International Monitoring And The Harmonisation of Domestic Law:
Japan and the CRPD

by
Ron McCallum AO
Professor Emeritus, Faculty of Law, University of Sydney, Australia
and
Chair
United Nations Committee on the Rights of Persons with Disabilities

Tokyo
Thursday 6 December 2012
[Keynote Speech for Japan Disability Forum (JDF) Annual Forum]

1. Introduction

Good morning ladies and gentlemen. It is indeed a huge honour to have been invited by the Japan Disability Forum (JDF) to address this national forum during Disability Week here in Japan. My wife, Professor Mary Crock and I are delighted to be here, and we thank JDF and especially Mr Nagase Osamu for arranging our visit to your beautiful and enchanting country.

Japan has begun to modernise and to harmonise its laws to bring them into line with the United Nations Convention on the Rights of Persons with Disabilities, which I will call the CRPD. In 2011, Japan revised the fundamental law for persons with disabilities, while this year the services law HAS BEEN re-drafted. Next year, I understand that a law prohibiting discrimination against persons with disabilities will be enacted, thus paving the way for Japan to ratify the CRPD in the near future. I should explain at the outset of this talk, that when a country ratifies the CRPD it is called a state party, that is a state that is party to the obligations contained in the CRPD.

In the following section (section 2), I will give an overview of the CRPD. Many of you in the audience are very familiar with its provisions; however, some of you lack this familiarity. Therefore, may I request the patience of those who know the CRPD so that I can briefly explain the reach and the scope of this Convention to the entire audience. The speedy ratification of the CRPD will be discussed in the third section of this paper. The United Nations Committee on the Rights of Persons with Disabilities, which I will call the CRPD Committee, is the subject of section 4. It is the treaty body whose primary function is to monitor the implementation of the CRPD in the countries that have ratified this Convention, and so I will describe its composition. In section 5, the monitoring role of the CRPD Committee will be unpacked, while in the penultimate section (section 6), I shall examine the issues which the CRPD Committee has dealt with in its constructive dialogues and concluding observations, which are relevant to Japan. The conclusions will be set forth in the seventh and final section of this paper.

2. The CRPD: An Overview

The purpose of the CRPD is stated in the first sentence of article 1. It says, "The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity." In a nutshell, the CRPD is a human rights treaty that is designed to protect the human rights and inherent dignity of we persons with disabilities. This Convention is needed because so many of we persons with disabilities are unable to fully enjoy all of the human rights which most able-bodied persons take for granted.

The CRPD gives protection to all persons with disabilities, which is defined in the second sentence of article 1 as including " ...those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others." This broad definition of persons with disabilities adopts what is known as the social model of disability. It recognises that disability "is an evolving concept," and that we persons with impairments are often prevented from exercising all of our human rights and fundamental freedoms by attitudinal and environmental barriers which have been placed in our way. Put another way, the CRPD seeks to alter social attitudes by ensuring that governments, persons and bodies recognise that we persons with physical, sensory, mental or intellectual impairments possess the same human rights and fundamental freedoms as do all other persons. Article 8 of the CRPD furthers the aims of the social model by obliging countries to adopt measures that raise awareness of the rights of persons with disabilities in order to combat "stereotypes, harmful practices and prejudices."

Article 3 of the CRPD sets out eight principles which underpin this Convention. Briefly put, these eight principles are:

• Respect for inherent dignity and individual autonomy;
• Nondiscrimination;
• Full and effective participation and inclusion in society;
• Respect for difference;
• Equality of opportunity;
• Accessibility;
• Equality between men and women; and
• Respect for the evolving capacities of children.

Put simply, these article 3 principles require governments, persons and bodies to treat all of we persons with disabilities with respect because of our inherent dignity, and to ensure that our disabilities do not restrict our full participation in society.

Article 5 of the CRPD is a very important provision. It prohibits discrimination against we persons with disabilities. Paragraph 2 of article 5 says, "States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds." Discrimination is relevantly defined in article 2 as meaning, "any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." The definition continues by saying that discrimination "...includes all forms of discrimination, including denial of reasonable accommodation.”?

