Monday, May 12, 2008

Is there any GAL in the new UN Convention on the Rights of Persons with Disabilities?

Not much.

The latest UN human rights convention, on the Rights of Persons with Disabilities, was opened for signatures on March 2007, and entered into force barely a year later, on the 3rd of May 2008 (thanks to Opinio Juris for the heads' up). Despite, however, containing the usual provisions compelling states to "adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention" (Article 4), it does not seem - on a very quick reading - to impose any GAL obligations directly on national administrative authorities, in the manner of a number of other UN human rights conventions.

Perhaps the clearest example of GAL created by a human rights convention (excluding my somewhat tentative suggestion that we can read the non-refoulement provisions of the Convention Against Torture in that light) is to be found in Article 3(1) of the Convention on the Rights of the Child, which reads as follows:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(For a GAL-related analysis of the operation of this provision in the Canadian domestic setting, see this article by David Dyzenhaus). In a similar vein, the struggling International Convention on the Rights of All Migrant Workers and Members of their Families (**shameless plug** for an account of the difficulties facing the ratification of this Convention in a European context, see here) contains a number of provisions directly creating obligations for national agencies in a number of administrative decision-making processes (see e.g. Art. 22, banning collective expulsion measures even for those present illegally, and mandating that expulsion decisions must be reasoned, and communicated in a language that they understand; and Art. 43, mandating equal treatment with nationals for regular migrant workers in terms of access to certain social security benefits, vocational training, and so on).

Of course, in terms other than those of "distributed administration", the Convention on the Rights of Persons with Disabilities creates the obligatory global administrative body, named - you guessed it - the Committee on the Rights of Persons with Disabilities (see Art. 34 et seq). It establishes the normal accountability mechanism (a reporting requirement). However, it is worth noting that the Optional Protocol to the Convention continues the tradition of establishing a procedure whereby the Committee can consider individual complaints of violation, on the basis of which it can make "observations and recommendations" to the State concerned.

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