonwealth, State and Territory legislation to ensure that Australia could comply with all the articles of the Convention. The Departments of Families, Housing, Community Services and Indigenous Affairs, and of the Attorney-General, in consultation with national DPOs, disability advisory councils and the disability legal services network, presented a report on the impact of ratification to the Government. The report identified both the benefits and the disadvantages of ratifying the Convention and its Optional Protocol; verified whether Australian laws complied with Convention obligations; described the economic, environmental, social and cultural impact of ratification; established an appropriate means of directly incorporating the Convention; and audited national laws, policies and programmes.
Preparing for ratification is not only a government-led process. Civil society can also advocate ratification. Indeed, this can be one of the most effective triggers for the Government to take action. To this end civil society and others can:
Know the facts
Educate others
Mobilize partners and allies, such as other disability groups and human rights organizations and social movements
Lobby
Follow-up
The United Nations Mine Action Service and OHCHR prepared an Advocacy Kit to help mine action centres advocate ratification of the Convention. The box below reproduces a sample letter that could be sent to relevant stakeholders to promote ratification.