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The United Nations Convention on the Rights of Persons with Disabilities pp 89–106Cite as

Article 1 [Purpose]

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Abstract

The proposal to include a specific article on the purpose of the CRPD emerged since the outset of negotiations, together with the idea to add a provision on the main principles underpinning the Convention that would have contributed to achieve the purpose (current Article 3). In the framework of international human rights treaties a stand-alone article on the purpose is an innovation, since the objectives of those treaties are usually deduced from the general obligations. The core purpose of Article 1, first paragraph, is to ensure that persons with disabilities enjoy all existing human rights as everyone else, while the second paragraph identifies the holders of the rights set forth in the Convention.

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Notes

  1. 1.

    In 2003, the Chair of the Ad Hoc Committee submitted to the Working Group the Draft Elements as a contribution in its work of elaborating a draft convention.

  2. 2.

    See A/AC.265/2004/WG/1, Annex I. Final text compiled as adopted (CRP.4, plus CRP.4/Add.1, Add.2, Add.4 and Add.5). The initial wording of Article 1 did not contain the second paragraph on persons with disabilities, which was added later.

  3. 3.

    However, some delegations did not agree on the necessity to retain an article on purpose. For comments on Article 1 during the Seventh Session of the Ad Hoc Committee, January 30, 2006 see http://www.un.org/esa/socdev/enable/rights/ahc7sum30jan.htm. Accessed January 28, 2015.

  4. 4.

    See http://www.un.org/esa/socdev/enable/rights/ahc3sum1.htm. Accessed January 28, 2015.

  5. 5.

    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, Seventh Session, New York, 16 January–3 February 2006, A/AC.265/2006/2. http://www.un.org/esa/socdev/enable/rights/ahc7report-e.htm. Accessed January 29, 2015.

  6. 6.

    See Schulze (2009), p. 22.

  7. 7.

    For the working paper submitted by Mexico see A/AC.265/WP.1. Cf. Flóvenz (2009), pp. 262 et seqq.

  8. 8.

    http://www.un.org/esa/socdev/enable/rights/ahc7sum30jan.htm. Accessed January 29, 2015.

  9. 9.

    Also the IDC stressed the inherent nature of dignity in every person and the need to avoid implying that the dignity of persons with disabilities requires promotion. For this reason, it suggested referring to “respect for dignity.” For the discussion on Article 1 at Seventh Session of Ad Hoc Committee see http://www.un.org/esa/socdev/enable/rights/ahc7sum30jan.htm. Accessed January 29, 2015.

  10. 10.

    During negotiations, the adjective “international” was deleted from the title, but the original denomination of the Convention appears in para. (y) of the Preamble.

  11. 11.

    The IDC proposed replacing the verb “fulfil” with “ensure.” It noted that governments must themselves refrain from interfering with the rights of persons with disabilities, prevent third parties from doing so, and take proactive measures to protect those rights and that the language of Article 1 had to reflect this. The IDC argued that the terms “ensure” and “respect” could be useful to reflect this intention such that Article 1 would read: “The purpose of this Convention is to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms of all persons with disabilities.” http://www.un.org/esa/socdev/enable/rights/ahc7sum30jan.htm. Accessed January 29, 2015.

  12. 12.

    In order to accommodate the concerns by some delegations that all persons with disabilities should be covered by the Convention, the EU proposed to add the adjective “all” in Article 1. Also, the IDC suggested this addition with reference to “persons with disabilities.” http://www.un.org/esa/socdev/enable/rights/ahc7sum30jan.htm. Accessed January 29, 2015.

  13. 13.

    The adjective “inherent” was added in Article 1 to qualify dignity. The Chair of the Ad Hoc Committee observed that other conventions referred to “respect for inherent dignity,” whereas the text before the Committee used the phrase “respect for dignity.” He suggested that being consistent with these conventions would solve some of the concerns about the nature of dignity, especially the fact that the draft convention should not be seen as intending to confer dignity. This choice was in line with the views of Lichtenstein and the EU and had general support. http://www.un.org/esa/socdev/enable/rights/ahc7sum30jan.htm. Accessed January 29, 2015.

  14. 14.

    See UN-DESA et al. (2007), p. 12.

  15. 15.

    See CESCR, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), January 20, 2003, E/C.12/2002/11, where it is affirmed that any human right treaty implies three obligations of States Parties, that is, the obligation to respect, protect, and fulfil those rights (paras. 20–29).

