GU Shengkai

 

Abstract: The concept of a Community of Shared Future for Mankind provides new theoretical support for the special protection of the rights of persons with disabilities. The Convention on the Rights of Persons with Disabilities is innovative in terms of its purposes and principles, logic and technology, and the actual implementation of the contracting parties, which is unique in the field of international human rights law. It is a “transcendental” interpretation of the concept of a community of shared future for mankind and enhances the ethical values of international human rights law. The development of the cause of persons with disabilities in China is positively influenced by the values reflected in the concept of a community of shared Future for mankind and meanwhile highlights them, which provides “Chinese experiences” for the international cause of persons with disabilities. 

 

Keywords: a community of shared future for all mankind, the Convention on the Rights of Persons with Disabilities, international human rights law

 

The significant concept of building a community of shared future for mankind put forward by China has been cultivated in ancient and modern, foreign and domestic cultural and ideological exchanges, and nourished in the increasing interaction of the interests of international community, which is a strategic idea that China presents to the world peace and development. In particular, this concept has been included in the United Nations Human Rights Council resolutions and other international agendas,  becoming an important topic guiding the international discourse on human rights discourse, and provided a new perspective and approach for human rights theory and the development of human rights concept at the critical historical points. 

 

The concept of a community of shared future for mankind covers political, economic, cultural, ecological construction, security, climate change and other fields, and offers an important theoretical basis for promoting global governance in various specific fields. It highlights mankind as a whole. Therefore, nobody should be neglected in the promotion and protection of human rights. From the perspective of the special subject of human rights protection, besides women, children, the elderly and “ethnic, religious and linguistic minorities and their members”,  persons with disabilities are also a particularly important group.  The special protection of the rights of persons with disabilities is not only an effective countermeasure to the “long-term and historical” social discrimination experienced by the disabled in international law, but also the enhancement of the concept of a Community of Shared  Destiny for All Mankind and the ethical values of human rights.

 

 

Global human rights governance and building a Community of Shared Future for Mankind need the consensus of human rights values, rules and behaviors, so it’s necessary to strive to make global human rights governance more institutionalized, standardized and procedural. As far as the protection of the rights of persons with disabilities is concerned, from the perspective of the development of the international human rights cause, since the founding of the United Nations, efforts have been made to seek to improve the status of persons with disabilities. The United Nations concern for the interests and rights of persons with disabilities is based on one of its purposes, namely, the promotion of human rights, fundamental freedom and equality of “all mankind”. As recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and other relevant human rights norms, persons with disabilities can exercise their civil, political and economic, social and cultural rights on an equal footing with non-disabled persons. 

 

The United Nations specialized agencies have made active efforts to improve the situation of persons with disabilities: UNESCO has advocated the provision of specialized education; the World Health Organization has coordinated to give technical support in health and illness prevention; UNICEF has supported projects for children with disabilities and provided technical support in its cooperation with Rehabilitation International, a non-governmental organization; the International Labor Organization (ILO) has promoted the access of persons with disabilities to the labor market and enhanced economic integration through international labor standards and technical cooperation activities, etc.

 

On November 22, 1983, the United Nations General Assembly proclaimed the implementation of the World Program of Action Concerning Disabled Persons (WPA) using a multisectoral and multidisciplinary approach. The WPA has created a new concept that seeks to identify “disability” as a relationship between the disabled and their environment and is committed to the total exclusion of all social barriers that make the disabled unable to fully engage in society. Broadly speaking, the implementation of WPA will integrate long-term strategies into socio-economic development policies in various countries, including the development and use of technologies for the prevention of disability, and the adoption of legislation to eliminate different treatments such as barrier facilities, social security, education and employment. With the progress of international human rights cooperation, a global “holistic strategy” for the protection of the rights of persons with disabilities is not only a subjective need, but also an objective possibility, and it embodies the holistic win-win values of a Community of Shared Future for Mankind.

