phillip french director australian centre for disability law 2012 asserting human rights under the...
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PHILLIP FRENCHDIRECTOR
AUSTRALIAN CENTRE FOR DISABILITY LAW2012
Asserting human rights under the Optional Protocol
Overview
The treaty body and its functionsThe communications mechanism
Jurisdiction/admissibility Procedure Outcomes
The Committee on the Rights of Persons with Disabilities
CRPD “Treaty Body” – established under Article 34Has 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 yearSupported 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 monthsCommittee 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