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Monash University Law Research Series |
Last Updated: 1 June 2011
Human Rights and Social
Justice:
the Convention on the Rights of Persons with Disabilities
and the quiet revolution in international law
On the 60th anniversary of the Universal Declaration of Human Rights (UDHR) the
Commonwealth Attorney-General announced a national
public consultation
concerning the need for better human rights protection in Australia and the
viability of a federal human rights
charter. Whether or not the anticipated
charter includes social, economic and cultural rights is directly relevant to
questions
of social justice in Australia. This paper argues that the legislative
acknowledgment of civil and political rights alone will not
adequately address
the human rights problems that are experienced in Australia. The reluctance to
include economic, social and cultural
rights in human rights legislation stems
from the historical construction of an artificial distinction between civil and
political
rights, and economic social and cultural rights. This distinction was
articulated and embedded in law with the translation of the
UDHR into binding
international law. It has been accepted and replicated in judicial
consideration of the application of human rights
legislation at the domestic
level. The distinction between the two forms of rights underpins a general
ambivalence about the capacity
of human rights legislation to deliver social
justice and echoes a critical tradition in legal philosophy that cautions
against the
reification of law. Coming into force early in the 21st century, the
Convention of the Rights of Persons with Disabilities (CRPD)
illustrates the
effort of the international community to recognize and eschew the burden of the
false dichotomy between civil and
political and economic, social and cultural
rights. Acknowledging the indivisible, interdependent and indissociable nature
of human
rights in Australia is a crucial step toward achieving human rights
based social justice.
Key Words
Introduction
On the 60th anniversary of the Universal Declaration of Human Rights (UDHR)[1] the Commonwealth Attorney-General announced a national public consultation about the need for better human rights protection in Australia.[2] The National Human Rights Consultation Report (the Report) was delivered to the Federal Attorney-General on 30th September 2009. The Report recommends that Australia adopt a federal Human Rights Act [3] based on the ‘dialogue’ model.[4] As was widely anticipated,[5] the Report supports a legislative model similar to the model adopted in the Australian Capital Territory and Victoria.[6] The model emphasises civil and political rights.[7] The Report leaves open the question of the inclusion of economic social and cultural rights.[8] It recommends that ‘if economic and social rights are listed’ the rights should not be justiciable. Rather, complaints regarding violation of economic social and cultural rights should be heard by the Australian Human Rights Commission. [9] Furthermore, the Report recommends that if economic and social rights are listed, priority should be given to the right to an adequate standard of living, including adequate food, clothing and housing, the right to the enjoyment of the highest attainable standard of physical and mental health, and the right to education. This tentative engagement with economic social and cultural rights marks a shift in Australian human rights debate.
The hesitation to include economic social and cultural rights in Australian legislation reflects the idea that to do so infringes the doctrine of parliamentary sovereignty and the separation of powers and encourage ‘judicial activism’.[10] While this argument has been cogently challenged,[11] arguments that emphasize the dangers of implementing social, economic and cultural rights, also fail to take account of the quiet revolution that has occurred in international law concerning the recognition of the indissociable, indivisible and interdependent nature of all human rights. The Convention on the Rights of Persons with Disabilities (CRPD), which entered into force internationally on 3 May 2008,[12] embraces the notion that human rights are interconnected, socially embedded processes. This article traces the development of the emerging rapprochement in international law between civil and political and economic, social and cultural rights. It argues that the ‘quiet revolution’ in international law obligesAustralia to include full recognition of economic, social and cultural rights in a federal Human Rights Act.
Social justice and the critique of rights
Persistent ambivalence
about the social justice capacity of human rights law stems from the critiques
of rights that exploded in the
19th
century.[13] Although
usually understood as unrelated perspectives, Bentham’s distinction
between the ‘nonsense’ of declared
or ‘rhetorical
rights’ and the rights that flow from the substantive duties that are
embedded in legal systems correlates
with Marx’s theory of alienation and
his analysis of the ephemeral nature of legal rights that fail to take account
of material
economic
conditions.[14] Both
these analyses have continued to influence critical debate about international
human rights law and its translation into domestic
law throughout the 20th
century.[15] They are
embedded in the various critiques of rights associated with ‘critical
realism’, legal sociology and the emergence
of the law and society
movement. Following the accelerating introduction of rights based legislation
and the amplified attention
given to rights based rhetoric and practice that
characterised the second half of the 20th century, by
the close of the century critical literature was dominated by a sense of the
irrelevance of law. Human rights law was
seen, at best, as a clumsy vehicle for
the achievement of social
change,[16] and at
worst a damaging cultural facade. In this vein, Costas Douzinas announced the
end of the age of
rights.[17]
In the 21st century, a closer and more detailed analysis of the translation of the abstract principles of human rights into the content of domestic law has developed.[18] Meckled-Garcia and Cali, for example, trace the impoverished translation of human rights principle into law.[19] They note the way in which legal practices and accepted rules of law stultify or nullify legislative provisions that are intended to give effect to human rights. From this point of view, the structures of both international and domestic law are identified as barriers to achieving social justice through human rights based legal change. Of course, strong support for human rights based law reform has existed in tandem with the various rights critiques. Notwithstanding that support, critical engagement with the law as a barrier to social change is important because it provides impetus for a reappraisal of human rights law as a tool for social justice.
