International Disability Law

A Practical Approach to the United Nations Convention on the Rights of Persons with Disabilities

Coomara Pyaneandee

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429951855
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book provides a concise guide to international disability law. It analyses the case law of the CRPD Committee and other international human rights treaty bodies, and provides commentaries on more than 50 leading cases. The author elaborates on the obligations of States Parties under the CRPD and other international treaties, while also spelling out the rights of persons with disabilities, and the different mechanisms that exist at both domestic and international levels for ensuring that those rights are respected, protected and promoted. The author also delineates the traditional differentiation between civil and political rights on the one hand, and economic, social and cultural rights on the other. He demonstrates, through analysis of the evolving case law, how the gap between these two sets of rights is gradually closing. The result is a powerful tool for political decisionmakers, academics, legal practitioners, law students, persons with disabilities and their representative organisations, human rights activists and general readers.

Part 1
General provisions

1
Functions of the CRPD Committee

The establishment of the CRPD Committee

Article 34 of the Convention on the Rights of Persons with Disabilities (CRPD) establishes the Committee on the Rights of Persons with Disabilities. The CRPD Committee comprises 18 independent experts who are elected by ratifying States.¹ In electing experts to the CRPD Committee, the States Parties should be guided by the following considerations set out in Article34(4) CRPD:

The members of the Committee shall be elected by States Parties, consideration being given to equitable geographical distribution, representation of the different forms of civilization and of the principal legal systems, balanced gender representation and participation of experts with disabilities.

Elections are held in New York during the annual conference of States Parties.² The first election was held on 3 November 2008. Details of the rules governing the establishment of the CRPD Committee are set out in Article 34(2)–(13) CRPD. Elected members must be of a high moral standing and, once elected, they sit as experts in their own personal capacity.³ The rationale is to ensure impartiality and independence on the part of Committee members. Once elected, the members of the Committee serve for a period of four years, and are eligible to seek re-election only once.⁴ This limitation of mandate of CRPD Committee members is in contrast with that of the members of other human rights treaty bodies, such as the CEDAW and the HRC, who may seek re-election on two or more occasions. The limited mandate is one of the strengths of the Committee, because it creates an evolving democratic space in which persons with disabilities can continually pursue the advancement of human rights with innovative ideas. It also allows for the accommodation of experts with different types of impairment, and hence it serves to foster diversity. For example, in 2016, Robert George Martin was the first person with a learning disability to be elected to the Committee and Valery Nikitich Rukhledev, who is hearing-impaired, has been provided with a personal assistant to communicate in sign-language.

Article 34(10) CRPD enables the Committee to establish its own Rules of Procedure, and details of the Committee’s current 2016 Rules of Procedure are available on the CRPD website.⁵ Rule 7 sets out the requirements for accessibility in order to ensure the efficient working of the Committee. These accessibility requirements include access both to the Committee’s information and communications, and to the physical environment of Committee meetings. The Committee has set a high standard in this regard in order to encourage other treaty bodies and UN agencies to follow its lead. The strict accessibility requirements of the Rules of Procedure also reflect the first concrete manifestation of the treaty’s provisions.

In order to ensure that all Committee members can participate effectively in its work on an equal basis, it is necessary to guarantee that expert members with impairments have access to information in an accessible format, in a timely manner. The Rules of Procedure therefore provide for the use of sign language, Braille and other alternative formats for communication in line with the requirements of Committee members and of others who need access to the Committee’s work. The personal assistants of Committee members are allowed access to all the proceedings and to accompany the experts during their deliberations.

The Rules of Procedure guarantee consistency in the Committee’s deliberations at all reporting stages by States Parties. Article 35(1) CRPD requires States Parties to submit a comprehensive report on the measures taken to give effect to the provisions of the CRPD and to meet their obligations in conformity with the Convention. This obligation must be fulfilled within two years of ratification. The Committee has already reviewed the initial reports of 69 States Parties in its first 18 sessions. The review of the States Parties’ country reports is one of the Committee’s major monitoring functions. A State Party must submit an initial country report to the Committee within two years of the coming into force of the Convention, with regard to the particular State Party, and at least every four years thereafter, or as requested by the Committee.⁶

Upon receipt of an initial country report, the Committee prepares a List of Issues (LOI). This consists of a series of questions which allow the members to explore the degree of compliance with the CRPD’s provisions. In accordance with Rule 48 of its Rules of Procedure, the Committee limits the number of written questions which are put to the State Party and focus its investigation on priority areas of concern. States Parties are then required to provide brief and precise replies to the LOI. During this process, the Committee holds meetings with civil society, persons with disabilities and Disabled People’s Organisations (DPOs) in order for members to check the veracity of the information submitted by States Parties. In conformity with Rules 51 and 52, representatives of national human rights institutions and non-governmental organisations ‘may be invited by the Committee to make oral or written statements and provide information or documentation relevant to the Committee’s activities under the Convention to meetings of the Committee’.

This is followed by a constructive dialogue between the Committee and the State Party, which is an interactive forum to enable Committee members to put oral questions to the State Party’s delegation. These Committee sessions are held in public, and are also broadcast live via webcast.⁷ After the constructive dialogue, the Country Rapporteur (who is a Committee member) prepares a report of Concluding Observations and Recommendations to be considered and adopted by the Committee. In its Concluding Observations and Recommendations report, the Committee highlights areas of concern and makes appropriate recommendations to the State Party. Over and above the recommendations highlighted in the report, the Committee usually requests the State Party to implement two measures within a one-year period as a matter of immediate priority. The Committee may also advise the State Party as to how it can seek assistance with capacity-building in specific areas, in order to implement the provisions of the CRPD in a more effective manner.

