Remaking Human Rights
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User/Survivor Advocacy on the
Disability Convention |
"By Tina Minkowitz"
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By Tina Minkowitz |
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Photos by Tom Olin |
Slide 3
Convention on the Rights
of Persons with Disabilities
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Negotiated in NY; “Ad Hoc
Committee” of UN General Assembly |
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Began in 2002 |
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High degree of openness to NGO
participation, mainly organized through International Disability Caucus of
international, regional and national organizations of PWD and allied NGOs |
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Leadership of DPOs, “Nothing
about us without us” |
Slide 5
Human Rights
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8th core HR treaty in UN system |
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Binding treaty supersedes
previous international declarations on disability |
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Treaty monitoring bodies |
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Committees of experts |
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OHCHR, Human Rights Council,
Special Rapporteurs |
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NGO participation |
Slide 7
User/Survivor
Participation
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Social model of disability as
lens to focus non-discriminatory application of existing human rights |
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World Network of Users and
Survivors of Psychiatry (WNUSP) part of International Disability Alliance
(IDA) |
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Formed IDC, steering committee |
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2004 Working Group composed of
27 governments, 12 NGOs chosen by IDC, 1 NHRI |
Slide 9
User/Survivor
Participation
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International team: Hungary, Peru, Ghana, Guinea, Uganda,
India, Denmark, Sweden, USA, Canada, New Zealand, Japan (attending AHC); more
involved nationally and through Internet |
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WNUSP, MF/SCI, People Who,
Venture House, others |
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NZ govt delegation |
What did we accomplish?
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Established new norms in human
rights |
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Raised awareness of
user/survivor human rights issues on global scale |
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Educated government
decision-makers and disability community |
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User/survivor movement gained
experience in human rights advocacy |
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Human rights focus of new
national and regional groups |
New norms
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Legal capacity equal with
others |
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Passive rights and capacity to
act |
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Free and informed consent on
equal basis with others |
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Liberty without discrimination |
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“in no case shall the existence
of a disability justify a deprivation of liberty” |
New norms
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Right to respect for integrity
on an equal basis with others |
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Relationship with torture and
with free and informed consent |
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Non-discrimination and equal
protection |
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Peer support and right to live
in community |
New norms
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Users and survivors of
psychiatry covered by the Convention |
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PWD “includes” those with long
term mental impairment |
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“mental” distinguished from
“intellectual” |
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Impossible to predict duration |
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Psychiatric diagnosis as both
environmental barrier and imputed disability |
What it means
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Legal capacity + free and
informed consent = no forced psychiatry |
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Liberty should be read in
context as non-discrimination, no separate standards or procedures are
permitted for PWD such as “danger to self or others” |
Opportunity to change MH
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From restrictive to enabling |
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Not euphemism but actual
equality of rights |
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Repeal coercion-based MH laws
and replace with laws on right to supportive services |
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Opportunity for programmatic
development and policy support for the kinds of services that people want |
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Ensure that MH policy is
treated as “disability” matter obligating DPO consultation |
What it means
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Need for further advocacy to
ensure forced psychiatry is dealt with as torture |
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Criminalized |
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Grave human rights violation,
victims and survivors entitled to reparations |
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Not only individual
compensation but assurance of non-repetition, honoring memory, restoring
previously held status and rights |
What it means
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Need to ensure that “long term”
does not limit coverage |
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Is imputed disability “long
term” if it affects our lives significantly? |
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Reject medical model
implications of addressing disability primarily in terms of “long term”
impairment |
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Important area for advocacy
since it emerged late in negotiations process |
More on Legal Capacity
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Article as a whole: |
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Legal personality - recognition
of personhood |
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Legal capacity - capacity to
act |
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Access to support to exercise
capacity |
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Safeguards on measures related
to exercise of capacity |
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Prevent abuse |
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Respect the rights, will and
preferences of the person |
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Subject to regular review,
proportional to degree to which measures affect rights and interests |
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International human rights law |
