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UN Treaty bodies and disability''' and litigation


United Nations treaty bodies and disability. Gerard Quinn and ... Infanticide (Benin) CEDAW. Discrimination! Employment (Sri Lanka) Poverty (Canada, Costa Rica) ... – PowerPoint PPT presentation

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Title: UN Treaty bodies and disability''' and litigation

UN Treaty bodies and disability... and litigation…
  • Andrea Coomber
  • Acting Legal Director

  • United Nations treaty bodies and disability
  • Gerard Quinn and Theresia Degeners study
  • What are the treaties and treaty bodies?
  • How can we use them?
  • Where are PWD?
  • Strategic litigation and equality

Human rights and the UN in brief
  • Charter based system
  • Covers all UN States
  • Human Rights Council (and special procedures)
  • Treaty based system
  • Only if treaty ratified
  • Oversee compliance with treaties
  • Individual communications
  • Elaboration of standards

Human Rights Council
  • Replaces the Commission on Human Rights
  • First session on 19 June 2006 in Geneva
  • 47 Members, meeting three times a year
  • Promote human rights recommend new standards
    dialogue on issues
  • Universal period review
  • Too early to speculate success

Special Procedures
  • Reports on thematic and country situations
  • Special Rapporteurs on health, food, adequate
    housing, extrajudicial executions, torture,
    violence against women, and many more
  • Respond to NGO information on individual cases,
    make visits, many report to General Assembly
  • Paul Hunts report on Mental Disability and the
    Right to Health in 2005

Treaty system
  • Elaboration of the Universal Declaration of Human
  • Two general, five more specific four deal with
    particularly vulnerable groups
  • Each treaty has a treaty monitoring body
  • A number allow individual communications

The Big Seven
  • International Covenant on Civil and Political
    Rights (ICCPR)
  • International Covenant on Economic, Social and
    Cultural Rights (ICESCR)
  • Convention against Torture (CAT)
  • Convention on the Elimination of All Forms of
    Discrimination against Women (ICEDAW)
  • Convention on the Elimination of All Forms of
    Racial Discrimination (ICERD)
  • Convention on the Rights of the Child (CRC)
  • International Convention on the Protection of the
    Rights of all Migrant Workers and their Families

How treaties work
  • Adopted by General Assembly
  • Signed and ratified by States, leading to entry
    into force
  • Incorporated into domestic law
  • Binding on States c.f. soft law
  • States must report on compliance

Treaty bodies
  • Mandate
  • Review periodic reports
  • Issue General Comments
  • Some individual complaints procedures
  • Composition
  • Information on websites

How do we use them?
  • Invoke standards domestically
  • Lobbying and advocacy
  • Take leads on litigation
  • Individual communications
  • Shadow reports

Individual communications
  • Reliant on ratification of mechanism
  • Check admissibility
  • Need to exhaust domestic remedies
  • Time limits
  • Other mechanism
  • Specify violations
  • Send details and evidence
  • Submit in English, French, Russian or Spanish
  • Not anonymous, but confidentiality

What to expect?
  • Hear very little from UNHCHR
  • Communication to State, then response, then Views
    or Observations
  • Often disappointing jurisprudentially
  • Not enforceable and no just satisfaction
  • But finding of a violation significant

Shadow reports
  • Periodic reports available unrecognisable!
  • Respond article-by-article
  • Need not cover whole treaty
  • Provide clear, authoritative information
  • Not for back-door individual communications
  • Treaty bodies rely on shadow reports

Where are PWD?
  • Soft law provisions the Standard Rules etc.
  • Article 23 CRC Article 11 CEDAW
  • Remember universal application of treaties
  • General Comments/Recommendations
  • The Draft Convention on Persons with Disabilities
    - Twin tracking

Article 23 CRC
  • Children should enjoy a full and decent life,
    ensuring dignity, self reliance and active
    participation in the community
  • Where special care is required, assistance should
    be provided appropriate to the childs condition
    and the circumstances of the parents
  • Where possible, assistance should be free of
    charge, and should ensure effective access to
    services and opportunities in a manner conducive
    to the child's achieving the fullest possible
    social integration and individual development,
    including his or her cultural and spiritual

Beyond this…
  • The treaty system has been slow… reflects Member
    States approaches
  • Increasing attention to PWD in review of State
    Party reports
  • Little in terms of jurisprudence… but few cases

CESCR General Comment No. 5
  • Calls heavily on and endorses the Standard Rules
  • Affirms -
  • Discrimination provisions apply to PWD
  • Public and private sphere equality
  • Positive obligations of States
  • Attention to women with disabilities

Also Committee on ESCR General Comments on
  • Right to the Highest Attainable Standard of
    Health (GC 14)
  • Physical accessibility
  • Children with disabilities
  • Non-discrimination in public and private health
  • Right to work (GC 18 February 2006)
  • Sheltered workshops not enough
  • Enable appropriate employment and opportunities
    to progress
  • Facilitating integration or reintegration into
  • But progressive realisation

  • General Recommendation 18
  • Double discrimination
  • States to report on special measures with respect
    to education, employment, health and social
    security, social and cultural life
  • General Recommendation 24
  • Special attention to womens health needs
  • Physical access to services
  • Vulnerability of women with mental disabilities

  • General Comment 1 on Education
  • Discrimination against children with disabilities
    is pervasive
  • Contradicts requirement to develop childs
    personality, talents and mental and physical
    abilities to their fullest potential

Treaty body Views and PWD
  • Human Rights Committee (ICCPR)
  • Non discrimination (Ireland, Australia, Austria,
  • Compensation for sterilisation (Japan)
  • Right to life for infants and failure to
    investigate (Netherlands)

Committee on ESCR
  • Discrimination (all the time!)
  • Education (United Kingdom)
  • Unemployment, conditions (Russian, Ireland)
  • Mental health and health care (Hong Kong)
  • Inadequate social services (Ukraine)
  • inappropriate living conditions (Czech)
  • Physical barriers (Brazil)
  • Institutionalisation of children (Moldova)

  • Discrimination (everywhere, stigmatisation)
  • Education, education, education (everywhere)
  • Institutionalisation and conditions (Russia)
  • Primary health care (Ukraine)
  • Child labour (China)
  • Infanticide (Benin)

  • Discrimination!
  • Employment (Sri Lanka)
  • Poverty (Canada, Costa Rica)
  • Economic dependence of women with disabilities
    (New Zealand)
  • Sexual violence programmes applauded (Austria)

  • Not driven by disability
  • Exclusively from Human Rights Committee
  • e.g., Hamilton v Jamaica
  • Discrimination provisions not yet used for PWD
  • Article 26 ICCPR other status applies to all
    rights see GC 18 of Human Rights Committee
  • Allow positive measures

In sum?
  • Not good for PWD, but improving
  • Know and use the existing standards
  • Consider individual communications
  • Take less time than other mechanisms
  • Developing (CEDAW particularly)

Why so little international case law?
  • Access to justice
  • Personal challenge in bringing cases
  • Getting courts to understand
  • How to change this?
  • Bring cases!
  • Use international and comparative law

Strategic litigation and equality
  • Litigation as one tool
  • Identifying critical issues
  • Knowing some cases are easier than others
  • Where do strategic cases come from?
  • Who is the right client?

  • Realities of litigation
  • Identifying discrimination(s) Is discrimination
  • What will happen if you lose?
  • Being realistic, critical, creative and clear
  • Collaborating
  • Not being intimidated

Getting in touch…
  • Andrea Coomber
  • acoomber_at_interights.org
  • 44 207 843 0475
  • www.interights.org
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