Abstract
International human rights law is an increasingly articulate legal regime that applies core human rights principles to populations subject to historic disadvantage and to thematically focused areas. Since the adoption of the International Bill of Human Rights, the human rights system has evolved not only in content but also in institutional structures and mechanisms. Consequently, the human rights system has witnessed an increase in its attendant lawmaking potential. The adoption of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) reflects this accretion. One of its core mandates is to channel and make applicable existing human rights obligations to the specific lived experiences of persons with disabilities. Indeed, the call for a disability-specific treaty arose largely due to the eliding—explicitly or programmatically—of disability rights from the scope and content of otherwise universal protection accorded to all persons under the international human rights system.
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Notes
- 1.
Convention on the Rights of Persons with Disabilities (CRPD), UNGA Resolution 61/106 (2007).
- 2.
- 3.
Stein (2007).
- 4.
See Ulfstein (2005), p. 145 (applying the “living treaty regime” notion to the evolution of institutional arrangements in environmental regimes).
- 5.
Stein and Lord (2009b), p. 495.
- 6.
Geisinger (2002).
- 7.
- 8.
An account of the expressive law value of human rights treaties is set forth in Geisinger and Stein (2008).
- 9.
See, e.g., CRPD, supra note 1, Article 8 (requiring States Parties “to adopt immediate, effective and appropriate measures…[t]o raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities…”). For an example of human rights education tools fostering the expressive value of the CRPD, see Lord et al. (2007).
- 10.
CRPD, supra note 1, at Preamble para. (k) (expressing concern that “persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world”).
- 11.
International legal scholars since Grotius appreciate the international system as a social system, Grotius (1625). Moreover, the highly influential New Haven School of international law rests on the view of law as a social process. See, e.g., Lasswell and McDougal (1992). On the narrower understanding of international law as a process, see especially Higgins (1994).
- 12.
See Finnemore (1996) suggesting that the effects of norms are shared understandings according to which actor identities and interests are shaped.
- 13.
Stein and Lord (2012), p. 27.
- 14.
See, e.g., UN Charter, at Article 1, para. 3 (expressing a core purpose of the UN to “achieve international cooperation in solving problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”).
- 15.
See, e.g., UDHR, UNGA Resolution 217A (III), Articles 1-2, UN GAOR, 3d Sess., UN Doc. A/810 (Dec 12, 1948) (proclaiming that “all human beings are born free and equal in dignity and rights” and are “entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”).
- 16.
See UN Press Release (2006) “Lauding disability convention as ‘dawn of a new era’ UN urges speedy ratification” http://www.un.org/apps/news/story.asp?NewsID=20975&Cr=disab (summarizing statements made on the adoption of the Convention and heralding its significance for persons with disabilities and for the development of international human rights law). Accessed July 12, 2015.
- 17.
While human rights treaty bodies have elicited general principles to guide the interpretation of human rights treaties, they have been discerned from the texts as a whole as they do not have specific provisions outlining general principles. For example, the CRC Committee has identified four main principles to guide its interpretation of the CRC. These include Article 2 (non-discrimination); Article 3, para. 1 (best interests of the child); Article 6 (right to life and maximum possible survival and development); and Article 12 (respect for the views of the child and participation). CRC, UNGA Resolution 44/25, Annex, 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/44/49 (1989), entered into force Sept 2, 1990.
- 18.
- 19.
Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Report of the Working Group to the Ad Hoc Committee, UN Doc. A/AC.265/2004/WG.1, para. 1 (Jan 27, 2004). The Working Group included 12 DPOs, see id. at para. 2. For a consideration of NGOs’ participation in the early negotiations of the CRPD, see Lord (2004b).
- 20.
Lord (2009), p. 226.
- 21.
CRPD, supra note 1, at Preamble para. (o).
- 22.
See UN Press Release (2006) “Lauding disability convention as ‘dawn of a new era’ UN urges speedy ratification” http://www.un.org/apps/news/story.asp?NewsID=20975&Cr=disab (summarizing statements made on the adoption of the CRPD and heralding its significance for persons with disabilities and for the development of international human rights law). Accessed July 12, 2015.
