Short Guide to Using the Optional Protocol to the UN CRPD

Short Guide to Using the Optional Protocol to the UN CRPD

This short guide focuses on the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities (CRPD). It seeks to explain how the Optional Protocol works, and how it can be used by individuals and organisations to claim their rights under the CRPD. It also provides examples of using the Optional Protocol to successfully challenge human rights violations in the European Union (EU).

  1. What is an Optional Protocol?

As explained in the Handbook for Parliamentarians[1], an “optional protocol is a legal instrument related to an existing treaty that addresses issues that the parent treaty does not cover or does not cover sufficiently.” It is called optional, because countries that ratify the Convention do not necessarily have to ratify the optional protocol. With regard to the EU Member States, all but one of the Member States (Ireland) ratified the CRPD, including the EU itself. However, the following Member States have not ratified the Optional Protocol: Bulgaria, the Czech Republic, the Netherlands, Poland and Romania; and the European Union. This means that disabled people and non-governmental organisations in those countries do not have access to procedures available under the Optional Protocol.

The full text of the Optional Protocol is available here.

  1. How can the Optional Protocol be used?

The Optional Protocol provides for two types of procedure:

a) Individual communications procedure

This allows individuals or groups of individuals to take a complaint to the Committee on the Rights of Persons with Disabilities (CRPD Committee) when one or more of their CRPD rights has been breached. The complaints are made in writing and the CRPD Committee first examines them for admissibility. Not all the complaints will be admissible, as they must satisfy a number of criteria. Among these is that the complainant cannot be anonymous and that all the domestic remedies should have been exhausted before bringing a complaint to the CRPD Committee.[2]

If admissible, the Committee will examine the merits of the complaint and formulate its views and recommendations to the State Party in question. It can also ask the State Party to report on measures it has taken to remedy human rights violations that have been committed.

In addition, the CRPD Committee can ask the State Party to take urgent interim measures “to avoid possible irreparable damage to the victim or victims of the alleged violation” (Article 4 of the OP).

b) Inquiry procedure

Under this procedure, individuals or organisations can bring a complaint to the CRPD Committee alleging “grave or systematic violations by a State Party of rights set forth in the Convention” (Article 6 of the OP). If they have managed to collect enough evidence, and if this evidence is credible, the Committee can decide to launch an inquiry, consisting of checking and collecting information, asking the State Party to submit observations, possibly conducting a mission to the country, and issuing a report with recommendations. Findings are also included in the Committee’s report to the General Assembly. This inquiry is confidential and has to be carried out with full cooperation of the State Party in question.

States Parties to the Optional Protocol can opt out of the inquiry procedure, in which case this procedure would not be available to its citizens. However, in the case of the EU Member States that are party to the Optional Protocol, none have opted out.

  1. What are the conditions for using the Optional Protocol?

Individuals and organisations considering bringing a complaint to the CRPD Committee should check the following:

  • Whether their country is a party to the Optional Protocol. The full list of ratifications can be found here.
  • Decide if they wish to use the ‘individual communications’ or the ‘inquiry’ procedure.
  • If using the ‘individual communications’ procedure, check that their complaint complies with all the admissibility criteria. These can be found in Article 2 of the Optional Protocol.
  • If using the ‘inquiry’ procedure, make sure that they have sufficient and reliable evidence (from various sources) to prove there have been grave or systematic violations of the CRPD rights in their country.
  1. What if your country has not ratified the Optional Protocol to the CRPD?

Even if your country has not ratified the Optional Protocol to the CRPD, you may be able to bring an individual complaint under another human rights treaty of relevance to people with disabilities:

  • The Optional Protocol to the International Covenant on Civil and Political Rights
  • The International Convention on the Elimination of All Forms of Racial Discrimination
  • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women
  • The International Convention on the Protection of All Migrant Workers and Members of their Families
  • The International Convention for the Protection of All Persons from Enforced Disappearance (not yet in force)

The following treaties allow for inquiry procedures for grave or systematic human rights violations:

  • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women
  1. Examples of complaints

In its first edition of the Human Rights Report, published in December 2016, the European Disability Forum (EDF) describes the individual communications received by the CRPD Committee against Austria, Italy, Sweden, Germany, Hungary, the United Kingdom and Sweden. A full list of the CRPD Committee jurisprudence (cases) can be found using this search tool.

The only inquiry under the CRPD so far has been triggered by ENIL’s member Disabled People Against Cuts (DPAC), against the United Kingdom. As a result of that inquiry, which has taken several years to complete, the CRPD Committee published a report in October 2016, finding that the UK has indeed violated the CRPD. The Committee concluded that “there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been met in the State Party” and issued a number of recommendations for the UK Government to act on as a matter of priority. The text of the report can be found here.

For more information about the Optional Protocol to the CRPD, and the stages of the individual communications procedure, as well as the advantages of using the Optional Protocol, please consult pages 31 to 37 of the Handbook for Parliamentarians.

  1. Who should you contact?

Individuals and organisations can contact the CRPD Committee Secretariat by writing to crpd@ohchr.org. Please write ‘Request for information’ in the subject. You can also contact ENIL for additional information, by writing to secretariat@enil.eu.

 

December 2016

[1] United Nations, From Exclusion to Equality – Realising the rights of persons with disabilities, Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol, 2007.

[2] A full list of criteria can be found in Article 2 of the Optional Protocol.

1 Comment

Mari

January 20, 2017, 10:29 am

This is a useful overview of the purpose of the optional protocol. Brief and effective. Thank you!

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