 

Regional mechanisms for the legal protection of the rights of persons with disabilities came prior to global mechanism. It is worth mentioning that it is not Europe, but the United States that took the initiative. As early as 1988, the Additional Protocol to the American Convention on Human Rights declared under the heading entitled “Protection of Persons with Disabilities”: “Everyone who is affected by physical and psychological deficiencies is entitled to special attention to help him achieve the maximum development of his or her personality.” Article 18 of the Protocol also lists special programs and training and calls for the inclusion of persons with disabilities in urban development planning. In 1999, the Organization of American States (OAS) adopted the American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, the first regional human rights convention specifically for the protection of the rights of persons with disabilities. Since then, Europe and Africa have followed suit. Article 26 of The Charter of the Basic Rights of the European Union and Article 18 of The African Charter on Human and Peoples' Rights specifically provide that persons with disabilities are entitled to special measures.

 

The ideal of building a Community of Shared Future for Mankind cannot be achieved without the development of international law. In terms of international human rights law, it is necessary to further form a human rights dialogue and consultation mechanisms, human rights experience sharing mechanisms and human rights policy coordination mechanisms on multiple platforms in various forms with the United Nations as the main body. With regard to the drafting of a special international convention on the rights of persons with disabilities, the call for the establishment of a global mechanism was preceded, but the direct motion was proposed by Mexico. In 2001, during the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa, the Mexican delegation proposed the establishment of an international convention on the protection of the rights of persons with disabilities. Mexican President Vincente Fox reiterated the proposal at the opening ceremony of the 56th session of the UN General Assembly. In accordance with United Nations General Assembly resolution 56/168 adopted on December 19, 2001, an ad hoc committee was established to "consider the proposal of a comprehensive international convention on the protection and promotion of the rights and dignity of persons with disabilities, in accordance with the holistic approach adopted in the work concerning social development, human rights and non-discrimination, taking into account the recommendations of the Commission on Human Rights and the recommendations of the Commission for Social Development”. Since then, the formulation of the Convention on the Rights of Persons with Disabilities (hereinafter referred to as “the Convention” was formally incorporated into the agenda of human rights work of the United Nations.

 

In the drafting of the Convention, the concept of the classification of international human rights conventions is proposed: 1) the overall rights model, such as the Convention on the Rights of the Child. The Convention on the Rights of Persons with Disabilities can be broader with its integrity and comprehensiveness similar to The Convention on the Rights of the Child; 2) the non-discriminatory model. It is based on the Convention on the Elimination of All Forms of Discrimination against Women and The International Convention on the Elimination of All Forms of Racial Discrimination, which do not require the creation of new rights including specific conditions and needs of persons with disabilities; 3) a mixed model, i.e. combining the principles of non-discrimination and equality with individual guarantees of existing rights in accordance with the specific circumstances of persons with disabilities.

 

Through the discussion of the substantive and procedural aspects of the above three models, the parties concerned all agree that all human rights in jurisprudence and practice—civil, political and economic, social and cultural rights—are equally important due to their indivisibility, interdependence and interrelation. The existing human rights conventions and oversight mechanisms are necessary references to the Convention on the Rights of Persons with Disabilities. In view of the fact that the existing human rights mechanisms have different focuses, the formulation of a convention on the rights of persons with disabilities must focus on the issue of persons with disabilities and address specific human rights issues—the rights of persons with disabilities. At the same time, the adoption of a mixed model can facilitate the incorporation of the issues of persons with disabilities into the mainstream of general human rights mechanisms, which is necessary for addressing the specific needs of persons with disabilities. It’s also necessary to integrate all interested persons into the process of formulation and supervision, so as to ensure the extensive support and effective implementation of the Convention. 

 

The negotiation of the Convention lasted five years. At the third meeting of the Ad Hoc Committee from May 24 to June 4, 2004, consultations were held on the draft text submitted by the Working Group in accordance with United Nations General Assembly resolution 58/246. Through the active efforts of all parties, the Convention was formally adopted at the 61st session of the General Assembly on December 13, 2006. The signing ceremony of the Convention was held at United Nations Headquarters in New York on March 30, 2007. It was attended and signed by 81 states and regional integration organizations. In accordance with the provisions of the Convention, after being ratified by the signatory states, it was to enter into force on the thirtieth day of the deposit of the twentieth instrument of ratification or accession with the Secretary-General of the United Nations. At 23:30 on April 3, 2008 (11:30 am, New York, United States), the government representatives of Ecuador as the 20th country that ratified the Convention submitted its official legal documents ratifying the Convention at the United Nations Headquarters. On May 3, the Convention entered into force.

