International Law on the Rights of Children with Disabilities

Abstract

Many states, including African states, are party to various international human rights treaties that contain international law pertaining to the rights of children with disabilities. The treaties include the Convention on the Rights of Persons with Disabilities, Convention on the Rights of the Child, and, at the African regional level, the African Charter on the Rights and Welfare of the Child. The chapter seeks to identify the approach that the applicable treaties take in setting out the international law applicable to the rights of children with disabilities. The chapter observes that the applicable international law takes a particular approach in providing for the rights of children with disabilities. The chapter refers to the approach as the “human rights based approach” to disability which puts emphasis on the need to regard children with disabilities as rights holders that are entitled to full human rights enjoyment on an equal basis with other children.

Introduction and Background

Many states, including states in Africa, are party to various international human rights treaties that contain international law pertaining to the rights of children with disabilities. The treaties include the Convention on the Rights of Persons with Disabilities (CRPD 2006), Convention on the Rights of the Child (CRC 1989), and, at the African regional level, the African Charter on the Rights and Welfare of the Child (African Children’s Charter 1990). Despite these guarantees, most children with disabilities in several countries do not enjoy human rights on an equal basis with other children. Indeed, the Committee on the Rights of Persons with Disabilities (CRPD Committee) and the Committee on the Rights of the Child (CRC Committee) have confirmed and raised concerns at this position upon examining various states parties’ reports. For example, the CRPD Committee has highlighted various challenges facing children with disabilities, including the following:

• The placement of children with disabilities in institutions (institutionalization), which results in their exclusion from the society or community (CRPD/C/ARM/CO/1 Armenia 2017a; CRPD/C/HRV/CO/1 Croatia 2015c; CRPD/C/BEL/CO/1 Belgium 2014a; CRPD/C/EU/CO/1 European Union 2015e; CRPD/C/GTM/CO/1 Guatemala 2016d; CRPD/C/CZE/CO/1 Czech Republic 2015d);

• The lack of state support, including early intervention, for children with disabilities and their families (CRPD/C/ARM/CO/1 Armenia 2017a; CRPD/C/SVK/CO/1 Slovakia 2016g; CRPD/C/CYP/CO/1 Cyprus 2017b);

• The fact that children with disabilities face various forms of neglect, violence, and abuse, including in domestic and institutional settings (CRPD/C/ARM/CO/1 Armenia 2017a; CRPD/C/GTM/CO/1 Guatemala 2016d; CRPD/C/JOR/CO/1 Jordan 2017c; CRPD/C/HRV/CO/1 Croatia 2015c);

• The lack of mechanisms/opportunities to ensure the systematic inclusion or participation of children with disabilities in the making/taking of decisions which affect their lives (CRPD/C/DEU/CO/1 Germany 2015f; CRPD/C/QAT/CO/1 Qatar 2015i; CRPD/C/MNG/CO/1 Mongolia 2015h; CRPD/C/MDA/CO/1 Republic of Moldova 2017d; CRPD/C/MEX/CO/1 Mexico 2014c; CRPD/C/LTU/CO/1 Lithuania 2014b; CRPD/C/BRA/CO/1 Brazil 2015a);

• The prevalence of the welfare and charity-based approach to the care of children with disabilities (CRPD/CO/MEX/CO/1 Mexico 2014c);

• The overreliance of the state on non-governmental organizations to provide specialized services to children with disabilities without the necessary support, monitoring, and regulatory guidance for these organizations (CRPD/CO/MUC/CO/1 Mauritius 2015g);

• The difficulty faced by children with disabilities in accessing curtain government services, including health and education services (CRPD/C/CYP/CO/1 Cyprus 2017b; CRPD/C/NZL/CO/1 New Zealand 2014d); and

• The fact that legislation and policies fail to provide protection for the rights of children with disabilities (CRPD/C/UGA/CO/1 Uganda 2016h; CRPD/C/QAT/CO/1 Qatar 2015i).

At the regional level, various studies have also made this observation with regard to children with disabilities in Africa (African Child Policy Forum (ACPF) 2011a). For example, studies have established that children with disabilities in Africa often live in conditions of abject poverty; are victims of violence, exploitation, abuse, and harmful traditional practices; lack access to health, rehabilitation, and welfare services; and are neglected by parents; and little action is taken to meet their needs (ACPF Forum 2011b; Ransom 2008). Furthermore, in certain African societies, children with disabilities are killed, neglected, or not sent to school to attain an education due to negative stereotypes (Filmer 2008; Marongwe and Mate 2007; Choruma 2006). This includes being hidden or prevented from engaging with the rest of the community as they are perceived as “a ‘disgrace’ to their families” and are regarded as symbolizing a “punishment from the gods on the family” (Combrinck 2008; Biegon 2011). Persons/children with albinism in various African countries such as Malawi, Tanzania, Kenya, and Uganda are often subjected to attacks, abductions, and killings on the basis that their body parts could be used for certain traditional rituals (Human Rights Council 2016; Chilemba 2016; News 24 2015). Therefore, it can be observed that children with disabilities in many societies face various obstacles, including discrimination, exclusion, and marginalization, which prevent them from enjoying human rights on an equal basis with other children. This position stands in sharp contrast to the opportunities for human rights enjoyment provided by the applicable international human rights law, including the three treaties mentioned above.

The chapter attributes the problem to the lack of appropriate national implementation of the applicable international law by the states concerned. Consequently, the chapter is based on the underlying assumption that one of the main ways of addressing this problem would require states to undertake measures that ensure the appropriate national implementation of the applicable international law. For this to be the case, the states must have an understanding of this applicable international law. Accordingly, the chapter interrogates the law with a view of deciphering the approach that the law takes in providing for the rights of children with disabilities. States parties to the CRPD and other applicable treaties such as the CRC will be expected to ensure that they take national implementation measures that reflect this approach in order to achieve the appropriate implementation of this international law. This will significantly contribute to improving the human rights situation facing children with disabilities.

In terms of its scope, the chapter focuses on international law set out in international human rights treaties that contain explicit provision on the rights of children with disabilities. These include the CRPD and the CRC, on which the chapter focuses. It also looks at the law set out in treaties adopted at the regional level that contain provisions that expressly set out the rights of children with disabilities. In this regard, it looks at the African Children’s Charter and, briefly, the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (Draft African Disability Protocol). Both the African Children’s Charter and the Draft African Disability Protocol contain specific provisions that expressly set out the rights of children with disabilities. The chapter also provides a brief discussion of African regional treaties that expressly contain disability provisions. In addition, the chapter does not deal with the legal content of individual substantive rights of children with disabilities. Instead, it explores the approach that the international law (in the form of treaties) takes in setting out the obligations to be discharged in implementing the rights of children with disabilities in general at national level. Accordingly, the chapter seeks to answer the following main question: Which approach does international law take in providing for the rights of children with disabilities?

The chapter first gives the introduction and background to the study including insights into the deplorable human rights situation facing children with disabilities in various countries of the world. Secondly, it explores the applicable international law by looking into treaties that have specific provisions on children with disabilities. This part also looks into the insights provided by the pertinent treaty monitoring bodies, the Committee on the Rights of Persons with Disabilities (CRPD Committee) and the Committee on the Rights of the Child (CRC Committee), especially through the concluding observations adopted by the bodies. This exercise ends with an analysis of the approach that contemporary international law takes in making provision for the rights of children with disabilities. The fourth part draws the pertinent conclusions.

