LOYOLA OF LOS ANGELES

INTERNATIONAL AND COMPARATIVE

LAW REVIEW

Volume 33

2010–2011

BOARD OF EDITORS

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LOYOLA LAW SCHOOL LOS ANGELES

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THE ADMINISTRATION

DAVID W. BURCHAM, B.A., M.A., J.D.

President, Loyola Marymount University and Professor of Law

VICTOR J. GOLD, B.A., J.D.

Fritz B. Burns Dean and Professor of Law; Senior Vice President, Loyola Marymount University

DEBRA J. MARTIN, B.S.

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SEAN M. SCOTT, B.A., J.D.

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MICHAEL E. WATERSTONE, B.A., J.D.

Associate Dean for Research and Academic Centers, Professor of Law and J. Howard Ziemann Fellow

JEAN BOYLAN, B.S., J.D.

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JANNELL D. ROBERTS, B.A., M.A.

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GRAHAM SHERR, B.A., J.D.

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KENNETH J. OTT, B.A., M.F.A.

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CHRISTIAN W. BUTZEN, B.A.

Registrar

THE FACULTY OF LAW

ELLEN P. APRILL, B.A., M.A., C.PHIL., J.D.

John E. Anderson Professor in Tax Law

CINDY ARCHER, B.A., J.D.

Clinical Professor of Law

JEFFERY ATIK, A.B., J.D., PH.D.

Professor of Law and Sayre MacNeil Fellow

SUSAN SMITH BAKHSHIAN, B.S., J.D.

Clinical Professor of Law

SARAH R. BENSINGER, B.A., M.A., J.D.

Clinical Professor of Law

ROBERT W. BENSON, A.B., J.D.

Professor Emeritus

CARLOS BERDEJO, B.A., J.D., PH.D.

Associate Professor of Law

LINDA S. BERES, B.S., M.S., J.D.

Professor of Law

BARBARA A. BLANCO, B.A., J.D.

Clinical Professor of Law and Faculty Clinical Director

JEAN BOYLAN, B.S., J.D.

Associate Dean for Clinical and Experiential Programs and Clinical Professor of Law

ROBERT D. BRAIN, B.S., M.S., J.D.

Clinical Professor of Law

SAMANTHA BUCKINGHAM, B.A., J.D.

Associate Clinical Professor of Law

SANDE L. BUHAI, B.A., J.D.

Clinical Professor of Law and Director of the Public Interest Law Department

AARON H. CAPLAN, B.A., J.D.

Associate Professor of Law

ANDERS B. CHRISTIANSEN, B.A., J.D.

Visiting Assistant Professor of Law in Taxation

BRIETTA R. CLARK, B.A., J.D.

Professor of Law

WILLIAM G. COSKRAN, B.S., J.D.

Professor Emeritus

JAN C. COSTELLO, B.A., M.A., J.D.

Professor of Law

DONALD W. COWEN, A.B., LL.B., LL.M.

Professor Emeritus

GARRETT K. CRAIG, B.A., J.D.

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MARY B. CULBERT, B.S., J.D.

Clinical Professor of Law and Director of the Center For Conflict Resolution

MARY F. DANT, B.A., J.D.

Clinical Professor of Law

F. JAY DOUGHERTY, B.A., J.D.

Professor of Law

AIMEE E. DUDOVITZ, B.A., J.D.

Associate Clinical Professor of Law

ROGER W. FINDLEY, A.B., J.D.

Professor Emeritus

JUDY A. FONDA, B.A., J.D.

Clinical Professor of Law

EDITH Z. FRIEDLER, J.D.

Professor Emeritus

GEORGE C. GARBESI, B.S., LL.B., LL.M., J.S.D.

Professor Emeritus

DAVID W. GLAZIER, B.A., M.A., J.D.

Professor of Law

VICTOR J. GOLD, B.A., J.D.

Fritz B. Burns Dean and Professor of Law; Senior Vice President, Loyola Marymount University

CHARLOTTE GOLDBERG, B.A., J.D.

Professor of Law

STANLEY A. GOLDMAN, B.A., J.D.

Professor of Law and Director of the Center for the Study of Law and Genocide

SIMONA GROSSI, M.A. (L.U.I.S.S. UNIVERSITY), LL.M.

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MICHAEL D. GUTTENTAG, A.B., M.B.A., J.D.

Professor of Law

RICHARD L. HASEN, B.A., M.A., J.D., PH.D.

William H. Hannon Distinguished Professor of Law

CHRISTOPHER C. HAWTHORNE, A.B., J.D.

Clinical Professor of Law

PAUL T. HAYDEN, B.A., J.D.

Professor of Law and Jacob J. Becker Fellow

DAVID HORTON, B.A., J.D.

Associate Professor of Law

BRYAN D. HULL, B.A., J.D.

Professor of Law

ALLAN IDES, B.A., M.A., J.D.

Christopher N. May Professor of Law

JENNIFER S. KAMITA, B.S., J.D.

Clinical Professor of Law and Director of Academic Support

GIDEON KANNER, B.M.E., J.D.

Professor Emeritus

KATHLEEN C. KIM, B.A., J.D.

Associate Professor of Law

JENNIFER M. KOWAL, B.S., J.D.

Clinical Professor of Law and Director of the Tax LL.M. Program

LARY LAWRENCE, B.A., J.D.

Harriet L. Bradley Professor in Contract Law

DANIEL E. LAZAROFF, B.A., J.D.

Leonard E. Cohen Professor in Law and Economics and Director of the Sports Law Institute

LAURIE L. LEVENSON, A.B., J.D.

David W. Burcham Professor in Ethical Advocacy and Director of the Center for Ethical Advocacy

JUSTIN M. LEVITT, B.A., J.D., M.P.A.

Associate Professor of Law

JOJO C. LIU, A.B., J.D.

Clinical Professor of Law

HON. FREDERICK J. LOWER, JR., B.S., J.D.

Professor and Dean Emeritus

KARL M. MANHEIM, B.S., J.D., LL.M.

Professor of Law

DANIEL W. MARTIN, B.A., M.L.S., J.D.

Professor of Law and Director of the William M. Rains Law Library

CHRISTOPHER N. MAY, A.B., LL.B.

Professor Emeritus

THERESE H. MAYNARD, B.A., J.D.

Professor of Law and Leo J. O’Brien Fellow

JOHN T. MCDERMOTT, A.B., J.D.

Professor of Law

GERALD T. MCLAUGHLIN, A.B., LL.B.

Professor and Dean Emeritus

YXTA MAYA MURRAY, B.A., J.D.

Professor of Law

ALEXANDRA NATAPOFF, B.A., J.D.

Professor of Law

DOUGLAS NEJAIME, B.A., J.D.

Associate Professor of Law

JOHN T. NOCKLEBY, B.A., J.D.

Professor of Law and Director of the Civil Justice Program

MAUREEN T. PACHECO, B.A., J.D.

Associate Clinical Professor of Law and Assistant Director of the Center for Juvenile Law and Policy

PAULA D. PEARLMAN, B.A., J.D.

Visiting Associate Professor of Law and Executive Director of the Disability Rights Legal Center

LEE PETHERBRIDGE, B.S., M.A., PH.D., J.D.

Professor of Law

SAMUEL H. PILLSBURY, A.B., J.D.

Professor of Law and William M. Rains Fellow

SUSAN POEHLS, B.A., J.D.

William C. Hobbs Clinical Professor of Law and Director of Trial Advocacy

KATHERINE T. PRATT, B.A., J.D., LL.M.

Professor of Law

FLORRIE YOUNG ROBERTS, B.A., J.D.

Professor of Law

CESARE P.R. ROMANO, M.A., D.E.S. (UNIVERSITY OF GENEVA), LL.M., PH.D.

Professor of Law and Director of the Masters of Law Program in American Law and International Legal Practice and W. Joseph Ford Fellow

GERALD P. ROSEN, A.B., J.D.

Professor Emeritus

JENNIFER E. ROTHMAN, A.B., M.F.A., J.D.

Professor of Law and Joseph Scott Fellow

DAN S. SCHECHTER, B.A., J.D.

Professor of Law

SEAN M. SCOTT, B.A., J.D.

Associate Dean for Faculty and Professor of Law

DANIEL P. SELMI, B.A., J.D., M.P.A.

Fritz B. Burns Professor in Real Property

THEODORE P. SETO, B.A., J.D.

Professor of Law and William M. Rains Fellow

ARNOLD I. SIEGEL, B.A., J.D.

Clinical Professor of Law and Director of Legal Writing and Ethical Lawyering Programs

JOSEPH V. SLISKOVICH, B.A., J.D., LL.M.

Professor of Law

CLEMENCE M. SMITH, A.B., LL.B.

Professor Emeritus

MICHAEL J. SMITH, B.A., J.D.

Associate Clinical Professor of Law

DANIEL L. STEWART, B.A., J.D., M.LITT., PH.D.

Professor Emeritus

MARCY STRAUSS, B.S., J.D.

Professor of Law

PETER M. TIERSMA, B.A., PH.D., J.D.

Hon. William Matthew Byrne, Jr. Professor of Law and Director of International Programs

KATHERINE A. TRISOLINI, B.A., M.A., J.D.

Associate Professor of Law

DAVID C. TUNICK, B.A., J.D.

Professor of Law

GEORGENE M. VAIRO, B.A., M.ED., J.D.

Professor of Law and William M. Rains Fellow

MICHAEL E. WATERSTONE, B.A., J.D.

Associate Dean for Research and Academic Centers, Professor of Law and J. Howard Ziemann Fellow

ANNE E. WELLS, B.A., J.D.

Associate Clinical Professor of Law

KIMBERLY WEST-FAULCON, B.A., J.D.

Professor of Law

GARY C. WILLIAMS, B.A., J.D.

Johnnie L. Cochran, Jr. Professor in Civil Rights

LAUREN E. WILLIS, B.A., J.D.

Professor of Law

MICHAEL E. WOLFSON, B.A., M.S.E., J.D.

Professor Emeritus

SCOTT E. WOOD, B.A., M.A., J.D.

Clinical Professor of Law

CYN YAMASHIRO, B.A., J.D.

Clinical Professor of Law and Executive Director of the Center for Juvenile Law and Policy

HARRY N. ZAVOS, B.A., PH.D., J.D.

Professor Emeritus

ADJUNCT FACULTY

RABBI JEFFREY D. ADLERSTEIN

EDUARDO A. ANGELES

JEFFREY ATKIN

MICHAEL BAZYLER

JACK BEARD

MICHAEL J. BERGER

RONALD L. BLANC

ELIZABETH BLUESTEIN

DAVID S. BOYCE

CASEY BOYLE

DAVID BRANDON

MARC E. BROWN

ROBERT BUCH

DANIEL J. BUCKLEY

DAVID BURCH

EDWARD M. BURGH

MARK BURNETT

SARA CAMPOS

JOHN CARAGOZIAN

STEVE CERVERIS

JOSEPH CHARNEY

ROXANNE CHRIST

M. ERIK CLARK

KATIE CODON

JERILYN COHEN

DANIELLE COLON

HON. DAVID J. COWAN

JEFFREY DEFRANCISCO

REBECCA DELFINO

ERICA DEUTSCH

STUART B. ESNER

VINCE FARHAT

GEORGE FATHEREE

DAVID B. FISCHER

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TRACEY FREED

RICHARD C. FUNG

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ROBIN C. GILDEN

JAMES W. GILLIAM

DAVID F. GLASSMAN

THERESA E. GLENN

STEVE GOLDSTEIN

JOSEPH GOODMAN

JAMES M. HARRIS

HON. REX HEESEMAN

THOMAS W. HENNING

JAMON R. HICKS

MARIELENA HINCAPIE

BENJAMIN HOFILENA

SANFORD HOLO

JOHN HORN

GUY IVERSEN

MAUREEN G. JOHNSON

PERLETTE M. JURA

ROBERT A. KAHN

SEAN K. KENNEDY

DAVID KESSELMAN

DEAN J. KITCHENS

MARY ELIZABETH KORS

TANNAZ KOUHPAINEZHAD

MIRIAM KRINSKY

MOSHE J. KUSHMAN

BABAK LALEZARI

ALLEN LANSTRA

MICHAEL LARKIN

ALEXANDER LEE

DAVID S. LESSOFF

JESSICA LEVINSON

PETER LEVITAN

LEONARD LEVY

GRAHAM LIPPSMITH

KATHERINE LYONS

KEVIN MASUDA

PAULA M. MITCHELL

ROBERT MORROW

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MICHAEL J. NIBORSKI

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SHAWNA PARKS

NICOLE M. PEREZ

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NORA PRECIADO

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CRISTIAN M. RAMORINO

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JOE WOHRLE

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LOYOLA OF LOS ANGELES

INTERNATIONAL AND  COMPARATIVE

LAW REVIEW

Volume 33

Fall 2010

Number 1

TABLE OF CONTENTS

SYMPOSIUM ISSUE

Foreword: The Significance of the United Nations Convention on the Rights of Persons with Disabilities

Michael Waterstone

China and Disability Rights

Michael Ashley Stein

Shared Understanding or Consensus-Masked Disagreement? The Anti-Torture Framework in the Convention on the Rights of Persons with Disabilities

Janet E. Lord

Women with Disabilities: The Forgotten Peace Builders

Stephanie Ortoleva

Legal Regulations Relating to the Passive and Active Legal Capacity of Persons with Intellectual and Psychosocial Disabilities in Light of the Convention on the Rights of Persons with Disabilities and the Impending Reform of the Hungarian Civil Code

István Hoffman & György Könczei

Future of Disability Law in Japan: Employment and Accommodation

Jun Nakagawa & Peter Blanck

Foreword: The Significance of the United Nations Convention on the Rights of Persons with Disabilities

MICHAEL WATERSTONE[*]

This is an exciting and unique moment for disability law and policy worldwide. To be sure, the challenges faced globally by people with disabilities are sobering. Even without a generally agreed upon measure of what it means to have a “disability,” there is some consensus that persons with disabilities account for ten percent of the world’s population, yet comprise twenty percent of those living in poverty.[1] About eighty percent of these individuals with disabilities live in developing countries and face exclusion and economic and social deprivation.[2] Only two percent of children with disabilities in developing countries receive a formal education, and one-third of all primary school age children who are not in school have a disability.[3] A recent report by the World Bank and United Nations estimates that over one billion people experience disability.[4]

Despite arguably being the world’s largest minority group, international human rights law has not paid sufficient attention to people with disabilities. Before the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), none of the preceding seven legally enforceable United Nations human rights treatises explicitly protected people with disabilities. And although “soft laws,” such as the Standard Rules on the Equalization of Opportunities for Persons with Disabilities,[5] aim to provide human rights protections for people with disabilities, other human rights initiatives, such as the United Nations Millennium Development Goals, neither reference disability nor include it in their implementation.[6]

Seeking to fill this void, in December 2001, the United Nations established an ad hoc committee to consider enacting a human rights instrument with disability as its focus. From 2002 to 2006, the Convention was negotiated during eight sessions of the Ad Hoc Committee of the General Assembly. In December 2006, the Convention and its Optional Protocol were adopted, making it the fastest negotiated human rights treaty in UN history.[7] There are currently 153 signatories to the Convention (with 105 countries having ratified) and ninety signatories to the Optional Protocol (with sixty-three countries having ratified).[8] On its opening day, this convention had the highest number of signatories of any other opening day of a UN convention in history,[9] showing a worldwide need for a convention of this nature.

As the first comprehensive human rights treaty of the twenty-first century,[10] and the first human rights instrument specifically referencing people with disabilities, the UNCRPD reflects a monumental shift in attitudes toward disability. It formalizes a move away from treating people with disabilities through a medical lens and as objects of pity. Rather, the Convention envisions people with disabilities as full citizens seeking to make their own decisions about their lives. As befitting such an instrument, people with disabilities were actively involved with the negotiations on the Convention, proceeding under the phrase “Nothing about us without us.”[11]

Policymakers and advocates are now beginning the important work of implementing and enforcing the UNCRPD. This is occurring all over the globe, and part of the challenge is documenting innovation occurring in one location so that it can be replicated, in culturally appropriate ways, in others.[12] The obstacles are daunting: the UNCRPD is an expansive document; as a holistic human rights treaty, it covers the full spectrum of life activities of people with disabilities, including rights involving education, employment, legal capacity, living independently, personal mobility, and habilitation and rehabilitation, amongst others.[13] Yet, as the UN and World Bank have found, people with disabilities have generally poorer health, lower education achievements, fewer economic opportunities, and higher rates of poverty than people without disabilities. This is largely due to the lack of services available to them and the many obstacles they face in their everyday lives.[14] The UNCRPD will not in and of itself create change; that only comes through the hard, often State by State level, work of implementation and enforcement.

At the same time, academics have begun the process of deconstructing the Convention and situating it within the universe of human rights protections. Important early contributions have included conceptualizing the UNCRPD as establishing “Disability Human Rights,” which combines components of the social model of disability, the human right to development, and a capabilities approach.[15] Other work has assessed the participatory justice elements of the UNCRPD,[16] an important background principle illuminating American disability civil rights law.[17] Finally, other academics have offered assessments of the potential of international law generally, and the UNCRPD in particular, in creating change on the ground in the lives of people with disabilities.[18]

With this background, Loyola Law School hosted a symposium entitled “The Significance of the United Nations Convention on the Rights of Persons with Disabilities” on March 19, 2010. We were able to bring together a unique collection of participants from all over the world. We were fortunate to have influential academics, key policymakers, individuals who were active in the negotiations, and officials who will be responsible for implementing and monitoring the UNCRPD in countries throughout the world. Consistent with the mantra “Nothing about us without us,” many of our participants were people with disabilities or individuals with family members who have disabilities. Our speakers performed the crucial function of telling and dissecting the story of the Convention’s origins, navigating through the UN processes, eventual adoption and entry into force, and the beginning work of implementation and enforcement. They also offered candid assessments of the Convention’s ability to create change, and its successes and shortcomings as an international human rights instrument.

The articles in this symposium reflect the depth of intellectual engagement and excitement of the conference. Several themes emerge from these articles, which are reflective of the day’s discussions. First, they explain and analyze the many intersectionalities facing women with disabilities, racial minorities with disabilities, and other groups. They provide theoretical and conceptual backgrounds to disability as a human right, and discuss the impact of previous human rights instruments on the UNCRPD. The impact of the Convention on States’ domestic laws, a topic of several articles, is an important element to the UNCRPD’s effectiveness in improving the lives of people with disabilities. Yet these articles also address the complex topic of how the Convention must be implemented at the State level in a culturally appropriate manner. In sum, these articles show the UNCRPD’s potential, yet point out that the Convention is not a panacea for the multitude of challenges facing people with disabilities worldwide. They also demonstrate why the Convention was so desperately needed, given the failure of previous human rights instruments to specifically address disability, and the often unfortunate history of domestic governments’ failure to accord people with disabilities their basic human rights.

In China and Disability Rights, Professor Michael Ashley Stein, the leading academic and tireless participant in working with States, United Nations agencies, and disabled persons organizations to implement the UNCRPD, explores and critiques the role that the People’s Republic of China has taken, abroad and at home, in fostering disability rights. It concludes that, to date, China has supported disability-based rights in the international arena to a greater extent than it has implemented those rights domestically.

In Shared Understanding or Consensus-Masked Disagreement? The Anti-Torture Framework in the Convention on the Rights of Persons with Disabilities?, Janet E. Lord, a key participant in the UN negotiations, offers the Convention as a window through which to view human rights law in the context of disability, including the prohibition against torture and other cruel, inhuman, and degrading treatment or punishment.

In Women with Disabilities: The Forgotten Peace Builders, Stephanie Ortoleva, a human rights attorney who was a Human Rights Officer at the U.S. Department of State and served on the United States governmental delegation to the UN during UNCRPD negotiations, describes the situation of women with disabilities generally and in the conflict environment. She then reviews the evolution and legal framework of the United Nations Women, Peace, and Security strategy, and explores the intersection of the UNCRPD and other human rights instruments protecting women. She continues by outlining current practices on the international, national, and regional levels to integrate women with disabilities into peace-building and development programs, and concludes with recommendations for changing policy and practice.

In Legal Regulations Relating to the Passive and Active Legal Capacity of Persons with Intellectual and Psychosocial Disabilities in Light of the Convention on the Rights of Persons with Disabilities and the Impending Reform of the Hungarian Civil Code, István Hoffman, a Ph.D. in Administrative Law, Lecturer of the Department of Administrative Law and Faculty of Law and Political Sciences of Eötvös Loránd University in Budapest, and György Könczei, a Professor of Disability Studies at Eötvös Loránd University in Budapest, Chair of the Governmental Committee for the European Social Charter, Council of Europe, and one of the founding members of the Committee on the Rights of Persons with Disabilities, trace the history of legal treatment of individuals with intellectual and psychosocial disabilities from the civil law system under Roman law to modern-day Hungarian law.

Finally, in Future of Disability Law in Japan: Employment and Accommodation, Jun Nakagawa, a Professor in the Department of Social Policy, Faculty of Social Welfare at Hokusei Gakuen University, Japan, and Peter Blanck, University Professor and Chairman of the Burton Blatt Institute at Syracuse University, first describe current disability employment law in Japan and the concept of accommodation. They then set out ideas relevant to the future of Japanese disability employment law, considering the comparative perspective. They conclude with recommendations for future disability law and policy development in Japan.

Taken together, these articles represent an important contribution to the emerging field of international disability human rights law, as expressed through the UNCRPD. Loyola Law School and the Loyola International and Comparative Law Review were privileged and honored to host such an important conference.

** Associate Dean for Research and Academic Centers; J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles. Thank you to Jolene Tanner (’12) for her research assistance and Anne Gibbons (’10) for her tireless efforts in coordinating the symposium.

1 . See U.N. Secretary-General, Realizing the Millennium Development Goals for Persons with Disabilities Through the Implementation of the World Programme of Action Concerning Disabled Persons and the Convention on the Rights of Persons with Disabilites, ¶ 4, U.N. Doc. A/64/180 (July 27, 2009) [hereinafter U.N. Secretary-General].

2 . See U.S. Agency for Int’l Dev., The Second Annual Report on the Implementation of the USAID Disability Policy 1 (2000); see also Michael Ashley Stein, A Quick Overview of the United Nations Convention on the Rights of Persons with Disabilities and Its Implications for Americans with Disabilities, 31 Mental & Physical Disability L. Rep. 679, 679 (2007).

3 . See U.N. Secretary-General, supra note 1, ¶ 19.

4 . See World Health Org. & World Bank, World Report on Disability xi (2011).

5 . G.A. Res. 48/96, U.N. GAOR, 48th Sess., Supp. No. 49, at 202, U.N. Doc. A/48/49 (1993).

6 . See generally G.A. Res. 55/2, U.N. GAOR 55th Sess., U.N. Doc. A/RES/55/2 (Sept. 18, 2000).

7 . Convention on the Rights of Persons with Disabilities, U.N. Enable, http://www.un.org/disabilities/default.asp?id=150 (last visited Oct. 15, 2011).

8 . See Convention and Optional Protocol Signatures and Ratifications, U.N. Enable (Oct. 15, 2011), http://www.un.org/disabilities/countries.asp?id=166. The United States has signed but not yet ratified the Convention.

9 . Convention on the Rights of Persons with Disabilities, supra note 7.

10 . Id.

11 . See Stein, supra note 2, at 679.

12 . To help with this information gathering function, the UN and World Bank have jointly produced the first ever World Report on Disability. See generally supra note 4. This report “provides evidence to facilitate implementation of the CRPD. It documents the circumstances of persons with disabilities across the world and explores measures to promote their social participation, ranging from health and rehabilitation to education and employment.” Id. at 3.

13 . See Stein, supra note 2, at 679.

14 . See World Report on Disability, supra note 4, at xi.

15 . See Michael Ashley Stein, Disability Human Rights, 95 Calif. L. Rev. 75, 75 (2007).

16 . See Michael Ashley Stein & Janet E. Lord, Jacobus tenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, 13 Tex. J. C.L. & C.R. 167, 167–68 (2007).

17 . See Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 Calif. L. Rev. 841, 843 (1966).

18 . See Gerard Quinn, The United Nations Convention on the Rights of Persons with Disabilities: Toward a New International Politics of Disability, 15 Tex. J. C.L. & C.R. 33, 39–40 (2009).

China and Disability Rights

MICHAEL ASHLEY STEIN[*]

I. INTRODUCTION

This article, arising from a March 19, 2010, Loyola Law School, Los Angeles, conference on “The Significance of the United Nations Convention on the Rights of Persons with Disabilities,”[1] explores and critiques the role that the People’s Republic of China (PRC or China) has taken, abroad and at home, in fostering disability rights. It concludes that, to date, China has supported disability-based rights in the international arena to a greater extent than it has implemented those rights domestically. Consequently, while there is reason to be hopeful about the future prospects for persons with disabilities in China, there likewise is cause to question the extent of the PRC’s national level commitment.

II. CHINA ON THE INTERNATIONAL STAGE

The PRC has held itself out as a champion for global disability rights for some thirty years. To name a few notable instances, China supported the 1981 United Nations International Year of Disabled Persons,[2] as well as the two subsequent Asian and Pacific Decades of Persons with Disabilities,[3] ratified the International Labour Organization’s respective conventions on employing and educating persons with disabilities,[4] adopted the Biwako Millennium Framework on disability and development,[5] and has hosted the Far East and South Pacific Games for the Disabled in Beijing,[6] the Special Olympics Worldwide Summer Games in Shanghai,[7] and most recently, the Paralympic Games in Beijing.[8] Of greatest significance, and as detailed in the next section, the PRC was highly supportive of the negotiation and adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or Convention),[9] a progressive human rights treaty that it has since ratified.[10]

By embracing these initiatives and activities, China has engendered a significant expressive affect.[11] PRC approbation demonstrates to the global community that equality for persons with disabilities is an important issue, one that a leading world power has expended political capital to champion.[12] It also indicates that although criticism is justified for various human rights shortcomings in China,[13] the PRC has made efforts to facilitate awareness and acceptance of disability human rights. Hence, China’s sustained support of disability as a field suitable for a rights-based approach underscores its validity.[14] Likewise, it signals to States that have not yet committed to disability-based rights that the trend among global actors—including those, like China, that historically have not been recognized as human rights leaders—is to cooperate on schemes that bolster disability human rights.[15]

China has utilized State-controlled media outlets—especially China Daily[16] and Xinhuanet[17]—to document and aggressively publicize its role as a progressive champion of disability rights.[18] These media outlets have emphasized the PRC’s commitment to disability rights by highlighting improvements in conjunction with reports on world-stage moments, such as the 2010 World Expo in Shanghai[19] and the 2008 Paralympic Games.[20] The reports have also underscored positive developments in the aftermath of globally significant events of more negative character, like coverage of schools built specifically for children who became disabled in the Sichuan Earthquake of May 2008.[21] In sum, Chinese media has consistently portrayed the government as a global promoter of the rights of persons with disabilities, with special emphasis on investment in education[22] and in rehabilitation services,[23] subsidies paid to municipal governments and businesses that hire employees with disabilities,[24] job creation programs,[25] initiatives for improved access to information,[26] legal aid services,[27] and medical and housing benefits.[28] These reports are in conjunction with numerous official reports of the government’s general support of the rights of people with disabilities in the domestic context.[29] Notably, the State-controlled media reports do not detail negative aspects regarding the daily lived experience of persons with disabilities as are reported outside of the PRC. These range from socially exclusionary lack of physical accessibility[30] to egregious labor exploitation[31] and servitude as beggars.[32]

III. CHINA AND THE CRPD

Returning to the international stage, in December 2001 the General Assembly approved an Ad Hoc Committee (Ad Hoc Committee) to consider whether a disability human rights treaty was necessary or desired.[33] The impetus came from a combination of persons with disabilities not receiving adequate protection under existing United Nations human rights treaties while also being ignored by other international programming.[34] For example, the Millennium Development Goals (MDGs)—the most ambitious development scheme in the world, and the core United Nations program on global poverty alleviation—speak to eradicating poverty and improving education.[35] Persons with disabilities account for ten percent of the world’s population but comprise twenty percent of those living in poverty;[36] only two percent of children with disabilities in developing countries receive a formal education,[37] and one-third of all primary age children out of school have a disability.[38] Nevertheless, disability was not referenced in the eight MDGs, and even to date has not specifically been included in their implementation.[39] Accordingly, there was strong moral and political pressure for clarifying and including the existing human rights of persons with disabilities in international obligations and schemes.[40]

Chinese support for a disability-specific treaty preceded that of the United Nations. In 2000, a full year before the General Assembly authorized the Ad Hoc Committee, the first World NGO Summit on Disability was convened in Beijing.[41] The resulting Beijing Declaration on the Rights of People with Disabilities in the New Century called for the adoption of exactly such an instrument.[42] Similarly, in the midst of the Ad Hoc sessions, China hosted a regional meeting that produced the Beijing Declaration on Elaboration of an International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities,[43] which embraced the ongoing negotiations toward a treaty and encouraged States to adopt progressive provisions.[44]

Because the General Assembly had gone only so far as to approve an Ad Hoc Committee to consider the wisdom of developing a disability-specific human rights treaty, the first two negotiation sessions focused on its viability and possible content.[45] During the first two negotiation sessions, the States’ representatives[46] agreed that a convention was necessary, and that it would comprise civil, political, economic, social, and cultural rights in a holistic manner.[47] China was among the vast majority of States that actively supported a disability-specific instrument.[48] The strongest dissent was voiced by the Bush administration while justifiably, but without intended irony, touting the virtues of American disability law and policies.[49]

The Chinese delegation remained stalwart supporters of drafting and adopting a treaty despite, similar to many other States,[50] disagreeing on certain issues or the particular points to advance.[51] One of these areas involved international monitoring; a position consistent with the PRC’s broader aversion to international oversight.[52] China firmly and correctly held that international instruments were first and foremost to be applied and monitored domestically.[53] It initially resisted the creation of an international monitoring body to receive complaints, review State reports, and issue recommendations in favor of international cooperation and national level review.[54] Such a body, the Committee on the Convention of the Rights of Persons with Disabilities, was in the end established.[55] Notably, the PRC has not yet ratified—and is unlikely to ratify anytime in the near future—the Optional Protocol to the CRPD, which would make it responsive to the CRPD Committee,[56] yet it lobbied effectively to place its own nominated expert on the Committee.[57]

A second point of particular interest to China during the CRPD negotiations was the issue of how disability would be defined under the Convention. Disability rights advocates have long contended that the category of individuals labeled as “disabled” is a social construct, and thus culturally variable.[58] This assertion is borne out by the wide divergence in self-reported prevalence rates of disability amongst States, which vary wildly from less than one percent in Kenya to twenty percent in New Zealand, even as the World Health Organization utilized a baseline assumption of ten percent and the World Bank estimated ten to twelve percent.[59] Discussion of an univocal definition was delayed until the very last Ad Hoc session, with the PRC preferring not to set a standard.[60] Ultimately, the CRPD did not include a formal definition within Article 2 (Definitions),[61] but instead declared in Article 1 (Purpose) that the disability category includes persons “who have long-term physical, mental, intellectual or sensory impairments” that “in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”[62] China retained its own classification system of disability that yielded a six and one third percent prevalence rate,[63] and in doing so, overtly shared its concern that a broader definition would yield a larger number of disabled persons, leading to a greater financial obligation.

In addition to the above two issues, China endeavored to respond to Western-driven disability advocacy during the Ad Hoc sessions by interpreting a number of issues through its own, culturally Asian lens. A unique feature of the CRPD negotiations was that the stakeholders—here, people with disabilities—were included in the negotiations.[64] This was the first time for such an occurrence in United Nations core human rights treaty development.[65] Consequently, disabled persons and their representative organizations were involved from the initial discussions and did a great deal to educate the States’ representatives about disabilities.[66] This signal achievement carried over into the Convention’s substantive provisions.[67] At the same time, the reality of United Nations negotiations is that the people who participate can financially afford to do so, which usually translates to individuals or organizations from developed countries.[68] Additionally, although the disability rights community organized itself into an international disability caucus that intervened with a unified position on issues,[69] the outcome frequently reflected Western ideals.

Two connected examples of advocacy positions arising from developed countries are independent living[70] and legal capacity.[71] Collectively, these notions hold that people with disabilities ought to be independent and autonomous, make their own decisions, and live in a manner of their own choosing.[72] In its most elemental position, it means that disabled persons should never be warehoused in large institutions and subjected to conditions the international community equates to torture, including involuntary sterilization, physical restraints, and other inhumane living conditions.[73] This is a circumstance that historically predominated, and continues to exist in many nations.[74] These paired notions aver that, at a minimum, people with disabilities cannot be deprived of what non-disabled persons assume are basic and protected legal rights, such as opening a bank account or marrying.[75] In its most progressive manifestation, combining independent living and legal capacity results in people with disabilities receiving facilitation and support to be able to live full, equal, and meaningful lives in their communities.[76]

For China, the idea of persons with disabilities living independently was received with some consternation during the Ad Hoc sessions. State representatives questioned who would want to deprive individuals with disabilities of their families, as in the PRC’s view, family members were best positioned to understand and care for them.[77] In addition, China (and a few other States) considered living in an interdependent household to be a time-honored and sensible tradition.[78] This disjuncture highlights different cultural understandings: in the West, independent living is commonly understood as facilitating activities to enable an individual’s autonomy, rather than the more literal interpretation of living on one’s own.[79]

Significantly, the International Disability Caucus during the Ad Hoc sessions was understandably motivated by horrific experiences of institutionalization, and in response staked out the position that all persons with disabilities always have full legal capacity.[80] Consequently, the disability rights advocates held that there is no such thing as substituted decision making, which in practice often leads to guardianship arrangements.[81] China maintained the opposite view, namely, that at times some people with disabilities cannot exercise their rights even with facilitation from their supporters and families, and therefore require substituted decision making. This view is consistent with long-held PRC laws and policies.[82] One outcome of this difference in opinions on legal capacity and its significance is that China, along with the Arab group and Russia, inserted a footnote in a late draft of the treaty splitting the right to have capacity, which everyone possesses, and the right to exercise capacity, which was presumed, but may not always be the case for a certain subset of individuals.[83] Though that footnote was eventually removed,[84] the scope and operation of legal capacity is still a very controversial issue flowing from the CRPD,[85] the topic on which the majority of reservations have been made by States when ratifying,[86] and making up the heart of high profile litigation before the European Court of Human Rights.[87]

The CRPD was adopted by consensus on December 13, 2006,[88] becoming the first human rights treaty of the twenty-first century.[89] It covers all aspects of the lived experiences of persons with disabilities, including ones that immediately come to mind, like education,[90] employment,[91] health care,[92] political participation,[93] and freedom of expression,[94] as well as those that must be highlighted from existing instruments, such as personal mobility[95] and independent living.[96] The Convention opened for signature on March 30, 2007,[97] at which time it received the largest number of signatures to a United Nations Convention on an opening day,[98] including China’s.[99] The CRPD became operational on May 3, 2008,[100] followed by three Conferences of States Parties[101] and three meetings of the CRPD Committee[102] as of this writing.

IV. CHINA AT HOME

The year 1988 saw the establishment of the China Disabled Persons’ Federation (CDPF)[103] under the leadership of Deng Pufang,[104] a son of Deng Xiaoping, one of China’s senior leaders and architect of its “opening and reform” policies.[105] Drawing upon his family’s politically powerful connections, Deng Pufang was able to gain PRC backing for the CDPF, as a quasi-government nongovernmental organization, to engage in otherwise non-viable advocacy efforts.[106] An early CDPF achievement was its facilitation of the 1990 Law on the Protection of Disabled Persons (1990 LPDP).[107] This was the same year that the United States passed the Americans with Disabilities Act (ADA),[108] before similar legislation in Australia[109] and the United Kingdom,[110] and a decade in advance of an employment antidiscrimination directive in the European Union.[111]

Anticipating CRPD ratification, China began to reflect on how to revise the 1990 LPDP. The eventual 2008 revision, the Law on the Protection of Persons with Disabilities (2008 LPPD),[112] was announced four months prior to CRPD ratification.[113] The 2008 LPPD falls significantly short of achieving the full range of CPRD core concepts in that it does not require, among other mandates: provisions of reasonable accommodation;[114] equal recognition before the law;[115] liberty and security of the person;[116] freedom from torture or abuse;[117] and removal of societal barriers to the full inclusion of women[118] and children with disabilities.[119] It also does not define discrimination trenchantly,[120] making its prohibition and ultimate eradication implausible.[121] In addition, the revised statute remains grounded in heavily medical-based notions of disability, and so the prevention and rehabilitation of disability retains its prior emphasis.[122] Professor Carole Petersen views these and other shortcomings in the 2008 LPPD as conflicting with CRPD-recognized rights of persons with disabilities to life,[123] marriage,[124] and procreation,[125] through human rights violating practices embedded in policies like the one-child rule.[126] And Dr. Fengming Cui argues that the 2008 LPPD, as well as education laws, do not bring about disability-inclusive education at a level required by the CRPD.[127]

Without in any way downplaying the limitations of the 2008 LPPD, or disagreeing with the critiques offered by Professor Petersen and Dr. Cui, it bears noting that the CRPD sets the global standard for disability human rights[128] and therefore includes best practices that few States, on paper or in reality, have yet to completely follow.[129] The 2008 LPPD, moreover, is in some ways more progressive than its predecessor as evidenced by the shift to “people first” language—“persons with disabilities” as opposed to “the disabled”—and some other more politically sensitive terms.[130] It has the potential to include a broader category of persons with disabilities[131] and is framed more as a rights-based approach consistent with the CRPD because it makes clear what rights exist and that they may be pursued.[132] Further, the 2008 LPPD is culturally specific to China. Accordingly, families and communities are tasked with supporting persons with disabilities,[133] a national day of assisting persons with disabilities remains from the earlier iteration,[134] people with disabilities themselves are admonished to help themselves, be positive, and contribute to “socialist development,”[135] and the CDPF retains its central role of monitoring, facilitating, and implementing the national law.[136]

What is decidedly indefinite about the 2008 LPPD is how well it will be implemented. For enforcement, the statute relies on the promulgation of future regulations, whose contents are not yet clear, and on future directives to provincial and local officials, whose commitment to making abstract mandates real is unknown.[137] More specifically, it remains to be seen how the regulations to the 2008 LPPD will manifest rights to “launch complaints” to the CDPF and to “competent departments,”[138] what “disciplinary measures,” “administrative penalties,” and civil and criminal redress are contemplated,[139] and what impact any of these devices will have. To be fair, the challenge of effective implementation of disability rights is the fly in the ointment of every State.[140] This includes the United States, where despite strong antidiscrimination laws, the relative employment rate of people with disabilities has fallen steadily since 1984, some six years before the passage of the ADA in 1990.[141]

Applying different means of addressing similar problems, China has implemented a number of unique measures to make its national laws and policies more concrete. To illustrate this conundrum in a specific context, consider the disability-related employment policies outside the 2008 LPPD.[142] Commentators have identified the shift in China’s disability employment policies as a move from “concentration” to “dispersion.”[143] Prior to 1990, the Chinese government had a policy of placing disabled persons in State-run “welfare workshops,” which later became free-market “welfare enterprises” after the 1978 opening of China’s economy to the West.[144] The Chinese government mandated that workers with disabilities should account for at least thirty-five percent of the staff of these enterprises.[145]

Beginning in 1990 with the LPDP, China’s policies have expanded to include focus on employment of persons with disabilities through self-employment[146] and a quota system under which all employers must, in theory, ensure that persons with disabilities make up a percentage of their staffs to be set by provincial governments.[147] The quota system is designed to be enforced through a system of fines administered by provincial governments.[148] It also is said to be supplemented by a system of mandatory (but undefined) tax incentives for welfare enterprises[149] and persons with disabilities who obtain independent employment through establishment of a business.[150] A further element of China’s implementing framework is a requirement that employment services agencies affiliated with the CDPF provide vocational training and job recommendations (among other services) to persons with disabilities.[151] Notably, China has not altogether abandoned “concentrative employment units” (i.e., welfare enterprises), though the percentage of persons with disabilities on the staffs of such work units currently needs to meet a standard of twenty-five percent,[152] a reduced goal from the pre-1990 level of thirty-five percent.[153]

From the perspective of an advocate applying the CRPD, the PRC’s use of quotas and segregated workshops are highly problematic since those measures arise from charitable motivations that do not accord persons with disabilities equal and rights-based access to the open labor market.[154] Indeed, the States’ representatives, individuals with disabilities, and disabled persons organizations who negotiated Article 27 of the CRPD relating to employment specifically omitted references to quotas or sheltered workshops as not being in the spirit of the treaty’s rights orientation.[155] By contrast, the vocational training and tax incentives contemplated by the Chinese framework are very much on a level with the CRPD’s employment equity mandates[156] and fall within a range of equality measures used by nearby Asian States.[157] China’s self-reported overall employment rate of eighty-four percent for persons with disabilities,[158] if true, would be among the highest in the world, eclipsing a disability employment rate estimated at twenty percent in the United States.[159] The variance between these two countries’ respective disability employment figures, in combination with the placement of workers with disabilities in sheltered PRC factories, raises concerns about their comparability.

V. CONCLUSION

Having played a significant role in the development of international laws, policies, and programs on behalf of the global population of persons with disabilities, China has been reluctant to make an equivalent commitment to applying the same standards at home. Some commentators believe this type of divergence is motivated by a State desire to cull reputation points in the international arena without ever intending to domestically implement those rights.[160] Other international scholars might assert that such States acted with the intention of narrowing the gap incrementally.[161] Yet others might aver that whatever the true intention when ratifying the CRPD, the processes of socialization and enculturation will inculcate disability human rights values into these States over time.[162] Regardless of which school of thought prevails,[163] the current situation involving the reported eighty-three million persons with disabilities in China[164] does not reflect the standards promulgated by the CRPD. Time will tell how deeply the PRC is committed to its citizens with disabilities.

** Executive Director, Harvard Law School Project on Disability; Visiting Professor, Harvard Law School; Cabell Professor, William & Mary Law School. Many thanks to William Alford, Fengming Cui, and Carole Petersen for comments; Kelli Falgout and Robert Williams for research assistance; participants at a Harvard Law School Project on Disability/Harvard China Fund seminar for feedback; and the Harvard China Fund for financial and moral support.

1 . For additional details, see The Significance of the United Nations Convention on the Rights of Persons with Disabilities, Loyola of Los Angeles International and Comparative Law Review Symposium (Mar. 19, 2010), http://ilr.lls.edu/2010Symposium.html (last visited Oct. 15, 2011).

2 . See G.A. Res. 36/77, at 176–77, U.N. Doc. A/RES/36/77 (Dec. 8, 1981). The General Assembly, of which China is a part, proclaimed 1981 as the International Year of Disabled Persons. Id. at 176.

3 . See G.A. Res. 47/88, at 3, U.N. Doc. A/RES/47/88 (Apr. 5, 1993); United Nations Economic and Social Commission for Asia and the Pacific Res. 58/4, Resolutions Adopted by the Commission, 58th Sess., May 16–22, 2002, at 2 (May 22, 2002) [hereinafter UNESCAP Res. 58/4]. As stated above, China belongs to the bodies adopting these resolutions.

4 . See, e.g., Int’l Labour Force, ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention No. 159 and Recommendation No. 168, (2008). China is a member of the Governing Body of the International Labour Organization.

5 . See generally U.N. Secretariat, Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific, Note by the Secretariat, Econ. & Soc. Comm’n for Asia & the Pac., U.N. Doc. E/ESCAP/APDDP/4/Rev.1 (Nov. 27, 2002).

6 . Previous Hosts, KL ‘06 FESPIC Games, http://web.archive.org/web/20080622192940/ http://www.kl06fespicgames.com.my/aboutFespic/default.asp?p=about&p1=about2&what= archive (accessed by searching for KL ‘06 FESPIC Games in the Internet Archive index).

7 . 2007 Special Olympics World Summer Games, http://www.2007specialolympics .com/Webenglish/index.aspx (last visited Oct. 15, 2011).

8 . Beijing 2008 Paralympic Games, http://en.paralympic.beijing2008.cn/index.shtml (last visited Oct. 15, 2011).

9 . Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Jan. 24, 2007) [hereinafter CRPD].

10 . Convention and Optional Protocol Signatures and Ratifications, U.N. Enable, http://www.un.org/disabilities/countries.asp?id=166 (last visited Oct. 15, 2011) [hereinafter Convention and Optional Protocol Signatures and Ratifications].

11 . See generally Alex Geisinger & Michael Ashley Stein, A Theory of Expressive International Law, 60 Vand. L. Rev. 77, 109–14 (2007) (explaining how treaties exert expressive effects that lead States to change their behavior).

12 . See generally Michael Ashley Stein & Janet E. Lord, Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities, in The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives 17, 31–37 (Gerard Quinn & Oddný Mjöll Arnardóttir eds., 2009) (describing the CRPD as an international expressive value trigger and a national action trigger).

13 . For example, the Chinese government highly censors many avenues for free speech, “from cellphone text messages to social networking services; from online chat rooms to blogs, films and e-mail.” Michael Wines et al., China’s Censors Tackle and Trip Over the Internet, N.Y. Times, Apr. 8, 2010, at A1.

14 . Put another way, support from China enables various processes that international law scholars have described as “transnational legal process,” “socialization,” “acculturation,” “signaling,” and a “New World Order.” See, e.g., Harold Hongju Koh, Why Do Nations Obey International Law?, 96 Yale L.J. 2599, 2625, 2630, 2646 (1997); Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 Duke L.J. 621, 628, 630 (2004); Daniel A. Farber, Rights as Signals, 31 J. Legal Stud. 83, 87–88 (2002); Anne-Marie Slaughter, A New World Order 15–19 (2004).

15 . Along the same lines, the Bush administration’s disengagement with the CRPD negotiations was a lost opportunity for universal support (and technical assistance). By contrast, the Obama administration’s signing of the CRPD and providing international cooperation on its implementation, even in advance of ratification, lends credence to the global disability rights agenda. See generally Michael Ashley Stein & Janet E. Lord, The Law and Politics of US Participation in the UN Convention on the Rights of Persons with Disabilities, in Human Rights in the United States: Beyond Exceptionalism 199 (Shareen Hertel & Kathryn Libal eds., 2011).

16 . China Daily represents itself as “the national English-language newspaper . . . targeted at Western mainstream society.” See China Daily Website, China Daily, http://www.chinadaily. com.cn/cd/introduction.html (last visited Oct. 15, 2011).

17 . Xinhuanet is the online news service of the Xinhua News Agency, China’s official press entity whose mission is to “publicize China and report the world” and whose web-based news stories purportedly reach more readers globally than Reuters and the Associated Press. Brief Introduction, Xinhua, http://news.xinhuanet.com/english/2007-08/31/content_6637522.htm (last visited Oct. 15, 2011).

18 . For an insightful discussion of Chinese media in another role, as civil society monitor, see Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, 105 Colum. L. Rev. 1 (2005).

19 . See Expo Appealing to Teenagers, Xinhua (May 15, 2010, 21:29:10), http://news. xinhuanet.com/english2010/2010-05/15/c_13296590.htm (describing the Life and Sunshine Pavilion at the Shanghai World Expo as “the first pavilion especially designed for disabled people in the 159 years of Expo history. The pavilion, which covers 1,200 square meters, focuses on how technology could make cities a better place for disadvantaged people, such as accessible life wheelchairs and special designed computers.”).

20 . See, e.g., Wang Qian, Paralympic Spirit Still Alive and Well in Beijing, China Daily (Dec. 4, 2008, 08:13), http://www.chinadaily.com.cn/cndy/2008-12/04/content_7269346.htm (“China has invested a great deal of money into promoting and developing sports for the disabled. It is not limited to the playground, but also to promoting their lives.”); Paralympic Glory, China Daily (Sept. 17, 2008, 07:38), http://www.chinadaily.com.cn/cndy/2008-09/17/content_7032650 .htm (expressing pride in the enthusiastic audience that the 2008 Paralympic Games found in Beijing and noting that many public buildings have become wheelchair-accessible due to those Games).

21 . See, e.g., Handicapped Students’ Life Two Years After Sichuan Earthquake, Xinhua (May 13, 2010, 07:27:42), http://news.xinhuanet.com/english2010/photo/2010-05/13/c_13291190 .htm (providing a photojournalist’s account of positive experiences among students in schools that were created for children who became disabled during the 2008 Sichuan Earthquake).

22 . See, e.g., China Vows to Spend More on Education for Disabled, China Daily (Sept. 12, 2008, 07:13), http://www.chinadaily.com.cn/bizchina/2008-09/12/content_7021268.htm (describing the government’s $87 million investment in 190 new schools for disabled children in 2008); Liu Weifeng, Disabled Students Get New Focused Attention, China Daily (Apr. 6, 2004, 00:32), http://www.chinadaily.com.cn/english/doc/2004-04/06/content_320831.htm (surveying various tuition-free and blind and deaf schooling initiatives in the Guangdong province).

23 . See, e.g., Cao Li, Nationwide Drive Launched to Aid Disabled, China Daily (Oct. 6, 2009, 13:31), http://www.chinadaily.com.cn/china/2009-10/06/content_8765637.htm (describing a new two-year campaign to train “100,000 community-based rehabilitation professionals”); All Handicapped Chinese to Enjoy Rehabilitative Services by 2015, China Daily (Aug. 30, 2002, 14:23), http://www.chinadaily.com.cn/en/doc/2002-08/30/content_134317.htm (citing the government’s announcement of goal to provide all disabled persons in China with access to rehabilitative services by 2015).

24 . See, e.g., Wang Qian, Career Boost for Disabled Beijingers, China Daily (Apr. 1, 2009, 07:52), http://www.chinadaily.com.cn/cndy/2009-04/01/content_7636185.htm (outlining Beijing government’s $32 million employment subsidy program covering 16,400 companies).

25 . See, e.g., Nation to Create More Jobs for Disabled, China Daily (May 16, 2005, 05:21:08), http://www.chinadaily.com.cn/fortune/en/doc/2005-05/16/content_442403.htm (describing ‘redoubling’ of government efforts called for by Vice-Premier Hui Liangyu to create a better work environment for the disabled); China Regulates to Help Disabled Find Jobs, China Daily (Feb. 14, 2007, 19:13), http://www.chinadaily.com.cn/china/2007-02/14/content_809697 .htm (announcing passage of government regulation in 2007 to “provide more training opportunities to the disabled and help them find jobs”).

26 . See, e.g., $22M Program to Make Disabled Chinese Better Informed, China Daily (Jan. 13, 2009, 15:30), http://www.chinadaily.com.cn/bizchina/2009-01/13/content_7393245.htm (highlighting public investment in a program to establish a website providing information on “rehabilitation training courses, distance education and entertainment,” as well as a national database of disabled persons).

27 . See, e.g., 2,500 Legal Aid Centers Help Disabled, China Daily (Sept. 15, 2008, 10:07), http://www.chinadaily.com.cn/china/2008-09/15/content_7027843.htm (“China has made strenuous efforts to protect the interests of the disabled by both offering legal aid and carrying out random checks on the implementation of the Law on Safeguarding the Legal Rights of the Disabled . . . .”).

28 . See, e.g., China Seeks More Medical, Housing Benefits for Disabled, China Daily (Nov. 12, 2008, 19:51), http://www.chinadaily.com.cn/china/2008-11/12/content_7198939.htm (citing CDPF efforts to bring “costs of psychiatric care, eye operations, hearing aids for disabled children, and rehabilitation” within coverage of individual medical insurance, as well as obtaining housing subsidies and home-renovation assistance for low-income families with disabled persons).

29 . See, e.g., Vice Premier Urges More Care for Disabled, Xinhua (May 10, 2010, 12:29:10), http://news.xinhuanet.com/english2010/china/2010-05/10/c_13285322.htm (quoting Vice Premier Hui Liangyu’s statement at the 2010 Shanghai World Expo that “‘[t]he hearts of the disabled should be filled by warm love’”); Human Rights: China Putting Its People First, China Daily (Aug. 28, 2010), http://www.chinadaily.com.cn/cndy/2009-04/14/content_7673711.htm (republishing 2009–2010 National Human Rights Action Plan of China); China Urges More Social Opportunities for Disabled People, China Daily (Dec. 13, 2008), http://www.chinadaily.com.cn/chinagate/doc/2000-12/13/content_246281.htm (citing the Chinese delegation’s support for an increase in social opportunities for disabled persons at Campaign 2000 for Asia-Pacific Decade of Disabled Persons).

30 . See Peter Ford, Paralympics Bring Forward Plight of China’s Disabled, Christian Sci. Monitor, Sept. 8, 2008, http://www.csmonitor.com/World/Asia-Pacific/2008/0909/ p01s02-woap.html.

31 . See Barbara Demick, China’s Disabled Exploited as Slaves, L.A. Times, Feb. 26, 2011, http://articles.latimes.com/2011/feb/26/world/la-fg-china-brick-factory-20110226.

32 . See John Ray, China’s Disabled Children are Sold into Slavery as Beggars, Guardian Observer, July 22, 2007, http://www.guardian.co.uk/world/2007/jul/22/china.theobserver.

33 . See Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, G.A. Res. 56/168, at 2, U.N. Doc. A/RES/56/168 (Feb. 26, 2002).

34 . See Gerard Quinn, National Human Rights Institutions—Catalysts for Change, in Gerard Quinn et al., Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability 273–86 (2002), available at http://www.ohchr.org/Documents/Publications/HRDisabilityen.pdf.

35 . See United Nations Millennium Development Goals, United Nations, http://www.un.org/millenniumgoals (last visited Oct. 15, 2011).

36 . See U.N. Secretary General, Realizing the Millennium Development Goals for Persons with Disabilities Through the Implementation of the World Programme of Action Concerning Disabled Persons and the Convention on the Rights of Persons with Disabilities, ¶ 4, U.N. Doc. A/64/180 (July 27, 2009) [hereinafter U.N. Doc A/64/180].

37 . The Committee on the Rights of Persons with Disabilities Meets for the First Time, U.N. Office of the High Comm’r for Human Rights (Feb. 2009), http://www.ohchr.org/EN/ NEWSEVENTS/Pages/FirstMeetingCRPD.aspx.

38 . U.N. Doc A/64/180, supra note 36, ¶ 19.

39 . See United Nations Millennium Development Goals, supra note 35.

40 . As noted by a specially-tasked rapporteur, “persons with disabilities are going to find themselves at a legal disadvantage in relation to other vulnerable groups” without a specialized human rights treaty because “unlike the other vulnerable groups, they do not have an international control body to provide them with particular and specific protection.” Leandro Despouy, Human Rights and Disabled Persons, at 40–41, U.N. Sales No. E.92.XIV.4 (1993).

41 . See generally World NGO Summit on Disability, Beijing Declaration on the Rights of People with Disabilities in the New Century ¶ 1 (2000), available at http://www.icrpd.net/implementation/en/toolkit/files/beijing.htm.

42 . See id. ¶ 9.

43 . Beijing Declaration on Elaboration of an International Convention to Promote and Protect the Rights and Dignity of Persons With Disabilities, U.N. Econ. & Soc. Comm’n for Asia & the Pac. (Nov. 7, 2003), http://www.netzwerk-artikel-3.de/un-konv/doku/beijing-declaration. pdf.

44 . See id. ¶ 8(d), (h). These provisions included several that came to fruition, including special attention to the situation of women with disabilities and the need for international cooperation.

45 . See Stein & Lord, supra note 15.

46 . See Katherine Guernsey et al., Convention on the Rights of Persons with Disabilities: Its Implementation and Relevance for the World Bank 3–4 (2007), http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/SP-Discussion-papers/ Disability-DP/0712.pdf.

47 . See Michael Ashley Stein, Disability Human Rights, 95 Calif. L. Rev. 75, 83–85 (2007) [hereinafter Disability Human Rights] (explaining how Draft Articles indicated international community’s rethinking of “sparse” disability human rights protections).

48 . For an archive of the negotiations, including position papers, see Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons With Disabilities, U.N. Enable, http://www.un.org/disabilities/ default.asp?id=1423 (last visited Oct. 15, 2011).

49 . See Michael Ashley Stein & Janet E. Lord, Ratify the U.N. Disability Treaty, Foreign Policy in Focus (July 9, 2009), http://www.fpif.org/fpiftxt/6247 [hereinafter Ratify the U.N. Disability Treaty].

50 . As stated by the PRC representative at the time the CRPD was adopted, “The Chinese government is among those who promote the formulation of the Convention in early days. In the past 5 years, the Chinese delegation took an active part in the work of the Ad Hoc Committee on the Convention and made its due contribution. In order to complete the drafting of the Convention on time, many delegations, including mine, did their best to demonstrate flexibility on some contentious issues in the Convention during consultations.” Deputy Permanent Representative of China to the U.N. Ambassador Liu Zhenmin, Statement at UNGA 61st Session on the Adoption of the Convention on the Rights of Persons with Disabilities (Dec. 13, 2006), http://www.un.org/esa/socdev/enable/convstatementgov.htm#ch.

51 . For example, after absenting itself from the majority of negotiations, the United States sent a delegation head to the Seventh and Eighth Ad Hoc sessions in order to focus on its issues of interest, which included removing elements of sexual and reproductive health, and the category of areas of occupation. See Ratify the U.N. Disability Treaty, supra note 49.

52 . Miron Mushkat & Roda Mushkat, The Political Economy of Sovereignty Revisited: A Re-Examination of the Public Choice Model in Light of China’s Accession to the World Trade Organization, 7 Asper Rev. Int’l Bus. & Trade L. 115, 135 (2007) (noting that “‘[s]tate entrepreneurs pursue alternative forms of compliance, disguise state participation in the market, and exploit their control over information, in an effort to resist monitoring and enforcement regimes’”) (quoting Paul Thiers, Challenges for WTO Implementation: Lessons from China’s Deep Integration into an International Trade Regime, 11 J. Contemp. China 413, 413 (2002)).

53 . See generally Michael Ashley Stein & Janet E. Lord, The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities, 83 U. Wash. L. Rev. 449, 452–56 (2008) [hereinafter The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities].

54 . Position Paper by the People’s Republic of China, Ad Hoc Comm. on a Comprehensive and Integral Int’l Convention on Prot. and Promotion of the Rights and Dignity of Persons with Disabilities, ¶ 12, July 29–Aug. 9, 2002, U.N. Doc. A/AC.265/WP.3 (2002) (“The international community should undertake to cooperate in matters relating to persons with disabilities on the basis of the principle of experience-sharing and equal benefit. The developed countries should make allowances for the effects of the developing countries’ low economic level and the incomplete state of their social security, and should take concrete steps to provide the developing countries with support and financial assistance in order to help them successfully solve the problems of people with disabilities.”); see also Ad Hoc Comm. on the Convention on the Human Rights of People with Disabilities, Daily Summary of Discussion at the Seventh Session, Vol. 8, No. 10 (Jan. 27, 2006), http://www.un.org/esa/socdev/enable/rights/ahc7sum27jan.htm (recording the Chinese delegation’s statement that “each country should be able to decide on an effective and practical monitoring system”). At times, China seemed to relent on these points. See Ad Hoc Comm. on the Convention on the Rights of People with Disabilities, Daily Summary of Discussion at the Third Session, Vol. 1, No. 1 (May 24, 2004) (agreement by the PRC that monitoring should be done by an expert committee, modeled on other relevant international instruments, which would review national reports of compliance).

55 . See CRPD, supra note 9, art. 34; see also Michael Ashley Stein & Janet E. Lord, Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential, 32 Hum. Rts. Q. 689, 690 (2010) [hereinafter Monitoring the Convention on the Rights of Persons with Disabilities].

56 . See Optional Protocol to the Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, art. 11, U.N. Doc. A/RES/61/106 (Jan. 24, 2007); Convention and Optional Protocol Signatures and Ratifications, supra note 10.

57 . See Members of the Committee on the Rights of Persons with Disabilities, U.N. Office of the High Comm’r for Human Rights, http://www.ohchr.org/EN/HRBodies/CRPD/Pages/ Membership.aspx (last visited Oct. 15, 2011). Professor Jia Yang, the PRC’s nominated expert, is the Founding Director of the Women’s Committee of China’s Association of the Blind and a Member of the World Blind Union’s Asia-Pacific Region Women’s Committee. Id.

58 . This is one of the basic premises of the social model of disability, and is linked to the attendant notion that barriers excluding persons situated within the disability category are artificial and remedial. See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. Pa. L. Rev. 579, 622–26 (2004).

59 . See Daniel Mont, Measuring Disability Prevalence 2 (2007), available at http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf.

60 . See World Network of Users and Survivors of Psychiatry, Implementation manual for the United Nations Convention on the Rights of Persons with Disabilities 3 (2008), http://wnusp.rafus.dk/documents/WNUSP_CRPD_Manual.pdf.

61 . CRPD, supra note 9, art. 2.

62 . Id. art. 1. This provision is notable for two reasons. First, it is rare for a human rights treaty to contain an overt “Purpose” article. Second, by placing this progressive, socially constructed view of disability within an article entitled “Purpose,” the CRPD drafters precluded States from reserving against it.

63 . See generally Inclusion of People With Disabilities in China, Int’l Labour Org., 1 (July 2009), http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---ifp_skills/documents /publication/wcms_112380.pdf.

64 . See Guernsey et al., supra note 46, at 3.

65 . See id. at 4.

66 . See Michael Ashley Stein & Janet E. Lord, Participation in International Agreements as Transformative Social Change: The UN Convention on the Rights of Persons with Disabilities, in Making Rights Real (Jody Heymann ed., 2011); Monitoring the Convention on the Rights of Persons with Disabilities, supra note 55, at 691–92.

67 . See Michael Ashley Stein, Charlotte McClain-Nhlapo & Janet E. Lord, Disability Rights, the MDGs and Inclusive Development, in Millennium Development Goals and Human Rights: Past, Present and Future (Malcolm Langford et al. eds., forthcoming 2011). To name a few examples, the continuing and central role of people with disabilities is reflected explicitly in CRPD provisions requiring States Parties to “closely consult with and actively involve persons with disabilities” in the development of all national laws, policies, and implementation schemes related to CRPD transposition (Article 4), monitoring (Article 33), reporting (Article 35), and international cooperation (Article 32). CRPD, supra note 9, arts. 4, 33, 35, 32.

68 . See Chandler H. Udo, Nongovernmental Organizations and African Governments: Seeking an Effective International Legal Framework in a New Era of Health and Developmental Aid, 31 B.C. Int’l & Comp. L. Rev. 371, 386 (noting the linkage, through funding, between nongovernmental organizations and Western countries).

69 . See Stefan Tromel, A Personal Perspective on the Drafting of the United Nations Convention on the Rights of Persons with Disabilities, in 1 European Yearbook of Disability Law 115, 117–18 (Gerard Quinn & Lisa Waddington eds., 2009).

70 . See CRPD, supra note 9, art. 19.

71 . See id. art. 12.

72 . See generally Chava Willig Levy, A People’s History of the Independent Living Movement 5–23 (1988) (describing personal stories of independent living movement for people with disabilities).

73 . The CRPD states that “[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.” CRPD, supra note 9, art. 17.

74 . See generally Mental Disability Rights Int’l, Behind Closed Doors: Human Rights Abuses in the Psychiatric Facilities, Orphanages, and Rehabilitation Centers in Turkey 1–35 (2005), available at http://www.mdri.org/PDFs/reports/turkey%20 final%209-26-05.pdf (explaining abuses against and inadequate treatment for institutionalized people with physical and mental disabilities in Turkey); Mental Disability Rights Int’l, Hidden Suffering: Romania’s Segregation and Abuse of Infants and Children with Disabilities, 1–27 (2006), available at http://www.mdri.org/PDFs/reports/romania-May%209% 20final_ with%20photos.pdf (reporting on human rights abuses against children with disabilities in institutions in Romania); Mental Disability Rights Int’l & Ctr. for Legal & Soc. Studies, Ruined Lives: Segregation from Society in Argentina’s Psychiatric Asylums, 6–36 (2007), available at http://www.mdri.org/PDFs/reports/MDRI.ARG.ENG.NEW. pdf (describing inhumane conditions for individuals with mental disabilities in psychiatric institutions in Argentina). In addition to the reports cited by MDRI, supra, it is notable that several central European States have used funds from the European Union to build new and larger institutions. See European Coal. for Cmty. Living, Wasted Time, Wasted Money, Wasted Lives . . . A Wasted Opportunity? A Focus Report on How the Current Use of Structural Funds Perpetuates the Social Exclusion of Disabled People in Central and Eastern Europe by Failing to Support the Transition from Institutional Care to Community-Based Services 23–31 (2010), available at http://www.community-living.info/ documents/ECCL-StructuralFundsReport-final-WEB.pdf.

75 . See CRPD, supra note 9, art. 12, ¶ 2 (“States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”).

