Written by Sabina Escobar
Today, the situation of human rights defenders (HRDs) with disabilities is more concerning than ever. After a pandemic having resulted in a remarkable closure of the civic space, this community finds itself at the crossroads of marginalisation and insecurity. Being systematically excluded and targeted, their condition as defenders and disabled are still perceived as two independent ones, both at the policy and legal level. This brief will delve into the conditions of HRDs with disabilities and will provide some recommendations aimed at policy-makers.
On the 29th of November 2022, the UN Special Rapporteur on the rights of persons with disabilities (PWDs) and the UN Special Rapporteur on the situation of HRDs gave a joint statement regarding HRDs with disabilities. Overall, the communication revealed a deep concern by the experts, who highlighted that HRDs with disabilities are systematically targeted and excluded globally, exposing this community to high risks. The latter can be due to their disability, their condition of HRDs, or both (Lawlor & Quinn, 2022).
The UN Convention on the Rights of Persons with Disabilities was adopted 16 years ago, and established that PWDs must enjoy all human rights and fundamental freedoms. In fact, Article 1 of the Convention elaborates on the purpose of the latter, which 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 the respect for their inherent dignity” (UN General Assembly, 2006). However, the current situation is leaving PWDs, and more specifically HRDs with disabilities, at the margins of society. HRDs with disabilities are currently operating in an increasingly challenging environment. Not only do they constitute a marginalised community, but “their work is often ignored, misunderstood, or regarded as separate from broader human rights issues” (Lawlor & Quinn, 2022). This perception is accompanied by a visible lack of reasonable accommodation for HRDs with disabilities by stakeholders, which only makes their work more difficult (Lawlor & Quinn, 2022).
During the last years, HRDs with disabilities have created a movement worldwide, which is becoming stronger and more interconnected. In the process, the community has worked towards social and political change, which is collected under the motto “nothing about us without us”. This watchword is linked to a historical context for HRDs with disabilities characterised by their exclusion from decision-making processes directly affecting their lives, societies, and communities they live in (CBM, 2022).
In November 2020, the International Disability Alliance published its annual global survey report on the participation of organisations of PWDs (OPDs) in development programmes and policies. This type of entity differs from any other body working on disability since they are governed and run by PWDs themselves (CBM, 2022). The main conclusion resulting from the information collected during the survey was that, at the international level, PWDs are “increasingly consulted, but not yet participating” (International Disability Alliance, 2020), meaning a still insufficient presence in decision-making processes. In addition, other relevant trends came to light. The International Disability Alliance found out that some groups of PWDs are rarely invited to consultation events. More specifically, the Alliance emphasises the exclusion of persons with psychosocial and intellectual disabilities, deafblind, and women with disabilities, which are considered the most marginalised groups in the PWD community. A final observation included in the report is the fact that OPDs are often involved on issues specifically related to disabilities. However, when considering broader development issues, equally concerning PWDs, this community is left at the margins (International Disability Alliance, 2020).
Before going into detail, it is equally important to bear in mind the effects that the COVID-19 pandemic has had on the work, development, and protection of HRDs with disabilities. In particular, it is the closure of the civic space that has affected this community the most, strongly damaging their activities, both at the community and the individual level. According to the UN High Commissioner for Human Rights, the civic space is “the environment that enables civil society to play a role in the political, economic and social life of our societies. In particular, civic space allows individuals and groups to contribute to policy-making that affects their lives” (OHCHR, n.d.). Currently, this essential space is in jeopardy, constituting a high threat for HRDs, and particularly HRDs with disabilities. Civil society actors are facing a pushback globally. Attacks to this community are commonplace and the situation is increasingly worsening, seeing cases of arbitrary detention, enforced disappearance, detention, and even killings (OHCHR, n.d.). For instance, this is shown by the case of Helena Maleno, a Spanish HRD, journalist, and researcher of migration movements and human trafficking, who is working at the border between Spain and Morocco. While defending the rights of migrants trying to cross the border, Helena had to face numerous risks: her life was threatened several times and the Moroccan tribunals accused her of migrant trafficking and the encouragement of illegal migration (Maleno, 2020).
This policy brief is addressed to EU policy-makers in the field of social inclusion and anti-discrimination. First, the brief will look at the background of exclusion and marginalisation faced by HRDs with disabilities, together with an overview of EU policies and mechanisms. Secondly, the paper will provide a set of policy options and recommendations for its audience.
Problem description and background
This section will focus on two main aspects concerning the current targeting and exclusion of HRDs with disabilities. On the one hand, the brief will have a closer look at the environment in which the work and actions of HRDs with disabilities are embedded. Among others, it will explore the historical, social, and financial context behind the situation of the community at the global level. On the other hand, the paper will analyse legal and policy aspects, particularly focusing on the EU instruments and mechanisms available, as well as their potential gaps.