Exploration of the Applicable International Human Rights Law

Introductory Remarks

International law pertaining to the rights of children with disabilities, for the purposes of this work, refers to the body of all UN human rights treaties which contain provisions on the rights of, and those that are applicable to, children with disabilities. The pertinent international law also includes the applicable law at the African regional level since, as highlighted above, the selected regional treaties (and draft treaty) make express provision for the rights of children with disabilities. Accordingly, the treaties that contain the applicable international law and on which this chapter focuses include the CRPD, the CRC, and the African Children’s Charter. There are also a number of disability-specific non-binding instruments that have played a part in the development of the rights of children with disabilities under international law. These instruments include the World Programme of Action Concerning Disabled Persons (WPA 1982) and the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (Standards Rules 1992). It is not within the scope of this chapter to provide a discussion of these soft law instruments.

It is noteworthy that disability was initially not regarded as a human rights issue but as a subject of pity and charity which required welfare and social policy-based interventions (Flovenz 2009). This conceptualization was based on the medical and welfare approach to disability which attributed the challenges faced by persons with disabilities to their impairments and hence focused on clinical-, medical-, and welfare-based interventions (Quinn and Degener 2002; Traustadottir 2009; Kanter 2003). Since disability was regarded as a social welfare issue, the earlier UN human rights treaties adopted before the CRC did not contain provisions on the rights of persons with disabilities (Byrne 2012). These UN treaties are the following: the International Covenant on Civil and Political Rights (ICCPR 1966), the International Covenant on Economic Social and Cultural Rights (ICESCR 1966), the Universal Declaration of Human Rights (UDHR 1948), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD 1965), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT 1984), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW 1979), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention 1990), and the International Convention for the Protection of All Persons from Enforced Disappearance (Enforced Disappearances Convention 2006). It must be acknowledged that the 1948 Universal Declaration of Human Rights (UDHR), which together with the ICCPR and the ICESCR constitute the International Bill of Rights (Schulze 2010; Quinn and Degener 2002), does make express reference to disability by recognizing “the right to security in the event of unemployment, sickness, disability” (art 25(1)). However, the UDHR is a declaration as opposed to a treaty and as such it does not impose binding obligations upon states unless the states concerned regard it, or some of its provisions, as having attained the status of customary international law.

Of course, these general UN human rights treaties, including the ICCPR and the ICESCR, are relevant to the enjoyment of the rights of children with disabilities since they contain rights that are supposed to be enjoyed by all persons, including children, or categories of persons falling within the realm of the protection provided by the treaties. However, the general treaties do not make express reference to disability or the rights of persons/children with disabilities with the effect that they do not provide a sufficient framework to ensure full human rights enjoyment by children with disabilities. For example, Byrne has argued that “[w]ith limited exceptions, the core UN human rights treaties have not expressly addressed the human rights of children with disabilities” (Byrne 2012).

Indeed, Stein and Lord have highlighted that a person/child with disability would be required to either “fall under a universal provision that by inference includes her as a person, or possess a separately protected characteristic in addition to her disability” in order to be covered by the protection that the general treaties offer (Stein and Lord 2009). The two authors acknowledge that this approach has an inherent difficulty because the “existing human rights obligations are not tailored to address the specific barriers faced by persons with disabilities” (Stein and Lord 2009). As a result, reliance would have to be placed on the General Comments that have been adopted by the monitoring bodies. However, General Comments do not impose binding obligations on states parties as they only provide “useful guidance on how to interpret” the various treaty provisions (Steiner et al. 2007; Quinn and Degener 2002; Bruce et al. 2002; Kalantry et al. 2010). Consequently, before the adoption of the CRC, disability issues were relegated to the non-binding soft law instruments (Flovenz 2009).

However, the shift that occurred in the approach to disability from the medical to the social and human rights models resulted in disability being regarded as a human rights issue (Quinn and Degener 2002). Unlike the medical model, the social and human rights models attribute the challenges faced by persons with disabilities to the barriers that exist in the environment which impede persons/children with disabilities from participating in the society on an equal basis with others (Kanter 2003; Combrinck 2008; Quinn and Degener 2002). The human rights model goes a step beyond the social model by recognizing that the state has the duty to eliminate the barriers and create accommodating environments in order to ensure the participation in the society and full enjoyment of human rights by persons/children with disabilities on an equal basis with others (Quinn and Degener 2002). Following this shift in the conceptualization of disability (from the medical to the social and human rights models), human rights treaties replicated the soft law initiatives and began making provision for the rights of persons with disabilities (Quinn and Degener 2002). The development of the human rights approach to disability culminated in the adoption of the CRPD (discussed in section “Convention on the Rights of Persons with Disabilities” below).

International Law Specifically Applicable to Ch ildren with Disabilities

Convention on the Rights of the Child

The Convention on the Rights of the Child (CRC) is the only global treaty that specifically provides for the rights of all children. It provides for the law relating to the rights of children with disabilities in four ways: It expressly guarantees children with disabilities the right to freedom from disability-based discrimination; it has specific provisions on the rights of children with disabilities, on which this chapter and this discussion focuses; it has four cardinal principles that are crucial for the enjoyment of the rights of all children, including children with disabilities; and it provides for general substantive rights for all children. For example, with regard to non-discrimination, the CRC expressly recognizes the right to freedom from disability-based discrimination by listing disability among the prohibited grounds of discrimination (Art. 2(1)). The CRC is the first global human rights treaty to explicitly list disability in its general anti-discrimination provision (CRC/C/GC/9/Corr.1 2006). The right affords protection from discrimination on the basis of the child’s disability or the disability of the child’s parent or legal guardian (Art. 2(1); Detrick 1999). The Committee on the Rights of the Child (CRC Committee), which is established under Article 43 to monitor the Convention’s implementation, has further elaborated the rights of children with disabilities in General Comment No. 9.

Disability-Specific Rights

The CRC makes specific provision for other rights of children with disabilities in Article 23 in four separate paragraphs. Paragraphs 1 and 2 of Article 23 provide the following:

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child.

It is noteworthy that this Article is one of the few provisions in the CRC to which no reservations or declarations have been entered by States Parties (CRC/C/GC/9/Corr.1 2006). Thus, there is wide acceptance by States Parties of the obligations imposed by this provision in guaranteeing the specific rights of children with disabilities. The CRC Committee has elaborated on the contents of the Article and on the rights of children with disabilities broadly in General Comment No. 9. It has further given insights into the Article in its concluding observations adopted after examining various states parties’ report. In terms of General Comment No. 9, the Committee has stated that the leading principle relating to the rights of children with disabilities is found in the first paragraph of Article 23 since it guarantees the right to inclusion and active participation in the society. In this respect, the Committee has highlighted in paragraph 11 of the General Comment that states must take measures aimed at realizing the goal of including children with disabilities in the society (CRC/C/GC/9/Corr.1 2006). In its various concluding observations, the Committee has bemoaned the exclusion of children with disabilities from the society, especially through the placement of children with disabilities in institutions (CRC/C/ROU/CO/5 Romania 2017j; CRC/C/SRB/CO/2-3 Serbia 2017l). In this regard, the Committee has urged States Parties to the CRC to take appropriate measures that will ensure the inclusion of children with disabilities in the society (CRC/C/ATG/CO/2 Antigua and Barbuda 2017a; CRC/C/BRB/CO/2 Barbados 2017b; CRC/C/CMR/CO/3-5 Cameroon 2017d; CRC/C/CAF/CO/2 Central African Republic 2017e; CRC/C/EST/CO/2-4 Estonia 2017f; CRC/C/GEO/CO/4 Georgia 2017g; CRC/C/MWI/CO/3-5 Malawi 2017h; CRC/C/MNG/CO/5 Mongolia 2017i; CRC/C/SRB/CO/2-4 Serbia 2017l).

