The Convention on the Rights of Persons with Disabilities Implications for advocacy practice Phillip French

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, background Overview of the CRPD – target group, structure, interpretation, underlying policy & major themes CRPD cross-cutting obligations – levels & standards of state party obligation, other general & cross cutting obligations Specific obligations – CRPD recognised human rights & fundamental freedoms CRPD as a framework or tool for advocacy practice CRPD limitations Useful 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 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

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-line Highest level of participation by civil society in any human rights treaty negotiation process to date Reflected 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 CRPD Australia ratified the CRPD on 17 July 2008 – entered into force with respect to Australia 17 August 2008 Australia 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 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: ‘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 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 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

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

CRPD cross-cutting obligations - 4 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.

CRPD cross-cutting obligations - 5 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

CRPD cross-cutting obligations - 6 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

CRPD cross-cutting obligations - 7 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

CRPD cross-cutting obligations - 8 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.

CRPD cross-cutting obligations - 9 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 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

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 life Mandates autonomy and independence A positive, normative, alternative to ‘best interests’ for ‘other’ and non-directed advocacy Potential 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 model Radical ‘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.

For further information contact Phillip French phillipfrenchconsulting@bigpond.com