  16. 16.

    See UN-DESA et al. (2007), p. 20.

  17. 17.

    See Kayess and French (2008) and Stein and Lord (2009). See also Mégret (2008a, b).

  18. 18.

    Proposals to draft a convention on the human rights of persons with disabilities were submitted in the occasion of the first international review of the implementation of the World Programme of Action concerning Disabled Persons, held in Stockholm in 1987. A draft outline of the convention was prepared by Italy and submitted to the UNGA at its 42nd session. A further draft convention was submitted by Sweden at the 44th session of the UNGA. However, no consensus could be reached on the suitability of such a convention because in the opinion of many representatives, existing human rights treaties guaranteed to persons with disabilities the same rights as other persons (http://www.un.org/disabilities/default.asp?id=222. Accessed January 29, 2015).

  19. 19.

    These concepts were affirmed in para. 5 of the Declaration adopted by the World Conference on Human Rights held in Vienna, June 14–25, 1993. Para. 22 of the Declaration recognizes that “special attention needs to be paid to ensuring non-discrimination, and the equal enjoyment of all human rights and fundamental freedoms by disabled persons, including their active participation in all aspects of society.”

  20. 20.

    See para. (c) of the Preamble.

  21. 21.

    The UN core human rights treaties are nine international instruments (ICERD, ICCPR, ICESCR, CEDAW, CAT, CRC, ICMW, and CPED) that also include the CRPD. Each of these treaties has established a committee of experts charged to monitor the implementation of the treaty provisions by its States Parties and, in some cases, to receive individual complaints or communications. See, among others, Normand and Zaidi (2008), Cushman (2012), and Keller and Ulfstein (2012).

  22. 22.

    See Degener and Quinn (2002); van Weele (2012), pp. 9–30; Emerton (2013), pp. 121–123.

  23. 23.

    Before the adoption of the CRPD, only the CRC explicitly prohibited discrimination against children on the grounds of disability and set out a series of rights for children with disabilities in Article 23.

  24. 24.

    In 1982, UNGA also adopted the World Programme of Action concerning Disabled Persons.

  25. 25.

    See UNGA Resolution 48/96 of December 20, 1993.

  26. 26.

    The Special Rapporteur on Disability of the Commission for Social Development monitors the implementation of the UN Standard Rules at the national level and submits annual reports to the Commission (for the report submitted at the 52nd session of the Commission, see E/CN.5/2014/7). The monitoring mechanism of the UN Standard Rules also included a panel of experts created by international organizations representing persons with disabilities. On these Rules, see Saulle (1998).

  27. 27.

    See “Panel III: New and emerging approaches to definitions of disability – conceptual frameworks, varying contexts of definition and implications for promotion of the rights of persons with disabilities,” Second Session of the Ad Hoc Committee, A/58/118 & Corr.1, July 3, 2003.

  28. 28.

    See A/AC.265/2004/WG/1, Annex I.

  29. 29.

    During negotiations, about 50 national definitions were examined; for a synthesis, see Schulze (2009), p. 23. Also, General Comment No. 5 on persons with disabilities of the CESCR, which referred back to the approach of the UN Standard Rules and to the definition contained in the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities of 1999, was considered; see Schulze (2009), pp. 23–25.

  30. 30.

    The ICF offers an international and a scientific tool for the paradigm shift from the purely medical model to an integrated “biopsychosocial model” of human functioning and disability. See World Health Organization (2002), p. 19; World Health Organization and The World Bank (2011), p. 4.

  31. 31.

    Under the social model, disability is a socially created problem and not an attribute of an individual. In this perspective, disability demands a political response since the problem is originated by an unaccommodating physical and social environment brought about by attitudes and other features. See World Health Organization (2002), p. 9; Watson (2004); Harnacke and Graumann (2012), pp. 35 et seqq.

  32. 32.

    The medical model considers disability as a feature of the individual, directly caused by disease, trauma, or other health condition. Under this model, disability calls for medical treatment or other interventions; see among others, World Health Organization (2002), p. 8; Kayess and French (2008); Trömel (2009), p. 121.

  33. 33.

    See A/AC.265/2004/WG/1, Annex I, footnotes 12 and 13.

  34. 34.

    http://www.un.org/esa/socdev/enable/rights/ahc7pddisability.htm. Accessed January 29, 2015.

  35. 35.

