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

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


1
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

2
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

3
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
4
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

5
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

6
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)

7
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

8
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

9
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)

10
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)

11
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

12
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

13
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

14
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)

15
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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