- 23.
Quinn and Degener (2002).
- 24.
CRPD, supra note 1, at Article 3(a) (expressing a fundamental principle as “[r]espect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons”).
- 25.
See CRPD, supra note 1, at Article 12.
- 26.
For a general treatment of how process affects substance in the context of deciding fundamental issues impacting persons with disabilities, see Minow (1985).
- 27.
CEDAW, UNGA Resolution 34/180, 34 UN GAOR Supp. No. 46, UN Doc. A/RES/34/46 (Dec 18, 1979).
- 28.
Lord et al. (2010).
- 29.
CRPD, supra note 1, at Preamble.
- 30.
See id.
- 31.
See id. See also Lord (2015b), p. 200.
- 32.
CRPD, supra note 1.
- 33.
See Lord and Stein (2009).
- 34.
Lord (2015a).
- 35.
- 36.
OP-CEDAW, UNGA Resolution 54/4, 54 UN GAOR Supp. No. 49, UN Doc. A/RES/54/49 (Oct 15, 1999).
- 37.
CRC, UNGA Resolution 44/25, 44 UN GAOR Supp. No. 49, UN Doc. A/RES/44/49 (Nov 20, 1989).
- 38.
OP-CRC-AC, UNGA Resolution 54/263, 54 UN GAOR Supp. No. 49, UN Doc. A/RES/54/49, Annex I (May 25, 2000).
- 39.
OP-CRC-SC, UNGA Resolution 54/263, 54 UN GAOR Supp. No. 49, UN Doc. A/RES/54/263, Annex II (May 25, 2000).
- 40.
See generally Edwards (2003), pp. 46–80.
- 41.
- 42.
CRPD, supra note 1 at Article 11.
- 43.
On the interrelationship between human rights and IHL, see International Committee of the Red Cross, IHL and Human Rights, http://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/ihl-human-rights/index.jsp (“International humanitarian law and international human rights law are two distinct but complementary bodies of law. They are both concerned with the protection of the life, health and dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in peace and in war.”). Accessed July 12, 2015.
- 44.
CRPD, supra note 1 at Article 5.
- 45.
- 46.
Rome Statute of the ICC, UN Doc. A/CONF.183.9, Article 7 (July 17, 1998) (“‘[C]rime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: … (h) Persecution against any identifiable group or collectively on … gender”).
- 47.
UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, Report of the detailed findings of the commission of inquiry on human rights in the DPRK, UN Doc. A/HRC/25/63 (Feb 7, 2014). For commentary on the invisibility of disability-based persecution in the work of the Commission, see Lord and Won (2014).
- 48.
Lord (2004a).
- 49.
Stein et al. (2009).
- 50.
Stein (2007).
- 51.
Lord et al. (2012).
- 52.
- 53.
Kayess and French (2008), p. 15.
- 54.
- 55.
See CRPD, supra note 1, at Article 4.
- 56.
See CRPD, supra note 1.
- 57.
Lord (2015a).
- 58.
See, e.g., Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, adopted Sept 18, 1997, 2056 UNTS 241, 36 ILM 1507 (1997), entered into force Mar 1, 1999, at Article 11; International Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, especially in Africa, adopted June 17, 1994, 1954 UNTS 3, 33 ILM 1332, entered into force Dec 26, 1996, Article 22; UN Framework Convention Climate Change, adopted May 9, 1992, 31 ILM 849 (1992), entered into force Mar 21, 1994, Articles 10 and 14, para. 2.
- 59.
CRPD, supra note 1, at Article 40. Stein and Lord (2010).
- 60.
Lord and Stein (2016b).
- 61.
See, e.g., International Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, especially in Africa, cit.; UN Framework Convention Climate Change, cit., Articles 10 and 14, para. 2.
- 62.
See Stein and Lord (2008b), p. 109.
- 63.
- 64.
Id. at Article 33, para. 1.