The second paragraph of Article 23 provides for the right to special care which requires the extension of assistance to children with disabilities who are eligible to benefit and to those who are responsible for their care (CRC/C/GC/9/Corr.1 2006; Quinn and Degener 2002). In terms of the second and third paragraphs of Article 23, the special care and assistance must be provided free of charge subject to (the maximum extent of) available resources, although states are required to regard the implementation of the right as a matter of high priority in ensuring the maximum inclusion of children with disabilities in the society (CRC/C/GC/9/Corr.1 2006; Detrick 1999). Furthermore, the special care to be provided must be designed to achieve effective access by children with disabilities to crucial rights and services, including education and training and healthcare and recovery services (Art. 23(3), CRC/C/GC/9/Corr.1 2006). The CRC Committee has further emphasized the need for States Parties to the CRC to provide care and assistance to children with disabilities and their families. According to the Committee, the assistance should be provided in the form of, among others, social protection and poverty reduction programs (CRC/C/CAF/CO/2 Central African Republic 2017e); adequate support payments and services for all children with disabilities, including those with severe or profound disabilities (CRC/C/EST/CO/2–4 Estonia 2017f); and “services for children and parents and/or through financial support and assistance to parents who are unable to work and generate income because they provide constant care and assistance to a child with a disability” (CRC/C/SRB/CO/2–4 Serbia 2017l). Lastly, the CRC Committee has explained that Article 23(4) guarantees all children the “right to benefit from prevention and treatment of disabilities.” In this regard, the Committee urges states parties to explore effective strategies for preventing disabilities (CRC/C/GC/9/Corr.1 2006). Accordingly, States Parties to the CRC are required to take measures that check the “causes of disabilities” such as poverty. Indeed, poverty and disability constitute a vicious circle in that the two reinforce each other. Poverty might lead to factors that cause “preventable” impairments such as diseases, including maternal and prenatal diseases, malnutrition, injuries, and failure to afford quality healthcare services (UNICEF 2013). Persons/children with disabilities face obstacles that lead to, or perpetuate, poverty such as discrimination and marginalization in the society and lack of access to crucial services such as education, employment, and healthcare facilities (UNICEF 2013).

A look into the various concluding observations adopted by the CRC Committee gives an indication of the measures and obligations that the Committee expects States Parties to take and discharge respectively in realizing the rights of children with disabilities set out under Article 23. The measures put emphasis on two particular obligations. First, states must take measures, such as having a comprehensive strategy, policy, or law, that facilitate the full inclusion of children with disabilities, including those with intellectual and psychosocial disabilities, in all areas of public life (CRC/C/ATG/CO/2 Antigua and Barbuda 2017a; CRC/C/BRB/CO/2 Barbados 2017b; CRC/C/CAF/CO/2 Central African Republic 2017e; CRC/C/EST/CO/2-4 Estonia 2017f; CRC/C/GEO/CO/4 Georgia 2017g; CRC/C/MWI/CO/3-5 Malawi 2017h; CRC/C/MNG/CO/5 Mongolia 2017i). Second, states must adopt the human rights-based approach to disability in conceptualizing issues and rights relating to children with disabilities (CRC/C/BRB/CO/2 Barbados 2017b; CRC/C/BTN/CO/3-5 Bhutan 2017c; CRC/C/CAF/CO/2 Central African Republic 2017e; CRC/C/CMR/CO/3-5 Cameroon 2017d; CRC/C/EST/CO/2-4 Estonia 2017f; CRC/C/GEO/CO/4 Georgia 2017g; CRC/C/VCT/CO/2-3 Saint Vincent and the Grenadines 2017k; CRC/C/SRB/CO/2-4 Serbia 2017l). Accordingly, ensuring inclusion and taking the human rights approach to disability are two of the major state obligations that States Parties to the CRC must discharge in order to achieve the appropriate implementation of the rights of children with disabilities under Article 23 of the Convention.

Cardinal Principles

The CRC Committee has identified the best interest of the child, child’s survival and development, and child participation, in addition to non-discrimination, as the four cardinal principles for the implementation of the CRC (CRC/C/5; CRC/GC/2003/5; CRC/C/GC/14; Kilkelly 2002). Firstly, the best interest of the child principle, which is derived from Article 3 of the CRC, expects the best interest of children, as individuals or a group, to be one of the primary considerations in any undertaking concerning children with a view to maximize the enjoyment of their rights and interests (CRC/GC/2003/5; Karp 1998; Mezmur 2008; Kilkelly 2002). Secondly, the concept of child’s life, survival, and development recognizes that the child is entitled to live, survive, and develop. The principle is derived from Article 6 of the CRC. Article 6(2) provides that “States Parties shall ensure to the maximum extent possible the survival and development of the child.” The principle is related to the right to life and to other rights such as education and health which ensure the survival and development of children to self-sustenance and independent living (World Health Organisation (WHO), World Bank 2011). In order to respect the principle, states are required to identify and address all challenges that threaten the life, survival, and development of children (Karp 1998).

Thirdly, the principle of child participation recognizes that children are not docile or “lesser human beings” but partners and participants, whose views must be heard and given due weight, in taking actions that affect them (CRC/GC/2003/5; Karp 1998). The principle is derived from Article 12 of the CRC (Lucker-Babel 1995; Lundy 2007). The principle also entails meaningful participation through effective engagement and consultation. Hence, it expects the state to involve the children with disabilities themselves or organizations of persons with disabilities (OPDs/DPOs) in developing child-related policies, laws, or other related measures (Sloth-Nielsen and Mezmur 2007). Lastly, the principle of non-discrimination, among others, entails the recognition of children’s equality and their protection from discrimination in law and in practice (CRC/GC/2003/5; Karp 1998). The principle is derived from Article 2 of the CRC, which provides for the right to equality and freedom from discrimination, as explained above.

The four cardinal principles have been hailed for emphasizing the equal dignity of all children. For example, Karp has observed that “…the four general principles of the Convention are the cornerstones of the human dignity of the child” (Karp 1998). Accordingly, they have a significant role to play in protecting the human rights of children with disabilities whose dignity is often not respected due to the various obstacles they face that impede their human rights enjoyment. In addition, the principles are particularly significant in the realization of the rights of all children, including children with disabilities, as they are not only directly derived from the CRC but they are also expected to guide the implementation of all the rights contained in the CRC (Kilkelly 2002).

Observations

As the analysis above suggests, the CRC appears to constitute a laudable framework for the enjoyment of the rights of children with disabilities for a number of reasons. These include expressly guaranteeing the right to freedom from disability-based discrimination in the enjoyment of all human rights contained in the CRC (in Article 2) and setting out disability-specific obligations (in Article 23) that seek to facilitate the inclusion of children with disabilities in the society. In addition, the CRC Committee has highlighted that the core obligations inherent in Article 23 include the need for states to take measures that ensure inclusion and the human rights-based approach to disability. Furthermore, the fact that, as discussed above, Article 23 of the CRC is one of the few provisions without any reservations implies that there is a wide acceptance of the obligations that the Article imposes. The emphasis that the CRC places on the obligations to ensure the inclusion of children with disabilities in the society and the need to take the human rights approach to disability are significant. This is the case since the exclusion of children with disabilities from the society is one of the major causes for the lack of their human rights enjoyment (ACPF 2011a; Grobbelaar-du Plessis and Van Reenen 2011).

However, the framework under the CRC also has a number of drawbacks. First, the approach taken by the text of the disability-specific provision in Article 23 has cast doubts on its potential to ensure full human rights enjoyment by children with disabilities (Byrne 2012; Kilkelly 2002; Singh and Ghai 2009). For example, although Article 23(2) guarantees children with disabilities the right to “special care,” it does not indicate how the “care” should be achieved (Kilkelly 2002; Byrne 2012). Above all, the language and terminology used in the provision’s text (in addition to General Comment No. 9) is considered to be “heavily grounded in a welfarist and medicalised approach to disability” (Byrne 2012). This is because, as observed above, the provisions put emphasis on the entitlement of children with disabilities to “special care,” “treatment,” and “rehabilitation,” which suggests the perception that children with disabilities are individuals who require predominantly “protective measures” as opposed to being generally regarded as rights holders (Byrne 2012).