 

The idea of a Community of Shared Future for Mankind is an important theoretical generalization, which suits the development of the international situation, and summarizes the historical lessons and practical experiences with rich history, philosophy, cultural heritage and oriental political wisdom from the perspective of global governance of international affairs. Although this idea is preceded by the Convention, it shares the similar thought source and in some sense, the Convention is the transcendental practice of this concept as well as the concretization of the ethical and practical value of the idea in international human rights law, particularly in the special dimension of the protection of the rights of persons with disabilities, which is a milestone in the perfection of the international human rights system.

 

 

“In the era of economic globalization, the international legal system to meet the common interests, the common values and the need for common action of the international community has become a new force in the system of contemporary international law”, and “an important force to promote mankind towards a community of common destiny”.  To build a Community of Shared Future for Mankind, it is necessary to concretize and stabilize the common pursuit and shared concept of the international community in human rights, provide support for the formation of common values, and build a system indispensable for each country. As the first international convention adopted by the United Nations to protect the rights and interests of persons with disabilities and promote the development of the cause of the disabled, the Convention on the Rights of Persons with Disabilities summarizes the practices, ideas and methods of international disability affairs over the years, which plays an important revelation and leading role for the development of the international cause of the disabled and is the practical interpretation of the great concept of a Community of Shared Destiny for All Mankind in the special law of international human rights. 

 

The concept of a Community of Shared Future for Mankind emphasizes common interests and values, common security and development, common obligations and creating a win-win situation. One of the prerequisites for building a community, and coping with common crises and problems is to recognize the inevitability of differences and to respect the diversity and preciousness of different civilizations and cultures.  On the basis, the Convention uses the expressions of “diversity” (Paragraph 9, Preamble) and “multiple” which are significant to human rights in the form of legal documents, advocates “being concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status” (Paragraph 16, Preamble), and proposes “respect for difference and acceptance of persons with disabilities as part of human diversity and humanity (Paragraph 4, Article 3). All these expressions are quite new in the major human rights documents.

 

Before the Convention, persons with disabilities, either at the international level or at the national level, were faced with obstacles and could not enjoy their civil, economic, political, social and cultural rights fully and were not given sufficient attention. It can be said that the Convention has increased the human rights "standards" in a certain sense. For the sake of the development of international human rights cause, the Convention upholds the values of a Community of Shared Future for Mankind and has put forward new ideas and solutions to solve the problems in the protection of the rights of the disabled, so as to achieve common interests and tackle common crises. Although the previous conventions on human rights have also dealt with the rights of persons with disabilities this was clearly in an ad hoc way. The Convention deals specifically with the protection of the rights of persons with disabilities and forms a holistic strategy in terms of philosophy and practice, which marks the beginning of a new era of protection of the rights of persons with disabilities and fills a major gap in the history of human rights philosophy.

 

The Convention considers disability as a matter of social self-existence rather than a person’s inherent problem from the perspective of the social roots of disability: everyone may experience a physical injury and suffer some kind of disability.  Disability is only a description of the state between the disabled and the external environment in which there are barriers for them. As the concept of a Community of Shared Future for Mankind emphasizes all mankind as human rights subjects and emphasizes common development in human rights, the Convention recognizes that disability is a universal human experience, rather than merely a minority problem, so it needs to be handled with holistic strategy, stating in Article I that “the purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”.

 

From the perspective of legal authority, the formulation and implementation of the Convention marks a shift in the attitudes towards and treatment of persons with disabilities. The protection of the rights of persons with disabilities in general human rights protection mechanisms is lacking. Under the mechanism of the Convention, persons with disabilities are subject to qualitative changes in the subjective position of human rights protection and are no longer treated as victims or minorities, but as legal subjects with definite rights and holders of rights. They enjoy the same rights with other people. They are entitled to claim their own rights and decide their own lives.

