Wednesday, June 8, 2011

Day 1: CDLP NUI Galway & Harvard Disability Project Summer School

by Charles O'Mahony

Professor Gerard Quinn and Professor Michael Stein introduced the curriculum of the Summer School to the participants. The Summer School introduces participants to the nature of the Convention, the treaty interpretation in general, the general concept of equality in the convention (and some of the relevant innovations in the CRPD) and other issues. For more information on the Summer School see here. The Faculty includes senior academics, practitioners and policy makers from around the world who have been directly and actively engaged in drafting and implementing the Convention.

Professor Quinn led the first session of the Summer School, where he placed the Convention in the context of other Human Rights Treaties. He also gave very insightful reflections on how the Convention came about and the drafting process. Other members of the Faculty of the Summer School gave personal reflections on their involvement in the negotiation and drafting of the Convention.

Sir Michael Wood (member of the International Law Commission) led the afternoon session. The afternoon session focused on how to interpret the Convention as a legal instrument. He focused on interpretative approaches, the Vienna Convention on the Law of Treaties, criteria for the acceptability of reservations and understanding and opposing interpretative declarations reservations. Sir Michael noted that it was important to note that there was no special international law for interpreting international human rights law. He said that it would be worth considering whether there was any international customary law in relation to persons with disabilities.

He noted that it was essential that the Convention was interpreted in good faith and that the Vienna Convention was a tool that persons interested in the Convention need to become familiar with. Disability lawyers need to interpret the CRPD looking at its ordinary meaning unless a special meaning can be proved and that provisions need to be read against the Convention as a whole and its “object and purpose”. Sir Michael also stated that disability lawyers and advocates should look to the preparatory work of the Convention in order to shed light on the Convention. This is an interesting prospect as examination of the preparatory work of earlier treaties was not possible as notes and official transcripts of the negotiation and drafting processes do not exist. One of the major issues raised in discussions was interpreting the Convention in different languages and problematic translation of the different articles of the CRPD.

In terms of determining the object and purpose of the CRPD the preamble and Article 4 were identified as being significant. There was some debate around the length of the preamble. Sir Michael noted that the CRPD was very successful in not attracting a lot of reservations and interpretive declarations (see the UN website here) and that he considered only a few of these truly objectionable. (Reservations seek to modify the legal effect of a Treaty while an interpretative declaration involves an interpretative statement on Articles of the Convention). There was much discussion around El Salvador’s Reservation, which states that the “Government of the Republic of El Salvador signs the present Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto, adopted by the United Nations General Assembly on 13 December 2006, to the extent that its provisions do not prejudice or violate the provisions of any of the precepts, principles and norms enshrined in the Constitution of the Republic of El Salvador, particularly in its enumeration of principles.” This reservation was considered to be extremely vague and uncertain to the extent that it was unclear to what extent that El Salvador accepts its obligations under the CRPD. There was also discussion around Egypt’s interpretative declaration and whether it amounted to a reservation. The importance of Article 46 of the CRPD was highlighted and it requires that reservations “incompatible with the object and purpose of the present Convention shall not be permitted.”