It must be acknowledged, however, that it might be argued that the emphasis on special measures of protection should be understood as a substantive equality measure requiring specific measures/actions to be taken to ensure full human rights enjoyment by children with disabilities on an equal basis with other children. Nonetheless, the terminology embodies elements of the outmoded welfarist approach to disability. This notwithstanding, the terminology need not cause anxiety since, as explained above, the CRC Committee in its concluding observations has repeatedly stated that states must not take a welfarist approach to disability in addressing issues relating to children with disabilities but they must embrace a human rights-based approach (CRC/C/BRB/CO/2 Barbados 2017b; CRC/C/BTN/CO/3-5 Bhutan 2017c; CRC/C/CAF/CO/2 Central African Republic 2017e; CRC/C/CMR/CO/3-5 Cameroon 2017d; CRC/C/EST/CO/2-4 Estonia 2017f; CRC/C/MWI/CO/3-5 Malawi 2017h; CRC/C/MNG/CO/5 Mongolia 2017i; CRC/C/ROU/CO/5 Romania 2017j). Therefore, the outdated terminology employed by the text of the CRC is just a reflection of the approach to disability prevailing at the time the CRC was being adopted. The CRC Committee has thus confirmed that the obligations of states parties must move away from this welfarist approach and must reflect the contemporary approach. Perhaps the drawback could be the fact that the “remedy” has not been provided through an amendment to the text but through concluding observations which do not have the same binding effect on states as is the case with treaty provisions. Consequently, in terms of the letter of the law contained in the CRC, the welfarist-based terminology could continue to be the treaty’s major drawback. In the absence of state adherence to the concluding observations adopted by the CRC Committee, this drawback implies that the CRC only manages to address the challenges faced by children with disabilities on account of their status as children but does not adequately address the challenges that they face on account of their status as children with disabilities, thereby “coincidentally” causing children with disabilities to face the same conundrum that the other core UN treaties failed to address (Byrne 2012). There was thus a need to have Article 23 amended, or to adopt a human rights treaty that could resolve this conundrum. Indeed, as will be discussed below, the CRPD was eventually adopted.

Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities (CRPD) is the only global treaty that specially guarantees the rights of all persons with disabilities. It provides for the rights of children with disabilities in three ways: guaranteeing non-discrimination, containing a dedicated provision that sets out the rights of children with disabilities, and setting out general substantive rights which also apply to children with disabilities. With regard to freedom from discrimination, the CRPD recognizes the concept (of non-discrimination) in three ways: Firstly, non-discrimination is one of the CRPD’s general principles under Article 3 (Art. 3(b)). (The other seven general principles listed in CRPD Article 3 are respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; full and effective participation and inclusion in the society, respect for difference and acceptance of persons with disabilities as part of human diversity and humanity, equality of opportunity, accessibility, equality between men and women, and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities). Secondly, equality and non-discrimination is a specific substantive right under Article 5. Lastly, the CRPD also contains a number of substantive rights which are expressly required to be enjoyed without discrimination on the basis of disability (e.g., Art. 24(1), education; Art. 25(1), health; Art. 18(1) (a), right to acquire nationality; Art. 28(1), social protection) and rights that must be enjoyed “on an equal basis with others” (e.g., Art. 9, accessibility; Art. 10, life). The CRPD in Article 2 defines discrimination on the basis of disability as including denial of reasonable accommodation. The Article defines reasonable accommodation as:

necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

With regard to Article 5, which guarantees the right to equality and freedom from discrimination, the CRPD, among others, obliges states to ensure the provision of reasonable accommodation to all persons with disabilities in order to protect them from disability-based discrimination and achieve substantive equality (CRPD Committee, H.M v Sweden 2011; Szilvia Nyusti, Péter Takács & Tamás Fazekas v Hungary 2013; Liliane Gröninger v Germany 2014; Kayess and French 2008). Article 5 further allows states to take specific measures, which include “temporary (affirmative action) measures,” to foster de facto/substantive equality (CRPD/C/SLV/CO/1* El Salvador 2013c; Schulze 2010). The content of Article 5 implies that the CRPD emphasizes substantive equality (Waddington 2009). Therefore, the CRPD provides the highest normative standard of the right to freedom from disability-based discrimination by expressly including the obligation to provide reasonable accommodation as an element of the right.

Disability-Specific Rights of Children With Disabilities

The CRPD makes specific provision for children with disabilities in four ways: Its preamble expressly makes reference to children with disabilities, it explicitly contains a general principle that addresses children with disabilities, it has a particular Article that sets out the rights of children with disabilities, and it provides for particular rights of children with disabilities that are contained in the general provisions of the Convention. First, the CRPD preamble expressly recognizes the entitlement of all children with disabilities to enjoy all human rights on an equal basis with other children and acknowledges the obligations undertaken by states parties to the CRC in respect of the rights of children with disabilities (para (r)). Secondly, it recognizes the respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities among its eight general principles (Art. 3(h)).

Thirdly, the CRPD has a specific Article that sets out the rights of children with disabilities in Article 7 in three separate paragraphs. The Article provides the following:

1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.

3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.

A number of observations can be made regarding Article 7. Firstly, the Article recognizes the entitlement by children with disabilities to the full enjoyment of all human rights on an equal basis with other children (Art. 7(1)). (This provision is complemented by Article 6(1) with regard to girls with disabilities by requiring states “to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.”) Secondly, Article 7 requires the best interests of a child to be respected in all matters affecting children with disabilities (Art. 7(2)). Lastly, the Article guarantees children with disabilities the right to participate in the decision-making processes affecting them (Art. 7(3)).

It is noteworthy that the last two sub-Articles of Article 7 (Art. 7(2), Art. 7(3)) also reiterate the two of the four cardinal principles of the CRC, namely, the best interests of the child principle and child participation, discussed in section “Convention on the Rights of the Child” above. However, the striking similarity is that both the CRC and the CRPD require the best interests of a child to be “a” (as opposed to “the”) primary consideration, thereby not making it the ultimate overriding or paramount consideration (Byrne 2012). Furthermore, the CRPD, just like the CRC, recognizes the best interests principle as the overriding consideration in Article 23 in matters relating to guardianship, trusteeship, wardship, or adoption of children with disabilities (CRPD Art. 23(2); Byrne 2012).

For its part, the principle of participation is provided for in Article 7(3). The provision recognizes the right of children with disabilities to express their views freely on any matters that affect them and the right to have their views given due weight in accordance with their age and maturity. It also includes the entitlement to be given disability and age-appropriate assistance to enable them to exercise the right. It is noteworthy that the CRPD provides for a higher standard of the right as compared to the CRC by not restricting the exercise of the right to “a child who is capable of forming own views” in contrast to the position taken by the CRC (Byrne 2012). In addition, the CRPD in Article 4(3) expressly obliges states to ensure that persons with disabilities, including children with disabilities, actively and meaningfully participate in the development of policies and legislation for the implementation of the CRPD and in decision-making processes concerning persons/children with disabilities (CRPD/C/PER/CO/1 Peru 2013d; CRPD/C/AUS/CO/1 Australia 2013a; CRPD/C/AUT/CO/1 Austria 2013b).