76 . See id. art. 12, ¶ 5 (“States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”); id. art. 19 (“States Parties . . . shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community . . . .”).

77 . Cf. Ad Hoc Comm. on the Convention on the Human Rights of Persons with Disabilities, Daily Summary of Discussion at the Seventh Session, Vol. 8, No. 5 (Jan. 20, 2006) [hereinafter January 20 Summary of Discussion at Seventh Session] (“China agreed that the word ‘independently’ should be deleted from the title [of Article 15, Living Independently and Being Included in the Community], since it implies ‘independently of others’ in Chinese.”); Annex I: Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Report of the Working Group to the Ad Hoc Committee, art. 15 n.51, U.N. Doc. A/AC.265/2004/WG.1 (Jan. 27, 2004) (“Some members of the Working Group expressed the concern that the words ‘living independently’ in the title and chapeau of this draft Article does not reflect the cultural norm in many countries, and that the words might suggest that persons with disabilities should be separated from their families.”).

78 . See January 20 Summary of Discussion at Seventh Session, supra note 77 (summarizing the Chinese delegation’s concern that the CRPD independent living provisions might be misconstrued to imply independence from other persons, and noting the delegation’s agreement with countries like Costa Rica that expressed the view that persons with disabilities “have equal rights to choose how they live in the community and thus they should be able to choose to live with family members if so desired”).

79 . See Dr. Adolf D. Ratzka, Indep. Living Inst., Presentation at “Our Common World” (May 1997), http://www.independentliving.org/toolsforpower/tools7.html.

80 . See Position Paper by Int’l Disability Alliance, CRPD Forum, Principles for Implementation of CRPD Article 12, ¶¶ 3–5, 2008, available at http://www.international disabilityalliance.org/wp-content/uploads/2009/08/Article_12_Principles_Final.doc.

81 . See Amita Dhanda, Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?, 34 Syracuse J. Int’l L. & Com. 429, 445–46 (2007).

82 . See Ad Hoc Comm. on the Convention on the Human Rights of People with Disabilities, Daily Summary of Discussion at the Fifth Session, Vol. 6, No. 10 (Feb. 4, 2005), http://www.un.org/esa/socdev/enable/rights/ahc5sum4feb.htm (“China proposed amending the [Coordinator’s Report] to read ‘some delegates expressed grave concern about the wording ‘legal capacity,’ and if these words need to be used they should be interpreted in each language to reflect legal capacity as to rights, not legal capacity to act.’ In legal systems legal capacity can mean two different things.”); Ad Hoc Comm. on the Convention on the Human Rights of People with Disabilities, Daily Summary of Discussion at the Fifth Session, Vol. 6, No. 3 (Jan. 26, 2005), http://www.un.org/esa/socdev/enable/rights/ahc5sum26jan.htm (“China stated that . . . [i]f legal capacity means legal entitlement or legal rights, there is no problem. Capacity to act is a different concept in the Chinese language.”); Ad Hoc Comm. on the Convention on the Human Rights of People with Disabilities, Daily Summary of Discussion at the Fifth Session, Vol. 6, No. 2 (Jan. 25, 2005), http://www.un.org/esa/socdev/enable/rights/ahc5sum25jan.htm (noting China’s position that “[i]f ‘legal capacity’ refers only to rights and entitlements, and not to the capacity to act, this concept should be supported”).

83 . See Tina Minkowitz, The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions, 34 Syracuse J. Int’l L. & Com. 405, 410–11 (2007).

84 . See World Network of Users and Survivors of Psychiatry, supra note 60, at 5.

85 . See, e.g., News & Events: Legal Capacity Conference, Harvard Law School Project on Disability (Feb. 2010), http://hpod.org/activities/events-detail/legal-capacity-conference/ (describing a conference that “will present a variety of perspectives on the scope and operation of legal capacity”).

86 . For example, Australia declared “its understanding that the Convention allows for fully supported or substituted decision-making arrangements,” and Canada declared “its understanding that Article 12 permits supported and substitute decision-making arrangements.” Declarations and Reservations, U.N. Enable, http://www.un.org/disabilities/default.asp?id=475 (last visited Oct. 15, 2011).

87 . To name one example, a recent case at the European Court of Human Rights, Kiss v. Hungary, involved Hungary’s blanket prohibition on voting for individuals with mental disabilities (and any others) placed under plenary guardianship. The Court struck down the ban as violating both the European Convention on Human Rights and the CRPD. See Alajos Kiss v. Hungary, App. No. 38832/06 (Eur. Ct. of Human Rights May 20, 2010), http://cmiskp.echr.coe. int/tkp197/view.asp?action=html&documentId=868214&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649. The Harvard Law School Project on Disability was involved in this decision, with its brief cited by the Court. See Disability Rights Victory in Europe Won by Alum with Help from HPOD, Harvard Law School (June 22, 2010), http://www.law.harvard.edu/news/2010/06/22_disability.rights.html.

88 . See Timeline of Events, U.N. Enable, http://www.un.org/disabilities/default.asp?navid= 23&pid=153 (last visited Oct. 15, 2011) [hereinafter Timeline of Events].

89 . Convention on the Rights of Persons with Disabilities, U.N. Enable, http://www.un.org/ disabilities/default.asp?id=150 (last visited Oct. 15, 2011) [hereinafter Convention on the Rights of Persons with Disabilities Introduction].

90 . See CRPD, supra note 9, art. 24.

91 . Id. art. 27.

92 . Id. art. 25.

93 . Id. art. 29.

94 . Id. art. 21.

95 . Id. art. 20.

96 . CRPD, supra note 9, art. 19.

97 . Timeline of Events, supra note 88.

98 . Convention on the Rights of Persons with Disabilities Introduction, supra note 89.

99 . See Convention and Optional Protocol Signatures and Ratifications, supra note 10.

100 . Timeline of Events, supra note 88.

101 . See id.

102 . See id.

103 . About Us, China Disabled Persons’ Fed’n, http://www.cdpf.org.cn/english/aboutus/ aboutus.htm (last visited Oct. 15, 2011).

104 . See Matthew Kohrman, Bodies of Difference: Experiences of Disability and Institutional Advocacy in the Making of Modern China 90 (2005).

105 . See id. at 91.

106 . See id. at 94–96.

107 . Can ji ren bao zhang fa (残疾人保障法) [Law on the Protection of Disabled Persons] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 28, 1990, effective May 15, 1991) 1990–1992 Falü Quanshu 1268 (China), translated in 14 P.R.C. Laws & Regs. V-03-00-101, available at http://www.dredf.org/international/china.html [hereinafter 1990 LPDP].

108 . Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (2006).

109 . Disability Discrimination Act (Act No. 135/1992) 1 (Austl.).

110 . Disability Discrimination Act, 1995, c. 50 (U.K.).

111 . Council Directive 2000/78, 2000 O.J. (L 303) 16 (EC).

112 . Can ji ren bao zhang fa (残疾人保障法) [Law on the Protection of Persons with Disabilities] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 24, 2008, effective July 1, 2008), translated in China Disabled Persons’ Federation, http://www.cdpf.org.cn/english/ law/content/2008-04/10/content_84949.htm [hereinafter 2008 LPPD].

113 . See Convention and Optional Protocol Signatures and Ratifications, supra note 10. China ratified the CRPD on August 1, 2008. Id.

114 . Cf. CRPD, supra note 9, arts. 5, ¶ 3, 27, ¶ 1(i) (providing reasonable accommodations).

115 . Cf. id. art. 12 (providing equal recognition before the law).

116 . Cf. id. arts. 17–18 (providing protection for the integrity of person and liberty of movement and nationality).

117 . Cf. id. art. 15 (providing “[f]reedom from torture or cruel, inhuman or degrading treatment or punishment”).

118 . Cf. id. art. 6 (providing protection for women with disabilities).

119 . Cf. id. art. 7 (providing equality for children with disabilities).

120 . See 2008 LPPD, supra note 112.

121 . On the essential difficulty encountered by the United States government in enforcing its comparatively clearer guidelines established under the Americans with Disabilities Act, see Michael E. Waterstone, A New Vision of Pubic Enforcement, 92 Minn. L. Rev. 434, 438–40 (2007); Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1, 10 (2006).

122 . Notions of prevention and rehabilitation are often abhorred by Western disability rights advocates, in large measure because of the prejudicial history against persons with disabilities having been justified by “objective” medical reasons. See generally Disability, in 2 The Oxford International Encyclopedia Of Legal History 334 (Stanley N. Katz et al. eds., 2009). Nevertheless, having witnessed avoidable river blindness in South Africa and people (who would otherwise use wheelchairs) crawling on the ground in Bangladesh, to name only a few examples, I believe that much good can be achieved from preventing disabling conditions (e.g., does anyone—with or without a disability—affirmatively want to contract a debilitating illness?) and that service-oriented providers can develop capacity to act as disability rights agents.

123 . CRPD, supra note 9, art. 10.

124 . Id. art. 23, ¶ 1(a).

125 . Id. arts. 23, ¶ 1(a)–(b), 25(a).

126 . See Carole J. Petersen, Population Policy and Eugenic Theory: Implications of China’s Ratification of the United Nations Convention on the Rights of Persons with Disabilities, 8 China: Int’l J. 85, 101–08 (2010).

127 . See Fengming Cui, Inclusive Education In China: An Important Topic for Research and Advocacy (on file with author).

128 . See Disability Human Rights, supra note 47, at 83–85, 97–98.

129 . For an analysis of how American disability law compares to the CRPD, see Michael Ashley Stein & Michael E. Waterstone, Finding the Gaps: A Comparative Analysis of Disability Laws in the United States to the United Nations Convention on the Rights of Persons with Disabilities (2008), available at http://www.ncd.gov/rawmedia_ repository/bbae6ede_8719_48b8_b40f_33938b9a2189?document.pdf.

130 . See, e.g., 2008 LPPD, supra note 112, art. 1.

131 . See id. art. 2.

132 . See id. arts. 3, 59.

133 . See id. art. 16.

134 . See id. art. 14.

135 . See id. art. 10.

136 . See 2008 LPPD, supra note 112, art. 8.

137 . See id. art. 5.

138 . See id. art. 59.

139 . See id. arts. 61–62.

140 . See, e.g., The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities, supra note 53, at 467–74.

141 . Richard V. Burkhauser et al., Accounting for the Declining Fortunes of Working-Age People with Disabilities (forthcoming 2011) (on file with author). The relative and absolute decline in employment rates for Americans with disabilities since the mid-1980s has been documented in several papers by economist Richard V. Burkhauser, whose work is listed online at http://www.human.cornell.edu/bio.cfm?netid=rvb1.

142 . For a more thorough discussion of these and other policies, see generally Ronald Brown, Understanding Labor & Employment in China (2009).

143 . Jin Huang et al., From Concentration to Dispersion: The Shift in Policy Approach to Disability Employment in China, 20 J. Disability Pol’y Stud. 46, 46 (2009).

144 . Id. at 47–48.

145 . Id. at 47.

146 . See, e.g., 1990 LPDP, supra note 107, arts. 33–34; 2008 LPPD, supra note 112, arts. 33–34 (providing for general government “encouragement,” as well as preference in licensing and waiver of administrative fees, for persons with disabilities who undertake self-employment).

147 . See Huang et. al., supra note 143, at 47, 49–50; see also Regulations on the Employment of Persons With Disabilities, China Disabled Persons’ Fed’n, art. 8 (Apr. 10, 2008), http://www.cdpf.org.cn/english/lawsdoc/content/2008-04/10/content_84888.htm (setting a national quota floor of 1.5 percent for all businesses and leaving it to provincial governments to establish their own specific ratios above that floor).

148 . See Regulations on the Employment of Persons With Disabilities, supra note 147, arts. 25–28.

149 . See id. art. 17.

150 . See id. art. 19.

151 . See id. art. 22.

152 . See id. art. 11.

153 . Huang et al., supra note 143, at 47–48.

154 . See, e.g., G.A. Res. 47/88, supra note 3, at 2. These schemes are also not in line with the spirit of the ILO Convention and Recommendation relating to workers with disabilities.

155 . See Michael S. Lynk & Michael Ashley Stein, Comparative Perspectives on the UN Convention on the Rights of Persons with Disabilities and its Employment Equity Mandate (forthcoming) (on file with author).

156 . Id.

157 . See generally Michael Ashley Stein & Penelope J.S. Stein, Beyond Disability Civil Rights, 58 Hastings L.J. 1203, 1225–40 (2007) (illustrating international practices in line with disability human rights based framework).

158 . See White Paper of the Information Office of the State Council on China’s Employment Situation and Policies (PRC), April 2004, http://english.gov.cn/official/2005-07/28/content_ 17992.htm.

159 . As of July 2010, the unemployment rate among working age adults with disabilities, sixteen to sixty-four, is approaching eighty percent. See 2010 Kessler Foundation/NOD Surveys of Americans with Disabilities, Survey of Americans with Disabilities (July 26, 2010), http://www.2010DisabilitySurveys.org/indexold.html.

160 . Cf. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935, 2010–11 (2002) (arguing that countries may be substantially more likely to fail to comply with treaty obligations if they obtain reputational benefits but suffer little reputational cost when they fail to observe these obligations).

161 . Cf. Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics 125–29 (2009) (stating that international human rights treaties have predictable and important effects on domestic politics).

162 . Cf. Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 Eur. J. Int’l L. 171, 180, 182–83 (2003) (arguing that treaty law plays an important role in process of incorporation of human rights norms).

163 . See generally Geisinger & Stein, supra note 11, at 78–131 (providing an account of the expressive law value of human rights treaties).

164 . Cerise Fritsch, Right to Work? A Comparative Look at China and Japan’s Labor Rights for Disabled Persons, 6 Loy. U. Chi. L.J. 403, 413 (2009).

Shared Understanding or Consensus-Masked Disagreement? The Anti-Torture Framework in the Convention on the Rights of Persons with Disabilities

JANET E. LORD[*]

I. INTRODUCTION

The adoption of the Convention on the Rights of Persons with Disabilities (CRPD or Convention)[1] offers an opportunity to assess both the state of international human rights law generally and the progressive development of the international anti-torture framework in particular. As a core international human rights convention, and the first to be adopted in the twenty-first century, its constellation of civil, political, economic, social, and cultural rights offers a window through which to view human rights law in the context of disability, including the prohibition against torture and other cruel, inhuman, and degrading treatment or punishment.[2] The Convention was opened for signature on March 30, 2007, and entered into force on May 3, 2008.[3] The CRPD provisions that are closely linked to physical and mental integrity, in particular Article 12 on legal capacity, have attracted reservations and interpretive declarations by ratifying States.[4] This calls into question the depth of consensus on the anti-torture framework in its disability-specific application. Notwithstanding some unsettled questions as to the specific circumstances falling within the torture prohibition in the CRPD,[5] it represents a significant development that should not be lost on scholars and practitioners.

Following this introduction, Part II of this article describes the particular disability context wherein the CRPD anti-torture framework is placed, namely, the prevalence of violence against persons with disabilities and its particularized manifestations. Next, Part III reviews the general human rights law prohibition of torture and cruel, inhuman or degrading treatment or punishment, and charts the development of disability-specific standards relating to the anti-torture framework prior to the adoption of the CRPD. Part IV analyzes the normative landscape against which the CRPD text was negotiated as well as the anti-torture provisions more specifically. Part V addresses State duties to protect, respect, and fulfill the right of persons with disabilities to be free from torture and other cruel, inhuman, and degrading treatment or punishment, noting areas of agreement as well as disagreement. It also considers issues of specific relevance to persons with disabilities, including conditions of detention or imprisonment, the use of restraints and seclusion, compulsory treatment, private acts constituting torture or other abuse, punishment, and duties to protect. Part VI addresses the gender implications of the torture prohibition, focusing in particular on women and girls with disabilities. Finally, Part VII analyzes a largely disregarded issue, namely, the implications of Article 15 of the CRPD with regard to expulsion and extradition within the context of disability. The article concludes by charting suggested implications for both scholarship and human rights advocacy around the torture prohibition. It also puts forward suggestions as to how the CRPD, through its treaty monitoring body, the Committee on the Rights of Persons with Disabilities, the periodic Conference of States Parties and other institutional arrangements (regional and international), can continue to foment the progressive development and direction of the anti-torture framework and foster deeper normative consensus and shared understanding around the meaning of Article 15.

II. CONTEXTUALIZING THE TORTURE PROHIBITION TO ADDRESS DISABILITY RIGHTS

A. Violations of Physical and Mental Integrity Against Persons with Disabilities

Disability discrimination, including the failure to reasonably accommodate persons with disabilities, frequently manifests in violations of physical and mental integrity, making disability a risk factor when considering vulnerability to torture and other forms of inhuman or degrading treatment.[6] Violations against people with disabilities may go unnoticed, particularly where they take place in institutionalized settings or other places that are similarly isolated and shielded from scrutiny.[7] In many parts of the world, persons with disabilities are still subjected to long-term and even permanent institutionalization in psychiatric facilities and social care homes, frequently in isolated environs within rural areas or locations set apart from established communities.[8] In other cases, persons with disabilities are isolated not in institutional settings, but in their own homes and communities with little or no opportunity to interact with their peers, receive an education, pursue economic opportunities, or otherwise engage in community life.[9]

In many countries, the living conditions associated with the institutionalization of persons with disabilities not only represent serious barriers to the enjoyment of economic, social, and political inclusion, but constitute life-threatening situations, with inadequate food and shelter and unacceptable hygiene that presents high risks of infectious diseases.[10] The work of one international disability rights organization in Armenia, for example, disclosed a thirty percent annual mortality rate in one particular social care institution, an exceedingly high death rate that cannot be explained away by reference to disability-related causes.[11] In other cases, practices that purport to “treat” or “protect” persons with disabilities in institutions are dangerous, not to mention degrading and undignified. Human rights documentation by the Mental Disability Advocacy Center (MDAC) based in Hungary disclosed the use of cage beds in Hungary, Slovenia, the Czech Republic, and Slovakia as a form of restraint in facilities warehousing children with disabilities.[12]

Persons with disabilities are likely to live in poverty, a condition that exposes women and girls with disabilities in particular to sexual exploitation, with research suggesting that a large percentage will experience sexual assault or abuse during their lifetime.[13] Sexual violence is also a major tool of warfare, often perpetrated against women and girls, resulting in psycho-social and physical disability.[14] Women and girls with disabilities, as well as persons with intellectual disabilities, are at particularly high risk for violence and sexual abuse when confined to institutions[15] and often experience multi-dimensional discrimination in many countries due to discrimination on the basis of both gender and disability.[16] Disability Rights International (DRI) reported that women who survived violence and trauma in Kosovo were improperly detained in institutions because women with psychiatric diagnoses are excluded from community services.[17]

Children with disabilities are likewise at risk for mistreatment and abuse in institutionalized settings such as orphanages,[18] social care homes and schools,[19] and in their homes and communities. Some particularly egregious cases of abuse have been well documented, while others go unnoticed and unaddressed. In Russia, for example, DRI reported that there were some 400,000 to 600,000 children who were institutionalized, many of whom were children with disabilities, and others who were at high risk of acquiring a disability due to their conditions of institutionalization.[20] The practices of psychiatry to advance Soviet governmental interests is well documented and involved sweeping psychiatric commitment procedures that subjected persons with psycho-social disabilities as well as others, including political prisoners and dissidents, to years of confinement and isolation, in addition to other abuses.[21] More recently, DRI has found egregious abuses in U.S. facilities, with electric shocks administered via backpacks strapped onto children with disabilities perpetrated in the guise of legitimate behavior modification “therapy.”[22]

Protecting the physical and mental integrity of persons with disabilities is an essential component of any disability-specific human rights strategy and formed the basis of one of the central—as well as most controversial—dialogues during the drafting of the CRPD. Ultimately, the CRPD anti-torture framework offers human rights organizations the opportunity to improve and redress their historical neglect of egregious abuses against persons with disabilities, and to underscore disability rights obligations under human rights law for governments.

B. The Torture Prohibition as a Rule of Special Character in Human Rights Law

The prohibition of torture or cruel, inhuman, or degrading treatment or punishment is a rule of special character in international human rights law: it is reflected in a host of international instruments,[23] including a specialized convention on the subject;[24] it is a human rights rule from which no derogation is permitted; and it is subject to no restriction or limitation.[25] As such, it must be regarded as having attained the status of customary international law and, moreover, there is ample authority for the proposition that the prohibition of torture has acquired the status of a peremptory norm of international law according to which it may be assigned jus cogens status.[26]

Notwithstanding its stature in international human rights law, its persistence as a frequently violated right[27] has given rise to a number of successive efforts to eradicate widespread torture practices through standard-setting, institution-building, and programmatic interventions engaging a wide range of State and non-State actors.[28] An extensive jurisprudence has developed, providing guidance to the contours of the international prohibition against torture and cruel, inhuman, or degrading treatment or punishment. Cases specifically relevant for persons with disabilities are reflected in the case law of the European Court of Human Rights (ECHR)[29] and the Inter-American Commission of Human Rights,[30] as well as in credible and well-documented reports of human rights abuses by leading international human rights organizations[31] and in studies issued by the United Nations.[32] Notably, the failure of mainstream human rights practice to account for the violations of the torture prohibition against persons with disabilities, particularly against persons with disabilities in institutional settings, led to the development of a niche human rights practice genre[33] and served as an impetus for drafters of the CRPD to ensure its coverage in the treaty.[34]

III. THE GENERAL PROHIBITION OF TORTURE AND CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT IN INTERNATIONAL HUMAN RIGHTS LAW

The point of departure for addressing the prohibition of torture and cruel, inhuman, or degrading treatment or punishment in contemporary human rights law is Article 5 of the Universal Declaration of Human Rights (UDHR),[35] which states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[36] Article 7 of the International Covenant on Civil and Political Rights (ICCPR)[37] reaffirms this prohibition, adopting the same language. It also adds an explicit reference to scientific experimentation in a second sentence that reads: “In particular, no one shall be subjected without his free consent to medical or scientific experimentation”—a standard first set forth in the Nuremberg Code and notably without exception or permissible derogation.[38]

Regional human rights conventions similarly reflect the prohibition against torture and cruel, inhuman, or degrading treatment or punishment as generally articulated in the ICCPR formulation without the explicit reference to medical or scientific experimentation.[39] Notably, the American Convention on Human Rights (ACHR) recognizes within a single article (Article 5) the right of the individual “to have his physical, mental and moral integrity respected” along with the right to be free from torture and cruel, inhuman, or degrading treatment or punishment. This article formed the basis of arguments in favor of a similar formulation in the CRPD.[40]

Of additional relevance are those non-binding but authoritative standards and guidelines that have been adopted at the international level in an effort to guide State conduct in the eradication of torture. These include, for example, the Standard Minimum Rules for the Treatment of Prisoners,[41] the Code of Conduct for Law-Enforcement Officials,[42] the Principles of Medical Ethics,[43] and the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment.[44]

In 1984, the United Nations adopted a specialized convention on the subject, the Convention against Torture,[45] that provided a definition of torture—inclusive of torture based on discrimination “of any kind”[46]—and establishes an implementation mechanism, including a Committee against Torture, serving as a treaty monitoring body endowed with the functions of considering State reports, reviewing individual and inter-State communications, and undertaking confidential inquiries.[47] In 1985, the Human Rights Commission established a Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[48] mandated to investigate allegations of torture in all countries and authorized to issue reports which provide supplemental means of interpreting the nature and scope of the prohibition, a mandate that continues under the Commission’s successor body, the Human Rights Council.[49] In 2008, the Special Rapporteur released a report that, among other things, detailed the application of the prohibition against torture and other forms of ill-treatment in relation to persons with disabilities.[50]

The foregoing review highlights the CRPD as one of many international human rights instruments and mechanisms designed to address and eradicate torture and other forms of ill-treatment. Disability-specific instruments provide additional guidance on matters pertaining to the physical and mental integrity of persons with disabilities. In particular, the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principles) affirm the right of persons with psycho-social disabilities to “be treated with humanity and respect for the inherent dignity of the human person.”[51] The MI Principles further provide that “[a]ll persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment”[52] and that “medication . . . shall never be administered as a punishment or for the convenience of others.”[53]

Other MI provisions are decidedly less enlightened; for example, certain MI provisions pitch against facilitating individual choice and autonomy in decisions regarding an individual’s right to refuse to take medication.[54] As Gendreau emphasizes, “far from recognizing the lay character of the decision to accept or to refuse a treatment, these Principles consecrate a particular medical approach to human rights.”[55] Notably, the MI Principles recognize a limited right to refuse treatment or to stop treatment, and in so doing require that “[t]he consequences of refusing or stopping treatment must be explained to the patient.”[56] This perspective and its terminology—rights-holder qua “patient”—implicitly reinforces power differentials and undermines the notion that persons with psycho-social disabilities are rights-holders like all other human beings.[57] This view is so anathema to certain segments of the disability community, notably anti-psychiatry/survivor advocates, that the MI Principles have been wholly discarded, even as a guide to more progressive disability rights framings in the CRPD.[58]

In keeping with the insights of Celia Albin and others that norms act as “external referents,”[59] the MI Principles were a lightning rod for the survivor community, whose advocates emphasized their shortcomings and discredited their relevance in order to add normative value to their own claims.[60] This served to constrain dialogue in significant ways, for example, limiting discussion of those aspects of the MI Principles that some non-governmental organizations (NGOs) regarded as essential safeguards that could be usefully reflected in the CRPD text.[61]

Other disability-specific instruments set the foundation for the development of the CRPD and serve to highlight threats to the physical and mental integrity of persons with disabilities. For example, the World Programme of Action concerning Disabled Persons, adopted in 1982,[62] recognizes the issue of violence and torture as a cause of disability and emphasizes the importance of taking action to prevent such violence.[63] The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, adopted in 1993,[64] were formulated along with the World Programme in lieu of a disability-specific treaty; however, these rules failed to fully address civil rights, such as the right to be free from torture, which served as the primary disability-specific touchstone during negotiations on the CRPD anti-torture provisions.[65]

Finally, international humanitarian law also provides a repository of rules pertaining specifically to the prohibition of torture and ill-treatment and offers disability-specific guidance in certain instances, although within a decidedly paternalistic model of protection.[66]

IV. THE ANTI-TORTURE FRAMEWORK WITHIN THE DISABILITY TREATY NEGOTIATIONS

A. The CRPD Drafting Context

The Ad Hoc Committee responsible for negotiating the CRPD during the course of eight sessions and one working group meeting finalized its elaboration of the consensus CRPD text in August 2006, and in December 2006, it was adopted by the General Assembly.[67] The text that emerged from that process as Article 15 of the CRPD is a relatively sparse provision.[68] It adds little to existing human rights law on the prohibition against torture,[69] at least if read apart from other CRPD provisions that most certainly expand its meaning and intended application.[70] The consensus text also masks the considerable disagreement that surrounded the provision during the drafting process and that is extant at the level of State practice.[71]

The drafting of the CRPD torture and abuse provisions took place against a well-developed normative landscape, which helped to shape actor identities and interests during the negotiation of Article 15 and related provisions.[72] Various claims were put forward to support varying perspectives on how best to reflect the prohibition against torture and other cruel, inhuman, or treatment or punishment within the disability context.[73] In that regard, the CRPD process offered an interesting perspective on norm development, maintenance, and change in a specialized drafting context where the mandate was not to create “new” law, but rather to apply existing rights to persons with disabilities.[74] While ostensibly a theoretical exercise, such a perspective offers a deeper and richer understanding of human rights law in practice and can yield important insights for drafters and treaty implementers.

In keeping with Brunnée’s (re)conceptualization of consensus in international law, human rights law-making (and law-making in other realms) is not fixed in time and fused at the point of formal adoption, but is a “continuous interactional [process].”[75] Under this view, the CRPD negotiations formed a process whereby certain shared understandings converged regarding disability in relation to human rights law. In some instances, the negotiations triggered the progressive development of norms, while in other cases, negotiating conditions fostered constraint and even retraction. Here, Clifford Bob’s observation—that contentious and extensive political interactions occurring at every stage of the human rights law-making and implementation continuum are relevant to understanding norm diffusion—is particularly apt.[76] Furthermore, this perspective on human rights law-making complements the continual development of law, rather than the static perspective yielded by traditional notions of consent that fail to explain human rights law-making.

Understanding the normative “stickiness” of a particular provision is germane to treaty drafting actors, whether government delegates, NGO advocates, national human rights institutions, or others with interests in the process.[77] Where a particular provision is a carefully negotiated text, its chances of progressive development in instances such as elaboration through interpretation are likely more limited. This also holds true with regard to the evolution of a well-settled norm that has developed over time. The discussion that follows tracks the drafting of Article 15 and related provisions and seeks to explain the shared understanding and outstanding disagreement masked by the consensus text. This discussion will also yield some insight into Article 15 application and implementation. As drafted, many core human rights issues with the potential to trigger State responsibility under Article 15 will require elaborate argumentation that draws on a holistic reading of the CRPD and engages provisions on non-discrimination and reasonable accommodation (Articles 2, 3, & 5), legal capacity (Article 12), physical and mental integrity (Article 17), informed consent (Articles 15 & 25), and liberty of the person (Article 14).

B. Freedom from Torture and What Other Forms of Abuse?

Some, though not all, of the early draft CRPD proposals and position papers reflected the inclusion of a provision prohibiting torture and cruel, inhuman, and degrading treatment or punishment of persons with disabilities.[78] The first proposal tabled at the Ad Hoc Committee, that of Mexico, included a provision on torture, cruel, inhumane, or degrading treatment or punishment, as well as other violence.[79] A legal analysis of the text, however, noted that while the proposal recognized that persons with disabilities are vulnerable to various forms of violence, the drafters did not couch the provision in terms of an explicit prohibition in line with existing international human rights law.[80] Rather, the provision required States to guarantee respect for dignity and integrity and, in that sense, represented weaker protection.[81] The formulation received little attention, but it likely served as a placeholder for coverage of the torture prohibition in subsequent proposals, much as other provisions in the Mexican proposal helped shape the final text.[82]

Following the second meeting of the Ad Hoc Committee in 2003, a regional consultation in Bangkok resulted in the adoption of a comprehensive draft convention, which was then submitted to the 2004 Working Group.[83] The draft ultimately served as the basis for several Working Group draft provisions.[84] Draft Article 12(1)[85] of the Bangkok text articulated the legal prohibition against torture and other cruel, inhuman, or degrading treatment of people with disabilities in terms consistent with the ICCPR formulation and inclusive of the ICCPR reference to prohibited “medical and scientific experimentation.”[86] It also included a bracketed addition (“[or intervention]”) that would prohibit not only medical and scientific experimentation, but also undefined types of interventions.[87] The brackets signaled significant disagreement among the Bangkok meeting participants about the expansion of prohibited conduct beyond experimentation.[88] The language broadened the prohibited sphere of conduct and was intended to include involuntary medical interventions commonly provided to people with psycho-social disabilities, such as forced drugging.[89]

The Bangkok draft included two paragraphs that represented a further effort to tailor the prohibition of torture and other ill-treatment to the particular situation faced by people with disabilities.[90] The first of these bracketed paragraphs suggest that medical or scientific “intervention” is lawful, provided that it is accompanied by a form of consent given by someone else, without specifying who, under what conditions, or otherwise providing the level of detail necessary to render the consent proviso meaningful.[91] In other words, it addressed, to some extent, the situation of safeguards around substituted decision-making. Drafters were concerned with the issue of substituted decision-making throughout the negotiations[92] and ultimately addressed it, not in the provision concerning torture, but in Article 12 of the final CRPD text.[93] The second bracketed paragraph added a prohibition against forced interventions aimed at altering a perceived or actual disability.[94] Finally, the Bangkok draft included a third paragraph that addressed violence and abuse against persons with disabilities more generally, making specific mention of women and children and requiring States to “take all appropriate legislative, administrative, social and educational measures” to provide protection against such acts.[95]

The resulting Working Group text, adopted in 2004, and drawing in particular on the Bangkok formulation, was substantially broader than the final provision reflected in Article 15 of the CRPD.[96] The final text engaged State responsibility for forced institutionalization and forced treatment, in addition to addressing torture and other cruel, inhuman, or degrading treatment or punishment and medical and scientific experimentation:[97]

1. States Parties shall take all effective legislative, administrative, judicial, educational or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.

2. In particular, States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned, and shall protect persons with disabilities from forced interventions or forced institutionalization aimed at correcting, improving, or alleviating any actual or perceived impairment.[98]

The Coordinator noted during Working Group discussions that the traditional presumption, evident in State practice, in favor of involuntary interventions stands in contrast to the contemporary approach. Unlike the contemporary approach, the traditional approach expresses a presumption against intervention unless necessary.[99] This contrast, the Coordinator concluded, signals that the contemporary approach could be a useful development.[100]

A number of delegations expressed support for the general approach taken in the draft text, albeit with caveats that revealed a considerable discomfiture.[101] Japan noted, for example, that in principle, no forced intervention or institutionalization should occur.[102] In exceptional cases, however, where forced intervention may be necessary—in cases of harm to self or others—there must be strict guidelines to prevent abuse and the convention should include judicial remedies for abuse.[103] A footnote to the Working Group text presaged some of the most controversial aspects of future negotiating sessions and referenced a divergence in views on both (i) the appropriate placement of provisions concerning forced intervention and forced institutionalization, and (ii) whether such practices “should be permitted in accordance with appropriate legal procedures and safeguards.”[104]

During the Third Session of the Ad Hoc Committee in 2004, much of the discussion on the draft torture provision in the Working Group draft centered on the appropriate placement of the language, at paragraph two, concerning forced intervention and forced institutionalization.[105] While the International Disability Caucus (IDC), the coalition of disability organizations formed during the drafting process, asserted that forced interventions and institutionalization constitute cruel and inhuman treatment and therefore should be covered in the article on torture, support for this position represented only a small minority of the overall views.[106] The most vocal NGO on this issue was the World Network of Users and Survivors of Psychiatry (WNUSP) whose position was that the new treaty “should prohibit unwanted medical and related interventions as a form of torture or cruel, inhuman or degrading treatment or punishment . . . [and] prohibit any kind of confinement or internment based in whole or in part on disability.”[107] WNUSP therefore held that the specific language was important to include in the draft torture provision and should not be shifted elsewhere, or worse, be excluded altogether creating the need to assert a prohibition by implication.[108]

Other attempts during the Third Session to broaden language formulations, as in Algeria’s proposal to proscribe torture “in all its forms,”[109] Thailand’s proposal in relation to the prohibition of medical or scientific “and other forms of” experimentation,[110] and Uganda’s proposal to reference “abduction,”[111] alongside the language requiring protection from forced interventions, received only limited support. As detailed below, delegations preferred to maintain formulations that mirrored language found in the ICCPR.[112] Also, at the Third Session, India proposed to merge Article 11 and 12 (violence and abuse), which received some support, but was not ultimately accepted.[113] In addition, Mexico introduced a proposal to add a third paragraph to the draft article which would address monitoring the living situations of persons with disabilities.[114] This proposal appeared in the draft text of the Report of the Third Session, but it did not make its way into the final text (although the final text of Article 16 does contain a monitoring provision).[115] This reflected the drafters’ sense that close monitoring of the living conditions of persons with disabilities in prisons and other institutional settings is essential.[116]

The draft provision (Article 11) was taken up briefly again at the Fourth Session of the Ad Hoc Committee.[117] Discussions quickly turned to structural and, by implication, substantive concerns over the inclusion of the second sentence of Article 11(2), with the EU proposing deletion of the language “and shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment.”[118] This proposal was supported by a number of delegations primarily on the basis that such practices do not give rise to an absolute prohibition against which no derogation is permitted, unlike the proscription of torture and other cruel, inhuman, and degrading treatment or punishment.[119] Accordingly, there was a strong move at the Fourth Session to extract the reference to forced institutionalization and forced treatment for placement elsewhere in the draft convention, separate and apart from the torture provision.[120]

At the Fifth Session in 2005, New Zealand proffered new language that sought to address the substantive issues of medical and scientific experimentation, forced institutionalization, and involuntary treatment by amending draft Articles 11 and 12 and creating a new Article 12 (bis).[121] Its core rationale for doing so was based on its view that forced interventions and forced institutionalization are best addressed in the context of a new article on “Free and Informed Consent to Interventions,” separate from Article 11, because “there are absolutely no circumstances where violence, abuse and torture or cruel, inhumane or degrading treatment is acceptable.”[122]

While the New Zealand proposal was not taken up, the Fifth Session considerably advanced the form and structure of the draft article on torture.[123] The draft provision was reordered with a new first paragraph added to closely mirror the language in the ICCPR. It reflected the view of States that the language must contain an absolute prohibition against torture and other forms of abuse, in line with other instruments.[124] The original first paragraph as drafted by the Working Group was renumbered and structured as paragraph 2.[125]

Outstanding difficulties related to the draft provision on torture were referred to the facilitator at the Fifth Session for informal consultations among States in an effort to reach consensus on those matters.[126] One proposal suggested an amendment to the language “free and informed consent” to more explicitly emphasize the nature of consent (“free, informed and clearly expressed prior consent”).[127] Notably, some delegations opposed any change on the basis that the phrase was well-understood in international human rights law,[128] which was reflected in a General Comment of the Human Rights Committee,[129] and also on the basis that the notion of prior, clear expression of consent was implicit.[130] Second, the Fifth Session proposed that the words “or other form of” be added to the phrase “medical or scientific experimentation,” which would then read “medical, scientific or other forms of experimentation,” and thus broaden the parameters of the prohibition.[131] Finally, delegations were in agreement on the wording “[s]tates parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned,” but were unable to reach consensus on the wording or placement of the second part of the provision referencing the principle of protecting persons with disabilities from “forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment.”[132] Similarly, the Fifth Session designated the wording and meaning of the terms “institutionalization” and “perceived” in the draft text for further consideration, along with the overall placement of the provision.[133] There seemed to be consensus in line with the recommendation of the Chair that paragraph 2 follow the formula used in the United Nations Convention Against Torture (CAT), Article 2(1), which refers to “legislative, administrative, judicial or other measures” and which had been supported by a number of delegations on the basis that further amplification was unnecessary and might create interpretive difficulties in relation to the CAT.[134]

At the Seventh Session, the Ad Hoc Committee resumed its consideration of the draft provision on torture and other forms of ill-treatment, which had been renumbered Article 15 during the course of amendments and overall restructuring of the draft convention text.[135] The IDC maintained its position that language concerning the protection of the right to mental and physical integrity be moved to the torture prohibition article and be further amended to reflect language in the American Convention.[136] The Chair’s summary of discussions indicated that (i) the draft text had a good level of support; (ii) the proposal to restructure Article 15(1) by moving the second sentence to Article 17[137] was supported by some, opposed by others, and would be revisited; and (iii) the Mexican proposal to replace the term “experimentation” with “procedures” had some support, but it was withdrawn in view of the debate.[138]

C. Medical Experimentation Prohibition and the Travaux Préparatoires

The original Working Group text contained the prohibition against medical and scientific experimentation in a second discrete paragraph, following the first paragraph concerning torture.[139] The provision made specific reference to the prohibition in the absence of free and informed consent language included in Article 7 of the ICCPR,[140] but not appearing in the UDHR, ECHR, or ACHR. As noted by Nowak, the drafting history of the ICCPR reveals the tension faced by drafters in finding a formulation that expressly prohibits criminal experimentation, whilst preserving legitimate scientific and medical experiments or practices, such as emergency medical procedures to preserve the life of an unconscious person, required vaccination programs, or water fluoridation programs.[141]

Early discussions in the drafting of the CRPD concerning the prohibition of scientific and medical experimentation centered on its controversial pairing with language concerning protection from forced interventions and forced institutionalization in the Working Group text.[142] The draft paragraph, therefore, carried both an obligation reflected in the ICCPR (prohibition against medical experimentation absent informed consent) as well as the additional obligation to “protect persons with disabilities from forced interventions or forced institutionalization aimed at correcting, improving, or alleviating any actual or perceived impairment.”[143] This formulation was controversial, however, because there was no precedent found in existing human rights conventions to support the additional obligation.[144] A footnote to the Working Group text referenced the controversy surrounding this additional reference, both in terms of its structural placement as well as its substantive impact.[145] During the Working Group, some States expressed concern over the inclusion of the issue of forced institutionalization and forced treatment in the provision on torture and cruel, inhuman, or degrading treatment or punishment, on the basis that its placement alongside the torture provision would be inappropriate.[146] Other States expressed the view that forced institutionalization and forced treatment should be permissible in certain cases subject to procedural safeguards.[147] This argument was based on the commonplace practice in domestic laws to allow for such interventions in narrow circumstances, and provided the rationale for placing the issue in another part of the text given that the prohibition against torture is a non-derogable right, admitting of no exception.

D. The Final Article 15 Text

The final formulation of the prohibition of torture and cruel, inhuman or degrading treatment or punishment in the Convention[148] parallels the provision found in Article 7 of ICCPR,[149] and therefore, does not contextualize the torture prohibition with respect to persons with disabilities:

Article 15

Freedom from torture or cruel, inhuman or degrading treatment or punishment

1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.

2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.[150]

Note that the phrasing of the first paragraph of Article 15, in line with the ICCPR and not CAT, is significant because the ICCPR applies to private institutions[151] whereas CAT is restricted to public settings.[152] Additionally, the text does not refer to any of the specific practices proposed by some during the course of the negotiations for explicit reference in Article 15.[153] The CRPD Committee must therefore give meaning to the prohibition in the myriad of contexts referenced by the drafters during the treaty drafting process.

The prohibition set out in Article 15 of the CRPD is reinforced by an exceedingly spare Article 17 that simply and decidedly without illumination guarantees the physical and mental integrity of persons with disabilities.[154] Article 17, then, is the ultimate product of the controversy that arose during the initial negotiations around Article 15.[155] The provision came about when fraught negotiations around forced institutionalization and forced treatment moved to a debate over the proposed new provision. As noted by Kayess and French:

The IDC and WNUSP sought the ultimate goal of the CRPD ‘outlawing’ all forms of compulsory assistance, but, when this proved impossible to achieve, they adopted the alternative lobbying stance that there ought to be no reference to compulsory treatment in the CRPD as this would provide it with legitimacy.[156]

Accordingly, Article 17 provides no guidance whatsoever on the regulation of forced treatment that is practiced often with sweeping abandon and with little or no due process protection in many parts of the world.[157]

Still, Articles 15 and 17 of the CRPD must be understood by reference to the CRPD general principles in Article 3,[158] along with other substantive articles relating to legal capacity, informed consent, and similar topics. This understanding entails a more nuanced process of interpretation that not all actors will be up to undertaking. Even the mainstream human rights organizations have a history of ignoring the human rights of persons with disabilities and have neglected to apply international standards to persons with disabilities.[159] In some instances, mainstream human rights organizations chose to highlight abuses against political prisoners held in the very same institutions as persons with disabilities, without recognizing how such treatment infringes upon political prisoner and disabled detainee alike.[160] At the same time, the CRPD offers opportunities for creative and mutually beneficial partnerships between mainstream human rights organizations and disability rights organizations around Article 15 and related advocacy.[161]

Articles with a particularly close relationship to Article 15 include Article 16, which prohibits violence, abuse, and exploitation of persons with disabilities[162] and, Article 17,[163] which provides additional avenues through which meaning may be given to the CRPD’s anti-torture framework. These articles also give rise to varying interpretations. The IDC claimed that Articles 15 and 17, in combination with the requirement of informed consent in Article 25 and Article 12 on legal capacity, provide protection against any form of forced or compulsory intervention.[164] More recently, others have pointed to Article 14 in asserting that it serves the function of prohibiting forced or compulsory treatment or living situations such as institutionalization.[165] States have already entered reservations to clarify their position on these matters; however, they suggest that the interpretation put forward by the IDC is far from crystallized at the level of State practice.[166]

The relationship between Article 15 and Article 5 (equality and non-discrimination) should also be underscored. As an article of general application to be applied across the CRPD text, Article 5 requires States to ensure the equality of persons with disabilities in their societies while also prohibiting all types of discrimination “on the basis of disability.”[167] To that end, the CRPD requires States to recognize “that all persons are equal before and under the law” and therefore are entitled “to the equal protection and equal benefit of the law” free of any discrimination.[168] States must “prohibit all discrimination on the basis of disability”[169] and “take all appropriate steps to ensure that reasonable accommodation is provided.”[170] The section that follows analyzes State obligations in respect of the torture prohibition under Article 15, focusing on the disability-specific context of the provision and issues requiring guidance in particular from the CRPD Committee.

V. STATE DUTIES TO RESPECT, PROTECT, AND FULFILL THE RIGHT TO BE FREE FROM TORTURE OR CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT

In interpreting Article 15 of the CRPD, it is critical to give substantive content to the concepts of torture and other cruel, inhuman, or degrading treatment or punishment within the specific context of disability.[171] The nature and existence of these legal concepts, insofar as they pertain particularly to the lived experience of people with disabilities, have been addressed to some extent in human rights practice and have given rise to the same difficulties of interpretation that confront interpreters of such provisions generally.[172] These issues include, inter alia: (i) differentiating between acts that constitute torture on the one hand and acts that, for the lack of one or more fundamental elements of the torture definition, would fall into the categories of cruel, inhuman, or degrading treatment or punishment; (ii) identification of when the failure of a State to ensure protection against conduct by private actors triggers responsibility under Article 15; and (iii) when responsibility is triggered for failing to respect the prohibition against punishment (as opposed to treatment) that amounts to torture or may be considered cruel, inhuman, or degrading.

The delineation of individual offenses within Article 15 of the CRPD is ultimately a subjective exercise that will depend upon the circumstances of the case and conduct in question. The Human Rights Committee has asserted that it does not “consider it necessary to develop a list of prohibited acts or to establish sharp distinctions between different kinds of punishment or treatment; the distinction depends on the nature, purpose and severity of the treatment applied.”[173] The jurisprudence of the ECHR has examined, in a number of cases, the ambit of Article 3 of the European Convention on Human Rights, according to which torture entails deliberateness of action, causing very serious and cruel suffering and inhuman treatment or punishment involving intense mental or physical suffering.[174] Its jurisprudence supports taking into account the individual circumstances of the victim, including his or her disability and attendant accommodation needs.[175] The discussion below considers specific instances where Article 15 is most likely to be triggered.

A. Disability Accommodations and Conditions of Detention and Imprisonment

Particularly relevant, not only for detainees and prisoners with disabilities, but also for persons with disabilities in other institutional settings, is the scrutiny of living conditions against human rights standards, including the torture prohibition. In Price v. United Kingdom, the Court found that the prison conditions of a woman with a disability who used a wheelchair were inappropriate given her accommodation needs.[176] The Court held that “to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go the toilet or keep clean without the greatest of difficulty, constituted degrading treatment contrary to Article 3.”[177] The approach of the ECHR in this regard—namely, recognizing the particular accommodation needs of an individual—is very much in keeping with the CRPD. The CRPD’s explicit recognition that the failure to provide reasonable accommodation to a person with a disability constitutes discrimination is therefore a core component of an overall analysis of conditions of treatment and punishment under Article 15. Earlier cases decided by the European Commission suggesting a much higher threshold for finding a violation of permissible detention conditions must be regarded with considerable skepticism.[178]

While there is a tendency to focus narrowly on protecting persons held in detention and imprisonment from torture and other ill-treatment, some rightly suggest that there are clearly other contexts within which the protection is relevant.[179] Article 15 of the CRPD is most certainly applicable when assessing the treatment of students with disabilities in both State-run and privately-run schools, as well as rehabilitation clinics, social care institutions, and the like. The work of DRI[180] and the Mental Disability Advocacy Center (MDAC)[181] in Budapest have considerably advanced human rights analyses in the context of the torture and cruel, inhuman, and degrading treatment or punishment prohibition as applied to persons with disabilities. The obligation under the CRPD to accommodate persons with disabilities—with the failure to do so constituting discrimination—will no doubt animate the work of DRI, MDAC, and others, including national human rights institutions and hopefully, the work of national torture preventive mechanisms established under the Optional Protocol to the Convention against Torture.

B. Practices Involving the Use of Restraints and Seclusion

In addition to the poor conditions for detention in prisons and in other institutional settings that may amount to torture or other ill-treatment, practices that involve the use of restraints or seclusion similarly require serious scrutiny under Article 15. Thus, for example, the use of cage beds[182] and other types of restraints[183] clearly falls within the ambit of Article 15 and has been so highlighted by the Special Rapporteur.[184] The use of medication, particularly psychotropic medications, either on prisoners or persons with disabilities in institutions where overmedication is used as a form of chemical restraint for treatment (or punishment) will also fall afoul of the proscription.[185] Remote administration of electroshock delivered via backpacks as a form of behavioral modification or aversive therapy, as recently documented in a United States institution,[186] is clearly contrary to Article 15, among other provisions of the CRPD. Domestic legislation clarifying the prohibition of such practices is an area where there is much work to be done among States.

The Human Rights Committee has indicated that “prolonged solitary confinement of the detained or imprisoned person” may constitute torture or other ill-treatment.[187] The use of solitary confinement in the case of a person with a mental disability amounted to inhuman and degrading treatment in one case before the Inter-American Commission.[188] The CRPD requires close scrutiny of any solitary confinement situation and the particular situation of persons with disabilities, and makes clear that confinement based on disability constitutes discrimination. When assessing the legality of solitary confinement or seclusion in a given case, the individual’s circumstances and particular accommodation needs must be taken into account.[189] Seclusion and isolation that take place outside the framework of prison or institutions must likewise be closely examined, as so often persons with disabilities are isolated in their communities, chained to beds, locked away in their homes, and otherwise isolated.[190] Such customary practices tend not to be highlighted or documented by human rights organizations, but State responsibility may indeed be triggered in such cases where States fail to exercise due diligence in bringing an end to such practices, providing sanctions against perpetrators and remedies to victims.[191]

C. Practices Involving Compulsory or Forced Treatment

Another set of cases relevant for the interpretation of Article 15 concerns instances of compulsory or forced treatment, particularly those involving persons with psycho-social disabilities. Early drafts of the CRPD contained specific language on such practices, along with involuntary institutionalization,[192] but the Ad Hoc Committee ultimately excised it from the torture provision[193] and the CRPD final text, leaving advocates without specific proscriptive language.[194]

The ECHR has established a particularly high—and highly dubious in the light of the CRPD—threshold for the characterization of forced treatment as proscribed conduct under Article 3 of the European Convention,[195] principally through the application of the doctrine of “medical necessity.” Thus, in Herczegfalvy v. Austria,[196] the court considered the application of a prisoner diagnosed with a mental disability who claimed that the prison guards had given him sedatives unnecessarily and involuntarily, force-fed him, and restrained him with handcuffs to a hospital bed for weeks in violation of Article 3.[197] The court held that there was no violation on the basis of the doctrine of therapeutic necessity, according to which medical authorities “decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used” in a particular case, “if necessary by force, to preserve the physical and mental health of patients.”[198] The view embraced by the court was that a measure deemed—apparently by doctors in a unilateral process of decision-making—to be a therapeutic necessity cannot be classified as inhuman or degrading.[199] The sweeping thrust of this decision, which acts as a presumption in favor of institutional and substituted decision-making, must be regarded as deeply flawed when set against the aim of the CRPD, which is to preserve the autonomy and participation of persons with disabilities in all contexts, including medical decision-making.[200]

A holistic reading of the CRPD calls for a more robust interpretation of the prohibition than that espoused by the ECHR in Herczegfalvy v. Austria. Such an approach is suggested in treaty body practice, under which the forced and non-consensual administration of psychiatric drugs has been recognized as a form of torture or inhuman treatment.[201] Moreover, Article 15 of the Convention, read together with Article 17 (respect for mental and physical integrity),[202] Article 19 (right to independent living in the community),[203] and Article 12 (legal capacity),[204] in particular, require the application of a highly robust informed consent regime.

The Special Rapporteur on Torture has also recognized that involuntary commitment and deprivation of liberty based on the existence of a disability might, under certain circumstances, constitute torture or other ill-treatment.[205] Following the argumentation put forward by the Special Rapporteur, the NGO coalition, IDA, proffered that the administration of psychiatric treatments such as neuroleptic drugs and electroshock absent free and informed consent “may constitute torture or ill-treatment”[206] and further, that “involuntary commitment to psychiatric institutions for any reason may also constitute torture or ill-treatment.”[207] Whether such practices will be eliminated over time through the application of Article 15, the prohibition against disability discrimination, or indeed other CRPD provisions, remains to be seen, but a full reading of the CRPD suggests that Article 8 (awareness-raising) advocacy is crucial in this area. In any event, sole reliance on Article 15 to found a claim regarding forced treatment would be a poor advocacy posture. In this context, IDA’s call for the research and promotion of “[b]etter practices for the elimination of restraint, seclusion and all forms of coercion in mental health facilities and programs, the creation of a totally voluntary mental health system, and supportive approaches to meeting the needs of people in altered states of consciousness or mental health crises”[208] is much needed.

D. Private Acts

Also challenging are those instances in which acts amounting to torture or other ill-treatment are carried out by private individuals without any clear link to a State.[209] There is sound authority for the proposition that torture may apply to private acts even absent the kind of close connection to the State suggested by the terms of CAT.[210] Thus, the United Nations Human Rights Committee has stressed that the duty of the State to ensure protection against torture and other ill-treatment applies in respect to perpetrators “acting in their official capacity, outside their official capacity or in a private capacity.”[211] The CRPD confers legitimacy on this understanding. The task is to identify the nature and scope of the duty on the part of States to ensure effective protection, including the parameters of the preventive duties associated with State responsibility for torture and other ill-treatment. Most relevant in these cases are instances of ill-treatment against people with disabilities within private facilities, such as hospitals, psychiatric institutions, nursing homes, retirement facilities, orphanages, rehabilitation centers, and drug-treatment centers.

The drafters of the CRPD were keenly aware of the need for the obligations imposed by the Convention to extend to the prevention, punishment, and remedy of abuses inflicted against people with disabilities in private institutional settings by doctors, health professionals, social workers, and others working in private spheres.[212] Thus, the clear thrust of the proscription in Article 15 is that State responsibility extends well beyond the traditional setting of prisons and places of criminal detention to sites commonly associated with violations against the physical and mental integrity of disabled persons, a view that corresponds to that of the Special Rapporteur on Torture and the Committee against Torture.[213] The proscriptions would also apply to interventions that occur in community settings outside the framework of modern medical facilities, such as community-based “curative” treatments (e.g., compulsory drinking of spring water to purge evil spirits).[214] Likewise, Article 15 is applicable in cases of private violence where the State may be deemed to acquiesce, as in the case of maintaining civil laws that effectively strip persons with disabilities of their legal capacity and thus, their ability to protect themselves and to assert their rights in cases of violence (whether public or private).[215] The maintenance of discriminatory laws may therefore serve to reinforce dependency, isolation, and vulnerability to violence.[216]

It will be a question of interpretation, however, as to what standard to apply to determine whether a State may be deemed in breach of its obligation to take preventive, punitive, or remedial action in such cases. Particularly egregious instances of State failure in this regard should incur State responsibility under the Convention. More difficult, however, may be forms of violence and abuse that are not perpetrated in institutional settings, but in other settings shielded from governmental scrutiny. States are nonetheless still obliged to vigorously investigate and prosecute where allegations in such contexts are well-founded.[217]

E. Punishment

The violation of the Article 15 prohibition of cruel, inhuman, or degrading punishment gives rise to a somewhat different analysis insofar as all forms of punishment in some sense offend human dignity.[218] As suggested by leading commentators, an element of reprehensible conduct must be present in order to trigger State responsibility in this context.[219] In the view of the ECHR, the proscription implies that conduct must “go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.”[220] While violations in this sphere traditionally equate to violations against prisoners, it has broader application in the disability rights realm.

As human rights tribunal jurisprudence already makes clear, the incidents of one’s lawful confinement in prison must be carefully scrutinized, necessitating an inquiry into the nature and conditions of punishment.[221] Thus, the failure to provide reasonable accommodation to a prisoner with a disability will run afoul of the principle of non-discrimination and, depending on the circumstances, may well constitute a violation of Article 15 of the CRPD. Likewise, poor conditions within other institutional settings will also be relevant under certain circumstances where conduct may be deemed punishment.

In Huseyin Yildirim v. Turkey,[222] the ECHR held that a violation of Article 3 had occurred in the case of a disabled prisoner who required extensive support. He had been left to the supervision of his cellmates in prison, and while in the prison hospital wing, to the supervision of his brother and two sisters. This continued for a period of three years in which he relied on them to feed, wash, dress, and perform other essential functions of everyday life. This, in the Court’s view, amounted to “degrading treatment” within the meaning of Article 3, though it could clearly have constituted degrading “punishment” as well.[223] In Keenan v. United Kingdom,[224] the ECHR found a violation of Article 3 for a prisoner with a psycho-social disability who was confined to seven days isolation without effective monitoring or psychiatric evaluation. The prisoner killed himself during the isolation period.[225] The Court held that punishment under these circumstances, which may have threatened the physical and moral resistance of the prisoner, was “not compatible with the standard of treatment required in respect of a mentally ill person.”[226]

Beyond the prison setting, practices constituting punishment may occur in a myriad of other contexts, such as schools, homes, social care homes, and psychiatric institutions.[227] Similarly, certain behavioral modification practices can fall within the Article 15 proscription.[228] Significantly for the purposes of interpreting the CRPD, treaty bodies and special procedures have consistently stated that any form of corporal punishment is contrary to the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment.[229] Practices of the kind documented in DRI’s report on the Judge Rotenberg Center in Massachusetts most clearly run afoul of Article 15 in this context.

F. State Duties to Protect

The inclusion of paragraph 2 in Article 15 makes clear that the implementation of the provision obliges States Parties to do more than merely prohibit such conduct by means of domestic legislation. It requires States to “take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”[230] It thus imposes positive duties on the State to protect persons with disabilities against violations of Article 15(1). Reading Article 15(2) together with Article 4 (General Obligations), States Parties are required to take effective measures to respect, protect, and fulfill the right to be free from torture and cruel, inhuman, and degrading treatment or punishment. This must include the obligation to undertake an effective investigation where an individual raises a claim of abuse.[231] As Jan Fiala emphasizes, however, procedures are needed to ensure that domestic authorities will effectively and with due diligence investigate torture and other ill-treatment, an issue requiring further development given its lack of explication in the CRPD.[232] State responsibility will attach with respect to Article 15 in cases where State authorities know or should know that abuse is taking place. Further, States have the obligation to exercise due diligence to prevent, investigate, prosecute, and punish non-State officials or private actors.[233] Article 15 is likely to form the basis of communications submitted under the Optional Protocol to the CRPD,[234] insofar as conditions within prisons and other institutional settings have long been the subject of scrutiny by disability organizations.[235] The emergence of some ninety-four national human rights commissions around the world,[236] along with many disability-specific NHRIs,[237] should hopefully generate heightened scrutiny, thereby reinforcing State duties to protect against torture and other forms of ill-treatment.

G. What Constitutes Prohibited Medical or Scientific Experimentation?

The right to protection against medical or scientific human experimentation is a component of the protection against inhuman and degrading treatment under Article 7 of the ICCPR.[238] Article 15 of CRPD, in line with the terms of Article 7 of the ICCPR, expressly prohibits medical or scientific experimentation on persons with disabilities without their free consent.[239] The inclusion of this explicit provision in the ICCPR, representing an elaboration not included in the UDHR proscription against torture or other cruel, inhuman, or degrading treatment or punishment, has been traced to the interest of the drafters to account for the horrific forms of experimentation performed by Nazi doctors during the Holocaust. Such experimentation was based on bogus scientific and medical theories.[240] Many of these experiments were performed on disabled persons.[241] The application of this particular provision to persons with disabilities is featured in human rights commentaries, and it is not surprising that drafters of the CRPD early on during the negotiations referenced the importance of including such a provision.[242]

The final expression of the prohibition against medical and scientific experimentation in the adopted Convention text appears as the second sentence of a single paragraph provision.[243] As in the ICCPR formulation, Article 15 of the CRPD refers to impermissible medical or scientific experimentation. The text does not include the language “treatment,” proposed during the drafting process,[244] and therefore should not be interpreted as constituting a blanket prohibition against any medical and scientific treatment per se in the absence of informed consent, a position that some disability advocates supported during the treaty negotiations to address, in particular, the coercive practice of administering psychiatric treatments (both of chemical and/or surgical variety).[245] Moreover, the relationship of the second sentence of Article 15 to its first sentence, particularly its extraction from its original placement as a second paragraph and insertion as the second sentence of the first paragraph, suggests that the provision targets a specific brand of ill-treatment that itself constitutes torture or cruel, inhuman, or degrading acts, namely coercive medical and scientific experimentation. This view is strongly supported by Nowak’s analysis of the travaux préparatoires of ICCPR Article 7.[246] Thus, the specific prohibition against medical and scientific experimentation could not successfully be invoked to cover compulsory treatment according to standard medical protocol on the basis that such treatment does not constitute “experimentation,” but it could cover compulsory treatment that is non-standard and therefore experimental in nature, either of a medical drug or drug regimen, device, or procedure. This argument is missing from the existing discussion but should not be disregarded as a possible tool. To the extent that involuntary treatment is proscribed, it falls within the general prohibition and not within the terms of the medical experimentation prohibition.

The question as to what practices might constitute “experimentation” is a difficult one. Courts will look to medical standards in order to assess whether a procedure is acceptable or not. In instances where novel and untested practices are unacceptable, they may be outlawed as experimentation. However, grounding a claim in the medical experimentation prohibition alone may be difficult with respect to a full range of practices which ostensibly appear to be experimental but have nonetheless received the imprimatur of legitimacy within the medical profession. Thus, in the absence of national medical protocols, it is doubtful whether cage beds, psychosurgery, or unmodified ECT could be considered “experimentation.” Such practices are, in any case, captured by the general prohibition as they most certainly do constitute “inhuman treatment,” prohibited by the first sentence of Article 15 which does not hinge upon violating a medical standard. Practices prohibited under the “experimentation” prohibition are those falling outside of national psychiatric (and other medical) protocols, or practices for which the World Psychiatric Association (or other medical body) issued a protocol and they are outside of it. An example could be the trial of new psychiatric drugs on residents of social care homes in the Czech Republic without their knowledge and consent,[247] or certain behavioral aversive techniques of the kind reported on by DRI in its report on the practices of the Judge Rotenberg Center in Massachusetts.

In this regard, the MI Principles, though outdated and highly problematic in many respects, are relevant as a guide to the interpretation of CRPD, insofar as they provide clear authority for the prohibition of psychosurgery and other irreversible and highly dubious treatments on involuntary subjects.[248] This protection is essential given that the drafters of the CRPD were unwilling to address these issues with any degree of specificity and in the light of ongoing and persistent egregious abuses across the world perpetuated against persons with psycho-social disabilities under the guise of “therapeutic treatment” or “cure.”

H. Article 15 as a (Re)invigorated Informed Consent Regime?

The prohibition of medical and scientific experimentation in the absence of informed consent is likewise relevant in the context of certain diseases that cause disabling conditions and in respect of which medical science offers no cure, but which are the subject of research and experimentation.[249] In this context, the interpretive challenge for the CRPD treaty-monitoring body is considerable, particularly given the difficulty of clearly differentiating between treatment and experimentation in such contexts. The danger of conflating treatment and experimentation on human subjects—particularly in the case of treating those with terminal illnesses such as cancer or AIDS—is real and must be a core concern of those charged with interpreting Article 15. In the specific context of disability, offering (or coercively administering) a regimen of various drugs or therapies that in their combination are unproven in their medical efficacy gives rise to questions about differentiating between that which is experimental in nature and that which legitimately constitutes therapeutic treatment.

Of particular importance is the interpretation of Article 15, together with Article 3 (General Principles)[250] and Article 12 (Equal recognition before the law),[251] which give primacy, respectively, to the principles of informed consent, non-discrimination, autonomy, and participation in decision-making and the presumption of legal capacity combined with a framework for supported decision-making. In the context of medical and scientific experimentation, the principles of non-discrimination, autonomy, and participation set forth in the CRPD strongly support a view contrary to that held by Nowak in his commentary on the ICCPR proscribing only treatment or experimentation without consent where the effects amount to degrading or inhuman treatment. At the core of the Convention and reflected in the Nuremberg Code is the notion that medical and scientific experimentation without consent itself constitutes a degradation of human dignity and an affront to individual autonomy, irrespective of the harmful effects of such experimentation or treatment.[252] Such conduct rejects the agency of the rights-holder, treating him/her as an object on which to act, as opposed to a subject and holder of rights.[253] The Nuremberg Code admits of no limitation, restriction, or exception.[254] Respect for autonomy as dictated by the Convention, as well as the principle of participation in decision-making, requires an informed consent process that is forthright and free of deceptive exploitation. It will be the role of the CRPD Committee to clarify the essential requirements of the informed consent process, not only with respect to the prohibition against medical and scientific experimentation in Article 15, but also in respect of all other medical interventions or services, such as those falling under the general right to health and rehabilitation provisions.[255] Accordingly, it will fall to the interpreters of the CRPD to discern with care whether a particular intervention is experimental in nature and, if so, whether the strict requirements of informed consent within the framework of supported decision-making proffered by the CRPD are met.