    “A person with a disability is an individual whose ability to lead an inclusive life in the community of his/her own choice is limited by the separate or concomitant impact of physical, economic, social and cultural environments and/or personal factors that interact with physical, sensory, psychosocial, neurological, medical, intellectual or other conditions that may be permanent, temporary, intermittent or imputed. If a definition of a person with a disability does not exist in a country, the definition in this convention shall be applied and any definition of disability that is applied in their countries’ courts of law shall be at least as inclusive and broadly based as the definition contained in this convention.” For the text and comments of the IDC, see “Chairman’s Text as emended by the International disability Caucus,” available at http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc. Accessed January 29, 2015.

  36. 36.

    For the EU’s role in the negotiations, see De Búrca (2010).

  37. 37.

    The Facilitator’s text included also current para. (e) of the Preamble http://www.un.org/esa/socdev/enable/rights/ahc8contfacilitator.htm. Accessed January 29, 2015. Emphasis added. With regard to this definition, the IDC reaffirmed its opposition on the use of the term “mental” as a replacement of the words “intellectual” and “psychosocial.” However, according to the IDC, it could be possible retaining the term “mental,” as well as the terms “intellectual” or “psychosocial.” In addition, it opposed the use of “long term” or “persistent,” observing that “this would still allow States Parties to take a decision at national level, whether or not to use this additional ‘qualifier.’” Finally, the IDC proposed to add the term “conditions” to impairments, as some groups of people with disabilities do not agree with the term “impairment” and prefer the term “condition.” See “IDC reaction the AHC8 Compilation of Proposals in attachment” available at http://www.un.org/esa/socdev/enable/rights/ahc8contngos.htm. Accessed January 30, 2015.

  38. 38.

    A/AC.256/2006/4 and Add.1, available at http://www.un.org/esa/socdev/enable/rights/ahcfinalrepe.htm#fn1. Accessed January 30, 2015.

  39. 39.

    Schulze (2009), p. 22.

  40. 40.

    Emphasis added.

  41. 41.

    On the different approaches to disability and their evolution over the years, see, among others, Hendriks (2002), pp. 195–240; Barnec and Mercer (2003); Iriarte (2016), pp. 10 et seqq.

  42. 42.

    See Oliver (2009), pp. 42–48; de Beco (2014), p. 269.

  43. 43.

    In the ICF, the notions of “health” and “disability” have acquired a new meaning as this classification acknowledges that every person can experience a decrement in health and thereby experience disability. For the diagram that represents the ICF’s model of disability, see World Health Organization (2002), p. 9.

  44. 44.

    The environmental factor classification is one of the major innovations of the ICF as it allows identifying environmental barriers and facilitators for capacity and performance of actions, and for tasks in daily living.

  45. 45.

    See Degener ‘A New Human Rights Model of Disability’ in this Commentary, also for the interesting remarks on the distinguishing aspects of the two models.

  46. 46.

    See, inter alia, the Concluding Observations on the initial reports of China, CRPD/C/CHN/CO/1, October 15, 2012, para. 9; Azerbaijan, CRPD/C/AZE/CO/1, May 12, 2014, para. 9; Denmark, CRPD/C/DNK/CO/1, October 30, 2014, para. 65.

  47. 47.

    See, among the others, the Concluding Observations on the initial reports of Hungary, CRPD/C/UNG/CO/1, October 22, 2012, paras. 10–12; Belgium, CRPD/C/BEL/CO/1, October 28, 2014, paras. 7–8; Argentina, CRPD/C/ARG/CO/1, October 8, 2012, para. 8.

  48. 48.

    The IDC observed “that the term ‘mental’ was no longer used, also because it confuses very distinct forms of disabilities and does not explicitly cover psycho-social disabilities”; see Schulze (2009), p. 24.

  49. 49.

    The IDC also suggested including the phrase “imputed, perceived, temporary and intermittent” with reference to impairments.

  50. 50.

    Under IFC, “Impairments are problems in body function or structure such as a significant deviation or loss”; see World Health Organization (2002), p. 10.

  51. 51.

    Differently, the UN Standard Rules refer both to permanent and transitory impairments.

  52. 52.

    The Committee has further observed: “In the present case, the information provided by the parties does not preclude the Committee from considering that the author’s physical impairment, in interaction with barriers, did in fact hinder her full and effective participation in society on an equal basis with others. The Committee considers that the difference between illness and disability is a difference of degree and not a difference of kind. A health impairment which initially is conceived of as illness can develop into an impairment in the context of disability as a consequence of its duration or its chronicity”; see the decision of the Committee adopted on the Communication No. 10/2013, CRPD/C//12/D/10/2013, para. 6.3.