The CRPD Committee is yet to interpret the provisions in Article 7 through a General Comment although it has adopted General Comments in respect of Article 12, Equal recognition before the law; Article 9, Accessibility; Article 6, Women and girls with disabilities; and Article 24, Right to inclusive education. Nonetheless, it has given insights into the Article through the concluding observations adopted after examining states parties’ reports.

The concluding observations give an indication of the measures and obligations that the Committee expects states parties to the CRPD to take and discharge, respectively, in implementing the rights of children with disabilities set out under Article 7. The measures put the emphasis on three particular obligations. First, states must take measures, such as having a comprehensive strategy, policy, or law, that facilitate the full inclusion of children with disabilities in all aspects of the community and life, through deinstitutionalization and other means (CRPD/C/ARM/CO/1 Armenia 2017a; CRPD/C/BOL/CO/1 Bolivia 2016a; CRPD/C/COL/CO/1 Colombia 2016c; CRPD/C/CAN/CO/1 Canada 2017; CRPD/C/HRV/CO/1 Croatia 2015c; CRPD/C/CZE/CO/1 Czech Republic 2015d; CRPD/C/EU/CO/1 European Union 2015e; CRPD/C/MEX/CO/1 Mexico 2014c; CRPD/C/MDA/CO/1 Republic of Moldova 2017d; CRPD/C/SRB/CO/1 Serbia 2016f; CRPD/C/SVK/CO/1 Slovakia 2016g). Second, states parties to the CRPD must put in place appropriate mechanisms that ensure the meaningful and active participation of children with disabilities, themselves or through their representatives, in the decision-making process involving all issues that concern or affect them (CRPD/C/BRA/CO/1 Brazil 2015a; CRPD/C/COK/CO/1 Cook Islands 2015b; CRPD/C/HRV/CO/1 Croatia 2015c; CRPD/C/CYP/CO/1 Cyprus 2017b; CRPD/C/MDA/CO/1 Republic of Moldova 2017d; CRPD/C/MNG/CO/1 Mongolia 2015h; CRPD/C/QAT/CO/1 Qatar 2015i; CRPD/C/UGA/CO/1 Uganda 2016h). Lastly and above all, states must take measures that ensure full human rights enjoyment by children with disabilities on an equal basis with other children (CRPD/C/MUS/CO/1 Mauritius 2015g; CRPD/C/EU/CO/1 European Union 2015e). Accordingly, ensuring inclusion through deinstitutionalization and other means, ensuring full human rights enjoyment (by taking the human rights approach to disability), and ensuring participation are three of the major state obligations required in terms of Article 7.

Therefore, the underlying theme of Article 7, going by the concluding observations adopted by the Committee, is the need to ensure that children with disabilities are included in the community where they enjoy human rights on an equal basis with others and where they are regarded as active participants in the making of decisions that affect them.

Fourthly, the CRPD accords all children with disabilities other specific substantive rights within its general provisions. The rights include what could be regarded as survival and developmental rights in terms of the CRC’s cardinal principles. For example, it guarantees children with disabilities the right to a name, nationality, and to know and be cared for by parents, including the right to be registered upon birth (Art. 18(2)). Similarly, it sets out the rights of children with disabilities pertaining to alternative care and adoption under Article 23, which includes the right to family-type alternative care that should prioritize care within the immediate family (Art. 23(2), (3), and (5)). Furthermore, Article 16 guarantees the right to freedom from all forms of exploitation, violence, and abuse. In addition, the CRPD requires states to take into consideration the “age specific needs” of persons with disabilities in “supporting the recovery rehabilitation, and social integration of persons with disabilities who become victims of any form of exploitation, violence or abuse” (Art. 16(4); Byrne 2012). This implies that states must take measures that consider the childhood and age of children with disabilities when implementing the right and also facilitating their inclusion in the society (CRPD/C/SLV/CO/1* El Salvador 2013c).

The CRPD further obliges states to “identify, investigate and prosecute instances of exploitation, violence and abuse” through implementing legislation and policies, which must include child-focused laws and policies (Art. 16(5)). Furthermore, Article 25(b) of the CRPD imposes an obligation on states parties to provide health services that persons/children with disabilities would need specifically because of their disabilities, including early identification and intervention, and to provide services designed to prevent further disabilities. Lastly, the CRPD in Article 30(3) (d) imposes obligations on the state to ensure access by children with disabilities to participate “in play, recreation, leisure and sporting activities, including those activities in the school system” (Byrne 2012).

Therefore, the CRPD takes an approach that sets out in explicit terms the rights that should be exercised by children with disabilities by dedicating a specific provision to children with disabilities and also expressly mentioning children with disabilities in other provisions that set out rights guaranteed to persons with disabilities in general.

Observations

The discussion relating to the CRPD above demonstrates that the Convention expressly regards children with disabilities as subjects or holders of rights. The CRPD highlights this fact in Article 7(1), which explicitly recognizes the entitlement by children with disabilities to the full enjoyment of all human rights “on an equal basis with other children.” In addition to Article 7, the CRPD provides for the rights of girls with disabilities (who are in fact female children with disabilities) in Article 6. Among others, Article 6(1) highlights the fact that states parties have the obligation to take measures to ensure the full and equal enjoyment of all human rights and fundamental freedoms by girls (and women) with disabilities. This provision embodies the human rights approach as it regards girls with disabilities as rights holders.

Indeed, the CRPD Committee has emphasized the human rights-based approach that the CRPD takes in interpreting the rights of women and girls with disabilities set out in Article 6. The Committee has observed that Article 6 “is a response to the lack of recognition of the rights of women and girls with disabilities” and that “States parties [must] go beyond refraining from discriminatory actions, to adopting measures aiming at the development, advancement and empowerment of women and girls with disabilities and promote measures to empower them, by recognizing these constituencies as distinct right holders.” The Committee highlights that “Article 6 serves as an interpretation tool to approach the responsibilities of States parties across the Convention, to promote, protect and fulfill the human rights of women and girls with disabilities, from a human rights-based approach and a development perspective” (CRPD/C/GC/3(CRPD 2016i)) (emphasis added by author)).

Accordingly, the CRPD takes what can be referred to as the “human rights based approach” to disability in conceptualizing the human rights guarantees for children/persons with disabilities. This is the case because the CRPD regards disability as a human rights issue and perceives children with disabilities as rights holders, as emphasized above. In this way, it fills the gap that existed in international human rights law in respect of this approach. For this reason, the other UN general treaties, including the CRC, are still significant as they, together with the CRPD, constitute the international law pertaining to the rights of children with disabilities. Indeed, it was highlighted by Quinn and Degener in 2002 before the CRPD was drafted that “even if a convention is adopted at some point in the future; it will still be necessary to obtain maximum advantage from the existing human rights instruments” (Quinn and Degener 2002).

Nonetheless, in addition to the “complementarity” function, the CRPD plays a number of roles in facilitating the “human rights based approach” to disability in conceptualizing the guarantees for the rights of children/persons with disabilities. First, as highlighted above, persons with disabilities used to be generally “invisible” in binding human rights instruments before the adoption of the CRPD (Byrne 2012). Indeed, it was observed as early as 2002 during the debate on the need to adopt a disability-specific convention that “The most important argument for a convention is perhaps that of ‘visibility’” (Quinn and Degener 2002). Hence, there was a need for the explicit recognition of disability and the rights of children/persons with disabilities in international human rights law to address the invisibility conundrum (Byrne 2012; Quinn and Degener 2002). The CRPD addresses this gap under international human rights law by making explicit provision for the rights of persons/children with disabilities.