Finally, consistent with the foregoing discussions regarding informed consent, the CRPD must be regarded as going beyond the European Convention on Human Rights and Biomedicine (ECHRB), which recognizes exceptions to the prohibition against research and experimentation absent consent in certain circumstances.[256] The drafters of the CRPD adopted the approach taken in the ICCPR, maintaining a strict prohibition against scientific experimentation absent informed consent, as opposed to the approach taken in the ECHRB. This is the better view and one that corresponds to the original regime outlined in the Nuremberg Code[257] and springs from the egregious cases of medical experimentation perpetrated against persons with disabilities during the Holocaust, which unfortunately have modern manifestations.

VI. ENGENDERING THE CRPD ANTI-TORTURE FRAMEWORK

The drafters of the CRPD were concerned with the need to address the specific experiences of women and girls with disabilities within the framework of the rights articulated in the Convention. In this regard, Article 15 must be understood in the light of its gender implications and interpreted by reference to, among others, Article 6 (Women with Disabilities),[258] as well as Article 3 (General Principles), which recognizes “[e]quality between men and women” as a general principle of the CRPD.[259]

The prohibition against torture and other forms of violence often takes on a particular form when perpetrated against women and girls generally, and this may be even more pronounced for women and girls with disabilities.[260] Conditions within institutions may pose specific threats to women and girls. The threat of gender-based violence faced by women and girls in institutional settings has been well-documented[261] and persons with disabilities—both men and women—are up to three times more likely to be victims of physical and sexual abuse and rape.[262] This gender-based violence includes acts committed at the hands of family members and caregivers, dimensions which will be important factors to consider in the context of interpreting Article 15.[263] Moreover, rape and other sexual violence is always cruel, inhuman, and degrading and in certain circumstances will constitute torture as well as breaches of other rules of international law, including war crimes.[264] As noted by the Special Rapporteur on Torture, “rape constitutes torture when it is carried out by or at the instigation of or with the consent or acquiescence of public officials.”[265]

The Human Rights Committee has referenced both forced abortion and involuntary sterilization as violations of Article 7 of the ICCPR,[266] and such practices would also trigger violations of Article 15 of the CRPD.[267] The Special Rapporteur has noted that “given the particular vulnerability of women with disabilities, forced abortions and sterilizations of these women if they are the result of a lawful process by which decisions are made by their ‘legal guardians’ against their will, may constitute torture or ill-treatment.”[268] The better view, however, and one consistent with Article 12 of the Convention[269] and its framework of supported decision-making, is that such practices must be presumed to fall afoul of Article 15 absent free and informed consent. Finally, the failure to take the particular needs of women and girls with disabilities into account when in prison, detention, or otherwise in a controlled setting in terms of reproductive health care, family contact, hygiene, and the like is central to ensuring compliance with Article 15, as well as Article 6, of the CRPD.

The implementation of Article 15 puts States under an obligation to include a gender dimension in their reporting to the Committee on the Rights of Persons with Disabilities.[270] As a component of their reporting obligations, States must include measures they have undertaken to investigate and prosecute allegations of torture or cruel, inhuman, and degrading treatment or punishment against women and girls as well as measures implemented to provide effective remedies to victims.[271] The obligation to respect mandates that States undertake measures to ensure that women and girls with disabilities are protected from such abuse, which would entail, among other things, effective training of police, prison officials, caregivers, and medical personnel, all of whom will have responsibility for ensuring the protection of persons with disabilities in various custodial settings.

VII. EXPULSION AND EXTRADITION

The Convention makes no reference to the right of persons with disabilities to seek asylum nor does it make reference to the principle of non-refoulement, the obligation not to return a person to a State where he or she is likely to be subjected to torture.[272] Authoritative interpretations of the prohibition against torture do provide guidance as to the interaction of Article 15 of the CRPD and expulsion, deportation, extradition, and related procedures.[273]

The Committee against Torture has opined that deporting or extraditing a person to a country where he or she is likely to face torture or ill-treatment may constitute a violation of Article 3 of ICCPR.[274] The Human Rights Committee, in its General Comment on Article 7, emphasized that “[s]tates parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”[275] Gender-based aspects are of key relevance to any analysis, including the risk of gender-based violence which may aggravate existing disabilities or result in secondary disabilities.[276]

The jurisprudence of the ECHR supports the view that a State may breach its obligation under the torture prohibition of the European Convention if it expels or extradites an individual to another State in circumstances facilitative of torture or inhuman treatment.[277] Particularly relevant to understanding the impact of Article 15 on expulsion and extradition cases is the decision in D. v. United Kingdom.[278] There, the ECHR held that the deportation order of a man in advanced stages of AIDS to his home in St. Kitts constituted inhuman treatment on the basis of substandard medical resources accessible to him there.[279] In Bensaid v. United Kingdom, however, the ECHR found no violation of the (Article 3) prohibition where an Algerian national due to be deported complained that deportation would violate his rights on the basis that he would receive no psychiatric medication for his mental illness.[280] Similarly, the ECHR in Salkic v. Sweden[281] held inadmissible a case alleging a breach of Articles 2 and 3 on the basis that Sweden’s expulsion order following the denial of refugee status would cause irreparable damage to the applicant’s entire family on account of their poor mental health and inadequacy of treatment in Bosnia.[282] There, the Court stated that people subject to expulsion cannot claim an entitlement to remain in the territory in order to benefit from medical, social, or other forms of assistance.[283] However, the Court left open the possibility that, in exceptional circumstances, humanitarian circumstances may trigger an Article 3 violation and justify the overruling of an expulsion order.[284]

Placed within the context of the Convention, one may conclude that it is impermissible under Article 15 for a State to return persons with disabilities to a country where they would likely experience conduct amounting to torture, or cruel, inhuman, or degrading treatment or punishment on the basis of their disability. More specifically, for example, a violation would clearly occur if a person with a psycho-social disability was returned to a country where he or she would face involuntary treatment, such as psycho-surgery, forced ingestion of poison, or an equivalent customary or bogus medical practice.[285]

VIII. CONCLUSION

The adoption of the CRPD clearly constitutes an important development in the anti-torture framework under international human rights law. Its principal contribution is to apply the torture prohibition within a disability context, consistent with core principles of the CRPD including dignity, non-discrimination, autonomy, and independence.[286] It also contributes to the framework by introducing explicitly, for the first time in an international human rights treaty, the requirement that reasonable accommodations be provided and that the failure to do so results in a finding of discrimination.[287] As implicitly recognized in cases before the ECHR,[288] the CRPD makes clear that the duty to accommodate is part of the non-discrimination and equality framework and is thus applicable to persons detained or imprisoned.[289] These principles add content to the overall anti-torture framework and should thus find ready application as a guide to regional and international regimes applying the prohibition against torture and other cruel, inhuman, and degrading treatment or punishment.

That said, the CRPD does little in Article 15 (or Article 17) other than codify existing human rights law and create the need for a complex and more nuanced application of CRPD principles and provisions. The ostensible consensus around Article 15 represented in the adopted text masks significant disagreement, particularly in the area of forced treatment.[290] It is likewise a decidedly weak framework from which to tackle involuntary institutionalization, and its relationship in that regard to Article 14 is unclear.[291] Other questions remain about the reading of Article 15 in the context of other key provisions of the CRPD, as the reservations and declarative interpretations entered by States reveal. Following Andrew Byrnes and other commentators, in some instances human rights treaties can do little more than draw suggestive boundaries, leaving the precise contours of the obligation to evolve over time.[292]

Returning to constructivist accounts of human rights law-making,[293] the contextualized meaning of Article 15—the application of the torture prohibition to disability is, at least in part, a work in progress. As noted in this article, certain components of the CRPD contextual regime are unsettled and have not yet given rise to the level of mutual confidence and shared understanding that have coalesced in respect of other obligations.[294] As Kayess and French emphasize in their superb analysis of the CRPD, “some crucial areas, including bioethics and compulsory treatment, are barely grazed by the CRPD text” and “[s]ome disability rights issues still remain untouched or undeveloped in international human rights law.”[295] In a similar vein, Fiala points to the need for procedural development of the duty to investigate torture and other forms of ill-treatment as a priority for the CRPD Committee (or other treaty bodies such as CAT) as the CRPD text is scant on details regarding the duty to investigate.[296]

In this sense, therefore, the CRPD mechanisms and other United Nations human rights and regional institutional arrangements assume special significance. They should be seen as generators of the continuing CRPD law making process, offering opportunities to foster shared meaning around the disability rights set forth in the Convention. The institutional arrangements created by the CRPD, including its potentially innovative periodic Conference of States Parties and the Committee on the Rights of Persons with Disabilities,[297] along with those that will be implicated by it, such as existing treaty bodies (e.g., the CAT Committee), regional human rights systems and national human rights commissions, are important sites of advocacy and can foster shared understanding, bearing in mind the educative and constitutive effects of such processes.[298] The CRPD, then, is a “living treaty regime”[299] and a site for the further development and enrichment of the anti-torture regime, generally, and disability rights relating to physical and mental integrity, in particular.

** Research Associate, Harvard Law School Project on Disability; Senior Partner, BlueLaw International LLP; and Adjunct Professor of Law, University of Maryland School of Law. The author participated in all of the negotiating sessions during the drafting of the Convention on the Rights of Persons with Disabilities and thus drew upon that experience in the development of this Article. I am grateful to Michael Stein, Julie Mertus, and Jan Fiala for their insightful comments and dialogue with me on earlier drafts. I dedicate this Article to my mother, Margaret Lord, an intrepid human rights promoter.

1 . Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Jan. 24, 2007) [hereinafter CRPD]. The Convention was adopted by consensus by the General Assembly on December 13, 2006, together with its Optional Protocol. Optional Protocol to the Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Jan. 24, 2007).

2 . CRPD, supra note 1, art. 15. For an overview of the Convention on the Rights of Persons with Disabilities, see Michael Ashley Stein & Janet E. Lord, The United Nations Convention on the Rights of Persons with Disabilities: Process, Substance and Prospects, in International Protection of Human Rights: Achievements and Challenges 495, 495–514 (Felipe Gomez Isa & Koen De Feyter eds., 2009) [hereinafter Process, Substance and Prospects].

3 . Convention on the Rights of Persons with Disabilities, U.N. Treaty Collection, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang =en (last visited Oct. 15, 2011) [hereinafter U.N.T.S. Website]. Notably, the CRPD received the greatest number of signatures of any human rights treaty on its opening signature day and is the second most rapidly ratified of the core human rights conventions. See Latest Updates, Disabled Peoples’ Int’l (Apr. 5, 2007), http://www.icrpd.net/ratification/en/updateFiles/2007-04-09.pdf.

4 . See U.N.T.S. Website, supra note 3.

5 . CRPD, supra note 1, art. 15.

6 . See Special Rapporteur on Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report, ¶¶ 37–76, U.N. Doc. A/63/175 (July 28, 2008) (by Manfred Nowak) [hereinafter Nowak Interim Report]; see also Report of the Office of the High Comm’r for Human Rights, Expert Seminar on Freedom from Torture and Ill-Treatment and Persons with Disabilities (Dec. 11, 2007), http://www2.ohchr.org/english/issues/disability/docs/torture/seminar torturereportfinal.doc [hereinafter OCHR Report].

7 . Disability Rights International (DRI) (formerly Mental Disability Rights International (MDRI)) has documented egregious human rights violations against person with disabilities in institutional settings, such as orphanages, social care homes, and psychiatric hospitals. See Mental Disability Rights Int’l, Human Rights & Mental Health: Mexico 13–41 (2000); Mental Disability Rights Int’l, Children in Russia’s Institutions: Human Rights and Opportunities for Reform 10–23 (1999) [hereinafter MDRI Russia Report]; Mental Disability Rights Int’l, Human Rights & Mental Health: Hungary (1997) [hereinafter MDRI Hungary Report], available at http://www.mdri.org/PDFs/reports/Hungary. pdf; Mental Disability Rights Int’l, Human Rights & Mental Health: Uruguay 16–48 (1995).

8 . See Debra Benko & Brittany Benowitz, The Application of Universal Human Rights Law to People with Mental Disabilities, 9 Hum. Rts. Brief 9, 11 (2001).

9 . Id.

10 . Id. at 10.

11 . Id.

12 . See Mental Disability Advocacy Ctr., Cage Beds: Inhuman and Degrading Treatment or Punishment in Four EU Accession Countries 36–41 (2003), http://mdac.info/sites/mdac.info/files/English_Cage%20Beds.pdf [hereinafter MDAC Cage Beds Report]. The use of cage beds has since been discontinued in Hungary and Slovenia.

13 . See U.N. Office of the High Comm’r for Human Rights, World Health Org. & United Nations AIDS, Disability and HIV Policy Brief 2–3 (2009), available at http://data.unaids.org/pub/Manual/2009/jc1632_pol_brief_disability_long_en.pdf [hereinafter Disability and HIV Policy Brief]; see also Nora Ellen Groce & Reshma Trasi, Rape of Individuals with Disability: AIDS and the Folk Belief of Virgin Cleansing, 363 Lancet 1663, 1663–64 (2004).

14 . See Jennifer Park, Sexual Violence as a Weapon of War in International Humanitarian Law, 3/1 Int’l Pub. Pol’y Rev. 13, 15 (2007), available at http://www.ucl.ac.uk/ippr/journal/ downloads/vol3-1/Park.pdf.

15 . Disability and HIV Policy Brief, supra note 13, at 2–3.

16 . See Nora Ellen Groce, HIV/AIDS and Individuals with Disability, 8 Health & Hum. Rts. 215, 217 (2005), available at http://www.hhrjournal.org/archives-pdf/4065341.pdf. bannered.pdf; Nora Ellen Groce et al., Guidelines for Inclusion of Individuals with Disability in HIV/AIDS Outreach Efforts 3–4 (2006), available at http://globalsurvey.med. yale.edu/inclusion_guidelines_hivaids.pdf; Nora Ellen Groce et al., HIV/AIDS and Individuals with Disability 10, 12–13, 28 (2004), available at http://www.dpi.org/files/ uploads/hiv/Health%20and%20Human%20Rights%20-%20Published%20version.pdf [hereinafter HIV/AIDS and Individuals with Disability].

17 . See Mental Disability Rights Int’l, Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo 13–15 (2002), available at http://www.mdri.org /PDFs/reports/KosovoReport.pdf [hereinafter MDRI Kosovo Report].

18 . See, e.g., Mental Disability Rights Int’l, Hidden Suffering: Romania’s Segregation and Abuse of Infants and Children with Disabilities 6 (2006), available at http://www.mdri.org/PDFs/reports/romania-May%209%20final_with%20photos.pdf; Mental Disability Rights Int’l, Behind Closed Doors: Human Rights Abuses in the Psychiatric Facilities, Orphanages and Rehabilitation Centers of Turkey 24–25 (2005), available at http://www.mdri.org/PDFs/reports/turkey%20final%209-26-05.pdf; MDRI Russia Report, supra note 7.

19 . See generally Mark C. Weber, Disability Harassment (2007).

20 . MDRI Russia Report, supra note 7. “Under the Russian discipline of defectology, children are seen as having defects that need to be corrected rather than disabilities that should be accommodated within their communities. Officials report that at least 20 percent of institutionalized children with mental disabilities are permanently confined with physical restraints to their beds in ‘lying down’ rooms and given no treatment. Furthermore, children are severely undernourished and either overmedicated or not provided with needed medication.” Benko & Benowitz, supra note 8, at 10.

21 . See Dennis Ougrin et al., Psychiatry in Post-Communist Ukraine: Dismantling the Past, Paving the Way for the Future, 30 Psychiatric Bull. 456, 456–58 (2006), available at http://pb .rcpsych.org/cgi/reprint/30/12/456.pdf; Amy Young-Anawaty, International Human Rights Norms and Soviet Abuse of Psychiatry, 10 Case W. Res. J. Int’l L. 785, 785–89 (1978); Victoria Rood, Soviet Abuse of Psychiatric Commitment: An International Human Rights Issue, 9 Cal. W. Int’l L.J. 629, 629–30 (1979).

22 . See Mental Disability Rights int’l, Torture Not Treatment: Electric Shock and Long-Term Restraint in the United States on Children and Adults with Disabilities at the Judge Rotenberg Center 1–3, 12–13 (2010), available at http://www. mdri.org/PDFs/USReportandUrgentAppeal.pdf [hereinafter MDRI Rotenberg Center Report] (documenting human rights abuses in a U.S. institution in Massachusetts where children and adults were routinely subjected to electric shock, receiving multiple skin shocks on their legs, arms, hands, feet, fingers, and torsos for non-compliance such as getting out of their seats, making noises, swearing, or failing to follow staff directions, where they were also subjected to other punishments such as food deprivation and mock stabbings).

23 . See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 5, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR]; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 7, U.N. Doc. A/RES/21/2200 (Dec. 16, 1966) [hereinafter ICCPR]; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3(I)(a), (c), Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217; Geneva Convention Relative to the Protection of Civilian Persons in the Time of War art. 3(I)(a), (c), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. For additional sources of international humanitarian and criminal law relevant to protection against violations of physical and mental integrity, see Andrew Byrnes, Torture and Other Offenses Involving the Violation of Physical and Mental Integrity of the Human Person, in Substantive and Procedural Aspects of International Criminal Law 214, 226–27 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000).

24 . Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/46 (Dec. 10, 1984) [hereinafter CAT].

25 . This applies equally to the prohibition of scientific experimentation absent informed consent, which is regarded as a component of the torture prohibition. Manfred Nowak’s proposition that reservations to Article 7 of the ICCPR are contrary to the object and purpose of the Covenant owing to the special character of the torture proscription in international law is a sound one, and would also apply to reservations in respect of Article 15 of the CRPD. Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 126 (1993); see Vienna Convention on the Law of Treaties art. 19, May. 23, 1969, 1155 U.N.T.S 331 (prohibiting a State from entering a reservation to a treaty, inter alia, where the “reservation is incompatible with the object and purpose of the treaty.”).

26 . The jus cogens status of the torture prohibition has been recognized by the Committee against Torture, the treaty body that monitors the Convention against Torture, and provides authoritative interpretations of CAT obligations. See U.N. Comm. Against Torture, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: General Comment No. 2: Implementation of Article 2 by States Parties, ¶ 1, U.N. Doc. CAT/C/GC/2 (Jan. 24, 2008) [hereinafter General Comment No. 2]; see also Restatement (Third) of Foreign Relations Law of the United States § 702 (1987) (identifying torture as an illustrative example of a jus cogens norm, along with piracy, genocide, and the slave trade); Nigel S. Rodley, The Treatment of Prisoners Under International Law 67–74 (2d ed., 1999); Yoram Dinstein, The Right to Life, Physical Integrity, and Liberty, in The International Bill of Rights: The Covenant on Civil and Political Rights 122, 122 (Louis Henkin ed., 1981). Judge Higgins, in discussing the legal character of the UDHR, states: “[T]he suggestion has been made that human rights treaties have the character of jus cogens. There certainly exists a consensus that certain rights—the right to life, to freedom from slavery or torture—are so fundamental that no derogation to them is permissible. And international human rights treaties undoubtedly contain elements that are binding as principles which are recognized by civilized States, and not only as mutual treaty commitments.” Rosalyn Higgins, Derogations Under Human Rights Treaties, 48 Brit. Y.B. Int’l L. 281, 282 (1978). The ruling in Filartiga v. Pena-Irala is at least suggestive in this regard: “Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture. Indeed for the purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.” Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2nd Cir. 1980); see also M. Cherif Bassiouni & Daniel Derby, An Appraisal of Torture in International Law and Practice: The Need for an International Convention for the Prevention and Suppression of Torture, 48 Rev. Int’l Droit Penal 17, 67–88 (1977) (arguing that all four sources of international law—treaties, customs, general principles recognized by all civilized nations, and the writings of noted publicists—proscribe torture).

27 . For example, in a 2009 report, Amnesty International surveyed various States that violate international law prohibitions against torture. See Amnesty Int’l, Amnesty International Report 2009: The State of the World’s Human Rights (2009), available at http://report2009.amnesty.org/sites/report2009.amnesty.org/files/documents/air09-en.pdf.

28 . See generally General Comment No. 2, supra note 26, at 2–4; Amnesty Int’l, supra note 27, at 369–89 (obligating States to take actions to reinforce the prohibition against torture through legislative, administrative, judicial, and other actions to prevent it); see also Convention for the Protection of Human Rights and Fundamental Freedoms art. 17, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter CPHRFF] (forbidding any State, group, or person from engaging in any activity that would destroy any rights and freedoms both in an beyond the convention).

29 . See, e.g., Keenan v. United Kingdom, App. No. 27229/95, 10 Eur. Ct. H.R. 319, ¶¶ 27–40 (2001). For a review of the jurisprudence of the European Court of Human Rights and mental disability, see Oliver Lewis, Protecting the Rights of People with Mental Disabilities: The European Convention on Human Rights, 9 Eur. J. Health L. 293, 294–316 (2002); European Comm. for the Prevention of Torture & Inhuman or Degrading Treatment or Punishment, Report on Visit to Romania, Ref. CPT/Inf(98)5, Council of Europe ¶ 177 (Feb. 19, 1998), http://www.cpt.coe.int/documents/rom/1998-05-inf-fra-1.htm (reporting on sixty-two deaths at the Poiana Mare Psychiatric Institution, of which twenty-five were attributed to severe protein and calorific malnutrition); Report to the Bulgarian Government on the Visit to Bulgaria Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Doc. CPT/Inf ¶ 174 & n.16 (Jan. 28, 2002) (reporting deaths at the Terter Social Care Home, including causes attributable to asphyxia and hypothermia).

30 . See, e.g., Inter-Am. Comm’n H.R., Annual Report of the Inter-American Commission on Human Rights 2003, OEA/Ser.L/V/II.118, doc. 70 rev. 2 ¶ 60 (2004); Congo v. Ecuador, Case 11.427, Inter-Am. Comm’n H.R., Report No. 63/99, OEA/Ser.L/V/II.102, doc. 6 rev. ¶ 59 (1999).

31 . See generally MDRI Judge Rotenberg Center Report, supra note 22, at 1; Press Release, Amnesty Int’l, Bulgaria: Disabled Women Condemned to ‘Slow Death’ (Oct. 10, 2001) (on file with author), available at http://www.amnesty.org/en/library/asset/EUR15/002/2001/en/ 02db7d67-d8d7-11dd-ad8c-f3d4445c118e/eur150022001en.pdf; Mental Disability Advocacy Ctr., Liberty Denied: Mental Disability Detention in Hungary 8 (2004), available at http://mdac.info/sites/mdac.info/files/English_Liberty%20Denied.pdf.

32 . See, e.g., Leandro Despouy, Human Rights and Disabled Persons ¶¶ 179–82 (United Nations 1993), available at http://www.un.org/esa/socdev/enable/dispaperdes0.htm.

33 . The founding of the Mental Disability Rights International organization was the direct result of the failure of Human Rights Watch (HRW) to include disability rights in its agenda, a fact that was readily acknowledged by the Executive Director of HRW at the beginning of the CRPD process. See MDRI Kosovo Report, supra note 17, at 22. The work of Mental Disability Advocacy Centre (MDAC) in Budapest is also of particular note and has resulted in successful strategic litigation before the European Court of Human Rights and credible documenting and reporting. See Press Release, Mental Disability Advocacy Ctr., Why Must People with Disabilities Turn to the European Court of Human Rights for Protection? (Aug. 23, 2007), available at http://mdac.info/MEDIA+RELEASE+23.08.2007. Also, note that mainstream human rights organizations, including both HRW and Amnesty International, focused on the horrific conditions of detention among political prisoners while ignoring the very same conditions imposed on persons with disabilities. See Janet E. Lord, Disability Rights and the Human Rights Mainstream, in The International Struggle for New Human Rights 83 (Clifford Bob ed., 2009).

34 . See CRPD, supra note 1, annex I(k).

35 . See UDHR, supra note 23, art. 5.

36 . Id.

37 . See ICCPR, supra note 23, art. 7.

38 . Id.

39 . See CPHRFF, supra note 28, art. 3. Trenchantly, during the negotiation of the European Convention, the British representative proposed amending the text to make the torture provision considerably more detailed such that (1) torture would be recognized as a crime against humanity; (2) torture would never be justified under any circumstances; (3) the prohibition would encompass any kind of torture, even that carried out by “private organizations”; (4) the prohibition would extend to beating, “imprisonment with such an excess of light, darkness, noise or silence as to cause mental suffering,” as well as to mutilation and sterilization; and (5) no person shall “be forced to take drugs nor shall they be administered to him without his knowledge and consent.” 2 Council of Europe, Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights 2–4 (1975). The detailed proposal was eventually withdrawn, not on the basis that such conduct was permissible, but rather that singling out specific instances of torture whilst excluding others would undermine the scope of the prohibition. A leading commentator has concluded that the resulting Article was intended by the drafters of the ECHR to constitute “a very sweeping ban, so broad as to embrace all the forms of torture or inhuman treatment” included in the proposal of the British representative. A. Cassese, Prohibition of Torture and Inhuman or Degrading Treatment or Punishment, in The European System for the Protection of Human Rights 225, 228 (R. St. J. Macdonald et al. eds., 1993); Organization of American States, American Convention on Human Rights art. 5, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; Organization of American States, Inter-American Convention to Prevent and Punish Torture art. 2, Sept. 12, 1985, O.A.S.T.S. No. 67, 25 I.L.M. 519; African Charter on Human and Peoples’ Rights art. 5, June 27, 1981, 1520 U.N.T.S. 217.

40 . See American Convention on Human Rights, supra note 39, art. 5; see also Inter-American Convention to Prevent and Punish Torture, supra note 39, art. 2.

41 . See Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Held at Geneva in 1955, and Approved by the Economic and Social Council by its Resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 (Aug. 30, 1955), http://www2.ohchr.org/english/law/pdf/treatmentprisoners.pdf (providing in Rule 3: “Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.”).

42 . See Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, art. 5, U.N. Doc. A/RES/34/169 (Dec. 17, 1979) (“No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”).

43 . See Principles of Medical Ethics, G.A. Res. 37/194, principle 2, U.N. Doc. A/RES/37/194 (Dec. 18, 1982) (“It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.”).

44 . See Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. Doc. A/RES/43/173 (Dec. 9, 1988), available at http://www2.ohchr.org/english/law/pdf/bodyprinciples.pdf.

45 . See CAT, supra note 24.

46 . The Convention Against Torture defines torture as:

“[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incident to lawful sanctions.” Id. art. 1, ¶ 1.

47 . For the work of the Committee against Torture, see U.N. Office of the High Comm’r for Human Rights, Fact Sheet No. 17, The Committee Against Torture, 2–5 (Jan. 1992), http://www.unhcr.org/refworld/docid/4794773d2.html.

48 . The Special Rapporteur was appointed by the United Nations Commission on Human Rights in Resolution 1985/33, and is mandated to examine questions pertaining to torture in consideration of all countries, irrespective of whether a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Office of the U.N. High Comm’r for Human Rights, http://www2.ohchr.org/english/issues/ torture/rapporteur/ (last visited Oct. 15, 2011).

49 . Human Rights Council, G.A. Res. 60/251, ¶¶ 3, 5(g), (i)–(j), U.N. Doc. A/Res/60/251 (Apr. 3, 2006).

50 . See Nowak Interim Report, supra note 6, at 2.

51 . The Protection of Persons with Mental Illness and the Improvement of Mental Health Care, G.A. Res. 46/119, principle 1.2, U.N. Doc. A/RES/46/119 (Dec. 17, 1991) [hereinafter MI Principles]. For more on the MI Principles, see Eric Rosenthal & Leonard S. Rubenstein, Human Rights Advocacy Under the “Principles for the Protection of Persons with Mental Illness,” 16 Int’l J.L. & Psychiatry 257 (1993).

52 . MI Principles, supra note 51, principle 1.3.

53 . Id. principle 10.1.

54 . Id. arts. 6–8, 13, 15.

55 . Caroline Gendreau, The Rights of Psychiatric Patients in the Light of the Principles Announced by the United Nations: A Recognition of the Right to Consent to Treatment?, 20 Int’l J.L. & Psychiatry 259, 276 (1997).

56 . MI Principles, supra note 51, principle 11.4.

57 . See id.

58 . See World Network of Users and Survivors of Psychiatry, Submission to the United Nations Ad Hoc Committee on a Comprehensive & Integral International Convention to Promote & Protect the Rights & Dignity of Persons with Disabilities, pmbl. (2003), http://un.org/esa/socdev/enable/rights/contrib-wnusp.htm [hereinafter WNUSP Position] (asserting that the MI Principles do not reflect international human rights standards and should not be regarded as a legitimate instrument). For an explanation of the divergence of opinion on the MI Principles, see Rosemary Kayess & Phillip French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities, 8 Hum. Rts. L. Rev. 1, 15 (2008). As Kayess and French accurately note, the International Disability Caucus (IDC), in its advocacy position on the CRPD preambular language, sought to omit any mention of the MI Principles as historical antecedents of the CRPD among two other earlier instruments. These omissions “were intensely pursued by the IDC, which sought to negate any relationship between these instruments and the CRPD, and thereby to limit any future reliance upon them for the purposes of interpreting and applying CRPD rights. The IDC’s objections were focused on these instruments’ perceived derivation from the medical model and their approval or acceptance of institutionalization, substitute decision-making, and the compulsory treatment of persons with disability.” Id. at 24–25.

59 . See Cecilia Albin, Justice and Fairness in International Negotiation 228 (2001).

60 . For more on this fraught and embittered advocacy between anti-psychiatry survivors and those adopting a alternative perspective, see Janet E. Lord, Mirror, Mirror on the Wall: Voice Accountability and NGOs in Human Rights Standard Setting, 5 Seton Hall J. Dipl. & Int’l Rel. 93, 100–01 (2004).

61 . NGOs such as DRI routinely invoke the MI Principles in human rights reporting, in particular the procedural safeguards reflected therein that serve as checks on the arbitrary decision-making of mental health professionals. See also OCHR Report, supra note 6, at 6–8 (discussing the importance of the CRPD as a means to prevent forced psychiatric intervention).

62 . World Programme of Action Concerning Disabled Persons, G.A. Res. 37/52, U.N. Doc. A/RES/37/52 (Dec. 3, 1982).

63 . See United Nations, World Programme of Action Concerning Disabled Persons ¶ 49, available at http://www.leeds.ac.uk/disability-studies/archiveuk/united%20nations /world%20programme.pdf (“Victims of torture who have been disabled physically or mentally, not by accident of birth or normal activity, but by the deliberate infliction of injury, form another group of disabled persons.”); see also id. ¶ 168 (“Incidents of gross violation of basic human rights, including torture, can be a cause of mental and physical disability. The Commission on Human Rights should give consideration, inter alia, to such violations for the purpose of taking appropriate ameliorative action.”). Note, however, that the World Programme of Action, adopted in 1982, is very much a product of its time because it conflates disability rights with disability prevention and often echoes a decidedly medical model approach.

64 . Standard Rules on the Equalization of Opportunities for Persons with Disabilities, G.A. Res. 48/96, U.N. Doc. A/RES/48/96 (Mar. 4, 1994).

65 . See id. As mentioned in note 58, supra, earlier soft law instruments adopted during the 1970s fell into desuetude during negotiations due to their outmoded and controversial disability characterizations. These included both the Declaration on the Rights of Mentally Retarded Persons, G.A. Res. 2856 (XXVI), U.N. Doc. A/RES/26/2856 (XXVI) (Dec. 20, 1971) and the Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), U.N. Doc. A/RES/30/3447 (Dec. 9, 1975).

66 . For a discussion of violations of human rights and humanitarian law as factors causing disability, see Despouy, supra note 32, ¶¶ 119–26. International humanitarian law largely reflects medical/charity approaches to disability that rights-based and social/contextual models of disability have disparaged. See Janet E. Lord & Michael A. Stein, Social Rights and the Relational Value of the Rights to Participate in Sport, Recreation, and Play, 27 B.U. Int’l L.J. 249, 255 (2009) (noting that “[t]he shifting perspective of the social model, in contrast to the traditional medical model approach, reveals that the many factors exogenous to a disabled person’s own limitations are really what determine the extent to which that individual will be able to function in a given society”). Still, it should be noted that international humanitarian law is a minimalist regime, seeking not to restructure or work systemic change in society; rather, it seeks to secure a protective veil around particularly vulnerable groups in armed conflict situations.

67 . See United Nations General Assembly, 61st Sess., U.N. Doc No. A/61/611 (Dec. 6, 2006), http://www.un.org/esa/socdev/enable/rights/convtexte.htm [hereinafter United Nations General Assembly, 61st Sess.].

68 . See CRPD, supra note 1, art. 15.

69 . See, e.g., UDHR, supra note 23, art. 5; ICCPR, supra note 23, art. 7.

70 . See CRPD, supra note 1. Article 15 must be read with reference to the articles of general application in the CRPD (Articles 1 through 9) and holistically, with reference to all other articles of the CRPD. For an overview of the structure and substantive obligations of the CRPD, see Process, Substance and Prospects, supra note 2, at 495–96, 500–04.

71 . For a more detailed discussion of disagreements regarding past and future conventions, see Aaron A. Dhir, Human Rights Treaty Drafting Through the Lens of Mental Disability: The Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 41 Stan. J. Int’l L. 181, 191–96 (2005). I have argued elsewhere that accounts of international law-making tend to overgeneralize and exaggerate processes of norm development, either because of the international lawyer’s drive to prove the existence and relevance of legal norms or the interest of the international relations scholar to prove the power of non-State actors in norm development, maintenance, and change. See Janet E. Lord, Normative Landscaping: Power and Norms within Human Rights Law-Making Processes, Paper presented at Annual International Studies Association Conference, Honolulu, HI, March 2005 (on file with author).

72 . See Process, Substance and Prospects, supra note 2; see also Martha Finnemore, National Interests in International Society 3 (1996) (suggesting that the effects of norms are shared understandings according to which actor identities and interests are shaped).

73 . See infra notes 78–145 and accompanying text.

74 . See Kayess & French, supra note 58, at 20 (noting that “[t]he GA mandate under which the CRPD was developed stipulated that the negotiating Committee was not to develop any new human rights, but was to apply existing human rights to the particular circumstances of persons with disability”). For Michael Byers’ fascinating (but underappreciated) work on norm maintenance, development, and change within the context of customary international law, see Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999) (applying an interdisciplinary perspective to study power and rules within the customary international law process; more specifically, the work examines an interactive and evolving customary law process that is shaped by State relations and poignantly structured by existing rules despite power differentials).

75 . Jutta Brunnée, COPing with Consent: Law-Making Under Multilateral Environmental Agreements, 15 Leiden J. Int’l L. 1, 6 (2002).

76 . See Clifford Bob, Fighting for New Rights, in The International Struggle for New Human Rights 1, 30 (Clifford Bob ed., 2009).

77 . Malcolm Gladwell refers to the “stickiness factor” in his book, The Tipping Point, to discern the ingredient of a message that makes it memorable and gives it staying power. Normative stickiness, as used here, is similar because it understands the power of context and normative evolution’s sensitivity to the conditions and circumstances in which normative claims are made and deployed. See Malcolm Gladwell, The Tipping Point: How Little Things Can Make A Big Difference 19, 92 (2002).

78 . See, e.g., Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Convention on the Rights of Persons with Disabilities: Working Paper by Mexico, art. 9, July 29–Aug. 9, 2002, U.N. Doc. A/AC.265/WP.1 [hereinafter Mexico Working Paper on Convention] (prescribing measures to prohibit sexual abuse and degrading treatment of persons with mental disabilities, and proposing strict regulation of psychiatric institutions); Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on the Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Convention on the Rights of Persons with Disabilities: A Proposed Draft Text by China, arts. 5, 12 (Dec. 11, 2003), http://www.un.org/esa/socdev/enable/rights/wgcontrib-china.htm [hereinafter Proposed Draft by China] (ensuring the freedom and independence of persons with disabilities and designating hate crimes against persons with disabilities as “aggravated criminal behavior”); cf. Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Draft Submitted by the Government of the Bolivarian Republic of Venezuela, arts. 11–12, 17, June 16–27, 2003, U.N. Doc A/AC.265/2003/WP.1 [hereinafter Venezuela Draft] (proscribing various forms of violence and abuse and medical experimentation, though failing to reference the torture prohibition).

79 . Article 9 of the Mexican proposal provided: “States Parties recognize that persons with disabilities are particularly vulnerable to different forms of violence, as well as torture and other cruel, inhumane or degrading treatment or punishment, in public and private spheres. Therefore, States shall guarantee respect for the dignity and integrity of persons with disabilities.” Mexico Working Paper on Convention, supra note 78, art. 9. A legal analysis of the text noted that while the proposal recognizes that people with disabilities are vulnerable to various forms of violence, the provision was not couched in terms of an explicit prohibition in line with existing international human rights law. Rather, it required States to guarantee respect for dignity and integrity and, in that sense, represented weaker protection. See Janet E. Lord & Katherine N. Guernsey, Legal Commentary on the Mexico Proposal, submitted to the Permanent Mission of Mexico to the United Nations (Winter 2002) (on file with author).

80 . Id. at 9–10.

81 . Id.

82 . Perhaps the best example of the influence of the Mexican proposal was the inclusion of a provision with an amplified Conference of States Parties, an innovation for human rights treaties. See CRPD, supra note 1, art. 40; cf. Mexico Working Paper on Convention, supra note 78, art. 19 (originally proposing the provision).

83 . Regional Workshop Towards a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Oct. 14–17, 2003, Bangkok Draft: Proposed Elements of a Comprehensive and Integral International Convention to Promote and Protect the Rights of Persons with Disabilities, available at http://www.un.org/esa/ socdev/enable/rights/bangkokdraft.htm [hereinafter Bangkok Draft].

84 . See Report of the Working Group to the Ad Hoc Committee, Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on the Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Jan. 5–16, 2004, annex I, art. 11, U.N. Doc. A/AC.265/2004/WG.1 (Jan. 27, 2004), available at http://www.un.org/esa/socdev/enable/documents/ahcwgreport.pdf [hereinafter Working Group Report].

85 . Bangkok Draft, supra note 83, art. 12, ¶ 1 (“No person with disability shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation [or intervention].”).

86 . ICCPR, supra note 23, art. 7.

87 . Bangkok Draft, supra note 83, art. 12, ¶ 1.

88 . See id. art. 2, ¶ 4.

89 . See id. art. 12, ¶ 1.

90 . See id. art. 12, ¶ 2.

91 . See id. (“Where any person with disability is unable to give free and informed consent, no intervention shall occur unless a form of consent is given on their behalf by a duly authorized authority.”).

92 . See Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Views submitted by Governments, Note by the Secretary-General, ¶ 66, UN Doc. A/AC.265/2003/4+A/AC.265/ 2003/4/Corr.1 (June 16–27, 2003).

93 . See CRPD, supra note 1, art. 12, ¶ 4.

94 . Bangkok Draft, supra note 83, art. 12, ¶ 2 (“Everyone has the right not to be subjected to forced or coerced interventions of a medical nature or otherwise, aimed at correcting, improving, or alleviating any actual or perceived impairment.”).

95 . Id. art. 12, ¶ 3 (“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect persons with disabilities, in particular, women and children with disabilities, from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.”).

96 . See CRPD, supra note 1, art. 15.

97 . See Contributions Submitted by Governments in Electronic Format at the Fourth Session, Proposed Modifications to Draft Article 11: Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment, art. 11, ¶¶ 1–2, http://www.un.org/esa/socdev/enable/rights/ ahc4da11.htm [hereinafter Fourth Session Modifications].

98 . Id.

99 . Working Group on the Convention on the Rights of People with Disabilities, Working Group Daily Summary, Vol. 3, No. 3, 4 (January 7, 2004), http://web.archive.org/web/ 20080511214655/http://www.worldenable.net/rights/wg1meetsummary03.htm (accessed through the Internet Archive) [hereinafter Working Group Daily Summary].

100 . Id. art. 11(1)–(2).

101 . See generally Working Group Daily Summary, supra note 99.

102 . Id.

103 . Id.

104 . Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on the Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Rep. on its 3rd Sess., May 24–June 4, 2004, 26 n.38, U.N. Doc. A/AC.265/2004/5 (June 9, 2004), http://www.un.org/esa/socdev /enable/documents/ahc3reporte.pdf [hereinafter Report on Third Session] (“Members of the Working Group had differing opinions on whether forced intervention and forced institutionalization should be dealt with under ‘Freedom from torture’, or under ‘Freedom from violence and abuse’, or under both. Some members also considered that forced medical intervention and forced institutionalization should be permitted in accordance with appropriate legal procedures and safeguards.”).

105 . See Working Group Report, supra note 84, at 17 n.38.

106 . The position of the World Network of Users and Survivors of Psychiatry, articulated at the Third Session, held constant throughout the negotiations, namely, that forced interventions constitute torture and that they must be proscribed in the torture provision as opposed to addressed in another article. See WNUSP Position, supra note 58. This position was endorsed at the Third Session by Kenya. See Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention to Promote & Protect the Rights of Persons with Disabilities, Daily Summary of Third Meeting, Vol. 4, No. 3 (May 26, 2004), available at http://www.un.org/esa/socdev/enable/ rights/ahc3sum26may.htm [hereinafter Summary of Third Meeting].

107 . WNUSP Position, supra note 58. For more discussion on the drafting of the CRPD provisions concerning persons with mental disabilities, see Dhir, supra note 71.

108 . See WNUSP Position, supra note 58.

109 . Report on Third Session, supra note 104, art. 11, ¶ 1; see Summary of Third Meeting, supra note 106.

110 . Report on Third Session, supra note 104, art. 11, ¶ 2; see Summary of Third Meeting, supra note 106.

111 . Report on Third Session, supra note 104, art. 11, ¶ 2.

112 . See ICCPR, supra note 23, art. 7.

113 . Report on Third Session, supra note 104, art. 11, ¶ 1. At the Fifth Session, the Coordinator referred Article 11 to a Facilitator, Ms. Carina Mårtensson. Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on the Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Rep. on its 5th Sess., Jan. 24, 2007–Feb. 4, 2007, ¶ 39, U.N. Doc. A/AC.265/2005/2 (Feb. 23, 2005), available at http://www.un.org/esa/socdev/enable/rights/ ahc5docs/ahc5reporte.pdf [hereinafter Report on Fifth Session].

114 . See Report on Third Session, supra note 104, art. 11, ¶ 3; Summary of Third Meeting, supra note 106. The amendment on monitoring proposed by Mexico provided: “In order to monitor living conditions and facilities of places where persons with disabilities are placed, international instruments shall be applied, as appropriate, including the Optional Protocol of the Convention against Torture, for the realization of visits by national or international bodies to detention centres.” Report on Third Session, supra note 104, art. 11, ¶ 3.

115 . See CRPD, supra note 1, art. 16, ¶ 3 (“In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.”).

116 . See, e.g., Proposed Draft by China, supra note 78, art. 7; Venezuela Draft, supra note 78, arts. 11–12, 17.

117 . See Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on the Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Rep. on its 4th Sess., ¶ 9, U.N. Doc. A/59/360, (Sept. 14, 2004), available at http://www.un.org/esa/socdev/enable/rights/ ahc4reporte.htm.

118 . See Fourth Session Modifications, supra note 97, art. 11, ¶ 2.

119 . See Summary of Third Meeting, supra note 106.

120 . See Ad Hoc Comm. on the Convention on the Rights of People with Disabilities, Daily Summary of Discussions Related to Article 11, Vol. 5, No. 4 (Aug. 26, 2004), available at http://www.un.org/esa/socdev/enable/rights/ahc4sumart11.htm.

121 . See New Zealand: Proposed Modifications to Draft Articles 11 and 12, Contributions to the Fifth Session of the Ad Hoc Committee on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, http://www.un.org/esa/ socdev/enable/rights/ahc5newzealand.htm [hereinafter New Zealand Proposed Modifications].

122 . Id. The new language proposed for a draft Article 12 (bis) provided:

1. States Parties shall take the necessary measures to ensure that medical or scientific, experimentation or interventions, including corrective surgery, aimed at correcting, improving or alleviating any actual or perceived impairment, are undertaken with the free and informed consent of the person concerned[.]

2. Such measures shall include the provision of appropriate and accessible information to persons with disabilities and their families[.]

3. States Parties shall accept the principle that forced institutionalisation of persons with disabilities on the basis of disability is illegal.

4. In countries where involuntary treatment has not been abolished it shall only be used only in exceptional circumstances prescribed by law and its use shall be minimised through the active promotion of alternatives[.]

5. States Parties shall ensure in any case of involuntary treatment of persons with disabilities that:

a. it is undertaken in accordance with the procedures established by law and with the application of appropriate legal safeguards[;]

b. the law shall provide that the interventions are in the least restrictive settings possible and the best interests of the person concerned will be fully taken into account[; and]

c. forced interventions are appropriate for the person and provided without financial cost to the individual receiving the treatment or to his or her family.

Australia reflected the view of many States during the course of the negotiations on Article 11 in stating that “a simple blanket ban on involuntary interventions or care of any kind, without the consideration that this may be necessary in some occasions with appropriate legal procedures and safeguards, is not acceptable.” Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Daily Summary of Discussion at the Fifth Session, Vol. 6, No. 5 (Jan. 28, 2005), http://www.un.org/esa/socdev/ enable/rights/ahc5sum28jan.htm.

123 . See Report on Fifth Session, supra note 113, ¶¶ 36–42.

124 . See id. ¶ 36.

125 . See id. ¶ 37.

126 . See id. ¶¶ 38–42.

127 . Id. ¶ 39. Thus, in the position paper of New Zealand submitted at the Fifth Session, it was emphasized that care should be taken “to separate the right to free and informed consent from issues related to torture and abuse.” Furthermore, “[u]nlike torture or violence there are exceptions to the right to free and informed consent.” Also, “[i]f this convention is to outline these exceptions, which essentially allow for some forms of involuntary treatment, then they must be given strong qualifiers and detailed attention.” New Zealand Proposed Modifications, supra note 121.

128 . See Report on Fifth Session, supra note 113, ¶ 39.

129 . See Int’l Covenant on Civil & Political Rights, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (Mar. 10, 1992), http://www.unhcr.org/refworld/docid/453883fb0.html [hereinafter CCPR General Comment No. 20].

130 . See Report on Fifth Session, supra note 113, ¶ 39.

131 . See id. ¶ 40.

132 . See id. ¶ 41.

133 . See id.

134 . See Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Letter dated 7 October 2005 from the Chairman to all members of the Committee, ¶ 62, U.N. Doc. A/AC.265/2006/1 (Oct. 14, 2005), http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm.

135 . See Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on the Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Report of the Coordinator to the Fifth Session, Draft Article 11, http://www.un.org/esa/socdev/enable/rights/ahcstata15fisreport .htm.

136 . See Int’l Disability Caucus, Chairman’s Text as Amended by the International Disability Caucus art. 17 (Working Paper), available at http://www.un.org/esa/socdev/enable/rights/ ahc7docs/ahc7idcchairamend1.doc (last visited Oct. 15, 2011) [hereinafter IDC Chairman’s Text].

137 . See Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Daily Summary of Discussion at the Seventh Session, Vol. 8, No. 4, art. 15 (Jan. 19, 2006), http://www.un.org/esa/socdev/enable/ rights/ahc7sum19jan.htm.

138 . See IDC Chairman’s Text, supra note 136, art. 17.

139 . See Working Group Report, supra note 84, art. 11, ¶ 2.

140 . See ICCPR, supra note 23, art. 7.

141 . See Nowak, supra note 25, at 138; see also Zaim M. Nedjati, Human Rights Under the European Convention, in 8 European Studies in Law 61, 63 (A.G. Chloros ed., 1978) (“Having regard to the travaux préparatoires of the UN Covenant text . . . it would appear that there was no intention in Article 7 of the Covenant to exclude genuine medical experiments or to prohibit practices which might be permitted in European Member States, such as experiments with the fluoridation of water.”).

142 . See Fourth Session Modifications, supra note 97, draft art. 11, ¶ 2.

143 . Working Group Report, supra note 84, draft art. 11, ¶ 2.

144 . See generally Fourth Session Modifications, supra note 97, draft art. 11 (European Union proposing to delete the phrase “and shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment”).

145 . Footnote 38 to the Working Group draft Article 11 reads:

Members of the Working Group had differing opinions on whether forced intervention and forced institutionalization should be dealt with under ‘Freedom from torture’, or under ‘Freedom from violence and abuse’, or under both. Some members also considered that forced medical intervention and forced institutionalization should be permitted in accordance with appropriate legal procedures and safeguards.

Working Group Report, supra note 84, draft art. 11, n.38.

146 . See id.

147 . See, e.g., Ad Hoc Comm. on a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, Seventh Session, Comments, Proposals and Amendments Submitted Electronically, http://www.un.org/esa/socdev/enable/ rights/ahcstata15sevscomments.htm#argentina [hereinafter Seventh Session Electronic Submissions]

148 . CRPD, supra note 1, art. 15.

149 . See ICCPR, supra note 23, art. 7.

150 . CRPD, supra note 1, art. 15.

151 . See ICCPR, supra note 23, pmbl & art. 1 (applying the ICCPR to all individuals without restriction).

152 . See Committee Against Torture, Office of the U.N. High Comm’r for Human Rights, http://www2.ohchr.org/english/bodies/cat (last visited Oct. 15, 2011). Alignment with the ICCPR occurred during the Seventh Session of negotiations, upon a proposal by the Latin American and Caribbean Group. See Seventh Session Electronic Submissions, supra note 147; see also Marianne Schulze, Understanding the UN Convention on the Rights of Persons with Disabilities 99 (Handicap International ed., 2009), available at http://www. handicap-international.fr/fileadmin/documents/publications/HICRPDManual.pdf (asserting that the language of Article 15 can be found in ICCPR Article 7).

153 . See CRPD, supra note 1, art. 15.

154 . See id. art. 17.

155 . See Kayess & French, supra note 58, at 29–30.

156 . Id. at 30.

157 . See especially MDRI Hungary Report, supra note 7.

158 . CRPD, supra note 1, art. 3.

159 . See, e.g., Press Release, Human Rights Watch, Uzbekistan: Dissident Forced Into Psychiatric Detention (Sep. 2, 2005), available at http://hrw.org/english/docs/2005/09/03/ uzbeki11684.htm. For an illustration of where mainstream human rights organizations highlight abuses against political dissidents held in unacceptable conditions in psychiatric institutions, but pay no attention to the human rights situation of others held under the same conditions, see Press Release, Human Rights Watch, Uzbekistan: Psychiatric Punishment Used to Quash Dissent: Government Deploys Stalinist-Era Tactic Against Leading Human Rights Defender (Oct. 19, 2005), available at http://hrw.org/english/docs/2005/10/20/uzbeki11905.htm.

160 . See id.

161 . See CRPD, supra note 1, art. 15.

162 . See id. art. 16.

163 . Id. art. 17.

164 . IDC Chairman’s Text, supra note 136, arts. 15, 25.

165 . For example, the International Disability Alliance notes that Article 14 prohibits deprivation of liberty based on the existence of a disability. See Int’l Disability Alliance et al., OPCAT Monitoring of Psychiatric Institutions and Related Issues in Other Forms of Detention: CRPD Framework (Oct. 2009), http://www.internationaldisabilityalliance.org/wp-content/uploads /2009/10/IDAOPCATRecommendationsFinal.doc [hereinafter OPCAT Monitoring].

166 . Australia, for example, entered a declaration to Article 17 stating: “Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards.” Declarations and Reservations, U.N. Enable, http://www.un.org/disabilities/default .asp?id=475 (last visited Oct. 15, 2011).

167 . CRPD, supra note 1, art. 5. For a discussion of the three main normative theories of equality (and by implication, non-discrimination) that are applied to the disability context, see Gerard Quinn, The International Covenant on Civil and Political Rights and Disability: A Conceptual Framework, in Human Rights and Disabled Persons: Essays and Relevant Human Rights Instruments 69, 72–75 (Theresia Degener & Yolan Koster-Dreese eds., 1995) [hereinafter A Conceptual Framework].

168 . CRPD, supra note 1, art. 5, ¶ 1.

169 . Id. art. 5, ¶ 2.

170 . Id. art. 5, ¶ 3.

171 . Indeed, the stated purpose of the CRPD is: “While the Convention does not recognize any new human right of persons with disabilities, it clarifies the application of existing rights to the specific situation of persons with disabilities.” Annual Report of the United Nations High Comm’r for Human Rights and Reports of the Office of the High Comm’r and the Sec’y-Gen., U.N. High Comm’r for Human Rights, 10th Sess., Mar. 2–27, 2009, ¶ 11, U.N. Doc. A/HRC/10/48 (Jan. 26, 2009) [hereinafter OHCHR Report].

172 . See Schulze, supra note 152, at 69–70.

173 . CCPR General Comment No. 20, supra note 129, ¶ 4. Common elements pertaining to all acts within the torture and ill-treatment prohibition include: (i) meeting a minimum threshold level of severity; (ii) subjective and objective assessment; (iii) physical and or mental suffering fall within the scope of protection; (iv) the protection is not confined to the criminal investigation and judicial process. See Byrnes, supra note 23, at 217–20.

174 . For a useful analysis of this jurisprudence, see Colm O’Cinneide, Extracting Protection for the Rights of Persons with Disabilities from Human Rights Framework—Established Limits and New Possibilities, in The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives 224–29 (Oddný Mjöll Arnardóttir & Gerard Quinn eds., 2009).

175 . For a useful summary of these cases, see Mental Disability Advocacy Ctr., Summaries of Mental Disability Cases Decided by the European Court of Human Rights 13–72 (2007), available at http://mdac.info/sites/mdac.info/files/English_Summaries%20 of%20Mental%20Disability%20Cases%20Decided%20by%20the%20European%20Court%20of%20Human%20Rights.pdf [hereinafter Summaries of ECHR Cases].

176 . Price v. United Kingdom, 34 Eur. Ct. H.R. 53 (2002).

177 . Id.; see also Farbtuhs v. Latvia, App. No. 4672/02, Eur. Ct. H.R. (2004) (holding that the continued imprisonment of a disabled elderly prisoner with intensive support needs and several serious health conditions was inappropriate, because his continued detention would cause him permanent anxiety and a sense of inferiority and humiliation so acute as to constitute degrading treatment contrary to Article 3).

178 . See B. v. United Kingdom, App. No 6870/75, 1983 Y.B. Eur. Conv. on H.R. 6, ¶¶ 4–5 (Eur. Comm’n on H.R.) (finding that detaining a prisoner diagnosed with paranoid schizophrenia in Broadmoor Hospital does not violate Article 3, notwithstanding proven conditions of overcrowding, poor sanitation and hygiene, lack of appropriate employment and occupation, and lack of psychiatric treatment. The Commission’s assessment failed to consider the applicant’s mental disability or how the conditions could, in the aggregate, amount to inhuman treatment or punishment.); Chartier v. Italy, App. No. 9044/80, 33 Eur. Comm’n H.R. Dec. & Rep. 41, ¶¶ 4, 17 (1983) (rejecting an application because the applicant, a prisoner with hereditary obesity, respiratory problems, hypertension, and pancreatic diabetes held in a detention center for persons with physical disabilities and who required medical treatment unavailable where he was detained, received necessary treatment and because prison was likely a “particularly painful experience” given his serious health problems).

179 . See Byrnes, supra note 23, at 211 n.64.

180 . For human rights reporting and documentation by Disability Rights International, see MDRI reports, supra note 7.

181 . For human rights reporting and documentation by Mental Disability Advocacy Center, see Summaries of ECHR Cases, supra note 175.

182 . See MDAC Cage Beds Report, supra note 12, at 23–58.

183 . See European Comm. for the Prevention of Torture & Inhuman or Degrading Treatment or Punishment, The CPT Standards: “Substantive” Sections of the CPT’s General Reports, ¶¶ 47–50, CPT/Inf/E (2009), available at http://www.cpt.coe.int/en/documents/eng-standards.pdf. The Special Rapporteur has stressed that any prolonged use of restraints unquestionably violates the prohibition against torture or ill-treatment. See Nowak Interim Report, supra note 6, ¶ 55.

184 . See Nowak Interim Report, supra note 6, ¶¶ 55–56.

185 . See id. ¶ 63.

186 . See MDRI Rotenberg Center Report, supra note 22.

187 . CCPR General Comment No. 20, supra note 129, ¶ 6.

188 . See Congo v. Ecuador, supra note 30, ¶ 59. The Inter-American Commission approved precautionary measures to protect persons detained in a psychiatric hospital in Paraguay, including two teenage boys held in solitary confinement in miserable conditions for more than four years, in a case facilitated by DRI. See Inter-Am. Comm’n H.R., supra note 30, ¶ 60.

189 . See Nowak Interim Report, supra note 6, ¶¶ 77, 82. Note, too, that under the CAT definition of torture, the purpose element is fulfilled if disability discrimination is found. See CAT, supra note 24, art. 1.

190 . See, e.g., Mental Disability Rights Int’l, Torment not Treatment: Serbia’s Segregation and Abuse of Children and Adults with Disabilities 2 (2007), http://www2.ohchr.org/english/bodies/cat/docs/ngos/MDRI_Serbia41.pdf.

191 . See General Comment No. 2, supra note 26, ¶ 18; see also Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Rep. on the Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, ¶ 32, U.N. Doc. A/HRC/7/3 (Jan. 15, 2008) (by Manfred Nowak), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/101/61/PDF/ G0810161.pdf [hereinafter Nowak Report].

192 . See, e.g., Report on Fifth Session, supra note 113, ¶ 41.

193 . See CRPD, supra note 1, art. 15.

194 . See id. annex I–II.

195 . See CPHRFF, supra note 28, art. 3.

196 . Herczegfalvy v. Austria, 242-B Eur. Ct. H.R. (ser. A) (1992), 15 E.H.R.R. 437, available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695658& portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.

197 . Id. ¶¶ 25–28.

198 . Id. ¶ 82.

199 . Id.

200 . See CRPD, supra note 1, arts. 3, 4.3, 25.

201 . See, e.g., U.N. Human Rights Comm., Views of the Human Rights Committee Under Article 5, Paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Right, Communication No. 110/1981, ¶¶ 2.7, 14–15, U.N. Doc. CCPR/C/21/D/110/1981 (Mar. 29, 1984); see also Nowak Interim Report, supra note 6, ¶ 63. Here, Nowak asserts that “[t]he more intrusive and irreversible the treatment, the greater the obligation on States to ensure that health professionals provide care to persons with disabilities only on the basis of their free and informed consent” and that, otherwise, medical interventions “may constitute torture or cruel, inhuman or degrading treatment.” Id. ¶ 59.

202 . CRPD, supra note 1, art. 17.

203 . Id. art. 19.

204 . Id. art. 12.

205 . See Nowak Interim Report, supra note 6, ¶ 65.

206 . Id. ¶ 61.

207 . Id. ¶¶ 64–65.

208 . See OPCAT Monitoring, supra note 165, ¶ 7.

209 . In this regard, the Human Rights Committee, in its General Comment on Article 7, has helped to articulate the content of the duty on the part of States in fulfilling its protective function. Effective protection in this regard entails the establishment of oversight mechanisms, including prompt investigation of complaints about torture and ill-treatment, responsibility on the part of torturers and the provision of effective domestic remedies, including compensation. Int’l Covenant on Civil & Political Rights, General Comment No. 7: Torture or Cruel, Inhuman or Degrading Treatment or Punishment ¶ 1 (May 30, 1982), http://www.unhchr.ch/tbs/doc.nsf/%28 Symbol%29/7e9dbcf014061fa7c12563ed004804fa?Opendocument.

210 . CAT Article 1 restricts the definition of torture to acts according to which “pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” CAT, supra note 24, art. 1. Nonetheless, it is well established that “consent and acquiescence by a public official clearly extends state obligations into the private sphere” and should likewise, in accordance with the clear intention of the drafters of the CPRD, “be interpreted to include state failure to protect persons within its jurisdiction from torture and ill-treatment committed by private individuals,” as so often such violence against persons with disabilities occurs in this sphere. Nowak Report, supra note 191, ¶ 31.

211 . CCPR General Comment No. 20, supra note 129, ¶ 2. See Andrew Clapham, Human Rights in the Private Sphere 184–244 (1993).

212 . See, e.g., Mexico Working Paper on Convention, supra note 78, arts. 9, 13; Nowak Interim Report, supra note 6, ¶ 51; General Comment No. 2, supra note 26, ¶ 17.

213 . See Nowak Interim Report, supra note 6, ¶ 51; General Comment No. 2, supra note 26, ¶ 17. The Special Rapporteur stated that: “the prohibition against torture related not only to public officials, such as law enforcement agents in the strictest sense, but may apply to doctors, health professionals, and social workers, including those working in private hospitals.” Nowak Interim Report, supra note 6, ¶ 51. Note, too, that the Inter-American Court of Human Rights found a private psychiatric hospital liable under international law in the Ximenes-Lopes case. Ximenes-Lopes v. Brazil, 2006 Inter-Am. Ct. H.R. (Ser. C) No. 149 (July 4, 1996), available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_149_ing.pdf.

214 . See, e.g., Persons Living with Psychosocial Disabilities in Kenya, United Nations, http://www.un.org/disabilities/documents/mental_disabilities_kenya.doc (last visited Oct. 15, 2011).

215 . See Nowak Interim Report, supra note 6, ¶ 69.

216 . Cf. Nowak Report, supra note 191, ¶¶ 45–46 (discussing intimate partner violence and State acquiescence in domestic violence taking many forms); see A. v. United Kingdom, App. No. 100/1997/884/1096 Eur. Ct. H.R. (1998), available at http://cmiskp.echr.coe.int/tkp197/view .asp?action=html&documentId=696109&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (holding that the U.K. had violated Article 3 in a case where a stepfather was acquitted by the English Court for repeatedly beating his stepson on a defense of “reasonable chastisement” and that “the failure to provide adequate protection constitutes a violation of Article 3 of the Convention,” id. ¶ 24.); Maria da Penha v. Brazil, Case 12.051, Inter-Am. Comm’n H.R., Report No. 54/01, OEA/Ser./L/V/II.111, doc. 20 rev. (2001) (The State was held responsible for failing to act with due diligence in a case where a woman suffered years of domestic abuse, leading to her permanent disability, and a lengthy fifteen year judicial investigation which was not concluded. The court reasoned, “discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts,” id. ¶ 56.).

217 . See CAT, supra note 24, arts. 15, 4; see also CRPD, supra note 1, art. 16.

218 . Thus, the Constitutional Court of South Africa has opined that imprisonment inevitably impairs the dignity of the prisoner. State v. Makwanyane, 1995 (3) SA 391 (CC) at 92–93, ¶¶ 142–43 (S. Afr.). As noted in the leading commentary on the South Africa Bill of Rights, “[t]he circumstances in which prisoners are placed necessarily mean that they will have to tolerate greater limitations of their rights, including their right to dignity, than other persons. But any infringement of prisoners’ rights must be justifiable with reference to the objectives of placing them in prison: that is the prevention of crime and the rehabilitation of the offender.” Iain Currie & Johan de Waal, The Bill of Rights Handbook 276 (5th ed. 2005).

219 . See Nowak Interim Report, supra note 6, ¶ 49.

220 . Case of Kudla v. Poland, 2000-XI Eur. Ct. H.R 199, 223, ¶ 92 (2000).

221 . See, e.g., Yildirim v. Turkey, App. No. 2778/02 Eur. Ct. H.R. (2007); Engel v. Hungary, App. No. 46857/06 Eur. Ct. H.R. (2010).

222 . Yildrim v. Turkey, supra note 221, ¶ 59.

223 . Id. ¶ 82.

224 . Keenan v. the United Kingdom, 2001-III Eur. Ct. H.R. (2001).

225 . Id. ¶ 116.

226 . Id. ¶ 115.

227 . See MDRI Rotenberg Center Report, supra note 22, at 28.

228 . DRI has documented punishments practiced at a Massachusetts facility under the guise of “aversive treatments,” a particularly severe form of behavioral modification, and has put forward a compelling legal analysis of such practices which run afoul of international (and domestic) human rights law. See generally MDRI Rotenberg Center Report, supra note 22, at 21–32.

229 . See Nowak Interim Report, supra note 6, ¶ 40.

230 . United Nations General Assembly, 61st Sess., supra note 67, art. 15.

231 . See Assenov v. Bulgaria, App. No. 24760/94, 28 Eur. H.R. Rep. 652, 652, 654–55 (1999) (holding that States must carry out an effective investigation where a person raises an arguable claim of an Article 3 violation by State agents, and that such investigation “should be capable of leading to the identification and punishment of those responsible”).

