The UNCRPD is legally unenforceable; Iain Duncan Smith will be let off the hook by the UN

The United Nation's Committee on the Rights of Persons with Disabilities (CRPD) has launched an inquiry into Iain Duncan Smith's welfare reforms to determine if they constitute 'grave and systematic' violations of the human rights of disabled people. Catalina Aguilar, the UN's Special Rapporteur on the rights of persons with disabilities, will pay a visit to Britain in the next few months as part of the probe.

As most of my readers know, I have been reporting frequently and voluntarily, since January of 2012, to the UN's Office of the High Commissioner for Human Rights (OHCHR), on the welfare crisis for Britain's sick and disabled. While I most certainly welcome this inquiry and acknowledge its very critical importance, I regret to inform you that the UNCRPD is unenforceable.

 

Britain signed up to this Convention under the last Labour government. On 8 June 2009, the UK government ratified the Convention, signaling its commitment to take concrete action to comply with the legal rights and obligations contained in the Convention. The Government has also ratified the Convention’s Optional Protocol.

The Optional Protocol to the Convention on the Rights of Persons with Disabilities is a side-agreement to the Convention on the Rights of Persons with Disabilities. It was adopted on 13 December 2006, and entered into force at the same time as its parent Convention on 3 May 2008. As of July 2015, it has 92 signatories and 87 state parties.

The Optional Protocol (OP-CRPD) to the Convention on the Rights of Persons with Disabilities (CRPD) allows for individual complaints to be submitted to the CRPD Committee by individuals and groups of individuals, or by a third party¹ on behalf of individuals and groups of individuals, alleging that their rights have been violated under the CRPD. Complaints may only be communicated against a State party that has ratified or acceded to the OP and only upon the exhaustion of all available and effective domestic remedies. If the CRPD Committee makes a finding that the State has failed in its obligations under the CRPD, it will issue a decision requiring that the violation be remedied and for the State party to provide follow up information.

As of 8 May 2013, 76 States have ratified or acceded to the OP-CRPD, and 91 States are signatories. To date, the CRPD Committee has adopted views on three individual communications, finding violations in two of them and declaring one inadmissible.²

The OP-CRPD is one of the communications mechanisms of the UN treaty bodies.³ Other treaty bodies which have similar complaints mechanisms include: the Human Rights Committee, the Committee against Torture, the Committee for the Elimination of Racial Discrimination, and the Committee for the Elimination of Discrimination against Women. The OP to the Covenant on Economic, Social and Cultural Rights and the Convention on the Protection of all Migrant Workers also have complaints mechanisms which are not yet in force, while the individual complaint procedure of the Convention the Protection of all Persons from Enforced Disappearances came into force in December 2010. In June 2011, the final draft Optional Protocol establishing a communications procedure for violations of rights under the Convention on the Rights of the Child was adopted by the Human Rights Council, and is now awaiting discussion and adoption by the General Assembly’s Third Committee.

1 See OHCHR Fact sheet and Guidelines on the procedure for submitting communications to the Committee on the Rights of Persons with Disabilities under the OP-CRPD, available in English, French, Russian, Spanish, Arabic and Chinese.

2 Violations were found by the Committee in: HM v Sweden, Communication no 3/2011, CRPD/C/7/D/3/2011, 19 April 2012, and Szilvia Nyusti & Péter Takács v Hungary, Communication no 1/2010, CRPD/C/9/D/1/2010, 16 April 2013. The Committee declared Kenneth McAlpine v The United Kingdom of Great Britain and Northern Ireland, Communication no 6/2011, CRPD/C/8/D/6/2011, 28 September 2012, inadmissible ratione temporis under article 2(f) of the Optional Protocol, on account that the alleged violations took place before the entry into force for the State Party of the Convention and the Optional Protocol which do not have retroactive effect. See the CRPD Committee’s website dedicated to its jurisprudence. IDA case summaries of the Committee’s views are available at www.internationaldisabilityalliance.org/en/crpd-committee-views-communications.

3 The term “treaty bodies” in this text will exclusively refer to the UN treaty monitoring bodies.

 

Like other treaty bodies equipped with complaints mechanisms, the CRPD Committee is NOT (emphasis mine) a court with judicial powers; the OP-CRPD provides a quasi-judicial procedure in which the resultant decisions of the CRPD Committee are not legally enforceable such as domestic court judgments, or some other regional judicial mechanisms (e.g. European Court of Human Rights). If a violation is found, the views of the Committee are transmitted to the State party and constitute recommendations that need to be implemented by the State party and reported on back to the Committee within six months. While technically they may not be legally binding, the decisions of the CRPD Committee will be authoritative interpretations of the CRPD, and beyond the realm of application within the State party involved in a complaint, decisions will be of great value in the exercise of implementing provisions on the ground in all States parties to the CRPD.

Ultimately, the effectiveness of the communications mechanism depends on the political will of the State party to recognise the competence of the Committee and to abide by their decisions. Yet initially, the use of communications procedure will depend on sufficient awareness of the instrument and the capacity of individuals, organisations of persons with disabilities (DPOs) and NGOs to identify victims, recognise violations and to lodge complaints to the CRPD Committee in accordance with the provisions of the OP-CRPD. 

Eight months ago, I wrote that I expected the UN to "eventually determine the UK government guilty of “grave or systemic violations” of the rights of disabled people, and possibly other thematic categories of human rights violations. The most serious penalty levied would be a downgrade to "B" of Britain's "A-list" human rights status. Institutions accredited by the UN with "A-list" status enjoy much greater access to UN human rights treaty bodies and other organs. They can participate fully in the international and regional work and meetings of national institutions, as voting members. They are also able to participate in sessions of the Human Rights Council and take the floor under any agenda item, submit documentation and take up separate seating.If reduced to "B" status, they participate as observers. They may not take the floor under agenda items or submit documentation to the Human Rights Council. Countries with human rights organisations on the A-list include nearly all western European nations as well as Azerbaijan and Indonesia. Those with "B-list" status include Kazakhstan, Sri Lanka and Congo-Brazzaville."

A verdict of guilty would embarrass the British government on the world stage, but the UN treaty repercussions would be relatively minor.  I am therefore recommending that a human rights lawsuit be filed against the DWP in conjunction with a UN CRPD "grave and systematic" violations finding.