- 65.
Id. at Article 33, para. 2.
- 66.
Id. at Article 33, para. 3.
- 67.
Lord and Stein (2014), p. 97.
- 68.
Global meetings include those convened by the Harvard Law School Project on Disability to work out details of the monitoring proposal submitted to the Sixth Ad Hoc Committee session, supra note 10, available at http://www.law.harvard.edu/news/2005/12/02_disabilities.php (webpage announcement); and to discuss implementation more generally, available at http://www.law.harvard.edu/media/2007/02/16/hrpdisabilityconv.rm (webcast of public statements). Regional meetings include a September 27, 2007 convening by the Asia Pacific Forum on National Rights Institutions to discuss national level monitoring and implementation, available at http://www.asiapacificforum.net/news/now-the-real-work-starts-implementing-the-un-disability-convention.html, and a historic public forum held on September 5, 2007, in Seoul, Korea at which Asia Pacific NHRIs discussed monitoring and implementation with representatives of worldwide DPOs, see Asia Pacific Forum (2015) Now the real work starts: implementing the UN Disability Convention. In: Asia Pacific Forum News. Asia Pacific Forum. http://www.asiapacificforum.net/news/now-the-real-work-starts-implementing-the-un-disability-convention.html. Accessed July 12, 2015.
- 69.
Quinn and Flynn (2012).
- 70.
The MDGs were derived from the Millennium Declaration, adopted at the conference that has since become the centerpiece for achievement the goals of the Declaration. UNGA Resolution 55/2, UN Millennium Declaration. http://www.unmilleniumproject.org/documents/ares552e.pdf. Accessed July 12, 2015. The official UN website for the MDGs sets forth all eight MDGs as derived from the Millennium Declaration and identifies key targets and benchmarks, along with successes. http://www.un.org/millenniumgoals. Accessed July 12, 2015.
- 71.
For a discussion of the MDGs and their implicit, but unstated, link to disability issues, see Lord and Guernsey (2005).
- 72.
See MDGs at Millennium Development Goal 1 (calling for the eradication of extreme poverty and hunger by 2017).
- 73.
See id. at Millennium Development Goal 6 (calling for efforts to combat HIV/AIDS, malaria and other diseases).
- 74.
See id. at Millennium Development Goal 2 (calling for the achievement of universal primary education).
- 75.
Stein et al. (2013), p. 274.
- 76.
Especially the World Bank as a UN specialized agency. See Stein and Stein (2014).
- 77.
CRPD, at Article 31, para. 1.
- 78.
Id. at Article 31, para. 1 (a-b).
- 79.
Stein and Lord (2010).
- 80.
Kenya, for example, reports less than one percent of its population as having a disability compared to 20 percent in New Zealand. See Mont (2007).
- 81.
Centers for Disease Control (2015) Washington Group on Disability Statistics. http://www.cdc.gov/nchs/citygroup.htm. Accessed July 12, 2015.
- 82.
See, e.g., International Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, especially in Africa, cit., Article 16 (providing for the detailed integration and coordination of the collection, analysis and exchange of data and information of matters relevant to the treaty).
- 83.
ECtHR, Alajos Kiss v. Hungary, Application No. 38832/06, judgment of May 20, 2010; CRPD Committee, Zsolt Bujdosó and five others v. Hungary, CRPD/C/10/D/4/2011. Both cases were initiated by members of the Harvard Law School Project on Disability and later supported in interventions by the same, highlighting the need for coordinated activity by civil society in order to forward the CRPD’s mandates.
- 84.
Lazar and Stein (2016).
- 85.
- 86.
Table of Cases
CRPD Committee 20.09.2013, Communication No. 4/2011, Zsolt Bujdosó and five others v Hungary, CRPD/C/10/D/4/2011
ECtHR 20.05.2010, Application No. 38832/06, Alajos Kiss v Hungary, IHRL 3619 (ECHR 2010)
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Lord, J.E., Stein, M.A. (2017). Charting the Development of Human Rights Law Through the CRPD. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_47
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