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CHAPTER 5 An Eye Toward Effective Enforcement: A Technical-Comparative Approach to the Drafting Negotiations Tara J. Melish The Convention on the Rights of Persons with Disabilities is a historic achievement on many levels. Hard-fought and comprehensive, it promises to change the way the rights of persons with disabilities are understood and socially claimed by a broad range of stakeholders for generations to come. This is as true for the rights of persons with physical and sensory disabilities as it is for those with psychosocial, intellectual, and other developmental or learning disabilities. It may be noted in this latter respect that a fairly high degree of confidence existed from the beginning of the negotiations that the final drafted treaty would offer important and significant protections for persons with physical and sensory disabilities. What was far less clear was the level of protection the new treaty would offer persons with intellectual and psychosocial disabilities. Such persons have long faced a particularly abusive and deeply embedded set of social stereotypes regarding competency that have functioned in practice to institutionalize and legitimize structures that often deny their very capacity to act and make free decisions as recognized human beings. These widely held attitudes have served historically to justify, both legally and socially—and hence to render invisible from a mainstream human rights lens—such stark abuses against such persons as their forced segregation and warehousing in institutional facilities, relegation to separate educational, housing, and employment settings, subjection to long-term An Eye Toward Effective Enforcement 71 restraints and forced interventions in the name of treatment, and enforced loss of legal capacity. Such abuses would provoke an immediate and sustained international outcry by the global human rights community if committed against persons without mental impairments, either real or perceived. To ensure that the acceptability of such abusive and discriminatory practices was not transposed into the new treaty, either directly or indirectly, explicit strategies of socialization, awareness raising, and legal framing would need to be a major focus of the negotiation process. Disability Rights International—then Mental Disability Rights International—entered the negotiations with this problematic in mind, intent on ensuring that the substantive and procedural protections in the treaty were as effective and meaningful for persons with mental disabilities as they were for persons with physical and sensory disabilities. It is thus useful to highlight DRI’s substantive mission and how it calculated that it could most effectively pursue this mission through the CRPD negotiation process, especially in coordination with the many other members of the disability rights movement present in the negotiations who, while differing at times in approach, were equally committed to this important goal. This chapter is accordingly divided into three parts. The first part seeks to explain the strategic approach DRI took to the CRPD negotiation process, highlighting its methodology, the guiding principles it embraced, and the resulting strategies of engagement it pursued. The second part turns to some of the key substantive issues DRI focused on in its interventions and advocacy before the Ad Hoc Committee. The chapter concludes with a brief reflection on the Convention, the ultimate efficacy of DRI’s approach, and the road ahead. DRI’s Strategic Approach to the Drafting Negotiations Authorized to participate in the very first session of the AHC, DRI understood early on that it had a potentially important strategic role to play in the CRPD negotiation process. That role derived primarily from its institutional status and operational expertise as the leading international human rights organization dedicated to protecting the human rights and full participation in society of persons with disabilities worldwide. That is, unlike most international disability rights organizations, which have taken up the human rights framework only more recently in their global work, DRI had 72 Tara J. Melish assumed an express human rights identity from its inception in 1993; it was founded precisely to make visible the human rights violations against persons with disabilities that the mainstream human rights community had long chosen to ignore. Correspondingly, with a substantive focus on ending the institutionalization of persons with disabilities and promoting their social integration into community settings where they could live with dignity and human rights on an equal basis with others, DRI’s methodological focus has, since its founding, been rooted in the strategic use of international human rights treaties and their corresponding monitoring and enforcement mechanisms to achieve its advocacy objectives. DRI thus came to the CRPD negotiating process with significant firsthand experience using existing regional and...

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