Reasonable accommodation is an important concept, and this expression is also defined in article 2 to mean, "necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms". Put simply, reasonable accommodation means putting in place measures to ensure that persons with disabilities are on the same level as other persons. For example, reasonable accommodation would oblige an employer of a person in a wheelchair to make a toilet at the workplace wheelchair accessible. Paragraph 3 of article 5 makes it clear that laws prohibiting discrimination on the ground of disability must include reasonable accommodation. Paragraph 3 says, "In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided." In order to place we persons with disabilities in the same position as others, reasonable accommodation is often necessary to ensure that we are all on a level playing field.

Articles 6 and 7 secure the rights of women and girls with disabilities and of children with disabilities respectively. Another important article is article 9 which guarantees to we persons with disabilities access to buildings, to transport and to information. Article 11 requires governments to protect we persons with disabilities in situations of emergencies, of disasters and of war, relying upon the principles of international humanitarian law. The entire world recalls the 11 March 2011 Tsunami which tragically struck the coast of north east Japan. As was demonstrated by this disaster, persons with disabilities are vulnerable in these emergency situations.

Article 12 goes to the very heart of the CRPD because it deals with the legal capacity of persons with disabilities. Paragraph 2 of Article 12 provides that " ...persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." In other words, all persons with disabilities have full legal capacity, including my sisters and brothers with intellectual and/or psychosocial disabilities. Paragraph 3 of this article requires ratifying countries to grant persons with disabilities access to support, which many persons with disabilities require to exercise full legal capacity. Without full legal capacity, it is not possible to assert that persons with disabilities can be bearers of the full measure of human rights that most other adults take for granted, because the capacity to make decisions for oneself is at the very heart of individual autonomy and personal integrity. Paragraph 4 of article 12 permits states parties to put in place safeguards to prevent exploitation. However, any safeguards must "...ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible, and are subject to regular review by a competent, independent and impartial authority or judicial body.”

The CRPD sets forth a series of rights for we persons with disabilities. Space does not permit me to examine these rights in detail, and I hope the following list will suffice.

• The right to life;
• Equal recognition before the law;
• Full legal capacity including the right to own and inherit property and access to credit;
• Full access to justice, including access to the courts and to legal process;
• Liberty and security of the person;
• Freedom from torture or from cruel or degrading treatment or punishment, including medical experimentation;
• Freedom from exploitation, violence or abuse;
• The right to personal integrity;
• The right to liberty of movement, including the right to possess a nationality
• The right of all children to be registered at birth and to have a name;
• The right to live in the community and to live independently;
• Personal mobility including access to appropriate mobility aids and technology;
• Freedom of expression and opinion;
• The right to personal privacy;
• Respect for the home and for the family;
• The right to marry and to found a family;
• The equal right of children with disabilities to have a family life;
• The right to education and to obtain inclusive education with others in the community;
• The right to the enjoyment of the highest attainable standard of health without discrimination;
• The provision of habilitation and rehabilitation services;
• ?The right to work on an equal basis with others, including equal remuneration for work of equal value;
• ?The right to an adequate standard of living; and
• The right to participate in political and public life, including the right to vote.

3. Ratifying the CRPD

The CRPD opened for signature at the United Nations on 30 March 2007. As well as signing the CRPD, countries were also able to ratify the CRPD, that is to agree to become bound by the Convention. The CRPD came into force on 3 May 2008, because paragraph 1 of article 45 provides that the CRPD will come into force thirty days after the twentieth country has ratified the Convention.

The ratification of the CRPD has been very speedy indeed. At present, 126 countries, including the European Union, have ratified the CRPD. The CRPD has been more quickly ratified than any of the other United Nations Human Rights treaties because in my view, governments have recognised the need to protect the human rights of persons with disabilities. After all, it is only in recent times that the human rights of we persons with disabilities have been enshrined in the domestic legislation of most nations.

4. The CRPD Committee

Article 34 of the Convention establishes the CRPD Committee, which operates in the same way as do the other United Nations treaty bodies. Now that the CRPD Committee is fully operational, it comprises eighteen members who are elected by the states parties. In other words, we members are elected by the countries which have ratified the CRPD. We are now elected for four year terms, and we can only be re-elected once. Thus persons may only serve on the CRPD Committee for two four year terms, that is for a maximum of eight years. This ensures that the CRPD Committee is renewed every four years.

