1 A summary of this history can be found in Degener, Theresia and Begg, Andrew, “From Invisible Citizens to Agents of Change: A Short History of the Struggle for the Recognition of the Rights of Persons with Disabilities at the United Nations”, in Fina, Valentina Della, Cera, Rachele and Palmisano, Guiseppe (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary, Springer, Cham, 2017Google Scholar.

2 UNGA Res. A/RES/3/217A, 10 December 1948, Art. 25.

3 Report of the Secretary General to the Social Commission, UN Doc. E/CN.5/197, 22 March 1950.

4 UNGA Res. A/RES/37/52, 3 December 1982.

5 World Programme of Action Concerning Disabled Persons, UN Doc. A/37/351/Add.1, 15 September 1982, Annex, recommendation 1, para. 40.

6 Ibid., paras 162–169.

7 UNGA Res. A/RES/48/96, 20 December 1993.

8 Final Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on His Second Mission, 1997–2000, UN Doc. E/CN.5/2000/3, 17 December 1999, Annex, para. 119.

9 Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on His Third Mandate, 2000–2002, UN Doc. E/CN.5/2002/4, 9 January 2002, Annex, paras 35–37.

10 Views of Governments on the Proposals Contained in the Report of the Special Rapporteur on Disability, UN Doc. E/CN.5/2004/4, 26 November 2003, para. 10.

11 International Covenant on Civil and Political Rights, 16 December 1966 (entered into force 23 March 1976) (ICCPR), Art. 4(1).

12 Ibid., Art. 2(1).

13 Human Rights Committee, General Comment No. 29, “States of Emergency (Article 4)”, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001.

14 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979 (entered into force 3 September 1981) (CEDAW), Preamble.

15 Convention on the Rights of the Child, 20 November 1989 (entered into force 2 September 1990) (CRC), Art. 38.

16 UNGA Res. A/RES/56/168, 19 December 2001.

17 Note by the Office of the United Nations High Commissioner for Human Rights, UN Doc. E/CN.4/2002/18/Add.1, 12 February 2002.

18 UN Secretariat, Division for Social Policy and Development, Human Rights of Persons with Disabilities, background paper prepared for the Informal Consultative Meetings on International Norms and Standards for Persons with Disabilities, 9 February 2001, distributed as an informal paper during the First Session of the Ad Hoc Committee, 10 July 2002 (on file with author).

19 UNICEF, “Statement on Childhood Disability”, presented by Gulbadan Habibi at the Informal Briefing on the Work of the UN Bodies and Organizations at the Ad Hoc Committee on an International Convention on the Rights of Persons with Disabilities, 6 August 2002 (on file with author).

20 Ad Hoc Committee, Daily Summary of Discussions, Vol. 1 No. 1, 29 July 2002, and Vol. 1 No. 3, 31 July 2002. The daily summaries were an informal record produced by a coalition of disabled persons’ organizations throughout the negotiations and distributed widely to help interested parties to follow the discussions. While they do not purport to be an accurate verbatim record of the debate, they offer a rich account of it. Most are available in the negotiation archives, accessible at: www.un.org/esa/socdev/enable/rights/adhoccom.htm (all internet references were accessed in September 2022). Where they are not available on that website, they are on file with the author.

21 Ad Hoc Committee, Daily Summary of Discussions, Vol. 1, No. 7, 6 August 2002.

22 Report of the Meeting of Experts on the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities (Mexico City, 11–14 June 2002), UN Doc. A/57/212, 15 July 2002.

23 Ibid., preambular para. l.

24 Ad Hoc Committee, Daily Summary of Discussions, Vol. 2, No. 3, 18 June 2003.

25 Ad Hoc Committee, Daily Summary of Discussions, Vol. 2, No. 4, 19 June 2003.

26 This message was conveyed not just by disabled persons’ organizations but also by persons with disabilities on national delegations. A good discussion of the emergence of an international advocacy network of disabled persons’ organizations with the legitimacy and authority to speak for themselves can be found in Janet Lord, International Disability Rights: Challenging Traditional Theory in the Emergence of a New Transnational Advocacy Network, paper presented to the Annual Meeting of the International Studies Association, Portland, OR, 26 February–1 March 2003 (on file with author).

27 Beirut Declaration and Recommendations on the Elaboration of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, UN Doc. A/AC.265/2003/CRP/12, 29 May 2003, para. 4.

