Human Rights Treaty Drafting through the Lens of Mental Disability: the Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities

In this piece I explore whether, if established, the proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities will be an effective way to limit abuses of the rights of persons diagnosed with mental disabilities. In Section I, I discuss the failure of international human rights law to effectively address these abuses to date. In Section II, I consider the debate surrounding the need for a disability-specific Convention. In Section III, I argue that in order for the proposed Convention to be effective, and not simply a hollow mechanism, it must reject the traditional medical model of disability. Instead, the Convention should reflect a rights-based paradigm premised on a reformulation of disability as a social construct. I will argue that with respect to mental disability the medical model still prevails and, with reference to existing human rights instruments, I advance the position that there must be mindfulness of this model’s intrusion into the Convention drafting process. In Section IV, I make specific drafting recommendations that I hope will assist the proposed Convention to realize its full potential. In particular, I discuss some of the principal issues facing the drafters, including the type of treaty to be adopted (one based on non-discrimination or one which adopts a comprehensive approach) and the type of monitoring mechanism which might be established to satisfy both the desire to have a strong follow-up and the concern to avoid counter-productive repetition of existing mechanisms. My analysis is informed by my experience as a member of an NGO Delegation to the recent United Nations Working Group Meeting respecting the proposed Convention. Reference is made to psychological science material, particularly with respect to the efficacy of antipsychotic medications