It could be argued that the CRC filled this gap with regard to children with disabilities as it also contains explicit provision for their rights. Indeed, as observed above, the CRC, going by its text, provides a framework for addressing the obstacles that children with disabilities face on account of their childhood. However, it did not set up a framework that could address the barriers children with disabilities face on account of their disability. This is especially due to its failure to significantly take the human rights-based approach to disability in providing for their rights (Byrne 2012). Accordingly, it could also be considered that the approach taken by the CRPD to ensure the “explicit applicability of the CRPD’s rights across” the lives of children with disabilities is significant and is a sign of the appreciation of the “intersection between disability and childhood” (Byrne 2012). Thus, the CRPD (which Byrne has suggested could have been named “Convention on the Rights of Children and Adults with Disabilities” (Byrne 2012)) provides the “remedy” to the “double jeopardy” disadvantaged position that children with disabilities used to face under international law. This was due to the combined effect of the fact that international human rights law has generally taken both an adult focused and an approach not attuned to disability. Indeed, children with disabilities had suffered “double jeopardy” in respect of their rights violations both on the basis of their age as children and on the basis of their disability (Byrne 2012).

Therefore, it can be observed that the “disability explication” approach taken by the CRPD ultimately plays a significant role in facilitating the full human rights enjoyment by children with disabilities. It does this by entrenching their “visibility” and presence under international human rights law, thereby giving states parties a clear obligation to take measures that address the barriers children with disabilities face on account of their disability and childhood (Byrne 2012).

Secondly, it was highlighted during the debate regarding the necessity of a disability treaty that the respect for equal dignity of all people entails that they should be protected both from violations of equality and non-discrimination, on the one hand, and from violations of all human rights, on the other hand (Quinn and Degener 2002). Hence, the existing/general human rights treaties in addition to the CRC could provide protections of the right to equality through their progressive interpretations and application as they contain general anti-discrimination provisions. However, the mainstream human rights treaties could not protect children with disabilities from violations of all human rights, among others, due to the failure by their provisions to address disability or to embrace the human rights model of disability (Stein and Lord 2009). Accordingly, it was considered that it would be necessary to “tailor the relevant norms of the existing human rights treaties to the circumstances of disability” through the adoption of a disability treaty (Quinn and Degener 2002; Stein and Lord 2009). Thus, the disability treaty had to be adopted to provide this “tailoring” framework, thereby ensuring that the application of international human rights law would address the rights of all persons, including persons/children with disabilities (Lawson 2009; Jones 2011). Indeed, the CRPD is acknowledged as representing “the emergence of an international rights regime tailored to persons of disabilities” (Megret 2008).

Above all, the CRPD plays a significant role in entrenching the human rights model of disability, thereby making the applicable international law take a “human rights based approach” to disability in providing for the rights of children with disabilities. For example, in contrast to the CRC, the CRPD does not make any reference to “special needs” or “care” (Byrne 2012). This is considered as an indication that the CRPD takes a positive approach, which regards children with disabilities as rights holders and not “objects of pity” in “need of special care and assistance.” In this regard, authors such as Quinn highlight that the CRPD contains a profound message that emphasises that “persons with disabilities are not ‘objects’to be managed or cared for, but human ‘subjects’enjoying human rights on an equal basis with others” (Quinn 2009a; Mackay 2007). Therefore, the CRPD provides the “paradigm” platform for international human rights law to move away from the welfare-based perspective to the human rights-based approach to disability, thereby providing the conducive human rights framework for children/persons with disabilities to claim and exercise their rights on an equal basis with others.

In view of the foregoing observations, it can be acknowledged that the CRPD plays a significant role in providing the missing “human rights based” link in the conceptualization of disability under international law. Indeed, as a thematic convention, the CRPD makes persons with disabilities visible; and it articulates specified rights for persons/children with disabilities and the mechanisms for their implementation (Dhir 2005). Indeed, the CRPD seeks to achieve one ultimate purpose: to ensure effective enjoyment of all human rights by persons/children with disabilities on an equal basis with other persons/children (Art. 1). This is done by entrenching the “human rights based approach” to disability and, consequently, the human rights guaranchildren with disa/children with disabilities.

Regional Law with a Specific Focus on Africa

Children-Specific Treaty: The African Children’s Charter

The African Children’s Charter was adopted as the child-specific human rights treaty in the African system. The African Children’s Charter provides for the rights of children with disabilities in three aspects: by guaranteeing all children freedom from discrimination, by containing specific provisions on the rights of children with disabilities, and by providing for general substantive rights for all children, which also apply to children with disabilities.

The African Children’s Charter provides for equality in its general anti-discrimination provision (Art. 3). However, the provision does not expressly recognize disability as a prohibited ground of discrimination. Nevertheless, the Charter does not sanction disability-based discrimination since the provision requires “every child” to enjoy the Charter’s rights without discrimination (Gose 2002; Chirwa 2002).

Disability-Specific Rights

The African Children’s Charter makes specific provision for the rights of children with disabilities in Article 13 in three separate paragraphs. The Article has a number of similarities with the corresponding provision in Article 23 of the CRC (discussed in “Convention on the Rights of the Child” above). Among others, the first paragraph of Article 13 requires states parties to ensure that children with disabilities have special measures of protection (Art. 13(1)). The provision emphasises the autonomy of children with disabilities and their inclusion and active participation in the society by requiring the state to ensure their “self-reliance and active participation in the community.”

The second paragraph obliges the state to make provision for special assistance to children with disabilities and those responsible for their care as long as they apply for the assistance (Art. 13(2)). It further binds states to ensure effective access to training and preparation for employment, among others (Art. 13(1) and (2)). Gose has commended the provision for recognizing the requirement to provide special assistance as a specific right of children with disabilities but has also regretted the omission of education as an area that requires special assistance to be provided (Gose 2002), while Chirwa has observed that the provision recognizes the right of children with disabilities “to participate in community life” (Chirwa 2002).

Lastly, the third paragraph expects states to ensure that children with disabilities have the right to movement and access to public places, including buildings provided the rationale for seeking such access is legitimate (Art. 13(3)). Gose has queried the qualification of the right by the ambiguous concept of “legitimate accessibility” which allows children with disabilities to access public places if they “legitimately want to have [such] access” (Gose 2002). The provision can further be faulted for putting such a restricting qualification for children with disabilities only.

Furthermore, it is submitted by the author that, in the absence of a definite interpretation of the disability-specific provisions in Article 13 of the African Children’s Charter by its treaty monitoring body (the African Committee of Experts on the Rights and Welfare of the Child), Article 13(1) provides the leading principle in respect of the rights of children with disabilities under the African Children’s Charter as it guarantees children with disabilities the right to inclusion and participation in society. As discussed in the section “Convention on the Rights of the Child” above, the CRC Committee has given the same view in respect of a similar provision in the CRC. In any case, it has been stated that the Charter does not stand in opposition to the CRC but the two treaties are complementary, and they both provide the framework for realizing the rights of children in Africa (Olowu 2002).

It is also worth noting that the African Children’s Charter contains provisions that reflect the cardinal principles of the CRC, discussed in the section “Convention on the Rights of the Child” above. This is the case as it provides for the four rights that make up the CRC’s cardinal principles (Olowu 2002). Indeed, the African Children’s Charter provides for non-discrimination (Art. 3), as discussed above, best interests of the child (Art. 4(1), and life, survival, and development (Art. 5) and also contains a number of participation rights (Chirwa 2002), which include the right to be given an opportunity for the child’s views to be heard (Arts. 4(2) and 7; Chirwa 2002; Olowu 2002) and the right of the children with disabilities to participate in community life (Art. 13). It is further noteworthy that the Charter recognizes the best interests of the child principle as the primary consideration in all action concerning the child in Article 44(1), which provides that “In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.” Hence, it provides for the highest standard of the principle over the CRC and the CRPD as it recognizes the principle as “the” as opposed to “a” primary consideration (Van Bueren 1995; Viljoen 2000; Chirwa 2002). This entails that under the Charter, the best interests principle is the overriding or paramount consideration that prevails over all other factors in all actions affecting a child (Chirwa 2002; Olowu 2002).

