Asserting human rights under the Optional Protocol

Asserting human rights under the Optional Protocol Phillip French Director Australian Centre for Disability Law 2012

Overview • The treaty body and its functions • The communications mechanism • Jurisdiction/admissibility • Procedure • Outcomes

The Committee on the Rights of Persons with Disabilities • CRPD “Treaty Body” – established under Article 34 • Has 18 members who serve 4 year terms • Persons of high moral integrity • Recognised competence and experience in the field • Meets for at least two “sessions” each year • Supported by the UN Secretariat under the delegation of the Secretary General through the Office of the High Commissioner for Human Rights

The Committee on the Rights of Persons with Disabilities • General Monitoring Functions under the CRPD • Consider State Party reports on the implementation of the CRPD • Make recommendations • Make General Comments • Cooperate with UN specialised agencies • Cooperate with other treaty bodies in the implementation of the CRPD so as to ensure consistency of approach • Report to the UN General Assembly and the Economic and Social Council on its activities and progress in the implementation of the CRPD

The Committee on the Rights of Persons with Disabilities • Special intervention measures under the CRPD Optional Protocol • Receive and consider “communications” (complaints) concerning State parties which allege violation of CRPD “provisions” (Article 1) • Cooperate with State Parties in the examination of allegations of gross or systemic violation of the CRPD “provisions” (Article 6)

Communications mechanism • Governed by: • Terms of the CRPD Optional Protocol – Articles 1 to 5 • But also: • CRPD Treaty Body has developed “Rules of Procedure” • Part XIV (paragraphs 55 to 77) set out the procedure for the consideration of communications received under the Optional Protocol • More generally, there are existing procedures and precedents for the handling of complaints by other Treaty Bodies • Likely to be a source of both guidance and tensions

Communications mechanism • Jurisdiction (Article 1) • State Parties recognise the competence of the Committee to receive and consider communications from of on behalf of “individuals” or “groups of individuals” subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention • Key issues: • State Parties to the Optional Protocol • From or on behalf of • Individuals or groups of individuals • Subject to the jurisdiction of the State Party • Victim of a violation of the provisions of the CRPD • By that State Party

Communications mechanism • Admissibility of communications (Article 2) • A communication is not “admissible” (not capable of being considered) if: • It is anonymous • If it is an abuse of the right of submission • If it is incompatible with the provisions of the convention • If the same matter has already been examined by the Committee • If the same matter has been, or is currently subject to, another international investigation or settlement procedure • All available domestic remedies have not been exhausted • If the complaint is manifestly ill-founded • If the complaint is not sufficiently substantiated • If the facts that constitute the subject matter of the complaint occurred prior to the entry into force of the Optional Protocol for that State Party

Communications mechanism • Procedure: • Lodged with the “Petitions Team” Office of the High Commissioner for Human Rights in Geneva • Communication is “recorded” then assessed • If preliminary admissibility criteria are satisfied it is then “registered” • The Petitions Team may request further information from the author

Communications mechanism • Requirements that are to be fulfilled: • Must disclose victim/author’s identity, such as their name, address, date or birth and occupation, or other forms of identifying details • The name of the State Party against which the communication is directed • The object of the communication (outcome sought) • The provision or provisions of the Convention alleged to have been violated • The facts of the claim • Steps taken by the victim/author to exhaust domestic remedies • The extent to which the same matter is being examined under another procedure of international investigation or settlement

Communications mechanism • Petitions team may request this information from victim/author if it is not disclosed in the initial communication • Can set a time limit for its production • Other issues: • Communications may be made in writing and in alternative accessible formats (see Rule 24) • The Committee will recognise the legal capacity of the victim/author to make communication even if the State Party does not (see Rule 68)

Communications mechanism • Notes on admissibility • Exhaustion of domestic remedies • Not the rule when: • Application of remedies is unreasonably prolonged • Or domestic remedy is unlikely to bring relief • Conduct prior to entry into force of Optional Protocol • Not the rule when • Conduct has continued since the Optional Protocol has entered into force • (Optional Protocol entered into force with respect to Australia on 21 September 2009)

Communications procedure Once registered, Special Rapporteur on communications brings communication to the attention of the State Party The Rapporteur will request a written reply from the State Party in relation to the admissibility and (usually) the merit of the communication, and any remedy that may have been provided, within 6 months The Rapporteur may request additional information from the victim/author and State Party setting time limits The parties have the opportunity to comment on each others submissions.

Communications mechanism Once Committee has received submissions from the parties on admissibility and merit, it formulates its “views” Committee can request State Party to provide “interim relief” prior to reaching a decision on admissibility and merit (usually to preserve status quo) May consult specialised agencies and other bodies and provide parties with the opportunity to comment on any information received Decisions on admissibility and merit and recommendations are then transmitted to the victim/author and the State Party State Party is to submit a response within 6 months Committee decisions and State Party responses are public

Consideration of communications • Treaty body considers communications in closed session • on the papers (parties do not appear) • Deliberations are confidential • May appoint working groups or rapporteurs to assist in the consideration of the complaint and make recommendations • Votes on admissibility and merit taken by simple majority • Dissenting views may be recorded • Working group recommendations can be adopted by the Committee without discussion or referred for plenary discussion

Communications mechanism • Other issues • very challenging process – vast majority of complaints to Treaty bodies ruled inadmissible • Need to be well thought through and documented • Communications considered in order of receipt • Usually a considerable time delay before communication is finalised • Limited scope for ‘representative/class action’ • Amicus curiae submissions? • recommended ‘remedies’ must be adopted by State Party

Asserting human rights under the Optional Protocol