UN Treaty bodies and disability''' and litigation

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UN Treaty bodies and disability...and litigation

• Andrea Coomber
• Acting Legal Director

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Overview

• 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

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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

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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

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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

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Treaty system

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

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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
  (CMW)

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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

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Treaty bodies

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

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How do we use them?

• Invoke standards domestically
• Lobbying and advocacy
• Take leads on litigation
• Individual communications
• Shadow reports

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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

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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

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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

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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

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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
  development

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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
  submitted!

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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

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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
  care
• Right to work (GC 18 February 2006)
• Sheltered workshops not enough
• Enable appropriate employment and opportunities
  to progress
• Facilitating integration or reintegration into
  society
• But progressive realisation

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CEDAW

• 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

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CRC

• 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

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Treaty body Views and PWD

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

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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)

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CRC

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

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CEDAW

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

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Jurisprudence

• 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

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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)

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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

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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?

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Challenges

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

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Getting in touch

• Andrea Coomber
• acoomber_at_interights.org
• 44 207 843 0475
• www.interights.org