P H I L L I P F R E N C HD I R EC TO R

AU ST R A L I A N C E N T R E F O R D I SA B I L I T Y L AW2 0 1 2

Convention on the Rights of Persons with Disabilities and

Key concepts in international human rights law

Session overview

Introduction to the CRPD – typology, statusOverview of the CRPD – target group, structure,

interpretation, underlying policy & major themesCRPD cross-cutting obligations – other general & cross

cutting obligationsSpecific obligations – CRPD recognised human rights &

fundamental freedoms

What is the CRPD?

CRPD is a human rights treaty adopted by the United Nations General Assembly in December 2006

Purpose is to promote & protect the rights of persons with disability & ensure that these rights are fulfilled

Also aims to promote respect for inherent dignity of persons with disability

Associated with an Optional Protocol – separate treaty

Typology of the CRPD

‘Comprehensive’ or ‘hybrid’ human rights treaty incorporating: Social development, Non-discrimination, & Other human right subject matter

Incorporates: Civil & political rights, Economic, social & cultural rights, and Arguably, some ‘new’ classes or types of rights

Thematic Convention – deals with the human rights concerns of a specific population group

Status of the CRPD

Same status as other ‘core’ human rights treaties Same status as International Bill of Rights Same status as other thematic human rights treaties, eg

Means that for the first time human rights of persons with disability are of central importance in international efforts to promote, protect and fulfil human rights

Rationale for the CRPD

Developed because of international concern that: Existing human rights instruments had failed to effectively protect

the human rights of persons with disability Even though they have always applied to persons with disability on

an equal basis with other personsCRPD attempts to overcome this problem by:

Ensuring that persons with disability are now highly visible ‘right-bearers’

Tailoring and applying traditional human rights to some of the specific human rights problems persons with disability

Building capacity in human rights implementation efforts to effectively respond to the human rights of persons with disability

Relationship to other human rights instruments

All other human rights instruments continue to apply to persons with disability on an equal basis with other persons: Eg Convention on the Elimination of All Forms of Discrimination Against

Women continues to apply to women & girls with disability on an equal basis with other women & girls

Therefore, CRPD must be implemented in an integrated way with other human rights obligations

Gives rise to two related implementation concepts: Twin-track approach Mainstreaming approach

Generally speaking, the CRPD supersedes earlier non-binding disability focused human rights instruments

Enforcement of CRPD rights - 1

CRPD requires state parties to lodge a baseline & periodic reports outlining compliance with CRPD rights & progress towards their attainment Shadow reports from National Human Rights Institutions and non-

governmental organisations are also considered May result in concluding observations and recommendations for

action to improve compliance

Enforcement of CRPD rights - 2

CRPD Optional Protocol allows: Allows individual communications to CRPD Treaty Body about

CRPD right violations Allows CRPD Treaty Body to conduct inquiries into grave or

systemic violations of CRPD rights

‘Target group’

Applies to ‘all’ persons with disability Includes those with long-term physical, intellectual,

psychological & sensory impairmentsClass of persons protected by the CRPD is open, rather

than closed‘Disability’ viewed as an evolving rather than fixed

concept

Structure of the CRPD - 1

CRPD is compromised of a Preamble & 50 articlesArticles vary considerably in densityFirst human rights instrument to have article titlesNot formally divided into sections – but does have

different types of articles

Structure of the CRPD - 2

Element Articles InterpretationPreamble Paragraphs a to y Outlines international concern; highlights

key issues for interpretationInterpretive articles Articles 1 & 2 Set out general purpose; define key terms

General obligations Articles 3 to 9 Set out cross-cutting principles & measures

Specific obligations Articles 10 to 30 Detail specific human rights & fundamental freedoms

Implementation & monitoring elements

Articles 31 to 40 Set out arrangements of national & international implementation & monitoring

Operational elements Articles 41 to 50 Set out administrative & legal issues

Optional Protocol Articles 1 to 18 Separate treaty – sets out a communications & an inquiry procedure

Interpreting the CRPD - 1

Mostly written in straight-forward, easy to understand way

But CRPD rights & obligations will be subject to interpretation & elaboration over time

Interpretation – the principal role of treaty body – jurisprudence will be developed through: ‘general comments’ ‘observations’ made about state party reports ‘observations’ made in the adjudication of communications

This process has only just commenced (October 09)

Interpreting the CRPD - 2

Key inter-relationships between categories of CRPD rights – dynamic (rather than linear) structure

To ascertain the scope of each specific obligation it is necessary to consider its intersection with each of the interpretive articles, general obligations & national implementation & monitoring articles

Also, there are important inter-relationships between some specific obligations – implementation action in relation to closely inter-related rights ought to be co-ordinated

Interpreting the CRPD - 3

Intersection of Article 6: Women with Disabilities with Article 10: Right to LifeArticle 10: Right to Life: State Parties affirm that every human being has the inherent right to life & shall take all necessary measures to ensure its effective enjoyment by persons with disability on an equal basis with others

Article 6: Women with Disabilities: (1) State Parties recognise that women & girls with disabilities are subject to multiple discrimination, & in this regard shall take measures to ensure the full & equal enjoyment by them of all human rights & fundamental freedoms. (2) ...