28 Regional Workshop on Promoting the Rights of Persons with Disabilities: Towards a New UN Convention – Final Declaration, Kampala, 5–6 June 2003, para. 30 (on file with author).

29 European Union Elements for an International Convention, UN Doc. A/AC.265/2003/CRP.13/Add.2, July 2003.

30 Views Submitted by Governments, Intergovernmental Organizations and United Nations Bodies Concerning a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, UN Doc. A/AC.265/2003/4, 6 May 2003, para. 55.

31 European Disability Forum, The EDF Contribution to the Second Ad Hoc Committee to consider proposals for a United Nations Convention to Protect and Promote the Rights of Persons with Disabilities, Brussels, May 2003 (on file with author).

32 Report of the Working Group to the Ad Hoc Committee, UN Doc. A/AC.265/2004/WG.1, 27 January 2004, para. 1.

33 These proposals were not issued as official UN documents, but were listed in paragraph 7 of the report of the Working Group (ibid.), issued in an informal compilation at the meeting in hard copy and on CD-ROM, and made available on the UN Enable website. Some, but not all, are available in the archives of the negotiations (see above note 20). Where they are not available, they are on file with the author.

34 Letter Dated 18 June 2003 from the Deputy Permanent Representative of Venezuela to the United Nations Addressed to the Secretary of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, UN Doc. A/AC.265/2003/WP.1, 18 June 2003, Annex, preambular para. (n).

35 Bangkok Draft: Proposed Elements of a Comprehensive and Integral International Convention to Promote and Protect the Rights of Persons with Disabilities, Bangkok, 14–17 October 2003, preambular para. (i), available at: www.un.org/esa/socdev/enable/rights/bangkokdraft.htm.

36 Convention on Rights of Persons with Disabilities: A Proposed Draft Text by China, Art. 13(5), available at: www.un.org/esa/socdev/enable/rights/wgcontrib-china.htm.

37 A New Zealand position paper summed up the point well. It read: “Social and economic development activities that help prevent impairment are targeted at, and assist, whole populations. New Zealand believes, therefore, that such activities are more appropriately addressed within the context of more general instruments. A convention on the rights of persons with disabilities should focus on its unique role to promote and protect the rights of those who require special consideration in order to enjoy their rights and freedoms.” New Zealand's View on a Convention on the Rights of Disabled People: A Proposed Draft Text by New Zealand, 28 November 2003, para. 12, available at: www.un.org/esa/socdev/enable/rights/wgcontrib-NewZealand.htm.

38 EU Proposal for the Text of an International Convention on the Full and Equal Enjoyment of all Human Rights and Fundamental Freedoms by Persons with Disabilities, Preamble, available at: www.un.org/esa/socdev/enable/rights/wgcontrib-EU.htm.

39 Ad Hoc Committee, Daily Summary of Discussions, Vol. 3, No. 7, 13 January 2004.

40 Report of the Working Group to the Ad Hoc Committee, UN Doc. A/AC.265/2004/WG.1, 27 January 2004, Annex, preambular para. (p).

41 Ad Hoc Committee, Daily Summary of Discussions, Vol. 3, No. 2, 6 January 2004.

42 Ad Hoc Committee, Daily Summary of Discussions, Vol. 3, No. 3, 7 January 2004.

43 Ad Hoc Committee, Daily Summary of Discussions, Vol. 3, No. 4, 8 January 2004.

44 CRC, above note 15, Art. 34.

45 Ad Hoc Committee, Daily Summary of Discussions, Vol. 3, No. 5, 9 January 2004.

46 Ad Hoc Committee, Daily Summary of Discussions, Vol. 3, No. 7, 13 January 2004, and Vol. 3, No. 9, 15 January 2004.

47 Intervention by Adnan Al Aboudi, Landmine Survivors Network, 13 January 2004. Written copy with proposed language provided to the Working Group coordinator (on file with author).

48 Ad Hoc Committee, Daily Summary of Discussions, Vol. 3, No. 9, 15 January 2004.

49 Report of the Working Group to the Ad Hoc Committee, above note 40, Art. 8.

50 Report of the Third Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, UN Doc. A/AC.265/2004/5, 9 June 2004, Annex II, Art. 8. The square brackets indicate the addition proposed by Jordan.

51 Ad Hoc Committee, Daily Summary of Discussions, Vol. 4, No. 2, 25 May 2004.

52 Ibid.

53 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 77.

54 Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, p. 900Google Scholar.