232 . See Jan Fiala, The Obligation to Investigate Torture of Persons with Disabilities: The Way Forward 56 (2010) (unpublished LL.M. thesis, Harvard Law School) (on file with author) (underscoring that procedures “will therefore have to be developed by the opinions and general comments of the Committee on the Rights of Persons with Disabilities, the body entrusted with interpreting it. The Committee should make the issue of effective investigation a high priority in order to give persons with disabilities an effective and timely remedy for the widespread violations they continue to suffer in many parts of the world”).

233 . See General Comment No. 2, supra note 26, ¶ 15; see also Fiala, supra note 232 (describing the emergence of an international obligation to investigate ill-treatment, tracking its development under the European Convention, which requires States to effectively investigate all allegations of ill-treatment, and its particular implications for CRPD Article 16).

234 . See CRPD, supra note 1, art. 25.

235 . The reports of DRI are particularly relevant in this regard. See MDRI reports, supra note 7.

236 . See Directory of Institutions, Int’l Coordinating Comm. of Nat’l Insts. for the Promotion and Prot. of Hum. Rts. (ICC), http://nhri.ohchr.org/EN/National/DirectoryOf Institutions/Pages/default.aspx.

237 . A specific role and responsibility for NHRIs is contemplated in Article 33(2) of the CRPD. CRPD, supra note 1, art. 33.

238 . ICCPR, supra note 23, art. 7. For discussion of the protections for research subjects under both the ICCPR and the MI Principles, see Eric Rosenthal, The International Covenant on Civil and Political Rights and the Rights of Research Subjects, in 4 Accountability in Res. 253, 253 (1996).

239 . See CRPD, supra note 1, art 15. The only variation in the formulation is the more modern framing of “his or her” found in the CRPD. United Nations General Assembly, 61st Sess., supra note 67, art. 15 (emphasis added).

240 . ICCPR commentators have noted the rationale for the inclusion of the language proscribing medical and scientific experimentation without informed consent. Twenty-three German physicians and administrators were criminally prosecuted by an American military tribunal for their willing participation in war crimes and crimes against humanity, including medical experimentation against disabled persons. Sixteen of the accused were found guilty, and seven were sentenced to death. See 1 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10 795–96, 801 (U.S. Government Printing Office 1949); The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation 63–65, 105 (George J. Annas & Michael A. Grodin eds., 1992); Bernard M. Dickens et al., Research on Human Populations: National and International Ethical Guidelines, 19 L. Med. & Health Care 157, 157–58 (1991).

241 . See Hugh Gregory Gallagher, By Trust Betrayed: Patients, Physicians, and the License to Kill in the Third Reich 53 (1995); Disability Rights Advocates, Forgotten Crimes: The Holocaust and People with Disabilities 27–29 (2001); Robert Proctor, Racial Hygiene: Medicine under the Nazis 41–43, 188–94 (1988); see also People With Disabilities, in 1 Encyclopedia of Genocide and Crimes Against Humanity 253, 257 (Dinah L. Shelton ed., 2004); Oliver Lewis, Protecting the Rights of People with Mental Disabilities: The European Convention on Human Rights, 9 Eur. J. Health L. 293, 293 (2002).

242 . For discussions of violations of human rights and of humanitarian law as factors causing disability, see Despouy, supra note 32, at 179–80; A Conceptual Framework, supra note 167, at 85.

243 . See CRPD, supra note 1, art. 15, ¶ 1. The only difference in the final formulation of the prohibition to the language in the ICCPR is the addition of gender sensitive language—”or her”—regarding the need for free consent.

244 . See id.

245 . See WNUSP Position, supra note 58. Such a prohibition would have had the consequence that any sort of treatment provided in the absence of informed consent would run afoul of the article, thereby creating considerable problems for a wide array of medical treatments provided in accordance with therapeutic necessity, including, of course, life-saving treatments in cases of medical emergencies.

246 . See Nowak, supra note 25, at 139.

247 . See Fiala, supra note 232, at 56.

248 . See MI Principles, supra note 51, principle 11, ¶ 14. Insofar as the CRPD does not explicitly address psycho-surgery, the MI Principles are an essential repository of standards that, in the absence of more specific guidelines articulated by the Committee on the Rights of Persons with Disabilities, must be accorded due weight and interpretive value.

249 . See A Conceptual Framework, supra note 167, at 84.

250 . CRPD, supra note 1, art. 3.

251 . Id. art. 12.

252 . See 2 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 181–82 (U.S. Government Printing Office 1949) [hereinafter 2 Trials of War].

253 . See CRPD, supra note 1, art. 15. The focus in Nowak’s interpretation on the physical harm done in such cases, and not on the harm resulting from the disrespect of the decisional authority of the human being concerned is therefore problematic. See generally Nowak Report, supra note 191, ¶ 80 (discussing the harmful results of solitary confinement, but not addressing the harms resulting from disrespect).

254 . See 2 Trials of War, supra note 252, at 181.

255 . See CRPD, supra note 1, arts. 15, 24–25.

256 . See Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, art. 17, ¶ 2, Apr. 4, 1997, E.T.S. No. 164, available at http://www.vib.be/NR/ rdonlyres/6EE92136-7F13-403F-83ED-05CD3506283B/0/conventionhumanrightsandbio medicine.pdf.

257 . See 2 Trials of War, supra note 252, at 181.

258 . CRPD, supra note 1, art. 6.

259 . Id. art. 3(g).

260 . See Nowak Report, supra note 191, ¶¶ 29–43; see also Human Rights Watch, “As If We Weren’t Human:” Discrimination and Violence against Women with Disabilities in Northern Uganda 32–34, available at http://www.hrw.org/sites/default/files/reports/uganda 0810webwcover_0.pdf.

261 . See MDRI Kosovo Report, supra note 33, at 12–15.

262 . See HIV/AIDS and Individuals with Disability, supra note 16, at 10.

263 . See id.

264 . See Nowak Report, supra note 191, at 8–9; see, e.g., Prosecutor v. Delalić, Case No. IT-96-21-T, Judgment, ¶¶ 475–96 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 1998), http://www.icty.org/x/cases/mucic/tjug/en/981116_judg_en.pdf; Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶¶ 172–73 (Sept. 2, 1998), http://www.unictr.org/Portals/0/Case/English /Akayesu/judgement/akay001.pdf.

265 . Nowak Report, supra note 191, ¶ 34.

266 . See id. ¶ 38.

267 . See generally Special Rapporteur on Violence Against Women, Its Causes and Consequences, Rep. on Violence Against Women, Its Causes and Consequences 18, Human Rights Council, U.N. Doc. A/HRC/14/22 (Apr. 23, 2010) (by Rashida Manjoo). CRPD Article 23(1)(c) obligates States Parties to ensure that “persons with disabilities, including children, retain their fertility on an equal basis with others” and, under Article 23(1)(b) to ensure their right to decide freely and responsibly on the number and spacing of their children. CRPD, supra note 1, art. 23, ¶ 1(b)–(c).

268 . Nowak Report, supra note 191, ¶ 38 (emphasis added).

269 . CRPD, supra note 1, art. 12.

270 . See id. arts. 3, 6, ¶¶ 2, 15.

271 . See id. art. 16, ¶ 5; see also U.N. Secretary-General, Guidelines on Treaty-Specific Document to be Submitted by States Parties Under Article 35, Paragraph 1, of the Convention on the Rights of Persons with Disabilities, art. 16, U.N. Doc. CRPD/C/2/3 (Nov. 18, 2009), available at http://www.ohchr.org/Documents/HRBodies/CRPD/CRPD-C-2-3.pdf.

272 . See Guy S. Goodwin-Gill, The Refugee in International Law 117 (2d ed. 1996) (defining the principle of non-refoulement to mean that “no refugee should be returned to any country where he or she is likely to face persecution or torture”).

273 . The Committee against Torture has on occasion reviewed communications involving expulsion and deportation in the context of the anti-torture framework of the CAT. See, e.g., Agiza v. Sweden, Decision of the Comm. Against Torture, Commc’n No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005), available at http://www1.umn.edu/humanrts/cat/decisions/233-2003.html.

274 . See, e.g., Balabou Mutombo v. Switzerland, Commc’n No. 13/1993, Report of the Comm. Against Torture, ¶ 3.1, U.N. Doc. CAT/C/12/D/013/1993 (Apr. 27, 1994), available at http://www.unhcr.org/refworld/docid/3ae6b6784.html.

275 . CCPR General Comment No. 20, supra note 129, ¶ 9.

276 . Gender-based violence impacting the risk of return would include, among others, rape and other forms of sexual violence, such as female genital mutilation, forced abortion, and forced sterilization. See Nowak Report, supra note 191, ¶¶ 59–60.

277 . See, e.g., Chahal v. United Kingdom, App. No. 22414/93, 23 Eur. H.R. Rep. 413, 415 (1997) (holding that the return to India of Karamjit Singh Chahal, a Sikh activist suspected of involvement in terrorism, would violate the United Kingdom’s obligations under the European Convention on Human Rights, despite assurances that Chahal would not suffer mistreatment); see also D. v. United Kingdom, 1997-III Eur. Ct. H.R. (1997) (removal of an alien drug courier dying of AIDS to his country of origin (St. Kitts) where he has no accommodation, family, moral or financial support, and no access to adequate medical treatment would be deemed a violation of Article 3). For a relevant communication before the Committee against Torture, see Mutombo v. Switzerland, supra note 274, ¶ 9.4 (“The Committee considers that, in the present circumstances, his return to Zaire would have the foreseeable and necessary consequence of exposing him to a real risk of being detained and tortured.”).

278 . D. v. United Kingdom, supra note 277.

279 . Id.

280 . Bensaid v. United Kingdom, App. No. 44599/98, Eur. Ct. H.R., ¶ 41 (2001).

281 . Salkic and Others v. Sweden, App. No. 7702/04 Eur. Ct. H.R., 11 (2004).

282 . Id.

283 . Id. at 10.

284 . Id. at 11.

285 . Examples of bogus medical practices predicated on the perception of disability include reparative therapies to “cure” gays and lesbians or violent “therapies” designed to exorcize or purge “demons.” See generally Sexual Conversion Therapy: Ethical, Clinical, and Research Perspectives (Ariel Shidlo et al. eds., 2001) (offering current perspectives on the harmful impact of sexual orientation “reparative” interventions). Customary practices in more traditional societies that may rise to the level of an Article 15 violation include forced ingestion of harmful substances to heal persons with psycho-social disabilities, which the author observed during field work in Ethiopia in 2002. Such cases could in theory trigger State responsibility under Article 15 but may, in practice, be difficult to demonstrably link to the State.

286 . See CRPD, supra note 1, art. 3.

287 . See id. arts. 5–7.

288 . See Summaries of ECHR Cases, supra note 175, at 25.

289 . See CRPD, supra note 1, arts. 2, 5.

290 . See Report on Third Session, supra note 104, art. 11, ¶ 2 n.38.

291 . See CRPD, supra note 1, art. 14, ¶ 1(a)–(b) (providing, inter alia, that “States Parties shall ensure that persons with disabilities, on an equal basis with others . . . [e]njoy the right to liberty and security of person . . . [a]re not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty”).

292 . See Andrew Byrnes, The Convention on the Elimination of All Forms of Discrimination Against Women and the Committee on the Elimination of Discrimination against Women: Reflections on Their Role in the Development of International Human Rights Law and as a Catalyst for National Legislative and Policy Reform 6 (revision of a paper submitted to the Commission on the Status of Women, 54th Session, Mar. 1–12, 2010).

293 . See Process, Substance and Prospects, supra note 2, at 508–09.

294 . Another provision whose implications are far from settled is Article 12, in particular the view put forward in some quarters that it requires abolishing the “insanity defense” in domestic criminal law. According to a Report issued by the OHCHR: “In the area of criminal law, recognition of the legal capacity of persons with disabilities requires abolishing a defence based on the negation of criminal responsibility because of the existence of a mental or intellectual disability.” OHCHR Report, supra note 171, ¶ 47.

295 . Kayess & French, supra note 58, at 34. They further acknowledge that “it will be important that disability human rights activists neither undervalue, nor overestimate, the role and scope of the CRPD and its potential contribution to securing the human rights of persons with disability into the future.” Id.

296 . Fiala, supra note 232, at 56.

297 . See generally Michael A. Stein & Janet E. Lord, Monitoring the Committee on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential, 32 Hum. Rts. Q. 691 (2010); Janet E. Lord & Michael A. Stein, The Committee on the Rights of Persons with Disabilities: An Opportunity to Provide Guidance on CRPD Interpretation and Engage with the Disability Community, 58 Int’l Rehab. Rev. 2 (2009).

298 . See Process, Substance and Prospects, supra note 2, at 509 (describing the Convention “as a process through which actor identities and interests are shaped and reconstituted”).

299 . See Geir Ulfstein, Reweaving the Fabric of International Law? Patterns of Consent in Environmental Framework Agreements, Comment, in Developments of International Law in Treaty Making 145, 145 (Rüdiger Wolfrum & Volker Röben eds., 2005) (applying the concept of “living treaty regime” to the constellation of institutions and procedures developed by multilateral environmental agreements).

Women with Disabilities: The Forgotten Peace Builders

STEPHANIE ORTOLEVA[*]

INTRODUCTION

Women across the world are standing their ground against political exclusion, but more must be done to ensure that a gender-sensitive approach is used, that all women have the opportunity to participate in building the rule of law and strengthening democracy, and that all women have a voice in decision-making processes post-conflict. Sustainable peace requires the inclusion of all groups affected by conflict at all stages in the peace-building process. Some progress has been made through a series of United Nations Security Council Resolutions, beginning with Resolution 1325 in 2000,[1] to give women a place at the table in post-conflict peace building and reconciliation; however, women with disabilities have not had a role in these processes, either in practice or formally through the various United Nations resolutions and policy documents.

Women with disabilities face unique challenges and offer unique perspectives. They have the capacity to make important contributions to the peace-building process and must be included to ensure that their needs and concerns are addressed and effectively represented. Emancipatory gender politics entails considering disability, along with ethnic origin, sexual orientation, and other identities. Groups which have traditionally been excluded, such as women with disabilities, deserve special attention: bringing their varied backgrounds, perspectives, and skills to the negotiating table and playing an important role in formulating and implementing policies that will affect society as a whole after conflict. This approach also strengthens democracy and fosters inclusive political participation. Therefore, existing programs, institutions, and mechanisms at all levels must strive to include the voices of women with disabilities, as resolutions, recommendations, and guidelines are drafted, as programs are designed and implemented on the ground, and as peace processes proceed.

Part I describes the situation of women with disabilities generally and in the conflict environment. Numerous issues affect women with disabilities disproportionately when compared to men with disabilities and women without disabilities. These include health, education, employment, violence, family rights, marriage, housing, and participation in public life, all of which are exacerbated by war and observed globally. Also, the impact of gender stereotyping and the double discrimination women with disabilities face—due to both their gender and their disability—are discussed. War and conflict increase the incidence of disability for women in general, and women with disabilities often develop additional or more severe disabilities as a result.[2] In addition to experiencing greater violence in general, women with disabilities also experience higher rates of gender-based violence during conflict, which could result in increased HIV infection and psychological trauma. Furthermore, refugee camps demonstrate the additional burdens these women may face due to the violence in these situations; although the women flee their homes and leave support systems behind, the facilities are rarely accessible and the programs are never designed to meet their specific needs.[3] Justice and post-conflict reconciliation activities generally do not include women with disabilities, nor are such programs made accessible to them or designed to include their concerns.[4] Although data on the situation of women with disabilities is referenced, there is a clear need for more detailed, standardized, and global data on these issues in order to more effectively address them.

Part II then reviews the evolution and legal framework of the United Nations Women, Peace and Security strategy, beginning with the post-World War II peace framework and outlining the genesis of the various United Nations resolutions. These include the conclusions of the Beijing Declaration progress review in 2000 (Beijing + 5), which highlighted the urgent need to include women in peace-keeping operations and peace-building activities.[5] Later in 2000, the groundbreaking United Nations Security Council Resolution 1325 was adopted by the United Nations Security Council, celebrating its tenth anniversary in 2010.[6] Despite the fact that Beijing + 5 pointed out the importance of including women with disabilities in these resolutions, a point which had been made in the original Beijing Declaration itself, women with disabilities were not referenced in Resolution 1325 or its various succeeding resolutions.[7] Furthermore, the strongly gender-sensitive approach outlined in the Resolution 1325 indicators, which are used internationally and nationally to assess whether the objectives of the resolution are being met, do not mention women with disabilities, nor do they include any measure of whether the gender-specific needs of women with disabilities are being satisfied during or after conflict.[8] When this issue is examined both generally and during conflict in particular, these deficits become even starker.

Part III further explores the intersection of the United Nations Convention on the Rights of Persons with Disabilities (CRPD),[9] the United Nations Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW),[10] and the United Nations Women, Peace and Security framework.[11] Both the CRPD and the CEDAW enumerate respectively the disability and gender impacts of war and conflict.[12] The CRPD has a strong gender focus and, in addition to a specific article on women, also weaves gender issues throughout its provisions.[13] In addition, the CRPD and the CEDAW both expand on the importance of understanding the negatives of stereotyping.[14] Several provisions, elaborated in both the CRPD and the CEDAW, are particularly relevant to peace-building programs (e.g., legal capacity, access to justice, and participation in political and public life).[15] Both the CRPD and the CEDAW also have strong monitoring mechanisms. For example, the United Nations itself has recognized the urgency of incorporating disability issues into all of its work following the adoption of the CRPD and has established the inter-agency support group to ensure such inclusion.[16] When all of the above are considered together, it becomes clear that women with disabilities must be included in peace-building efforts.

Part IV outlines current practices on the international, national, and regional levels to integrate women with disabilities into peace-building and development programs and also addresses whether a gender-sensitive approach has been utilized. Some positive steps for inclusion are explored and disparities between policies and practice are highlighted. Although the international community has addressed disability issues several times in the past, perhaps the most significant instance was when the World Programme of Action concerning Disabled Persons (World Programme of Action)[17] and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities[18] were developed. Although both of these instruments were primarily voluntary guidelines, each sought to achieve the equalization of opportunities for persons with disabilities and took a preventive and rehabilitative approach.[19] Moreover, it was not until the CRPD that the human rights of persons with disabilities were recognized, moving away from the long-standing view that disabled persons should garner pity and provoke charitable impulses, and thus moving towards the view that existing human rights principles apply to them as well. The CRPD encompasses specific substantive rights, including civil, political, economic, social, and cultural rights, placing persons with disabilities squarely within the international human rights framework.[20] Nonetheless, persons with disabilities are often ignored in development programs despite these advances.[21] Most significantly, the Millennium Development Goals (MDG), adopted by the international community as guidelines for development in the twenty-first century,[22] fail to mention persons with disabilities and also leave out women with disabilities in the specific goal focused on women.[23] Some inclusive guidelines have been circulated, but as demonstrated in Part I, women with disabilities have still failed to emerge from poverty and obtain educations (among other indices of development). Again, although some limited guidelines do exist, women with disabilities are generally absent from the United Nation’s Women, Peace and Security programs; their needs during conflict, in refugee camps, and after conflict are not met, and they are rarely part of any peace-building activities shaping their society post-conflict.[24] There are a few studies, however, of the participation of persons with disabilities in actual peace building that provide many lessons directing future research needs.[25]

Part V then recommends a detailed strategy for changing policy and practice. Some suggestions for modifications to Resolution 1325 are discussed, and some revised Resolution 1325 indicators are proposed as an impetus for future thought. Specific suggestions are made to increase the role of various United Nations entities, so that they more fully address issues concerning women with disabilities. One of these entities includes the recently established entity, U.N. Women. Furthermore, to address the fact that women with disabilities have rarely had access to post-conflict reconciliation and justice, this article suggests an increase in the awareness of prosecutors, courts, and post-conflict tribunals on the judicial system’s accessibility—with respect to physical facilities and communication—to women with disabilities. Of course, work in this area of gender-sensitive peace building must incorporate the CRPD Empowerment and Social Models[26] and Reasonable Accommodation and Accessibility Standards.[27] These must be developed in order to address the significant gaps in data and field-tested inclusive strategies and resources. If such changes are adopted, women with disabilities will have a greater opportunity to ensure that their needs are met and that societies are more inclusive and respectful of human rights post-conflict.

Finally, drawing on the rationale for the development of the United Nations Women, Peace and Security framework, as well as the information and analysis in this article, this article also highlights what will be lost if women with disabilities are not included in peace building. The objective is to ensure that society post-conflict is more inclusive of women with disabilities, that barriers are removed, and that human rights of women with disabilities are assured. A truly gender-sensitive peace process must include all women, which dictates that women with disabilities must be a part of such processes.

I. THE SITUATION OF WOMEN WITH DISABILITIES INTERNATIONALLY

AND IN CONFLICT ENVIRONMENTS

A. Background Disability and Gender Data

There are approximately one billion persons with disabilities in the world, or fifteen percent of the global population, and this number is increasing[28] due to population growth, aging of the population,[29] and war and conflict.[30] On June 9, 2011, the World Health Organization and the World Bank released a ground-breaking report entitled “World Report on Disability” noting a dramatic increase in estimates of the number of persons with disabilities worldwide.[31] About fifteen percent of the world’s population lives with some form of disability, of whom two to four percent experience significant difficulties in functioning.[32] Meanwhile, “[t]he global disability prevalence is higher than previous World Health Organization estimates, which date from the 1970s and suggested a figure of around 10%.”[33] The report found that this global estimate for disability is on the rise due to population aging[34] and the rapid spread of chronic diseases,[35] as well as improvements in the methodologies used to measure disability.[36]

A significant difference exists between the prevalence of disability (defined as “significant difficulties in their everyday lives”) in men and women: the male disability prevalence rate is twelve percent and the female disability prevalence rate is 19.2%, in both developing and more developed countries.[37]

An estimated 80 per cent of . . . persons [with disabilities] live in developing countries, many in conditions of poverty. In both developed and developing countries, evidence suggests that persons with disabilities are disproportionately represented among the world’s poor and tend to be poorer than their counterparts without disabilities. It is estimated that of the world’s poorest people, meaning those who live on less than one dollar a day and who lack access to basic necessities such as food, clean water, clothing and shelter, 1 in 5 is a person with disabilities. Given that persons with disabilities represent such a significant portion of the population, and are more likely to live in poverty than their peers without disabilities, ensuring that they are integrated into all development activities is essential in order to achieve international development goals.[38]

Persons with disabilities are the world’s largest minority.[39] Women are certainly at least half of the human population, and women with disabilities comprise at least a similar proportion of persons with disabilities.[40] According to those who led the effort to ensure that the rights of women with disabilities were incorporated into the CRPD:

Gender is one of the most important categories of social organisation, and patterns of disadvantage are often associated with the differences in social position of women and men. These gendered differences are reflected in the different life experiences of women with disabilities and men with disabilities. While women with disabilities have much in common with men with disabilities, women with disabilities have to face multiple discrimination in many cases, so that they are often more disadvantaged than men with disabilities in similar circumstances.[41]

B. Gender Stereotyping and Women with Disabilities

Women with disabilities experience both the stereotypical attitudes toward women and persons with disabilities. In the groundbreaking book, Gender Stereotyping: Transnational Legal Perspectives, Rebecca J. Cook and Simone Cusack define stereotyping as “a generalized view or preconception of attributes or characteristics possessed by, or the roles that are or should be performed by, members of the particular group (e.g., women, lesbians, adolescents).”[42]

Both the CEDAW and the CRPD recognize the role of stereotypes in the denial of human rights to women with disabilities. Article 5 of the CEDAW requires States to take all appropriate measures “[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”[43]

Moreover, the CRPD takes the CEDAW provisions one step further by recognizing that, in the case of women with disabilities, gender stereotypes can coincide with disability stereotyping to harm and discriminate against individuals in compounded ways.[44] The CRPD therefore recognizes the intersection of both gender and disability stereotypes in the case of women with disabilities; Article 8 requires States to undertake to adopt immediate, effective, and appropriate measures “[t]o combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life.”[45]

For those advocating for a separate article on women with disabilities and the inclusion of a gender perspective throughout the CRPD, the recognition of this compounded discrimination was crucial: “In addition to the multiple discrimination women with disabilities have to experience, they face the problem of a double invisibility as women and as disabled persons.”[46]

Michelle Fine and Adrienne Asch, authors of Disabled Women: Sexism Without the Pedestal, recognize the significant impact of these stereotypical views of women with disabilities and discuss the important function of social roles: “Rolelessness, the absence of sanctioned social roles and/or institutional means to achieve these roles, characterizes the circumstances of disabled women in today’s society . . . . The absence of sanctioned roles can cultivate a psychological sense of invisibility[,] . . . self-estrangement, and/or powerlessness.”[47] Nonetheless, the authors strongly note that we should not “see disabled women as neither helpless nor hopeless victims unwilling to change their circumstances.”[48] Thus, these stereotypes of women with disabilities would certainly contribute to understanding why women with disabilities are virtually absent from peace building, except when they are occasionally seen as victims.

C. Impact of Double Discrimination on Women with Disabilities

Numerous issues affect women with disabilities more disproportionately than they do men with disabilities and women without disabilities. These global issues include “health, education, employment, violence, family rights and participation in public life,”[49] as well as marriage and housing,[50] all of which are exacerbated by war.[51]

Although the literacy rate for adults with disabilities is three percent, only a meager one percent of women with disabilities are literate.[52] Additionally, women with disabilities have few opportunities for vocational training,[53] which, of course, makes it even more difficult for them to participate in peace-building activities and to advocate for their own rights. For this and many other reasons, women with disabilities have low employment rates, experience discriminatory hiring and promotion, do not receive equal pay for equal work, and are frequently steered into segregated and less remunerative occupations.[54] Credit and other productive resources are often denied to them. All of these factors contribute to the high poverty rates of women with disabilities and increase their marginalization.[55]

Inaccessible health care services are also a significant barrier for women with disabilities, with respect to physical inaccessibility of facilities, staff who lack the skills to communicate with women with various disabilities, and those who view them as asexual when it comes to the provision of sexual and reproductive health care services.[56] Moreover, gender-based discrimination, sexual and other forms of violence, poverty, armed conflict, dislocation, and other forms of social isolation and violence contribute to an increased risk of physiological and social disabilities among women.[57] All of these health care deficits are amplified when women with disabilities are subject to gender-based and other forms of violence.[58]

In addition, women with disabilities face significant barriers in accessing adequate housing services and, in conflict situations, scarce housing further exacerbates this problem for women with disabilities.[59]

D. Increased Incidence of Disability for Women in Conflict Situations

“Girls and women are more likely to become disabled as a result of violence, armed conflicts, aging and gender-biased cultural practices.”[60] This limits “their access to food, shelter, health care, safe working environments, marriage and social integration.”[61] These consequences can be seen pre-conflict, during conflict, and post-conflict.[62] Similarly, conflict situations cause more disability among women directly with injury through land mines, bombs, combat, and other factors incident to conflict.[63] Furthermore, a recent innovative and rigorous analysis of the impact of armed conflict on female life expectancy—relative to that of males—found that over the entire conflict period, interstate and civil wars, on average, affect women more adversely than men.[64] In peacetime, however, women generally live longer than men.[65] Therefore, the study concluded that armed conflict tends to shrink the gap between female and male life expectancy.[66] The authors challenged “policymakers and international and humanitarian organizations to develop policies” that tackle the indirect and long-term health impacts of armed conflicts.[67] For example, “[f]or every child killed in warfare, three are injured and acquire a permanent form of disability.”[68] Although entire communities suffer the consequences of armed conflict, women and girls are particularly affected in conflict situations, based on the compounded double discrimination they face due to their disabilities and gender.[69]

Additionally, conflict situations increase the vulnerability of women and girls who are already disabled because they may be forced to leave their wheelchairs, medications, assistive aids and animals, and prosthetics behind. Females with disabilities may lack family and community support, educational opportunities, and any activities engaged in before the conflict, since the conflict may have caused the breakdown of economic structures, health care institutions, housing, transportation, and other infrastructures. “While those injured as a result of the disaster or conflict may be very visible, it is important to remember that many other people living in the affected areas may already be disabled, and may then become further marginalized and excluded on the basis of their disability in the aftermath.”[70]

“Persons with disabilities, especially women and children, are particularly vulnerable to violence, exploitation and sexual abuse in such situations. Anyone affected by disasters or conflict is more vulnerable to mental health and psychological problems – which may result in misunderstandings and further isolation and social exclusion from families and communities.”[71]

In addition, landmine removal is also a physical risk that may result in disabilities.[72] Although men are generally more involved in landmine removal, women also engage in this dangerous line of work. For example, “[a]ll-female demining teams are becoming increasingly prevalent—there have been successful teams in Cambodia, Croatia, Kosovo, the Lao People’s Democratic Republic and Lebanon” and “one Muslim territory in Somaliland.”[73] The Beijing Platform for Action of 1995 “recognizes that women and children are particularly affected by the indiscriminate use of anti-personnel landmines.”[74]

The ravages of war can also clearly increase psycho-social disabilities. For example, the Cambodian civil war is documented to have caused mental disabilities among women.[75] As a result of the civil war, Cambodia has one of the world’s highest ratios of persons with disabilities.[76]

Furthermore, girls often serve as child soldiers, and some estimate that as many as one-third of child soldiers are girls.[77] They serve as “fighters, cooks, porters, messengers, medics, spies, lookouts, raiders, and domestic and agricultural labor,” and even “sexual slaves to numerous males in forces, or, they may be given to one male for his exclusive use as a captive ‘wife.’”[78] Such experiences often result in the development of multiple physical and psychosocial disabilities.[79] Generally, their needs are not met and they do not have the opportunity to participate in reintegration programs once the conflict situation is no longer present.[80]

Thus, because of the increase in their number during the ravages of war, women with disabilities must be included in post-conflict peace building, both as a matter of equity and also to ensure that their needs are met in the post-conflict legal and societal structures.

E. Violence Against Women with Disabilities

Of course, violence, especially in times of war, often contributes to the incidence of disability among women and girls. Both “[m]en and women with disabilities are more vulnerable to physical, psychological, sexual or financial violence, and in particular, they are vulnerable to neglect, entrapment, and degradation.”[81] Youth and women with disabilities “are especially at higher risk of being mentally or physically abused. They are generally more likely to experience abuse over a longer period and to suffer more severe injuries as a result of the violence.”[82]

In addition, “disabled women are twice as likely to experience domestic violence as non-disabled women” and “their abuser may also be their caregiver, someone that the individual is reliant on for personal care or mobility.”[83] Domestic violence is also “a significant cause of physical and mental disabilities in women.”[84] Unfortunately, “[a]buse by household members often remains unreported to avoid further stigmatization,” and people with disabilities (especially women with disabilities) “tend to lack access to legal protection.”[85]

Although there is limited statistical data on sexual and gender-based violence against women with disabilities, these women themselves frequently report experiencing high rates of such violence and abuse.[86] Depending on their disability, some women may be unable to defend themselves, may not be able to flee the site of violence, or may not know how to report such incidents of violence.[87] In fact, women and girls with disabilities are also not privy to the same information available to non-disabled females, even though this information is necessary to recognize and address violence, including sexual violence.[88] Finally, the police and law enforcement community may not respond appropriately to reports of violence against women and girls with disabilities.[89]

F. Gender-Based Violence as an Act of War

Of course, no discussion of violence against women during war would be complete without exploring the use of gender-based violence as a tactic of war.[90] Indeed, this was the basis for a series of United Nations resolutions on “Women, Peace and Security,” especially United Nations Security Council Resolution 1820, which links the prevention of sexual violence with the maintenance of peace and security,[91] and United Nations Security Council Resolution 1888, which requires peacekeeping missions to protect women and girls from sexual violence during armed conflict.[92] Although neither of these resolutions recognizes the actual violence that women with disabilities experience,[93] a 2010 Resolution of the United Nations Human Rights Council does recognize that women with disabilities are subject to gender-based violence, that services must be accessible to them, and that women with disabilities must be included in data on the prevalence of gender-based violence.[94]

Parties in conflict situations often rape women, sometimes using systematic rape as a tactic of war.[95] Other forms of gender-based violence include murder, sexual slavery, child prostitution, forced pregnancy, forced sterilization, acid burnings, and so-called “honor killings.”[96] In addition, the state itself, administrative systems and authorities, armed combatants, military forces, and peacekeeping forces all have committed acts of sexual and other forms of violence.[97]

Thus, as previously discussed, women with disabilities face higher levels of gender-based violence, and this appears to be no different in times of war. For this reason, women with disabilities must be included in the United Nations Security Council resolutions on “Women, Peace and Security,” as well as the programs used to implement these resolutions.

G. Women with Disabilities, HIV, and Violence

Because women with disabilities are at increased risks of sexual abuse and assault, especially during conflict situations, they are also more vulnerable to HIV infection.[98] Limited data, however, is available on the incidence of HIV infection among persons with disabilities.[99] Strategies and programs fail to adequately address how disability affects men and women differently, and persons with disabilities “have often been ignored in HIV interventions that provide prevention, treatment, care, support and impact mitigation.”[100] Furthermore,

[i]n addition to myths about their behavior and life experiences, the failure to distinguish between the different needs of different impairments, the inaccessibility of health information and services, insufficient training and negative attitudes of health professionals, as well as the social isolation of persons with disabilities has all had a negative impact on their ability to access HIV-related health care. This further increases the vulnerability of persons with disabilities to HIV infection and also increases the impact of HIV and AIDS on their lives once infected or affected by HIV and AIDS.[101]

H. The Situation in Refugee Camps

The situation of women and girls with disabilities in refugee camps is dire because of many factors, including dislocation and inaccessible facilities and programs. A groundbreaking report by the Women’s Refugee Commission, entitled Disabilities among Refugees and Conflict-Affected Populations, notes serious problems with the physical layout and infrastructure of refugee camps.[102] These problems create the lack of services—including toilets, shelters, and health facilities—accessible to people with disabilities.[103] In general, no special accommodations are made for refugees to access the food and supplies they need on a daily basis.[104] In addition, because camps and facilities are generally inaccessible, most persons with disabilities are forced to remain in their shelters.[105] Not surprisingly, then, their voices go unheard in decision-making activities for their communities.

This report also reveals disparities between refugee camps and urban areas, concluding that there is greater awareness of the needs of persons with disabilities in the camps.[106] Moreover, the report found that in urban environments, refugees with disabilities are unable to access services offered by the host government, and virtually no one is providing special assistance to them.[107] The Women’s Refugee Commission also found that persons with psycho-social disabilities did not receive any services, as most programs that did any work with persons with disabilities tended to focus on those with physical disabilities.[108]

Furthermore, women are generally at a greater risk for violence and abuse in refugee camps.[109] Those who do escape and seek asylum rarely benefit from social services or educational programs, because most States receiving immigrants do not address the unique needs of women and girls with disabilities.[110] Finally, many are denied asylum solely because of their disability.[111]

I. Access to Justice Post-Conflict

A legal framework is essential

for victims and witnesses to be able to approach law enforcement officials in safety and to be able to give evidence without fear of either retaliation or social or familial ostracism. There is little advantage in developing jurisprudence . . . if onerous procedural rules inhibit women from testifying, or if stereotypes are used to discredit their testimony.[112]

Even during more peaceful times post-conflict, women with disabilities also face increased vulnerability because of the risk of physical and sexual abuse, especially when they leave their villages to travel to sites where they can participate in the peace processes.[113] Without courts and judicial systems accessible to these women that address their unique concerns, such processes do not provide them redress for the violations of their human rights.[114]

A 2010 Human Rights Watch comprehensive report, “As If We Weren’t Human”: Discrimination and Violence against Women with Disabilities in Northern Uganda, brings several of the factors above into clear focus.[115] The report is based on interviews with sixty-four women and girls with a wide range of disabilities—some caused by diseases like polio, and others by landmines or gunshot wounds received during the protracted conflict in Uganda.[116] The report states that it is essential to address the needs of women with disabilities through specific programs in post-conflict development planning.[117] It also calls for access to mainstream programs, particularly those addressing sexual and gender-based violence, reproductive health problems, and HIV.[118] Humanitarian aid organizations are encouraged to partner with organizations representing persons with disabilities, especially those representing a significant number of women.[119] Furthermore, the report points to the urgent need for data so that more inclusive programs for women with disabilities can be developed.[120] Although this excellent report discusses the fact that some women with disabilities have held positions in the national parliament and local governing bodies, it is still unclear whether women with disabilities have had any role in the peace-building process itself, or in the development of reforms or programs.[121] Nonetheless, the report makes a significant contribution to the literature on women with disabilities in the post-conflict environment because it plainly brings to our attention the horrific plight of women with disabilities.

Despite all the negative impacts of war on women with disabilities, these women should not be viewed solely as victims of war. Women with disabilities often “assume the key role of ensuring family livelihood in the midst of chaos and destruction, and are particularly active in the peace movement at the grassroots level, cultivating peace within their communities.”[122] Women with disabilities should therefore have the opportunity to engage actively in the development of strategies and programs that meet their needs, as well as the development of government institutions and policies post-conflict; they should not be viewed as passive recipients of development programs and assistance.

II. THE EVOLUTION OF GENDER-SENSITIVE PEACE BUILDING

At the early stages of the search for international mechanisms to promote peace, instruments designed to foster peace, establish mechanisms to prevent war, and limit the disastrous impact of war on society significantly left out the concerns of women. Beginning in 2000, however, through a series of United Nations Security Council Resolutions on “Women, Peace and Security,” these omissions have begun to be addressed.[123] Nonetheless, within this structure of succeeding resolutions, women with disabilities have still been generally ignored, leaving their needs unmet.[124] To ensure that the needs of all women are addressed in the context of these instruments, the issues of women with disabilities should be specifically included, and programs must address these important omissions as well.

A. Evolution of Post-World War II United Nations Peace Institutional Structure

Following the end of World War II in 1945, the United Nations Charter was negotiated with the overarching goal of “saving succeeding generations from the scourge of war.”[125] The Charter was signed that same year, based on the post-World War II desire to create an institution promoting security, fundamental human rights, and peace.[126] Among other things, the Charter provides the operational structure and purpose of the United Nations.[127] It also highlights its commitment to human rights and fundamental freedoms in the “Purposes and Principles.”[128]

The Universal Declaration of Human Rights (UDHR), passed by the United Nations in 1948, reinforces this commitment, stating:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people . . .[129]

Furthermore, the United Nations Charter stipulates that the threat or use of force against other States is unlawful, except in the case of self-defense.[130] Drafted after World War II, the Geneva Conventions of 1949, along with their two Additional Protocols of 1977, further limit the means of warfare and provide protections to non-combatant civilians and prisoners of war.[131]

Written in the aftermath of the atrocities of the Holocaust, the Genocide Convention of 1948 outlaws acts carried out with the intention of destroying a particular group.[132] In addition to these conventions, international humanitarian law has been developed and refined through statutes, precedents laid down by international war tribunals, and advisory opinions written by the International Court of Justice, which was set up to address such violations.[133]

To work with States during and after conflict, the United Nations embarked on a series of peace-building efforts. United Nations Secretary-General Boutros Boutros-Ghali defined the concept of peace building in 1993 as an “action to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict,”[134] i.e., “disarming the previously warring parties and the restoration of order, the custody and possible destruction of weapons, repatriating refugees, advisory and training support for security personnel, monitoring elections, advancing efforts to protect human rights, reforming or strengthening governmental institutions and promoting formal and informal processes of political participation.”[135]

In 1998, United Nations Secretary-General Kofi Annan added additional objectives, including “the creation or strengthening of national institutions, monitoring elections, promoting human rights, providing for reintegration and rehabilitation programmes, and creating conditions for resumed development.”[136] Thus, post-war development of an area of conflict could occur (e.g., rebuilding, re-establishing government services, etc.), which “encompassed socio-political and economic reconstruction of society, including power sharing, establishing constitutional, administrative and legal structures and determining resource allocation,” as well as “physical reconstruction.”[137]

B. United Nations and “Women, Peace and Security”

A glaring omission from the above discussions is the impact on women and their role in the process of peace building. In 2000, the Special Session of the United Nations General Assembly, reviewing the progress of the outcomes of the Fourth World Conference on Women, Beijing + 5, emphasized the need to ensure women’s participation throughout “all levels of decision-making and implementation in development activities and peace processes.”[138]

This report observed:

The contribution of women in the areas of peace-building, peacemaking and conflict resolution is being increasingly recognized. Education and training in non-violent conflict resolution have been introduced. Progress has been made in the dissemination and implementation of the guidelines for the protection of refugee women, and in addressing the needs of displaced women. Gender-based persecution has been accepted as a basis for refugee status in some countries. There is recognition by governments, the international community and organizations, in particular the United Nations, that women and men experience humanitarian emergencies differently, and there is a need for a more holistic support for refugee and displaced women, including those who have suffered all forms of abuse, including gender-specific abuse, to ensure equal access to appropriate and adequate food and nutrition, clean water, safe sanitation, shelter, education, social and health services, including reproductive health care and maternity care. There is greater recognition of the need to integrate a gender perspective in the planning, design and implementation of humanitarian assistance and to provide adequate resources.[139]

Despite these advances, this report highlighted the dramatic impact of the failure to more effectively include women in peace building, peacemaking, and conflict resolution, and also pointed to the necessity for change. As the report noted, “The underrepresentation, at all levels, of women in decision-making positions, such as special envoys or special representatives of the Secretary-General, in peacekeeping, peace-building, post-conflict reconciliation and reconstruction, as well as lack of gender awareness in these areas, presents serious obstacles.”[140]

The report recommended that peace-building efforts “[e]nsure and support the full participation of women at all levels of decision-making and implementation in development activities and peace processes, including conflict prevention and resolution, post-conflict reconstruction, peacemaking, peacekeeping and peace-building, and in this regard, support the involvement of women’s organizations, community-based organizations and nongovernmental organizations.”[141]

In 2000, the value of women’s participation in the prevention and resolution of conflicts and in peace building was further recognized and reinforced in United Nations Security Council Resolution 1325 (UNSCR 1325) on “Women, Peace and Security.”[142]

UNSCR 1325 outlines the critical rationale for the inclusion of women in peace building, peacemaking, and conflict resolution as follows:

Expressing concern that civilians, particularly women and children account for the vast majority of those adversely affected by armed conflict, including as refugees and internally displaced persons, and increasingly are targeted by combatants and armed elements, and recognizing the consequent impact this has on durable peace and reconciliation is essential,

Reaffirming the important role of women in the prevention and resolution of conflicts and in peace-building, and stressing the importance of their equal participation and full involvement in all efforts for the maintenance and promotion of peace and security, and the need to increase their role in decision-making with regard to conflict prevention and resolution,

Reaffirming also the need to implement fully international humanitarian and human rights law that protects the rights of women and girls during and after conflicts,

Emphasizing the need for all parties to ensure that mine clearance and mine awareness programmes take into account the special needs of women and girls,

Recognizing the urgent need to mainstream a gender perspective into peacekeeping operations, and in this regard noting the Windhoek Declaration and the Namibia Plan of Action on Mainstreaming a Gender Perspective in Multidimensional Peace Support Operations (S/2000/693),

Recognizing also the importance of the recommendation contained in the statement of its President to the press of 8 March 2000 for specialized training for all peacekeeping personnel on the protection, special needs and human rights of women and children in conflict situations,

Recognizing that an understanding of the impact of armed conflict on women and girls, effective institutional arrangements to guarantee their protection and full participation in the peace process can significantly contribute to the maintenance and promotion of international peace and security,

Noting the need to consolidate data on the impact of armed conflict on women and girls.[143]

The provisions also set out a recommendation for consultation with women’s groups on a local and international level and encourages the Secretary-General to conduct a study on the impact of armed conflict on women and girls, the role of women in peace building, and the gender dimensions of peace processes and conflict resolution would identify problems and solutions.[144]

UNSCR 1325 also outlines proactive steps, which:

Requests the Secretary-General to provide to Member States training guidelines and materials on the protection, rights and the particular needs of women, as well as on the importance of involving women in all peacekeeping and peacebuilding measures, invites Member States to incorporate these elements as well as HIV/AIDS awareness training into their national training programmes for military and civilian police personnel in preparation for deployment, and further requests the Secretary-General to ensure that civilian personnel of peacekeeping operations receive similar training. . . [and] [i]nvites the Secretary-General to carry out a study on the impact of armed conflict on women and girls, the role of women in peace-building and the gender dimensions of peace processes and conflict resolution, and further invites him to submit a report to the Security Council on the results of this study and to make this available to all Member States of the United Nations.[145]

Thus began the first of a series of six United Nations Security Council resolutions on Women, Peace and Security:

- UNSCR 1325 (2000) called for the ensured participation of women in peace processes and called for improved protection of women in conflict zones.[146]

- UNSCR 1820 (2008) reaffirmed commitment to 1325 and linked the prevention of sexual violence with the maintenance of peace and security.[147]

- UNSCR 1888 (2009) mandated peacekeeping missions to protect women and girls from sexual violence in armed conflict.[148]

- UNSCR 1889 (2009) strengthened the participation of women at all stages of the peace process, focusing on the period after peace agreements have been reached.[149]

- UNSCR 1894 (2009) called for the protection of civilians in armed conflict and for assistance with the social reintegration of victims of armed conflict, including persons with disabilities.[150] This was the first UNSCR to mention women with disabilities.

- UNSCR 1960 (2010) reaffirmed the commitment to fulfill UNSCR 1325 and is also the second UNSCR to mention women with disabilities. [151]

Resolution 1894 specifically “[e]ncourages the international community . . . to provide assistance for the care, rehabilitation and economic and social reintegration of victims, including persons with disabilities.”[152] While Resolution 1960 “[r]eaffirm[s] the importance for States, with the support of the international community, to increase access to health care, psychosocial support, legal assistance, and socio-economic reintegration services for victims of sexual violence, in particular in rural areas, and taking into account the specific needs of persons with disabilities,”[153] These are the only resolutions in the series addressing conflict that specifically reference persons with disabilities, but only with regard to the impact of armed conflict on persons with disabilities.[154] Furthermore, this groundbreaking series of resolutions regrettably did not reference the importance of including women with disabilities in these processes, except for a few brief references in UNSCR 1894 and 1960, which mainly concerned protection rather than participation in peace building.[155] The rationale for the inclusion of women in peace building (as enumerated in UNSCR 1325), and keeping women with disabilities in mind, makes it clear why this inclusion is necessary,[156] especially when combined with an understanding of the double discrimination women with disabilities face.

C. “Women, Peace and Security” Indicators: Women with Disabilities Not Included

The United Nations Secretary-General has submitted to the Security Council

for consideration, a set of indicators for use at the global level to track implementation of its resolution 1325 (2000), which could serve as a common basis for reporting by relevant United Nations entities, other international and regional organizations, and Member States, on the implementation of resolution 1325 (2000) in 2010 and beyond.[157]

In monitoring the implementation of UNSCR 1325, “[i]ndicators are signposts of change; a means for determining the status quo and the progress towards intended results. Indicators are critical for effective monitoring and evaluation,” and they also serve as mechanisms for accountability to all stakeholders by demonstrating progress.[158] According to the United Nations, the indicators were developed “through a consultative process.”[159] The indicators address several areas: the prevention of violence against women and girls, including gender-based violence; the promotion and support for women’s participation in peace processes; the promotion and protection of human rights of women and girls, in addition to mainstreaming “a gender perspective into the legal and institutional reforms”; and the assurance of women’s and girls’ access to relief and recovery activities.[160]

There is no indication, however, that the consultative process included women with disabilities, organizations of persons with disabilities, or experts on issues of concern to women with disabilities in peace-building processes, as required by the CRPD.[161] Furthermore, the indicators themselves do not include factors to measure the inclusion of women with disabilities, nor the issues concerning them.[162] Assessment of the implementation’s progress with respect to women with disabilities “is constrained by an absence of baseline data and specific, measurable, achievable, relevant and time-bound indicators.”[163] Without such indicators, the different experiences of women with disabilities will not be reflected in reporting and, indeed, this has been the case in such reports to date. On October 26, 2010, the Security Council supported “taking forward” these indicators and requested the Secretary-General to develop them further; however, there was no reference to women with disabilities.[164]

In two important Statements of the President of the U.N. Security Council, one in 2004[165] and another in 2005,[166] S/PRST/2004/40 and S/PRST/2005/52, respectively, the Security Council called on Member States to apply UNSCR 1325 domestically by developing national action plans (NAPs) or other national-level strategies encompassing the goals of UNSCR 1325.[167] In these statements, the Security Council called on Member States to continue to implement UNSCR 1325 through the development of NAPs or other national-level strategies.[168] The creation of an action plan provides an opportunity to initiate strategic actions, to outline priorities, to identify the levels and sources of fiscal and other resources necessary to implement the plan, to determine and assign the responsibilities for implementation, and to establish realistic and achievable benchmarks and timeframes.[169] The whole process of developing a plan is also a process of awareness-raising and capacity-building in both the government and civil society, in order to overcome gaps and challenges to the full implementation of UNSCR 1325.[170]

There are currently thirty-two countries that have adopted such policy plans at the national level, and others are forthcoming,[171] including one under development by the United States.[172] However, few UNSCR 1325 NAPs include any references to the issues of concern to women with disabilities, either in plans by developing and/or occupied countries (either actively facing armed conflict or in post-conflict reconstruction), or in plans by developed and/or occupier nations.[173] Furthermore, based on the limited references to women with disabilities in the U.N. Security Council Resolutions on Women, Peace and Security, even the scant coverage of women and girls with disabilities in a few UNSCR 1325 National Action Plans tends to focus on protection, rehabilitation and victimization, rather than seeing women with disabilities as engaged in peace building and post-conflict national institution and societal development.[174]

D. Beijing Declaration and Special Rapporteur on Disability Statements on Women with Disabilities

The 1995 Beijing Declaration clearly recognized the need to address the concerns of women with disabilities and the correlated need to include women with disabilities in decision-making, stating that Governments should:

Strengthen and encourage the implementation of the recommendations contained in the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, paying special attention to ensure non-discrimination and equal enjoyment of all human rights and fundamental freedoms by women and girls with disabilities, including their access to information and services in the field of violence against women, as well as their active participation in and economic contribution to all aspects of society.[175]

Drawing on the disability-inclusive nature of the original Beijing Declaration itself, the 2000 Special Session of the United Nations General Assembly, reviewing the progress of the outcomes of the Fourth World Conference on Women, also addressed the concerns and role of women with disabilities by indicating that Governments should:

Adopt and promote a holistic approach to respond to all forms of violence and abuse against girls and women of all ages, including girls and women with disabilities, as well as vulnerable and marginalized women and girls in order to address their diverse needs, including education, provision of appropriate health care and services and basic social services.[176]

Furthermore, it also stated that Governments should:

Design and implement policies and programmes to address fully specific needs of women and girls with disabilities, to ensure their equal access to education at all levels, including technical and vocational training and adequate rehabilitation programmes, health care and services and employment opportunities, to protect and promote their human rights and, where appropriate, to eliminate existing inequalities between women and men with disabilities.[177]

Sheikha Hessa Khalifa A. Al Thani, Special Rapporteur on Disability of the Commission for Social Development, reiterated the absence of women with disabilities in discussions of women’s human rights and stated:

You hardly find anything about women with disabilities in any programmes and activities. They hardly mention the specific issues linked to women with disabilities. Even after the Beijing conference, there has been hardly anything specific about women with disabilities in action plans, etc. I hear about it constantly from disabled women who are my friends. . . . I believe that women with disabilities face multiple discrimination.[178]

She also goes on to state, “[i]n developing and poor countries, persons with disabilities lead very tough and difficult lives and this is even more true for women with disabilities.”[179]

Thus, it is an urgent priority to address this deficit in the United Nations Resolutions on “Women, Peace and Security,” as well as its indicators and other implementation policies and programs, especially in light of the multiple forms of discrimination that women with disabilities face, compared to that of men with disabilities and women without disabilities. Given the strong statements in the Beijing documents discussed above, it is shocking that these issues were not included.

III. INTERSECTION AND SYNERGY OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND THE UNITED NATIONS CONVENTION FOR THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

A careful analysis of the intersection between the provisions of the CRPD and the CEDAW, along with various United Nation Security Council Resolutions and other reports on women, security, and peace, demonstrates the synergy that exists to foster changes in law, policy, and practice to ensure the inclusion of women with disabilities in post-conflict peace-building and reconciliation processes. The analysis below focuses on provisions in both the CEDAW and the CRPD that have specific implications for inclusion of women in peace-building processes.

A. The CRPD and the CEDAW on War, Conflict, and Peace

Both the CRPD and the CEDAW, respectively, recognize the impact of war, conflict, and natural disasters on persons with disabilities and on women. In addition, both the CRPD and the CEDAW, respectively, recognize the role that persons with disabilities and women must have in post-conflict situations.[180] The CRPD Preamble highlights “that conditions of peace and security . . . are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation.”[181] Situations of risk and humanitarian emergencies therefore require States to take the necessary measures to ensure the protection and safety of persons with disabilities in situations like armed conflict, humanitarian emergencies, and natural disasters.[182] Moreover, the CEDAW Preamble affirms “[t]hat the strengthening of international peace and security, the relaxation of international tension . . . and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence . . . will contribute to the attainment of full equality between men and women.”[183] This treaty further states that States are convinced that the complete development of a country, the welfare of the world, and the cause of peace require the maximum equal participation of women in all fields.[184]

Both of these CEDAW Committee Recommendations are particularly relevant to ensuring that a gender-based approach is utilized, and that women with disabilities are specifically incorporated within the United Nations “Women, Peace and Security” framework.

B. CRPD’s Gender Lens

The CRPD has adopted a gender lens in its terms and provisions, as shown in the Preamble, Article 3, Article 6,[185] and also throughout the CRPD provisions specifically concerning women, such as Article 8 on awareness-raising, Article 16 on freedom from exploitation, violence and abuse, and Article 25 on health.[186] Additionally, the CRPD and the CEDAW share many common principles.

C. The CRPD and the CEDAW on Stereotyping

Article 8 of the CRPD and Article 5 of the CEDAW emphasize the negative role that stereotypes can play in the lives of persons with disabilities, including women with disabilities and women in general. Under both conventions, States hold the responsibility “[t]o combat stereotypes, prejudices and harmful practices”[187] and to eliminate “prejudices and customary and all other practices.”[188] The CRPD takes the CEDAW stereotype provisions further by recognizing that gender and disability stereotypes coincide to have a compound effect on women with disabilities.[189]

D. The CRPD and the CEDAW on Legal Capacity and Access to Justice

Two crucial elements of human rights, legal capacity and access to justice, are incorporated in both conventions. In the CRPD, Articles 12 and 13 address these issues, and in the CEDAW, Article 15 addresses equality before the law for both men and women.[190] The CRPD draws heavily on the approach taken in the CEDAW and rejects the narrower approach taken in the International Covenant on Civil and Political Rights (ICCPR).[191]

In its General Comment No. 28, the Human Rights Committee (the Committee that monitors compliance with the ICCPR) states that:

The right of everyone under article 16 to be recognized everywhere as a person before the law is particularly pertinent for women, who often see it curtailed by reason of sex or marital status. This right implies . . . that women may not be treated as objects to be given, together with the property of the deceased husband, to his family. States must provide information on laws or practices that prevent women from being treated or from functioning as full legal persons and the measures taken to eradicate laws or practices that allow such treatment.[192]

Interestingly, interpretations of this provision of the ICCPR make it abundantly clear that this provision only contemplates one aspect of this right—that every person is a subject, and not an object, of the law.[193] This provision does not guarantee that a person has the legal capacity to act.[194] On the other hand, the approach used in the provisions of the CRPD utilizes wording similar to that used in the second paragraph of Article 15 of the CEDAW.

Article 15 of the CEDAW states four provisions. First, it requires States to accord women equality with men before the law. Second, it requires States, in civil matters, to accord women a legal capacity identical to that of men, as well as the same opportunities to exercise that capacity. More specifically, States must give women equal rights to conclude contracts and to administer property, and they must also treat women equally in all stages of court and tribunal procedure. Third, States must agree that all contracts and other private legal instruments directed at restricting the legal capacity of women are deemed null and void. Fourth, Article 15 requires States to accord men and women with the same rights regarding the law relating to the movement of persons and the freedom to choose their residence and domicile.[195]

Furthermore, Article 15 focuses on ensuring women’s legal autonomy. It confirms women’s equality with men before the law and also requires States to guarantee equal rights in areas of civil law where women have traditionally suffered discrimination.[196]

Article 15 of the CEDAW guarantees women equal “legal capacity” with men and the same opportunities to “exercise that capacity,” drawing from the principle of autonomy or self-determination.[197] Each individual is presumed to be able to make life choices and to act independently.[198] Thus, the CRPD clearly incorporates both concepts of “capacity to be a person before the law” and “legal capacity to act,” drawing on the approach taken in the CEDAW.[199]

E. The CRPD and the CEDAW on Participation in Political and Public Life

Both the CRPD and the CEDAW recognize the important role that participation in political life plays in advancing human rights for persons with disabilities and for women. Article 29 of the CRPD requires States to “ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others” and gives them the right to “[form] and [join] organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.”[200] The CEDAW also includes similar guarantees to women in Article 7, which states that States shall “eliminate discrimination against women in the political and public life of the country,” and in Article 8, which guarantees to women “the opportunity to represent their Governments at the international level.”[201]

F. The CEDAW Committee and Women with Disabilities

Even before the CRPD came into force, the CEDAW Committee began to recognize that issues concerning women with disabilities played an important role in its work. For example, in its General Recommendation No. 18, the CEDAW Committee recommended that States:

provide information on disabled women in their periodic reports, and on measures taken to deal with their particular situation, including special measures to ensure that they have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life.[202]

Furthermore, in General Recommendation No. 24:

Women with disabilities, of all ages, often have difficulty with physical access to health services. Women with mental disabilities are particularly vulnerable, while there is limited understanding, in general, of the broad range of risk to mental health to which women are disproportionately susceptible as a result of gender discrimination, violence, poverty, armed conflict, dislocation and other forms of social deprivation. States parties should take appropriate measures to ensure that health services are sensitive to the needs of women with disabilities and are respectful of their human rights and dignity.[203]

The CEDAW Committee also referenced other issues of concern in another of its General Recommendations. For instance, the CEDAW Committee recognized that societal factors may be determinative of health status, and that special attention should be given to the health needs of women with disabilities, among other vulnerable groups.[204]

G. Consent to Be Bound and Reporting

Under the CRPD’s Article 43 (“Consent to be bound”), States and Regional Integration Organizations, which ratify or accede to the CRPD, agree to be bound by its terms.[205] Furthermore, under Article 38 (“Relationship of the Committee with other bodies”), the CRPD Committee may “invite specialized agencies and other United Nations organs to submit reports on the implementation of the CRPD in areas falling within the scope of their activities.”[206]

To focus on the responsibilities of the United Nations itself in adhering to the provisions of the CRPD, the United Nations Chief Executives Board (CEB) established an inter-agency support group (IASG) for the CRPD at its 12th session in September of 2006.[207] The IASG’s Joint Statement of Commitment to the CRPD describes its purpose as follows:

[I]n recognition of the commitment to the internationally agreed development goals; the need for system-wide coherence within the “delivering as one” framework; the importance of inclusion of persons with disabilities in the work of the United Nations; the need for a participatory approach; and the role of the United Nations in supporting Member States and specifically States parties, we are demonstrating our will to ensure the promotion and protection of the rights of persons with disabilities by working towards the full inclusion of persons with disabilities in the work of the United Nations.[208]

Also, the IASG includes many United Nations entities, such as the Department of Peacekeeping Operations (DPKO) and the Department of Economic and Social Affairs (DESA), both of which work on the issues raised in this paper.[209]

Both the CRPD and the CEDAW provide a significant roadmap for the inclusion of women with disabilities into peace-building activities and the United Nations “Women, Peace and Security” framework. The failure to include these women in such actions at the international and national levels runs contrary to the gender approach and other principles found in both treaties.

IV. THE UNITED NATIONS AND THE INTERNATIONAL COMMUNITY: INCLUSION OF WOMEN WITH DISABILITIES IN POST-CONFLICT PEACE-BUILDING PROGRAMMING

Over the past several years, the international community, and the United Nations in particular, has taken some preliminary steps to address the concerns of women with disabilities in the development agenda.[210] Despite the steps taken, however, progress has been slow. Significant additional work remains to eliminate the numerous barriers that women with disabilities face in society, particularly in conflict environments. Women with disabilities face double discrimination because of both their gender and their disability. Women are therefore at a greater risk of abuse, gender-based and other forms of violence, extreme poverty, poor education, lack of health care, and other factors due to this double discrimination, as discussed in Part I. Women with disabilities should be included as vital targets of both gender-sensitive development and peace-building programs.

Although some programs are beginning to target women with disabilities by using the CRPD’s social model and inclusion language, most programs do not apply it in practice. Disabled persons still tend to be lumped together under the heading of “vulnerable groups,” rather than as a group capable of agency and participation in and of itself.[211]

A. Early History of the Development of the Rights of Persons with Disabilities

Following the International Year of Disabled Persons in 1981, the World Programme was adopted by the United Nations General Assembly.[212] The International Year of Disabled Persons and the World Programme of Action provided a strong impetus for progress on the rights of persons with disabilities.[213] Among the major outcomes of the Decade of Disabled Persons (1983-1992) was the adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules) by the General Assembly on March 4, 1994.[214]

The World Programme and the Standard Rules serve as guides, instruments for policy-making, and bases for technical and economic cooperation. The Standard Rules began to incorporate the human rights perspective, which was ultimately fulfilled more dynamically by the United Nations in the CRPD.[215]

Both the World Programme and the Standard Rules emphasize the rights of persons with disabilities to the same opportunities as other citizens, and to an equal share in living condition improvements resulting from economic and social development.[216] The World Programme explicitly addresses the impact of war on persons with disabilities and speaks of the importance of ending war and achieving peace, mainly in that war causes disabilities.[217] The World Programme thus approaches the question of war only through the lens of prevention, rather than through an empowerment perspective concerning persons with disabilities.[218]

The Standard Rules also only reference war with regard to its prevention, viewing it as a cause of disability.[219] The Standard Rules also expand on the World Programme and set out a statement of purpose as follows:

The equalization of opportunities for persons with disabilities is an essential contribution in the general and worldwide effort to mobilize human resources. Special attention may need to be directed towards groups such as women, children, the elderly, the poor, migrant workers, persons with dual or multiple disabilities, indigenous people, and ethnic minorities. In addition, there are a large number of refugees with disabilities who have special needs requiring attention.[220]

Thus, we see the beginnings of efforts to address the needs of women with disabilities in the development agenda, as well as an awareness of the special issues facing refugees and others with disabilities in the conflict environment. The Standard Rules, however, are merely voluntary in nature, and take a preventive and rehabilitative approach that does not reflect the active participation approach essential to the implementation of the CRPD.[221]

B. The Millennium Development Goals and Other International Development Programs and Their Effect on Women with Disabilities

In September 2000, world leaders adopted the United Nations Millennium Declaration, known as the MDG, committing their nations to reduce extreme poverty by 2015.[222] The third goal of the MDG specifically focuses on the promotion of gender equality and the empowerment of women. This MDG, however, as currently drafted, does not reference women with disabilities.[223] In fact, none of the MDGs address persons with disabilities.[224] In attempting to address this omission, the United Nations General Assembly passed a Resolution in December 2009 entitled “Realizing the Millennium Development Goals for persons with disabilities.”[225] Neither peace building nor post-conflict resolution is mentioned, however. While the resolution focuses on people with disabilities, women with disabilities are only specifically mentioned once in a general paragraph concerning all of the goals.[226] Failing to specify women with disabilities is a significant omission, since this resolution was adopted after the CRPD came into force, including its Article 6 on women,[227] and since the third goal of the MDG specifically references the need to include women in development programs, stating: “GOAL 3: Promote gender equality and empower women.”[228] The 2009 Resolution:

[C]alls upon governments to enable persons with disabilities to participate as agents and beneficiaries of development, in particular in all efforts aimed at achieving the Millennium Development Goals, by ensuring that programmes and policies, namely on eradicating extreme poverty and hunger, achieving universal primary education, promoting gender equality and the empowerment of women, reducing child mortality, improving maternal health, combating HIV/AIDS, malaria and other diseases, ensuring environmental sustainability and developing a global partnership for development, are inclusive of and accessible to persons with disabilities.[229]

The MDGs were under review in September 2010,[230] and disability rights groups vigorously advocated for modifications to include persons with disabilities explicitly, but these efforts were unsuccessful.[231]

There are numerous examples of partially inclusive disability development policies, although most do not specifically address post-conflict peace building and program implementation.[232] The World Bank has established policies for inclusive programming and has issued a publication that examines recent policies of major multilateral and bilateral agencies.[233] The World Bank employed these agencies to include disability in development aid and to provide some examples of implementation.[234] Unfortunately to date, it does not appear that any of these policies have resulted in significant inclusion of women with disabilities as active participants in these entities’ peace-building programs.[235]

C. Programs on Conflict, Refugees, and Emergencies

Several guidance documents on the implementation of programs in conflict situations specifically reference women and persons with disabilities. For instance, Principle 4 of the United Nations Guiding Principles on Internal Displacement requires protection and special consideration of persons with disabilities and women.[236]

Principle 4 states:

1. These Principles shall be applied without discrimination of any kind, such as race, colour, sex, language, religion or belief, political or other opinion, national, ethnic or social origin, legal or social status, age, disability, property, birth, or on any other similar criteria.