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Financial rights |
Paradigm shift
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Equal legal capacity - not only
presumption |
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Every human being has a will
and can express it |
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Poor judgment, lack of insight,
perceived deficiencies in capability are irrelevant |
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Need for support is
interactive, not objective determination |
Capacity to act -
Implications
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“legal capacity on an equal
basis with others in all aspects of life” |
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Repeal/reform of guardianship
laws |
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Guardianship cannot be imposed
against a person’s will |
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Guardianship transformed into
support relationship with fiduciary obligations but no coercive effect |
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No restriction permissible -
partnership not substitution |
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Legal independence of persons |
Capacity to act -
Implications
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Repeal/ reform mental health
laws |
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Repeal all laws permitting and
regulating coercive measures in MH |
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Consider whether advisable from
strategic or policy point of view to create positive obligations to provide
wanted services |
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Is there a role for mental
health laws without coercion? |
Interaction with other
norms
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Mental health laws based on
incapacity as well as quasi-criminal “dangerousness” and “public health”
standards |
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Neither of them valid under
Convention |
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“Dangerousness” falls to
non-discrimination |
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“Public health” justification
for MH coercion amounts to systemic discrimination regarding free and
informed consent |
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based on biological
classification of human beings according to their behavior, and use of
behavior control methods that violate prohibition against torture |
Capacity to act -
Implications
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Contract law: what is fair play
in disability context? |
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Civil rights: right to vote,
right to marry |
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Need analysis of legal
framework to determine other implications |
Capacity to act -
Implications
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Equal responsibilities: abolish
insanity defense |
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Mental element of crime all
that is needed to ensure fairness in assigning criminal responsibility |
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Disability may be relevant as a
circumstance mitigating the seriousness of the crime |
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Reasonable accommodation
required in all aspects of arrest, trial and detention |
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Should not impose punishment
that is disproportionately harsh because of interaction with disability |
Safeguards
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“Measures related to the
exercise” |
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Read together with other
provisions, this must refer to support and not to restrictive measures |
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With equal legal capacity, and
the obligation to respect the rights, will and preferences of the person,
support cannot be imposed against a person’s will |
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Safeguards should be understood
to refer to wide range of support, and tailored appropriately - need to
ensure that PWD using support are not over-protected compared with non-PWD
using similar support. |
Safeguards
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“in accordance with
international human rights law” |
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Refer to treaties and not to
disputed declarations that purport to set lower standards for legal capacity
of PWD |
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CEDAW guarantees equal legal
capacity to women (including women with disabilities) |
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All relevant provisions,
including those in this Convention, addressing prevention of abuse and
exploitation and complementing the provision of support. |
More on Legal Capacity
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Financial matters |
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“subject to the provisions of
this article” |
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Read as reinforcing the
obligation to provide access to support people may need to exercise legal
capacity |
More on Liberty
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PWD cannot be deprived of
liberty unless it is under disability-neutral standards and procedures |
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If deprived of liberty,
entitled to same guarantees as others under international human rights law,
plus reasonable accommodation |
More on Liberty
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Non-discrimination analysis
caveat: distinctions that are reasonable and objective, to achieve purposes
that are legitimate under human rights law (including Disability Convention)
are not discrimination |
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Psychiatric standards do not
fit these criteria |
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Not objective |
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Not for legitimate purposes
(violate principles and rights guaranteed in this Convention) |
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Not reasonable (disability
profiling; collective punishment) |
More on Integrity
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“physical and mental integrity
of the person” |
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Obligation underlying
prohibition of torture and cruel, inhuman or degrading treatment or
punishment |
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Independently guaranteed in
regional HR conventions |
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Does it help to get rid of
forced psychiatry or establish that it is violence? |
More on Integrity
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“Forced interventions aimed at
correcting, improving or alleviating any actual or perceived impairment” |
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Not in text but concept may be
useful |
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Disability dimension -
intolerance of different ways of being human |
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Autonomy and choice in matters
relating to one’s own disability |
More on Integrity
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Relationship with free and
