UN Convention on the Rights of Persons with Disabilities: Individual Complaints Procedure

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UN Convention on the Rights of Persons with
Disabilities Individual Complaints Procedure

• Ben Schokman
• Director International Human Rights Advocacy
• Human Rights Law Resource Centre Ltd
• ben.schokman_at_hrlrc.org.au
• 61 3 8636 4451
• www.hrlrc.org.au

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Overview

• Overview of the international human rights system
• Why make a complaint to the United Nations
  Disability Committee
• How to make a complaint to the Disability
  Committee
• Process
• Admissibility of complaints
• Writing a complaint
• A few words about the practical realities
• Further information and resources

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UN Human Rights System
Security Council
SecretaryGeneral and UN Secretariat Office of
the High Commissioner for Human Rights (OHCHR)
General Assembly
Economic and Social Council (ECOSOC)
Human Rights Council
UN Specialised Agencies Such as UNDP, UNHCR,
UNICEF, WHO, ILO and many others

• Special Procedures
• Universal Periodic Review

Treaty Bodies
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Human Rights Treaties

• Universal Declaration of Human Rights 1948
• International Convention on the Elimination of
  All Forms of Racial Discrimination 1965
• International Covenant on Economic, Social and
  Cultural Rights 1966
• International Covenant on Civil and Political
  Rights 1966
• Convention on the Elimination of Discrimination
  Against Women 1979
• Convention Against Torture 1984
• Convention on the Rights of the Child 1989
• International Convention on the Protection of
  the Rights of All Migrant Workers 1990
• Convention for the Protection of All Persons
  from Enforced Disappearance 2006
• Convention on the Rights of Persons with
  Disabilities 2006

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Context

• Why use international human rights?
• To secure the domestic implementation of
  international human rights obligations and
  standards
• To use the outcomes of these mechanisms in
  litigation, policy development and advocacy
• The international human rights system is a means
  and not an ends

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Disability Convention

• Purpose, definitions and principles (articles
  1-3)
• General obligations (article 4)
• Protected human rights (articles 5 to 33)
• Committee on the Rights of Persons with
  Disabilities (article 34)
• Periodic reports by States Parties (article
  35)(NGO Reporting process)

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Optional Protocol

• Additional treaty recognises the jurisdiction
  of the Disability Committee to receive complaints
  from individuals or groups who claim to be a
  victim of a breach of the Disability Convention
  (article 1)
• Australia ratified the OP on 21 August 2009 ?
  cannot bring complaints for violations prior to
  this date
• See Committees Rules of Procedure Rules 55-77

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Process Admissibility

• Complaint (or communication) is sent to the
  OHCHR (Petitions Unit) for initial assessment
• Provide a summary to the relevant Committees
  Special Rapporteur on New Communications
• Decision by Special Rapporteur whether to
  register the complaint
• 99 of complaints are inadmissible
• Majority are prepared without legal assistance

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Admissibility

• State must be a party to the Convention and the
  Optional Protocol
• Must not be anonymous, ie must be an individual
  or a group
• Must be a violation of a right under the
  Convention
• Must not be under examination by another
  international procedure
• Domestic remedies must be exhausted
• Communications may be received in alternative
  formats
• (see Article 2 of the Optional Protocol and Rule
  57)

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Process Complaint

• State Party has 6 months to respond on
  admissibility and merits of the complaint
• Committee may request further comments or
  information from the State Party or the author
• Admissibility and merits of the communication is
  considered by the Committee in closed session
• View issued by Committee (which often includes
  recommendations)

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Drafting a Complaint

• Complaints should be comprehensive
• Address all of the admissibility requirements
• Consider including a barristers advice on
  exhaustion of domestic remedies
• Provide details of all relevant facts and
  supporting documents
• Clearly identify the rights that are engaged and
  how they are said to be violated
• Legal analysis must be thorough, accurate and
  well-referenced
• Include information about the remedies that are
  sought

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Follow up on Views

• State Party has 6 months to communicate what has
  been done to implement the decision of the
  Committee
• Role of NGOs
• Disseminate Views
• Lobby government
• Maintain contact with the Committees secretariat

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Practical reality

• General considerations
• Committees recommendations are optional and
  unenforceable
• Attitude of the Australian Government?
• Communications procedure can be a long process
• Domestic considerations
• Limited constitutional and legal framework in
  Australia
• Outcomes can influence executive decision-making
  and policy development

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Further Information

• OHCHR (www.ohchr.org)
• Committee page
• http//www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDI
  ndex.aspx
• UN Enable http//www.un.org/disabilities/
• HRLRC (www.hrlrc.org.au)
• Human Rights Law Resource Manual Ch 6
• Examples of previous communications (eg Nystrom)

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UN Convention on the Rights of Persons with
Disabilities Individual Complaints Procedure

• Ben Schokman
• Director International Human Rights Advocacy
• Human Rights Law Resource Centre Ltd
• ben.schokman_at_hrlrc.org.au
• 61 3 8636 4451
• www.hrlrc.org.au