Fifteen of the current members of the CRPD Committee are persons with disabilities. Thus fifteen of we eighteen members are living with disabilities. Six members are blind or visually impaired, while five members have mobility disabilities. One member has no arms, while another member only has one arm, and two members have psychosocial disabilities. Last September, five new members were elected to the CRPD Committee, and they will commence their mandates on 1 January 2013. The new CRPD Committee has seventeen members who are persons with disabilities. I applaud the states parties for electing so many persons with disabilities as members of the CRPD Committee.

Currently, the CRPD Committee meets twice a year in Geneva, usually in April and in September. These meetings are called sessions. At present, the April session is for one week, while the September session lasts for two weeks. The CRPD Committee has applied to the 3rd Committee of the General Assembly of the United Nations for more meeting time. This is because there are already thirty-one initial reports awaiting examination by the CRPD Committee.

5. The Monitoring Role of the CRPD Committee

Paragraph 1 of article 35 of the CRPD provides that two years after ratifying the Convention, each state party must submit an initial report to the CRPD Committee, which is "...a comprehensive report on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard.” Paragraph 2 of this article further provides that once the initial report has been examined, a state party must submit a further report every four years. It is these reports which detail the progress of each nation to bring its laws, policies and practices in line with the CRPD.

Article 36 paragraph 1 then gives power to the CRPD Committee to examine the reports from states parties, and empowers it to "... make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned."

?The CRPD Committee has now examined the initial reports of six states parties: Tunisia, The Kingdom of Spain, The Republic of Peru, The People's Republic of China, Argentina and Hungary. In April 2013, the CRPD Committee will examine the initial report of Paraguay, while in September 2013 it will examine the initial reports of El Salvador, Australia and Austria.

Let me now describe the process. The CRPD Committee took the decision to examine initial reports in chronological order, that is to examine the reports in the order of their submission to the United Nations. The CRPD Committee begins by appointing a country rapporteur for the country concerned, and she or he has primary responsibility for the preparations leading to what is called the constructive dialogue with that country.

The CRPD Committee reads the initial report of the country. While these initial reports are very helpful, it is sometimes difficult for members of the CRPD Committee to know what is actually happening in the particular country, especially if members do not speak the language of that nation. This is where alternative reports from civil society are invaluable. In other words, disabled persons organisations (DPOs) from that country usually compile one or more alternative reports which give us the views of the persons with disabilities living in the reporting country.

During the session, the CRPD Committee writes out a list of questions which are known as a list of issues. These questions seek further information from the country concerned. The country then sends to the CRPD Committee its replies to the list of issues.

In the following session, time is set aside to have a constructive dialogue with the country. Usually, we set aside three hours in an afternoon, and then two to three hours in the following morning for the constructive dialogue. As Chair of the CRPD Committee, I begin the constructive dialogue by welcoming the country's delegation, and then I invite its leader to make an opening statement. It is then the turn of the country rapporteur to make a statement setting out her or his initial thoughts and concerns. The constructive dialogue proceeds with members of the CRPD Committee asking questions. After a short break, the delegation responds by giving answers to the questions which have been asked by the CRPD Committee. This questioning and answering occurs until the constructive dialogue is completed.

The CRPD Committee prepares its conclusions about the constructive dialogue, and they are called its concluding observations. The country rapporteur prepares a draft, and then the CRPD Committee carefully considers the draft, making alterations, additions and deletions as needed. The concluding observations are generally about three and a half to four thousand words in length. Finally, the concluding observations are sent to the country's mission in Geneva. Briefly put, the concluding observations set out some of the good practices of the country, and then set forth the CRPD Committee's recommendations to ensure full compliance with the CRPD.

6. The Constructive Dialogues and Concluding Observations: Major Issues

The six concluding observations of the CRPD Committee are on the internet and should be read in full by those wishing to fully comprehend our work. Today, I shall confine my discussion to a number of issues which are regularly commented upon in both the constructive dialogues and in the concluding observations of the CRPD Committee. The issues that I have chosen to discuss are those which I believe are of most relevance to Japanese society.

