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Voice and Choice
Summer School
Held at the NUI, Galway
18 June 2013
The Centre for Disability Law and Policy,National University of Ireland, Galway,
Text streamed live to the web on www.seewritenow.ie
Premier Captioning & Realtime Ltd.
www.pcr.ie
NUI Galway Summer School – 18 June 2013 1
NUIG Summer School 18th June 2013:
DRQUINLIVAN: Good morning everybody, I hope you had a good night sleep, I see you brought the weather with you for which we're very grateful, you don't get much hot weather in Ireland it's nice to see blue skies today, trust me, I know some people are saying well it's still cold, for us this is nice, good weather we're very pleased.
My name is Shivaun Quinlivan I'm with the school of law and Centre for Disability Law and Policy, I'm chair of this session today. We’ve had a few slight changes, what we have up first is Janet Lord to speak first, and then after the coffee break it's going to be Rosemarie, but they have informed me that they are going to work together for both sessions, so I'm going to introduce both of them at the same time rather than introduce Janet and have Rosemarie speak as well and you wonder who she is.
So firstly Janet this is Janet an international disability rights lawyer and she is currently a senior research associate with Harvard Law School project on disability. She participated in all the negotiations section for UN Convention and she serves as a legal advisor to the disability, disabled persons international several governments and technical expert to UN, she has designed, managed and implemented progress and disability law and policy in more than 30 countries worldwide. She consults for a variety of international organisations including the UN Office of the High Commissioner for Human Rights, UN disability programme, UNDP, US Aid, the EU, DTS, World Bank, care I could keep going, this could go on. What I'm trying to say is we are so, so lucky to have Janet here and she has become, Janet and Rosemarie are two veterans of the summer school at this point, this is I think the third year and we're so grateful they come every year and we're pleased to have them speak with us and speak to you here.
Rosemarie has extensive disability policy experience, she has held Ministry advisory roles with both State and federal government on disability and carer issues, she was the external expert on Australian government's delegation to the UN negotiations on the Convention. And Rosemarie has extensive research experience working and advising on a variety of social research projects including access to justice, human rights and disability, guardianship, young people in nursing homes and her research areas include access to justice, human rights, disability, guardianship.
So we are incredibly pleased to be able to invite you to listen to both Janet and Rosemarie here today. They are going to speak on the obligations in relation to the Convention.
There are two separate topics so we'll start the first session which is what obligations to reform do states have under the convention and the general obligations of estates parties, we'll take a break, have some coffee and come back for the second session. So a big round of applause for both Rosemarie and Janet.
MSLORD: Good morning everyone. Thank you so much for the introduction, great to be back this morning. I think what we're looking at this first session, we're looking at it in terms of continuing to provide the foundation for our very specific thematic focus of the week, which is really looking at legal capacity, independent living.
So we're going to continue to lay the foundation and this is a great opportunity for any of you who do have questions that pertain to the CRPD in general, we're going to focus on the general obligations of the CRPD which we hope will allow us to dig deeply into the obligations around legal capacity and independent living throughout the course of the week, but this is a great opportunity for anyone to ask questions, raise questions, many of you have raised some excellent questions during the coffee breaks and lunch breaks, but we encourage to you do that in the context of these two sessions this morning as well.
It's doing this tricky thing that Jerome has done, I didn't plan it this way! But anyway, so outline for this morning's discussion, what are the general obligations of the CRPD? That's what Gerard has tasked us with focusing on T where do we find these general obligations? What do they mean? And are there tools that we can use to discover what they mean and how might we use them in the context of our work, whether thinking about legal capacity, living in the community or indeed thinking about applying those principles and interpretive tools to other obligations in the treaty.
So we thought we'd start out this morning with again reviewing what are the structural components of the Convention, we did go through that yesterday, but we've got the preamble which as Rosemarie said yesterday provides us with the sort of historical antecedence to the Convention, and she pointed out yesterday, quite rightly, that there are things in that and there are certain instruments that are, that were purposefully left out of the preamble and that gives us an idea of the extent to which the drafters privileged certain documents, like the standard rules, like the universal declaration, like the two covenants, and were not so enthusiastic about other instrument that is were in some instances disability specific instruments, like the two documents developed in the 1970s the two declarations, which are really regarded as quite outmoded and not appropriate.
Also left out was a reference to the MI principles, that's pretty important for our thinking about legal capacity issues this week. These are the -- I don't know what the full name of the document is, principles on mental illness, they were adapted right around the same time as the UN standard rules.
MSKAYESS: About 1991.
MSLORD: Very controversial document during the drafting of the treaty and several groups lobbied very hard for the exclusion of mention of the MI principles because again of the outmoded antiquated perspective of disability reflected in that particular document.
So the preamble has lots of good stuff in it. Articles of general application, we referred to yesterday, articles 1 through 9, we're going to be focusing in particular this morning, especially on Article 4 that lays out the general obligations, what do State parties need to do in general in order to meet the treaty obligations, the specific standards, rights and obligations in articles 10 through 30.
One important thing to note about the structure is that there is no categorisation of rights in the articles 10 through 30, so in other words there is a mix of civil, political, economic, social and cultural rights in 10 through 30, they are not categorised in terms of civil and political rights, economic, social and cultural rights. Rosemarie will talk quite a bit more about that distinction in human rights law and why it's important.
