Regarding Rights

Academic and activist perspectives on human rights

What can human rights treaties do for people? The UN Convention on the Rights of Persons with Disabilities in Mongolia

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Image from the Facebook page of the Mongolian DPO Bid Chadna ("We Can")

Image from the Facebook page of the Mongolian DPO Bid Chadna (“We Can”)

By Nara Ganbat

Centre for International Governance and Justice

On a very cold evening on 13 December 2006, I was on my way back home from a women’s prison located just outside of Ulaanbaatar, where two of us from the Mongolian Human Rights Commission had spent a whole day conducting an inquiry. Suddenly my mobile phone rang and I heard a very excited voice saying ‘Congratulations! Our Convention has just been adopted by the United Nations!’ Along with excitement, I was also able to hear expectations – an expectation, first of all, that the newly adopted Convention on the Rights of Persons with Disabilities (CRPD) will bring change to the thousands of people with disabilities in Mongolia,[1] who are amongst the most vulnerable in our society.[2] The joy of a leading civil society activist, whom I had worked with for the last few months on various projects preceding the birth of the new Convention, warmed up my frosty feeling on a rough working day and an icy winter evening. At the same time, it reinforced my long-held interest in understanding what international human rights treaties can actually do for people.

There was in fact a good reason for my activist colleague to get excited about the CRPD. Under the Constitution of Mongolia, international treaties become a part of domestic legislation once ratified.[3] Given that Mongolia supports the international human rights regime and becomes a party to most human rights treaties, there was another good reason for him to hope that the CRPD would be ratified soon. As expected, Mongolia acceded to the Convention and its Optional Protocol on 13 May 2009. Unfortunately, as is the case for other human rights treaties, the potential of the CRPD as domestic law is undermined due to a major problem in the Mongolian human rights protection system, what I would call a  ‘remedy gap’ that is a combination of legal and practical problems.[4] In the Mongolian legal system, treaty rights can only be enforced by the courts to the extent that domestic legislation provides remedies for the rights protected.[5] However, these remedies are largely inadequate and ineffective. Many important rights provisions are not remediable, and the issue of fines to alleged perpetrators is the most common type of remedy. The practical problem is that no sustained practice or culture exists among legal professionals for applying international treaties in social justice cases, even where there are remedies in the legislation. Therefore, regardless of their significant potential as law, international human rights treaties are, in practice, weak instruments for Mongolia.

Almost 7 years since we had that emotional telephone conversation, in June 2013, I interviewed my colleague for my PhD research. He said:

My expectation from the Convention was high. I hoped that [the] lives of people with disabilities [would] be better off significantly, once Mongolia ratified the Convention. Nothing has changed in the past 5 years. We were deeply disappointed, and the excitement we had has faded away. But we have realised that who should bring changes into our lives is us – not the Government. In this struggle, the CRPD provides important avenues to realise our dreams.

Nothing has changed at all? Clearly, that is not the case. I can say that disability is one policy area in Mongolia where dramatic changes are happening. Since 2008, almost every session of Parliament has amended various pieces of legislation on disability issues, such as strengthening accessibility requirements, increasing welfare measures, ceasing taxes, revising various concepts and definitions related to disability, or establishing new mechanisms for intervention and diagnosis. According to a key drafter, the Law on Social Protection of Citizens with Disabilities (2005), Mongolia’s core legislation directed to people with disabilities, is now being revised to reflect the CRPD. There are also important policy developments. For the first time in the country a designated division responsible for disability issues was established, in October 2012, within the structure of the Government.[6] In August 2013, the Government approved an interdepartmental plan to implement the CRPD in 2013-2016. Although it may be ineffective and fragmented, funding for disability support and services is increasing each year. Evidence shows that Disabled Peoples Organisations (DPOs) are becoming more capable and articulate. In the Mongolian capital the number of accessible buildings, at least those with ramps, is growing. The frequency of public campaigns and events that focus on the capabilities of people with disabilities is increasing. It is clear that the disability sector became very active in the last 5-6 years.

Before celebrating these achievements, however, three points must be made. First, improved laws and policies will not necessarily all be perfectly implemented. Similarly, although there are some promising signs of change, these are not at all widespread and systematic. Second, even if there are some changes, it is difficult to prove that these changes can be attributed to the CRPD. Third, and very interestingly, even if we naively assume that these changes have happened because Mongolia takes its international obligation under the CRPD seriously, it is doubtful that the underlying values and ideas of the Convention have been understood and appreciated, and so might be said to have caused these changes. My interviews with key people in the disability sector show that recognition of the vulnerability and social injustice experienced by people with disabilities underlie the increased attention to disability issues in recent years. The fundamental idea of the CRPD, which is recognition of the human rights and inherent dignity of people with disabilities as equal to other members of society, seems largely irrelevant to these changes.

What is the point of having the CRPD, then? There is no question that the CRPD has had important impacts in Mongolia. I would like to give two examples here. First, the CRPD created energy among domestic stakeholders to act on disability issues. Interestingly, this effect was produced even before the CRPD was adopted by the UN General Assembly. Even more interesting is what this effect has produced, although Mongolia remained in the periphery of the global activism created around the CRPD. Government participation in the negotiations were minimal,[7] and civil society remained largely unaware of the negotiations until the very end phase.[8] In this context, local offices of the UN, international NGOs, and the National Human Rights Commission became sources for information and networking. In particular, in triggering an impetus within the Government to act in the area of disability, the bridging role of the National Human Rights Commission proved to be important. I have also learned from my fieldwork that, for Mongolia, the energy created around the CRPD was reinforced by milestone events related to the treaty’s acceptance and implementation, such as its adoption and ratification, or country reporting to the UN Committee.

