*Essential reading materials
Note: the recorded lectures (links at bottom of page) supplement the readings for this segment and relate to each of the topic areas.
Implementation obligations
CRPD Articles 4, 8, 16.3, 31-33*
CRPD General Comment No. 7 on Article 4.3*
OHCHR 2009 Thematic Study on key legal measures for ratification and implementation of CRPD
International law and national frameworks, especially 1.7 ‘International law and municipal law interface’ – in Compilation of International Norms and Standards Relating to Disability (pre-CRPD, some parts outdated)
- Questions to consider:
What would the Convention have obligated states parties to do if Article 4 had not been included?
Is legislation central to implementation, or just one component among many others?
How does the separation of powers between executive, legislative and judicial branches of government affect states’ human rights obligations?
What makes the difference between effective and ineffective implementation?
How does a country’s national constitution, and its approach to incorporation of international human rights treaties into domestic law, affect its ability to implement the CRPD?
Which organizations should count as ‘representative organizations of persons with disabilities’ (DPOs)?
What can DPOs do if problems arise with consultations – e.g. if a DPO has been excluded or if a family-led organization is being incorrectly represented as a DPO?
How should states ensure that the human rights issues facing survivors of psychiatry and people with psychosocial disabilities are mainstreamed in CRPD implementation, not channeled into a separate sphere of ‘human rights in mental health’?
What should be the relationship between mental health law and policy, and the CPRD? Can they be reconciled even in principle?
How should DPOs deal with resistance from other segments of civil society that have greater power – e.g. psychiatry, and also potentially academia, the legal profession, the media? How can we make alliances in those sectors and/or neutralize them?
When is technical expertise needed for questions of implementation, and what is its relationship to expertise by lived experience?
How can we ensure that grass-roots knowledge continues to lead implementation and ongoing normative development of the human rights of PWD as it did the CRPD drafting and negotiations?
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Independent monitoring mechanisms
CRPD Articles 16.3, 33
OHCHR 2010 Thematic Study on national monitoring mechanisms
CERMI alternative report in capacity as independent monitoring mechanism (2017)
WNUSP recommendations on OPCAT monitoring
- Questions to consider:
What kind of entities can play the role of independent monitoring mechanism(s)? What capabilities and knowledge should they have?
When should a DPO or DPO coalition be designated as the independent monitoring mechanism? If no DPO has the capability, what role should DPOs play in the establishment of an IMM and in its ongoing work?
Should the IMM be responsible for monitoring services and facilities designed for PWD (including institutions, and mental health settings)?
What recourse do DPOs and individual persons with disabilities have if an IMM, or an independent monitor designated under Article 16.3, has treated them unfairly or is not upholding the CRPD norms?
Do independent monitoring mechanisms mediate between rights-holders and the state? Should they?
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Enforcement of individual rights
UN Basic Principles Guidelines on the Right to a Remedy and Reparation
Christine Cerna, Status of Human Rights Treaties in Mexican Domestic Law
To be expanded – Examples: Documenta; Mexican Supreme Court decisions on legal capacity; In re Dameris L (NYS lower court case)
- Questions to consider
What obligations do states have to enforce individuals’ rights under the CRPD?
What steps can states parties take to ensure that courts can uphold CRPD norms and play their part in implementation, even if the state does not directly incorporate human rights treaties into domestic law?
How should judges learn about CRPD norms, and from whom?
What considerations do lawyers and advocates have to think about when planning strategic litigation (litigation designed to have a systemic impact, beyond a particular case)?
Can national monitoring mechanisms play a complementary role to courts, and/or to human rights defenders?
What do survivors of psychiatry and persons with psychosocial disabilities in particular need to pay attention to in conducting strategic litigation or using the courts?
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Activity: researching your country
- Questions to consider:
Has your country ratified or acceded to CRPD? CRPD Optional Protocol? Did it make any reservations or declarations?
Do you know whether the CRPD is incorporated directly into national law in your country, or whether it is considered only an international obligation until implementing legislation is enacted?
Who are the focal points for CRPD implementation? How can you find this out?
Is there a mechanism to consult regularly and/or as needed with DPOs on matters of CRPD implementation and anything else affecting the rights of their constituencies?
Are users and survivors of psychiatry and people with psychosocial disabilities represented effectively in this mechanism?
Does your country have a national action plan for CRPD implementation? Are the issues of concern to users and survivors of psychiatry and people with psychosocial disabilities fully included and mainstreamed? Are these issues addressed in conformity with CRPD norms?
Has your country established one or more independent monitoring mechanisms?
What role do DPOs play in the mechanism(s)? Are users and survivors of psychiatry and people with psychosocial disabilities involved through DPOs or as experts?
How effective is/are the independent monitoring mechanism(s) in promoting, monitoring and/or enforcing the issues of concern to users and survivors of psychiatry and people with psychosocial disabilities?
Are they able to take positions critical of the government when the government is not in compliance?
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Archived materials
Fall 2017: Lecture #6 video recording and slides segment 6 slides; Lecture #7 video recording and slides segment 7 presentation
Spring 2017: Lecture #6 Recording , slides segment 6 rev and pdf segment 6 rev; Lecture #7 Recording , slides segment 7 presentation and pdf segment 7 presentation
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Assignment
Write your responses to the questions under each topic.
As we continue to work on revisions to this website, we hope to provide webforms and also forums for you to record your reflections and share them.
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(c) Tina Minkowitz 2020-2022