Article 4 (1) (b) of the Convention obliges State parties to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”.
In addition, States undertake to adopt appropriate legislative and administrative measures and, in article 4 (1) (c), to take into account the protection and promotion of the human rights of persons with disabilities in all policies.
Consequently, an important step in implementing the Convention is to review the national legislation and policy framework comprehensively so as to:
A review of existing laws (and policies) is a duty that applies to all State parties. Even in States where the Convention is automatically applicable, there will still be a need to ensure that all relevant domestic law, including regional or customary law, is brought into compliance with the Convention.
Aspects of article 4 and other provisions in the Convention identify some of the factors to bear in mind when reviewing and reforming laws:
✓ Review all relevant legislation, not just legislation specifically or only related to disability rights. This is important, as many areas of law and policy can have an impact on the enjoyment of the rights of persons with disabilities, even when disabilities or persons with disabilities are not referred to. Consider the following areas of law:
✓ Identify duty-bearers, including different levels of government, and private actors and their clear responsibilities. Two aspects deserve to be underlined here:
It is relevant to note that higher standards of protection should prevail: if the Convention's provisions are weaker on certain issues than the law currently applicable in the State, then the national standard should of course be applied. During consultations with DPOs in Australia, it was stated that the Convention potentially establishes a different standard of compliance between State and non-State actors (i.e., a lower standard for non-State actors). Given the extensive role of the private sector in the provision of public goods and services in Australia, such as in the development and provision of disability-specific services, aids and appliances, and in the shaping of social attitudes, DPOs called on the Australian Government to declare that Australia would not limit itself to “fostering” or “encouraging” or “promoting” or “encouraging” non-State actors to observe the rights set out in the Convention, but might in some situations require the private sector to take on responsibilities on a basis equivalent to that of State actors.
For rights to have meaning, effective remedies must be available to redress violations, and legislation should ensure that courts and other tribunals have the authority to receive complaints of non-compliance with rights. This requirement is implicit in the Convention and consistently referred to in the context of the other major human rights treaties. Importantly, persons with disabilities who suffer discrimination in any field should have access to justice. Consequently, remedies should cover all human rights—civil and political rights as well as economic, social and cultural rights. The right to a remedy in the event of abuse of rights should be established in law and legislation should identify the means through which remedies are provided.
When discussing remedies, judicial remedies are often the first that come to mind. Monist approaches may have advantages in this respect. By ratifying the Convention, a monist State will automatically be bound by its principles and objectives. Individuals in that State, including persons with disabilities, who have been denied specific rights for example because domestic legislation is weak on the matter can invoke the Convention in a national courtroom and ask the judge to apply the Convention and decide that the national law is invalid. The judge does not have to wait for the Convention to be translated into national law: the treaty has been ratified and its provisions are, in principle, directly applicable. Of course, the monist approach will have an advantage so long as the national judges are competent and familiar with international standards and human rights.
Even in States where the Convention is not directly applicable, ratification of or accession to it encourages the judiciary to apply domestic law in a manner that is consistent with it. By translating the Convention into national law, dualist States enable their courts to apply the Convention in their judgements.
However, it is important to consider other remedies, too. First, other remedies might be more appropriate. For example, problems arising in service delivery might be better dealt with by consumer tribunals or through administrative remedies, national human rights commissions, ombudsmen, equality commissions, disability commissioners and so on. These can be much easier to access, even without a lawyer, and can be cheaper and less intimidating. Similarly, mediation and arbitration might be preferable in some cases as they can be less confrontational and rely on solutions (remedies) that are agreeable to all parties. Labour inspectors and school inspectors might provide a means of holding employers and education professionals accountable and, as a result, provide solutions (remedies) that are quicker, cheaper and ultimately more effective than judicial remedies.
Second, other remedies might be shorter and more certain. In some countries, the judiciary is dysfunctional or insufficiently resourced to ensure access to justice. In such situations, individuals might have little faith in the court system and be put off from filing a complaint for the denial of their rights. Remedies which are easier to access might provide alternatives to processes uncertain to bring relief.
Third, traditional forms of justice might be preferable, particularly in poor, rural areas. In many countries there is a lack of tribunals and courts in the areas outside the capital district and main urban centres. This situation is particularly critical for persons with disabilities living in remote areas. Poverty or extreme poverty can affect these areas, making it impossible to move around freely and reach urban areas for legal or other support. Nevertheless, for persons with disabilities, traditional systems are not always a panacea because of stigma and prejudice. Decisions could then reflect traditional approaches that isolate persons with disabilities or give them unequal treatment. Programmes to raise awareness should therefore involve traditional authorities, including elders and community leaders, integrating elements of non-discrimination and participation in local remedies.
Who should be involved in law review and reform? This is a non-exhaustiv
Each State will have its own process for undertaking law and policy reform. However, following certain principles will ensure that the process is inclusive of persons with disabilities and other relevant actors and is also effective.
Importantly, article 4 (3) stresses that States should consult and actively involve persons with disabilities, through their representative organizations, in the development of legislation and policies to implement the Convention and in other decision-making processes concerning them. Their participation should therefore underpin the entire law and policy reform.
Some steps in law review and reform are:
Laws translate international commitments into the domestic legal framework and often lead to real improvements in the human rights situation on the ground.
However, in many cases, policies can be important to accelerate implementation. While laws set out rights and obligations, policies can set out steps to achieve time-bound goals so that obligations are met. Policies are particularly relevant to the progressive realization of economic, social and cultural rights. However, policies are also relevant to civil and political rights (for example, improving the administration of justice). Many policies are relevant to the Convention, such as:
Policies are not a one-off; they have a lifespan:
In many ways, this corresponds to what is known as a human rights-based approach. This approach has three main elements:
Budgetary measures are essential aspects of most laws and policies. While some laws and policies—such as those prohibiting certain conduct, e.g., discrimination or torture— do not require funding, most laws and policies related to human rights do, particularly in relation to economic, social and cultural rights. Key factors to bear in mind are:
Decision makers must consider whether laws and policies have financial implications and then they must foresee adequate budgets. As noted above, before adopting laws and policies, parliament and the executive should explicitly indicate the sums that will be provided for implementation. When budgets (and human resources) are made available, other measures have a much higher likelihood of sucess
The Convention's key provision on funding is article 4 (2) (general obligations): With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.
This obligation is often misunderstood. It does not mean that aspects of economic, social and cultural rights that require resources/funding can be put off indefinitely. Indeed, the Committee on Economic, Social and Cultural Rights has stated that economic, social and cultural rights comprise core obligations which must be implemented immediately, irrespective of the costs involved. One example is the duty to provide affordable essential medicines as part of the right to health.
However, where resources are required and progressive realization applies:
In the light of the difficulties that poorer States have in implementing the Convention (as a result of resource requirements), article 4 (2) as well as article 32 highlight international cooperation as a means of helping States. Article 32 (1) (d) requires States to undertake appropriate and effective international cooperation measures including by providing, as appropriate, technical and economic assistance.
Increasing attention is being placed on “human rights budgeting” and related issues such as gender budgeting. The experience from these areas will be important to guide budgeting for the Convention. The following questions can help to decide whether budgets are aligned with laws and policies to implement it:
One problem facing the alignment of budgeting with law and policy processes is the asymmetry of ownership. For example, the asymmetries between ministries of finance, ministries of planning, sectoral ministries, parliament and civil society can have an impact on the ways in which budgets are aligned with policies as well as the extent to which policies and budgets incorporate human rights principles (e.g., of the extent to which civil society is involved).