2. Certain internally displaced persons, such as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of household, persons with disabilities and elderly persons, shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs.[237]

In addition, the United States Institute of Peace and United States Army Peacekeeping and Stability Operations Institute, in the USIP Guiding Principle 10.8.16, require the inclusion of marginalized groups in reconciliation, including women and persons with disabilities.[238] Throughout Section 10, the manual recognizes that persons with disabilities should have a participatory role in such processes.[239]

One of the biggest factors in the exclusion of persons with disabilities from many humanitarian responses is a paucity of data: as they are not ‘seen’, they are assumed not to be there and are not included. However, evidence from disabled people’s organizations (DPOs) around the world has shown that adults and children with disabilities are often hidden from view, stigmatized by families and communities.[240]

The recent United Nations reports on disability and development fail to consider persons with disabilities as active participants in peace building and rather only discuss persons with disabilities as passive recipients of aid. The literature focuses on service delivery to persons with disabilities, placing them in a passive role as opposed to an active role. For example, UNESCAP’s 2007 Report on the Protections of Older Persons and Persons with Disabilities discusses “the challenges which . . . persons with disabilities face in accessing protection, including assistance, in situations of displacement.”[241] Specifically, it notes that Colombia incorporated “the needs of older displaced persons into national policies and response mechanisms regarding internally displaced persons.”[242] Bangladesh and Chad “undertook a detailed assessment of the specific needs of persons with disabilities.”[243] This is not to say that such efforts are not essential, especially in the midst of conflicts and their immediate aftermaths, because they certainly are. Indeed, the passage of United Nations Security Council Resolution 1894 was advocated for and vigorously supported by the disability rights community.[244] As such, this is the only resolution that specifically references persons with disabilities, although only in terms of the impact armed conflict has on persons with disabilities.[245]

UNSCR 1894, which advocates for protection of civilians in armed conflict, encourages the international community “to provide assistance for the care, rehabilitation and economic and social reintegration of victims, including persons with disabilities.[246] Nonetheless, by operating “in a ‘relief’ model in conflict scenarios,” relief agencies and organizations generally:

[C]onsider ‘beneficiaries’ as passive recipients of aid; this is particularly true for disabled persons . . . . [T]he relief and rehabilitation operations do not consider them to be actors for rehabilitation, development and peacebuilding . . . . Being categorized as ‘a vulnerable person’ can contribute to exclusion from empowerment opportunities, such as education and self-reliance activities, vocational training, [and other empowering activities such as the development of advocacy skills and participation in post-conflict peace building and legal institution development].[247]

D. The United Nations’ Disability-Inclusive Mandate: An Opportunity for Change

Drawing on the principles laid down in the Universal Declaration of Human Rights and other international human rights instruments, the United Nations Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among U.N. Agencies (Common Understanding ), sets out its objective of ensuring that all programming incorporate a human rights-based dimension as follows:

A set of programme activities that only incidentally contributes to the realization of human rights does not necessarily constitute a human rights-based approach to programming. In a human rights-based approach to programming and development cooperation, the aim of all activities is to contribute directly to the realization of one or several human rights.[248]

This approach contains many elements relevant to a gender empowerment approach, such as the inclusion of women with disabilities in peace-building programming. Two important elements to highlight are participation and inclusion. That is, particular attention must be paid to the empowerment of vulnerable groups so that they can claim their own rights.[249] Additionally, such an approach sees persons as key actors rather than as passive recipients, and causes programs to be empowering rather than disempowering.[250]

Although the Common Understanding was developed before the CRPD came into force, the CRPD now serves as the important instrument for informing the programmers about a human rights-based, gender-sensitive approach, and for affirmatively working toward the inclusion of women with disabilities in all peace-building activities.

The principles in this document were re-enforced and more directly applied to persons with disabilities when the United Nations Chief Executives Board established an inter-agency support group for the Convention on the Rights of Persons with Disabilities (IASG) at its 12th session in September of 2006.[251] The IASG’s Joint Statement of Commitment to the CRPD describes its purpose as follows:

[I]n recognition of the commitment to the internationally agreed development goals; the need for system-wide coherence within the “delivering as one” framework; the importance of inclusion of persons with disabilities in the work of the United Nations; the need for a participatory approach; and the role of the United Nations in supporting Member States and specifically States parties, we are demonstrating our will to ensure the promotion and protection of the rights of persons with disabilities by working towards the full inclusion of persons with disabilities in the work of the United Nations.[252]

The IASG includes many United Nations entities, such as the Department of Peacekeeping Operations (DPKO) and the Department of Economic and Social Affairs (DESA), both of which work on the issues raised in this paper.[253]

With the CRPD now in force,[254] the establishment of an active and dynamic Secretariat for the CRPD,[255] the creation of the IASG, and the human rights obligations of the United Nations itself under the United Nations Charter, which identifies human rights as one of the fundamental purposes of the Organization,[256] there are now opportunities to bring forth changes that will result in the inclusion of women with disabilities in international, national, and non-governmental organizations’ post-conflict peace-building and reconciliation policies, programs and practices. Additionally, there is an opportunity to integrate these concepts into the United Nations Resolutions on “Women, Peace and Security,” as well as to the entities in the United Nations that address issues concerning women.

E. Research on Inclusion of Women with Disabilities in Peace Building

There have been few post-conflict efforts to integrate women with disabilities (or any persons with disabilities) in peace-building and reconciliation activities. There is also limited scholarship on the experiences of persons with disabilities in such processes. One of the few examples that has been identified illustrates the significant value of engaging women with disabilities into such activities, and provides insight into the development of future policies and programming to ensure the inclusion of women with disabilities within the United Nations “Women, Peace and Security” framework.[257] Furthermore, it is clear that additional fieldwork needs to be undertaken to assess the interrelationship between war, disability, gender, and peace building. One such study undertaken in Sierra Leone is highlighted here.

In 2007, Pearl Praise Gottschalk studied persons with disabilities in Sierra Leone after the conclusion of the “un-civil” war from 1991 to 2002, utilizing both study participant observation and qualitative interviewing.[258] Based on her findings, she made numerous recommendations to the international community concerning the structure and conduct of future peace-building activities and the impact of such activities on persons with disabilities, especially persons disabled as a result of conflict.[259]

The study noted that:

The majority of participants with disabilities stated that their experience with inclusion and participation in decision making during the peace building process, both positive and negative, was the most important issue for them . . . . For participants, inclusion generally meant the opportunity to be involved in the processes that affect their lives. The terms, equal representation and consultation incorporate many aspects including; equal numbers of persons with disabilities as persons without disabilities at all stages of the decision making process (male and female, educated and non); equal opportunity to attend meetings held in accessible locations and with financial aid; equal opportunity to have their unique ideas and initiatives for peace considered in the planning stages. Also, participants stated that the term accessibility includes; an accessible location, language and method of discussion (for those who may be deaf or have learning disabilities) as well as an accommodation for the inclusion and access of people living in the rural areas.[260]

In one of the most thorough efforts of its kind, a group of persons with disabilities following the war in Sierra Leone created so-called “disability checks,” which they believed should be required under international law to be applied before any peace processes begin. They also believed that these elements should be incorporated as new policies and practices by the international community are established for development and peace issues.[261] The list includes the following elements:

Has this process considered the extent to which it may further victimize persons with disabilities, particularly in the case of persons disabled by war? Could this process in any way unintentionally violate the human rights of any group of persons or perpetuate further conflict?

Has this process considered what justice means to persons disabled by war? Will this process be committed to achieving that justice?

To what extent does this process provide for equal representation and consultation for persons with disabilities? Are there special measures in place to ensure their accessibility at all levels of the project design?[262]

This important study also described the unique situation of women disabled by war. The female participants of the study:

[S]poke of their increased vulnerability after the disability and the risk of physical and sexual abuse that they faced in peace times, especially the danger of leaving their villages in order to travel to sites where they could participate in the peace processes. Female participants also voiced concern over their special need for reparations or permanent social support from the government in order to care for their children as their husbands often left them once they became disabled.[263]

One of the most significant lessons from this study is the importance of including persons with disabilities in the design of a peace-building or reconciliation program. Participants in the study noted that the failure to include them at the early stages of design was frustrating because they felt that the approaches already developed by the disabled community were ignored. They also felt that external approaches were imposed on them,[264] and that the approaches were ineffective[265] or culturally insensitive. One participant in the study summarized the report findings on this issue, noting “disability was an afterthought once projects are in the works and the impacts on disabled people are not thought through ahead of time.”[266] This view clearly calls for the participatory and inclusive approach set forth in the CRPD’s Article 32.[267]

The study poses the crucial question of the meaning of “peace” to persons with disabilities.[268] For persons with disabilities, peace goes far beyond the ending of hostilities and results in positive conditions that can change the circumstances in which people live and ensuring that persons enjoy all their human rights.[269] This also requires some public recognition of the situations of persons with disabilities, efforts by the society and government, and indeed the peace process itself, in order to achieve these conditions. Under the framework of the CRPD, this means promotion of all civil, political, economic, social, and cultural rights.[270] As outlined in Part I above, the situation of women with disabilities does not accommodate changes in the circumstances of their lives.[271]

Additional work of this kind is necessary to ensure that, in fact, peace-building activities are designed to integrate women with disabilities, in order to respond to issues that concern them and utilize processes with which they are comfortable.

F. Why Inclusion Is Required and Why It Matters

Clearly, as shown in the previous analysis of the intersection of the CEDAW, the CRPD, and the United Nations “Women, Peace and Security” framework, the three demand the inclusion of women with disabilities.[272]

The fundamental points made in UNSCR 1325 clearly support this approach. UNSCR 1325 recognizes that women have an important role in the prevention and resolution of conflicts and in peace building. It also recognizes that women’s equal participation and full involvement in all efforts for the maintenance and promotion of peace and security, and their increased role in decision-making with regard to conflict prevention and resolution, are critical.[273]

Viewed in conjunction with both Articles 6 and 11 of the CRPD, it is clear that women with disabilities must have a role in decision-making with regards to conflict prevention and resolution.[274]

The CRPD clearly recognizes that the human rights enumerated in the CRPD must be viewed through a gender lens, that women with disabilities are subject to multiple forms of discrimination, and that their empowerment is a primary objective. The CRPD also recognizes the gender impacts of conflict when Articles 6 and 11 are read together.[275] As clearly demonstrated in Part I above, women with disabilities have different needs before, during, and after conflict. Moreover, numerous issues affect women with disabilities disproportionately when compared to men with disabilities and women without disabilities, including several rights guaranteed by the CRPD, such as health, education, employment, violence, family rights, marriage, housing, and participation in public life.[276]

The failure to include women with disabilities in peace building can result in further marginalization of women with disabilities, reaffirming denials of their human rights and exacerbating the double discrimination they face. The ultimate objectives of peace building, as stated by United Nations Secretary-General Boutros Boutros-Ghali and United Nations Secretary-General Kofi Annan, are to establish the rule of law, to enhance human rights protection, to reform or strengthen governmental institutions, to create constitutional, administrative and legal structures, to strengthen democracy, to foster inclusive political participation, and to resume development.[277]

If women with disabilities are not included in these processes, and if the reforms to institutional structures, laws, and social, economic, and political systems do not include their input, the reforms that emerge after conflict will continue to marginalize women and deny them the justice that peace building is supposed to foster. The Beijing + 5 Report, UNSCR 1325, and the succeeding resolutions in the United Nation’s “Women, Peace and Security” framework clearly articulate the need for a gender perspective in such efforts.[278] Moreover, the CRPD combined with the actual life experiences of women with disabilities further demands that women have a role in these processes.[279]

V. RECOMMENDATIONS FOR ACTION

Set forth below are recommendations for action, consistent with the gender-sensitive approaches outlined in the United Nations Security Council Resolutions on “Women, Peace and Security,” and with the provisions of both the CRPD and the CEDAW.[280] These recommendations offer to improve the extent to which women with disabilities are included in the United Nations Resolutions on “Women, Peace and Security,” and the methods for measuring the success of their implementation. They apply to the activities of the various United Nations entities—international, national, and non-governmental organizations’ post-conflict reconciliation and peace-building programs and policies. Furthermore, the recommendations attempt to bring greater attention to these issues and provide a data-rich, resource-based framework for action on this subject.

A. Revision of United Nations Security Council Resolutions and Indicators on “Women, Peace and Security” to Include Women with Disabilities

The first recommendation is to amend UNSCR 1325 and its progeny to include women and girls with disabilities at all stages of peace building, reconstruction, development, reconciliation, and transition, and to ensure that such women and girls are included in protection programs in conflict zones.[281]

The following is an incomplete list of paragraphs offered for inclusion in a new resolution to ensure that women with disabilities are addressed and represented in the objectives set forth by UNSCR 1325. Similar paragraphs should be developed to address the issues covered in subsequent resolutions on “Women, Peace and Security.”

1. Include a preambular paragraph reaffirming the principles of the United Nations Convention on the Rights of Persons with Disabilities. The paragraph should particularly refer to Article 6 on women and Article 11 on situations of risk and armed conflict;[282]

2. Include a preambular paragraph recognizing the unique circumstances confronting women with disabilities during and after conflict;

3. Include a preambular paragraph recalling the commitments made in the Beijing Declaration and Platform for Action,[283] as well as those made in the outcome document of the twenty-third Special Session of the United Nations General Assembly, entitled “Women 2000: Gender Equality, Development and Peace for the Twenty-First Century.”[284] The paragraph should emphasize the relevant points concerning women and girls with disabilities;

4. Include a preambular paragraph, which recognizes the exclusion of women with disabilities from peace-building activities. The paragraph must communicate the valuable contributions of such women to the process of peace building and the community at large, and insist that their unique perspectives be included to ensure that their needs and concerns are effectively addressed and effectively represented;

5. Include a preambular paragraph recognizing the urgent need to incorporate a gender perspective and a human rights-centered approach towards women with disabilities, into the mainstream perception of peacekeeping and reconstruction programs;

6. Include a preambular paragraph noting the need to consolidate data on the impact of armed conflict on women and girls with disabilities;

7. Include an action paragraph encouraging the Secretary-General to appoint experts on issues of concern to women with disabilities to any committee or task force the Secretary-General may appoint for the purposes of addressing peacekeeping and/or peace building;

8. Include an action paragraph requesting the Secretary-General to provide training to member States that address the unique concerns of women and girls with disabilities in peacekeeping, and offer guidelines and materials regarding the protection, rights, and the particular needs of such women. The paragraph must also discuss the importance of involving women with disabilities in all peacekeeping and peace-building measures;

9. Include an action paragraph, calling on all actors involved in the negotiation and implementation of peace agreements, to adopt a gender perspective, including, inter alia:

(a) The special needs of women and girls with disabilities during the implementation of repatriation and resettlement for purposes of rehabilitation, reintegration, and post-conflict reconstruction, bearing in mind the stigma women and girls with disabilities may face in the community;

(b) Measures supporting the inclusion of women with disabilities to local women’s peace initiatives, as well as indigenous processes for conflict resolution that promote access for persons with disabilities, and to all of the implementation mechanisms of the peace agreements;

(c) Measures that ensure the protection of and respect for human rights of women and girls with disabilities, particularly as they relate to the constitution, the electoral system, the police, and the judiciary.

Concomitant with these recommendations, it is important to ensure that UNSCR 1325’s implementation indicators, developed by the Secretary General for action by the Security Council, address the importance of including the voices and needs of women and girls with disabilities.[285]

In addition, below is a non-exhaustive list of possible modifications to the proposed UNSCR 1325 indicators. These modifications will ensure that women with disabilities will be included in these tools that assess the inclusion of women in peacekeeping and peace-building actions.

Indicator 1 requires measuring the incidence of sexual violence in conflict-affected countries. Data on this indicator is expected to be collected through consistent, replicable, and ethical surveys, and be disaggregated by the types of sexual violence toward the relevant vulnerable groups (internally displaced persons, returnees, refugees).[286] It is suggested that this indicator should also include the measurement of incidents of sexual violence experienced by women and girls with disabilities.

Indicator 2 requires measuring the extent to which the United Nations peacekeeping and special political missions include information on violations of women and girls’ human rights in periodic reporting.[287] It is suggested that such reports should include violations experienced by women and girls with disabilities.

Indicator 3(b) requires that the inclusion of representatives of women and civil society organizations in the governance and leadership of human rights bodies be measured.[288] It is suggested that whether such women civil society groups include women with disabilities be assessed.

Indicator 8 requires measuring the number and percentage of peace agreements that contain specific provisions to improve the security and status of women and girls.[289] It is suggested that measurements should be taken to ascertain whether women and girls are included, especially in issues such as the ability to participate in elections, inclusion within constitutional provisions, and whether human rights and fundamental freedoms are ensured. Also, since women with hearing impairments may need such services as sign language interpretation, it is recommended that they be recognized as a linguistic minority.

Indicator 10 requires measuring the level of gender expertise in United Nations decision-making that involves conflict-affected countries.[290] It is suggested to include women with disabilities who are knowledgeable in the specific issues that concern women and girls with disabilities.

Indicator 11(a) requires measuring the “[l]evel of participation of women in formal peace negotiations.”[291] It is suggested to add—to ensure that the voices of women with disabilities are heard—a measure of the extent to which they have a seat at the table and whether it includes appropriate accommodations to meet their specific needs, such as sign language interpreters and accessible facilities.

Indicator 13 requires measuring the number and percentage of Security Council missions that address specific issues affecting women and girls in their terms of reference and the mission reports.[292] It is suggested here that terms of reference and similar documents address the specific needs of women and girls with disabilities.

As mentioned above, this is a non-exhaustive list of proposed modifications to the indicators, and more should be developed in the future.

B. Increasing the Role of United Nations Entities Addressing Women’s Human Rights, Peace, Security, and Other Related Gender Issues with Respect to Women with Disabilities

The second recommendation offered is to urge the United Nations, governments, and various institutions involved in peace building and security, to address the rights and needs of women and girls with disabilities in their programs and reporting.[293]

This recommendation would ensure creation of a United Nations-based group of independent experts whose role is to advise on ways to protect women in conflict situations. To ensure that women’s voices are heard in peace processes and that women are included in post-conflict reconstruction and governance structures, a member who is a woman with a disability and has expertise in the particular subject matter, would be appointed.[294]

It is also recommended to hold side events on the importance of the inclusion of women with disabilities in post-conflict peace-building and reconciliation processes. This should be done in cooperation with relevant United Nations entities and relevant governments during the United Nations Security Council’s discussions on each anniversary of UNSCR 1325.[295]

Another recommendation is to coordinate with the newly established United Nations entity, U.N. Women, to address issues of concern to women and girls with disabilities and to encourage the entity to appoint women with disabilities to leadership positions.[296]

It would also be prudent to encourage the CRPD Committee to invite specialized agencies and other United Nations organs to submit reports on the implementation of CRPD resolutions in their activities. This should be done with respect to the incorporation of a gender-sensitive and disability-inclusive approach to include women with disabilities in peace-building programs, policies, and practices under the CRPD’s Article 38.[297]

It is also recommended to work with the United Nations Special Rapporteur on Violence Against Women, currently Rashida Manjoo, to support her commitment to ensure that issues of violence against women with disabilities are addressed, and that she has sufficient resources to assess violence against women with disabilities in different countries.[298]

Lastly, it is also recommended to establish a mechanism by which the United Nations Special Rapporteur on Violence Against Women will be able to coordinate and collaborate with the United Nations Special Rapporteur on Disability, currently Shuaib Chalklen, with respect to violence against women with disabilities generally and conflict situations in particular. Here, too, it is important to ensure that the United Nations Special Rapporteur on Disability will have sufficient resources to visit different countries in order to assess the violence against women with disabilities.[299]

C. Raising Awareness Among Prosecutors, Courts, and Post-Conflict Tribunals About the Need to Make the Judicial System and Reconciliation Processes Accessible to Women with Disabilities

The courts, police, and prosecutors, including the International Criminal Court and other post-conflict tribunals, need to be informed and educated on how to support women and girls with disabilities who faced violence of any kind. This education includes learning about age- and disability-appropriate supports that may help women and girls with disabilities participate in legal proceedings as parties or witnesses.[300]

D. Incorporating the CRPD’s Empowerment and Social Models and Reasonable Accommodation and Accessibility Standards in Gender-Sensitive Peace-Building Activities

Peace-building institutions should use empowerment perspectives as opposed to vulnerability perspectives, and also apply social models instead of medical or charity models of disability to post-conflict peace building.[301]

The institutions should ensure that women with disabilities have the opportunity to have their unique ideas and initiatives for peace considered during meetings, and that these meetings are held in accessible locations with appropriate accommodations for those who may have learning, hearing, visual, or other disabilities.[302]

Collaboration should be fostered among women’s rights groups, disabled persons organizations of women with disabilities, and other organizations and institutions working for peace, with a view toward including women with disabilities in the dialogue, strategy, and institution building.[303]

E. Expanding Data and Developing Field-Tested Inclusive Strategies

Data collection should be improved and expanded on the national and international levels regarding women with disabilities, including issues such as violence, education, employment, and health, as well as the situation of women with disabilities in conflict environments. Global data on persons with disabilities is currently unreliable, and baseline data for many issues, especially those concerning women with disabilities, is scarce or non-existent.[304] This paucity of data on disability remains an obstacle to the effective formulation of disability-inclusive policies and programs as well as in the monitoring and evaluation of progress.[305]

Training materials and modules should be developed in collaboration with women with disabilities to enhance their skills and the skills of their disabled persons organizations in advocacy and understanding of the peace-building process. In addition, training materials and modules should also be developed for those working in post-conflict environments, to enhance their skills and to build awareness on the importance of inclusion of women with disabilities in peace-building processes. These modules and materials should be tested in post-conflict environments before final publication and distribution, ensuring that all materials incorporate an empowerment model and include information on the CRPD, the CEDAW, and the United Nations Resolutions on “Women, Peace and Security.”[306]

VI. CONCLUSION

This article has described the situation of women with disabilities generally and in the conflict environment; reviewed the development of the legal framework for gender-sensitive peace building under UNSCR 1325 and the United Nations “Women, Peace and Security” framework; explored the intersection of the CRPD, the CEDAW, and the United Nations “Women, Peace and Security” framework as a basis for including women with disabilities in that framework; outlined current practices; explored some positive steps taken for inclusion; and recommended a strategy for change in policy and practice. Although it is clear that women and girls with disabilities have unique needs in the conflict environment (and despite the mandates of the CRPD, the CEDAW, and the United Nations “Women, Peace and Security” framework’s overarching theses of inclusion and gender awareness),[307] the United Nations “Women, Peace and Security” framework has not included women with disabilities.

Women with disabilities are a part of all societies. Hence, they need to be a part of the solution in post-conflict peace building and to be able to shape how the post-conflict situation affects their lives. The justifications for the inclusion of women with disabilities are numerous. Fairness is the most obvious: women account for more than half of the population of the world,[308] persons with disabilities are at least ten percent of the world’s population,[309] and women with disabilities are more than half of the population of persons with disabilities.[310] Often in conflict environments, the population of persons with disabilities is even greater than ten percent (in some cases as high as twenty percent), and women comprise an even greater proportion of the population of persons with disabilities as a direct and indirect consequence of conflict.[311] Therefore, it is only fair that they have meaningful roles as decision makers, given how greatly women and girls with disabilities have been affected. They deserve to be heard.

A. Why Is Inclusion Important?

This article considers two elements essential to inclusion—gender and disability.

Gender Mainstreaming: Under both the CEDAW and the United Nations “Women, Peace and Security” framework (the resolutions and policies that flow from UNSCR 1325), gender is generally viewed as socially constructed roles ascribed to women and men,[312] as opposed to biological and physical characteristics, and often flows from stereotypes of women and men. Gender is a cross-cutting issue in peace and stability operations that affect everything from building housing, schools, bridges or wells, delivering humanitarian relief, reforming the security sector, demining, instituting human rights protections, establishing the rule of law, implementing decision-making processes, setting priorities for development activities, and so on.[313] A gendered perspective can help identify different vulnerabilities, needs, and interests of men and women, boys and girls, can help mainstream gender into planning and decision-making processes, and can maximize contributions to the stabilization process.

Disability Mainstreaming: Under the CRPD, disability is viewed through a social model, recognized as “an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”[314] This social model of disability has important ramifications for peace building, because the CRPD recognizes:

[The] existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms . . . will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty.[315]

This social model of disability poses an alternative to the medical model of disability, asserting that persons with disabilities are disadvantaged not because of their impairments, but as a result of the limitations imposed by social, cultural, economic, and environmental barriers.[316] The advancement of persons with disabilities can most effectively be achieved through modifications to the environment utilizing the universal design approach, which promotes the equalization of opportunities for disabled persons and which benefits the society as a whole.[317] Disability mainstreaming will afford the same benefits as gender mainstreaming and has similar implications for the various stages and elements of peace building as outlined above.

This paper argues for the use of both gender and disability mainstreaming as predominant frameworks to discuss post-conflict peace building. The use of frameworks in discussions refer to the process of assessing the implications for women and men with and without disabilities of any planned action, including legislation, policies, or programs in all areas and at all levels. It is a strategy for making the concerns and experiences of women and men with and without disabilities an integral dimension of design, implementation, monitoring, and evaluation of policies and programs in all political, economic, and societal spheres, so that women and men with and without disabilities benefit equally, without perpetuation of inequality. The ultimate goal is to achieve gender equality and equality for persons with and without disabilities. It is important to note that this mainstreaming approach does not focus solely on women with disabilities, although women with disabilities would more often than not be the focus and beneficiaries of mainstreaming practices due to their disadvantaged position in many communities.

B. What Will Be Missed If Inclusion Is Ignored?

As nations rebuild their institutional frameworks and physical environments, many elements become part of this process. These may include the following: “equal access to appropriate and adequate food and nutrition, clean water, safe sanitation, shelter, education, social and health services, including reproductive health care and maternity care,”[318] as well as construction, and/or rehabilitation of homes and shelter, provision of a transportation and communication system, and addressing violence and abuse, including gender-specific abuse.

Throughout this paper, specific issues of concern to women with disabilities have been highlighted. Some examples of what should be a part of any peace-building process, with particular relevance to women and girls with disabilities, include the following: women with disabilities are the poorest among the poor because of discriminatory employment practices; they are denied educational opportunities because education was not provided for girls, or school facilities were not accessible to them and programs were not designed to meet their needs; they are unable to travel from place to place because of the dangers of violence, which cannot be mitigated because they cannot afford assistive devices like wheelchairs or access transportation systems; they are often the last in the family to receive food because they are viewed as useless, and because they may be too indigent to afford food; they are more likely than men with disabilities or women without disabilities to experience domestic and other forms of violence, and are unaware of helpful services, or such services are not accessible to them; they are not able to receive health care services, including reproductive health care services, because these services are not in accessible locations (due to the fact that the availability of these services are communicated in ways that are not accessible to them), and because health care providers cannot communicate with them or believe they are asexual; they are unable to access the justice system, especially for sexual violence cases, either because the police and judges cannot communicate with them or do not find their testimony credible, or because they have no information on how to access the system; and they are sometimes unwilling to return to their former home communities because of the fear of notarization based on their disability, or because the shelter in the refugee camp was slightly more accessible than their former home.[319]

Therefore, as programs are developed and implemented on these issues, as laws on human and legal rights are drafted, as political processes are established and implemented, as government institutions and policies are designed, and as new buildings, systems, and facilities are constructed post-conflict, women with disabilities want to assure that their needs are met, so that in the future these barriers in society are not further entrenched, and that the concerns of all men and women with and without disabilities are addressed. As a society rebuilds itself after conflict, there are many demands and competing priorities. If women with disabilities do not have a seat at the table, their human rights and other demands and priorities will most likely be ignored or bargained away. There is no one better than women with disabilities themselves to give voice to these issues, and they can only do so with a seat at the table. The approach outlined in this article to more specifically include women with disabilities in the United Nations “Women, Peace and Security” legal and policy framework, as well as the other institutional and process recommendations, would go a long way towards achieving the human rights of women with disabilities in post-conflict peace-building and reconciliation processes, consistent with the legal requirements and spirit of the CRPD, the CEDAW, and the United Nations Resolutions on “Women, Peace and Security.”

* Stephanie Ortoleva is an attorney with expertise in international human rights law and U.S. civil rights law. Currently, she is the Senior Human Rights Legal Advisor with the leading international human rights law firm BlueLaw International, where she focuses on disability rights, women’s rights, and rule of law issues, with concentrations on human rights programming in developing, transition, and post-conflict countries. Ms. Ortoleva also is an Adjunct Professor at American University School of International Service and will be a Visiting Scholar at the University of Hawai’i in Spring 2012. She is the founding Co-Chair of the American Society for International Law’s International Disability Rights Interest Group. Previously, Ms. Ortoleva served as an Attorney and Human Rights Officer at the U.S. Department of State, where she participated in the negotiations of the UN Convention on the Rights of Persons with Disabilities, serving on the United States governmental delegation, as well as worked extensively at the United Nations and Organization of American States on international disability rights and women’s rights, including women’s role in peace building and post-conflict resolution. She was given the prestigious U.S. Department of State Franklin Award in 2009 for her outstanding work on human rights matters and was the featured Department employee for women’s history month in 2009. She is a frequent speaker at conferences and other events and has numerous publications on women’s rights, disability rights, and multilateral diplomacy, including Inaccessible Justice: Persons with Disabilities and the Legal System, International Law Society of America, Journal of International and Comparative Law, Spring 2011; a Chapter in “Lawyers, Lead On,” American Bar Association Publishing, March 2011; among others. She developed the website www.WomenEnabled.org to bring attention to the urgent need to include women and girls with disabilities in international resolutions, policies, and programs. She graduated from Hofstra University School of Law with outstanding honors and is admitted to practice before the U.S. Supreme Court.

The author wishes to thank her research assistants Lisa M. Coleman, Andrea Lindemann, and Shivani Honwad for their outstanding and creative assistance; Akiko Ito, Chief Secretariat for the United Nations Convention on the Rights of Persons with Disabilities for her commitment to the rights of women with disabilities; and Frank Della-Penna, her ever-supportive husband and life partner, for his patience and assistance.

1 . S.C. Res. 1325, U.N. Doc. S/RES/1325 (Oct. 31, 2000).

2 . See World Bank et al., Social Analysis and Disability: A Guidance Note 12–13, 25 (2007), available at http://siteresources.worldbank.org/EXTSOCIALDEV/Resources/ 3177394-1175102311639/3615048-1175607868848/SocialAnalysis&Disability-Full.pdf.

3 . See Special Rapporteur on Violence Against Women, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission; Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, Comm’n on Human Rights, ¶¶ 162, 209–11, U.N Doc. E/CN.4/1998/54 (Jan. 26, 1998) (by Radhika Coomaraswamy) [hereinafter Further Promotion and Encouragement of Human Rights and Fundamental Freedoms].

4 . See id. ¶ 112.

5 . Five-year Review of the Implementation of the Beijing Declaration and Platform for Action (Beijing + 5) Held in the General Assembly, 5–9 June 2000, U.N. Entity for Gender Equality & the Empowerment of Women, http://www.un.org/womenwatch/daw/followup/ beijing+5.htm (last visited Oct. 15, 2011).

6 . See S.C. Res. 1325, supra note Error: Reference source not found.

7 . See id.

8 . U.N. Secretary-General, Women and Peace and Security: Report of the Secretary-General, ¶¶ 12–20, U.N. Doc. S/2010/173 (Apr. 6, 2010) [hereinafter Women and Peace and Security].

9 . Convention on the Rights of Persons with Disabilities, G.A. Res. 61/611, U.N. Doc. A/RES/61/611 (Dec. 6, 2006) [hereinafter CRPD].

10 . Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. Doc. A/RES/34/180 (Dec. 18, 1979) [hereinafter CEDAW].

11 . See S.C. Res. 1325, supra note Error: Reference source not found; S.C. Res. 1820, U.N. Doc. S/RES/1820 (June 19, 2008); S.C. Res. 1888, pmbl., ¶¶ 10–11, 21, U.N. Doc. S/RES/1888 (Sept. 30, 2009); S.C. Res. 1889, U.N. Doc. S/RES/1889 (Oct. 5, 2009); S.C. Res. 1894, U.N. Doc. S/RES/1894 (Nov. 11, 2009); S.C. Res. 1960, U.N. Doc. S/RES/1960 (Dec. 16, 2010).

12 . See CRPD, supra note Error: Reference source not found, pmbl., (u), art. 11; Comm. on the Elimination of Discrimination Against Women, General Recommendation No. 19 on the Convention on the Elimination of All Forms of Discrimination Against Women in its Eleventh Session (1992), http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm [hereinafter General Recommendations].

13 . See CRPD, supra note Error: Reference source not found, arts. 6, 16, ¶ 5, 28, ¶ 2(b).

14 . CRPD, supra note Error: Reference source not found, art. 8, ¶ 1(b); CEDAW, supra note Error: Reference source not found, arts. 5(a), 10(c).

15 . See CRPD, supra note Error: Reference source not found, arts. 12–13; CEDAW, supra note Error: Reference source not found, art. 15.

16 . See Inter-Agency Support Group, U.N. Enable, http://www.un.org/disabilities/default. asp?navid=43&pid=323 (last visited Oct. 15, 2011).

17 . G.A. Res. 37/52, U.N. Doc. A/RES/37/52 (Dec. 3, 1982) [hereinafter World Programme of Action].

18 . Standard Rules on the Equalization of Opportunities for Persons with Disabilities, G.A. Res. 48/96, U.N. Doc. A/RES/48/96 (Dec. 20, 1993) [hereinafter Standard Rules].

19 . See id. ¶¶ 22–23; World Programme of Action, supra note Error: Reference source not found, pmbl.

20 . CRPD, supra note Error: Reference source not found, art. 4, ¶ 2.

21 . S.C. Res. 1325, supra note Error: Reference source not found, ¶ 1.

22 . Millennium Development Goals, World Bank, http://web.worldbank.org/WBSITE/ EXTERNAL/EXTABOUTUS/0,,contentMDK:20104132~menuPK:250991~pagePK:43912~piPK:44037~theSitePK:29708,00.html (last visited Oct. 15, 2011).

23 . See United Nations, The Millennium Development Goals Report (2010), available at http://www.un.org/millenniumgoals/pdf/MDG%20Report%202010%20En%20r15% 20-low%20res%2020100615%20-.pdf [hereinafter Millennium Development Goals Report].

24 . See G.A. Res. S-23/3, ¶ 16, U.N. Doc. A/RES/S-23/3 (Nov. 16, 2000).

25 . See, e.g., Pearl Praise Gottschalk, “How Are We in This World Now?”: Examining the Experiences of Persons Disabled by War in the Peace Processes of Sierra Leone lii (2007) (unpublished M.A. dissertation, University of Victoria), available at http://siteresources. worldbank.org/DISABILITY/Resources/News---Events/463933-1184017167861/3975400-1229373211417/Gottshalk_Full.pdf.

26 . See CRPD, supra note Error: Reference source not found, pmbl., (e), arts. 1, 3, 6, ¶ 2.

27 . See id. arts. 3, 9, 14, ¶ 2, 24, ¶ 2(c), 27, ¶ 1(i).

28 . World Health Organization & World Bank, World Report on Disability xi (2011), available at http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf [hereinafter World Report on Disability].

29 . Id.

30 . Id. at 34.

31 . See id. at xi.

32 . Id. at 29.

33 . Id. at 261.

34 . World Report on Disability, supra note Error: Reference source not found, at xi.

35 . Id. at 44.

36 . Id. at 29–30.

37 . See id. at 28.

38 . U.N. Secretariat, Mainstreaming Disability in the Development Agenda: Note by the Secretariat, ¶ 2, U.N. Doc. E/CN.5/2008/6 (Nov. 23, 2007) [hereinafter Note by the Secretariat].

39 . Factsheet on Persons with Disabilities, U.N. Enable, http://www.un.org/disabilities/ default.asp?id=18 (last visited Oct. 15, 2011).

40 . Sigrid Arnade & Sabine Haefner, Gendering the Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities 7 (2006), available at http://www.dpi.org/files/ uploads/publications/gendering_convention/DPI_Gendering_UN_Convention_Jan_2006.pdf.

41 . Id.

42 . Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives 9 (2010).

43 . CEDAW, supra note Error: Reference source not found, art. 5(a).

44 . See CRPD, supra note Error: Reference source not found, art. 7.

45 . Id. art. 8.

46 . Arnade & Haefner, supra note Error: Reference source not found, at 10.

47 . Michelle Fine & Adrienne Asch, Disabled Women: Sexism Without the Pedestal, 8 J. Soc. & Soc. Welfare 233, 239 (1981).

48 . Id. at 241.

49 . Arnade & Haefner, supra note Error: Reference source not found, at 12.

50 . See Kozue Kay Nagata, Gender and Disability in the Arab Region: The Challenges in the New Millennium, 14 Asia Pac. Disability Rehabilitation J. 10 (2003); Daniel Stubbs & Sainimili Tawake, Pacific Sisters with Disabilities: At the Intersection of Discrimination 24, 29 (2009), available at http://www.undppc.org.fj/_resources/article/files/ Final%20PSWD%20BOOKLET.pdf.

51 . See CRPD, supra note Error: Reference source not found, pmbl., (u), art. 11.

52 . See Harilyn Rousso, Education for All: A Gender and Disability Perspective 3 (2003) (unpublished background paper) (on file with UNESCO), available at http://unesdoc.unesco.org/ images/0014/001469/146931e.pdf.

53 . See id. at 23.

54 . Arthur O’Reilly, The Right to Decent Work of Persons With Disabilities 4, 32 (IFP/Skills Working Paper No. 14, 2003), available at http://staging2.ilo.org/wcmsp5/groups/ public/---asia/---ro-bangkok/documents/publication/wcms_bk_pb_93_en.pdf.

55 . See Leandro Despouy, Special Rapporteur of the Sub-Comm’n on Prevention of Discrimination and Prot. of Minorities, Human Rights and Disabled Persons, ¶ 18, U.N. Sales No. E.92.XIV.4 (1988), available at http://www.un.org/esa/socdev/enable/ dispaperdes0.htm.

56 . Special Rapporteur on Econ., Soc. & Political Rights, The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Report of the Special Rapporteur Submitted in Accordance with Commission Resolution 2002/31, Comm’n on Human Rights, ¶¶ 59, 65, 67, U.N. Doc. E/CN.4/2003/58 (Feb. 13, 2003) (by Paul Hunt).

57 . See id.

58 . See, e.g., Rousso, supra note Error: Reference source not found, at 11.

59 . See Special Rapporteur on Econ., Soc. & Political Rights, Women and Adequate Housing: Report by the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-Discrimination in This Context, Comm’n on Human Rights, ¶ 31, U.N. Doc. E/CN.4/2006/118 (Feb. 27, 2006) (by Miloon Kothari).

60 . World Bank et al., supra note Error: Reference source not found, at 32.

61 . Id.

62 . See id. at 8, 13.

63 . See id. at 32.

64 . See Thomas Plümper & Eric Neumayer, The Unequal Burden of War: The Effect of Armed Conflict on the Gender Gap in Life Expectancy, 60 Int’l Org. 723, 723–24 (2006).

65 . See id. at 723.

66 . See id. at 747.

67 . Id. at 748.

68 . Factsheet on Persons with Disabilities, supra note Error: Reference source not found.

69 . See Rangita de Silva de Alwis, Disability Rights, Gender, and Development: A Resource Tool for Action 10 (2008), available at http://www.un.org/disabilities/ documents/Publication/UNWCW%20MANUAL.pdf [hereinafter Disability Rights, Gender, and Development].

70 . Int’l Fed’n of Red Cross & Red Crescent Societies, World Disasters Report: Focus on Discrimination 88 (2007), available at http://www.ifrc.org/Global/Publications/ disasters/WDR/WDR2007-English.pdf.

71 . Id. at 91.

72 . U.N. Dep’t for Disarmament Affairs, Gender Perspectives on Landmines, in Gender Perspectives on Disarmament 1, 3 (2001), available at http://www.un.org/disarmament/ HomePage/gender/docs/note5.pdf.

73 . Rachel Canfield & Chad McCoull, Gender in the Mine-Action Community, 12.2 J. ERW & Mine Action (2008), http://maic.jmu.edu/Journal/12.2/focus/canfield/canfield.htm.

74 . United Nations, Report of the Fourth World Conference on Women, ¶ 143(e), U.N. Doc. A/CONF.177/20, U.N. Sales No. 96.IV.13 (1996) [hereinafter Report of the Fourth World Conference on Women].

75 . See Disability Rights, Gender, and Development, supra note Error: Reference source not found, at 64–65.

76 . Id. at 64.

77 . See Global Appeal: No Use of Child Soldiers, Red Hand Day, http://www.redhandday. org/index.php?l=en&view=about (last visited Oct. 15, 2011).

78 . Div. for the Advancement of Women & UNICEF, Elimination of All Forms of Discrimination and Violence Against the Girl Child ¶ 80 (unpublished report), available at http://www.un.org/womenwatch/daw/egm/elim-disc-viol-girlchild/EGM%20Report_FINAL.pdf.

79 . See id. ¶ 81; Global Appeal: No Use of Child Soldiers, supra note Error: Reference source not found; see also Optional Protocols to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography, G.A. Res. 54/263, pmbl., U.N. Doc. A/RES/54/263 (Mar. 16, 2001) (“Convinced of the need to strengthen . . . the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict”). See generally The Situation of Girls in War, Office of the Special Representative of the Secretary-General for Children & Armed Conflict, http://www.un.org/children/conflict/english/girlsinwar.html (last visited Oct. 15, 2011) (recognizing the need to provide “special advocacy, attention and protection” to children who are victims of war).

80 . For an example of a reintegration program in which women with disabilities were actually able to participate, see Rosemarie McNairn, Building Capacity to Resolve Conflict in Communities: Oxfam Experience in Rwanda, 12 Gender & Dev. 83 (2004).

81 . World Bank et al., supra note Error: Reference source not found, at 12.

82 . Id.; see also Mary Ellsberg & Lori Heise, Researching Violence Against Women: A Practical Guide for Researchers and Activists 8–33 (2005), available at http://www.path.org/files/GBV_rvaw_front.pdf; Jane Maxwell et al., A Health Handbook for Women with Disabilities 49–69 (2007), available at http://hesperian.info/assets/wwd/ Women_with_Disabilities_Full_Book.pdf (describing mental health issues that women with disabilities may face and advice for treatment).

83 . World Bank et al., supra note Error: Reference source not found, at 12–13.

84 . Id. at 13.

85 . Id.

86 . See Marit Hoem Kvam & Stine Hellum Braathen, Violence and Abuse Against Women with Disabilities in Malawi 11 (2006), available at http://www.sintef.no/ upload/Helse/Levek%C3%A5r%20og%20tjenester/AbuseMalawi.pdf; Rosemary Okello, Cultural Stigma and Myth: Disabled Women in Kenya Are Vulnerable to Sexual Violence, Women’s Int’l Persp. (Mar. 4, 2009), http://thewip.net/contributors/2009/03/cultural_stigma_ and_myth_disab.html; see also Disability Rights, Gender, and Development, supra note Error: Reference source not found, at 124 (describing the limited reporting of violence against women); Canfield & McCoull, supra note Error: Reference source not found. See generally Domestic Violence Initiative for Women with Disabilities, http://www.dviforwomen.org (last visited Oct. 15, 2011) (reporting that women with disabilities are more likely to be abused than women without disabilities, but that “[w]omen with disabilities are less likely to report abuse because they often have limited job opportunities and lack the means with which to support themselves independently”).

87 . Disability Rights, Gender, and Development, supra note Error: Reference source not found, at 119, 124, 128.

88 . See id. at 12, 63.

89 . See id. at 129.

90 . See “Women Protected Under International Humanitarian Law,” available at http://www.icrc.org/eng/war-and-law/protected-persons/women/overview-women-protected.htm (last visited Oct. 15, 2011) (noting that despite the pervasive gender-based violence during armed conflict, women play an integral role in rebuilding efforts after the conflict has subsided).

91 . See S.C. Res. 1820, supra note Error: Reference source not found, pmbl.

92 . See S.C. Res. 1888, supra note Error: Reference source not found, pmbl., ¶¶ 10–11, 21.

93 . See Charlotte Lindsey, Women Facing War, International Committee for the Red Cross, October 2001 (this comprehensive ICRC Handbook pays little attention to working with women with disabilities in the conflict environment).

94 . See Human Rights Council Res. 14/12, Res. of the Human Rights Council, 14th Sess., May 31, 2010–June 18, 2010, ¶¶ 5, 16, U.N. Doc A/HRC/RES/14/12 (June 23, 2010).

95 . Report of the Fourth World Conference on Women, supra note Error: Reference source not found, ¶ 135.

96 . See U.N. Office on Drugs & Crime, Handbook on Effective Police Responses to Violence Against Women 6, 8, 10, 12–13, 15 (2010), available at http://www.unodc.org/ documents/justice-and-prison-reform/hb_eff_police_responses.pdf.

97 . See, e.g., Suk Chun & Inger Skjelsbaek, Sexual Violence in Armed Conflicts (2010), available at http://www.peacewomen.org/assets/file/Resources/Academic/vaw_sexual violenceinarmedconflicts_prio_jan2010.pdf.

98 . See Nora E. Groce & Reshma Trasi, Rape of Individuals with Disability: AIDS and the Folk Belief of Virgin Cleansing, 363 Lancet 1663, 1664 (2004).

99 . HIV and Disability, U.S. Dep’t of Health & Human Servs., http://www.hhs.gov/od/ about/fact_sheets/hivanddisability.html (last visited Oct. 15, 2011).

100 . Press Release, Disability & HIV Task Team, Disability, a New Field in HIV and AIDS Programming (July 21, 2010), available at http://www.usicd.org/index.cfm/news_Press%20 Release%20from%20the%20Disability%20and%20HIV%20Task%20Team.

101 . Id.; see HIV/AIDS and Disability Global Survey, About Us, Yale Ctr. for Interdisciplinary Research on AIDS, http://cira.med.yale.edu/globalsurvey/about_us.html (last modified Feb. 20, 2004).

102 . Women’s Refugee Comm’n, Disabilities Among Refugees and Conflict-Affected Populations 3 (2008), available at http://womensrefugeecommission.org/reports/ doc_download/104-disabilities-among-refugees-and-conflict-affected-populations.

103 . See id. at 3, 16–17, 22.

104 . Id. at 18.

105 . See id. at 22.

106 . See id. at 11.

107 . See id. at 12.

108 . See Women’s Refugee Comm’n, supra note Error: Reference source not found, at 12.

109 . See Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, supra note Error: Reference source not found, ¶ 209.

110 . Women’s Refugee Comm’n, supra note Error: Reference source not found, at 12.

111 . See Nora E. Groce, People with Disabilities, in Social Injustice and Public Health 145, 154 (Barry S. Levy & Victor Sidel eds., 2006).

112 . Christine Chinkin & Hilary Charlesworth, Building Women into Peace: The International Legal Framework, 27 Third World Q. (Special Issue) 937, 948–49 (2006).

113 . Gottschalk, supra note Error: Reference source not found, at lii.

114 . See id. at xli–xliii.

115 . Human Rights Watch, “As If We Weren’t Human”: Discrimination and Violence Against Women with Disabilities in Northern Uganda (2010), available at http://www.hrw.org/sites/default/files/reports/uganda0810webwcover_0.pdf.

116 . Id. at 6 (discussing how women with disabilities are subject to isolation and abuse as their needs are rarely met).

117 . See id. at 12, 68.

118 . See id. 10, 68–69 (citing the extremely high maternal mortality rate, and how small changes in health care and planning can make a huge difference)

119 . See id. at 71.

120 . Id. at 33, 45–46, 68, 71 (noting that data collection is needed for the types of disabilities women suffer and how effective current programs for women with disabilities are).

121 . See id. at 17, 65.

122 . Fact Sheet No. 5, Women and Armed Conflict, Div. for the Advancement of Women, Dep’t of Econ. & Soc. Affairs, http://www.un.org/womenwatch/daw/followup/ session/presskit/fs5.htm (last visited Oct. 15, 2011).

123 . See, e.g., S.C. Res. 1325, supra note Error: Reference source not found, ¶ 1; S.C. Res. 1820, supra note Error: Reference source not found, pmbl., ¶ 1; S.C. Res. 1888, supra note Error: Reference source not found; S.C. Res. 1889, supra note Error: Reference source not found, pmbl., ¶¶ 1–3; S.C. Res. 1894, supra note Error: Reference source not found; S.C. Res. 1960, supra note Error: Reference source not found.

124 . See S.C. Res. 1325, supra note Error: Reference source not found; S.C. Res. 1820, supra note Error: Reference source not found; S.C. Res. 1888, supra note Error: Reference source not found; S.C. Res. 1889, supra note Error: Reference source not found; S.C. Res. 1894, supra note Error: Reference source not found; S.C. Res. 1960, supra note Error: Reference source not found.

125 . United Nations, Charter of the United Nations, pmbl., ¶ 1 (1945).

126 . See U.N. Charter Introductory Note, available at http://www.un.org/en/documents/ charter/intro.shtml (last visited Oct. 15, 2011).

127 . See U.N. Charter, supra note Error: Reference source not found, arts. 1–105.

128 . Id. arts. 1–2.

129 . Universal Declaration of Human Rights, G.A. Res. 217 (III) A, pmbl., ¶¶ 1–2, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

130 . U.N. Charter, supra note Error: Reference source not found, art. 51.

131 . See Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 17512; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 17513.

132 . Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 3/260, art. 2(a), U.N. Doc. A/RES/3/260 A (Dec. 9, 1948).

133 . See, e.g., U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, July 15–17, 1998, Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), available at http://untreaty.un.org/ cod/icc/statute/romefra.htm. [hereinafter Rome Statute of the International Criminal Court].

134 . U.N. Secretary-General, An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peacekeeping: Report of the Secretary-General, ¶ 21, U.N. Doc. A/47/277-S/24111 (June 17, 1992) [hereinafter Preventive Diplomacy, Peacemaking and Peace-Keeping]; see Chinkin & Charlesworth, supra note Error: Reference source not found, at 938.

135 . Preventive Diplomacy, Peacemaking and Peace-Keeping, supra note Error: Reference source not found, ¶ 55.

136 . U.N. Secretary-General, The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa: Report of the Secretary-General, ¶ 63, U.N. Doc. A/52/871-S/1998/318 (Apr. 13, 1998) [hereinafter The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa].

137 . Chinkin & Charlesworth, supra note Error: Reference source not found, at 938.

138 . G.A. Res. S-23/3, supra note Error: Reference source not found, ¶ 86(b).

139 . Id. ¶ 15.

140 . Id. ¶ 16.

141 . Id. ¶ 86(b).

142 . S.C. Res. 1325, supra note Error: Reference source not found, ¶ 5.

143 . S.C. Res. 1325, supra note Error: Reference source not found, pmbl., ¶¶ 15–16.

144 . Id.

145 . Id. ¶¶ 6, 16.

146 . Id. ¶¶ 2, 10.

147 . See S.C. Res. 1820, supra note Error: Reference source not found, pmbl., ¶ 1.

148 . See S.C. Res. 1888, supra note Error: Reference source not found, ¶¶ 10, 21, 26.

149 . See S.C. Res. 1889, supra note Error: Reference source not found, ¶ 1.

150 . See S.C. Res. 1894, supra note Error: Reference source not found.

151 . See S.C. Res. 1960, supra note Error: Reference source not found.

152 . S.C. Res. 1894, supra note Error: Reference source not found, para 29.

153 . S.C. Res. 1960, supra note Error: Reference source not found, pmbl.

154 . See id.; S.C. Res. 1894, supra note Error: Reference source not found, pmbl. para 29.

155 . See id.

156 . See S.C. Res. 1325, supra note Error: Reference source not found, ¶¶ 2, 6.

157 . Women and Peace and Security, supra note Error: Reference source not found, ¶ 3.

158 . Id. ¶ 4.

159 . Id. ¶ 7(d).

160 . Id. ¶ 9(a)–(d).

161 . See CRPD, supra note Error: Reference source not found, pmbl., (o), arts. 3, 6.

162 . See S.C. Res. 1325, supra note Error: Reference source not found.

163 . Id. ¶ 53.

164 . U.N. Security Council, Oct. 26, 2010, http://www.un.org/News/Press/docs/2010/ sc10071.doc.htm.

165 . U.N. President of the S.C., Statement dated Oct. 28, 2004 by the President of the Security Council, U.N. Doc. S/PRST/2004/40 (Oct. 28, 2004) [hereinafter 2004 Statement].

166 . U.N. President of the S.C., Statement dated Oct. 27, 2005 by the President of the Security Council, U.N. Doc. S/PRST/2005/52 (Oct. 27, 2005) [hereinafter 2005 Statement].

167 . 2004 Statement, supra note Error: Reference source not found, at 2; 2005 Statement, supra note Error: Reference source not found, at 2.

168 . 2004 Statement, supra note Error: Reference source not found, at 2; 2005 Statement, supra note Error: Reference source not found, at 3.

169 . Women’s Int’l League for Peace and Freedom, About 1325 National Action Plans (NAPs), PeaceWomen, http://www.peacewomen.org/pages/about-1325/national-action-plans-naps (last visited Oct. 15, 2011).

170 . Id.

171 . Id.

172 . Hillary R. Clinton, U.S. Secretary of State, Remarks at the 10th Anniversary of U.N. Security Council Resolution 1325 on Women, Peace and Security (Oct. 26, 2010), available at http://www.state.gov/secretary/rm/2010/10/150010.htm (last visited Oct. 15, 2011).

173 . See, e.g., Foreign & Commonwealth Office, UK Government National Action Plan on UNSCR 1325 Women, Peace & Security (2010), available at http://www. peacewomen.org/assets/file/NationalActionPlans/uk_nationalactionplan_november2010.pdf; Building Peace and Security for All: Canada’s Action Plan for the Implementation of United Nations Security Council Resolutions on Women, Peace and Security (2010), available at http://www.peacewomen.org/assets/file/Resources/Government/canada_nationalactionplan_october2010.pdf; National Action Plan for France: Implementation of the “Women, Peace and Security” Resolutions of the United Nations Security Council (2010), available at http://www. peacewomen.org/assets/file/Resources/Government/canada_nationalactionplan_october2010.pdf (all failing to contain any provisions for women with disabilities).

174 . See, e.g., Fed. Ministry for European and Int’l Affairs, Austria Action Plan on Implementing UN Security Council Resolution 1325 (2000) 14 (2007), available at http://www.peacewomen.org/assets/file/NationalActionPlans/austria_nationalactionplan_august2007.pdf; National Action Plan for the Implementation of UN Security Council Resolution 1325 (2000) on Women, Peace and Security, and Related Resolutions (for the period from 2011 to 2014) 5–6 (Croat.), available at http://www.peacewomen.org/assets/file/NationalActionPlans/ croatia_nationalactionplan_2011.pdf.

175 . Report of the Fourth World Conference on Women, supra note Error: Reference source not found, ¶ 232(p).

176 . G.A. Res. S-23/3, supra note Error: Reference source not found, ¶ 69(j).

177 . Id. ¶ 83(d).

178 . Interview with HRH Shiekha Hessa Khalifa A. Al-Thani, Associazione Italiana Amici di Raoul Follereau (May 3, 2006), available at http://www.aifo.it/english/resources/ online/books/cbr/SR-interview0506.htm.

179 . Id.

180 . See CRPD, supra note Error: Reference source not found; CEDAW, supra note Error: Reference source not found.

181 . See CRPD, supra note Error: Reference source not found, pmbl., (u).

182 . Id. at 10.

183 . CEDAW, supra note Error: Reference source not found, annex.

184 . Id.

185 . See CRPD, supra note Error: Reference source not found, pmbl., (q), (s), arts. 3, 6; see also Peter Blanck et al., Defying Double Discrimination, 8 Geo. J. Int’l Aff. 95, 96–97 (2007) (detailing the genesis and negotiation process for CRPD Article 6 to achieve rights for women with disabilities).

186 . See CRPD, supra note Error: Reference source not found, arts. 8, 16, 25.

187 . Id. art 8, ¶ 1(b).

188 . CEDAW, supra note Error: Reference source not found, art. 5(a).

189 . See CRPD, supra note Error: Reference source not found, art. 6, ¶ 1.

190 . See id. arts. 12, ¶¶ 1–4, 13, ¶ 1; CEDAW, supra note Error: Reference source not found, art. 15.

191 . See International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), arts. 14–16, U.N. Doc. A/RES/21/2200 (Dec. 16, 1966).

192 . Human Rights Comm., General Comment No. 28: Equality of Rights Between Men and Women (Article 3), ¶ 19, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (Mar. 29, 2000).

193 . See U.N. High Comm’r for Human Rights, Legal Capacity ¶ 14 (Aug. 2005) (unpublished background conference document) (on file with author), available at http://www2.ohchr.org/SPdocs/CRPD/DGD21102009/OHCHR_BP_Legal_Capacity.doc.

194 . See id.

195 . CEDAW, supra note Error: Reference source not found, art. 15.

196 . See Comm. on the Elimination of Discrimination Against Women, Report on its 13th Sess., Jan. 17–Feb. 4, 1994, ¶ 26, U.N. Doc. A/49/38 (Apr. 12, 1994).

197 . CEDAW, supra note Error: Reference source not found, art. 15, ¶ 2.

198 . U.N. High Comm’r for Human Rights, supra note Error: Reference source not found, ¶ 18.

199 . See id. ¶ 37.

200 . CRPD, supra note Error: Reference source not found, art. 29(a), (b)(ii).

201 . CEDAW, supra note Error: Reference source not found, arts. 7–8.

202 . General Recommendations, supra note Error: Reference source not found, No. 18.

203 . Id. No. 24, ¶ 25.

204 . Id. ¶ 6 (“While biological differences between women and men may lead to differences in health status, there are societal factors which are determinative of the health status of women and men and which can vary among women themselves. For that reason, special attention should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups, such as migrant women, refugee and internally displaced women, the girl child and older women, women in prostitution, indigenous women and women with physical or mental disabilities.”).

205 . See CRPD, supra note Error: Reference source not found, art. 43.

206 . Id. art. 38(a).

207 . Inter-Agency Support Group, supra note Error: Reference source not found.

208 . U.N. Inter-Agency Support Group for the Convention on the Rights of Persons with Disabilities, Joint Statement of Commitment to the Convention ¶ 4 (2006), available at http://www.un.org/disabilities/documents/iasg/soc.pdf [hereinafter Joint Statement of Commitment to the Convention].

209 . See id.

210 . See Note by the Secretariat, supra note Error: Reference source not found.

211 . See infra Part IV.C.

212 . See World Programme of Action, supra note Error: Reference source not found.

213 . See Standard Rules, supra note Error: Reference source not found, ¶ 6.

214 . See id.

215 . See CRPD, supra note Error: Reference source not found.

216 . See Standard Rules, supra note Error: Reference source not found, ¶ 6.

217 . World Programme of Action Concerning Disabled Persons, U.N. Enable, http://www. un.org/disabilities/default.asp?id=23 (last visited Oct. 15, 2011).

218 . See id.

219 . See Standard Rules, supra note Error: Reference source not found, ¶ 22 (defining “prevention”).

220 . Id. ¶ 15.

221 . See id. ¶¶ 22–23.

222 . Millennium Development Goals Report, supra note Error: Reference source not found, at 3.

223 . See id. at 20.

224 . See id.

225 . G.A. Res. 64/131, 1, 3, U.N. Doc. A/RES/63/150 (Feb. 3, 2010).

226 . Id. ¶ 6.

227 . CRPD, supra note Error: Reference source not found, art. 6.

228 . Millennium Development Goals Report, supra note Error: Reference source not found, at 20.

229 . G.A. Res. 64/131, supra note Error: Reference source not found, ¶ 6.

230 . See Millennium Development Goals Report, supra note Error: Reference source not found, at 5.

231 . See Int’l Disability Alliance, Overcoming Invisibility: Making the MDGs Inclusive of and Accessible for Persons with Disabilities (conference paper), available at http://www.un-ngls.org/IMG/pdf_Imed_Chaker.pdf.

232 . See Gender Analysis, Canadian Int’l Dev. Agency, http://www.acdi-cida.gc.ca/acdi-cida/ACDI-CIDA.nsf/eng/JUD-31194519-KBD (last visited Oct. 15, 2011); AusAID, Australian AID, Development for All: Towards a Disability-Inclusive Australian Aid Program 2009–2014 (2008), available at http://www.ausaid.gov.au/publications/pdf/dev-for-all.pdf; Ministry for Foreign Affairs of Finland, Development Policy Programme 2007: Towards a Sustainable and Just World Community (2008), available at http://formin.finland.fi/public/default.aspx?contentid=107497.

233 . See Janet Lord et al., World Bank, Disability and International Cooperation and Development: A Review of Policies and Practices 1 (2010), available at http://siteresources.worldbank.org/DISABILITY/Resources/Publications-Reports/Disability_ and_Intl_Cooperation.pdf.

234 . See id.; U.S. Inst. of Peace & U.S. Army Peacekeeping & Stability Operations Inst., Guiding Principles for Stabilization and Reconstruction (2009), available at http://www.usip.org/files/resources/guiding_principles_full.pdf; Gender Analysis, supra note Error: Reference source not found; AusAID, supra note Error: Reference source not found, at iii–iv; Ministry for Foreign Affairs of Fin., supra note Error: Reference source not found, at 16.

235 . See Lord et al., supra note Error: Reference source not found.

236 . Representative of the U.N. Secretary-General, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission Human Rights, Mass Exoduses and Displaced Persons: Report of the Representative of the Secretary-General, principle 4, ¶ 2, U.N. Doc. E/CN.4/1998/53/Add.2 (Feb. 11, 1998).

237 . Id. principle 4.

238 . U.S. Inst. of Peace & U.S. Army Peacekeeping & Stability Operations Inst., supra note Error: Reference source not found, § 10.8.16.

239 . Id. § 10.

240 . Int’l Fed’n of Red Cross & Red Crescent Societies, supra note Error: Reference source not found, at 95.

241 . U.N. High Comm’r for Refugees, The Protection of Older Persons and Persons with Disabilities, Exec. Comm. of the High Comm’rs Programme, ¶ 1, U.N. Doc. EC/58/SC/CRP.14 (June 6, 2007), available at http://www.unhcr.org/refworld/pdfid/4693775c1c.pdf.

242 . Id. ¶ 27.

243 . Id.

244 . See generally Asia-Pac. Ctr. for the Responsibility to Protect, The Responsibility to Protect and the Protection of Civilians: Asia-Pacific in the U.N. Security Council, Update No. 2 4, 8, 13–14 (2009), available at http://www.r2pasiapacific. org/documents/asia-pacific_in_the_un_security_council_poc_update_2.pdf (noting support for UNSCR 1894 by the U.N. Security Council and other member States).

245 . See S.C. Res. 1894, supra note Error: Reference source not found, ¶ 29.

246 . Id. See generally Asia-Pac. Ctr. for the Responsibility to Protect, supra note Error: Reference source not found, at 8 (noting the advocacy of U.N. member States to adopt S/RES/1894).

247 . Empowerment: Persons with Disabilities: Persons with Disabilities & Peacebuilding Processes, Peacebuilding Initiative, http://www.peacebuildinginitiative.org/index.cfm? pageId=1966 (last visited Oct. 15, 2011); see also Suzanne Williams, Contested Terrain: Oxfam, Gender, and the Aftermath of War, in Gender, Development, and Humanitarian Work 19, 27 (Caroline Sweetman ed., 2001) (noting that women should not only be viewed as a vulnerable group but must also be part of national political structures and policy making); Alison Harris & Sue Enfield, Disability, Equality, and Human Rights: A Training Manual for Development and Humanitarian Organisations 18–19 (2003), available at http://www. oxfam.org.uk/resources/downloads/disability_manual_whole.pdf (describing the exclusion of persons with disabilities from rehabilitation programs).

