the convention on the rights of persons with disabilities

IMPLICATIONS FOR ADVOCACY PRACTICEPHILLIP FRENCH

The Convention on the Rights of Persons with Disabilities

Purpose of the presentation

Raise awareness about the Convention on the Rights of Persons with Disabilities (CRPD) & highlight key implications for advocacy practice

Aims: Explore the potential strengths and limitations of the CRPD as a

framework or tool for advocacy practice Recognise the significance of the CRPD as a driver – or potential

driver - of disability policy at the international and national levels Build advocacy practitioners’ organisational capacity &

competence to effectively implement CRPD rights Assist advocacy practitioners to effectively interpret and apply

CRPD rights

Session overview

Introduction to the CRPD – typology, status, backgroundOverview of the CRPD – target group, structure,

interpretation, underlying policy & major themesCRPD cross-cutting obligations – levels & standards of state

party obligation, other general & cross cutting obligationsSpecific obligations – CRPD recognised human rights &

fundamental freedomsCRPD as a framework or tool for advocacy practiceCRPD limitationsUseful reference points

Introduction to the CRPD

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 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

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 Arguable, 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

Universal Declaration of human rights International Covenant on Civil & Political Rights International Covenant on Economic, Social & Cultural Rights

Same status as other thematic human rights treaties, eg Convention on the Elimination of All Forms of Discrimination Against

Women Convention on the Rights of the Child

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

Participation of persons with disability

Very high level of participation by persons with disability in the negotiation process: Included as experts in government delegations Participated as representatives of accredited non-governmental

organisations (overwhelmingly disabled persons organisations) Participated through national, regional & international ‘feeder’

processes & on-lineHighest level of participation by civil society in any

human rights treaty negotiation process to dateReflected in the emphasis the CRPD text places on

participation of persons with disability in CRPD implementation & monitoring

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

Status of the CRPD in Australia - 1

Australia was among very first nations to sign CRPDAustralia ratified the CRPD on 17 July 2008 – entered into

force with respect to Australia 17 August 2008Australia acceded to the Optional Protocol to the CRPD on 20

August 2009 – entered into force with respect to Australia on 20 September 2009

Although Australian Government is formally responsible to international community for CRPD compliance, all Australian governments are equally bound by its terms

Note: all Australian governments contributed favourably in the negotiation process & supported ratification of the CRPD & accession to the Optional Protocol

Status of the CRPD in Australia - 2

CRPD is a declared international human rights instrument under the Australian Human Rights Commission Act 1986 – Australian Human Rights Commission has power to – Promote understanding & acceptance of CRPD rights Report to the Australian Attorney-General about any action Australia needs to take to in order to

comply with the CRPD Inquire into any act or practice that may be inconsistent with or contrary to CRPD rights Monitor Commonwealth legislation to ensure its consistency with CRPD rights

CRPD not automatically part of Australian domestic law – requires specific legislation to incorporate its terms

However, CRPD may be relied upon to assist in resolving ambiguity & uncertainty in Australian law, & in the development of Australian law more generally

In ACT and Victoria, the Human Rights Act and Charter of Human Rights & Responsibilities allows reference to international law as an interpretive aid – potentially, the CRPD is an important source of guidance for the application of Charter rights to persons with disability

Enforcement of CRPD rights - 1

International human rights law is persuasive – based upon solemn ethical commitment of states parties – the state itself must commit to action to resolve violations (a kind of ‘ethical contract’ between states)

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 individuals & groups of individuals to communicate with the Treaty Body if they believe that their CRPD based human rights have been violated Must have first exhausted all reasonably available domestic remedies Must relate to conduct that has occurred or has continued since the CRPD

entered into force with respect to Australia May also result in recommendations to resolve violations (injunctive relief

may also be requested)CRPD Treaty Body may also conduct inquiries into grave or

systemic violations of CRPD rights May also result in recommendations to resolve violations

Overview of the CRPD

‘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 interpretation

Interpretive 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)


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


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

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


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


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


Standards of obligation Civil and political rights – immediate compliance upon entry into force of

treaty Economic, social & cultural rights – progressive realisation over time

Progressive realisation – is not a merely ‘aspirational’ or ‘unascertainable ‘standard Obligation to take progressive action is immediate – can’t indefinitely delay

or fail to take action Action must be continuous Regression is not permissible Must undertake action to maximum extent permitted by available

resources – varies from nation to nation Implementation measures must be equitably distributed – with a focus on

those most disadvantaged.


