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@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 Secretary–General and UN Secretariat Office of the High Commissioner for Human Rights (OHCHR) General Assembly Economic and Social Council (ECOSOC) Human Rights Council • Special Procedures • Universal Periodic Review UN Specialised Agencies Such as UNDP, UNHCR, UNICEF, WHO, ILO and many others 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 Committee’s 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 Committee’s “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 barrister’s 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 Committee’s secretariat

13. Practical reality… • General considerations: • Committee’s 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/CRPDIndex.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@hrlrc.org.au + 61 3 8636 4451 www.hrlrc.org.au