248 . The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among U.N. Agencies, U.N. Dev. Grp., http://www.undg.org/archive_docs/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_ Understanding_among_UN.pdf (last visited Oct. 15, 2011).

249 . Id.

250 . Id.

251 . Inter-Agency Support Group, supra note Error: Reference source not found.

252 . Joint Statement of Commitment to Convention, supra note Error: Reference source not found, ¶ 4.

253 . See id.

254 . Empowerment: Persons with Disabilities: Persons with Disabilities & Peacebuilding Processes, supra note Error: Reference source not found; Convention on the Rights of Persons with Disabilities Opening for Signature, http://www.un.org/disabilities/convention/signature.shtml (last visited Oct. 15, 2011).

255 . Secretariat for the Convention on the Rights of Persons with Disabilities, U.N. Enable, http://www.un.org/disabilities/default.asp?id=17 (last visited Oct. 15, 2011).

256 . See U.N. Charter, supra note Error: Reference source not found, art. 1, ¶¶ 3–4; see also Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144, pmbl., U.N. Doc. A/RES/53/144 (Mar. 8, 1999) (“Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world”).

257 . See Gottschalk, supra note Error: Reference source not found, at lxv–lxvi.

258 . See id. at iii–iv.

259 . See id. at ii.

260 . Id. at xxxiv.

261 . Id. at xlix.

262 . Id.

263 . Gottschalk, supra note Error: Reference source not found, at lii.

264 . See id. at xxxiv–xxxviii.

265 . See id. at xxxviii–xl.

266 . Id. at xlix.

267 . See CRPD, supra note Error: Reference source not found, art. 32.

268 . See Gottschalk, supra note Error: Reference source not found, at lv.

269 . See id.

270 . CRPD, supra note Error: Reference source not found, pmbl., (y).

271 . See id.; supra Part I.

272 . See supra Parts II–III.

273 . See S.C. Res. 1325, supra note Error: Reference source not found, pmbl., ¶ 2.

274 . See CRPD, supra note Error: Reference source not found, arts. 6, 11.

275 . See id. pmbl., (s), arts. 6, 11.

276 . See id. arts. 6, 9, 11–13, 16, 19, 23–25, 27–30; supra Part I.

277 . See Preventive Diplomacy, Peacemaking and Peace-Keeping, supra note Error: Reference source not found, ¶¶ 21, 81; The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, supra note Error: Reference source not found, ¶¶ 63, 72–74, 77–78, 82.

278 . See G.A. Res. S-23/3, supra note Error: Reference source not found, ¶ 15; S.C. Res. 1325, supra note Error: Reference source not found, pmbl., ¶¶ 5, 8.

279 . See CRPD, supra note Error: Reference source not found, pmbl., (s).

280 . See S.C. Res. 1325, supra note Error: Reference source not found; S.C. Res. 1820, supra note Error: Reference source not found; S.C. Res. 1888, supra note Error: Reference source not found; S.C. Res. 1889, supra note Error: Reference source not found; S.C. Res. 1894, supra note Error: Reference source not found; S.C. Res. 1960, supra note Error: Reference source not found; CRPD, supra note Error: Reference source not found, arts. 6, 9, 11–13, 16, 19, 23–25, 27–30; CEDAW, supra note Error: Reference source not found, art. 5(a).

281 . See S.C. Res. 1325, supra note Error: Reference source not found; S.C. Res. 1820, supra note Error: Reference source not found; S.C. Res. 1888, supra note Error: Reference source not found; S.C. Res. 1889, supra note Error: Reference source not found; S.C. Res. 1894, supra note Error: Reference source not found; S.C. Res. 1960, supra note Error: Reference source not found.

282 . CRPD, supra note Error: Reference source not found, arts. 6, 11.

283 . G.A. Res. 52/231, U.N. Doc. A/52/231 (June 17, 1998).

284 . G.A. Res. S-23/3, supra note Error: Reference source not found.

285 . See generally Women and Peace and Security, supra note Error: Reference source not found, ¶¶ 12–43 (providing indicators for measuring progress of women’s and girls’ rights).

286 . See id. ¶ 14.

287 . Id. ¶ 15.

288 . Id. ¶ 16.

289 . Id. ¶ 22.

290 . Id. ¶ 23.

291 . Women and Peace and Security, supra note Error: Reference source not found, ¶ 24.

292 . Id. ¶ 26.

293 . See CRPD, supra note Error: Reference source not found, arts. 11, 31; Joint Statement of Commitment to the Convention, supra note Error: Reference source not found, ¶ 4.

294 . See, e.g., Press Release, U.N. Women, U.N. Creates New Structure for Empowerment of Women, (July 2, 2010), available at http://www.unwomen.org/wp-content/uploads/2010/07/ UNWomen_PressRelease_201007021.pdf; Civil Society Group to Help Advise U.N. on Role of Women in Peace and Security, U.N. News Ctr. (Mar. 5, 2010), http://www.un.org/apps/news/ story.asp?NewsID=33992&Cr=gender+equality&Cr1 (recognizing the establishment of a group of independent experts, who will advise the United Nations on effective ways to implement Resolution 1325 regarding the protection and integration of women in conflict situations). For more information on U.N. Women, visit http://www.unwomen.org/.

295 . See U.N. Security Council, Statement by the President of the Security Council, U.N. Doc. S/PRST/2010/8 (Apr. 27, 2010) (announcing that the Secretary-General’s report regarding the implementation of S.C. Res. 1325 will be given to the U.N. body in October 2010); see also Memorandum from Civil Society Advisory Group to the United Nations on Women, Peace, and Security 3–4 (June 21, 2010) (on file with Global Network of Women Peacebuilders), available at http://www.gnwp.org/wp-content/uploads/2010/04/PDF_CSAG-Updated-Recommendations-on-10th-Anniversary-of-SCR1325-June-21-2010.pdf.

*Note: On October 21, 2010, the author of these suggestions for inclusion organized such a side event that was held on October 20, 2010 at the United Nations in New York, see http://www.forgottenpeacebuilders.org for details on the panel discussion and other resources.

296 . In Historic Move, U.N. Creates Single Entity to Promote Women’s Empowerment, U.N. News Ctr. (July 2, 2010), http://www.un.org/apps/news/story.asp?NewsID=35224&Cr=gender &Cr1.

297 . See CRPD, supra note Error: Reference source not found, art. 38(a).

298 . See Violence Against Women: South African Legal Expert Takes Over as New U.N. Special Rapporteur, U.N. Human Rights, http://www.ohchr.org/EN/NewsEvents/Pages/Display News.aspx?NewsID=52&LangID=E (last visited Oct. 15, 2011) (announcing the appointment of Rashida Manjoo as the new U.N. Special Rapporteur on violence against women, its causes, and consequences); see also Special Rapporteur on Violence Against Women, Its Causes and Consequences, Office of the U.N. High Comm’r for Human Rights, http://www2.ohchr.org/english/issues/women/rapporteur/ (last visited Oct. 15, 2011).

299 . See U.N. Special Rapporteur on Disability, http://www.srdisability.org (last visited Oct. 15, 2011); The Special Rapporteur on Disability of the Commission for Social Development, U.N. Enable, http://www.un.org/esa/socdev/enable/ rapporteur.htm (last visited Oct. 15, 2011).

300 . See, e.g., Courthouse Access Advisory Committee Courtroom Mock-Up, U.S. Access Board, http://www.access-board.gov/caac/mock-up.htm (last visited Oct. 15, 2011) (illustrating a model accessible courtroom); Courthouse Access Advisory Comm., Justice for All: Designing Accessible Courthouses 9–10 (2006), available at http://www.access-board.gov/caac/report.pdf; Rome Statute of the International Criminal Court, supra note Error: Reference source not found, art. 68; see also Augmentative Commc’n Cmty. P’ships-Canada, Communication Access to Justice Services: Building Capacity Within the Justice Sector to Provide Services to People Who Have Communication Disabilities (2010), available at http://www.accpc.ca /ej-calc-01.htm (outlining strategies to make courts accessible to people using alternative communications (AAC)). See generally Tennessee v. Lane, 541 U.S. 509 (2004) (holding that one particular individual had a right to physically access one particular court, but leaving open the question of whether any other persons with disabilities could gain relief when denied access to other justice elements, like witnesses or jurors).

301 . See, e.g., CRPD, supra note Error: Reference source not found, pmbl., (e), arts. 1, 3 (requiring the full integration of persons with disabilities in all segments of society, ensuring “the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities” promoting respect for their inherent dignity, and including those persons with disabilities who have “long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”).

302 . See id. arts. 3(c), (f), 9.

303 . See id. arts. 29, 32 (requiring the active promotion of “an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs,” including “[p]articipation in non-governmental organizations and associations concerned with the public and political life of the country and in the activities and administration” and requiring international and national cooperation of State Parties and civil society); see also Rangita de Silva de Alwis, The Intersections of the CEDAW and CRPD: Putting Women’s Rights and Disability Rights into Action in Four Asian Countries (2010), available at http://www.wcwonline.org/component/page,shop.product_details/category_id,389/ flypage,shop.flypage/product_id,1181/option,com_virtuemart/Itemid,175/ (discussing various projects to integrate women with disabilities into legislative and policy advocacy in Bangladesh, Nepal, Cambodia, and India).

304 . See Int’l Fed’n of Red Cross & Red Crescent Societies, supra note Error: Reference source not found, at 95; see also Human Rights Watch, supra note Error: Reference source not found, at 6 (describing the minimal data on women with disabilities in Uganda).

305 . See CRPD, supra note Error: Reference source not found, art. 31.

306 . See generally Washington Group on Disability Statistics, U.N. Statistics Div. (Mar. 22, 2010), http://unstats.un.org/unsd/methods/citygroup/washington.htm (promoting and coordinating international cooperation by developing sets of general disability measures suitable for use in censuses, sample based national surveys, or other statistical formats).

307 . See CRPD, supra note Error: Reference source not found; CEDAW, supra note Error: Reference source not found; G.A. Res. S-23/3, supra note Error: Reference source not found.

308 . Arnade & Haefner, supra note Error: Reference source not found, at 7.

309 . Factsheet on Persons with Disabilities, supra note Error: Reference source not found.

310 . See id.

311 . See id.

312 . See CEDAW, supra note Error: Reference source not found, art. 5(a). See S.C. Res. 1325, supra note Error: Reference source not found.

313 . See supra Parts I–II.

314 . CRPD, supra note Error: Reference source not found, pmbl., (e).

315 . Id. pmbl., (m).

316 . See id. art. 1.

317 . Id. art. 2.

318 . G.A. Res. S-23/3, supra note Error: Reference source not found, ¶ 15.

319 . See supra Part I.

127

Legal Regulations Relating to the Passive and Active Legal Capacity of Persons with Intellectual and Psychosocial Disabilities in Light of the Convention on the Rights of Persons with Disabilities and the Impending Reform of the Hungarian Civil Code

ISTVÁN HOFFMAN[*] & GYÖRGY KÖNCZEI[**]

I. INTRODUCTION

In order to examine the application of the principle of equality before the law, we must first define the group of people who we regard as persons with disabilities for the purposes of this study. The term “mental” was once used to refer to people with intellectual or psychiatric disabilities.[1] The approach used in this study is the one introduced and adopted in the course of the travaux préparatoires of Convention on the Rights of Persons with Disabilities (CRPD or Convention),[2] which speaks of persons with intellectual or psychological disabilities.[3]

A. Defining Persons with Intellectual Disabilities

1. The Traditional Civil Law Approach Under the Civil Law System

Traditional civil law, based on Roman law, approaches the issue primarily from the perspective of a person’s active legal capacity.[4] As we shall demonstrate below, under traditional civil law, the active legal capacity of a person who lacks the mental or cognitive ability to conduct his own affairs is restricted or denied.

As medical knowledge was limited, this approach was initially based on an assessment of a person’s actual participation in society.[5] That is to say, if a person’s conduct failed to comply with certain religious and moral customs and norms, he or she was regarded as lacking active legal capacity (a capacity to act). Indeed, in many instances, the person’s passive legal capacity (a capacity for rights) was also denied.[6]

Nineteenth century developments in medicine (particularly in the fields of neurology and psychiatry), however, established the pre-eminence of the medical approach (or social approach) to disability by the beginning of the twentieth century.[7] Under this approach, any person with limited cognitive abilities or a diagnosable neurological or psychiatric condition was defined as a person with disabilities. Intellectual disability and the issue of active legal capacity were viewed as both medical and legal matters.[8]

However, because it could not address certain life circumstances, the medical approach was never fully implemented. Moreover, the effects of particular medical conditions on the cognitive abilities of various individuals were not uniform.[9] The civil law system sought to address these circumstances by means of a general provision, effectively giving judges a free hand. In our opinion the general provision tended to use the following formula: “the lack of cognitive abilities for other reasons.”

2. The Human Rights Approach to Disability

In the second half of the twentieth century, the international protection of human rights and fundamental freedoms was enhanced, partly in response to the abuses that had taken place under dictatorial regimes in the 1930s and 1940s.[10] Similarly, national constitutions and basic laws gave increased attention to developing proper safeguards for human rights.[11]

The development of human rights became manifest above all in legal provisions ensuring equality before the law as well as equal opportunities.[12] Other provisions sought to promote the dignity of every human person.[13]

As a result of such legal developments, the safeguarding of the rights of persons with disabilities became a priority as a human right. This, in turn, required a complete reappraisal of the notion of disability.[14]

International human rights norms (such as the CRPD) as well as recent national legal norms (such as Germany’s Law on the Equality of People with Disabilities (LEPD))[15] have adopted a complex definition of disability,[16] incorporating medical and social factors.[17] In this holistic definition, intellectual, cognitive, or sensory impairment is just one consideration; each alone is not a sufficient condition.[18] The definition requires the presence of a long-term impairment hindering the individual’s full and effective participation in society.[19]

This complex definition, incorporating social elements, has been applied in various national and international documents in the early twenty-first century.[20] Since this notion of disability is capable of expressing the factual nature of disability, that a biological impairment fundamentally limits a person’s social involvement, for the purposes of this paper, disability will be understood in accordance with the above complex, or holistic, definition.[21]

B. The Legal Status of Disability in the Various Fields of Law

Concerning the legal status of disability, we shall principally examine provisions in the various fields of law relating to passive legal capacity (a capacity for rights) and active legal capacity (a capacity to act).

The sedes materiae of these provisions are to be found in civil law,[22] but in the practice and safeguarding of fundamental rights, legal provisions relating to constitutional rights are also salient. For instance, if a person has restricted electoral rights (a restriction or deprivation of active and/or passive voting rights) owing to her disabilities, this will also reduce his or her effective participation in society, since he or she cannot take part in the making of decisions that affect the community or can do so only in a limited manner.

Through the aforementioned basic institutions, we can review the relationship of the legal system to the life situations of people with disabilities. In order to give a clear answer to this question, however, we must first define the meaning of the terms passive legal capacity (a capacity for rights) and active legal capacity (a capacity to act).

C. Passive Legal Capacity (a Capacity for Rights) and Active Legal Capacity (a Capacity to Act)

1. Passive and Active Legal Capacity in Civil Law Systems

In countries with civil law systems, a sharp distinction is made between passive and active legal capacity.[23] This distinction goes beyond the difference found in classical Roman law between the capacity to sue and the capacity to be sued.[24] Based on the dogmatic results of Roman jurisprudence, in civil law systems passive legal capacity means the capacity of a person to have rights and duties, while active legal capacity means that a person can cause rights and duties to arise through his actions with regard to both himself and others.[25]

In contemporary substantive civil law, a sharp distinction is made between passive and active legal capacity. The two terms are interdependent, even though since the abolition of the institution of slavery in advanced countries in the mid-nineteenth century, almost everyone has had passive legal capacity. By the mid-twentieth century, this principle had become a universal one, at least at the legal level. Indeed, a ban on slavery is contained in the International Covenant on Civil and Political Rights,[26] adopted under the auspices of the United Nations. Concerning active legal capacity, contemporary private substantive law has preserved the Roman law foundations; thus, a person has active legal capacity where she can, through her own actions, obtain rights for herself or for someone else, or assume obligations.[27]

The situation differs slightly in the field of procedural law, where no such sharp distinction is made between passive and active legal capacity.[28] Thus, similar to codes of procedure in other countries, the Hungarian Code of Civil Procedure (Act III of 1952 on the Code of Civil Procedure) recognizes a person’s capacity to sue and be sued, which effectively embodies both passive legal capacity and active legal capacity.[29] The capacity to sue and be sued can be broken down into two elements: first, a capacity for rights in a court of law, which is due to almost all natural persons as well as legal persons and, on occasion, even to entities without legal personality or legal subjectivity (e.g., the county social and guardianship offices in the context of administrative lawsuits);[30] second, the capacity to act in a court of law, which is broader in scope than the civil law capacity to act (e.g., in guardianship suits, a person with limited capacity to act has full capacity to sue).[31]

In the field of constitutional law, we may highlight electoral law. Based on active and passive electoral rights, individuals can take part in the making of decisions that affect the community. Historically, a sharp distinction has been made between electoral rights and active legal capacity in civil law.[32] By the twentieth century, however, with the spread of universal suffrage in Europe, the two became interconnected—electoral rights were linked with a person’s full active legal capacity in civil law.[33] Modern constitutional law sometimes exceeds this, particularly with regard to the rights of children and young people. Indeed, in some countries, such as Austria, active voting rights have been granted to young people who have not reached the age of full legal capacity in civil law.[34]

In penal law, a sharp distinction is made between passive and active legal capacity as well. Only a person with a capacity for guilt can be held responsible for criminal acts.[35] An age limit is also applied in the case of capacity for guilt, but this age limit is lower than the age limit for active legal capacity in civil law.[36] Furthermore, persons with intellectual disabilities are usually granted exemptions.[37] Here, we should also emphasize that in penal law, the medical model (a person’s pathological mental state) is still applied when defining or assessing intellectual disability.[38]

2. Passive and Active Legal Capacity in Common Law Systems

In the private law of common law systems, which resembles in many respects the logic of classical Roman law,[39] no sharp distinction is made between passive legal capacity (a capacity for rights) and active legal capacity (a capacity to act).[40] Indeed, in common law systems, it is only under the influence of civil law systems—and, above all, statute law—that the abstract notion of “subjective right” (or “civil right”) has arisen.[41] In common law systems, legal precedents establish principles and rules, meaning that rights are inevitably linked to their enforceability before a court of law.[42] It is the ability to take a stand before a court of law, an ability that incorporates both passive and active legal capacity, that has traditionally been referred to in English legal speech as legal capacity.[43] This term most closely resembles the capacity to sue and be sued of procedural law in civil law systems.

In the fields of penal law and constitutional law, the above conclusions are still applicable despite the differences between the common law system and the civil law system.

II. A SURVEY OF THE PRINCIPAL HISTORICAL MODELS RELATING TO THE PASSIVE AND ACTIVE LEGAL CAPACITY OF PERSONS WITH INTELLECTUAL DISABILITIES

A. Legal Provisions Relating to the Passive and Active Legal Capacity of Persons with Intellectual Disabilities—From Roman Law to the Legal Situation Prevailing in the Mid-Twentieth Century

1. The Pre-Modern Era and Traditional Legal Systems

In the pre-modern classical and medieval eras, the legal status of people with disabilities was poor. Disability always implied a restriction of a person’s active legal capacity.[44]

According to the law of ancient Rome, a person was deprived of active legal capacity not only by a mental disorder or illness, but also other physical disabilities, such as blindness and especially muteness.[45] In late, post-classical Roman law, however, the beginnings of an attempt to understand disability may be observed. For instance, if a person with a mental disorder or illness was capable of making rational decisions in his “lighter moments” (lucidum intervallum), then that person was to be regarded as having full active legal capacity under the decrees of Emperor Diocletian and Emperor Justinian.[46] Thus, under these decrees, a person was only defined as disabled if he or she was incapable of effective participation in society.[47]

Even so, disability could have had grave consequences in pre-modern law and continues to have grave consequences in the traditional legal systems of our own era.[48] For instance, during the medieval period, people with intellectual or physical disabilities were often viewed as witches or as being possessed by the devil.[49] In such cases, they were deprived of passive legal capacity and sometimes even murdered.[50]

In certain traditional legal systems, people with disabilities are deprived of their active legal capacity, and occasionally, their passive legal capacity.[51] Since traditional legal systems continue to exist in developing countries, Article 12(2) of the CRPD underlines the need to recognize the legal capacity of persons with disabilities everywhere.[52]

By way of summary, we can state that the legal systems of the pre-modern era almost universally restricted the active legal capacity of people with disabilities; further, in some instances, these systems even deprived them of passive legal capacity.

2. Modern Legal Systems Until the Twentieth Century

With the development of modern legal systems, generally recognition is now given to the fact that legal capacity is due to every person, irrespective of disability. In modern private law, reflecting the dogmatism of Roman jurisprudence, a clear distinction is made between passive and active legal capacity.[53]

Under the civil law codes, restricting a person’s active legal capacity was possible on three grounds: the person’s age, an inability to express her will (e.g., intoxication), and mental illness or (congenital) mental disability.[54]

Section 489 of the French Code Civil of 1804, the first great code of civil law, recognized incompetence based on person’s age, an inability to express her will (“imbécillité”), and incompetence arising from mental illness.[55] Under Section 489 of the Code Civil, adults lacking capacity were placed under guardianship.[56] The Code Civil also recognized the notion of diminished legal capacity; in such cases, a legal statement made by the person under guardianship was subject to the guardian’s approval.[57] Based on examples from the Roman law, the Code Civil declared unilateral legal statements by persons with diminished active legal capacity as invalid.[58]

The above model was repeated in the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch), proclaimed seven years later in 1811 and entered into force in 1812.[59] Under Section 273 of the Austrian Civil Code, the mentally ill had active legal capacity but were under guardianship.[60] The Austrian Civil Code regulated diminished active legal capacity in a manner similar to that of the Code Civil. Thus, the legal transactions of a person with diminished active legal capacity were subject to the approval of a guardian.[61] Furthermore, the Austrian Civil Code also applied the invalidity of unilateral acts in certain areas.[62]

Perhaps the clearest instance of legal incompetence derived from Roman jurisprudence and reflecting the medical advances of the eighteenth and nineteenth centuries is found in the German Civil Code (Bürgerliches Gesetzbuch), which was adopted in 1896 and entered into force in 1900.[63] Under Section 104 of the original German Civil Code, a person of seven years of age or less, or an individual who was unable to express his will or who had been rendered a person under guardianship due to mental illness, had no active legal capacity.[64]

Sections 114 and 115 of the original German Civil Code prescribed restrictions on the active legal capacity of minors aged between seven and eighteen and of individuals with mental disability or illness or addiction (the latter included alcoholism and nicotine addiction according to the text of the original Code).[65] Similarly, here, active legal capacity was subject to guardianship provisions.[66] In other words, the approval of a guardian was required; legal transactions based on statements made by such persons were subject to the invalidity of the unilateral statements rule, negotium claudicans, whereby the incompetence of a person could only be cited as grounds for invalidating a legal transaction in the interest of the person.[67] Moreover, under labor law[68] and inheritance law, some legal statements were still considered invalid even when they had been approved by the guardian.[69]

The great codes of civil law represented an advance in the sense that they recognized and prescribed the general and full passive legal capacity of people with disabilities. Even so, reflecting Roman law and the state of medical knowledge, jurisprudence in the period continued to define persons with intellectual disabilities and the mentally ill as lacking active legal capacity.[70] They were made subject to guardians who represented them fully and in all areas.[71]

Concerning addictions and other disabilities regarded as less serious by medicine, the above great codes of civil law made reference to restricted active legal capacity, thus offering a degree of independence to persons under guardianship.[72] However, in all major legal transactions, the approval of the legal representatives (guardians) was a prerequisite.[73] In the field of labor law and inheritance law, the invalidity of unilateral statements usually applied.[74]

B. Passive and Active Legal Capacity in Hungarian Law

1. Passive and Active Legal Capacity in Feudal Hungarian Law

Until the introduction of the Hungarian Civil Code, Hungarian law was based on common law. That is to say, there were no codified rules.[75] Instead, various documents of common law played a decisive role.[76] Werbőczy’s Tripartitum was the first major survey of Hungarian common law.[77]

The Tripartitum suggests that in principle, disability did not influence the legal capacity of people under feudal status law.[78] Although Werbőczy’s Tripartitum sought to apply the dogma and terminology of Roman law to Hungarian law, it nevertheless differed dogmatically from works based on traditional Roman law.[79] Under Roman law, the principal distinction between custody and guardianship was that custody served as a replacement for parental authority, while guardianship sought to provide a representative for a person with diminished active legal capacity.[80] In contrast, in customary Hungarian civil law, custody and guardianship were distinguished according to whether there was a requirement to care for the person, in addition to the supervision of property. Where there was such a requirement, the relationship was one of custody; otherwise, it was one of guardianship.[81] Thus, under Hungarian feudal customary law, persons with intellectual disabilities were placed under custody while “wayward fools” were placed under guardianship.[82]

These provisions, however, did not represent a real difference as far as active legal capacity was concerned, since in both instances, the legal regulations of property relating to guardianship were applied. As far as property law was concerned, custody and guardianship status were similar to diminished active legal capacity, since the ward (the person under guardianship) was limited in the extent to which he could make legal statements.[83]

2. Civil Law in the Second Half of the Nineteenth Century

In the second half of the nineteenth century, the above rigid regulations restricting the freedom of a ward of custody or a person under guardianship were significantly relaxed, principally as a consequence of the adoption of Act XX of 1877. In addition, the terms custody and guardianship were redefined.[84] In the evolving civil law (which was based on customary law), a differentiation was made between the two legal forms—a differentiation which had come from Roman law into the civil law systems.[85] As a result, adults could now only be under guardianship.[86]

The German and Austrian models were the primary influences on the development of Hungarian civil law.[87] Thus, based on judicial practice, in addition to minors aged under twelve years, “lunatics” (to use the contemporary term) and “those with temporary mental disturbances” were placed under custody with no active legal capacity.[88] Persons aged between twelve and twenty-four years and “the weak-minded, deaf-dumb, and wayward fools” were placed under custody with restricted active legal capacity.[89] Based on the above, one can see that Hungarian law included some of the strictest restrictions in Europe—in Hungary, even a serious hearing or speech disability was considered grounds for restricted active legal capacity.[90] These highly restrictive rules were altered by a civil law bill, whose provisions were applied by the courts even though they were only adopted and not proclaimed by the Lower House of the National Assembly.[91] The new provisions included, almost word for word, the stipulations of the German Civil Code relating to active legal capacity and restricted active legal capacity.[92]

In the latter half of the nineteenth century and the early years of the twentieth century, Hungarian civil law clearly followed the pattern set by German law.[93] Thus, in Hungary too, the traditional medical approach to active legal capacity was applied. Moreover, the rules of legal protection were also similar.[94]

3. The Operative Hungarian Civil Code

Although prescribed as early as 1848, the codification of Hungarian civil law did not take place until 1959 with the adoption of the operative Hungarian Civil Code.[95] The Code’s approach to the regulation of passive and active legal capacity was a modern one.

In line with traditional civil law, the 1959 act made a distinction—with regard to adults—between custody without active legal capacity and custody with diminished active legal capacity.[96] This distinction was based on whether or not a cognitive incapacity was present, which was normally verified by a medical opinion.[97] As far as diminished active legal capacity was concerned, the legal protection measures employed in the nineteenth century codes were used.[98] Even so, reflecting an attempt to respond to the challenges of the era, the Hungarian Civil Code recognized the validity of the everyday legal transactions of persons with diminished active legal capacity.[99]

4. Provisions in Constitutional and Labor Law Relating to Active Legal Capacity

Having surveyed the rules of Hungarian civil law relating to active legal capacity, owing to their special significance, we now examine the development of provisions in constitutional law (electoral law) and labor law relating to the active legal capacity of persons with intellectual disabilities in the twentieth century.

When voting rights became universal, there was no change in the rule that a person under limited or full custody had neither active nor passive voting rights.[100]

As a consequence of its roots in civil law, labor law tended to apply the civil law notion of active legal capacity, which resulted in situations that were difficult to interpret.[101] This was true, above all, in the case of persons under custody with no active legal capacity, which is often the case even today.[102]

By way of summary, we can state that Hungarian legal regulations historically have tended to follow European examples, and that in the modern era, Hungarian law has adopted contemporary regulations which assist the country’s modernization.

III. A NEW APPROACH IN MODERN CONSTITUTIONAL AND CIVIL LAW TO THE PASSIVE AND ACTIVE LEGAL CAPACITY OF PERSONS WITH INTELLECTUAL DISABILITIES

A. The Constitutional Legal Basis of Provisions Relating to the Passive and Active Legal Capacity of Persons with Intellectual Disabilities

The constitutional legal approach to the rights of persons with intellectual disabilities appeared in the second half of the twentieth century in industrialized countries.[103] In part, there were historical reasons for this—the dictatorial governments of the first half of the twentieth century had grossly abused the rights of persons with disabilities. In this context, we cite the so-called “euthanasia” program in Germany, whereby the Nazis murdered tens of thousands of persons with moderate or severe intellectual disabilities.[104]

In addition to such historical reasons, the issue also became more salient as persons with disabilities were assisted by technological developments to become active members of society. In view of such developments, the need arose to catalogue the rights of persons with disabilities and establish rules governing their legal protection.[105]

Special legislation guaranteeing the rights of persons with disabilities was first adopted in the common law countries[106] where, due to the aforementioned notion of legal capacity, the legal system offered broader opportunities for actions on behalf of persons with intellectual disabilities.[107] In these countries, the legal system enabled legislation imposing an effective ban on discrimination. In the United States, the United Kingdom, Australia, and New Zealand, disability legislation was aimed primarily at preventing discrimination and ensuring equal opportunities.[108]

In addition to the fight against discrimination, greater emphasis was given to ensuring the human dignity of people with disabilities,[109] which entailed the introduction of provisions addressing the problems of people with disabilities in their complexity. Going beyond the anti-discrimination rules, the aim was to establish a kind of catalogue of rights for persons with disabilities and to ensure the application of these rights in all walks of life and in all areas of legislation. Among such legislations, the Hungarian Act on the Rights and Equal Opportunities of Persons with Disabilities (Act XXVI of 1998) had a pioneering significance, as it was one of the first pieces of legislation in the world to apply the holistic model of disability.[110] A similar model was applied by Germany when drafting its legislation on the equality of people with disabilities.[111]

The process of securing the rights of people with disabilities also significantly influenced the adoption of provisions concerning the active legal capacity of persons with intellectual disabilities.[112] It is now generally accepted that the application of basic rights and the operation of a democratic community are not possible if broad sections of the population are excluded from participation in society because they have been defined as lacking active legal capacity.

B. Changes in Modern Civil Law Affecting the Passive and Active Legal Capacity of Persons with Intellectual Disabilities

The second half of the twentieth century saw changes in the passive and active legal capacity of persons with intellectual disabilities.[113] The departure point was the fundamental rights approach to the rights of persons with disabilities.[114] Following the adoption of legislation in the 1980s and 1990s based primarily on the ban of discrimination and the right to human dignity,[115] there was a reconsideration of the provisions of civil law governing the withdrawal or restriction of a person’s active legal capacity.[116]

The process had several phases. First, civil law codifications in the mid-twentieth century—for example, the operative Hungarian Civil Code (Act IV of 1959)—enabled the everyday transactions, such as buying food, of persons without capacity to function as valid legal transactions.[117] This model was also applied in the recently enacted Section 105a of the German Civil Code.[118] According to the code, even though the transactions of persons without capacity are invalid under the primary rule contained in Section 105, the transactions of adult persons without capacity that are necessary for satisfying their everyday needs do have legal effect, as long as the value and the consideration are proportionate and the transaction does not jeopardize the interests of the person without capacity.[119] The second change, in the final third of the twentieth century, was the redefinition of the notion of incompetence.[120] This primarily entailed a restructuring of the previous threefold division—age, the inability to express one’s will, and mental illness or intellectual disability.[121] During this phase, as far as the definition of the notion of incompetence was concerned, the social approach became definitive.[122] These provisions defined people who were unable to participate in society for various reasons, including intellectual disability or mental illness, as incapable of expressing free will or making a legal statement.[123]

The third phase in the process was a redefinition of the notion of diminished active legal capacity.[124] Under traditional civil law, diminished active legal capacity meant that among persons of limited cognitive reliability (due to age, intellectual disability, or mental illness), the consent of those exercising parental supervision or authority, such as custodians (or guardians, in the case of adults), was required for certain major legal transactions.[125] Until the civil law reforms in the late twentieth century, this restriction applied to all aspects of life.[126] It was in the common law countries that the opportunity first arose for only limited restrictions on legal autonomy of individuals.[127] Where this innovation was applied, the consent of a guardian was necessary only with respect to those activities where the courts had ordered a restriction.[128] In all other transactions, the individual in question had full active legal capacity.[129]

The early twenty-first century saw a restructuring of the legal forms of restricted active legal capacity.[130] Several models have arisen in this area as well.

One of the models is based on the notion of legal capacity to be found in the common law countries and in English family law.[131] Since legal capacity in the common law system embodies both passive and active legal capacity, the model prescribed the removal of the traditional notion of legal incompetence.[132] Under this model, which has appeared primarily in the law of former British colonies such as Canada, New Zealand, and Australia, all persons with disabilities have a certain capacity to act.[133] Hence, in various areas and in certain legal matters, they have full capacity or their opinions must at least be taken into consideration. The application of this model assisted the implementation of the fundamental rights of persons with disabilities, mentioned in Subsection A of Part 1 of III. Full incompetence was effectively deemed a restriction of their constitutional rights.[134] Thus, the countries adhering to this model adopted the legal position that it is incompatible with the framework of a democratic State if the active legal capacity of certain persons is restricted to such a degree that fundamental rights cannot be applied.[135] It was also considered necessary in the common law model that there should be legal means of offering assistance to such persons as they make their decisions, and that such means of assistance should respect their integrity and autonomy.[136]

In addition to the common law countries, the model has also appeared in Europe. For example, it was applied in the Estonian draft bill of 2002, which proposed an amendment to the General Provisions of the Estonian Civil Code adopted in 1994.[137] The bill sought the abolition of full guardianship (with no active legal capacity), but it was rejected by the Estonian legislature.[138]

The complete withdrawal of a person’s active legal capacity—or a restricted active legal capacity where all legal transactions are subject to the restriction with the exception of everyday transactions—was regarded as incompatible with fundamental constitutional rights in the common law countries.[139] This also became the position under the German model, which expanded the freedom of persons with disabilities to make decisions as well.[140] In the revised German Civil Code, guardianship without active legal capacity theoretically has not been abolished, even though Section 105a allows for persons without active legal capacity under guardianship to proceed independently in everyday transactions.[141] But the rules on guardianship for persons without active legal capacity were abrogated in the German Code of Civil Procedure (Zivilprozessordnung (ZPO)).[142]

Nevertheless, with the abrogation of Sections 113–115, guardianship with diminished active legal capacity was replaced by the institution of assisted decision-making not restricting active legal capacity. Under the amended Section 1897 of the German Civil Code, assisted decision-making can be ordered by a court with responsibility for matters of guardianship, but only in specific spheres of authority, not generally.[143] Courts may also appoint different “supporters” (“carers”) for different spheres of authority; another possibility is that the tasks of a supporter are carried out by an association or an official authority.[144] The nomination is subject to the agreement of the supported person, and the German Civil Code regards the relationship between a person with disabilities and his or her supporter as one of trust. The amended sections of the code lay down special procedural rules for major issues, such as choosing where to live, signing a rent agreement, or making certain legal statements pertaining to healthcare.[145]

These models have exerted a major influence on the recent codification of rights of the person, and a consideration of their basic features has also led to the development of mixed models, combining elements of the two concepts.[146]

In modern civil rights, the classical formulas of the nineteenth century that were based on Roman law (or on traditional common law in common law countries) have been replaced by a new approach, owing in large part to changes in the area of constitutional rights.[147] Since the mid-twentieth century, the rigid provisions governing incompetence and diminished active legal capacity have been relaxed by ensuring the right to proceed in everyday transactions and by amending the notions of incompetence and restricted active legal capacity in the sense that active legal capacity is now determined for the various fields of authority. In the civil law legislation of the early twenty-first century, we can distinguish two main models with respect to the above notions: the common law model, which has effectively abolished guardianship without active legal capacity and now only recognizes restricted active legal capacity,[148] and the German model, which has introduced assisted decision-making as a replacement for the institution of guardianship with diminished active legal capacity.[149]

IV. THE UNITED NATIONS’ CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND THE OPTIONAL PROTOCOL

In Subsection A of Part III, we noted that at the beginning of the twenty-first century, there was increasing acceptance throughout the international community of the need for national legislation to guarantee the rights of persons with disabilities and of the duty of governments to ensure the application of these rights.

With regard for national legislative efforts and developments in European Community law in this field[150] and, following an initiative by the international disability organizations, work began on drafting a global disability convention under the auspices of the United Nations.[151] As a result of several years of preparatory work, the United Nations General Assembly adopted the CRPD and its Optional Protocol on December 13, 2006.[152] In 2007, Hungary became the second country to ratify the Convention (Act XCII of 2007).[153]

The Convention contains a partial catalogue of the rights of persons with disabilities. Article 12 of the Convention contains provisions relating to legal capacity and the exercising of legal capacity.[154]

For a proper interpretation of Article 12, it is necessary once again to refer to the notion of legal capacity as it is understood in common law systems. In common law systems with their procedural legal approach, an entitlement (right) must entail a right to sue.[155] Similarly to the capacity to sue and be sued of the Hungarian Civil Procedure Code,[156] passive legal capacity and active legal capacity are closely linked in common law countries for this reason.

Legal capacity is used in Article 12 of the Convention, which relates to equality before the law.[157] The strong influence of the legal system introduced to many parts of the world under the former British Empire and the incompatibility of this system with the civil law system (including differences of terminology) meant that translators of the Convention were faced with a difficult task. With respect to Article 12, it should be emphasized that the aim was to broaden the decision-making powers of persons with disabilities (in particular, persons with intellectual disabilities) in order to ensure their human dignity, independence, and ability to express opinions.[158]

Having regard for the close connection between the common law notion of legal capacity and the civil law notion of active legal capacity (capacity to act), one should note that Article 12(1) of the Convention provides that persons with disabilities have the right to recognition everywhere as persons before the law.[159] This provision was important because the traditional legal systems in some United Nations member States fail to recognize people with disabilities as persons before the law.[160]

The provisions of Article 12(2)–(5) aim to maximize the decision-making autonomy of persons with disabilities, permitting only necessary and proportional restrictions.[161] In civil law systems, decision-making autonomy indicates the presence of an active legal capacity. Thus, these provisions of the article clearly relate to active legal capacity. Reflecting modern legal development, the Convention seeks to ensure that active legal capacity is restricted only under exceptional circumstances in order to minimize the possibility of abuse. Furthermore, in place of restrictions, it proposes assisted decision-making wherever possible.[162]

In light of the above, we can state that the Convention aims to extend the results of recent developments in civil law to areas beyond the countries where the model has already been successfully established, thereby promoting the decision-making autonomy of persons with intellectual disabilities. Wherever possible, the Convention seeks to establish means for replacing the institution of guardianship, which restricts or obstructs independent decision-making.

V. HUNGARIAN LAW—WITH SPECIAL REGARD FOR THE PRONOUNCED BUT NOT OPERATIVE PROVISIONS OF THE NEW CIVIL CODE

A. The Laws in Force

Surveying the provisions of the Convention, which have now been incorporated into Hungarian law, we may ask whether the operative domestic Hungarian law satisfies the obligations contained in Article 12. The summary answer is that it does not, but it is attempting to do so.

The provisions governing active legal capacity have recently undergone substantial changes in order to ensure the human rights of persons with intellectual disabilities as much as possible.

An important change was the 2001 amendment (Act XV of 2001) to the provisions of the Hungarian Civil Code relating to active legal capacity. According to the ministerial argument, the amendment was made in reflection of Council of Europe Recommendation R (99) 4 of February 23, 1999, on Principles Concerning the Legal Protection of Incapable Adults.[163] The amendment to the Hungarian Civil Code altered the rules governing restricted active legal capacity.[164] Under the amendment, a court can only impose a restriction in certain fields of authority.[165] The active legal capacity of an adult remains complete in areas that are not subject to the court-imposed restriction.[166]

In addition to amending the substantive legal provisions of the Hungarian Civil Code, the provisions relating to the procedure for guardianship were also altered.[167] First, guardianships were made subject to compulsory review, in the course of which the subject of guardianship is to be heard unless there are exceptional circumstances.[168] The aim of these provisions is to ensure that restrictions of a person’s active legal capacity are indeed necessary and proportional.

Act XV of 2001 resulted in a paradigm shift in the legal provisions relating to active legal capacity, as both the Hungarian Civil Code and the Code of Civil Procedure dispensed with the model of the nineteenth-century codifications.[169]

It should be noted that the change in approach took place only at the level of civil law.[170] Courts rarely make use of the institution of partially diminished active legal capacity; moreover, public legal provisions were not adjusted to this system.[171] This is particularly evident in the area of electoral law. A person without active legal capacity or with diminished active legal capacity has neither active nor passive voting rights, even when the guardianship restricting his or her active legal capacity does not extend to withdrawal of public legal entitlements.[172] Under the Hungarian Civil Code, however, he or she would theoretically be completely capable.[173]

Although they represent a substantial advancement in comparison to previous regulations, the above provisions of the Hungarian Civil Code are not in accord with the provisions of Article 12 of the CRDP. First, the Hungarian Civil Code permits active legal capacity to be restricted or even denied in many instances, thereby obstructing the decision-making autonomy of persons with intellectual disabilities.[174] Second, it does not provide a direct access to legal assistant, independent of the guardian.[175]

B. The Provisions of the New, Pronounced but Not Operative, Hungarian Civil Code

Hungarian compliance with the Convention was to be achieved through the adoption of a new Hungarian Civil Code, which was pronounced as Act CXX of 2009.[176] This Act is no longer operative—the Hungarian Constitution Court annulled Act XV of 2010 on operation of Act CXX of 2010 on the Hungarian Civil Code because of the violation of legal certainty.[177] The 51st Constitutional Court Resolution of 2010 (28th April) stated that the two-month preparation time for the operation of the first two books of the new Hungarian Civil Code was too short, and annulled the Operation Act of the new Hungarian Civil Code.[178]

In Subsection B of Part III, we briefly examined the main models seeking to extend the decision-making autonomy of persons with intellectual disabilities. Among these, the abolition of guardianship with no active legal capacity was the most common method employed in the common law countries,[179] while in the German-speaking countries, the institution of guardianship with no active legal capacity has been partly retained, but restricted guardianship has been replaced by assisted decision-making, which enhances autonomy by providing appropriate and effective assistance rather than restricting a person’s decision-making powers.[180]

In regard to the above models, the pronounced but not operative New Hungarian Civil Code may be regarded as a mixed system: first, it abolishes guardianship with no active legal capacity, recognizing only restricted guardianship.[181] Second, as a replacement for restricted guardianship, it provides other legal forms that do not affect a person’s active legal capacity; in this area, it adheres almost word for word to the provisions of the amended German Civil Code, which introduced assisted decision-making, prior legal statement, and guardianship without diminished active legal capacity.[182] The new Hungarian Civil Code lists those matters in respect to which guardianship can be imposed.[183] It also seems to try to address longstanding problems relating to active legal capacity in the field of labor law and employment of workers with intellectual disabilities.

These progressive provisions of the pronounced but not operative Hungarian Civil Code should ensure that Hungarian law more or less conforms to the provisions of the Convention.[184] Owing to the substantial restrictions contained in the provisions, however, certain regulatory elements may lead to results that were not anticipated in the Convention. For instance, where an adult has been placed under a guardianship without a restriction of his or her active legal capacity, theoretically the person would be able to marry even without the consent of the appointed guardian, which is usually the parent.

In connection with the above provisions of the new Hungarian Civil Code, it should be reiterated that when the Code is adopted, the public legal provisions governing active legal capacity would also have to be amended. The enhancement of active legal capacity in civil law will create an ambiguous situation, unless provisions are adopted to enable the person’s effective participation in society and involvement in the community.

By way of summary, despite a significant shift in the legislative approach in 2001, current and operative Hungarian law does not comply fully with the provisions of the Convention. The problem could be resolved through the adoption of the new Hungarian Civil Code which has been drafted recently, but even if this new code is adopted, amendments to public legal provisions would still be required.

VI. CONCLUSION

The aim of this study has been to present the main regulatory framework relating to passive and active legal capacity—a framework that forms the basis for the participation in society of persons with intellectual disabilities.

We tried, firstly, to determine the meaning of passive and active legal capacity. It was underlined that the most important legal effect of intellectual disability is the restriction or complete removal of active legal capacity. We examined the role of active legal capacity (a capacity to act) in the various legal systems and the reasons for restrictions. We found that, initially, restrictions were placed on a person’s active legal capacity because of a limited capacity to participate in society and comply with the norms of the era.[185] Then, as medicine developed, the medical-physiological approach to disability became dominant but was replaced in the second half of the twentieth century by the medical or social approach to disability.[186] It was established that a sharp distinction between passive and active legal capacity is made only in civil law systems based on Roman law.[187] In common law systems, the general term competency is used. [188] That is to say, no real distinction is made between passive and active legal capacity.

We then surveyed the legislative developments and historical changes in universal and Hungarian history, from the classical period to the mid-twentieth century. Examining the various models employed in the major countries, we concluded that in traditional legal systems, people with disabilities were sometimes denied passive legal capacity and often their active legal capacity was not recognized. An exception to this was the “lucidum intervallum” recognized in post-classical Roman law, during which a person with disabilities was considered to have full legal capacity.[189] In the nineteenth century, alongside the medical-physiological approach, there was a general recognition of the passive legal capacity of persons with disabilities.[190] Depending on the gravity of impairment, however, their active legal capacity was restricted partially or fully.[191]

The development of civil law and, in a related sense, constitutional law resulted in substantial changes in the second half of the twentieth century. In light of the inhumanity and grave abuse of the dictatorships in the 1930s and 1940s,[192] in the second half of the twentieth century, various international legal agreements were established with provisions relating to the rights of persons with disabilities.[193] The initial approach was to ensure the application of the ban on discrimination, but in the 1990s, there was an increasing acceptance that regulations should address disability in a holistic manner.[194] Since then, international law has been developing in this direction as reflected in the United Nations Convention of 2007.[195]

Starting in the 1970s, and concurrently with international legal developments, common law countries began to adopt legislation on the rights of persons with disabilities, with an aim to ensure the implementation of the ban on discrimination.[196] Following the example of the common law countries, in the 1990s and the early years of the twenty-first century, similar laws were passed in most advanced democracies.[197] Going beyond the original concept employed in the common law countries, the more recent legislation has tended to be of a complex nature—ensuring not only the application of the ban on discrimination, but also the introduction of specific provisions relating to disability.[198]

The fundamental rights approach of national legislation has influenced civil law, too. Starting from the 1950s onward, persons with diminished active legal capacity became increasingly able to undertake the transactions necessary to address the needs of everyday life.[199] This change did not initially affect the basic elements of the regulatory framework relating to active legal capacity.[200] In the final three decades of the twentieth century, however, the conditions were established for a paradigm shift.[201] The changes initially affected the notion of diminished active legal capacity; in place of a general restriction, there were opportunities for the imposition of a partial restriction—a restriction on certain areas of a person’s active legal capacity.[202]

In addition to the above changes, the 1990s saw the development of several models based on the paradigm shift. In common law countries, based on the principle of equality before the law, the complete removal of legal capacity was ruled out; in most cases, diminished legal capacity became the norm.[203] In civil law countries (particularly in Germany after a general revision of the German Civil Code) a full restriction on active legal capacity was still possible so long as there were opportunities for conducting the transactions necessary for everyday life); nevertheless, the use of partial restrictions on active legal capacity was expanded with the introduction of assisted decision-making.[204] When implementing civil law reforms, other countries have applied one of these two models, or a combination of both.[205]

In the second half of the twentieth century, Hungary attempted to develop modern legislation reflecting the interests of people with disabilities.[206] Accordingly, under the Hungarian Civil Code, persons with disabilities with diminished active legal capacity received the ability to proceed in everyday transactions.[207] Hungary was the first country in the world to adopt disability legislation regulating, in a horizontal sense, the rights of persons with disabilities.[208] Hungary was also the second country to ratify the CRPD.[209] In the field of civil law, the partial restriction (restriction according to area of authority) of active legal capacity has been possible since 2001.[210] Even so, Hungarian law has yet to comply fully with the provisions of the United Nations Convention—provisions, which are based on the common law system approach to legal capacity. In Hungary, the right of a person to active legal capacity is still subject to limitations. In this respect, the adoption of a new Hungarian Civil Code would result in a significant change. Combining the common law and civil law models will abolish guardianship excluding active legal capacity and it will also introduce several legal institutions that ensure the effective implementation of the rights of persons with psychosocial disabilities while placing no restrictions on active legal capacity. The adoption of the new Hungarian Civil Code will ensure that Hungarian law complies with the provisions of the United Nations Convention, thereby establishing a legal framework that attends to the specific circumstances, interests, and needs of people with disabilities.

* István Hoffman is a Ph.D. in Administrative Law. He is now a Lecturer of the Department of Administrative Law at Faculty of Law and Political Sciences of Eötvös Loránd University, Budapest (Hungary) and Associate Professor of the College for Modern Business Studies, Tatabánya (Hungary). He is doing research on Administrative Law (especially on the management of public services) and social law (especially law of equal opportunities and disability law).

** György Könczei dr. habil., D.Sc., Ph.D. is a Professor of Disability Studies and former Dean of the Bárczi Gusztáv Faculty of Special Education of Eötvös Loránd University, Budapest (Hungary). He is the Chair of the Governmental Committee for the European Social Charter, Council of Europe, Strasbourg and member of the Committee on the Rights of Persons with Disabilities under Article 34 of the Convention on the Rights of Persons with Disabilities. He is doing research in Disability Studies (especially the fundamental rights of the persons with disabilities).

1 . Cf. Kevin K. Walsh, Thoughts on Changing the Term Mental Retardation, in 40 Mental Retardation 70, 71–72 (2002) (discussing the changes in terminology referring to disabled people).

2 . Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006) [hereinafter CRPD].

3 . See id. arts. 1, 16, ¶ 2.

4 . See Benjamin Brake & Peter J. Katzenstein, The Transnational Spread of American Law: Legalization as Soft Power, Inst. for Int’l L. and Just., 14 (June 2010), http://www.iilj. org/courses/documents/HC2010Oct22.Katzenstein.pdf; Rhona K.M. Smith, Textbook on International Human Rights 185–86 (3d ed. 2007).

5 . See Paul Varul et al., Restrictions on Active Legal Capacity, 9 Juridica Int’l 99, 100 (2004), available at http://www.juridicainternational.eu/public/pdf/ji_2004_1_99.pdf.

6 . See id. at 100; Xinyan Ma & Gouqiang Li, On Adult Deficiency of Capacity for Conduct and Perfection of Adult Guardianship System: With Consideration to System Arrangement of Civil Code, 2 U.S.–China L. Rev. 27, 30–31 (2005).

7 . Julie Mulvany, Disability, Impairment or Illness? The Relevance of the Social Model of Disability to the Study of Mental Disorder, in Rethinking of the Sociology of Mental Health 40–41 (Joan Busfield ed., 2001).

8 . See Szladits Károly, A magyar magánjog vázlata [An Outline of Hungarian Civil Law] 80–81, 137 (1937) (discussing the medical approach in a major work on Hungarian civil law).

9 . See Mulvany, supra note 7, at 39–40.

10 . See David Morrison, Realizing Human Rights 39–40 (1996), available at http://www.strathmor.com/assets/pdf/realizing%20human%20rights%20-%20final.pdf. For an example of the so-called “euthanasia” program in Nazi Germany, see Michael Burleigh, The Legacy of Nazi Medicine in Context, in Medicine and Medical Ethics in Nazi Germany 112, 113–14 (Francis R. Nicosia & Jonathan Huener eds., 2002).

11 . Curtis F.J. Doebbler, International Human Rights Law: Cases and Materials 8–11 (2004).

12 . See Raymond Lang, The United Nations Convention on the Right and Dignities for Persons with Disability: A Panacea For Ending Disability Discrimination?, 3 Eur. J. Disability Res. 266, 268 (2009).

13 . See Smith, supra note 4, at 185–86.

14 . Ann Macfarlane, Aspects of Intervention: Consultation, Care, Help and Support, in Beyond Disability: Towards an Enabling Society 6, 6–8 (Gerald Hales ed., 1996).

15 . Behindertengleichstellungsgesetz [BGG] [Law on Equal Opportunities for Disabled People], Apr. 27, 2002, BGBl. I at 1467, last amended by Gesetz [G], Dec. 19, 2007, BGBl. I at 3024, art. 12 (Ger.), available at http://www.gesetze-im-internet.de/bundesrecht/bgg/gesamt.pdf.

16 . See Andreas Dimopoulos, Issues in Human Rights Protection of Intellectually Disabled Persons 71 (2010).

17 . Thus the CRPD—ratified by Hungary in Act XCII of 2007—contains the following definition: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” CRPD, supra note 2, art. 1, ¶ 2; Hungary: Parliament Reforms Legal Capacity Laws, Mental Disability Advocacy Ctr. (Sept. 22, 2009), http://mdac.info/hungary-parliament-reforms-legal-capacity-laws.

18 . See Javaid Rehman, International Human Rights Law 611–12 (2d ed. 2010); see also Melinda Jones & Lee Ann Basser Marks, Law and the Social Construction of Disability, in Disability, Divers-Ability, and Legal Change 1, 4–6 (Melinda Jones & Lee Ann Basser Marks eds., 1999).

19 . CRPD, supra note 2, art. 1.

20 . See Varul et al., supra note 5, at 101. But see Penny Letts, The Protection of People Without Mental Capacity, in Elder Abuse Work: Best Practice in Britain and Canada 252, 252–53 (Jacki Pritchard ed., 1999) (emphasizing that United Kingdom legislation adopted in the 1980s and 1990s applies the medical approach in the field of intellectual disabilities).

21 . See Peter Mittler, Meeting the Needs of People with an Intellectual Disability: International Perspectives, in The Human Rights of Persons with Intellectual Disabilities: Different but Equal 25, 28 (Stanley S. Herr et al. eds., 2003).

22 . See John Parry & Eric Y. Drogin, Mental Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges and Mental Disability Professionals 7–9 (2007).

23 . These countries include the countries of the European Continent, Middle and South America (Latin America), the former member states of the USSR, Québec (Canada) and Louisiana (USA). Scotland and South Africa have a mixed (civil law and common law) legal system. See Hamza Gábor, Az európai magánjog fejlődése: A modern magánjogi rendszerek kialakulása a római jogi hagyományok alapján [The Development of European Civil Law: The Development of Modern Systems of Civil Law Based on the Traditions of Roman Law] 21–23 (2002) [hereinafter The Development of European Civil Law]; Gábor Hamza, Die Entwicklung des Privatrechts auf römischrechtlicher Grundlage: Unter besonderer Berücksichtigung der Rechtsentwicklung in Deutschland, Österreich, der Schweiz und Ungarn [The Development of Civil Law from Roman Legal Traditions: With Special Reference to Legal Developments in Germany, Austria, Switzerland, and Hungary] 9–10 (2002) [hereinafter The Development of Civil Law from Roman Legal Traditions].

24 . Földi András & Hamza Gábor, A római jog története és institúciói [The History and Institutions of Roman Law] 228–29 (2001). Similar to traditional common law, Classical Roman law did not recognize the abstract notion of subjective (civil) rights. It treated rights basically as rights of litigation. Id.

25 . Id. at 203, 225. Based on Roman law recognizing slavery, this could also mean that passive and active legal capacity diverged—a competent person could be without active legal capacity, and an incompetent slave could have active legal capacity. Id.

26 . Rehman, supra note 18, at 85.

27 . For more on the definition of active legal capacity, see Barnabás Lenkovics & László Székely, A személyi jog vázlata [The Outline of Personal Rights] 31 (2000) (Hung.); Fábián Ferenc & Sághy Mária, Polgári jog I. [Hungarian Civil Law, Vol. I], 20–22 (2007); J.M. Thomson, Private Law Aspects of Parents’ and Children’s Rights in Scotland, in 1 Frontiers of Liability 191, 197 (P.B.H. Birks ed., 1994).

28 . Miklós Kengyel, Magyar polgári eljárásjog [Hungarian Civil Procedure Law] 133–34 (2001).

29 . Id.

30 . See 1 László Tölg-Molnár, Polgári eljárásjog [Civil Procedure Law] 87–88 (2006) (Hung.); A polgári perrendtartás magyarázata I–II. [An Explanation of the Code of Civil Procedure, Vol. I–II] 247–48 (János Németh ed., 1999) (Hung.).

31 . An Explanation of the Code of Civil Procedure, supra note 30, at 243, 255–56, 1290.

32 . See Bruce Russett, Grasping the Democratic Peace: Principles for a Post-Cold War World 15 (1993).

33 . See, e.g., Council of Europe, Electoral Systems and Voting Procedures at Local Level 41 (1999).

34 . Austria First to Lower Voting Age to 16, USA Today (Sept. 25, 2008), http://www.usatoday.com/news/world/2008-09-25-austria-voting-age_N.htm. In federal and most member states’ (Länder) elections in Austria, young people aged over 16 have voting rights. Similar to the federal regulation, various provinces have also reduced the age limit for active voting rights in provincial parliamentary elections. The age limit for passive voting rights has not been reduced. Pat Maadi, Parliament Approves New Laws, Wiener Zeitung (June 5, 2007), available at http://www.eduhi.at/dl/2007-06-05_Wiener_Zeitung._Parliament_approves_new_ laws.doc.

35 . Kristina Karsay, Criminal Responsibility of Minors in National and International Legal Order, 75 Int’l Rev. Penal L. 379, 379 (2004).

36 . See id.

37 . See id. at 381.

38 . John Delaney, Learning Criminal Law as Advocacy Argument 30 (2004).

39 . Brake & Katzenstein, supra note 4, at 14.

40 . See Smith, supra note 4, at 251 (discussing both active and passive legal capacity, but failing to distinguish between the two).

41 . See James H. Hutson, The Emergence of the Modern Concept of a Right in America: The Contribution of Michael Villey, 39 Am. J. Juris. 185, 196–97, 205–06 (1994).

42 . See, e.g., Harry N. Wyatt, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 883, 887–88, 892–95, 897–98 (1996) (discussing enforceability of inheritance rights).

43 . Parry & Drogin, supra note 22, at 7.

44 . However, Hungarian feudal (medieval) law presumed (mental) sanity. See Beliznay Kinga et al., Magyar jogtörténet [History of Hungarian Law] 80 (Mezey Marna ed., 1996).

45 . Id.

46 . Földi & Hamza, supra note 24, at 228–29.

47 . Id.

48 . See Beliznay Kinga et al., supra note 44, at 73, 80.

49 . Deborah W. Denno, Sexuality, Rape, and Mental Retardation, 1997 U. Ill. L. Rev. 315, 325 (1997).

50 . Id.

51 . For example, in the People’s Republic of China, there is a family-based guardianship system. See Yang Shao et al., Current Legislation on Admission on of Mentally Ill Patients in China, 33 Int’l J.L. & Psychiatry 52, 56 (2010).

52 . CRPD, supra note 2, art. 12, ¶ 2.

53 . See Thomson, supra note 27, at 196.

54 . For the various grounds, see Lenkovics & Székely, supra note 27, at 23–25.

55 . See 1 Émile Acollas, Manuel de droit civil: à l’usage des étudiants [Handbook of Civil law for Students] 411 (1869).

56 . Henry Cachard, The French Civil Code, with Various Amendments Thereto: As in Force on March 15, 1895 121 (1895).

57 . Id. at 111, 125.

58 . Varul et al., supra note 5, at 104.

59 . The Development of Civil Law from Roman Legal Traditions, supra note 23, at 103–06.

60 . Allgemeines bürgerliches Gesetzbuch [ABGB] [Civil Code] § 273 (Austria).

61 . Eugen Bleuler, Lehrbuch der Psychiatrie [Textbook of Psychiatry] 674–75 (Manfred Bleuler ed., 15th ed. 1983) (Ger.).

62 . Id. at 675.

63 . The Development of Civil Law from Roman Legal Traditions, supra note 23, at 96–97.

64 . Chung Hui Wang, The German Civil Code 23 (1907).

65 . Id. at 25.

66 . Id. at 23, 25.

67 . Id.

68 . Horváth István, Munkajog [Labor Law] 32–34 (2007) (Hung.).

69 . Hans Brox, Allgemeiner Teil des bürgerlichen Gesetzbuchs [General Part of the Civil Code] 105–12 (2., erg. Aufl. 1978) (Ger.).

70 . See Varul et al., supra note 5, at 102.

71 . Id.

72 . Id. at 103.

73 . Id. at 104.

74 . See Restatement (Third) of Employment Law app. B (2009) (discussing the various states’ rejection of unilateral statements).

75 . Kazimierz Grzybowski, Reform of Civil Law in Hungary, Poland, and the Soviet Union, 10 Am. J. Comp. L. 253, 253 (1961).

76 . Id.; Beliznay et al., supra note 44, at 73–75.

77 . Ignác Frank, A közigazság törvénye magyarhonban [Hungarian Public and Private Law] 64–66, 179, 183–85 (1845).

78 . See The Development of Civil Law from Roman Legal Traditions, supra note 23, at 67.

79 . The Development of European Civil Law, supra note 23, at 79–80.

80 . Földi & Hamza, supra note 24, at 264.

81 . István Werböczi, Tripartitum, translated in The Customary Law of the Renowned Kingdom of Hungary: A Work in Three Parts, the “Tripartitum” (Janos M. Bak et al. eds., 2005).

82 . Frank, supra note 77, at 179.

83 . Id. at 183–85.

84 . See 1877. évi XX. törvény a gyámsági és gondnoksági ügyek rendezéséről [Act XX of 1877 on the Settlement of Guardianship and Guardianship Matters] § 28 (Hung.); Szladits, supra note 8, at 80–81.

85 . Szladits, supra note 8, at 173 (describing the evolution of the Hungarian system and the influence of Roman and customary Hungarian law).

86 . See The Hungarian Disability Caucus, Disability Rights or Disabling Rights? 148 (2010), available at http://mdac.info/sites/mdac.info/files/English_Disability%20 Rights%20or%20Disabling%20Rights%20CRPD%20Alternative%20Report.pdf (custody only used to refer to children’s being in the custody of their parents; otherwise the “custody” of the adult disabled is referred to as “guardianship”).

87 . Szladits, supra note 8, at 173 (“Through the influence of Austrian institutions and doctrine, the spirit of Roman-German law systems begins to penetrate, considerably altering the original character of our private law.”).

88 . Ármin Fodor, Magyar magánjog [Hungarian Civil Law] 311 (1903).

89 . Id. at 310–11.

90 . Id.

91 . See Grzybowski, supra note 75, at 253.

92 . See 1959. évi IV törvény a Polgári Törvénykönyvről [Act IV of 1959 on the Civil Code] § 14 (Hung.); see also The Development of Civil Law from Roman Legal Traditions, supra note 23, at 138–39.

93 . Catherine Dupré, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity 95 (2003).

94 . See Mental Disability Advocacy Ctr., National Implementation Process of the Convention on the Rights of Persons with Disabilities 2 (2008), available at http://www2.ohchr.org/english/issues/disability/docs/consultation/Civilsocietyinputs/hungary MDAC.doc [hereinafter MDAC Report].

95 . The Development of European Civil Law, supra note 23, at 177.

96 . See 1959. évi IV törvény a Polgári Törvénykönyvről [Act IV of 1959 on the Civil Code] § 14 (Hung.).

97 . Id. § 15(5).

98 . Hungary: Parliament Reforms Legal Capacity Laws, supra note 17.

99 . Lenkovics & Székely, supra note 27, at 27.

100 . See Hungary: Parliament Reforms Legal Capacity Laws, supra note 17.

101 . See id.

102 . A magyar munkajog I. [Hungarian Labor Law Vol. I] 79–80 (Csilla Kollonay Lehoczyné ed., 2001).

103 . See Jerome E. Bickenbach, Disability Human Rights, Law, and Policy, in Handbook of Disability Studies 565, 571 (Gary L. Albrecht et al. eds., 2001).

104 . Mosaic of Victims: An Overview, U.S. Holocaust Museum, http://www.ushmm.org/ wlc/en/article.php?ModuleId=10005149 (last visited Oct. 15, 2011).

105 . Tamás Gyulavári & György Könczei, Európai szociális jog [European Social Law] 10 (2000) (Hung.).