Furthermore, the African Children’s Charter contains provisions on rights that could be regarded as survival and developmental rights, which are acknowledged as addressing the unique plight of African children, including children with disabilities (Art. 1(3)). In this regard, it has been observed that “The strength of the Charter, however, lies in the fact that it expressly proclaims its supremacy over any inconsistent custom, traditional, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the Charter” (Chirwa 2002). For example, the Charter guarantees the right to protection from harmful cultural practices, including harmful religious or traditional customs and beliefs (Arts. 21 and 16).

Treaties Not Specifically Adopted for Children

There are other African regional human rights treaties that were not specifically adopted to provide for the rights of children or persons with disabilities. These include the African Charter on Human and Peoples’Rights (ACHPR), which has a specific provision on the rights of persons with disabilities that guarantees the right to special measures of protection (Art. 18(4)); the Protocol to the African Charter on Human and Peoples’Rights on the Rights of Women in Africa (African Women’s Protocol), which has a specific provision on the rights of girls and women with disabilities that guarantees women and girls with disabilities the right to be treated with dignity and the right to be provided with specific measures (Art. 23); and the African Youth Charter (AYC), which has a specific provision on the rights of youth with disabilities that, among others, requires states to take special measures aimed at protecting the rights of youth with disabilities, including children with disabilities.

It is noteworthy that the African region was, at the time of writing, undertaking the process leading up to the adoption of a disability rights protocol. The Draft Protocol replicates the approach taken by the CRPD in dedicating Article 26 to the rights of children with disabilities. The Article has four sub-Articles, with sub-article (4) containing a number of paragraphs (nine in total). Among others, the provision recognizes the entitlement by children with disabilities to have full enjoyment of human rights and fundamental freedoms on an equal basis with other children (Art. 26(1)), it requires states parties to ensure respect for the evolving capacities of children with disabilities and facilitate their active participation in the community (Art. 26(2)), and it incorporates the best interests of the child’s principle (Art. 26(3)). It is submitted by the author that the potential of the disability treaty, when adopted, can be expected as it takes the approach similar to the one taken by the CRPD, especially in the latter's Article 7. Accordingly, the African Disability Protocol could fill the major drawback that the existing regional framework faces, especially when applied alongside the CRPD. (By September 2016, a draft version of the protocol had been produced for purposes of obtaining views and comments. The Draft Protocol had been forwarded to the AU for its adoption by January 2018.)

Observations on African Regional Law

It could be argued that African regional treaties such as the ACHPR, African Women’s Protocol, African Children’s Charter, and the African Youth Charter take an approach that in certain aspects regards disability as a human rights issue. This is because they contain explicit provisions on the rights of persons with disabilities, including children with disabilities, in contrast to the position taken by a majority of the UN human rights treaties. However, the approach taken by the disability-specific provisions in the regional treaties still retains elements of the welfare approach to disability in their focus and terminology. This constitutes the major drawback facing the regional framework. Indeed, the provisions require states parties to take “measures of protection” in addressing the obstacles that persons/children with disabilities in Africa face. For example, the African Children’s Charter obliges states parties to make provision for “special care and assistance” (Art. 13(2)). Although the African Women’s Protocol provides a mixed approach by also requiring states to treat women and girls with disabilities with dignity, it also replicates the “measures of protection approach (Art. 23(1)).

Consequently, it can be concluded that the approach, focus, and terminology that the text of the African regional treaties employ in addressing disability issues reflect the welfare-based approach to disability. In any case, it has been argued that although there is movement toward grasping the human rights approach in the African human rights system, “traces of mischaracterisation of disability as a medical or charity issue still subsist” under the applicable regional human rights treaties (Biegon 2011). The treaties do not take a positive approach that regards children/persons with disabilities as rights holders who are entitled to full and equal human rights enjoyment. Accordingly, the regional framework has a major downside which could impede its potential to ensure full human rights enjoyment by children with disabilities. This position is mainly attributable to the failure by the treaties to emphasize the “human rights based approach” to disability in conceptualizing the guarantees for the rights of persons/children with disabilities.

Of course, it is expected that the pertinent monitoring bodies will ask states to take the human rights approach to disability. Indeed, as highlighted above, the CRC Committee has taken the same position despite the CRC having welfarist terminology. If states adhere to such recommendations as and when given by the treaty bodies, the same will ameliorate the drawbacks perpetrated by the outmoded welfarist terminology.

On the whole, therefore and in the light of the gaps in the framework under the African human rights treaties, it can be observed that the existing regional treaties also need to benefit from the complementary role provided by the CRPD as is the case with the core UN treaties. In fact, all applicable African treaties, including the Disability Protocol itself, will also need to benefit from the complementarity role provided by the CRPD as is the case with the core UN treaties. Indeed, the CRPD does not seek to replace existing international or regional treaties. Instead, it plays a complementary role where its provisions prevail over inconsistent provisions in the other treaties, as discussed in section “Convention on the Rights of Persons with Disabilities” above. In addition, the CRPD expressly provides that states parties should utilize the provisions in other treaties or domestic human rights documents which provide higher standards of protection than the CRPD’s framework (Art. 4(4)). Therefore, African states parties to the applicable regional treaties and to the CRPD are expected to apply the regional treaties alongside the CRPD whereby the CRPD should guide the way in which the treaties’provisions should be applied to children with disabilities with a view to ensuring higher levels of protection (Biegon 2011).

Understanding the Contemporary International Law Approach

Extracting and Deciphering the Human Rights-Based Approach to Disability

The survey of the applicable human rights law above demonstrates that prior to the adoption of the CRC, all UN human rights treaties did not make express provision for the rights of children (and even persons) with disabilities. It is noteworthy that the failure to expressly include disability in the treaties was a consequence of the “circumstances” that prevailed at that time whereby disability was not perceived as a human rights issue (Committee on Economic, Social and Cultural Rights, General Comment No. 5 1994). Indeed, at the time, disability was conceptualized in terms of the medical or welfare model as opposed to the social and human rights models. As the approach to disability shifted from the welfare to the social and human rights models, the treaties began to contain provisions on disability. For example, the CRC and the African regional treaties discussed above contain explicit provision on disability. However, the treaties still retained certain aspects that embody the welfare-based approach to disability. This is because they did not take the positive human rights-based approach to disability which requires the law to regard persons/children with disabilities as human rights holders. Instead, the applicable international (and regional) law predominantly advocated for welfare-based interventions in addressing issues relating to persons/children with disabilities.

Indeed, the international law survey has highlighted that most of the applicable African regional treaties, the CRC and the other “non-disability specific” international treaties, emphasize the provision for measures of protection and assistance to children/persons with disabilities. In contrast, the CRPD unequivocally regards children with disabilities as rights holders who are entitled to full human rights enjoyment on an equal basis with other children. Furthermore, the CRC and the applicable African regional treaties put emphasis on providing “special care” or “special assistance” and “special measures of protection” to children with disabilities as a response to their “individual needs.” Again in contrast, the CRPD takes the approach of making provision for measures of support to facilitate the participation and enjoyment of human rights by persons/children with disabilities. For example, the CRPD obliges states parties to make provision for measures of support in a number of instances. These include provision of access to support to enable the exercise of “equal” legal capacity (Art 12(3)); provision of measures and services of support to facilitate independent living in the community (Art. 19(b)); provision of support, including individualized support, to facilitate active participation in education (Art. 24(2)(d) and (e)); and promotion of appropriate forms of assistance and support to ensure access to information (Art. 9(2)(f)). In this regard, the CRPD is hailed for providing a “distinctive vision” for persons/children with disabilities. This is because its provisions impose a number of positive duties to be undertaken by states parties “to ensure that persons with disabilities are provided with the minimum level of state support and assistance that will enable them to maintain a dignified existence” (O’Cinneide 2009).