Measures (examples)

•Breast screening equipment is accessible for women with disability who use mobility devices• Women with intellectual disability are supported to participate in regular cervical screening on the same basis as other women•Emergency accommodation services for women escaping domestic violence are accessible to all women with disability

CRPD – Underlying policy & major themes - 1

Underlying policy – Preamble Article 1: Purpose Article 3: General principles

Positioning – persons with disability as human right-bearers Disability concerns as human rights challenges

Social model Disability results from persons with impairment attempting to interact with

a barrier-filled environment Action implication – dismantle barriers to full enjoyment of human rights State obligations almost exclusively focused on the removal of barriers.

CRPD Underlying policy & major themes - 2

General principles – core (foundation) values to guide & underpin CRPD interpretation & implementation Respect for the inherent dignity Right to autonomy & independence Respect for difference & acceptance of impairment & disability as part

of human diversity Right to inclusion & participation in society Right to equality & non-discrimination Right to an accessible environment Right of women & girls to equality Right of children & young persons to recognition of their specific needs

CRPD cross-cutting obligations - 1

Obligations that must be taken into account in the interpretation & implementation of each specific obligation

Focus: Articles 4: General obligations Article 5: Equality & non-discrimination Article 6: Women with Disabilities Article 7: Children with Disabilities Article 8: Awareness raising Article 9: Accessibility Article 31: Statistics & data collection Article 33: National implementation & monitoring

CRPD cross-cutting obligations - 2

Levels of obligation Recognition of the treaty – must enact laws & develop policies &

programmes to give effect to CRPD rights Respect treaty rights – state parties must refrain from action that

arbitrarily interferes with CRPD rights Protect treat rights - state parties must prevent non-state actors

from arbitrarily interfering with CRPD rights Fulfil treaty rights – state parties must take positive action to ensure

that treaty rights are realised in fact

CRPD cross-cutting obligations - 3

Illustration of levels of state obligation: Right to LifeLevels of obligation Measures

Recognise • Enact legislation incorporating the right to life, including its CRPD elements, into Australian law• Combat negative social attitudes that view the lives of persons with disability as less valuable or less worth living than others

respect • Abolish the death penalty• Strictly control state security forces (army, police, prison officers)

protect • Enact laws prohibiting homicide - (disability dimension - neglect)• Enact laws prohibiting discrimination against persons with disability in the provision of medical & health services

fulfil • Ensure that public health measures, eg, in tobacco control & nutrition, equitably target persons with disability•Establish policies & programmes to meet the specific health needs of persons with disability

The specific obligations - 1

Each article deals with specific subject matter – some articles have multiple elements

‘derived’ from existing human rightsBut specific applications of these rights

Affirmations of existing rights with respect to persons with disability (eg Article 10: Right to Life)

Affirmations of existing rights & disability specific measures (eg Article 12: Equal recognition before the law)

New specific applications of traditional rights (eg Article 11: Situations of risk & humanitarian emergencies)

20 articles: 15 civil & political rights 5 economic, social & cultural rights

The specific obligations - 2

Civil rights: Article 10: Right to life Article 11: Situations of risk & humanitarian emergencies Article 12: Equal recognition before the law Article 13: Access to justice Article 14: Liberty & security of the person Article 15: Freedom from torture, or cruel, inhuman or degrading treatment or

punishment Article 16: Freedom from exploitation, violence & abuse Article 17: Protecting the integrity of the person Article 18: Liberty of movement & nationality Article 19: Living independently & being included in the community Article 20: Personal mobility Article 22: Respect for privacy Article 23 Respect for the home & family

The specific obligations - 3

Political rights: Article 21: Freedom of expression & opinion & access to information Article 29: Participation in political & public life

Economic rights: Article 27: Work & employment Article 28: Adequate standard of living & social protection

Social rights: Article 24: Right to education Article 25: Right to health Article 26: Right to habilitation & rehabilitation

Cultural rights: Article 30: Participation in cultural life, recreation, leisure & sport