106 . See Michael L. Perlin, International Human Rights Law and Comparative Disability Law: The Role of Institutional Psychiatry in the Suppression of Political Dissent, 39 Isr. L. Rev. 69, 75–85 (2006), available at http://www.narpa.org/MLP-IHR-ILR.pdf.

107 . See Bickenbach, supra note 103, at 569.

108 . See id.

109 . See Mark Priestley, In Search of European Disability Policy: Between National and Global, in 1 Eur. J. Disability Res. 61, 63–64 (2007).

110 . István Hoffman, Önkormányzati közszolgáltatások szervezése és igazgatása [Municipal Organization and Management of Public Services] 228–29 (2009) (Hung.).

111 . The sedes materiae for social services for people with disability is the twelfth Book of the German Social Code (Sozialgesetzbuch). The German Bundestag adopted an independent act on the equality of the persons with disabilities in 2002 (Behindertengleichstellungsgesetz). See Rainer Wagner & Daniel Kaiser, Einführung in das Behindertenrecht [Introduction to Disability Law] 97–98 (2004) (Ger.).

112 . See Varul et al., supra note 5, at 99–100, 102–04, 107.

113 . Id. at 102–04.

114 . See Lang, supra note 12, at 268–70.

115 . Id.

116 . Varul et al., supra note 5, at 102–04.

117 . 1959. évi IV törvény a Polgári Törvénykönyvről § 14 [Act IV of 1959 on the Civil Code] (Hung.).

118 . Bürgerliches Gesetzbuch [BGB] [Civil Code], Jan. 2, 2002, Bundesgesetzblatt, Teil I [BGBl. I] 42, 2909, as amended, § 105a (Ger.), available at http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html.

119 . See Thomas Zerres, Bürgerliches Recht: ein einführendes Lehrbuch in das Zivil- und Zivilprozessrecht [Civil Law: An Introductory Textbook in Civil Law and Procedure] 79–81 (2005).

120 . Jones & Basser Marks, supra note 18, at 5.

121 . Id; cf. Restatement (Second) of Contracts § 12 cmt. b & c (1981) (discussing capacity to contract, types of incapacity, and inability to assent).

122 . Mulvany, supra note 7, at 39–40.

123 . See Varul et al., supra note 5, at 100; Jones & Basser Marks, supra note 18, at 5.

124 . See Varul et al., supra note 5, at 106.

125 . See id. at 105–06.

126 . See id. at 102.

127 . Lang, supra note 12, at 268; see, e.g., Parry & Drogin, supra note 22, at 7–9.

128 . See Varul et al., supra note 5, at 107.

129 . See id. at 101–02. This model is a good example for the theory of spheres of legal capacity (Sphärengeschäftsfähigkeit) in German civil law and jurisprudence. See Jürgen Plate, Das gesamte examensrelevante Zivilrecht: Für Studenten und Rechtsreferendare [Complete Exam-Tested Civil Law: For Students and Law Clerks] 365–66 (2005).

130 . See Varul et al., supra note 5, at 100.

131 . See id.

132 . See id.

133 . See Bickenbach, supra note 103, at 569.

134 . See Lang, supra note 12, at 268–70.

135 . See Varul et al, supra note 5, at 104; Nancy J. Knauer, Defining Capacity: Balancing the Competing Interests of Autonomy and Need, 12 Temp. Pol. & Civ. Rts. L. Rev. 321, 347 (2003).

136 . See Varul et al., supra note 5, at 103. Thus, for persons with various psycho-social disabilities, the legal system and administrative practice have elaborated many means of assistance in a variety of areas. For information about assistance granted to people with reading disabilities at the time of elections, see Marcus Redley, Citizens with Learning Disabilities and the Right to Vote, 23 Disability & Soc’y 375, 376–79 (2008).

137 . Földi & Hamza, supra note 24, at 249.

138 . See Varul, supra note 5, at 99, 103.

139 . See Dimopoulos, supra note 16, at 69.

140 . Zerres, supra note 119, at 79.

141 . Id.

142 . See Introduction to German Law 268–69 (J. Zekoll & M. Reimann eds., 2d ed. 2005).

143 . Id. at 269.

144 . See id.

145 . See id.

146 . See Lang, supra note 12, at 268–70.

147 . Hungarian Labor Law Vol. I, supra note 102, at 79–80.

148 . See Varul et al., supra note 5, at 104.

149 . See Introduction to German Law, supra note 142, at 269.

150 . See, e.g., Council Directive 2000/78, Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L 303) 16 (EC); Council Regulation 1107/2006, Concerning the Rights of Disabled Persons and Persons with Reduced Mobility When Traveling by Air, 2006 O.J. (L 204) 1 (EC); see also Anne Waldschmidt, Disability Policy of the European Union: The Supranational Level, 3 Eur. J. Disability Res. 8, 13–14 (2009) (discussing European Union disability policy and its possible disconnect with social policy).

151 . Lang, supra note 12, at 271.

152 . Convention on the Rights of Persons with Disabilities, U.N. Enable, http://www.un.org/ disabilities/default.asp?navid=13&pid=150 (last visited Oct. 15, 2011).

153 . MDAC Report, supra note 94, at 2.

154 . CRPD, supra note 2, art. 12; Dimopoulos, supra note 16, at 72.

155 . Földi & Hamza, supra note 24, at 155, 203, 228–29, 264 (2001).

156 . An Explanation of the Code of Civil Procedure, supra note 30, at 252–53.

157 . CRPD, supra note 2, art. 12, ¶ 2.

158 . Dimopoulos, supra note 16, at 72. Regarding the theoretical background of the paradigm shift of the CRPD, see Gerard Quinn et al., Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability 29–46 (2002), available at http://www.ohchr.org/Documents/ Publications/HRDisabilityen.pdf.

159 . CRPD, supra note 2, art. 12, ¶ 1.

160 . See Katherine Guernsey et al., Convention on the Rights of Persons with Disabilities: Its Implementation and Relevance for the World Bank 1 (2007), available at http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/SP-Discussion -papers/Disability-DP/0712.pdf.

161 . CRPD, supra note 2, art. 12, ¶¶ 2–5.

162 . Id. pmbl., (o).

163 . Körös András, „Jót s jól!”—Helyes célok, alkalmatlan megoldások a cselekvöképesség tervezett szabályozásában [“Good and Well!”—Good Goals, Inadequate Solutions in the Proposed Rules on Active Legal Capacity] 4, available at http://www.efoesz.hu/download/ptk_ koros_cikk.pdf.

164 . Id.

165 . Id.

166 . Practically, Hungary implemented the German theory of Sphärengeschäftsfähigkeit [spheres of legal capacity]. See Plate, supra note 129, at 365–66.

167 . Körös, supra note 163, at 4.

168 . Id.

169 . Id. at 5.

170 . Id.

171 . See Hungary: Parliament Reforms Legal Capacity Laws, supra note 17. In Hungary there are approximately 80,000 people under guardianship, and approximately 40,000 of these people are under guardianship without active legal capacity. See id.

172 . See Art. 70. of the Constitution of the Republic of Hungary [Act XX of 1949], Art. 17 of the Act on Electoral Procedure [Act C of 1997]; Márta Dezső et al., Alkotmánytan I. [Constitutional Theory, Vol. I] 189 (István Kukorelli ed., 2003.)

173 . See Hungary: Parliament Reforms Legal Capacity Laws, supra note 17.

174 . Körös, supra note 163, at 4–7.

175 . 2009. évi CXX törvény a Polgári Törvénykönyvröl [Act CXX of 2009 on the Civil Code] § 2.25 (Hung.).

176 . Hungarian Ass’n for Pers. with Intellectual Disabilities (ÉFOÉSZ), Supported Decision-Making or Plenary Guardianship?—Hungarian Legal Capacity Reform Came to a Sudden Stop (May 5, 2010), available at http://www.dpiap.org/resources/ pdf/Hungarian_legal_capacity_reform_10_05_14.pdf.

177 . The New Civil Code Will Not Enter Into Force as of May 1, 2010, Salans News (Salans LLP, Budapest), Apr. 27, 2010, available at http://www.salans.com/~/media/Assets/ Salans/Publications/2010/NewsletterThe%20new%20Civil%20Code%20will%20not%20enter%20into%20force%20as%20of%20May%201%202010.ashx

178 . See generally Alkotmánybíróság (AB) [Constitutional Court], Apr. 26, 2010, 436/B/2010, http://isz.mkab.hu/netacgi/ahawkere2009.pl?s1=51/2010&s2=&s3=&s4=&s5=&s6= &s7=&s8=&s9=&s10=&s11=Dr&r=1&SECT5=AHAWKERE&op9=and&op10=and&d=AHAW&op8=and&l=20&u=/netahtml/ahawuj/ahawkere.htm&p=1&op11=and&op7=and&f=G (Hung.).

179 . Plate, supra note 129, at 365–66.

180 . Introduction to German Law, supra note 142, at 269.

181 . See Körös, supra note 163.

182 . See id. at 8; Introduction to German Law, supra note 142, at 269.

183 . 2009. évi CXX törvény a Polgári Törvénykönyvről [Act CXX of 2009 on the Civil Code] § 2.25 (Hung.).

184 . See Sándor Gurbai, A gondnokság alá helyezett személyek választójogának vizsgálata az Emberi Jogok Európai Bíróságának a Kiss v. Magyarország ügyben meghozott ítélete alapján [Examination of the Right of Persons Placed under Guardianship to Vote According to the European Court of Human Rights’ Judgment in the Case of Kiss v. Hungary], 3 Közjogi Szemle [Pub. L. Rev.], no. 4, Dec. 2008, at 34, 40 (2010).

185 . See Varul et al., supra note 5, at 100.

186 . Mulvany, supra note 7, at 39–40; Jones & Basser Marks, supra note 18, at 4–6.

187 . The Development of Civil Law from Roman Legal Traditions, supra note 23, at 9–10; Földi & Hamza, supra note 24, at 155.

188 . See, e.g., Parry & Drogin, supra note 22, at 7.

189 . Földi & Hamza, supra note 24, at 228–29.

190 . See Code civil [C. civ.] arts. 7–8 (Fr.).

191 . Lenkovics & Székely, supra note 27, at 27.

192 . See John H. Noble Jr. & Vera H. Sharav, Protecting People with Decisional Impairments and Legal Incapacity Against Biomedical Research Abuse, 18 J. Disability Pol’y Stud. 230, 231 (2008); Morrison, supra note 10, at 39–40.

193 . See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

194 . See Lang, supra note 12, at 270–71; Hoffman, supra note 110, at 228–29.

195 . See CRPD, supra note 2, art. 1.

196 . Lang, supra note 12, at 268–69.

197 . Id. at 269.

198 . See Hoffman, supra note 110, at 228–29; Wagner & Kaiser, supra note 111, at 97–98.

199 . See 1959. évi IV. törvény a Polgári Törvénykönyvről [Act IV of 1959 on the Civil Code] (Hung.); see also Fábián & Sághy supra note 27, at 31–32.

200 . Gurbai, supra note 184, at 34.

201 . Lang, supra note 12, at 268–69; Priestley, supra note 109, at 62–63.

202 . Plate, supra note 129, at 365–66.

203 . See, e.g., Varul et al., supra note 5, at 104; Knauer, supra note 135, at 335.

204 . See Introduction to German Law, supra note 142, at 269.

205 . See, e.g., Joaquin Zuckerberg, International Human Rights for Mentally Ill Persons: The Ontario Experience, 30 Int’l J.L. & Psychiatry 512, 521 (2007); Varul et al., supra note 5, at 103.

206 . See Hungary: Parliament Reforms Legal Capacity Laws, supra note 17.

207 . See id.

208 . See id.

209 . MDAC Report, supra note 94, at 2.

210 . See Körös, supra note 163, at 6.

Future of Disability Law in Japan: Employment and Accommodation

JUN NAKAGAWA[1] & PETER BLANCK[2]

I. INTRODUCTION

With ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD),[3] Japanese people with disabilities envision a new and bright future focused on their greater inclusion in society and economic empowerment. The CRPD will have a positive impact on attitudes toward disability law and policy for persons with disabilities in Japan.

There are historical and cultural currents, however, affecting the prospects for the future of Japanese disability antidiscrimination law. Although the CRPD requires state parties to forbid discrimination and make reasonable accommodations for persons with disabilities,[4] Japanese law and policy does not yet fully realize these concepts, nor are they seen as part of Japan’s broader civil and human rights initiative. The Japanese legal system has not developed a clear model for prohibiting discrimination against persons with disabilities. Although Japan lacks certain foundational prerequisites for disability law and policy, it has a unique opportunity to develop a paradigm with new leaders of the Japanese disability rights movement.

This article stems from a new and timely partnership between Japanese and U.S. disability researchers. It furthers the discussion of present and future challenges and opportunities in emerging Japanese employment law and policy for persons with disabilities, particularly in light of the passage of the CRPD and the developing concept of reasonable accommodation. The Japanese Cabinet Office has commissioned Professor Nakagawa to prepare a report setting forth a review of current Japanese antidiscrimination employment law for people with disabilities, focusing on the concept of accommodation, and to assist in developing the legal foundation for passage of a new law.[5]

Part II of this article describes current disability employment law in Japan and the concept of accommodation. Part III sets out ideas relevant to the future of Japanese disability employment law, considering comparative perspectives. The article will close with recommendations for future disability law and policy development in Japan.

II. PRESENT DISABILITY LAW AND POLICY IN JAPAN

A. Statutory Protection of Persons with Disabilities

The CRPD requires party nations to provide reasonable accommodation for persons with disabilities, including prohibiting discrimination.[6] In contrast to the Americans with Disabilities Act (ADA) enacted in the United States,[7] Japan has no comprehensive law prohibiting employment discrimination against persons with disabilities.[8] The development of antidiscrimination law for Japanese with disabilities is of crucial importance, yet Japan still lacks understanding and clear political commitment to civil rights in the field of disability law.

In a 2005 survey, there were approximately 7.24 million Japanese persons with disabilities (including 3.66 million with physical disabilities, .547 million with intellectual disabilities and 3.03 million with mental disabilities).[9] In general, Japanese disability groups and policymakers understand that persons with disabilities are entitled to protection by the government, and that the government has to provide services to persons with disabilities and guarantee vocational rehabilitation.[10]

To date, Japanese disability groups have focused advocacy efforts on requiring local and central governments to deliver protection through more and better vocational rehabilitation and services,[11] while Japanese law and policymakers have attempted to expand services for persons with disabilities.[12] Disability groups do not focus primarily on a Japanese civil rights paradigm, obliging private entities, such as employers, to treat persons with and without disabilities equally.[13] Likewise, the government has focused on the “protection,” not the equal treatment, of persons with disabilities. In 1993, the Fundamental Act on Policy and Measure for Persons with Physical Disabilities and Mental Retardation of 1970[14] was amended, and the Fundamental Act for Persons with Disabilities of 1993[15] (FAPD) was developed, both of which remain the prominent disability laws in Japan. They are general and limited in application, reflecting the “protection” and medical models that still dominate Japanese disability law.[16]

There have been attempts to incorporate the antidiscrimination paradigm for persons with disabilities into the Japanese legal system. The “Project for Normalization” developed a blueprint in the 1980s to prohibit discrimination on the basis of disability,[17] and the Japanese Council on Independent Living Centers (JIL) developed its comprehensive draft proposal in 2000.[18]

In addition, the Japanese Cabinet submitted a draft comprehensive human rights law, the Human Rights Protection Bill, to parliament in 2002, rumored to contain a provision prohibiting employers from discriminating against their employees on the basis of disability.[19] The House of Representatives discarded the draft, however, when it dissolved.[20] The members of the Japanese House of Councillors (Senate) and the House of Representatives instead took the antidiscrimination provision into account when amending the FAPD in 2003.[21]

There are perhaps two reasons for these political developments. One is the impact of the ADA model on the Japanese disability community.[22] Second, the government realized that improved services, in terms of quantity and quality delivered, as well as a more stable life, promote a sense of civil rights for persons with disabilities.[23] Still, these attempts to develop antidiscrimination law for persons with disabilities have had only a small impact in Japan.[24]

Perhaps the most positive impact came from the government’s 2004 incorporation into the FAPD of a sub-section prohibiting discrimination against persons with disabilities.[25] Section 3 of the FAPD provides various fundamental and guiding principles in relevant part. For instance, it states:

(1) Every person with a disability shall have a right to be respected for his or her individual dignity and lead a decent life. (2) Every person with disability [sic], as a member of the society, shall be entitled opportunities to participate in social, economic, cultural and all other activities in the society. (3) No one shall be allowed to discriminate against persons with disabilities or violate their rights and benefits on the basis of disability.[26]

Section 3(3) of the FAPD generally obliges the central and local governments to forbid discrimination on the basis of disability law and policy. The subsection, however, does not prohibit discrimination by private entities, nor provide administrative and judicial remedies, and therefore is not rights-oriented.

There has been only one case in which a plaintiff filed a complaint using the FAPD. The plaintiff alleged that abolishing the home-help service provided by a city violated Section 3(3), as well as provisions of other acts, and Japanese Constitutional Law.[27] The trial court dismissed the complaint, stating that the plaintiff was able to receive home-help service from other private organizations sponsored by the city.[28] The extent of FAPD coverage is therefore uncertain, as is the degree to which it prohibits discrimination, including failures to provide reasonable accommodations. Furthermore, the court left unclear whether a private party has a right of action in court to enforce the FAPD.

Japan’s present interest in disability antidiscrimination law is motivated by the international community’s efforts to ratify the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[29] In 1985, when the Japanese government passed the Equal Employment Opportunity Law (EEOL),[30] which prohibited gender-based discrimination in employment, it too was motivated by ratification of the CEDAW. Thus, although domestic demands of Japanese women and the society at large contributed to the advent of the EEOL in part, the power of these demands should not be overestimated.

Individual coverage of service and disability pension plans under Japanese disability policies is also limited in application. These policies are based on the medical model of disability.[31] Thus, a medical examination and certification determines whether a person has a disability.[32] A doctor examines a person’s impairment and quantifies the type and degree of impairment.[33]

With respect to physical disabilities, the Physically Disabled Persons’ Welfare Act (Welfare Act) establishes grades for the severity of physical disabilities.[34] Thus, if a person has lost both arms, he or she is classified as a person with a first grade disability.[35] A person with a first grade disability can receive a pension.[36] If a person lost two fingers, including a forefinger, he or she is classified as a person with a sixth grade disability.[37] Moreover, the certification system limits the Welfare Act’s coverage to selected lists.[38] For example, hepatic diseases are excluded from coverage, even if a symptom is debilitating.[39] In addition to physical disabilities, the certification system is applicable to intellectual and mental disabilities, as reflected in the Services and Supports for Persons with Disabilities Act.[40]

The FAPD generally only provides rights for “certified” persons with physical, intellectual, and mental disabilities.[41] The Employment Promotion Act for Persons with Disabilities (EPAPD), which provides the vocational rehabilitation and the quota system for persons with disabilities, is also generally applied to persons with a medical certification.[42] Moreover, the Services and Supports for Persons with Disabilities Act states that the medical certification standard applies for care services, medical rehabilitation services, and vocational rehabilitation services.[43] The medical certification system focuses on medical, intellectual, and mental needs, but it does not consider the daily social or environmental needs and concerns of persons with disabilities, including the barriers they face.[44] Furthermore, this system delineates between a “curable” disability and a “non-curable” disability, delivering different services respectively.[45] Historically, government services for persons with disabilities were not sufficient to support their daily life activities, even though the Japanese National Health Insurance (Medicare) system[46] provides them with medical services.[47]

Despite this political, logistical, and cultural context, the concept of civil rights for people with disabilities has not developed, for example, as a vehicle for alleging employment discrimination.[48] Rather, when an individual is certified as a person with a disability by a prefecture or a municipal government, the government provides modest benefits, such as wheelchairs or assistive devices, subsidies for medical treatment, public transportation discounts, and income tax deductions.[49]

Similarly, employment discrimination is limited by a quota system.[50] The EPAPD obligates employers in the private and public sectors to have at least 1.8 percent and 2.1 percent of their workforces, respectively, made up of persons with disabilities.[51] Should an employer with more than 301 employees not reach its quota in hiring persons with disabilities, that employer must pay a levy.[52] The levy is fifty thousand yen (approximately five hundred dollars) per month for each person below the quota.[53] The levy is payable to the Japan Organization for Employment of the Elderly and Persons with Disabilities (JEED).[54]

In calculating the employment quota, a person with a profound physical or intellectual disability is counted as two persons, and a person with a profound physical or intellectual disability who is a part-time employee is counted as one person.[55] A person with a mental disability who is employed as a regular worker may be counted as one person, and a short term worker with a mental disability can be counted as one half person.[56]

The levy collected by JEED is used to directly and indirectly support other employees with disabilities.[57] For example, if an employer with more than three hundred regular employees employs more than the stipulated quota of employees with physical, intellectual, and/or mental disabilities, that employer can apply for an adjustment allowance.[58] The adjustment allowance is twenty-seven thousand yen (approximately 270 dollars) per month per person.[59]

Half of all employers do not fulfill this obligation and choose to pay the levy.[60] In the private sector, the employment rate of persons with certified disabilities was about 1.63 percent in a 2009 survey.[61] Despite the present situation in Japan, employers have an obligation to accommodate persons with disabilities, especially those with diseases, sicknesses or injuries.

As previously stated, there is no statutory antidiscrimination protection, except as reflected in Section 3(3) of the FAPD.[62] In addition, the Japanese Labor Standards Act of 1947 does not contain a provision to prohibit discrimination against, and require accommodation of, persons with disabilities, even though Article Three of the FAPD does prohibit discrimination on basis of race, religious, and political beliefs, and social status.[63] The obligation to persons with disabilities instead is derived from case law interpreting employment contracts.[64]

B. Duty of Accommodation under Japanese Employment Contract Law

In Japan, the duty to accommodate persons with disabilities stems from unique features of Japanese employment law. It is difficult for a Japanese employer to discharge an employee under an employment contract without a fixed period, even if the employee is temporarily incompetent, or lacks or loses the level of productivity or qualifications required to perform the job.[65] The difficulty of dismissing an employee under Japanese law obliges most employers to transfer an employee with a disability to another job or to a light duty position.[66] An employer may legitimately discharge an employee if there are reasonable grounds (just cause) for dismissal, but Japanese case law on employment contracts has not permitted a broad exercise of the right of dismissal.[67]

In support of a dismissal, an employer must fulfill certain substantive and procedural requirements.[68] Generally the employer must apply employment termination provisions, or “work rules” (Shugyo-kisoku), as required by individual cases of particular employees.[69] Regarding the substantive dismissal requirements, an employer may dismiss an employee if the employer estimates that the period of “incompetence, or lack or loss of the skills and qualifications required for performance of the worker’s job,” is not temporary but long-term.[70]

The employer also may exercise the right of dismissal if the employee cannot perform the essential functions of the job when employed under a fixed contract.[71] As for the procedural elements of dismissal, before an employer may seek dismissal of an employee who is incapacitated or less qualified, the employer must reassign the employee to a more appropriate position, or transfer the employee to another department.[72] This requirement is applicable not only to an employee with a disability, but also to other employees who cannot perform their jobs within reason.[73]

The dismissal requirements also apply to an employee with a disease or injury. Whether the law obliges an employer to make an accommodation, however, depends on whether an employee can perform the duties of the position, whether the employment contract is of a fixed duty or duration, and whether the requested accommodation establishes burdens on the employer and others.[74] The Tokyo Court of Appeal examined this issue in City of Yokohama, Commission for Public School Healthcare.[75] In this case, the plaintiff was a dental technician who worked in public elementary schools in Yokohama.[76] Her duties included checking the students’ teeth and providing instruction on dental hygiene.[77]

The plaintiff was diagnosed with a physical impairment in 1988 and took paid and unpaid sick leaves until 1992.[78] She asked to return to her job in 1992, 1993, and 1994.[79] Her employer continuously refused, and finally dismissed her in 1994 saying she could not perform the essential function of the job.[80] The plaintiff had difficulty conducting appropriate dental procedures, such as examining a student’s mouth, because of her lower point of view from the wheelchair.[81] She had requested from her employer a special chair, adjustable to two different heights for students to sit in, or for students to lie down on the floor, so that she would be able to see inside their mouths and do her job, but her employer refused the request.[82]

The Tokyo Court of Appeal dismissed the case even though the cost for accommodation was relatively modest.[83] The court viewed the appellant’s requested accommodation (i.e., to provide an appropriate working environment and remove burdens on her) as an undue hardship on personnel and economic resources, and more than an employer’s ordinary duty to accommodate persons with disabilities, regardless of whether the court felt it desirable to accommodate those in society with disabilities.[84]

First, the court held that an employer may appropriately exercise the right to dismissal if an employee cannot perform the essential functions of the employment contract, which specifies a fixed and mandatory duty, with or without accommodation.[85] Second, the court found that an employer is not required to make an accommodation if the request imposes any burden on the employer, or as in this case, on the students or caregivers.[86]

Also, the court found that the employer does not have to make an accommodation if the accommodation may lower the efficiency of the business as defined by the employer.[87] Thus, an accommodation is only appropriate, according to this court, when it enables an employee with a disability to perform essential job duties at no cost to the employer and with only a minimal impact on the time required to complete those duties.[88] The court’s view is that any burdens on an employer, however marginal, and even if the accommodation is “desirable for inclusion of persons with disabilities into . . . society,”[89] are not enough to override the employer’s rights.[90]

A similar approach was found in Independent Administrative Institution “N.”[91] The plaintiff was an employee at the Independent Administrative Institution, and had a mental illness with symptoms that included depression and a character disorder.[92] As a result of his disability, his employer transferred the plaintiff, assigning him to relatively light duty work, but his condition worsened, and he took periodic sick leaves.[93] When the Institution merged with another, the employer required the plaintiff to undergo new job testing at which he made mistakes.[94] Based on the testing, his employer then asked him to take sick leave.[95] During his one-year sick leave, the employee asked to return to the light duty job, which he had successfully performed.[96] The employer refused this request, because the employer believed that the plaintiff could not, or would never, perform his duties.[97] The employer made this decision even though the plaintiff’s doctor noted that he could return from a lighter duty job to his job in six months.[98]

The Tokyo District Court held that the employer does not have a duty to reassign the plaintiff employee with a disability after taking sick leave, unless he “recovers from a disease” and may perform his duty at a normal level or perform his original work duty in a reasonable period.[99] The court held this to be true even if he cannot perform his original duty for the moment, as long as his employment contract does not provide a fixed period and duty.[100] The court did not address the concept of accommodation, and instead emphasized a rigid medical approach to disability focusing on the cure of the condition so that the individual may fit back into the prescribed work environment.[101]

The Osaka District Court took a different approach in Japan Railways Company, Tokai (Osaka) [JR Tokai].[102] In this case, the plaintiff performed maintenance duties inside railcars.[103] During that time, he suffered a stroke and high blood pressure and had to take sick leave.[104] After completing a three-year sick leave, the respondent company, JR Tokai, asked him to return to his former job and informed him that they would discharge him if he could not do so.[105] Without accommodation, the plaintiff could not fully perform his original job because he could not use his right hand functionally.[106] The company dismissed him as a result.[107]

Although the plaintiff told his supervisor that he could do a light duty job or a job with accommodation and asked for reassignment, the supervisor refused this request.[108] The court held that the employer had an obligation to reassign the plaintiff with a disability to a light duty job based on the concept of employment contract.[109] As such, when an employee shows his intention to return to work effectively, with accommodation, even if he would not be able to perform his former job after completing a sick leave, an employer must attempt to accommodate him by a transfer to another job or reassignment to light duty.[110] The employer also must consider present capability, experience, and work capacity, as well as job-type and factors related to the difficulty of accommodation and reassignment.[111] The court’s holding indicates that the employer has a duty to accommodate an employee with a disability through a transfer or reassignment, regardless of whether he can perform his original duty in a reasonable period. [112]

This case clarifies that the appropriateness of an accommodation through transfer or reassignment depends on the employee’s capability, experience, status, and the overall size of the business or types of operation, the practical aspect of transfer and reassignment of its employees and the difficulty. This holding was influenced by the Katayama-gumi case,[113] which was the first case the Supreme Court of Japan considered regarding these issues.

Katayama-gumi was not an issue of employee dismissal, but it involved the accommodation of temporary reassignment. In this case, an employee, who was a supervisory worker in a construction company, had Graves’ disease and asked his manager to transfer him to a clerk job for four months.[114] The employer refused to make the accommodation and ordered him to take unpaid leave for the duration.[115] As a result, the employee sued the employer seeking the payment of unpaid wages.[116] The Supreme Court of Japan held that a contracted employee should be allowed to fulfill an employment contract through an alternative position suited to his abilities if the employee so requests.[117]

The 2008 decision from the Osaka District Court in Canon Soft Information System Co., took a different approach from JR Tokai and followed closely the logic of recent cases of other courts.[118] It also clarified that while an employer cannot immediately exercise the right to dismissal, even if a plaintiff cannot perform his original duty, the qualification standard is much higher than JR Tokai. In JR Tokai the standard for qualifying for accommodation was whether the employee can perform a light duty according to the employee’s capability. The standard in Canon, however, is whether the employee can perform her ordinary duty according to the abilities of others in the same position.[119]

In Canon, an employee with Cushing syndrome and autonomic dysfunction, which causes excessive fatigue, excessive thirst, dizziness, vertigo, or feelings of anxiety or panic, was discharged after completing a two-year sick leave, during which he had hoped to return to his job.[120] The Osaka District Court held that the plaintiff qualified for accommodation or transfer because he was in a condition to perform most of the duties of the transferable employment positions, as performed by other employees in the establishment, and his employment contract did not provide a fixed duty or period, regardless of being unable to do his former duty or overtime work.[121]

Importantly, the court held the exercise of the right to dismissal is not legitimate unless the employer attempts to accommodate the employee, such as by decreasing the employee’s workload.[122] This approach does not require an employee with a disability to be qualified to the extent required to perform his original duty when he wishes to return, but the employee must be in a condition to perform most of the duties other employees do in the alternative position.[123]

These cases show that the central legal reason an employer is obliged to make accommodation for an employee with a disability is derived from Japanese employment contract concepts, and not from a civil rights or antidiscrimination law perspective. Employment contract governs the continuous, human relationship between employer and employee, and therefore emphasizes avoiding dismissal,[124] which impacts the employee’s economic life and the core duties of the employment contract.

In Kentoku, the Osaka District Court reflected both the partially new, yet traditional paradigm, to support the provision of accommodation.[125] The court emphasized the human hierarchical relationship between employee and employer when it held that it was up to the employer and the employee to alter an employment contract according to a suitable work-life balance.[126] Ultimately, the court held that if the employer and employee determine the employee cannot perform the employee’s duties as both would expect, due to a disability, then it is the employer’s responsibility to care for the employee.[127]

While this holding contains a new idea of “work-life balance,” it limits the traditional view of the Japanese employment contract and places the duty of accommodation on employers.[128] The employment contract is premised upon mutual understanding between employer and employee.

In addition to avoiding dismissal, the employment contract doctrine of incidental obligation requires employers to make accommodation for employees with disabilities by requiring the employer to provide employee sick leave or to cease overwork policies.[129] Japanese employment contracts place a duty to work on the employee and the duty to pay wages on the employer, along with other “incidental obligations.”[130] The incidental obligations are legal obligations incidental to the employment contract and imposed on an employer to adhere to a standard of reasonable care while performing any act that could foreseeably harm or disadvantage employees.[131]

One of the relevant incidental duties in the context of disability is protection of employees’ safety and health. The “incidental obligation to consider employee’s health and safety (Anzen Hairyo Gimu)” requires employers to provide employees with safe working environments and prevent employees from incurring disease or injury in the course of employment.[132]

For example, the incidental obligation doctrine obliges employers to provide and apply appropriate employment standards for employees, implement medical checks for employees, and assign duties corresponding to an employee’s individual health condition and age.[133] If an employee dies from an unsafe policy and practice in the workplace (Karo-shi) that was worsened by a disability such as depression, cardiac infarction, or cerebral infarction,[134] the decedent’s family may file a complaint based on violation of the duty, tort liability, and/or apply for worker’s compensation based on the Worker’s Compensation Act.[135]

An employer has a further obligation to decrease workload to prevent employees with disabilities from being injured in the workplace. For example, if employees present a disabling condition, their supervisor is obligated to recommend they have a medical check and decrease their workload accordingly.[136] Again, the employer’s obligation under the incidental duty stems from the employment contract and protects employees’ health and safety in ways similar to a broad duty of accommodation.

In summary, although the duty to accommodate persons with disabilities in Japan derives from unique features of Japanese employment and contract law, it results in a patchwork of doctrines with little coherence and relevance to disability antidiscrimination law.[137] The two core legal doctrines giving rise to Japanese accommodation policies—to avoid dismissal and to protect the health and safety of employees—are based on a medical or curative model of disability.[138] These policies require only limited accommodations for employees, such as transfer, reassignment, sick leave, and reduction of workload.[139]

Moreover, the Japanese duty of accommodation has not developed into a coherent approach to address an employee’s ongoing need to effectively perform current jobs and to advance towards higher-level jobs.[140] Although the law requires employers to avoid dismissing employees with disabilities by transferring and reassigning, application of these accommodations primarily depends on the consequences of dismissing the employee. Additionally, although employers are incidentally required to protect employees’ health and safety, the protection arises from fear of the most severe consequence of poor workplace health and safety: the death of an employee. Therefore, though the principles may oblige an employer to transfer or reassign employees to avoid grave consequences, the employer is not required or encouraged to accommodate in most cases that involve simple and cost-free alternatives and that provide efficiency and flexibility.[141]

Furthermore, in Japan this duty applies to relatively few individuals with disabilities. The duty applies only to employees who have an employment contract without a fixed period and designated job.[142] It rarely applies to other workers, such as part-time workers and employees with a contract with a fixed period and a designated job.[143]

To date, the Japanese idea of accommodation is based on a paternalistic and medical point of view and not on equal opportunity or civil rights doctrine. No legal basis exists to require an employer to accommodate the employee with a disability unless work rules provide such a duty. No provision prevents discrimination or unjust dismissal from failure to accommodate. Overall, a paternalistic tradition, where the employer is a “parent figure” that should protect and support employees, influences the avoidance of dismissal, as well as an employer’s incidental obligations in regard to the concept of accommodation under Japanese employment contract law.[144]

III. TOWARD RATIFICATION OF THE CRPD IN JAPAN AND A COMPARATIVE ANALYSIS

We have suggested the premise of traditional Japanese employment law and policy does not provide a clear foundation for future antidiscrimination policies for persons with disabilities, at least in the tradition of Western approaches. Japanese experience and culture do not yet provide a conceptual basis for the prohibition of discrimination, disparate impact of laws and policies, and requirement of reasonable accommodation.

This part summarizes relevant experiences of other countries’ disability discrimination law and applies them to emerging Japanese domestic legislation for persons with disabilities.

A. Preparation for New Japanese Legislation

The Japanese government signed and officially declared its intention to ratify the CRPD on September 28, 2006, and has since been preparing for ratification.[145] The CRPD, however, does not provide detailed guidelines and requirements on how a state party must fulfill its obligations under the CRPD.[146] Instead, the CRPD entrusts the task to the individual state party.[147] Therefore, a state party, such as Japan, which does not have comprehensive antidiscrimination law for persons with disabilities, must begin the process of developing and advancing its disability discrimination law and policy.[148]

In 2007, the Japanese Ministry of Health, Labor, and Welfare (MHLW) commissioned a committee and study group of leading researchers to conduct a comparative study on reasonable accommodation for persons with disabilities in employment. The members submitted an initial brief in March 2008, analyzing the impact of the CRPD on the disability policy in Japan and the possibility of reasonable accommodation in employment law.[149]

In addition, the Japanese Cabinet Office commenced its own research project on the accommodation of persons with disabilities.[150] It produced its first report in 2007–2008.[151] The 2007–2008 report describes the laws and regulations regarding disability discrimination and reasonable accommodations for persons with disabilities in the United States, the United Kingdom (UK), Germany, France, and New Zealand.[152] Officials working in their Japanese Embassies and Consulates wrote the 2007–2008 report, which describes laws and regulations in detail, and yet is not proscriptive.[153]

The Cabinet Office subsequently asked Professor Nakagawa to chair the 2008–2009 and the 2009–2010 research projects and conduct further comprehensive and comparative research of the United States (on which Professor Blanck assisted), the UK, Germany, France, Australia, and New Zealand in areas of employment, education, and transportation. The 2008–2009 research project of the Cabinet Office explores concepts and implementation strategies of antidiscrimination laws for persons with disabilities in various countries.[154]

The 2009–2010 research project focuses on clarifying concepts and strategies by reviewing decisions regarding the disability discrimination laws in those countries.[155] For example, the review examines the concept and bases of disability discrimination law and the duty of reasonable accommodation, the definition of disability as applicable to antidiscrimination law and reasonable accommodation, the parameters of reasonableness and undue hardship of requested accommodation, and the accommodation interactive process, as well as burdens of proof and related policies.[156] Below we highlight these areas and recommendations relevant to the development of Japanese disability law and provision of accommodation.

In addition to the research projects, in December 2009, the Cabinet Office established a task force of scholars and members of the disability community to prepare for a new general Japanese disability law and policy.[157] The task force announced its interim report on June 7, 2010, and established three recommendations for the government: revise the FAPD; legislate new disability antidiscrimination law; and abolish the present Service and Support Act for Independent Living for the Persons with Disabilities, renaming and amending it to the new General Welfare Act for the Persons with Disabilities as a current tentative name.[158]

Regarding the disability discrimination law, the “disability discrimination law” division of the task force has discussed theoretical and practical issues and elaborated on ideas. This analysis of the proposed disability discrimination law and reasonable accommodation is both crucial and timely.

B. Recommendations from Comparative Studies of Reasonable Accommodation

As discussed, an employer’s duty of accommodation is not a statutory obligation in Japan.[159] Analogously, courts do not mandate accommodation when interpreting provisions of prohibition on gender discrimination.[160] Only some employment contracts partially impose a duty for employers to make accommodations for employees with disabilities.[161]

In order for the new disability discrimination law in Japan to appropriately oblige employers to perform the accommodation duty, there needs to be established prerequisite terms; stipulations of reasonable accommodations in disability discrimination law; legal bases for reasonableness, undue hardship, the interactive process, and alternative dispute resolution; relevancy to the present quota system; and enforceability of the new law.

C. Stipulation and Codification of Reasonable Accommodation for Persons with Disabilities in Japanese Disability Antidiscrimination Law

The FAPD promulgates a provision to prohibit disability discrimination in Japan.[162] Does this provision include the duty of reasonable accommodation as a separate cause of action such as in the ADA? This is a possible interpretation. The Rehabilitation Act, a U.S. law, shows that the U.S. courts played an active role in the development of the jurisprudence of reasonable accommodation.[163] Similarly, Canadian development of the Human Rights Acts, which prohibit discrimination on the basis of disability, reveals that the Canadian courts’ interpretation contributed to the advent and the development of reasonable accommodation.[164] Historically, the duty of reasonable accommodation has been seen as a byproduct of the interpretation of antidiscrimination law.[165]

However, courts in other countries have not followed this course. Although the Australian Disability Discrimination Act (Australian DDA) of 1992 prohibits discrimination against persons with disabilities, it did not stipulate the duty of reasonable accommodation (or reasonable adjustment) until August 2009.[166] Government documents, including those from ministries, describe an implied requirement for an employer to make reasonable adjustments for employees.[167] Furthermore, the Australian Human Rights Commission found that the Australian DDA imposed on employers a duty to provide reasonable adjustment for persons with disabilities.[168] Yet, a limited number of court cases provide an anchor for an employer’s duty of reasonable adjustment.[169] Responding to this situation,[170] the Disability Discrimination and Other Human Rights Legislation Amendment Act of 2009—Schedule 2[171] promulgated a provision to oblige employers to make reasonable adjustment in the Australian DDA.

Based on the Japanese Committee’s review, statutory mandates in most of the countries examined reflect reasonable accommodation concepts,[172] even if a law provides a prohibition on discrimination against persons with disabilities. The development of the duty of reasonable accommodation is imperative in Japan, as demonstrated by the experiences of Australia and other countries.

D. Prohibition of Rational Discrimination and the Disparate Impact on the Legitimacy of Reasonable Accommodation

The provision of reasonable accommodation remains controversial in the United States because the distinctive nature of accommodation often collides with traditional and formal views of equality.[173] Other equality theories addressed in law, such as disparate impact, or the prohibition against even rational discrimination, also impact views on the legitimacy of reasonable accommodation in three ways.

First, reasonable accommodation often is not viewed as legitimate unless the rights and coverage of reasonable accommodation are identical to traditional formal equality. In the United States, which developed early theories of disability discrimination law and reasonable accommodation, scholars debate whether reasonable accommodation is inherently inequitable as it provides for preferential treatment.[174] Commentators argue that the accommodation requirement is not the kind of antidiscrimination provision typically provided for by Title VII of the Civil Rights Act.[175] U.S. antidiscrimination policy is seen by some as limited by applying the “similarly situated” test, and therefore reasonable accommodation is portrayed as an “unfairly” preferential treatment or windfall.[176] As a result, it is understandable for some courts to have melded the concept of the Title VII disparate treatment into the analysis of reasonable accommodation. This position exposes a possible vulnerability of the theoretical foundation of reasonable accommodation for purposes of our analysis here.

Second, accommodation is seen as legitimate only as far as a legislature promulgates its reasonableness. For example, the ADA promulgates reasonable accommodation as a statutory mandate with limits.[177] This statutory mandate legitimates the obligation and prevents reasonable accommodation from being directly connected to other equality theories. The ADA recognizes independent legal causes of action as the following: failure to reasonably accommodate, disparate impact, disparate treatment, and discrimination on the basis of association.[178] This means that failure to accommodate may be a separate legal cause of action, independent of a disparate impact or treatment claim. As such, under the ADA reasonable accommodation requires distinctive burdens of proof, such as undue hardship, reasonableness, and use of the interactive process, independent of the burdens of proof embodied in disparate impact and treatment theories of discrimination.[179] Thus, on its face, the ADA promulgates reasonable accommodation in disability antidiscrimination law as a legitimate obligation, while limiting the relevance of reasonable obligation to other equality theories.

Third, reasonable accommodation is legitimate insofar as its purposes and means are identical to those of the antidiscrimination law and policy provided in Title VII.[180] This position clarifies that antidiscrimination and reasonable accommodation are drawn from the same roots. For example, Professor Bagenstos describes how antidiscrimination premised on Title VII and accommodation cannot be distinguished on the grounds of their purposes and means.[181] The legitimacy of reasonable accommodation, therefore, comes from harnessing it to antidiscrimination law.

The second and third positions on reasonable accommodation’s source of legitimacy spontaneously, unconsciously, or impliedly depend upon the firm foundation of equality theories in law. The United States has utilized these theories, disparate impact and treatment, and prohibition on rational discrimination, for decades.[182] If the Japanese legal system were prepared to use similar equality theories, they would be suggestive, but reasonable accommodation may not be legitimated in Japan without them for three reasons.

First, formal equality theory does not always account for reasonable accommodation. Formal equality utilizes the “similarly situated” test, and obliges employers to treat equally persons who are in reasonably or rationally the same categorization, and to treat equally those under the same fair and competitive conditions.[183] Meanwhile, reasonable accommodation obliges employers to treat employees “differently” based on reasonable and rational categorizations.[184] Therefore, formal equality, as the sole source for Japanese antidiscrimination policy, may not easily accept the concept of reasonable accommodation.

Second, reasonable accommodation is necessarily premised on the concept of disparate impact. Reasonable accommodation requires employers to treat employees with disabilities differently from other employees as conditions dictate.[185] The reasoning behind special treatment for employees with disabilities is due to the fact that employers with neutral employment conditions or requirements unintentionally have a negative impact on these employees.[186] Without the disparate impact of reasonable accommodation, a neutral employment term and condition will in fact disparately impact an employee with a disability, even though the employer’s intentions are without animus or prejudice. Therefore, without the theory of disparate impact, in Japan it would be difficult to find a basis upon which to argue that employers should provide reasonable accommodation for persons with disabilities.

Third, reasonable accommodation is not functional without the prohibition of rational discrimination, which allows for a rational management or employment policy, standard, or criterion, even though it has a negative impact on employees with disabilities.[187] If an employer can argue the rationality of such a practice, then the employer is unlikely to have to employ persons with disabilities.[188] Some argue that employing those with disabilities may impose more costs or consideration, and lower productivity of employees with disabilities and thus cause lower return on interests, though empirical research by Professor Blanck and others do not support this contention.[189] Prohibition of an employer’s authority and discretion to rationally discriminate, however, may be seen in Japan as legitimate, to a certain extent, to implement equality for the purposes of social justice and social inclusion.[190]

The Japanese legal system has not developed a clear model for equality theories of reasonable accommodation, as seen in the Japanese gender discrimination law.[191] First, the legal system shows a propensity towards a formal equality approach. Second, it puts importance on the authority and discretion of management in judging whether the categorization based on formal equality is reasonable or rational.[192] Third, the law does not require discriminatory intent in proving intentional discrimination.[193] Instead the law requires differential treatment resulting in substantial disadvantages.[194] Fourth, the law seems to deny the prohibition of unintentional discrimination altogether.

Thus, the law and theory behind prevention of gender discrimination lack certain fundamental prerequisites that may be applied to future Japanese disability law and policy. Furthermore, Japanese courts have not acknowledged unintentional discrimination;[195] therefore, a new Japanese disability discrimination law may not retain the concept of disparate impact.[196] The law also may fail to include a prohibition on rational discrimination because Japanese courts do not presently recognize disparate treatment based on an employer’s strategic or management reasons to be discriminatory.[197] Therefore, the Japanese equality law takes the formal equality approach and lacks the U.S. concepts of disparate impact and rational discrimination.

If the parameters of the equality law above apply to the new disability discrimination law, reasonable accommodation for persons with disabilities may be limited to a narrow path. The new disability discrimination law in Japan, therefore, must establish a basis of prohibition on rational discrimination and allow disparate impact for reasonable accommodation.

E. Normative Basis of Prohibition on Rational Discrimination and Disparate Impact for Reasonable Accommodation

Japanese disability law also will need to have a legal basis for the duty of reasonable accommodation for persons with disabilities, which derives not from a paternalistic or employment law tradition, but from equal protection or a civil rights perspective. This part explores the normative basis for reasonable accommodation. The discussion requires deciding whether an employer should be legally responsible for rational discrimination and disparate impact—in other words, whether the prohibition on rational discrimination and disparate impact is dependent upon an employer’s being morally wrong.

With respect to this question, a Japanese employer does not have to be responsible for rational discrimination and disparate impact. An employer’s responsibility for intentional discrimination stems from the moral wrong in discriminating against a person with some characteristics, such as disability. If an employer treats the person with a disability unfairly or unequally out of animus, the employer should bear responsibility for that individual fault. The exclusion of persons with disabilities from employment opportunities on the basis of animus, rather than on appropriate basis, such as productivity, is morally wrong.

If the remedy for discrimination is costly to an employer, the imposed costs may be viewed as compensation for that wrong. Meanwhile, an employer’s responsibility for unintentional or rational discrimination does not derive from a sense of moral wrong as long as an employment term or condition, or its application, is purely rational or unintentional. Therefore, evaluating an employer’s responsibility for the harm or disadvantage stemming from rational discrimination or disparate impact is complicated.

When an employer is responsible for the harm to and disadvantage of an employee based on rational discrimination or disparate impact, but it is not the result of a moral wrong, a normative analysis of the reasonable accommodation requirement corresponding to a prohibition on rational discrimination or disparate impact is essential. An employer may have an economic reason to make accommodation for persons with disabilities. The obligations must begin with a generalized and theoretical concept of profit-maximization.

The employer that pursues the maximization of profit is by definition following a legitimate and moral course within the business world. However, this does not mean that an employer is completely free to act. Instead, the Japanese employer is still bound by a sense of moral responsibility.

First, the employer’s sense of moral responsibility creates an obligation to pursue maximum profit through participation in a fair, safe, and competitive employment market, with a provision of equal employment opportunities for all, and with fair and equal employment terms and conditions. Second, the Japanese concept of moral responsibility requires employers to develop human capital and to exploit an employee’s capability and productivity to its maximum. Third, the employer’s sense of moral responsibility requires employers to use an employee’s labor in the most practical and effective way possible. Finally, it requires employers to maximize an employee’s interests, insofar as they are not contrary to the employer’s interests. Moreover, the employer is required to invest in all employees and applicants to implement the profit-maximization.[198]

The employer’s moral responsibility with respect to profit-maximization requires employers to take action regarding particular employees or applicants who may be unfairly treated, and to bear a certain amount of associated cost to accomplish fairness and equality. An employer must bear moral obligations ahead of his or her own interests to avoid participating in the system of subordination in a diverse society.[199] Antidiscrimination law strengthens and clarifies this duty for socially salient groups.

An employer bears not only the responsibility for his individual failure, but also for the cost of contribution and enhancement of the shared values of the moral obligations of Japanese society. Therefore, the cost paid would be fair distribution and redistribution. This conceptual model of the employer’s moral responsibility applies for all employees and applicants, though does not always fit reality or guarantee a maximum profit. However, an employer conceptually or theoretically bears such obligations in the state of nature.

In sum, the view of the Committee[200] commissioned by the MHLW is that the new Japanese disability discrimination law must, at least in part, have a normative basis to legitimate reasonable accommodation, and at the same time adopt concepts of disparate impact and prohibition on rational discrimination.

F. Concept of Disability

In this part, we explore the definition of “disability” for purposes of Japanese law.[201] The view of the authors is that Japanese disability antidiscrimination law should cover a wide range of persons with disabilities.[202] Professor Nakagawa, in reporting to the Japanese government, has recommended the three-prong approach as set out in the ADA—actual disability, a record of disability, and regarded as having a disability. The ADA Amendments Act of 2008 (ADAAA) broadened this definitional approach.[203]

As mentioned, the Japanese quota and disability pension systems are based on the medical model of disability.[204] These systems delineate actual or plausible impairment from non- or less impairment. Second, they estimate whether an impairment becomes a mental or physical disability in terms of malfunction, malformation, or disfigurement.[205] These methods may be suited to qualification for public pension or quota system because they take a seemingly consistent approach and are cost efficient.[206] But are these systems useful to inform the new Japanese disability antidiscrimination law? We believe the answer is no, and therefore we must delineate the definitions and qualifications the new law may use.

One feature of the definitions of disability under the antidiscrimination laws is that they not only cover a person with actual disability, but also cover individuals with no actual or present disability. In other words, they are concerned with disadvantage resulting from actual disability, previous and possible future disability, misunderstood disability imputed to a person, and discrimination against associates of people with disabilities. Discrimination, which disability discrimination laws should prohibit, thus stems not only from an employer’s animus, prejudice, stigma, bias, or sympathy for actual disability, but also from an employer’s misunderstandings that a person has an actual disability.

This suggests the present Japanese qualification standard, which qualifies actual and plausible impairment from non- or less impairment in medical terms, does not fit the concept of disability under the disability antidiscrimination laws. The new Japanese law may expand the definition to those who have disadvantages on the basis of actual, previous or future disability, as well as disability mistakenly imputed to a person.

G. Necessity of Substantiality of Limitation on Major Life Activities

Although the prong of actual disability under the ADA before the ADA Amendments Act of 2008 required that an impairment substantially limit one or more major life activities, courts interpreted the “substantiality of limitation” requirement with a narrow definition of disability.[207] The ADAAA, however, returned the definition to a broad view of the concept of disability.[208] The Japanese concept of disability under the new discrimination law should adopt the same approach as the ADAAA.

This part attempts to clarify why the new Japanese disability discrimination law may adopt the approach of the ADAAA from another perspective. First, the prohibition on discrimination because of animus applies to disadvantages resulting from employer dislikes, hostilities, or sympathies to an employee’s characteristics. In the case of discrimination based on animus, the object of an employer’s animus and the coverage of the animus to its impairment or limitation on working, and behavior both in the establishment and in the employee’s personal life, determines what the disability covers. Second, the prohibition on rational discrimination applies primarily to disadvantages resulting from an employer’s concerns in terms of cost. In the rational discrimination scenario, justification may be provided by an estimation of cost or cost-effectiveness (or lack of it) for employing a person with the impairment or the nature of its limitation on working.

It seems clear that what the disability discrimination law protects are unfair disadvantages resulting from an employer’s animus or unsubstantiated concerns about cost. Theoretically, the concept of disability for the purposes of antidiscrimination law, including actual, past, and “regarded as” disability, should be identical to those disabilities protected from disadvantages by an employers’ animus or concerns about cost. However, the substantial limitation of one or more major life activities prevents the concept from being identical to the disadvantages. After all, the substantiality of the limitation is not always related to animus. Also, it is not directly relevant to cost. Although an employer’s cost concerns are related to the employability or productivity of a worker with a disability, and the expense of the accommodation, the substantiality of the limitation does not always relate to that concern.

The new Japanese disability law may limit the definition of the disability to an actual or previous impairment that limits working or activities regarding working to a certain extent, consistent with the ADAAA. However, the law may also define disability as an actual, previous, or “regarded as” impairment that incites an employer’s animus, hostility, sympathy, or negative attitude, in the field of employment.

H. Reasonableness and Undue Hardship for Accommodation

The ADA requires employers to make reasonable accommodations short of those presenting an undue hardship.[209] Presumably, employers take into account the “reasonableness” of accommodation and its undue hardship. Nonetheless, “reasonableness” has been given many meanings under the Rehabilitation Act and the ADA: (1) as a procedural requirement between employer and employee;[210] (2) as a requirement that an employer provide reasonable accommodations to enable an employee with a disability to perform the essential functions of the position;[211] (3) as requiring effective accommodation of an employee with a disability;[212] (4) as a requirement that the employee carries the burden of proof to establishing a prima facie case;[213] and (5) as a general requirement for the appropriate accommodation of an employee with a disability, including requiring the employer to accept the burden of undue hardship.[214]

The ADA and the EEOC analyze undue hardship by considering factors such as the overall financial resources and the type of operations of the business, and the nature and cost of the accommodation.[215] If an accommodation requires an employer to deviate from a bona fide seniority system, for instance, the court will find that the employer has suffered an undue hardship.[216]

Undue hardship is sometimes understood as the flipside of reasonableness. The result is a complicated discussion; whether reasonableness and undue hardship are homogeneous or heterogeneous in nature, or whether reasonableness includes undue hardship or vice versa. This discussion existed before the advent of the ADA,[217] and the U.S. Supreme Court addressed this issue in U.S. Airways, Inc. v. Barnett.[218]

However, there is no reason necessarily that Japan should anticipate such a complex relation between the requirements of reasonableness and undue hardship. The UK, for example, requires “reasonableness” in the Equality Act 2010 without any mention of undue hardship.[219] Meanwhile, the Supreme Court of Canada uses the words “undue hardship” as a general requirement.[220] Both Canada and the UK, however, include factors to be considered such as reasonableness and undue hardship, which the ADA regulations require.[221] The new Japanese disability discrimination law may not need to use this terminology, but may still consider one term to encompass all of the factors to be considered, and the other to clarify the detailed guidelines of the provisions.

Regarding undue hardship, the history of the ADA reveals that in the late 1980s and the early 1990s U.S. employers were concerned the enactment of the ADA might impose upon them excessive accommodation costs.[222] If a Japanese employer initially understood the limitation of undue hardship on the duty to accommodate, negative fear may be lessened and corporate attitudes may be more supportive, flexible, cooperative, and constructive for new relationships with persons with disabilities. In fact, the Japanese employers should take note that empirical studies have shown that the average cost of reasonable accommodation to employers is less than $500.[223]

The factors that determine an employer’s duty to accommodate employees with disabilities are similar between the United States and Japan. In Japan, an employer’s duty to accommodate under an employment contract requires courts to take into account the overall size and type of the business; the practicality of assigning the employee with a disability to a position; the possibility of transferring and reassigning the employee; the qualification, productivity, and capability of the employee needing a transfer or reassignment; and the frequency of transfer and reassignment of other employees.[224]

Even though Japanese courts rarely evaluate the morale of other employees as a part of such accommodation considerations,[225] these requirements reflect the difficulty of dismissal. Therefore, the accommodations and associated costs an employer may consider in Japan are for the protection of employees with disabilities from dismissal and certain workplace risks. Meanwhile the ADA and Rehabilitation Act require accommodations to better protect against the discrimination of persons with disabilities, from a civil rights perspective.

The different aims, therefore, may result in different consideration of the factors. The Rehabilitation Act and the ADA, for example, stop short of requiring employers to hire another person capable of performing all the elements of the job of an employee with a disability as a reasonable accommodation.[226] On the other hand, the Japanese duty of accommodation fails to even include partial hiring of another person to help or support the disabled employee.[227] This might show that the reasonableness and undue hardship requirements under the ADA guarantee the rights of persons with disabilities in employment more expansively than the Japanese duty under employment contract.

I. Interactive Process

In addition to the substantive element of reasonable accommodation, the Japanese law should require the procedural element of reasonable accommodation for persons with disabilities between employer and employee.[228] The procedural element plays an important role. Disputes regarding discrimination against a person with a disability may voluntarily be resolved through a certain established process. If employers, employees with disabilities, and trade unions are familiar with the procedure, the resolution of the dispute may be more immediate, effective, and affordable. The fulfillment of the procedural element by the employer may also contribute to effective risk management practices.

Moreover, the procedural element contributes to a better overall corporate culture. An empirical study shows that where corporate culture is responsive to the needs of all employees, it is especially beneficial to employees with disabilities, there is no significant difference in job satisfaction, company loyalty, willingness to work hard, and turnover intention between employees with and without disabilities.[229] An effective interactive process promotes fairness and responsiveness and creates good company climate and culture.[230]

In Japan, there seems to be minimal foundation for mutually obliging the employer and employee to search for a common resolution. First, no discrimination law imposes such a duty on both parties.[231] Second, the dispute resolution systems inside companies typically do not function well.[232]

An empirical study clarifies that in larger companies there are formal dispute resolution systems, such as grievance committees and consultation windows.[233] However, it is rare that an employee would visit a consultation window to settle individual employment disputes. In almost eighty percent of Japanese companies, a company’s employees make fewer than nine complaints to their consultation window annually.[234] Meanwhile, employees prefer privately talking and consulting about their grievances and complaints with their superiors, supervisors and bosses.[235] However, half of the superiors, supervisors, and bosses feel that they are not sure whether they can settle and handle the employees’ grievances and complaints.[236]

Moreover, it is rare that a company takes up the employees’ grievances or settles them.[237] Therefore, the new Japanese disability discrimination law needs to promulgate a clear and culturally acceptable interactive process.[238] Second, a new law should require companies to prepare an environment that is accessible to employees for consultation and to build dispute resolution systems to allow companies to take up and settle grievances and complaints.

J. Alternative Dispute Resolution in Japanese Disability Antidiscrimination Law

In Japan, there is a special judicial procedure called a “labor tribunal system” aimed at the immediate and cost effective resolution of employment disputes. It resolves disputes similar to the ordinary court system.[239] It is authoritative and does not focus on satisfaction of the parties.[240]

Although a member of the Committee of the Ministry of Health, Labor, and Welfare understands that development of the quasi-judicial system leads to better resolution, the experience of the United States has made it well known that the judicial or quasi-judicial dispute resolution system does not always provide satisfactory settlements in many cases. Satisfactory settlement is crucial in these kinds of disputes in Japan.[241] In this regard, the Japanese EEOL has provided since 2006 that the Office of Employment Opportunity or mediation board of Prefectural Department of the MHLW mediates disputes regarding violations of the Act.[242]

The new Japanese disability antidiscrimination law should provide an alternative dispute resolution (ADR) system in disability discrimination cases. There may be two kinds of ADR. One is to provide a commission to accept, investigate, and resolve complaints, similar to the EEOC.[243] This system may contribute to more fair, immediate, effective, and affordable resolutions of disputes. The other is to provide mediation, such as by the Key Bridge Foundation, sponsored by the U.S. Department of Justice. In addition to the alternative dispute resolution system annexed to the commission, companies would be able to hire mediators or conciliators.

There is uncertainty whether these ADR systems will fit and function well in Japan. As mentioned, Japanese workers, according to one survey, tend to consult with superiors, supervisors, and bosses about their individual employment disputes, but they do not make complaints against their employers outside the company.[244]

Moreover, presently there are fewer trained mediators or conciliators in Japan.[245] However, Japanese employees increasingly are searching for other agencies or institutes to resolve their disputes.[246] Moreover, it would be desirable for a company itself to settle its employees’ disputes. To do so, we need to know how the Japanese company responds to disputes from persons with disabilities, especially how the corporate environment and culture impact the employment of workers with disabilities.

K. The Japanese Quota System and Disability Discrimination Law

Some scholars express concern about the future availability of the current Japanese quota system.[247] If the Japanese government introduces a prohibition on disability discrimination and the duty of reasonable accommodation, it may subsequently repeal the present quota system.[248] Can the prohibition on disability discrimination, especially the duty of reasonable accommodation, coexist with the quota system in Japan? In the UK, the government abolished their quota system after enacting the Disability Discrimination Act.[249]

The two systems may coexist, at least initially during a transition period.[250] The two likely will cover employees with different impairments, although some cases will overlap. Disability antidiscrimination law covers a broader range of employees with disabilities because the coverage under the ADA is not limited to individuals with actual impairment. Recall, it also applies to those “regarded as” having disabilities.[251] On the other hand, reasonable accommodation requires individuals with actual or past disabilities to satisfy a qualification standard. Reasonable accommodation mainly targets those with disabilities who are qualified and productive, that is, “qualified individuals.”[252]

German and Japanese experiences show the coverage of persons with disabilities under the quota system is typically for those who have more profound or severe impairments regardless of whether they are qualified or productive.[253] Furthermore, the aims of reasonable accommodation and the quota system differ. Reasonable accommodation plays a role in making applicants or employees with disabilities equally competitive for the currently available seats in the establishment. The quota system provides for new seats within the establishment.[254]

Reasonable accommodation may complement and improve the employment situation of persons with severe impairments hired under the quota system. The ADA does not require employers to accommodate persons with disabilities who are not qualified and less productive even with accommodation.[255] However, those with more profound or severe impairments ordinarily need accommodation to perform a job.

If reasonable accommodation is applicable to those who have more profound or severe impairments, it may supplement the Japanese quota system for the employment of persons with disabilities. If reasonable accommodation helps and improves the capability of such persons with profound or severe disabilities, it may increase and improve their chances to obtain and maintain employment. The new disability antidiscrimination law should have a qualification standard that applies reasonable accommodations based on the relationship between the potential capability, or productivity, of an individual employee, and the job the employee performs in the designated position.

L. Enforcement: Soft Law or Hard Law?

Another issue concerns the enforceability of a new Japanese law. Even if the Japanese government provides a new antidiscrimination law for persons with disabilities, the new law will not necessarily be enforceable against private entities. The traditional Japanese political enforcement of “soft law” may prevent persons with disabilities from having a private right of action or effective remedies.[256]

The soft law model has been developed in international law. It is applied to labor law in Europe and is available in Japan as well.[257] The soft law model means the law is not proscriptive, rather, it only provides norms and codes of behavior.[258] Likewise, Japan has a tradition of providing only the “duty to endeavor.”[259]

For example, when the Japanese government enacted the EPAPD in 1960, it followed the 1955 International Labour Organization (ILO) recommendation, and provided the current quota system. The law impliedly obliged an employer to hire a certain percentage of persons with physical disabilities.[260] Even if an employer did not fulfill the mandatory percentages, no one could file a complaint against the employer. The purpose of soft law is to change people’s norms and actions.[261]

Soft law is a politically compromised rule, used when a law’s impact on the society, especially on companies, may be too large. Nevertheless, although the Japanese soft law is not enforceable, employers cannot help but follow the norm. Regarding the EPAPD, the Ministry of Labor at that time obliged employers who could not fulfill the minimum percentages to submit a written plan to hire persons with physical disabilities by 1969, with the Ministry publicly announcing the names of such companies in 1974.[262] Once employers establish the drive to hire persons with disabilities, the soft law becomes a legally enforceable law. The 1976 Amendment to the EPAPD finally obliged employers to pay fines for failing to meet the quotas.

Another example of Japanese “soft law” is the EEOL. Before the Japanese government enacted the EEOL, women experienced discrimination in employment and education.[263] The Ministry of Labor attempted to make an enforceable antidiscrimination law, but employers and trade unions objected because of the massive impact on employment practices.[264] Ultimately, they compromised on a soft law.

