Human Rights Law Making Unplugged: Reflections on the drafting of the CRPD Janet E. Lord Burton Blatt Institute, Syracuse University Harvard Law School Project on Disability

Outline Introduction Introduction Origins of CRPD negotiation process Origins of CRPD negotiation process What norms have heft? What norms have heft? Are the States the primary actors? Are the States the primary actors? NGO cohesion and coherency? NGO cohesion and coherency? When does the door close for NGOs? When does the door close for NGOs? Are fringe groups frozen out? Are fringe groups frozen out? State accountability – is this the key? State accountability – is this the key?

Widely Held Assumption #1 NGOs are the impetus for human rights (and humanitarian) law making NGOs are the impetus for human rights (and humanitarian) law making –Mine Ban Treaty –Convention on the Rights of the Child –Convention on the Rights of Persons with Disabilities

Origins of the Process Durban, South Africa World Conference against Racism Sept Mexican delegation Durban, South Africa World Conference against Racism Sept Mexican delegation 19 Dec Dec 2001 –GA Res 56/168 introduced by Mexico and supporters established the Ad Hoc Committee (AHC) Mandate of AHC Mandate of AHC –"to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities...” –Mexican outreach in DC and around world –Mexican draft treaty & June 2002 meeting in Mexico City

Assumption #2 Bodily integrity norms have heft – those pertaining to violations of physical integrity will be the most successful movers in human rights campaigning Bodily integrity norms have heft – those pertaining to violations of physical integrity will be the most successful movers in human rights campaigning –Social model of disability –Legal capacity/decision-making –Education

Assumption #3 States are the primary actors States are the primary actors –This assumes that the outcome of a treaty drafting process (the adoption of the text) is all that really matters –This approach misses the role that other actors play and the role that norms play within the process and among the actors in it.

Actors in CRPD Law Making Process UN member states UN member states UN observers (e.g., Palestine) UN observers (e.g., Palestine) Relevant UN bodies and organizations (ILO, WHO) Relevant UN bodies and organizations (ILO, WHO) Special Rapporteur on Disability Special Rapporteur on Disability National human rights institutions National human rights institutions Non-governmental organizations Non-governmental organizations both ECOSOC and AHC accredited both ECOSOC and AHC accredited Educational process/individuals play multiple roles – “boundary role occupants” (Keith Krause) Educational process/individuals play multiple roles – “boundary role occupants” (Keith Krause)

Boundary Role Occupants

And more…

Assumption #4 The cohesiveness and coherency of NGO coalitions in a successful human rights treaty process – –CRPD held up in the emerging literature as the paradigm of cozy NGO coalition building

AHC Sessions 8 sessions total 8 sessions total AHC1 29 July – 9 Aug 2002 AHC1 29 July – 9 Aug 2002 –Discussed rationale for convention & survived attempts to kill the process (NGOs did rally around a few core ideas successfully in first two sessions) AHC June 2003 AHC June 2003 –Decision to proceed with drafting convention –Decision to establish Working Group & its membership

Working Group Struggle over the procedure by which the Ad Hoc Committee would draft the treaty text – 2d session NGO consensus dissolved over who would represent NGOs on the body producing the foundational text – –ECOSOC groups versus others – –Geographical representation – –Legitimacy of representation

Final composition of WG 27 States 27 States 12 NGOs 12 NGOs 1 national human rights institution (SA rep.) 1 national human rights institution (SA rep.)

Assumption # 5 The door to NGO participation closes once the drafting begins The door to NGO participation closes once the drafting begins –Working Group modalities – wide open, no distinction made between WG actors –Beyond the WG participation continued to a large extent – –The lead govt in the process relied heavily on NGOs from the start – –NGOs worked to produce materials that were immensely useful to States – –NGO advisors moved from NGO to state delegation

Assumption # 6 To the extent that NGOs can wield power in human rights law-making, they must do so working in coalition with other groups –marginal groups on the fringe are left out. To the extent that NGOs can wield power in human rights law-making, they must do so working in coalition with other groups –marginal groups on the fringe are left out. –WNUSP –Article 15 Torture provision –Article 17 – Mental and physical integrity –Article 12 – Legal capacity

Assumption # 7 State accountability matters most State accountability matters most – –Accountability for human rights standard setting is a matter of scrutinizing State participation in human rights law making together with State adoption and implementation of human rights standards.

NGO Activities & Strategies Form NGO Caucus; issue position papers; prepare joint strategy Form NGO Caucus; issue position papers; prepare joint strategy Lobby govts; place NGO reps on govt delegations Lobby govts; place NGO reps on govt delegations Draft text for govts to introduce; perform legal analysis of existing text. (Use of wi fi; texting, blasts) Draft text for govts to introduce; perform legal analysis of existing text. (Use of wi fi; texting, blasts) Issue advocacy newsletters naming and shaming govts/complimenting govts Issue advocacy newsletters naming and shaming govts/complimenting govts Prepare oral and written interventions Prepare oral and written interventions Convene side events Convene side events Attend receptions for lobbying; coffee in corridors; hand outs Attend receptions for lobbying; coffee in corridors; hand outs Brief UN Missions prior to mtgs. Brief UN Missions prior to mtgs. Train NGO advocates to participate in effective lobbying Train NGO advocates to participate in effective lobbying Engage with decision makers back home in capitals Engage with decision makers back home in capitals

Map of CRPD Ratification Convention Ratifications/Accessions: 151 Signatories*: 159

Spanish Ratification Ceremony