 

From the perspective of the realization of rights, persons with disabilities lack of capacity to exercise their own human rights originate from society itself. Equal opportunities are of vital importance to persons with disabilities. The essence of the protection of the rights of persons with disabilities lies in how the rights of persons with disabilities should be turned from what ought to be to what is within the framework of human rights on the basis of the principle of non-discrimination and equality. To combat discrimination against disability and advocate reasonable tolerance, it’s necessary to use specific indications and corresponding measures. Based on this notion, the Convention replaces the concept of disability under the original “medical model” with a model of social and human rights relations, recognizing that persons with disabilities are active members of society rather than recipients of charity. The Convention shifts the focus on the protection of the rights of persons with disabilities from the integration of persons with disabilities in the surrounding physical environment to the equal access to rights by eliminating legal and social barriers for persons with disabilities in social activities, social opportunities, health, education, employment and personal development, etc.

 

From the perspective of international treaty law and human rights law, the Convention also has some distinctive features:

 

First, the Convention establishes human rights principles and specific content for the rights of persons with disabilities. The concept of a Community of Shared Future for Mankind will help to expand “the greatest common divisor” of national interests of each state, implement the common responsibility of international actors, and promote the shaping of future-oriented legal culture and rule of law.  The Convention is the first international legal instrument to systematically protect the rights of persons with disabilities and define the rights of persons with disabilities in the form of international law, covering life, family, education, health, employment, personal safety, judicial protection, participation in politics and public life and other aspects of the rights of persons with disabilities, which enriches and expands the international legal norms on human rights. Whether or not to join the Convention in practice, countries around the world need such a “menu” of guidelines. The Convention provides an authoritative international reference to national laws and policies for the resolution of the problems of persons with disabilities.

 

Second, the Convention is both a law to protect rights and a law to promote the cause of protecting the rights of persons with disabilities. This is China's perspective based on the development of the cause of the disabled in China. Although the Convention establishes a "standard", the object and purpose of the Convention, on the one hand, is constrained by objective conditions such as economic and social conditions and, on the other hand, subjectively depends on the good faith of a state party to the Convention. In order to avoid partial compliance, a state that is party to the Convention may, without prejudice to the object and purpose of the Convention, express its “reservations” to the Convention. In any case, protecting the rights of persons with disabilities and promoting the cause of the disabled may promote each other. It is only through the development of the cause of the disabled that the rights of persons with disabilities can be promoted and realized, which reflects the authenticity and universality of human rights. Therefore, China's emphasis on the right to life and the right to development is also reflected in the Convention. This is also a concrete manifestation of the comprehensiveness and integrity of the Convention.

 

Third, the Convention establishes an international cooperation framework, a monitoring mechanism and an assessment guide. The Convention reflects the value of global human rights governance and international rule of law under the guidance of the concept of a Community of Shared Future for All Mankind through the protection of the rights of persons with disabilities. In accordance with the relevant provisions of the Convention, governments should cooperate for the sake of the cause of the disabled and work with the United Nations and non-governmental organizations. An expert body may play a further role in the case of exhaustion of domestic remedies when individuals or organizations make complaints about the insufficient implementation of the Convention by a state that has ratified the Optional Protocol to the Covenant. Although international law cannot rely on coercive force of the state to ensure its implementation like domestic law, it can provide norms and standards for subjects of international actions and guide the standardization of international actions with the factors of power, interests, ideas, ethics, morality and culture.

 

Fourth, the treatment of the object and purpose of the Convention reinforces its universal basis. The Convention makes an undefined expression of the purpose in Article 1, and reaffirms that the object and purpose of the Convention can not be ruled out in Article 46, so as to maximize the binding of state parties in formally restricting the application of the Convention and achieve the universality of the Convention.

 

Fifth, the Convention highlights the fundamental role of the general principle in a special way. In particular, the principles of “equality” and “non-discrimination”  are extended to all the provisions of the Convention by enumerating the rules, which makes the Convention cohesive and are the key to the understanding of the spirit of the Convention. The enumeration of general principles is also an important feature of this Convention that distinguishes it from other major human rights treaties.

 

Sixth, the Convention provides for the status and role of regional legal entities. In general, only “states” can become parties to the Convention. In accordance with Article 44, the European Union has signed this Convention as a party to the convention (EU directives explicitly prohibit discrimination against disability). The orientation of the regional integration organizations by the Convention is essential for international cooperation aimed to promote the object and purpose of the Convention and ensure sufficient implementation of the Convention. 