Other general obligations (Article 4) Universal design – state parties must foster research & development in

relation to universal design, incorporate universal design principles into regulation, & promote availability & use of universally designed goods, services, equipment & facilities

New technologies, aids & appliances – state parties must foster research & development into new technologies, aids & appliances

Professional & staff education – state parties must ensure that professionals & staff who work with persons with disability are educated about CRPD rights

Participation of persons with disability – state parties must ensure that persons with disability are consulted & participate in the development of legislation, policy & programmes to implement CRPD rights, & in all other decision-making processes that impact upon persons with disability


Other cross-cutting obligations Article 5: Equality & non discrimination – requires state parties to

Recognise that persons with disability are equal with others under the law, & are entitled to equal benefit & protection of the law

Prohibit discrimination on the basis of disability & provide effective protection from discrimination

Discrimination on the ground of disability is defined to include the failure to provide reasonable accommodation

Substantial equality – not mere equality of treatment (or formal equality)

Requires positive action to equalise opportunity Positive measures designed to overcome disadvantage are not

unlawful discrimination


Article 6: Women with disabilities – requires state parties to: Recognise women & girls with disability are subject to multiple forms of

discrimination Take measures to ensure that women & girls with disability realise all

CRPD human rights & fundamental freedoms Take measures to ensure the full development, advancement &

empowerment of women so that they may exercise their rights & freedoms

Article 7: Children with disabilities – requires state parties to: Take all necessary measures to ensure full enjoyment of all human rights &

fundamental freedoms by children with disability on an equal basis with other children

Affirm that the best interests of the child is a paramount consideration in a disability context (as it is for children generally)

Ensure that children have the right to express their views on matters affecting them

Ensure that age & disability related assistance is provided


Article 8: Awareness raising – requires state parties to: Raise awareness of & foster respect for the rights & dignity of persons

with disability throughout society Promote awareness of the capabilities & contributions of persons with

disability to society Combat stereotypes, prejudices & harmful practices impacting upon

persons with disability Article 9: Accessibility – requires state parties to:

Enable persons with disability to live independently & participate fully in all aspects of life

Ensure that persons with disability access the physical environment, transportation, information & communications, & other facilities & services on an equal basis with others.


Article 31: Statistics & data collections – requires state parties to: Undertake data collection & research that will enable the formulation

& implementation of policies to give effect to, & measure progress towards, CRPD rights

Article 33: National implementation & monitoring – requires state parties to: Designate one or more focal points within government with

responsibility for implementing the CRPD Designate coordination mechanisms within government to facilitate

inter-governmental, cross governmental and cross-sectoral action to implement CRPD

The specific obligations

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


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


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

CRPD Implications for Advocacy Practice

A Framework or Tool for Advocacy Practice - 1

CRPD binding international standards and obligations for which Australia is accountable to the international community Underpin a rights-based dialogue - Immediate realisation – progressive

realisation positive alternative to pity and welfare powerful means of critique for discretionary programs

Comprehensive (at least very broad in scope) Beyond non-discrimination model Focus on key economic, social and cultural rights

Normative value of human rights Standards accepted as applicable to all people, in all places, at all times,

regardless of gender, race, nationality, ethnicity, religion, age, sexuality, impairment or disability or any other characteristics

Cf article 19 Living Independently and being included in the community

A Framework or Tool for Advocacy Practice - 2

Social model of disability Re-frames impairment and disability as ordinary incident of human

diversity Accent is on change in the social environment – not the individual

Mandates inclusion and participation in all aspects of lifeMandates autonomy and independenceA positive, normative, alternative to ‘best interests’ for ‘other’

and non-directed advocacyPotential for ‘enforcement’

Complaints and inquiries under Australian Human Rights Commission Act State Party reports – treaty body recommendations Communications and inquiries under Optional Protocol – treaty body

recommendations (also injunctive relief)

CRPD – Some Limitations

Does not address all disability rights concerns Bioethical issues

‘Negotiated silences’ on some key issues Compulsory treatment Substitute decision-making

Language and conceptual problems – re social modelRadical ‘social constructionist’ influences‘Behaviour’ distinguished from impairment and disability

Useful reference points

UN Enable: United Nations official CRPD web site Enable newsletter www.un.org/disabilities

UN High Commissioner for Human Rights: Hosts web pages of Committee on the Rights of Persons with Disabilities www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx

Australian Human Rights Commission: Information & resources for CRPD interpretation & implemetation – Australian

focus www.hreoc.gov.au/disability_rights/convention.htm

Centre for Universal Design: Information, technical assistance & research centre in relation to universal

design www.design.ncsu.edu/cud/

Summary and conclusion

Summary and conclusion

CRPD & its Optional Protocol are now in force with respect to Australia – binding upon all Australian governments

Position persons with disability as right bearers & disability concerns as human rights challenges

CRPD will increasingly become a major driver of disability policy at international, national & state levels

Disability advocacy sector must therefore build its capacity to implement & monitor compliance with CRPD rights & related state obligations

CRPD provides a potentially highly effective framework and tool for advocacy practice.

PHILLIP [email protected]

For further informationcontact

the convention on the rights of persons with disabilities

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