Historically, HRDs with disabilities have been survivors and victims of a double oppression at the crossroads of their condition of defenders and their disability condition. This has often led to a higher risk, reinforced by stigma and marginalisation throughout the years. Paternalistic attitudes, accompanied by reinforcing narratives, have also prevented PWDs from communicating in safe spaces to share their experiences and formulate sustainable long-term solutions (Lawlor & Quinn, 2022). Quantitative data is revealing how much attention and protection HRDs with disabilities receive. From those states that are party to the UN Convention on the Rights of Persons with Disabilities, only 45 countries have developed non-discrimination and more disability-specific laws (UN Department of Economic and Social Affairs, n.d.). In addition to this, those countries, which are proclaiming themselves as promoters of the inclusion of HRDs with disabilities, often perpetuate a reductionist approach to disability, treating it as a medical condition rather than offering a broader approach including human rights concerns (Lawlor & Quinn, 2022). A concrete and clear example of the marginalisation and stigma faced by HRDs with disabilities is albinism, corresponding to the absence of pigment in the skin, hair, and eyes. Societal attitudes have reinforced the risks the albin community has faced historically. In fact, “persons with albinism face multiple human rights challenges including experiences of stigmatisation and discrimination and harmful practices related to witchcraft accusations and ritual attacks” (OHCHR, 2016). Thus, such phenomenon hampers the participation of such groups, who constitute very valuable assets in the construction of inclusive and sustainable societies (Lawlor & Quinn, 2022).
Socially, the role of HRDs with disabilities has often been misinterpreted and conceived as selfish. However, it is of extreme relevance as it contributes to daily advancements in social development, specifically inclusion. To further delve into this aspect, it is important to mention that asserting or assuming the community uniquely engages in activities for their own interests and rights is a mistake. HRDs with disabilities deal with and work for the advancement of a wide range of human rights challenges. Among others, this group works on different aspects of discrimination, including sexual orientation or gender identity discrimination. The rights of women, children, migrants, and indigenous peoples are equally comprised in their daily fight, as well as the fight against racism, climate change, torture, and conflict (Lawlor & Quinn, 2022). Moreover, according to a report published by the European Union Agency for Fundamental Rights on the right to political participation for PWDs, the latter are more likely to engage in an active way in the defence of human rights, as well as in public affairs (FRA, 2014).
Financially, HRDs with disabilities find themselves in a disadvantaged position as they do not constitute a priority in the governments’ agendas, therefore accessing a rather limited budget. However, it is the combination of defenders and disabilities that expose the community in question to financial obstacles. On the one hand, PWDs are more likely to face negative socioeconomic outcomes, including a lower access to education, poorer health services, more unemployment, and higher rates of poverty (World Bank, 2022). HRDs generally gain visibility across the globe for their needs and concerns. However, in combination with a disability condition, those advancements seem to vanish.
After having delved into the historical, social, and financial contexts of HRDs with disabilities, the brief will explore the different existent tools and mechanisms that this community can resort to at the EU level.
With regards to PWDs, the main legal instrument that exists at the EU level is the UN Convention on the Rights of Persons with Disabilities, previously mentioned in the introduction. The EU and its member states are party to this Convention, which constitutes the main legal instrument specifically aimed to cover the rights of PWDs (European Commission, n.d.a). PWDs can equally resort to other legal instruments in the form of regulations, decisions, directives, opinions, and recommendations. Nevertheless, the latter do not embed specific legislation for this community. Those tools rather include concrete provisions applicable to PWDs, for instance within anti-discrimination law or access to justice law, often resorting to the terms vulnerable groups or discrimination grounds, among others. They are treated together with other groups such as ethnic and religious minorities or the LGTBQ community, therefore underestimating the needs and specificities of each group. For instance, such general legislation includes the European Convention on Human Rights (Council of Europe, 1950), the Victims’ Rights Directive (2021/29/EU) (2012), or the Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (2013).
Concerning HRDs, the EU has developed a specific legal instrument: the EU Guidelines for Human Rights Defenders. Adopted by the Council of the EU in 2004 and revisited in 2008, the Guidelines reflect the EU’s approach on the protection of HRDs in non-EU countries (Bennett, 2013). Those include suggestions such as member state diplomats at EU missions and HRDs meeting on a regular basis, visiting activists in detention, monitoring trials, and advocating for their protection, among others. However, the Guidelines are a non-binding legal source for member states, which may lead to a lack of commitment from individual countries. In fact, after conducting an assessment of the implementation of the Guideline in Thailand, Tunisia, and Kyrgyzstan, Bennett et al. (2015) offered a critical approach to the EU’s behaviour regarding HRDs’ protection. The authors observed “good practice in implementation, but also barriers to and constraints upon the capacity and willingness of diplomats to implement the guidance and defenders from accessing the envisaged support” (Bennett et al., 2015). Amnesty International equally explored the EU’s commitment in HRDs’ protection, coming to a similar conclusion. According to the organisation, the EU would be “falling short in promises” (Amnesty International, 2019a) and the implementation of the Guidelines lack strategy, consistency, visibility, and innovation (Amnesty International, 2019b).