Human rights and social justice
In 1948 the Universal Declaration of Human Rights (UDHR) expressed the aspirations of a fledgling human rights movement. The UDHR was adopted as a non-binding statement. It includes both civil and political rights and economic, social and cultural rights in an integrated account of human dignity. Almost 20 years later, the two foundation Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), translated UDHR principles into binding international law.[20] The ICCPR and the ICESCR divide the UDHR principles into two sets of rights. This strategic division resolved a pointed debate within the United Nations. Some nations agued for exclusion of economic, social and cultural rights from a binding covenant because they were not immediately realizable, could not be ascribed through legislation and required expenditure by States. Rather, they could only be guaranteed by sound national policy and achieved progressively when necessary resources were available.[21] This rhetorical compromise allowed less economically robust member States to pursue economic, social and culture rights according to the principle of ‘progressive realization’ as set out in Article 2 of the ICESCR. It also accommodated an ideological divide over the primacy of civil and political rights as the emblem of democratic freedom, and the importance accorded to the provision of economic, social and cultural infrastructure for the well being of people in socialist systems. In developed western nations, the conceptual division of rights coincided with the demise of welfare liberalism and the post-war ascendency of neoliberal economic theory and practice. Progressive development in the west was to be legitimately achieved with the assistance of market forces.
The division of rights between the ICCPR and the ICESCR crystallized in law a perception of the difference between the two categories of rights. Civil and political rights were understood as concrete rights. They were characterized as clearly definable, immutable and capable of immediate application. They were seen as essential elements of democratic governance and the rule of law. They were negative rights that legitimately constrained the state. Their justiciability was unquestioned.[22] In contrast, economic, social, and cultural rights were characterized as positive, aspirational rights.[23] They were seen as quasi-rights that required positive action on the part of the state. They required expenditure and the development of policy. They were not fixed because their content was subject to modification or amendment according to cultural and practical circumstances and available resources. They were malleable, discretionary and non-justiciable. The underlying message was that the realization of economic, social and cultural rights ultimately endangered, rather than strengthened the state. The clear distinction between two, and the consequent deference toward civil and political rights was strategically disguised by neoliberalism. In theory, social and cultural needs could be included in the dynamics of market-driven demand. In practice, these areas of social life lack the defined economic markers that drive the creation of capitalist markets.
The conceptual division between civil and political rights and economic, social and cultural rights fed into the bourgeoning dominance of global neoliberalism. Global neoliberalism has emerged as the key regulatory force in the second half of the 20th century.[24] On the global stage, the division between the two categories of rights preconfigured and reinforced the reliance upon neoliberal economics in international institutions such as the International Monetary Fund (IMF) and the World Bank (WB) and was accordingly exported to nations seeking assistance from these international organizations.[25]
At the domestic level, neoliberalism also works to undermine the implementation of human rights. For example, neoliberalism encourages a valorisation of isolated, individual autonomous ‘choice’. The model of bare choice encourages the idea that individual rights in law should privilege isolated self-directed decision-making, rather than decisions that are embedded in personal, community and social contexts.[26] Its corollary is the notion that the consequences of ‘choice’ are the sole responsibility of the decision-maker. Furthermore, neoliberalism subsumes ideas about the social realm and its impact on human experience within the notions of risk assessment and risk management. This is illustrated, for example, in accounts of ‘managerialism’ as the regulatory expression of neoliberal philosophy at the domestic, micro-political level.[27]
The myth of the division between civil and political rights and economic, social and cultural rights was exploded by the ground-breaking work of Nobel Laureate Amartya Sen.[28] Sen demonstrated the essential interrelationship between civil and political rights and economic, social and cultural rights in his comparative study of famines. Sen’s insights are complemented by feminist analyses that highlight the gendered nature of the constructed contrast between the two categories of rights and the realms of public and private life. Feminist accounts query the assumption that public, political rights, which are traditionally exercised by men, should be regarded as naturally defendable in the courts, whereas rights associated with the work of women in the home, in subsistence economies, in health care and in the education of the family, were not. Thornton, for example, has illustrated the gendered dissonance in law surrounding the public and private divide.[29] Charlesworth and Chinkin illustrate similar limitations in the structures and rationales of international law.[30]
The quiet revolution
The theoretical critique of law and the
legalization of human rights has both informed and been influenced by the
experience of people
who remain subject to human rights abuse despite changes in
the law.[31] This has
lead to a quiet revolution in international law, evidenced by the international
community revising its approach to developing
the content of international human
rights instruments. In particular, it has worked toward articulating human
rights approaches that
respect the perspectives, experiences and aspirations of
people who are subject to abuse. Two key processes underpin this quiet
revolution.