informed consent |
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Not only about force, but also
requires accurate information to make a decision |
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Civil/ political right, not
subject to limitation |
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As part of the right to health,
free and informed consent was thought to be subject to limitations (through
general limitations clause in the International Covenant on Economic, Social
and Cultural Rights), but this is inappropriate since consent is an individual
freedom related to important value of physical/mental integrity. |
More on Integrity
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What does it cover? |
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Different contexts in each
regional treaty and in national legislations |
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Universally applicable
interpretation is as obligation underlying International Covenant on Civil
and Political Rights Article 7 (torture and CIDT) |
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Broad construction of Article
7, for example to prohibit corporal punishment as disciplinary or educational
measure |
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Can be usable now to reinforce
right to free and informed consent, and begin to address medical intervention
over objection as violence |
Other Important Features
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Non-discrimination generally
and with respect to work and adequate standard of living |
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Denial of reasonable
accommodation is discrimination |
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Right to live in community with
choices equal to others; peer support |
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Right to vote and stand for
election |
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Intersecting discrimination |
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Gender |
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Recognition of cultural
identities |
Other Important Features
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Children |
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Evolving capacities, same
rights as other children to express views and have their views be given due
weight in decisions about themselves |
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Note early identification and
intervention “as appropriate” |
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Right to education not to be
deprived on the basis of disability, individualized support measures and
reasonable accommodation |
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Requiring children to be
drugged as condition of admission to school would violate this provision |
Implementation and
Monitoring
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“Close consultation” and
“active involvement of” DPOs in legislation and policies to implement
convention or otherwise relating to pwd |
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National monitoring by NHRI or
equivalent - DPO involvement required |
Implementation and
Monitoring
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Committee of experts (TMB) |
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“participation of experts with
disabilities” |
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Standard features including
state reporting; individual and group complaints and inquiry procedures in
optional protocol |
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Invites consultation with DPOs
in nomination of experts and preparation of state reports |
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Committee may consult DPOs
(included in “other competent bodies”) on areas falling within their
mandates, and transmit to them requests for technical assistance |
Implementation and
Monitoring
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International cooperation
obligations |
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Inclusive development programs |
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Capacity building and best
practices |
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Partnership with DPOs |
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Caution: “cooperation in
research and scientific and technical knowledge” |
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Conference of States Parties |
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Mechanism to share information;
in similar processes NGO participation is assured |
U.S. and the Convention
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U.S. says it will not sign or
ratify |
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Disability community has not
shown great interest, but could be mobilized |
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Highly developed u/s movement
here |
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Convention could give us the
tools to win the long-standing battles against coercion and for
u/s-controlled and wanted services |
Slide 41
U.S. and the Convention
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What can be done: |
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Begin to use Convention as
framework for policy advocacy |
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Work with local governments to
accept Convention as relevant norm |
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Work with other disability
organizations for awareness-raising and ratification |
U.S. and the Convention
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Additional areas for HR
advocacy: |
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Build awareness of disability
in other HR mechanisms |
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U.S. is party to ICCPR, CAT and
CERD |
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CERD report due in 2007 |
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Inter-American Commission on
Human Rights |
Envisioning the Future
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Convention belongs to all of us |
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Needs collaborative study in
grassroots groups to identify all its potential |
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International cooperation among
u/s organizations, with other DPOs, governments, development organizations |
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User-survivor run collaborative
centers to develop comprehensive implementation models |
Envisioning the Future
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Awareness raising: media,
cultural materials |
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Mad pride |
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Human rights allies |
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Building the movement with
victories |
Nothing About Us Without
Us
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More resources: |
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www.wnusp.org |
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www.un.org/socdev/enable |
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www.un.org/socdev/enable/rights/adhoccom.html |
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www.icrpd.net/en/toolkit/index.html |