The EEOL of 1985 prohibited discrimination regarding job training, fringe benefits, and termination of employment on the basis of gender.[265] The law required employers to endeavor to treat women equally with men in terms of recruitment, hiring, assignment, and promotion, but it did not grant them a private cause of action on those reasons.[266] In 1997, the EEOL was amended to require that employers not discriminate regarding recruitment, hiring, assignment, and promotion on the grounds of gender.[267] These examples suggest the same outcomes may occur in the area of discrimination against persons with disabilities. If the new antidiscrimination law for persons with disabilities becomes a soft law, it may take a generation to evolve toward a legally enforceable “hard” law.[268]

IV. CONCLUSION

The Japanese Committee’s interim report, announced by the Task Force for the General Reform of Disability Law and Policy, established that the government will create a new disability antidiscrimination law by 2013. The new law is important not only for ratification of the CRPD, but also because of the estimated impact on the Japanese society and culture.

Ratification of the CRPD in Japan, and the advent of a new disability antidiscrimination law, likely will have a positive impact on the present employment policy for persons with disabilities. The new law may neither be premised on the present laws and theories, such as the prohibition on unintentional or rational discrimination, nor on their alternatives for adapting reasonable accommodation. Therefore, there are uncertainties for the future of Japanese disability antidiscrimination employment law. The duty of accommodation for persons with disabilities under the theory of employment contract covers limited employees with disabilities, such as those with a contract without a fixed duty and duration. Meanwhile, equality theories regarding gender discrimination only focus on formal equality.

The Japanese Committee made recommendations for embodying or realizing an idea of disability antidiscrimination law and reasonable accommodation. One of the crucial points made by the committee is that disability antidiscrimination law should not only be a judicial norm; the law should also promote conversation about the interactive process inside a company, motivating employers to revise corporate culture and personnel systems, and leading to more productive, cost effective, immediate, and satisfactory resolutions. The new law also can serve to reduce friction in Japan in the traditional relationship between employees with disabilities and employers, and be a model positive approach for all.[269]

1 . Professor, Department of Social Policy, Faculty of Social Welfare, Hokusei Gakuen University; LL.B., Faculty of Law, Chukyo University, LL.M.; Ph.D. coursework in Law, Graduate School of Law, Aichi Gakuin University; and LL.M. Diploma, Institute for Comparative Law, Faculty of Law, McGill University. This research is funded by 2010–2012 Grant-in-Aid for Scientific Research (A), by Japan Society for the Promotion of Science and Japan Minister of Education, Culture, Sports, Science and Technology for “Disability Law: Possibility of Disability Legal Studies.”

2 . University Professor & Chairman, Burton Blatt Institute (BBI), Syracuse University; Ph.D. Psychology, Harvard University; and J.D., Stanford Law School. The program of research described herein is supported in part by grants from: (a) The National Institute on Disability and Rehabilitation Research (NIDRR), U.S. Department of Education, for (i) “The Asset Accumulation and Economic Self-Sufficiency Project,” Grant No. H133A090014, (ii) “Demand Side Employment Placement Models,” Grant No. H133A060033, (iii) “Southeast Disability & Business Technical Assistance Center,” Grant No. H133A060094, and (iv) “Center on Effective Delivery of Rehabilitation Technology by Vocational Rehabilitation Agencies,” Grant No. H133A090004; (b) The Rehabilitation Services Administration (RSA) for “Technical Assistance and Continuing Education (TACE) Center Region IV (Southeast TACE),” Grant No. H264A080021; and (c) the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services for “New York’s Comprehensive Medicaid Infrastructure Grant (MIG),” Grant #1QACMS030318.

3 . Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. A/61/611 (Dec. 13, 2006) [hereinafter CRPD].

4 . CRPD, supra note 3, art. 4.

5 . See generally Cabinet Office, Government of Japan, Heisei 20 Nendo Shougaisha no Shakaisanka Suishin Nado Ni Kansuru Kokusaihikaku Chousa [The 2008–2009 Report to the Japan National Cabinet Office: Comparative Study Regarding Social Inclusion and Participation of Persons with Disabilities], 2009, http://www8.cao.go.jp/shougai/suishin/tyosa/h20kokusai/pdf/ all/1gaiyo.pdf [hereinafter 2008–2009 Report] (providing a comparative study of disability discrimination laws and guidelines, especially the duty of reasonable accommodation for persons with disability in employment and education).

6 . CRPD, supra note 3, art. 7.

7 . Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213 (2010) [hereinafter ADA].

8 . See Katharina Heyer, From Special Needs to Equal Rights: Japanese Disability Law, 1 Asian-Pac. L. & Pol’y J. 1, 2–3 (2000).

9 . Japan Org. for Emp’t of the Elderly and Persons with Disabilities [JEED], Employment Guide for Employers and Persons with Disabilities: Supporting Employment of Persons with Disabilities 1 (2009), available at http://www.jeed.or.jp/ english/download/reference01.pdf [hereinafter JEED 1].

10 . See, e.g., Heyer, supra note 8, at 5–7.

11 . See, e.g., id. at 7.

12 . Id.

13 . Tsutomu Ohtani, Nihon Ni Okeru Syougaisya Kenri Hou No Yoake [The Daybreak of Disability Rights Law in Japan], 93 Q. Fukushi Rodo 29, 32–33 (2000) (Japan).

14 . Fundamental Act on Policy and Measure for Persons with Physical Disabilities and Mental Retardation, Law No. 84 of 1970 (Japan) [hereinafter Fundamental Law No. 84], available at http://www8.cao.go.jp/shougai/english/law/no84.html#03.

15 . The 1993 Amendment Act of Fundamental Act on Policy and Measure for Persons with Physical Disabilities and Mental Retardation of 1970, Law No. 94 of 1993 (Japan) [hereinafter Law No. 94]; see generally Fundamental Law No. 84, supra note 14.

16 . See generally Fundamental Law No. 84, supra note 14 (enumerating antidiscrimination laws for persons with disabilities in Japan based on the “protection” model); see also Larry Logue & Peter Blanck, Race, Ethnicity, and Disability: Veterans and Benefits in Post-Civil War America 1–2 (2010) (discussing the protective medical model versus the civil rights paradigm in the ADA).

17 . Heyer, supra note 8, at 9–12.

18 . See Toshihiro Higashi, Sabetsu Kinshi Hou No Seitei No Hitsuyousei [Necessity of Disability Discrimination Law in Japan], 93 Q. Fukushi Rodo 12, 19 (2000) (Japan).

19 . See generally Office of the High Comm’r for Human Rights (OHCHR), The Human Rights Report for Conveying the Real Condition in Japan 18–19 (2008), available at http://www2.ohchr.org/english/bodies/hrc/docs/ngos/JWCHR_Japan92.doc.

20 . Id.

21 . See Disability Discrimination Act (Limitation of Disabled Persons Fundamental), Japan Nat’l Assembly of Disabled Persons Int’l, http://web.archive.org/web/20081006214859/ http://www.dpi-japan.org/3issues/3-2dis/01.htm (accessed via the Internet Archive index) (last visited Oct. 15, 2011) [hereinafter DPI Japan] (editorializing on the 1993 FAPD, including pointing out how it was influential in the drafting of the 2003 FAPD).

22 . Id.

23 . Ohtani, supra note 13, at 31–32.

24 . See, e.g., Heyer, supra note 8, at 19–21.

25 . Fundamental Law No. 84, supra note 14; see also Conference Report, Japan National Assembly of Disabled Peoples’ International, Motion re: Revising the Fundamental Law (2003.5 to 2003.7) [hereinafter DPI Japan Motion].

26 . Fundamental Law No. 84, supra note 14, § 3.

27 . 311 Hanrei Chihou-jiti 81 [Nagoya Dist. Ct.] Mar. 26, 2008, (Japan) (alleging that the abolition of home-help service sponsored by the city violated sections 25 (the right to live) and 13 (the right to life, liberty and the pursuit of happiness) of the Japanese Constitution).

28 . Id. at 84.

29 . See Heyer, supra note 8, at 4–6.

30 . Equal Employment Opportunity Law of 1985 (the 1985 Amendment of Act on Women’s Welfare in Employment (Law No. 113, July 1st, 1972), (Law No. 45, 1985)); Amendment Act of Equal Employment Opportunity Law of 1985 (Law No. 92, 1997), available at http://www.ilo.org/dyn/natlex/ docs/WEBTEXT/48529/65098/E99JPN01.htm.

31 . See Heyer, supra note 8, at 1–2.

32 . Chapter 2: Welfare Services for Persons with Physical Disabilities, Japan Int’l Cooperation Agency Friends, § 2(1)(1), http://www.jicafriends.jp/world/japan/chapter/ chapter2.html (last visited Oct. 15, 2011) [hereinafter Welfare Services].

33 . Id.

34 . See generally The Physically Disabled Persons’ Welfare Act, Law No. 283 of 1949 (Japan). The Welfare Act has been incorporated into Services and Supports for Persons with Disabilities Act since 2005. See generally Services and Supports for Persons with Disabilities Act, infra note 40.

35 . Table 2: List of Grades of Physical Disability, Japan Int’l Cooperation Agency Friends, http://www.jicafriends.jp/vocational/gi2005/material/resume/terashima/t_table2.html (last visited Oct. 15, 2011) [hereinafter List of Grades].

36 . Basics of Systems for Persons with Disabilities in Japan, Japan Int’l Cooperation Agency Friends, § (C)(1), http://www.jicafriends.jp/vocational/gi2005/material/resume/basics_ system.html (last visited Oct. 15, 2011) [hereinafter Basics of Systems].

37 . List of Grades, supra note 35.

38 . Welfare Services, supra note 32, § 2(1)(2).

39 . Cf. id. (certification is only provided to those on the list, which does not contain hepatic diseases).

40 . Services and Supports for Persons with Disabilities Act, Act No. 123 of 2005, art. 4(1) (Japan), http://www.japaneselawtranslation.go.jp/law/detail/?printID=&ft=2&re=02&dn=1&yo= services+and+supports&x=0&y=0&ky=&page=1&vm=02 [hereinafter Disabilities Act].

41 . See Welfare Services, supra note 32 (explaining that the FAPD is the governing law in this area); see also Basics of Systems, supra note 36 (explaining how those with physical disabilities obtain protections); Welfare Services for Persons with Intellectual Disabilities, http://www.jicafriends.jp/world/japan/chapter/chapter4.html (last visited Oct. 15, 2011) (explaining how those with intellectual disabilities obtain protections); Welfare Services for Persons with Psychiatric Disabilities, Japan Int’l Cooperation Agency Friends, http://www.jicafriends.jp/world/japan/chapter/chapter5.html (last visited Oct. 15, 2011) (explaining how those with mental/psychological disabilities obtain protections).

42 . Japan Org. for Emp’t of the Elderly and Persons with Disabilities [JEED], Employment Guide for Employers and Persons with Disabilities: Supporting Employment of Persons with Disabilities 8–10 (2009), available at http://www.jeed.or.jp/ english/download/reference02.pdf (explaining who qualifies under the EPAPD and describing the vocational rehabilitation available under EPAPD) [hereinafter JEED 2].

43 . Disabilities Act, supra note 40, art. 5(1).

44 . See id. art. 5 (enumerating all the support provided, which does not include social rehabilitation of any kind).

45 . See, e.g., id. art. 5(8)–(9).

46 . The Japanese Medicare system is based on the concept of social insurance. The system provides access to medical services to all Japanese people, except those people and their dependent family members who do not pay the premiums. See T.R. Reid, Japanese Pay Less for More Health Care, Nat’l Pub. Radio (Apr. 14, 2008), http://www.npr.org/templates/story/story. php?storyId=89626309.

47 . Hiroe Yoda, Shogaisha sabetsu no shakaigaku: jenda, kazoku, kokka [The Sociology of Discrimination Against People with Disabilities; Gender, Family and State] 203–08 (1999).

48 . See generally id.

49 . Cf. generally Disabilities Act, supra note 40 (enumerating all of the services provided by and required of the municipality and the state, including employment services, but saying nothing about limitations on employment discrimination).

50 . Masako Okuhira, Better Employment Prospects for Disabled Japanese?, Disability Info. Res. (2001), http://www.dinf.ne.jp/doc/english/other/wz_employmentpro_e.html (last visited Oct. 15, 2011).

51 . Id.

52 . JEED 2, supra note 42, at 15.

53 . Id. Until June 30, 2010, the EPAPD imposed the levy on an employer with more than three hundred regular employees if the company’s hiring rate is below the quota. The present policy remains in a state of transition. Starting April 1, 2015, the EPAPD will require an employer with more than one hundred regular employees to pay the levy if it is below the quota. The levy decreases from fifty thousand yen to forty thousand yen during the transition periods. The transition period for an employer with more than two hundred employees and less than three hundred regular employees is from July 1, 2010, to March 31, 2015. The transition period for an employer with more than one hundred and less than two hundred regular employees is from April 1, 2015, to March 31, 2020. Id. at 17.

54 . Id. at 15.

55 . Id. at 10–11.

56 . Id.; “Short time workers with severe physical or severe intellectual disabilities” are defined as workers with a disability who work more than twenty hours and less than thirty hours. Id. at 10.

57 . JEED 2, supra note 42, at 15.

58 . See id. at 15–16.

59 . Id.

60 . Heyer, supra note 8, at 8.

61 . See Individual Labor Dispute Resolution Enforcement Status in 2008, Japanese Ministry of Health, Labour & Welfare (May 2009), http://www.mhlw.go.jp/houdou/2009/ 05/h0522-4.html (last visited Oct. 15, 2011). The average employment rate of those with disabilities in a company with more than one thousand employees is 1.83%. The rate that companies with more than one thousand employees hire people with disabilities is 49.2%. The hiring rate of workers with disabilities at companies with fifty-six to ninety-nine and one hundred to 299 employees is 1.40% and 1.35%, respectively.

62 . See generally Law No. 84, supra note 14.

63 . Labor Standards Act, Act No. 91 of 1947 (Japan), available at http://www. japaneselawtranslation.go.jp/law/detail/?ft=2&re=02&dn=1&yo=&al[]=L&x=10&y=12&ky=&page=2 [hereinafter Labor Standards Act].

64 . See, e.g., Ryoko Sakuraba, Employment Equality Law in Japan: Human Rights or Employment Policy?, 6 Japan Inst. for Lab. Pol’y & Training Rep. 181, 198 (2008) (summarizing cases where the court has followed a doctrine of non-discrimination against the persons with disabilities).

65 . See Hiroki Kobayashi, Ten Questions on Japanese Employment Law, The Working World, June 2010, at 10, http://www.lw.com/upload/pubContent/_pdf/pub3590_1.pdf (last visited Oct. 15, 2011) (describing the situations in which courts find dismissal to be permissible, but not including temporary incompetence, or lacking productivity or qualifications); cf. Kazuo Sugeno, Japanese Labor Law 402 (Leo Kanowitz trans., 1992) (1985) (explaining that prolonged, not just temporary, loss of ability would be necessary to justify dismissal).

66 . See Kobayashi, supra note 65, at 11 (explaining that Japanese courts will only consider allowing dismissal of indefinite contract employees (“regular employees”) if the employer has made efforts to avoid dismissal).

67 . See Sugeno, supra note 65, at 402 (specifying that an employer can only dismiss an employee on “objectively reasonable grounds,” which are limited to prolonged incompetence, violation of disciplinary rule, or business necessity).

68 . Id. at 403.

69 . Id. (defining Shugyo-kisoku); see Miwako Ogawa, Noncompete Covenants in Japanese Employment Contracts: Recent Developments, 22 Hastings Int’l & Comp. L. Rev. 341, 343 (1999) (defining the role of “work rules”).

70 . Sugeno, supra note 65, at 402.

71 . See Kobayashi, supra note 65, at 11 (explaining that dismissal within the fixed period is allowed only for “unavoidable reasons”).

72 . See id. at 10–11.

73 . See id.

74 . See Kobayashi, supra note 65, at 10 (explaining that employers may dismiss employees with indefinite contracts, who are unable to perform their work); see, e.g., Sakuraba, supra note 64, at 198 (describing how the court permitted a dismissal where accommodating the employee with a disability was so time-consuming that it was beyond the employer’s duty of reasonable accommodation).

75 . Tōkyō Kōtō Saibansho [Tokyo App. Ct.] 2005, 890 Rōdō Hanrei 58 (Japan); see Sakuraba, supra note 64, at 198 (summarizing the case and the court’s holding).

76 . Regarding the fact finding of the case, see Yokohama Chihō Saibansho [Yokohama Dist. Ct.] 2004, 890 Rōdō Hanrei 63, 67 (Japan) [hereinafter City of Yokohama].

77 . Id. at 67–68.

78 . Id. at 68–69.

79 . Id. at 69.

80 . Id. at 70.

81 . Id.

82 . City of Yokohama, 890 Rōdō Hanrei at 66.

83 . Id. at 62–63.

84 . Id. at 63.

85 . Id. at 62–63.

86 . Id.

87 . Id. at 63.

88 . City of Yokohama, 890 Rōdō Hanrei at 63.

89 . Id.

90 . Compare empirical studies of accommodation in the U.S. finding minimal costs and high benefits, such as in Helen A. Schartz et al., Workplace Accommodations: Empirical Study of Current Employees, 75 Miss. L.J. 917, 943 (2006) [hereinafter Empirical Study of Current Employees] and Helen A. Schartz et al., Workplace Accommodations: Evidence Based Outcomes, 27 Work 345, 354 (2006) [hereinafter Evidence Based Outcomes].

91 . See generally Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] 2004, 876 Rōdō Hanrei 56 (Japan) [hereinafter Independent Administrative Institution].

92 . Id. at 62.

93 . Id.

94 . Id. at 63.

95 . Id.

96 . Id. at 64.

97 . Independent Administrative Institution, 876 Rōdō Hanrei at 64.

98 . Id. at 65.

99 . Id.

100 . Id.

101 . Id. at 65–66.

102 . Ōsaka Chihō Saibansho [Osaka Dist. Ct.] 1999, 771 Rōdō Hanrei 25 (Japan) [hereinafter JR Tokai].

103 . Id. at 26.

104 . Id. at 27.

105 . Id. at 28.

106 . Id.

107 . Id.

108 . JR Tokai, 771 Rōdō Hanrei at 29–30.

109 . Id. at 30.

110 . Id.

111 . Id. at 30–31.

112 . Id.

113 . Saikō Saibansho [Sup. Ct.] 1998, 736 Rōdō Hanrei 15 (Japan) [hereinafter Katayama-gumi].

114 . Tōkyō Kōtō Saibansho [Tokyo App. Ct.] 1995, 684 Rōdō Hanrei 92, 95–96 (Japan).

115 . Id. at 96.

116 . Id. at 97.

117 . Katayama-gumi, 736 R.H. at 17–18.

118 . See generally Ōsaka Chihō Saibansho [Osaka Dist. Ct.] 2008, 960 Rōdō Hanrei 49 (Japan) [hereinafter Canon].

119 . Id.

120 . Id. at 56–59.

121 . Id. at 61.

122 . Id.

123 . Id. at 60–61.

124 . Theories of legal restriction on dismissal have developed since the 1950s. Before World War II, the Japanese Civil Law of 1898, modeled from French and German Civil Laws, provided in section 627(1), “If the parties have not fixed the duration of the contract of hiring, either party may at any time give notice to terminate it, in which case it will terminate two weeks after such notice.” Therefore, either an employer or an employee could terminate an employment contract at any time they desired. Just after World War II and the enactment of the Labor Standards Act of 1947 (LSA), Japanese courts’ holdings regarding dismissal cases began to be based on the freedom of dismissal, similar to the employment-at-will doctrine in the United States. See Daniel H. Foote, Judicial Creation of Norms in Japanese Labor Law: Activism in the Service of Stability?, 43 UCLA L. Rev. 635, 647, 707 (1996). Japanese courts no longer required any reason for dismissal. See id. at 647. The courts changed the theories because of the increase of labor disputes and strikes, and developed the theory of “just cause,” or the theory of “abuse of employer’s right to dismissal,” in the 1950s and 1960s. See id. at 644–47. Although this brief history may make it seem that the development of the restriction on dismissal was relatively recent and based on the activation of the Japanese labor unions and their movements, this is not the case. Before World War II, most Japanese employers believed that employers and employees were family, or master and servant, and the employers, as parents, should be responsible for their employees, as their children. William M. Tsutsui, Rethinking the Paternalist Paradigm in Japanese Industrial Management, 26 Bus. & Econ. Hist. 561, 562–63 (1997). In fact, the employers provided the employees’ education, clothing, and food. Id. at 567. Employers even built apartments for their employees to live and sometimes created a life insurance plan inside of the company for their families. See id. This welfare program inside enterprises was not a right of employees but an act of benevolence from the employer. See id. at 568. Moreover, store-owners tended not to discharge their employees if they became regular employees (Tedai) after their early apprenticeship (Decchi). See Kando Maruyama & Namifumi Nanshi Imamura, Decchi Detchi Seido no Kenkyu [A Study of Apprenticeship in Kyoto] 19 (1998). When the Japanese government attempted to enact the Japanese Factory Act (Law No. 46, Mar. 29, 1911), following the United Kingdom’s Factory Acts, most of the employers opposed the legislation. As a result, the adoption of the Act was delayed for decades because the employers believed that the law lacked the virtue of the paternalistic relationship. See Fujiyoshi Sakamoto, Nihon Koyou Shi Gekan [The History of Japanese Employment II] 65 (1977). Therefore, while the legal restriction on dismissal is not a traditional legal concept, the restriction on dismissal prevailed throughout Japanese society as a product of tradition and culture. This nature has been lost, however. Recently, commentators have attempted to analyze the traditional theories and build a new theory based on the perspective of law and economics. For example, see generally Fumio Otake et al., Kaiko Housei Wo Kangaeru: Hougaku To keizaigaku No Shiten [Zouho-ban] [Reconsidering the Law of Dismissal: A View from Law and Economics] (2d ed. 2004).

125 . Ōsaka Chihō Saibansho [Osaka Dist. Ct.] 2009, 989 Rōdō Hanrei 70 (Japan) [hereinafter Kentoku]

126 . Id. at 78–79.

127 . Id. at 79.

128 . Id. at 78–79.

129 . Labor Standards Act, supra note 63, arts. 26 (sick leave), 32–38 (overwork).

130 . See generally id.

131 . The Japanese concept of the incidental obligation to consider employees’ health and safety is influenced by the German concept (see Legal Systems of the World, Civil Law Network, http://civillawnetwork.wordpress.com/2008/01/08/legal-systems-of-the-world/ (explaining that Japanese law is largely influenced by German law)), and in 1975 the Supreme Court of Japan imposed the incidental obligation on the Japanese self-defense force in the Japanese National Self-Defense case. See Saikō Saibansho [Sup. Ct.] 1975, 143 Saikō Saibansho minji hanreishū [Minshū] 29-2 (Japan). The concept has been developed both in court and by academics. Recently, the common view is that the responsibility of “incidental obligation” adherence to an employment contract is not different from that of tort liability in employment. Ryuichi Yamakawa, The Enactment of the Labor Contract Act: Its Significance and Future Issues, 6 Japan Lab. Rev. 4 (2009), available at http://www.jil.go.jp/english/JLR/ documents/2009/JLR22_all.pdf. However, the time to bring an action under tort is only three years. Sayuri Umeda, Law Library of Congress, Japan WWII POW and Forced Labor Compensation Cases 1, 9 (2008), available at http://www.loc.gov/law/help/japan-wwii-pow.pdf.

132 . See generally Industrial Safety and Health Act, Law No. 57 of 1972 http://www.ilo.org/ aids/legislation/lang--en/docName--WCMS_117327/index.htm (Japan) [hereinafter Law No. 57].

133 . Ikuko Mizushima, White-Collar Rodosya To Shiyousya No Kenko-hairyo-gimu [Health Care of White-Collar Employees and Employers’ Responsibilities], 492 Japanese J. of Lab. Stud. 25, 30 (2001) (Japan).

134 . “Karo-shi” originally means “death from overwork.” See Katsuo Nishiyama and Jeffrey V. Johnson, Karoshi—Death from Overwork: Occupational Health Consequences of the Japanese Production Management (Feb. 4, 1997), http://www.workhealth.org/whatsnew/lpkarosh .html. Under “Karo-shi,” physical or mental fatigue and stress caused by overwork, conflict with a supervisor or a colleague, and other work related factors worsen underlying diseases of employees and cause them to die. See id. The Japanese Ministry of Health, Labor and Welfare set standards to judge “Karo-shi.” See Kenji Iwasaki et al., Health Problems due to Long Working Hours in Japan: Working Hours, Workers’ Compensation (Karoshi), and Preventative Measures, 44 Indus. Health 537, 539 (2006) available at http://www.jniosh.go.jp/old/niih/en/ indu_hel/2006/pdf/indhealth_44_4_537.pdf. If an employee does work more than 100 hours in a month before death or averages more than 80 hours per month from two to six months before death, the death of the employee is admitted “Karo-shi” by the Labor Standard and Workers’ Compensation Board. See id. If the Board admits “Karo-shi,” it provides medical care and compensation for employees who are injured or for families whose members have died in the course of employment. See Labor Standards Act, supra note 63, arts. 75, 77–86. In addition, employees injured and families of employees who died in the course of employment can claim damages, which Workers’ Compensation does not cover even if they receive medical care or compensation from Workers’ Compensation. Id.

135 . Rodosha Saigai Hosho Hoken Ho [Workers’ Accident Compensation Insurance Law], Law No. 50 of 1947, art. 16-2 (Japan), available at http://www.jil.go.jp/english/laborinfo/library/ documents/llj_law12.pdf.

136 . Law No. 57, supra note 132, art. 66–5 (Japan). Employers should discharge the incidental obligation to consider employees’ health and safety regardless of whether or not an employee presents a disabling condition. In fact, employers must be responsible for the damage caused by their employees’ death from overwork, even if they do not present a disabling condition. Id.

137 . As such, accommodations in practice are limited in Japan. Empirical study is needed to document the prevalence and the type of accommodation actually practiced and as a function of disability type and severity. The survey should reveal what accommodations employees with disabilities require in particular situations, whether accommodation is available to the employees when they request it, what corporate culture influenced the employer’s decisions, and so on.

138 . Heyer, supra note 8, at 1.

139 . Law No. 57, supra note 132, art. 66–5.

140 . For a discussion and empirical study of workplace culture in the U.S., see generally Lisa Schur, Douglas Kruse, Joseph Blasi & Peter Blanck, Is Disability Disabling in All Workplaces? Workplace Disparities and Corporate Culture, 48(3) Indus. Rel. 381 (2009), available at http://bbi.syr.edu/publications/blanck_docs/2009/Disability_Workplace_Disparities_and%20 Corporate_Culture_06-04-09.pdf.

141 . Empirical Study of Current Employees, supra note 90, at 937–38 (“[A]pproximately half (49.1%) of the accommodations made had no cost. Almost three-quarters (74.8%) had a First Calendar Year Cost of $500 or less. Of the 115 that had a cost, the median First Calendar Year Cost was $500.”)

142 . See Sakuraba, Employment Discrimination Law in Japan: Human Rights or Employment Policy?, supra note 64, at 190–91.

143 . See id.

144 . Japanese legal scholars may not agree with emphasizing the paternalistic nature of Japanese employment contracts, since they have attempted to break away from the paternalistic theory.

145 . Convention and Optional Protocol Signatures and Ratifications, U.N. Enable (Oct. 15, 2011), http://www.un.org/disabilities/countries.asp?navid=12&pid=166.

146 . See Dignity for Disabled People, Japan Times, Feb. 14, 2007, http://search.japantimes.co.jp/cgi-bin/ed20070214a1.html.

147 . Id.

148 . Commentators describe the future of Japanese disability antidiscrimination law as premised on the ratification of the CRPD. For example, Fukushi Rodo Quarterly published a special issue on the ratification of CRPD and its impact on present and future disability law in Japan. See Masaya Asahi, Syogaisya Kenrijyoyaku Ka Ni Okeru Syogaisya Koyou No Kadai [Agenda of Employment for Persons with Disabilities under the CRPD], 121 Q. Fukushi Rodo 12 (2008); Tamako Hasegawa, America Ni Okeru Syogaisya Koyou No Jittai to 2008 Nen ADA Kaiseihou [Employment of Persons with Disabilities and ADAAA in the United States] 121 Q. Fukushi Rodo 32 (2008); Tomoko Hikuma, Syogai No Aru Hitobito, Kazoku, Shiensya Ni Kakawaru EU Kintouhou Seisaku To Kokuren No Shin-jyoyaku No Kousaku [Support for Persons with Disabilities, Their Family and Caregivers under the EU Equal Employment Policy and the CRPD] 121 Q. Fukushi Rodo 43 (2008); Hitomi Nagano, France No Syougaisya Koyou No Seisaku [Employment Practice and Policy for Persons with Disabilities in France] 121 Q. Fukushi Rodo 63 (2008); Jun Ashida, Italia No Syogaisya Koyou, Rodo Seisaku To Sono Jittai [Employment Practice and Policy for Persons with Disabilities in Italy] 121 Q. Fukushi Rodo 75 (2008); and Hiroshi Katouda, Sweden No Syougaisya Koyou: Rodo Seisaku No Jittai To Shin Sabestu-kinshi Hou [Employment of Persons with Disabilities in Sweden: Employment Policy and Prohibition on Discrimination] 121 Q. Fukushi Rodo 83 (2008).

149 . The members of the 2007 Committee created by the Ministry of Health, Labor and Welfare are Masahiko Iwamura (Professor, Law School, University of Tokyo) as the chair, Tamako Hasegawa (Researcher, Japan Society for the Promotion of Science), http://www.mhlw.go.jp/shingi/2008/04/s0402-4e.html, Hitomi Nagano (Ph.D. Candidate, Graduate School of Law and Politics, University of Tokyo), http://www.mhlw.go.jp/shingi/2008/ 04/dl/s0402-4f.pdf, Osamu Nagase (Associate Professor, Research Center for the Advanced Science and Technology, University of Tokyo), Ryosuke Ryo Matsui (Professor, Faculty of Social Policy & Administration, Hosei University), Chuji Sashida (Researcher, NIVR), http://www.mhlw.go.jp/shingi/2008/04/dl/s0402-4g.pdf. The initial brief was written in Japanese.

150 . See generally 2007–2008 Report to the Japan National Cabinet Office: Comparative Study Regarding Social Inclusion and Participation of Persons with Disabilities (Mar. 28, 2008). The Japan National Cabinet Office implemented this project itself, not in cooperation with any other researchers.

151 . Id.

152 . Id.

153 . Id.

154 . See generally 2008–2009 Report supra note 5.

155 . See 2009–2010 Report to the Japan National Cabinet Office: Comparative Study Regarding Social Inclusion and Participation of Persons with Disabilities (Cabinet Office of Gov’t of Japan ed., 2010), available at http://www8.cao.go.jp/shougai/suishin/ tyosa/h21kokusai/gaiyou.html.

156 . Id.

157 . Cabinet Office Taskforce for Reform of the System for Persons with Disabilities & Promotion Committee for Reform of the System for Persons with Disabilities, http://www8.cao. go.jp/shougai/suishin/kaikaku/kaikaku.html (last visited Oct. 15, 2011) [hereinafter Taskforce for Reform]; see also Ministry of Health, Labor and Welfare, Support for Community Life for People with Disabilities, http://www.mhlw.go.jp/english/wp/wp-hw4/dl/honbun/2_2_9.pdf (last visited Oct. 15, 2011).

158 . Taskforce for Reform, supra note 157.

159 . See supra Part II.B.

160 . See Heyer, supra note 8, at 4–5.

161 . Id.

162 . See generally Law No. 94, supra note 15.

163 . Regarding the development of American disability discrimination law and reasonable accommodation, see Richard K. Scotch, From Good to Civil Rights: Transforming Federal Disability Policy (2d ed. 2001); Ruth O’Brien, Crippled Justice: The History of Modern Disability Policy in the Workplace (2001); Judith W. Wegner, The Antidiscrimination Model Reconsidered: Ensuring Equal Opportunity Without Respect to Handicap under Section 504 of the Rehabilitation Act of 1973, 69 Cornell L. Rev. 401, 411–16 (1984). In terms of establishing the burden of proof for reasonable accommodation, one of the most important early decisions for the development of the reasonable accommodation in the United States was Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).

164 . In Canada, reasonable accommodation is an employer’s obligation based on the Human Rights Act in all jurisdictions. See generally Canadian Human Rights Commission, Questions and Answers about the Duty to Accommodate, http://www.chrc-ccdp.ca/discrimination/apfa_uppt/ page1-eng.aspx (last visited Oct. 15, 2011) [hereinafter Q&A]. However, this obligation was not originally a statutory obligation but came from the interpretation of the Human Rights Act. Id. The Ontario Board of Inquiry imposed the duty to accommodate a person with a particular religion for the first time in Ishar v. Security Investigation Services, Ltd., [unreported] (May 31, 1977). Even after the Supreme Court of Canada held in O’Malley v. Simpson-Sears Ltd., 7 C.H.R.R. D/3102 (1985), that an employer was obliged to accommodate an employee who was a Seventh-day Adventist, few jurisdictions have stipulated the obligation in the acts. The Canadian concept of the duty of reasonable accommodation is not limited to discrimination against religion. See generally Q&A. Rather, it expands to all prohibited grounds, such as disability, pregnancy, and so on, through courts’ and tribunals’ interpretations. Id.

165 . Professor Bagenstos explains that “given antidiscrimination law’s general prohibition of rational discrimination against protected classes—and the principles that necessarily underlie that general prohibition—antidiscrimination law also properly requires accommodation.” Samuel R. Bagenstos, “Rational Discrimination,” Accommodation and the Politics of (Disability) Civil Rights, 89 Va. L. Rev. 825, 838 (2003). Although this view would be theoretically correct, it seems optimistic in terms of Japanese law.

166 . Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (Austl.) [hereinafter Australia Disability Act], § 5(2)(a).

167 . See, e.g., Disability Rights, Austl. Human Rights Comm’n, at 2, http://www. hreoc.gov.au/disability_rights/faq/Employment/employment_faq_1.html#adjustment (last visited Oct. 15, 2011); Austl. Fair Pay Comm’n, Employees with Disability-Coverage of AFPC Wage Instruments (2009).

168 . Id.

169 . There seems to be a debate over whether Section 5(2) of the Australian DDA actually implies an obligation to make adjustments by providing different accommodation or service. See, e.g., Austl. Gov’t Productivity Comm’n, Review of the Disability Discrimination Act 1992 185–86 (2004) [hereinafter Austl. Gov’t Productivity Comm’n]; see also Cosma v Qantas Airways Ltd. (2002) 124 FCR 504; Laycock v. Comm’r of Police, NSW Police (2006) NSWADT 261 (Austl.), available at http://www.lawlink.nsw.gov.au/adtjudgments/2006 nswadt.nsf/00000000000000000000000000000000/d2d48b4df5637e07ca2571e000082b2b?opendocument.

170 . The Productivity Commission of the Australian Commonwealth Government reviewed the situation without reasonable adjustment and made the recommendation in 2004. See Productivity Comm’n (2004), Review of the Disability Discrimination Act 1992: Productivity Commission Inquiry Report Volume 1: Chapter No. 30 (Apr. 30, 2004); Austl. Gov’t Productivity Comm’n, supra note 169, at 185–89.

171 . Australia Disability Act, supra note 166, § 4(1) (inserting “reasonable adjustment” into section 4(1) of the 1992 draft).

172 . Throughout the world, countries indicate an employer’s duty of reasonable accommodation under antidiscrimination acts or provisions, such as “reasonable adjustment” in the United Kingdom (Equality Act 2010, 2010, c. 15, at 10 (Eng.), available at http://www. legislation.gov.uk/ukpga/2010/15/pdfs/ukpga_20100015_en.pdf (formally the Disability Discrimination Act) [hereinafter Equality Act]); “special service” in New Zealand (New Zealand Human Rights Commission (Human Rights Act 1993, 1993, No. 83, § 76(1)(a), (N.Z.)); comprehensive antidiscrimination law for persons with disabilities in the United States (ADA, supra note 7), and Australia (Australia Disability Act, supra note 166); a provision of general antidiscrimination law in New Zealand (New Zealand Human Rights Commission (Human Rights Act 1993, 1993, No. 83, § 76(1)(a), (N.Z.)) and Germany (General Equal Treatment Act); provisions and guidelines for rehabilitation law in the United States (Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504); and provisions for labor law in France (see generally Code du travail [C. trav.]). Although the technical terms are different in each country, the concept is the same.

173 . See generally Scott Burris et al., Disputes Under the American with Disabilities Act, 9 Temp. Pol. & Civ. Rts. L. Rev. 237 (1999).

174 . See generally Carlos A. Ball, Preferential Treatment and Reasonable Accommodation under the Americans with Disabilities Act, 55 Ala. L. Rev. 951 (2003–2004).

175 . An American commentator describes that “[b]y forcing employers to pay for worksite and other job accommodations, it might allow workers by impairing conditions defined by the law to compete on equal terms, it would require some firms to treat unequal people equally, thus discriminating in favor of the disabled.” Sherwin Rosen, Disability Accommodation and the Labor Market, in Disability and Work: Incentives, Rights, and Opportunities 18, 21 (Carolyn L. Weaver ed., 1991).

176 . Cheryl L. Anderson, What is “Because of the Disability” Under the Americans with Disabilities Act? Reasonable Accommodation, Causation, and the Windfall Doctrine, 27 Berkeley J. Emp. & Lab. L. 323, 331–33 (2006).

177 . See ADA, supra note 7, § 12111(9).

178 . See id. § 12112.

179 . See id.

180 . See id. § 12111(9).

181 . Bagenstos, supra note 165, at 859–70.

182 . See ADA, supra note 7, § 12112.

183 . See generally Ernest F. Lidge III, The Courts’ Misuse of the Similarly Situated Concept in Employment Discrimination Law, 67 Mo. L. Rev. 831 (2002).

184 . See ADA, supra note 7, § 12111(8).

185 . See id.

186 . Robert L. Burgdorf, Jr., Substantially Limited Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 409 (1997).

187 . Bagenstos, supra note 165, at 856.

188 . Id.

189 . See generally Employment, Disability, and the Americans with Disabilities Act: Issues in Law, Public Policy, and Research (Peter D. Blanck ed., 2000) (providing discussions by disability scholars that, in part, dispel the myths about employment and people with disabilities); The Decline in Employment of People with Disabilities: A Policy Puzzle (David C. Stapleton & Richard V. Burkhauser eds. 2003) (discussing, in part, the various causes of low employment rates among people with disabilities); Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, 76 Fed. Reg. 16,978, 16,991 & 16,996 (Mar. 25, 2010) (citing studies by Blanck and colleagues in accompanying publication of the U.S. Equal Employment Opportunity Commission’s (EEOC) ADAAA regulations, and for the proposition that “research shows accommodations yield measurable benefits with economic value that should be deducted from the cited costs to yield a net value”).

190 . How the prohibition on rational discrimination limits the employer’s authority and discretion is a touchstone of a margin of disability discrimination and of undue hardship of reasonable accommodation.

191 . In Japan, gender discrimination is prohibited in employment. For example, Article 4 of the Labor Standards Act of 1947 prohibits wage discrimination on the basis of gender. Meanwhile, the Equal Employment Opportunity Law of 1997 prohibits discrimination on the basis of gender including marital status, pregnancy, and childbirth, in terms of recruitment, hiring, arrangement of personnel, transfer or reassignment, promotion, demotion, training, functions of the job or employment, mandatory retirement, dismissal and renewal of employment contract, etc. Minpō [Minpō] [Civ. C.] 1896, art. 90 (Japan), available at http://www.japaneselawtranslation .go.jp/law/detail/?ft=1&re=02&dn=1&x=0&y=0&co=01&ky=juristic+act&page=2 (implying that under Public Order provision of Article 90 of Civil Law a provision under employment contract which discriminates against female employees is not likely to be enforced). The term of “the Japanese equality law of gender discrimination” means the general legal theories regarding gender discrimination derived from their case laws.

192 . See Akita Sogo Bank, Akita Chihō Saibansho [Akita Dist. Ct.] Apr. 10, 1975, 26, 3 Rōdō hanrei 388 (Japan); Uchiyama Indus. Co. Ltd., Okayama Chihō Saibansho [Okayama Dist. Ct.] 2001, 814 Rōdō hanrei 102 (Japan); Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] Aug. 27, 1992, 611 Rōdō hanrei 10 (Japan); Hiroshima Chihō Saibansho [Hiroshima Dist. Ct.] 1992, 701 Rōdō hanrei 22 (Japan); Shinogi & Co., Ltd., Ōsaka Chihō Saibansho [Osaka Dist. Ct.] 1999, no. 1032 (Japan); Nomura Securities Co., Ltd., Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] 2002, 822 Rōdō hanrei 13 (Japan); Yokohama Chihō Saibansho [Yokohama Dist. Ct.], 2007, 938 Rōdō hanrei 54 (Japan).

193 . Japanese courts tend not to put importance on discriminatory intent to find discrimination and not to use the term of “discriminatory intent.” This tendency might be explained by two reasons. One is that tort liability used in many gender discrimination cases does not necessarily require a plaintiff to prove intention of a person responsible for a consequence as an employer. Proof of his negligence or recklessness is enough. Therefore, courts do not have to find the employer’s clear intention. The other reason is that since proof of the employer’s intention is hard to prove unless the employer confesses such intent, courts cannot find the real intent of the employer. The courts tend to find discrimination if there is differential treatment resulting in substantial disadvantage on the basis of gender. Therefore, it is possible to estimate that the courts find discrimination if the employer’s intention is presumed by objective evidence. This might be similar to the presumption of discriminatory intent in North America.

194 . Sumitomo Chemical Co., Ltd., Ōsaka Chihō Saibansho [Osaka Dist. Ct.] 2001, 807 Rōdō hanrei 110 (Japan); Syoko Chukin Bank Ltd., Ōsaka Chihō Saibansho [Osaka Dist. Ct.] 2000, 979 Rōdō hanrei 15 (Japan); Nomura Securities, 822 Rōdō hanrei [R. H.] 46 (Japan); Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] 2007, 960 Rōdō Hanrei 63 (Japan). See also Social Insurance Medical Fee Payment Foundation, Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] 1990, 565 Rōdō hanrei 7 (Japan); Sendai Kōtō Saibansho [Sendai High Ct.] Jan. 10, 1992, 1410 Hanrei jiho [Hanji] 37 (Japan); Sanyo Bussan Corp., Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] June 16, 1994, 651 Rōdō hanrei 15 (Japan); Shiba Trust Bank case, Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] 1996, 764 Rōdō hanrei 21 (Japan). Meanwhile, Ryuichi Yamakawa describes that section 4 of the Labor Security Act requires discriminatory intent to prove its violation. Ryuichi Yamakawa, Koyo Kankeiho [Employment Relations Law] 38, 52 (4th ed. 2008). However, he writes that “discriminatory intent” is assumed if treatment by an employer has a negative effect on female or male employees on the basis of gender. Ryuichi Yamakawa, Purakutisu Rodoho [Practice of Labor Law] 43–45 (2009).

195 . There are some cases whose issue is whether seemingly gender-neutral family allowance has a disparate impact on female employees. See, e.g., Nissan Motors Co., Ltd., Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] 1989, 533 Rōdō hanrei 45 (Japan). Nissan holds that the gender-neutral family allowance provision on the work rule, where the employer pays the allowance to only one of a couple whose payment is higher, is not discriminatory. Based on this decision, many commentators refute the idea that courts have a disparate impact in Japan. See, e.g., Hisako Konno, Sabetsu No Rissyou Houhou [Burdens of Proof in Sex Discrimination in Japan]; Mutsuko Asakura, Nobuo Fukaya & Youichi Shimada, Nihon Rōdōhō Gakkai, Rōdōsha no jinkaku to byōdō [Human Rights and Equality of Employees], Kōza 21-seiki no rōdōhō 254, 259 (2000); Hajime Wada, Susumu Noda & Hiroya Nakakubo, Rōdōhō no sekai [Labor Law] 77 (8th ed. 2009). However, the Equal Employment Opportunity Law of 2006 introduced a provision under section 7 that if gender-neutral employment conditions or terms have a negative impact on male or female employees based on statistical evidence, it is discriminatory unless it is a bona fide occupational qualification. A commentator describes that this provision is an indirect discrimination provision. Asakura et al., at 71. However, this provision prohibits only systematic disparate treatment, not disparate impact. See id.

196 . Most of the antidiscrimination laws acknowledge the distinction between intentional (disparate treatment) discrimination and unintentional (disparate impact or adverse effect) discrimination. The failure to provide reasonable accommodation by an employer is usually understood as unintentional discrimination because it results from the neutral working rule, environment, or equipment in an establishment that has negatively impacted persons with disabilities. However, a neutral standard, which has a disparate impact and is related to reasonable accommodation, is normally rational and/or can be justified for other general employees. Generally, the court is required to choose whether a case is intentional or unintentional and attempts to delineate a clear distinction between the two. However, the distinction is somewhat artificial because, in fact, intentional and unintentional discrimination exists in the process of the duty of reasonable accommodation. To be sure, the employer is obliged to make reasonable accommodations for employees with disabilities when a neutral and non-discriminatory conscious rule has a negative impact on an employee, perhaps within a theory of unintentional discrimination. Meanwhile, where an employer knows the request of possible accommodation by an employee and nonetheless does not make possible accommodations or participates in the interactive process, this act or omission by the employer is also regarded as intentional discrimination. This failure of the proper application of the neutral rule, the failure to comply with the appropriate procedure, or the omission of any alternative might be motivated by the employer’s intention. Interestingly, the disability discrimination laws of some countries, such as Germany, France, and New Zealand do not clarify or classify reasonable accommodation into intentional or unintentional discrimination. Instead, the United Kingdom’s Equality Act clearly regards failure to provide reasonable adjustment as an independent category of discrimination. The independent nature might stem from the artificial distinction above or the distinctive burdens of proof in reasonable accommodation, different burdens from intentional and ordinary unintentional discrimination cases. See 2008–2009 Report, supra note 5.

197 . In this article, rational discrimination means that an employer intentionally or unintentionally treats employees with disabilities differently for a strategic or managerial reason, such as cost and/or lower productivity. In disability discrimination, the employer usually discriminates against an employee with a disability not because of animus, stigma, and negative attitudes toward persons with disabilities but on the basis of cost, profit, and purely managerial reasons. In this case, the employer’s application of a certain standard is rationally intentional or intentionally rational rather than unintentional. Rational discrimination occurs when an employment policy or its application, which contributes to an employer’s profits or functional management and plays proper a role for general employees, simultaneously has negative impacts on certain persons who have the distinctive social traits or characteristics, such as a disability, regardless of whether it is intentional or unintentional. Prohibition of rational discrimination must exclude the application of formal equality, which requires determining whether an employment policy, standard, or criterion is an adequate rationale for similarly situated category of persons. Whereas the application of formal equality does not allow the duty of reasonable accommodation, the duty requires an employer to provide different treatment for employees with a socially distinctive trait such as a disability. For further discussion of rational discrimination, see Christine Jolls, Antidiscrimination and Accommodation, 115 Harv. L. Rev. 643, 652 (2001).

198 . This idea might explain why Japanese employment contract law allows employees with disabilities to require employers to make accommodations.

199 . Bagenstos, supra note 165, at 858.

200 . See generally Taskforce for Reform, supra note 157.

201 . The Japanese Ministry of Health, Labor, and Welfare seems to assert the coverage of disability antidiscrimination law is limited to those with the medical certification. See Rodo/koyo Bunya Ni Okeru Syougaisya Kenri Jyoyaku He No Taio No Arikata Ni Kansuru Chukanteki-na Torimatome [Interim Report for Labor and Employment Policy for Ratification of CRPD], Japan Labor Policy Council of MHLW, March 30, 2010, at 1, http://www.mhlw.go.jp/shingi/2010/03/ dl/s0330-17a.pdf [hereinafter Interim Report].

202 . Saotshi Kawashima also suggests that the coverage of disability antidiscrimination law in Japan should expand. See, e.g., Satoshi Kawashima, 2008 Ne ADA Kaisei-hou No Igi To Nihon Eno Shisa: Syougai No Syakai Model Wo Tegakari Ni [Suggestions to New Japanese Disability Discrimination Law from ADAAA of 2008], 166 Kaigai Syakaihosyo Kenkyu [Rev. Comp. Soc. Sec. Res.] 4–14 (2009); Concept of Disability under Disability Discrimination Law: From Minority Model to Universal Model, 4 J. Disability Stud. 82–108 (2008).

203 . Americans with Disabilities Act Amendments Act 42 U.S.C. § 12101, Pub. L. 110-325, sub. § 2, Sept. 24, 2008, 122, stat. 3553, sub. § 12102 [hereinafter ADAAA].

204 . Regarding the quota system, see Appendix of Section 2 of EPAPD (disability pension); see also Appendix of Section 4.6 of Kokumin Nenkin Ho Sikourei [Guideline of Japan National Pension Act], Order No. 184 of 1960.

205 . The Physical Disabled Persons’ Welfare Act, Law No. 283 of 1949 (Japan).

206 . In our opinion, the medical model of disability, which aims at clarifying the beneficiary on the policy, does not correspond to the present and real needs of persons with disabilities. The medical model of disability finds only the existence and the degree of impairment. It cannot find the effect of the impairment on a person’s daily activities but instead estimates the probability of the effect. For example, although one of the main purposes of a disability pension is to make up the deficiency of income because of less workability or employability attributed to disability, the qualification standard in medical terms cannot exclude those who have an impairment but sufficient workability or employability. The conception of the disability under the discrimination laws must evaluate the causation between impairment and environmental factors.

207 . Emory v. AstraZeneca Pharm., 401 F.3d 174, 179 (2003) (the district court had narrowly interpreted “substantiality of limitation” but the court of appeals overruled, presaging the broadening of the ADAAA’s interpretation).

208 . See generally ADAAA, supra note 203.

209 . ADA, supra note 7, § 12112(b)(5)(A).

210 . See, e.g., Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68–69 (1986); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 145–46 (5th Cir. 1982); Pinsker v. Joint Dist. No. 28J of Adams & Arapahoe Counties, 735 F.2d 388, 390–91 (10th Cir. 1984).

211 . Carter v. Bennett, 840 F.2d 63, 67 (D.C. Cir. 1988). EEOC regulations also provide that “reasonable accommodation means . . . [m]odifications or adjustments . . . that enable a qualified individual with a disability to perform essential functions of the employment position.” 29 C.F.R. § 1630.2 (2011).

212 . See, e.g., Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001).

213 . E.g., Barnett v. US Air, Inc., 228 F.3d 1105, 1121; Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995); Barth v. Gelb, 2 F.3d 1180, 1182 (D.C. Cir. 1993).

214 . Mark C. Weber, Unreasonable Accommodation and Due Hardship, 62 Fla. L. Rev. 1119, 1149 (2010).

215 . ADAAA, supra note 203, § 12111(10)(B)(i)–(iv); see generally 29 C.F.R. § 1630 (2011).

216 . 29 C.F.R. § 1605.2(e)(2) (2011).

217 . Peter Zablotsky, After the Fall: The Employer’s Duty to Accommodate Employee Religious Practices Under Title VII After Ansonia Board of Education v. Philbrook, 50 U. Pitt. L. Rev. 513, 552 (1989).

218 . Barnett, 228 F.3d at 1113; U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397–402 (2002).

219 . Equality Act, supra note 172, at 10.

220 . The Supreme Court of Canada describes the safety (direct threat) requirement as a factor to be considered in undue hardship. Cent. Canadian Dairy Pool v. Alberta, [1990] 2 S.C.R. 489 ¶ 63 (Can.).

221 . ADAAA, supra note 203, § 12111(10)(B)(i)–(iv); Equality Act, supra note 172, at 10; and Dairy Pool, 2 S.C.R. ¶ 63 (using reasonableness and undue hardship as factors).

222 . Steven B. Epstein, In Search of a Bright Line: Determining When an Employer’s Financial Hardship Becomes “Undue” Under the Americans with Disabilities Act, 48 Vand. L. Rev. 391, 423 (1995). See also Bonnie P. Tucker, Section 504 of the Rehabilitation Act After Ten Years of Enforcement: The Past and the Future, 1989 U. Ill. L. Rev. 845, 887 (1989); Julie Brandfield, Undue Hardship: Title I of the Americans with Disabilities Act, 59 Fordham L. Rev. 113, 128 (1990); Eileen P. Kelly & Robert J. Alberts, Americans with Disabilities Act: Undue Hardship for Private Sector Employers? 41 Lab. L.J. 675 (1990); Jeffrey O. Cooper, Overcoming Barriers to Employment: The Meaning of Reasonable Accommodation and Undue Hardship in the Americans with Disabilities Act, U. Pa. L. Rev. 1423, 1448 (1991); Russell H. Gardner & Carolyn J. Campanella, The Undue Hardship Defense to the Reasonable Accommodation Requirement of the Americans with Disabilities Act of 1990, 7 Lab. L.J. 37 (1991); Michael D. Wilson, Defenses to Discrimination Actions Filed Under the Americans with Disabilities Act, 42 Lab. L.J. 732, 737 (1991); Margaret E. Stine, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act of 1990, 37 S. Dakota L. Rev. 97, 103 n.59 (1992).

223 . See Empirical Study of Current Employees, supra note 90, at 937–38.

224 . See generally Saikō Saibansho [Sup. Ct.] 1998, 736 Rōdō Hanrei 15 (Japan); see also Osaka Chihō Saibansho [Osaka Dist. Ct.] 1999, 771 Rōdō Hanrei 25, 30–31 (Japan); Yokohama Chihō Saibansho [Yokohama Dist. Ct.] 2004, 890 Rōdō Hanrei 63, 67 (Japan); Tōkyō Chihō Saibansho [Tokyo Dist. Ct.] 2004, 876 Rōdō Hanrei at 65–66 (Japan).

225 . See, e.g., Tokio Marine & Fire Ins. Co., 2000, 797 Rōdō Hanrei 65 (2000) (Japan).

226 . See, e.g., Treadwell v. Alexander, 707 F.2d 473, 478 (11th Cir. 1983); Nelson v. Thornburgh, 567 F. Supp. 369, 376 (E.D. Pa. 1983); Arneson v. Heckler, 879 F.2d 393, 397 (8th Cir. 1989).

227 . In Yokohama, the courts refused the plaintiff's allegation that she could perform her job if another person helped her. See Yokohama, supra note 224, at 68.

228 . The ADA’s interpretation sometimes incorporates interactive process into the substantive burdens of proof. Shapiro v. Township of Lakewood, 292 F.3d 356, 359 (3d Cir. 2002). For example, whether the cost of requested accommodation bears undue hardship on an employer as a substantive element is not identical to whether the employer fails to search for accommodation with the employee in good faith because of cost.

229 . Schur et al., supra note 140, at 391, 402.

230 . See Naomi Schreuer, William N. Myhill, Tal Aratan-Bergman, Deepti Samant & Peter Blanck, Workplace Accommodations: Occupational Therapists as Mediators in the Interactive Process, 34 Work 149, 157–58 (2009) (presenting a model practice for the interactive process).

231 . Section 15 of the Equal Employment Opportunity Law urges employers to settle disputes regarding gender discrimination through a consultation window or grievance committee, but this is not a legal duty. An employee who is experiencing discriminatory treatment can make a complaint against her employer even if she does not exhaust grievance or review procedures. See generally Law on Securing, etc. of Equal Opportunity and Treatment Between Men and Women in Employment, Act No. 113 of 1972 (Japan).

232 . Akio Kihara, Kigyo-nai Funso No Yobou To Syori [An Empirical Study of the Dispute Resolution Systems Inside Companies in Japan], Bus. Lab. Trend 2, 2 (2008), available at http://www.jil.go.jp/kokunai/blt/bn/2008-07/002-011.pdf (looking at employees in general, not just those with disabilities).

233 . The study shows that bigger companies tend to set consultation windows and grievance committees. For example, 29.8% of companies hiring less than ninety-nine employees set up consultation windows, and 8.0% of these same companies hire grievance committees. In contrast, 73.9% of companies hiring more than one thousand employees set up consultation windows and only 30.1% of these same companies hire grievance committees. See id. at 5.

234 . Id.

235 . The rates that employees have talked or consulted with their superiors, supervisors and bosses about their grievances and complaints are 58.2% while the rates that employees have visits at consultation windows or grievance committees are 11.5% and 7.2% respectively. Id. at 5–6.

236 . Id.

237 . Id. at 6–7.

238 . Only EEOC guidelines note that the interactive process identifies “the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations” and requires direct and good faith communication between the employer and qualified individual. See 29 C.F.R. § 1630.2 (2011). Most U.S. federal courts of appeals endorsed the interactive process. See Peter Blanck et al., Disability Civil Rights Law and Policy 254 (2d ed. 2009). For example, the Third and Ninth Circuits admit that the employers should appropriately respond to the requested accommodation by employees with disabilities. Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002); Barnett, 228 F.3d at 1114. However, there is still uncertainty regarding the basis of the interactive process. In fact, despite the Third Circuit decision, the U.S. Supreme Court in Barnett did not mention the interactive process. See Samuel R. Bagenstos, U.S. Airways v. Barnett and the Limits of Disability Accommodation 21–22 (Wash. Univ. in St. Louis Sch. of Law, Working Paper No. 07-01-02, 2007).

239 . Kazuo Sugeno, The Birth of the Labor Tribunal System in Japan: A Synthesis of Labor Law Reform and Judicial Reform, 25 Comp. Lab. L. & Pol’y J. 519, 529–31 (2003–2004).

240 . Id. at 531.

241 . Peter R. Maida, Final Report: Proposal to Select, Train and Monitor Professional Mediators for ADA Complaint Referral 21–28 (2001) (unpublished manuscript). This report, written by the Chair of the Key Bridge Foundation for Education and Research, was submitted to the Department of Justice.

242 . Hiroya Nakakubo, “Phase III” of the Japanese Equal Employment Act, 4 Japan Lab. Rev. 9, 23 (2007).

243 . See, e.g., U.K. ACAS (Advisory Conciliation and Arbitration Service) and Equality and Human Rights Committee (Education Act, 1993, c.35, § 27); New Zealand Human Rights Commission (Human Rights Act 1993, 1993, No. 83, § 76(1)(a)) and Employment Relations Authority (Human Rights Act 2001, 2001, § 79A(1)(b); Complaint Handling Section of Australian Human Rights Commission (Australian Human Rights Commission Act, 1986); HALDE (Haute autorité de lutte contre les discriminations et pour l’égalité) [High Authority Against Discrimination and for Equality] (LOI n°2004-1486 du 30 décembre 2004 pourtant création de la haute autorité de lutte contre les discriminations et pour l’égalité, JORF n°304 du 31 décembre 2004) in France; and Antidiskriminierungsstelle [General Act on Equal Treatment], Aug. 14, 2006, BGBl. I at 1897, § 25 (F.R.G.) in Germany. These commissions accept, investigate, and/or settle a complaint regarding disability discrimination through mediation, conciliation, arbitration or advice.

244 . Kihara, supra note 232 at 4, Chart 5.

245 . In Japan, there are a few universities and centers that offer western styled mediation training programs, such as Faculty of Law, Kyusyu University, Department of Social Policy, Hokusei Gakuen University, and Japan Mediation Centre. See Antonio Formacion, The First Round Table Conference on Mediation in Asia, Kyushu University, http://www.law.kyushu-u.ac.jp/programsinenglish/adr2010/index-1.html (last visited Oct. 15, 2011) (stating that western-style mediation has been minimal in Japan partly because of the authoritative characteristics of the country).

246 . Individual Labor Dispute Resolution Enforcement Status in 2008, Japanese Ministry of Health, Labour & Welfare (May 2009), http://www.mhlw.go.jp/houdou/2009/05/h0522-4.html (last visited Oct. 15, 2011) (the 2009 data shows that the consultation inquiry rate increased 14.1%, and the mediation inquiry rate increased 18.3% compared to the 2008 data).

247 . Ryoko Sakuraba, Anti-Disability Discrimination Law in the US: More Transformative than Japanese Labor Law? 8 (July 6, 2009) (unpublished manuscript). Sakuraba’s paper is a handout from her presentation at Kobe Law School on July 6, 2009. In her paper, Sakuraba asserts that the present quota system should be maintained, opposing the introduction of disability antidiscrimination law to Japan. She describes that the present “Japanese approach, which mixes the obligation of employment quotas and the doctrine of employment contracts, is, in one sense, more evolutive and adaptable than the human rights approach in the U.S.” because the doctrine of employment contract obliges employers to make reasonable accommodation for persons with disabilities, and “employment quotas . . . provide clearer financial incentives for employers to employ persons with disabilities, including those with severe disability.”

248 . Members of the task force for the development of the Japanese disability law and policy generally agree that the present quota system and disability antidiscrimination law system can co-exist in the new paradigm. See Taskforce for Reform, supra note 157; see generally Interim Report, supra note 201.

249 . Lisa Waddington, Reassessing the Employment of People with Disabilities in Europe: From Quotas to Anti-Discrimination Laws, 18 Comp. Lab. L.J. 62, 67 (1996).

250 . The Korean Disability Discrimination Act prohibits disability discrimination and reasonable accommodation while maintaining the quota system. See Chae-U Lee, Disability Discrimination Act in Korea, in 2009–2010 Report to the Japan National Cabinet Office: Comparative Study Regarding Social Inclusion and Participation of Persons with Disabilities 211 (2010). In Germany and France these two systems co-exist.

251 . Tamako Hasegawa, Equality of Opportunity or Employment Quotas?—A Comparison of Japanese and American Employment Policies for the Disabled, 10 Soc. Sci. Japan J. 41, 49 (2007).

252 . For example, the ADA applies to qualified individuals with disabilities who can perform the essential functions of the employment position with or without reasonable accommodation. 29 C.F.R. § 1630.2(l)–(m) (2011).

253 . See 2008–2009 Report, supra note 5, at 195.

254 . Hasegawa, supra note 251, at 55.

255 . Id. at 53.

256 . See generally Takashi Araki, Rodo Rippu Ni Okeru Doryoku-gimu Kitei No Kinou: Nihon-gata Soft Law Approach? [Employer’s Duty to Endeavour in Employment Statutes: The Japanese Soft Law?]; Michio Tsuchida, Takashi Araki & Fumiko Obata, Rodo Kankei Hou No Gendai-teki Tenkai [The Development of Industrial Relations Law] (2004) 19, 44–45.

257 . See Takashi Araki, Equal Employment and Harmonization of Work and Family Life: Japan’s Soft-Law Approach, 21 Comp. Lab. L. & Pol’y J. 451, 452 (1999–2000).

258 . Id. at 465–66.

259 . Id. at 452.

260 . Hasegawa, supra note 251, at 47.

261 . Araki, supra note 257, at 466.

262 . Hasegawa, supra note 251, at 44–45.

263 . Nakakubo, supra note 242, at 10.

264 . See id. at 9–10.

265 . Id. at 10.

266 . Id.

267 . Id.; Araki supra note 257, at 456.

268 . As described before, the present meaning of the Japanese “hard law” is that the court can order employers to pay damages. See Labor Standards Act, supra note 63, arts. 75, 77–86. New disability antidiscrimination laws, however, should also include a provision to oblige courts to order the reinstatement of employees or restoration for employees if dismissal is unreasonable.

269 . Many people generously contributed their ideas and time to the development of this article and to the important discussion about a proposed Japanese disability antidiscrimination employment law. We would like to thank Takashi Araki (Professor, Law School, Tokyo University), Tamako Hasegawa (Associate Professor, Faculty of Administration & Social Science, Fukushima University), Masahiro Ken Kuwahara (Professor Emeritus, Faculty of Law, Aichi Gakuin University), Ryosuke Ryo Matsui (Professor Emeritus, Faculty of Social Policy & Administration, Hosei University), William N. Myhill (Director of Legal Research & Writing, Burton Blatt Institute, Syracuse University), Fusako Chako Seki (Associate Professor, International Graduate School of Social Science, Yokohama National University), Hiroko Takeda-Ito (former member of Sapporo City Council of Social Welfare), Hiroyo Tokoro (Assistant Professor, Faculty of Law, University of Hokkaido), Masaru Watanabe (Professor, Faculty of Law, Osaka City University), and Ryuichi Yamakawa (Professor, Law School, Keio University) for their invaluable comments on earlier drafts. We also would like to thank Eve Hill (Senior Vice President, Burton Blatt Institute, Syracuse University), Paula Pearlman (Assistant Professor, Disability Rights Legal Center, Loyola Law School, Los Angeles), Michael Waterstone (Associate Dean & J. Howard Ziemann Fellow and Professor, Loyola Law School, Los Angeles), and the other participants at the Japan’s Anticipated Disability Law & the Americans with Disabilities at Twenty: Workshop on Comparative Law, Policy and Research, and the participants in the Loyola of Los Angeles International and Comparative Law Review Symposium, The Significance of the United Nations Convention on the Rights of Persons with Disabilities, for their generous comments on remarks that formed the basis for the Article.