Transcript PROMOTING HUMAN DIGNITY & RIGHTS – a professional

Convention on the Rights of Persons with Disabilities
and
Key concepts in international human rights law
PHILLIP FRENCH
D I R EC TO R
A U S T R A L I A N C E N T R E F O R D I S A B I L I T Y L AW
2012
Session overview
 Introduction to the CRPD – typology, status
 Overview of the CRPD – target group, structure,
interpretation, underlying policy & major themes
 CRPD cross-cutting obligations – other general & cross
cutting obligations
 Specific 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:
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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 persons
 CRPD attempts to overcome this problem by:
 Ensuring that persons with disability are now highly visible ‘rightbearers’
 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:
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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:
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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
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Shadow reports from National Human Rights Institutions and nongovernmental 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 impairments
 Class 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 articles
 Articles vary considerably in density
 First human rights instrument to have article titles
 Not formally divided into sections – but does have
different types of articles
Structure of the CRPD - 2
Element
Articles
Interpretation
Preamble
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:
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‘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 coordinated
Interpreting the CRPD - 3
Intersection of Article 6: Women with Disabilities with Article 10: Right to Life
Article 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
Measures (examples)
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) ...
•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 –
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Preamble
Article 1: Purpose
Article 3: General principles
 Positioning –
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persons with disability as human right-bearers
Disability concerns as human rights challenges
 Social model
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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
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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:
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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 Life
Levels 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 rights
 But specific applications of these rights
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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:
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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:
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Article 21: Freedom of expression & opinion & access to information
Article 29: Participation in political & public life
 Economic rights:
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Article 27: Work & employment
Article 28: Adequate standard of living & social protection
 Social rights:
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Article 24: Right to education
Article 25: Right to health
Article 26: Right to habilitation & rehabilitation
 Cultural rights:
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Article 30: Participation in cultural life, recreation, leisure & sport