But for our purposes it's just a mix from 10 through 30, we have the full range of human rights reflected. At the beginning of the drafting some of the countries, like my own country, was arguing for very narrow, non-discrimination type treaty that is it not, that would not cover the full range of human rights. Fortunately that argument did not win the day and we have quite a comprehensive treaty, more like the Convention on the Rights of the Child than some of the earlier conventions like the women's Convention or race Convention.
Implementation and facilitation and monitoring measures are in articles 31 through 40 and we'll hear a lot more about monitoring the CRPD later in the week. And then the final provisions in articles 41 through 50.
So nature and scope of CRPD obligations. They are an integral part of international human rights law and what the drafters were attempting to do with the CRPD is elaborate human rights in the context of disability, the mantra throughout the drafting process was these are not new rights, they are existing rights. So in other words we are articulating disability rights, not as new rights but as part and parcel of the general human rights framework. That which was already there, but not specified in the earlier documents.
Now if you go through and read the C RP D you'll see that actually there is a lot that looks kind of new, looks kind of different. So perhaps it's something of a fiction that we didn't actually create anything new. But clearly it was a very important part of the drafting process and the process to bring states on board to stick with the mantra that no we're not doing anything new, we're just saying what's already there implicitly but making it explicit.
Human rights and fundamental freedoms are as we said yesterday, indivisible, interdependent and therefore we need to focus in our discussion on general obligations this morning, on implementation, promotion and protection of civil and political as well as economic, social and cultural rights in the CRPD. Rosemarie will elaborate more on the distinction and differentiation of obligations in respect of those civil and political rights and economic social and cultural rights.
As we said yesterday the CRPD needs to be interpreted in good faith, in accordance with the Vienna Convention on the law of treaties, again taking into account the object and purpose, ordinary meaning, preparatory work, of which there is volumes and volumes nicely archived on the UN website as well as relevant practice, and we have lots of relevant practice that's emerging, both from the regional systems, European Court of room heights, inter American court as well as other treaty bodies, and of course domestic jurisprudence as well in many of the countries. And we'll hear about some of the really interesting Law Reform initiatives that are taking place in different parts of the world with respect to implementing the Convention.
Did you want to say anything about foundations; we haven't talked much about social model, medical model?
MSKAYESS: Yeah I'll do a little bit of that in my session next up, I don't know how much we want to get into it here.
MSLORD: Okay. So moving on and looking at the nature and scope of CRPD obligations we'll get to a more interactive session in a minute. But we're going to look to the CRPD text but we're also going to take into account the work of UN bodies and other organisations, special rapporteurs in the field of human rights, we're getting a number of more disability specific reports of special rapporteurs that attempt to shed light on the interpretation of the CRPD, so all of that is really important to take into account when we're trying to interpret provisions of the CRPD.
Some rights recognised are to be attained progressively Rosemarie will talk more about that. Others need to be implemented immediately, it's not always so easy to disentangle what aspects of rights are to be immediately realised and what are to be progressively achieved, it's not all that straightforward.
NGOs play an important role in promoting and implementing CRPD and Steve spoke about the role of DPOs in particular about drafting the treaty and because of the very strong role of DPOs and disability advocates in the drafting process we see in this treaty more than any other human rights treaty very specific roles accorded to nongovernmental organisations in the monitoring and implementation of the treaty, and also as you'll see in a minute, in the actual general obligations of states. So really interesting role for NGOs and DPOs in particular accorded in the treaty.
States parties are accountable both to the international community and their own people for compliance, as we talked about yesterday, the organs monitoring the CRPD need to pay attention to principles laid out in Article 3 and crosscutting obligations in assessing compliance.
And particular attention should be given to measures to improve the standards of living of the poor and other disadvantaged groups within the disability community, so if you look at the preamble you'll see various references to particularly marginalised group s within the disability community and other marginalised groups that really contribute to multi dimensional forms of discrimination, persons living in poverty, persons living in areas where there is armed conflict, refugees and IDPs for example implicitly referenced in the preamble. And so on, and references to indigenous persons as well in the preamble.
So turning to Article 4, again part of the general crosscutting obligations at the beginning of the treaty, it's got a dynamic relationship clearly with all other provisions in the treaty, meaning that the obligations in Article 4 need to be implied, applied across the treaty. And it describes the general nature of the legal obligations, general legal obligations undertaken by states parties to the CRPD. So very important to think about Article 4 in relation to understanding Article 12 on legal capacity, Article 19 on living independently in the community as we delve into those more deeply during the week.
So what are the general obligations set out in Article 4? Article 4 lays out specific requirements for addressing the legal framework, we are going to spend a lot of time this work talking about the legal framework because of the very specific domestic Law Reform effort that is we're going to talk about, particularly in the context of legal capacity. So what are these specific requirements? Adopting legislative, administrative and other measures, modifying or abolishing existing laws, regulations, customs and practices that constitute discrimination. So again a strong emphasis on disability discrimination and clearly the CRPD committee, the treaty etcetera is, there is a strong focus on the development of national disability discrimination laws.