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:
 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 ‘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 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 & Articles 31 to 40 Set out arrangements of national &
monitoring elements 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 Life
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) ...
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)
•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 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
 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