55 AP I, Arts 57, 58.

56 Y. Sandoz, C. Swinarski and B. Zimmermann (eds), above note 54, pp. 681, 692.

57 Ad Hoc Committee, above note 51.

58 Ibid.

59 Report of the Third Session of the Ad Hoc Committee, above note 50.

60 Ibid., preambular para. (p).

61 Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on its Fifth session, UN Doc. A/AC.265/2005/2, 23 February 2005, Annex II, para. 12.

62 Ibid., para. 13.

63 Ibid., para. 14.

64 Summary notes of the discussion prepared by the Secretariat for the chair, 24 January 2005 (on file with author).

65 Letter Dated 7 October 2005 from the Chairman to All Members of the Committee, UN Doc. A/AC.265/2006/1, 14 October 2005, para. 51.

66 Ad Hoc Committee, Daily Summary of Discussions, Vol. 8, No. 2, 17 January 2006.

67 International Disability Caucus, Chairman's Text as Amended by the International Disability Caucus, 9 January 2006, Art. 11, available at: www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc.

68 Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on its Seventh Session, UN Doc. A/AC.265/2006/2, 13 February 2006, Annex II, Art. 11.

69 International Disability Caucus, above note 67.

70 Ad Hoc Committee, above note 66.

71 On this, Palestine may well have had a good point. No other UN human rights treaty had included the term “situations of risk” previously, and its inclusion in the draft had emerged from the debates of the lived experience of persons with disabilities. It is reasonable to argue, therefore, that providing specific examples would indeed help to clarify a new phrase that had not up until that point appeared in international human rights law.

72 Ad Hoc Committee, above note 66.

73 Report of the Ad Hoc Committee, above note 68.

74 ”Contribution by Governments: Bosnia and Herzegovina”, available at: www.un.org/esa/socdev/enable/rights/ahc7bh.htm.

75 It is interesting to note that this was the first and last time in the debate that any delegation had made an explicit reference to the interface between the two bodies of law.

76 Ad Hoc Committee, Daily Summary of Discussions, Vol. 8, No. 14, 2 February 2006.

77 Report of the Ad Hoc Committee, above note 68, preambular para. (s).

78 For example, a resolution of the International Disability Caucus Steering Committee Meeting in Madrid, dated 8 July 2006 (on file with author), set out the priorities of the Caucus for the final session of the negotiations, and this issue was not on the list.

79 Working Text as Amended by the International Disability Caucus, 18 August 2006, preambular para. (s), available at: www.un.org/esa/socdev/enable/rights/ahc8docs/ahc8idcwtam18augf.doc.

80 Ibid., Art. 11.

81 Compilation of Proposals Received from Government Delegations Electronically by Friday 18 August 2006, Midnight, working document compiled by the Secretariat for the chair (on file with author).

82 Letter Dated 10 August 2006 from the Deputy Permanent Representative of the Sudan to the United Nations Addressed to the Secretariat, UN Doc. A/AC.265/2006/3, 15 August 2006.

83 Points and Proposals the EU Will Take Up in the Plenary, 18 August 2006, working EU document shared with the chair (on file with author).

84 This was a provocative move designed to raise the stakes and increase pressure on delegations. There were no real doubts about the chair's impartiality, and Ambassador MacKay was known in New York as one of the most neutral and skilled chairs available. He was widely credited for keeping the negotiations focused and on track, and lauded among the disability community for ensuring that disabled persons’ organizations had equal opportunities to speak.

85 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000 (entered into force 12 February 2002), Preamble.

86 Interim Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on its Eighth Session, UN Doc. A/AC.265/2006/4, 1 September 2006, Annex II, Art. 11. The “the” in square brackets above was not in the adopted text and does not appear in the report from the meeting, but it was added in later during technical revisions before the final adoption by the General Assembly in December 2006. It is included here for clarity.

87 References to these articles from AP I are scribbled on handwritten notes attached to the draft from that meeting, along with a question mark as to which was the stronger obligation (on file with author).

88 Y. Sandoz, C. Swinarski and B. Zimmermann (eds), above note 56.

89 Interim Report of the Ad Hoc Committee, above note 86, para. 11. Voting against the phrase were Australia, Canada, Israel, Japan and the United States. Abstaining were Cameroon, Côte d’Ivoire, Gabon, Kenya, Niger, Nigeria, the Republic of Korea and Serbia. Every other delegation voted in favour.

90 ICCPR, above note 11, Art. 4(1).

91 It is worth noting that it is doubtful that delegates consciously considered the implications of the effect Article 11 would have on Article 4 of the ICCPR.