The CRPD Committee regards article 5 of the CRPD as important. You will recall from my overview of the CRPD that article 5 requires countries to enact laws prohibiting discrimination against persons with disabilities. Where countries do not have these laws, the CRPD has recommended that they be enacted. These laws must also recognise that persons with disabilities require reasonable accommodation to ensure that they are placed on the same level as other persons. I am delighted that Japan will be enacting a detailed anti-discrimination law next year to prohibit discrimination against persons with disabilities.

You will recall that article 9 of the CRPD guarantees accessibility to we persons with disabilities. Sadly, accessibility to public and private buildings, to transport and to information is lacking to varying degrees in virtually all nations. Therefore, the CRPD Committee is always anxious to encourage countries to improve accessibility in all areas of life.

Full legal capacity of all persons with disabilities has played a central role in constructive dialogues and in concluding observations. Article 12 requires all countries to dismantle old fashioned systems of legal guardianship, and to establish new regimes of supported decision-making. Supported decision-making is a relatively new concept. Briefly put, it requires mechanisms to be established where persons with disabilities, and especially with intellectual and/or psychosocial disabilities, are assisted to make their own decisions by friends, by family members and by support persons of their own choosing. While supported decision-making is still at the development stage, it does presage a new era where decisions are taken away from others and are given back to persons with disabilities. Article 12 and related articles, require countries to ensure that all persons with disabilities are able to give or to withdraw informed consent for medical treatment, to access justice and to marry.

Article 19 of the CRPD gives all persons with disabilities the right to live independently in the community and obliges countries to take measures to enable persons with disabilities to choose where they wish to reside. I am not familiar with the situation in Japan, but in many countries persons with severe physical disabilities, or with intellectual and/or psychosocial disabilities are often institutionalised in large institutions. Article 19 requires states parties to establish deinstitutionalisation programs and to devote sufficient resources to enable persons with disabilities to actually live independently in the community.

Education and health are covered by articles 24 and 25 of the CRPD. In relation to education, the CRPD Committee is always concerned to ensure that states parties devote sufficient resources to enable children with disabilities to be educated in the mainstream school system, that is to take their places alongside ordinary girls and boys. I was initially educated in separate schools for blind children, and while I was given a good education I believe my social development would have been enhanced had I received tuition in mainstream schools. With respect to health care, the CRPD obliges countries to ensure that persons with disabilities have the same level of health care, including sexual and reproductive health care, as is given to other citizens.

?The right to vote in elections is one of the hallmarks of citizenship, and this is why article 29 of the CRPD ensures that all persons with disabilities have the right to vote. It is up to countries to expend resources to make poling booths accessible and to assist persons with disabilities to vote where we request assistance. The laws of so many countries prevent persons with intellectual disabilities from exercising their right to vote, However, the CRPD clearly requires all states parties to enable all adult persons with disabilities to vote in all elections.

Article 33 of the CRPD deals with national monitoring and implementation. In other words, article 33 requires countries to establish mechanisms to monitor the operation of the CRPD, and also to participate in its implementation. Article 33 is a complex provision, however, it is sufficient to examine paragraphs 2 and 3. Paragraph 2 of article 33 obliges countries to "... maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention." Paragraph 3 goes on to provide that DPOs and persons with disabilities shall, in their own right, "...participate fully in the monitoring process." As I comprehend the Disabilities Council which was established under Japan's fundamental law for persons with disabilities, it does comply with the requirements of paragraphs 2 and 3 of article 33.

7. Conclusion

The purpose of this presentation has been to describe the operations of the CRPD and of its international monitoring body which is called the CRPD Committee. An overview of the CRPD was given, and then the speedy ratification of the CRPD was commented upon. The composition and the monitoring role of the CRPD Committee was unpacked, and finally, issues which have frequently arisen in its constructive dialogues and in its concluding observations were examined with regard to the position in Japan. It is my hope that this presentation has assisted you to comprehend the reach and scope of the CRPD, and the approach and practices of the CRPD Committee.

Professor Emeritus Ron McCallum AO