University of New South WalesSydney

Seminar on the CRPD February 2009

University of New South WalesSydney

Seminar on the CRPD February 2009

Gerard Quinn

Article 33 – the Engine of the Convention

Jurisprudential Philosophy

Int Law Is an End in Itself

Reified

An End In itself

‘temptation of elegance’

Von Jehring’s Legal heaven

Legal Realism.The Inevitable Gap between

‘Law in Books-Law in Action’‘Myth System-Operation System’

General Principles don’t solve hard cases

Bridging the Gap???

Internalise/Socialise the norms into the Law & Policy Process.

Generating a Reflective Process of alignment

‘Own’ the norms.

Motivated to ‘see’ symmetry between national & International

Motivated to benchmark to the international

Motivated to contribute a ModelNot a one-way street

Becoming a policy reflex…

Sir William Blackstone“upon marriage woman suffers civil death”

Much the same default in disability

From subject to object – and back to subject

John Brown

Force the issue

Make People Face truth…

Expose Contradiction

“you have to take sides”

Political process Reflects the default

Diminished voice for PWD makes it hardTo dislodge

A ‘discrete and insular minority’ Exclusion is Self-Perpetuating

The Process that produces those Outputs

I see the CRPD as a Reflecting on

SO What Engine of Transformation Does the CRPD Envisage?

Transmission Belt

International Legal Order

Domestic Legal Order

Committee on the Rts of PWD Conference of States Parties

Domestic Institutional Architecture for ChangeGovernmentFocal Point Coord Mechan 33.1

National Monitoring Body‘protect, promote, monitor’ 33.2

Active Consultation withPWD 33.3

Research Supporting Action

Article 33 National implementation and monitoring

1.States Parties, in accordance with their system of organization,

shall designate

one or more focal points within government

for matters relating to the implementation of the present Convention,

and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels.

Certain Margin of Appreciation

It has the Choice – but it mustBe exercised

Can be a Plurality – no CriteriaGiven – [authority, effectiveness, link to int law]

Drilled down Implementation

Certain Margin of Appreciation

Independence mandatory

3 Very Different Roles

Paris Principles???

“Protect”

“Promote”

“Monitor”

Valorise the Paradigm ShiftAdvocate for RatificationAdvocate for No ReservationsMainstream into own work

Do so in concert – ICC & European GroupDatabase

Establish BaselineConduct Studies/EnquiriesTrack Legislation and Suggest AmendmentsCome Forward with own Blueprints

Do so in concert – Regional Inputs

Intervene in LitigationInitiate LitigationAct as amicus curia – European Group

Do so in Concert

3. Civil society,

in particular persons with disabilities and

their representative organizations,

shall be involved and participate fully in the monitoring process.

NGOs

Monitor

+++Protect

+++Promote

Critical Success Factors.

GovernmentFocal Point(s)

National Monitoring Body‘protect, promote, monitor’

Active Consultation withPWD

•Genuinely Independent

•Robust use of Powers

PromoteMonitorProtect

•Constructive element in domestic dialectic

•Capacity Raising with others •Active Consultation

Develop New Skills ‘Know How’Political entrepreneurism

Tackle Problems = Propose Solutions

Research to Action: Solutions Factory, Ideas, Comparative Research