The first is recognition that reconciliation of the two categories
of rights is an essential precondition for the realization of
socially embedded
human rights. The United Nations World Conference on Human Rights in Vienna in
1993 adopted the Vienna Declaration and Program of Action,
[32] which
specifically recognizes human rights as universal, indivisible, interdependent
and interrelated. Article 5 of the Vienna Declaration reads as
follows
5. All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
The second process involved reform of the United Nations system to enable the active participation of non-government organizations in the formal deliberations of the United Nations.[33]
The Convention on the Rights of Persons with Disabilities
The CRPD
is the first international convention to be drafted following the adoption of
the Vienna Declaration and Program of Action, and with the collective and
collaborative action from people with
disability.[34] The
views and aspirations of disability organisations involved in the drafting of
the CRPD are therefore reflected in the traveaux preparatoire and
carry interpretive weight. This shifts the focus toward the subjective
experience of human rights violation.
The reconciliation of the two categories of rights is expressed in the structure and content of the CRPD and its adoption of the social model of disability.[35] The social model of disability emphasizes the responsibility of society to dismantle the physical and attitudinal barriers that exclude and stigmatize people on the basis of their physical or mental condition.[36] The CRPD seeks to limit mechanisms that replicate and reinforce the social exclusion and marginalization of people with disabilities. To achieve this it sets out the foundation human rights of non-discrimination, equality and social participation as entitlements that must be constructed in the social fabric. For example, Articles 1 to 7 set out the general principles that establish people with disability are the subject of rights. Articles 8 and 9 seek to raise awareness, foster respect, combat stereotypes, prejudices and harmful practices, including the exclusion of people with disabilities from physical environments and essential services. Articles 11 to 17 reflect the priority given to physical and mental safety and well-being as a precondition for social inclusion. Articles 18 to 30 recognise the barriers to effective social participation as the interplay between the embodied experience of disability and the disabling effects of active and passive discrimination.[37] Although the CRPD does not purport to create new rights,[38] its critical contribution to the human rights landscape is a new articulation of how the rights are conceived, expressed and realised. This requires an astute examination of legal frameworks with a view to the realisation of integrated ICCPR and ESCR rights.
The CRPD in Australia
In Australia, debate about the implementation of the Convention the Rights of Persons with Disabilities (CRPD) remains enmeshed in the traditional separation of negative (civil and political) and positive (economic, social and cultural) rights. In the context of mental health care, this is reflected in a preoccupation with the question of involuntary detention and treatment, at the expense of discussion about the positive obligations imposed by the CRPD.
Australia signed the CRPD on 30 March 2007 and ratified on 17 July 2008.[39] It entered into force in Australia on 16 August 2008. Australia also acceded to the CRPD Optional Protocol[40] on 21 August 2009. The Optional Protocol allows the Committee on the Rights of Persons with Disabilities to receive communications from or on behalf of individuals or groups of individuals who claim to be victims of a violation by that State Party of the provisions of the CRPD.[41] On ratification, Australia lodged an interpretive declaration.[42] The first two paragraphs of the declaration[43] are relevant to this discussion and read as follows:
Australia recognizes that persons with disability enjoy legal capacity on
an equal basis with others in all aspects of life. Australia
declares its
understanding that the Convention allows for fully supported or substituted
decision-making arrangements, which provide
for decisions to be made on behalf
of a person, only where such arrangements are necessary, as a last resort and
subject to safeguards;
Australia recognizes that every
person with disability has a right to respect for his or her physical and mental
integrity on an equal
basis with others. Australia further declares its
understanding that the Convention allows for compulsory assistance or treatment
of persons, including measures taken for the treatment of mental disability,
where such treatment is necessary, as a last resort
and subject to
safeguards;
[44]
The Joint Standing Committee on
Treaties (JSCOT) conducts public consultation and makes recommendations to the
Federal Government
regarding the incorporation of
treaties.[45] In its
Report on the CRPD, the JSCOT explains the declaration as an attempt to clarify
Australia’s position in relation to
substituted decision-making and
compulsory treatment.