 

Seventh, civil society has made its contributions to the formulation of the Convention. Since the disabled are the subjects of the rights, the Convention advocates establishing independent national institutions to be responsible for the implementation and supervision of the Convention, and enrolling representatives of persons with disabilities and organizations to uphold their rights, so as to promote the development of the cause of the disabled. Meanwhile, many organizations of persons with disabilities have participated in the drafting and negotiation of the text in a comprehensive manner and have formulated the textual amendments in the light of their social experiences, so they have played an important role in the conclusion of the Convention. This also reflects the recognition of “soft power” and “empowerment” of non-governmental organizations and civil society in the formulation by the Convention. 

 

In conclusion, compared with the previous international legal documents, the Convention shows the special concerns for the rights and needs of persons with disabilities in terms of its formulation, such as the definition of persons with disabilities, the interpretation of the relevant rights provisions, the subjects of participation in the negotiation of the Convention, and the specificity and operation of the provisions of the Convention,  which embodies the innovation and progress of the convention. The Convention, as an important component of the international human rights legal system, works with other documents to formulate specific rules in various fields and levels, guide the standardization of the behavior of international actors, facilitate the smooth exchange of different human rights cultures, promote the sharing of the international community, and build a Community of Shared Future for  Mankind.  

 

 

The cause of the disabled in China is based on its own reality, people-oriented, and consistent with the value of a Community of Shared Future for Mankind. It has demonstrated the achievements in reform and opening up, economic and social development and human rights protection in China. China is one of the countries that has taken the initiative in proposing and actively promoting and supporting the United Nations to develop international conventions on the protection of the rights of persons with disabilities. A series of suggestions and propositions put forward by Chinese government in the course of the negotiations for the Convention actually manifests the values of a Community of Shared Destiny for All Mankind. The value orientations of Confucian benevolence and pluralism, ethical traditional legal culture, “a magnificent ultimate realm”,  the strengthening of comprehensive national strength and improvement of international status, and the process of modernization of national governance system and governance capacity are all the indispensable elements and theoretical and practical support for this concept. Since China’s ratification of the Convention, China has taken effective implementation as the goal, taken the economic and social development as the fundamental way, and taken international cooperation as an important means so as to provide Chinese experience for the international cause of the disabled and promote its healthy development.

 

First, China has actively taken various measures including legislative and administrative measures to conscientiously fulfill the obligations of the Convention. On April 24, 2008, the newly revised Law of the People’s Republic of China on the Protection of Persons with Disabilities was adopted and the concept of discrimination against disability was introduced for the first time, highlighting the concept of the rights of persons with disabilities. The original legal provisions have been enriched and improved and many new provisions reflect the requirements of the Convention. With the increasing improvement of the laws and regulations on persons with disabilities with Law of the People’s Republic of China on the Protection of Persons with Disabilities as the core, the leadership system and working mechanism for the cause of the disabled have been formed with the CPC committee leadership, government responsibility, social participation and organizations of the persons with disabilities playing an active role, the social security system and service system for the disabled have been preliminarily formed, and the institutional framework for the protection of the right of persons with disabilities to life, health, survival and development has been preliminarily formed, which has laid a solid foundation for the sustainable and healthy development of the cause of the disabled.  

 

Second, China has vigorously promoted the cause of the disabled, and significantly improved the protection of the rights of persons with disabilities. With the promulgation and implementation of the special laws such as Regulations on the Education of Persons with Disabilities, Regulations on the Employment of Persons with Disabilities, Regulations on Disability Prevention and the Rehabilitation of Persons with Disabilities and Regulations on the Construction of Barrier-free Environment, as well as National Disability Prevention Action Plan of China, the living and development conditions of 85 million persons with disabilities have been significantly improved, with more sufficient equal participation conditions and increasingly improved social status. Many persons with disabilities have been elected representatives of people's congresses at all levels, served as Chinese People’s Political Consultative Conference members, and actively participated in politics. The government helps persons with disabilities find jobs, integrate into the community, and enhances their sense of achievement. As the State Council promulgated the 13th Five-Year Plan for Speeding up the Process of Helping Persons with Disabilities to Live a Well-off Life,  many people with disabilities and their families have further got rid of poverty and their happiness index has been significantly improved.