It can thus be observed that the applicable international law as it stood prior to the adoption of the CRPD did not make provision for measures rooted in the human rights-based approach to disability which could facilitate the full human rights enjoyment by children with disabilities on an equal basis with other children. Therefore, it can be concluded that prior to the adoption of the CRPD, the existing international and African regional law did not take the human rights-based perspective to disability in providing for the rights of children with disabilities. Instead the law took the welfare-based approach to disability that emphasized the provision for charity and welfare measures as the appropriate response to disability.

In contrast, as demonstrated in section “Convention on the Rights of Persons with Disabilities” above, the CRPD follows the human rights-based approach to disability, which, unlike the welfare-based approach, emphasises the need to ensure the full human rights enjoyment by children with disabilities as the appropriate response to disability (Chilemba 2015). Consequently, the CRPD must be applied alongside the other human rights treaties, especially the CRC, whereby the provisions and standards of the CRPD generally prevail over any inconsistent provisions and standards in the other treaties. (However, as discussed above, the standards in the other treaties should prevail over the CRPD’s standards in case of inconsistency if the provisions in the other treaties provide higher levels of protection than the CPRD’s provisions (CRPD Art. 4(4))). In this way, the CRPD ensures that the applicable international law takes the “human rights based approach” to disability in providing for the rights of children with disabilities, thereby facilitating their full enjoyment of human rights on an equal basis with other children. It has been stated by Quinn that the CRPD “provides both a moral compass for change as well as legal benchmarks against which to measure that change” (Quinn 2009b).

Lastly, as highlighted above, the CRC Committee in its concluding observation has highlighted at least two core state obligations under Article 23. These are ensuring inclusion of children with disabilities and the need to take a human rights approach to disability. Similarly, the CRPD Committee in its concluding observations has put the emphasis on at least three key obligations. These are ensuring inclusion through deinstitutionalization and other means, facilitating participation, and ensuring full human rights enjoyment by children with disabilities on an equal basis with other children. It is noteworthy that both the CRC Committee and the CRPD Committee have highlighted the obligation to ensure inclusion. This means that there are at least four key obligations highlighted by the two treaty monitoring bodies that this chapter has identified. Accordingly, the human rights-based approach taken by the applicable international requires states parties to discharge at least these four core obligations in the implementation of the rights of children with disabilities.

The Significance of Ensuring Access to Justice

It must be emphasized that the discharge of the four core obligations identified above by states parties would yield the ideal results in so far as the realization of the rights of children with disabilities is concerned if children with disabilities (are enabled to) have access to justice on an equal basis with others. Indeed, the fundamental human rights obligation to protect rights requires the rights holders themselves to be able to seek legal redress and obtain effective remedies whenever their rights are threatened or violated. For this reason, states parties will be required to ensure that children with disabilities are able to access justice and effective legal remedies on an equal basis with other children.

The CRPD contains specific provisions that recognize access to justice as a substantive right for persons/children with disabilities in Article 13. The provisions, among others, require the justice system to have age-appropriate mechanisms and accommodations that enable children with disabilities, regardless of the type of disability, to participate actively and meaningfully as complainants, witnesses, and accused persons, among others, in legal proceedings and at all stages in the justice system and its processes. States will also be required to ensure that justice service providers and personnel are trained in disability rights and access to justice issues relating to children with disabilities (CRPD/C/CAN/CO/1 Canada 2017). For example, where a girl with psychosocial disability or a girl with hearing or visual impairment is abused sexually, the fight to combat violence against such children with disabilities would be frustrated if the justice system did not enable children with such disabilities to participate as witnesses in a criminal trial involving the perpetrators of the violence because of lack of accommodations and mechanisms that respond to the child’s particular needs. For this reason, states parties must do away with legislative provisions that deny or do not empower children with disabilities to participate in legal proceedings on account of their particular disabilities (CRPD/C/HND/CO/1 Honduras 2017e).

In this regard, the CRPD Committee has highlighted the need to ensure “the safe and full participation of persons with disabilities, especially persons with psychosocial and/or intellectual disabilities, in all judicial proceedings, including through the provision of procedural and gender- and age-appropriate accommodation, in particular sign language interpretation for persons with hearing impairment and accessible formats of legal and judicial information and communication for persons with visual impairment” (CRPD/C/ARM/CO/1 Armenia 2017a). (It is worth noting that the (Draft) African Disability Protocol, in Article 11, recognises access to justice as a right for person with disabilities in Africa and the provisions are similar to the ones under Article 13 of the CRPD save for sub-Article (2) of the former which cautions against using customary law to deny persons with disabilities this right). 

The author acknowledges that the issue of access to justice for children with disabilities is complex and requires further research and scholarship beyond the limits of this chapter. Nonetheless, states parties to the relevant instruments discussed herein must be mindful of the fact that they might not achieve the goal of ensuring that children with disabilities in their jurisdictions enjoy human rights on an equal basis with other children if the states do not pay particular attention to the need to implement the right of access to justice for children with disabilities.

Conclusion

The chapter has made a number of findings in respect of the approach taken by the applicable human rights law in providing for the rights of children with disabilities, especially in Africa. The applicable international law is predominantly contained in two treaties, namely, the CRPD and the CRC. The monitoring bodies for these two treaties have further shed insights into the key obligations that states must take the implementation of the applicable international law. The chapter has identified at least four of such key obligations from the concluding observations and has highlighted the significance of ensuring access to justice for children with disabilities.

It has further been established that before the adoption of the CRC and, subsequently, the CRPD, the existing international law did not regard disability as a human rights issue with the effect that the law did not contain provisions on disability. At that time, the approach to disability was based on the medical or welfare model that emphasises medical-, welfare-, and charity-based interventions in addressing issues relating to persons/children with disabilities. The subsequent shift in the approach to the social and human rights models resulted in international law, starting with the CRC and subsequently the CRPD, recognizing disability as a human rights issue. The CRPD entrenched the human rights-based approach to disability in providing for the rights by unequivocally recognizing children with disabilities as subjects of rights. Through this approach, the CRPD seeks to ensure full human rights enjoyment by children/persons with disabilities on an equal basis with others. In this regard, the CRPD Committee in its 2016 General Comment on inclusive education has summed up the matter by highlighting that “[h]istorically viewed as welfare recipients, persons with disabilities are now recognised under international law as right-holders” (CRPD/C/GC/4(CRPD 2016j)).

Consequently, the CRPD has to be applied together with the other pertinent treaties, especially the CRC, in such a way that the CRPD addresses the gaps that exist in the other treaties with respect to disability and the rights of children with disabilities. Ultimately, it has been established that the adoption of the CRPD implies that the application of the entire international law, as one body of law, should reflect the human rights-based approach to disability in making provision for the rights of children with disabilities. The chapter has highlighted that this approach seeks to achieve one principal purpose – the full human rights enjoyment by children with disabilities on an equal basis with other children. Therefore, in order to achieve the appropriate implementation of the applicable international law, states must discharge at least the four key obligations highlighted by the CRPD Committee and the CRC Committee in their concluding observations. In terms of these core obligations, states must first take the human rights approach to disability; and subsequently, they must take measures that ensure the full inclusion of children with disabilities in the community, where they are regarded as active participants in the making of decisions that affect them and, ultimately, where they enjoy human rights on an equal basis with other children.