Second, once the CRPD was ratified it provided a framework for the actions of both government and civil society. Public officials, although maybe lacking in the technical expertise to fully understand the CRPD’s values and norms and translate them into local circumstances, regard the Convention as a fundamental instrument in their work. In addition to its important symbolic role, the CRPD has also had a significant practical role as it provides a handy template in designing polices and projects for public officials. Meantime, the CRPD also provides a reference for civil society mobilisation. As an expert from a think-tank organisation said to me:

The nature of civil society mobilisation has changed. Few years ago, what DPOs had claimed from the Government was simply funding. Now, they are advocating for broader social issues. As an articulation of human rights in the area of disability, the CRPD helped DPOs to see their problems in a systematic manner.

Many well-known studies have quantitatively measured the effects of human rights treaties on the basis of related country practices, such as the number of torture incidents, a ratio of men and women in parliament, or a percentage of children in the workforce, while considering several conditions that may have contributed to these outcomes.[9]  I doubt if the findings of these studies could accurately describe the effects of human rights treaties on the ground. A close examination of how the CRPD works in Mongolia tells us that human rights treaty implementation is not a straight-forward process, and quite unlike an arithmetical equation of 2+2=4. International human rights treaties, which are designed to regulate domestic practices, produce outcomes through a complex interaction with domestic laws, politics, and social constituencies. Even if we see country practices that are in line with particular human rights treaty provisions and that those changes occurred after the country ratified that treaty, what actually caused the changes may not in fact be the spirit of the treaty. In order to better understand what human rights treaties can do for people, therefore, we may need to focus on the process, rather than the facts on the ground.[10]

 


[1] The 2010 Population and Housing Census, the latest available official statistics on the population of Mongolia, estimated that there are 108 071 people with disabilities, which is 4.1 per cent of total population of the country. But one should keep in mind that disability statistics are vague and inconsistent across sectors in Mongolia, just as it is a problem for many other countries. This estimate of the 2010 Census would increase significantly if a broader definition of disability was used. The Census had only two questions with regard to disability, and these were based solely on impairments as opposed to a social understanding of disabilities, which is the founding principle of the CRPD.  In particular, the Census questionnaire asked “do you have any disability? If yes, please specify whether it is congenital or acquired,” and “if you have disability please specify the type.” Options to the second question include visual, hearing, mobility, cognitive, speaking, and other. See National Statistics Office, ‘2010 Population and Housing Census’ (2011).

[2] As provided by its founding legislation, the Mongolian Human Rights Commission reports annually to the Parliament on situations of human rights in the country. The 2006 report of the Commission, which examined the experiences of people with disabilities, showed evidence of profound breaches of human rights.

[3] Constitution of Mongolia 1992, art 10(3). As a general rule, international treaty provisions prevail over contradicting domestic laws. More than 150 (out of 580) pieces of legislation adopted by the Parliament provide for the supremacy of international treaty norms over contradictory domestic provisions. However, the Constitution also provides that international treaty norms are void when they are found to be incompatible with the provisions of the Constitution.

[4] ‘Legislation’ in this piece stands for legislative acts adopted by the Parliament.

[5] Mongolia has a comprehensive system for the legal protection of human rights. The Constitution protects civil, political, economic, social, and cultural rights in line with the Universal Declaration of Human Rights. Mongolia is a party to around 35 international treaties relating to human rights, including 8 out of 9 core human rights treaties adopted by the UN. The Parliament adopted dozens of pieces of legislation regulating procedures to implement human rights, including the provision of remedies. Violations of human rights guaranteed by the Constitution or international treaties can only be remedied to the extent of these pieces of legislation.  The remedies that are available are inadequate and procedurally problematic. Although Mongolia has a Constitutional Court, it does not hear factual breaches of constitutional rights. With regards to a mechanical separation between the jurisdictions of the Constitutional Court and the courts of ordinary jurisdiction that severely hinders the human rights protection system of Mongolia, please see Tom Ginsburg, Judicial review in new democracies: Constitutional courts in Asian cases (Cambridge University Press, 2003).

[6] The Division for Development of People with Disabilities was established within the Ministry of Population Development and Social Protection, the core social policy ministry under the current Government (2012 – 2016).

[7] According to travaux préparatoires of the CRPD, the delegations from the National Human Rights Commission of Mongolia, who held an independent view from the Government, took part in the first session of the Ad Hoc Committee held in New York in 29 July to 9 August 2002. No other records on Mongolia’s participation in the CRPD negotiation were documented.

[8] While the 8th Ad Hoc Committee Meeting (which finalised the draft text of the CRPD) was going on at the UN level in August 2006, a local office of an international nongovernmental organisation (Amici de Raoul Folleariu -AIFO) organised a week-long training for Mongolian DPOs, introducing the draft text of the treaty. It was the first occasion for the most of the DPOs to learn about the Convention.

[9] For example, see Oona A Hathaway, ‘Do human rights treaties make a difference?’ (2002) 111 Yale Law Journal, 1935, and Beth A Simmons, Mobilizing for human rights: international law in domestic politics (Cambridge University Press, 2009).

[10] I am grateful to Dr Benjamin Authers for his comments and thorough editing of this piece.

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