  53. 53.

    Cf. UN-DESA et al. (2007), p. 13; Seatzu (2008), pp. 545 et seqq.

  54. 54.

    The UN Standard Rules also define the term “handicap” (para. 18), which over the years has been considered too medical and inadequate to express the interaction between the societal conditions and the abilities of the individual. The WHO’s International Classification of Impairments, Disabilities, and Handicaps (ICIDH) of 1980 made a distinction between “impairment,” “disability,” and “handicap,” but critics towards this classification have led to its substitution with the ICF.

  55. 55.

    To this regard, in General Comment No. 5 of 1994: Persons with Disabilities (E/1995/22), the CESCR has affirmed that in accordance with the approach adopted in the UN Standard Rules, in the Comment the term “persons with disabilities” is used rather than the older term “disabled persons” because “the latter term might be misinterpreted to imply that the ability of the individual to function as a person has been disabled” (paras. 3–4).

  56. 56.

    This act also defines the term “handicap,” recognizing that it “depends on the person’s relationship with his environment […]” (see para. 5.2).

  57. 57.

    See Recommendation Rec (2006) 5 of April 5, 2006.

  58. 58.

    http://www.achpr.org/news/2014/04/d121. Accessed January 29, 2015.

  59. 59.

    See Article 10 of the TFEU, which states that “in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age,” and Article 19 on the legislative power of the Council and the role of European Parliament in this field.

  60. 60.

    Cf. Forastiero (2014).

  61. 61.

    See Council Decision 2010/48/EC of November 26, 2009, concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, O.J.L. 23 of 27.1.2010). The CRPD is the first human rights treaty to which the EU has become a party. Cf. Waddington (2009), pp. 111–140; De Búrca (2010), pp. 174–196; Reiss (2012), pp. 18–23.

  62. 62.

    See the Appendix to the Declaration of Competence annexed to Decision 2010/48/EC and the Code of Conduct between the Council, the Member States, and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities (2010/C 340/08). Cf. Waddington (2011).

  63. 63.

    See CRPD Committee, Initial report of the EU, CRPD/C/EU/1, December 3, 2014, para. 20.

  64. 64.

    See ECJ, Case C-13/05, Chacòn Navas v. Eurest Collectividades SA, judgment of July 11, 2006.

  65. 65.

    Ibid., para. 30.

  66. 66.

    Ibid., para. 43.

  67. 67.

    Ibid., para. 44.

  68. 68.

    See Opinion of Advocate General Geelhoed, case C-13/05, Chacón Navas v. Eurest Colectividades SA, March 16, 2006, paras. 78 and 58.

  69. 69.

    See ECJ, Case C-303/06, Coleman v. Attridge Law and Steve Law, judgment of July 17, 2008.

  70. 70.

    See CJEU (second Chamber), Joined Cases C-335/11 and C-337/11, HK Danmark (Ring and Skouboe Werge), judgment of April 11, 2013. Cf. Waddington (2013).

  71. 71.

    See paras. 37–39 of the judgment.

  72. 72.

    See CJEU, Case C-363/12, Z. v. A Government department, The Board of management of a community school, judgment of March 18, 2014, paras. 71–72.

  73. 73.

    Ibid., paras. 76–77. According to the CJEU, the condition of Ms Z., who had no uterus, “constitutes a limitation which results in particular from physical, mental or psychological impairments, or that it is of a long-term nature. In particular, it cannot be disputed that a woman’s inability to bear her own child may be a source of great suffering for her. However, the concept of ‘disability’ within the meaning of Directive 2000/78 presupposes that the limitation from which the person suffers, in interaction with various barriers, may hinder that person’s full and effective participation in professional life on an equal basis with other workers” (paras. 79–80). For the Court, Ms Z.’s condition by itself does not make impossible for her to carry out her work or constitutes a hindrance to the exercise of her professional activity and for these reasons, her condition is not a “disability” within the meaning of Directive 2000/78/EC (paras. 81–82).

  74. 74.

    See European Commission (2014), p. 8.

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    Valentina Della Fina

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    Valentina Della Fina

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    Rachele Cera

  3. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Giuseppe Palmisano

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Fina, V.D. (2017). Article 1 [Purpose]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_5

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