 

Third, China has vigorously promoted the dissemination of the Convention, so that equality, integration and shared views of value become a social consensus. China has established the National Day of Persons with Disabilities, and advocated the notions of the Convention through the mass media and seminars, etc. to enhance awareness of the protection of the rights and interests of persons with disabilities on the occasions such as the International Day of Persons with Disabilities, the International Day of the Blind, and the International Day of the Deaf.  Work committees of disabled persons in governments of all levels play a leading role in widely mobilizing the whole society to vigorously carry forward humanitarianism and advocate friendliness, mutual aid, integration and sharing. Disabled persons’ federations at all levels serve the disabled wholeheartedly and promote the comprehensive development of the disabled in accordance with the objectives and requirements of equality, participation and sharing. Persons with disabilities can follow the pace of the times, being enterprising and hardworking, going beyond their own restraints and living a wonderful life, which conveys the true meaning and value of life and manifests the national spirit and the spirit of the era. People are more willing to be helpful to the disabled.  

 

Fourth, China has actively participated in international human rights affairs, and strived to promote the development of international cause of the disabled. China actively supports and participates in international exchanges and cooperation in various fields of human rights, including participating in the formulation of the Standard Rules on Equal Opportunities for Persons with Disabilities, and actively participates in the actions of United Nations Decade for the Disabled (1983-1992), and advocates and promoted two actions, the Asian and Pacific Decade of Disabled Persons, and conscientiously implementing the United Nations World Program of Action concerning Disabled Persons. Since the 1990s, China has called for the development of the Convention on a number of international occasions. In March 2000, the five major organizations of disabled persons including World Federation of the Blind, World Federation of the Deaf, Inclusion International and Disabled People’s International, as well as the heads in charge of the affairs of the disabled in more than 10 countries around the world were invited to hold the World Conference of Leaders of Non-governmental Organizations for Disable Persons in Beijing, and adopted Beijing Declaration, which has played a positive role in promoting the formulation of the Convention by the United Nations. Subsequently, China participated in the whole process of the negotiations of the Convention and played a constructive role. In March 2007, China became one of the countries that first signed the Convention.  In August 2010, China submitted its performance report to the United Nations Committee on the Rights of Persons with Disabilities for the first time, in accordance with the relevant provisions of the Convention. In 2016, China Disabled Persons’ Federation Chairman Zhang Haidi became the Chairwoman of Rehabilitation International.  In order to promote opportunities for people with disabilities in the world to achieve equality, integration and happy life, promote the balanced development of the world's disability affairs and help disabled people in developing countries to have better life and development, China also proposed the establishment of World Disability Organization.  The China Disabled Persons’ Federation has won the United Nations Peace Messenger Award, United Nations Decade for the Disabled Special Award, and 25 Years Cooperation of United Nations and China Outstanding Contribution Award, etc. , which reflects the recognition of the international community for the great efforts and achievements made by China to protect the rights of persons with disabilities and the responsibility undertaken by China for in-depth participation in global governance system reform.

 

 The cause of human rights is an important part of the cause of socialism with Chinese characteristics. It is an essential requirement of socialism and a major mark of social fairness and justice and the progress of civilization to fully guarantee the rights of persons with disabilities, comprehensively enhance the well-being of the disabled, improve the abilities of persons with disabilities and promote the equal participation of disabled persons in society. The 18th National Congress of the Communist Party of China put forward “improving social security and service system for the disabled and effectively protecting the rights and interests of persons with disabilities”. Promoting global human rights governance is an important embodiment of the new notion, idea and strategy of governance in contemporary China. China has entered a decisive stage of building a well-off society in a comprehensive manner, and the cause of the disabled stands at a new starting point. With the process of the modernization of national governance system and governance capacity and with the further improvement of domestic legislation and social security system, China’s promotion of the cause of disabled people will make greater progress and make greater contribution to the development of international human rights cause.

 

(Translated by ZHAO Hongfang)