University of New South Wales Sydney Seminar on the CRPD February 2009 University of New South Wales Sydney Seminar on the CRPD February 2009 Gerard Quinn Article 33 – the Engine of the Convention

Jurisprudential Philosophy Int Law Is an End in Itself States Obey when it Suits their interests. Int Law has no autonomous existence 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 Model Not 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 hard To dislodge A ‘discrete and insular minority’ Exclusion is Self-Perpetuating

The Outputs The Outputs of a Flawed Policy Process : Bad Laws, Policies, Programmes. AND The Process that produces those Outputs I see the CRPD as aReflecting 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 Change Government Focal Point Coord Mechan 33.1 National Monitoring Body ‘protect, promote, monitor’ 33.2 Active Consultation with PWD 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 must Be exercised Can be a Plurality – no Criteria Given – [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 Shift Advocate for Ratification Advocate for No Reservations Mainstream into own work Do so in concert – ICC & European Group Database Establish Baseline Conduct Studies/Enquiries Track Legislation and Suggest Amendments Come Forward with own Blueprints Do so in concert – Regional Inputs Intervene in Litigation Initiate Litigation Act 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. Government Focal Point(s) National Monitoring Body ‘protect, promote, monitor’ Active Consultation with PWD Singular Committed to A dynamic of change Sufficient Institutional Clout Symbolism Important – not in Welfare/Health Ministry Use CRPD as Occasion For Deep Reflection Craft own National Action Plan using CRPD Develop Policy Learning Tools/ Stats Active Listening Mode Active Consultation Search for Mutual ’Solutions’ Give Back -Participate in Conf of States Genuinely Independent Robust use of Powers Promote Monitor Protect 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