Before considering the main policies and initiatives at the EU level, it is important to note that the legal considerations that have been discussed treat PWDs and HRDs as different groups with different needs and being victims or survivors of different risks and vulnerabilities. There is not an instrument or mechanism acknowledging the double oppression to which HRDs with disabilities are exposed. As it will be seen, the same case applies to policies and initiatives.
The main initiatives developed by the EU for those two groups are (1) the Strategy for the Rights of Persons of Disabilities 2021-2030 and (2) the EU Human Rights Defenders Mechanism. The former was adopted by the Commission with the objective of improving the lives of PWDs both in Europe and globally. It is based on the UN Convention on the Right of Persons with Disabilities, specifically Article 1. The Strategy builds on the results collected from the previous strategy (2010-2020). It was observed that, “despite the progress made in the past decade, [PWDs] still face considerable barriers and have a higher risk of poverty and social exclusion” (European Commission, n.d.b). At the same time, the new Strategy aims at applying an intersectional perspective in line with the UN 2030 Agenda for Sustainable Development (European Commission, n.d.b). Regarding the EU Human Rights Defenders Mechanism, this instrument has been renewed for the period 2022-2027. It is a critical programme of the EU to support HRDs at the international level. It is managed by a consortium formed by 12 NGOs working on human rights issues, called ProtectDefenders.eu. The funds by the EU allow the consortium to provide those HRDs who are more at risk with “efficient, strategic and flexible support in the immediate-, medium- and long-term” (European Commission, 2022). Among others, the Mechanism prioritises physical and digital protection, legal and medical support, capacity development, temporary relocation, outreach, training on risk and security, and a particular focus on women, the youth, and the LGTBQ community (European Commission, 2022).
Policy options and recommendations
Having outlined the main concerns regarding the double oppression faced by HRDs with disabilities, as well as the main existent legal instruments, policies, and initiatives at the EU level, the paper proposes 3 policy recommendations to ensure that HRDs with disabilities receive the deserved attention and are treated as a single group, considering their specificities, demands, and needs. Those recommendations for EU policy-makers in the field of social inclusion and anti-discrimination are based on the previous discussion, bringing to the table some personal inputs and perspectives. Although they remain simple and general at a first sight, they would constitute an important beginning towards sustainable change.
(1). Encouraging a joint solid conception of the HRDs and PWDs communities, rather than treating them as two independent groups. As it has been discussed, the main issue that HRDs with disabilities are currently facing is both marginalisation and a higher risk of attack. Although acknowledging the merging of these two communities in a stronger way might require a radical change of visions and perspective, it is of utmost importance that the double oppression faced by HRDs with disability becomes visible in order to occupy a higher position in the agenda of the EU and its member states. Understanding the condition of HRD and disability as mutually reinforcing the vulnerability and insecurity for the group in question will contribute to a more efficient development of initiatives and policies, which will equally be transferred into discourses. In order to make this shift of direction tangible, new and more comprehensive policies should comprise a human rights-based approach dealing with the situation of HRDs with disabilities.
(2). Putting OPDs at the centre of expertise when making consultations. Those kinds of organisations are fundamental in the advancement of the rights of HRDs with disabilities. Not only do they deal on a daily basis with human rights issues, and therefore are HRDs, but also live with a disability themselves. The added value of consulting OPDs while drafting policies is the fact that policy-makers at the EU level would have access to real and first-hand expertise. OPDs and their members are the ones having the tools and the solutions to improve their own situation in the fight against discrimination, marginalisation, and insecurity. In order to reduce the gap between policy-makers and OPDs, as well as a way to make communication smoother, OPDs networks should be widened and the connections between them strengthened. At the same time, there should be a raising of the profile of such organisations, in addition to their integration in global advocacy (CBM, 2022).
(3). Adopting a policy framework recognising the right to and importance of participation and involvement of HRDs with disabilities. This community should be present at all the different levels of decision-making and the procedure to achieve this goal should be clear. HRDs with disabilities should be included at the local and national level of decision-making and during the whole process, from the first stage of planning to the last stage of evaluation. A potential implementation tool would be to give them the status of an obligatory consulting group. At the same time, they should be included in international matters such as issues related to international cooperation or humanitarian emergency and risk situations (International Disability Alliance, 2022).
This policy brief has brought to the table the current discussions on the situation of HRDs with disabilities, clearly exposed to dynamics of marginalisation and insecurity through systematic exclusion and targeting. The paper has explored the historical, social, and financial context behind this community at the global level. It has equally analysed the legal and policy aspects, as well as the EU mechanisms available to deal with their protection. Finally, it has provided three main recommendations towards best practices: (1) encouraging a joint solid conception of the HRDs and PWDs communities, (2) putting OPDs at the centre of expertise when making consultations, and (3) Adopting a policy framework recognising the right to and importance of participation and involvement of HRDs with disabilities.