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