In September 2013, the Committee has adopted a simplified reporting procedure for the adoption of these periodic States Parties’ reports, under which a LOI is prepared by the Committee, the answers to which are deemed to comprise the periodic report for the State Party concerned.⁸ Hungary and Tunisia will be the first countries to be examined and reviewed by the Committee.

General comment

General Comments clarify the international human rights standards applicable to the CRPD’s provisions.⁹ These international norms serve as guidance for the interpretation and application of legislation and policies. General Comments are designed to promote the implementation of the Convention and to assist States Parties in fulfilling their reporting obligations. Courts and tribunals often rely upon General Comments in their deliberations concerning disability-based antidiscrimination legislation. For instance, it may be unclear whether a particular Convention Article is immediately binding upon States Parties, or whether their obligations under that Article may be progressively realised. Moreover, words and phrases in the Convention may be ambiguous or complex, and, when this is the case, General Comments can assist in its interpretation.

To date, the Committee has published six General Comments on the following issues:

• General Comment No.1 on Article 12 Equal Recognition Before the Law;
• General Comment No.2 on Article 9 Accessibility;
• General Comment No.3 on Article 6 Women and Girls with Disabilities;
• General Comment No.4 on Article 24 Right to Inclusive Education;
• General Comment No.5 on Article 19 Right to Independent Living and Being Included in the Community;
• General Comment No.6 on Article 5 Equality and Non-Discrimination .

The Committee is currently working Article 33(3) and Article 4(3) (General Comment No.7).

The salient features of the Convention

The CRPD has two salient features in common with other international human rights treaty bodies. First, it may be described as a supranational, quasi-tribunal because its decisions, at least in theory, ought to take precedence over domestic law and policy. Proponents of legal positivism, such as H.L.A. Hart and John Austin, are very critical of this view as they believe that international law is merely soft law or no law at all since its non-compliance is not the subject of sanctions. In the name of the human rights model of disability, a different view at this premature stage is sufficient to state that, after the Convention against Torture which imposes an obligation upon States Parties to set up a domestic preventative mechanism, the CRPD is the second international human rights treaty body which imposes an obligation on States Parties to monitor the implementation of the Convention at domestic level.¹⁰ In the concluding chapter, we explore the effectiveness of this domestic and international obligation imposed upon States Parties.

The deliberations of the Committee include the following:

• Concluding Observations and Recommendations;
• General Comments;
• The Committee’s views on individual and group complaints (case law)¹¹; and
• Inquiry reports on States Parties, where it is proved that there are grave or systematic violations of the provisions of the CRPD.¹²

The second salient feature of the Convention is that it may be qualified as a traité cadre, or framework treaty, as distinct from a traité de droit, or international law treaty. Whereas the provisions of a traité de droit are clear and unambiguous, those of a traité cadre may be supplemented by secondary sources, including the four categories of the Committee’s decisions mentioned above. These secondary sources fill the gaps of the CRPD and, as such, they serve as the cornerstone of its jurisprudence and are the main sources of international law pertaining to persons with disabilities. These decisions are dynamic in character and enable the Committee to respond effectively to societal changes. The Committee’s decisions influence socio-economic, political and cultural thinking about how society can best achieve the full inclusion of persons with disabilities. These decisions reflect practice of the highest standards with regard to the implementation of the Convention.

The Optional Protocol to the Convention

The Optional Protocol to the Convention is a side-agreement to the CRPD. One of its aspects is that it establishes an independent complaints mechanism for the Convention. It was adopted on 13 December 2006, and entered into force on 3 May 2008. The Optional Protocol has currently been ratified by 92 countries. In many parts of the world, the fundamental rights and freedoms of persons with disabilities are not respected, promoted nor protected. Persons with disabilities face immense barriers in seeking to access the justice system. Discrimination can be wide-ranging and may take numerous forms, including inaccessible and complex administrative court procedures, substantial delay due to bureaucratic burdens, and/or a failure to provide remedies within domestic legal systems. Persons with disabilities continue to face such barriers irrespective of the fact that their governments have ratified the CRPD and its Optional Protocol. However, the Optional Protocol itself is the primary mechanism for addressing such issues. The CRPD Committee is in essence the tribunal of final instance for assessing whether States Parties have acted in violation of the provisions of the CRPD, or whether they have failed to take necessary measures for the harmonisation of domestic legislation and policy in line with international public law. This is why it is important for human rights activists to continue to advocate for the ratification of the Optional Protocol to the Convention by countries which have not yet done so.

There are numerous pre-conditions which must be satisfied before an individual or group of individuals can refer a case to the CRPD Committee for its views under the Optional Protocol. The individual or group lodging a case before the Committee is referred to as the ‘author’ of the communication. Before examining the merits of a communication with regard to whether a State Party has violated a substantive provision of the CRPD, the Committee must first determine whether the communication is admissible under the Optional Protocol.¹³ The preparation of a communication for submission to the Committee can be complex, time-consuming and costly, and may even require the services of international human rights lawyers. However, this is not a formal requirement for acceptance of a submission.

Admissibility of complaints under the Optional Protocol

It is a general rule that a communication is admissible for consideration by the Committee only if the alleged violation occurred after the Optional Protocol was ratified by the State Party concerned. It is also the case that the author of the communication must have exhausted all available domestic remedies. However, there are several exceptions to these rules. The discussion of the relevant case law which follows seeks to illustrate how inte...