[46] JSCOT notes that while different
views were expressed in relation to substituted
decision-making[47]
and compulsory
treatment,[48] the
majority of disability organisations supported a declaration that would clarify
Australia’s understanding of its ability
to continue existing practices
related to substituted decision-making and compulsory
treatment.[49]
The declaration indicates that both substituted decision-making and compulsory treatment will only be accepted as last resorts and with appropriate safeguards. There is sufficient evidence from inquiries into the current provision of mental health services in Australia to suggest that, in practice, the provision of mental health services often fails to conform with Australia’s declared understanding of the CPRD.[50] The material also suggests that the content and operation of human rights safeguards is inadequate. These deficiencies can be are illustrated by a brief discussion of the scope of Articles 12, 17 and 25. In sum, the quiet revolution requires an assessment of the practical application of the relevant legal frameworks that is informed by the perspectives of people whose rights are infringed.
The effect of Articles 12, 17 & 25
For example, Articles 12,
with Article 5 and 13, encompass the right to non-discrimination and equal
protection and benefit of the
law.[51] The CRPD
enshrines a presumption of capacity for all persons with disability, and imposes
obligations to provide the support which
may be necessary to exercise capacity.
The strong emphasis in the CRPD on
participation[52]
suggests that the obligation to include people with mental illness in
decision-making may require processes that provide a higher
standard than is
currently provided to other people. Substituted decision-making may be
acceptable provided it is activated only
after the possibilities for
self-directed decision-making are exhausted. Article 12(3) requires that
substituted decision-making
processes
“.....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.”
...and...
“ shall be proportional to the degree to which such measures affect the person's rights and interests.”
In all Australian jurisdictions, treating mental health practitioners are legislatively empowered to make decisions about compulsory treatment. The decisions that a person with mental illness may make about their own future care when they have capacity, or decisions made by an appointed representative, are overridden by compulsory powers.[53] While it may be argued that the authority given to treating practitioners facilitates prompt treatment, human rights principles require that health interventions taken without the consent of the person or contrary to their expressed preferences are strictly justified, subject to real safeguards, and demonstrably proportionate to the risk that is being averted. Any accompanying restrictions on rights must also be proportionate. This suggests that it is necessary to closely examine current practice in order to ascertain whether the exercises of power are appropriate.
The right to respect for physical and mental integrity in Article 17 must also be evaluated through the lens of the quiet revolution. [54] Article 17 is linked in the structure of the CRPD to the prohibition against torture, inhumane and degrading treatment and the right to protection from exploitation, violence and abuse. Tina Minkowitz argues that this position, coupled with the full weight of international human rights law, invests Article 17 with the force of a prohibition against all involuntary treatment.[55] Bernadette McSherry suggests that Article 17 is more correctly viewed as a limitation on practices of restraint and seclusion, and as providing protection from both unbeneficial treatment and overly intrusive treatment.[56] Both writers imply that Article 17 requires, at least, an evaluation of the ‘taken for granted’ practices in mental health care that may infringe Article 17, including non-therapeutic practices that are imposed for administrative purposes, convenience or as punishment.
The interpretation of Article 12 and Article17 as requiring a critical evaluation of current practice is reinforced by the content of Article 25 on the right to health.[57] Article 25 requires that people with disability are provided with adequate, appropriate and accessible services, guided by the overarching principles of non-discrimination and the obligation to elicit free and informed consent. Article 25 also emphasises the importance of providing health professionals with human rights training and developing human rights based professional ethics. Giving appropriate weight to Article 25, in particular, illuminates the social dimensions of the human rights framework in the CRPD.
Conclusion
Together Articles 12, 17 and 25 illustrate the shifts in debate engendered by the quiet revolution. In contrast, the Australian declaration emphasises the continuation of existing practices. It represents a missed opportunity to evaluate mental health care from a contemporary human rights perspective. The commitment to international human rights norms also requires the development of appropriate legislative frameworks to support good practice. This will be facilitated by the formal recognition of human rights in Australian law, particularly the inclusive recognition of economic social and cultural rights. New regional human rights instruments provide templates for an inclusive iteration of human rights. For example, both the Constitution of the Republic of South Africa (1996)[58]and the Charter of Fundamental Rights of the European Union (2000)[59] adopt an integrated approach and could provide templates for Australian federal legislation. The federal Charter could usefully draw on these examples.
The Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities bracket a period in which the social justice principles were subsumed within a false division between civil and political and economic, social and cultural rights. The revitalised social justice agenda in human rights law recognises the indivisible, interdependent and interrelated nature of all human rights. The real challenge is to recognise the full implications of the quiet revolution. With or without a comprehensive federal Act, engagement with the CRPD will develop a deeper a human rights sensibility in Australia.
[1] UDHR at http://www.un.org/en/documents/udhr/
[2]
National Human Rights Consultation website: www.humanrightsconsultation.gov.au
[3]
Recommendation 18, p xxxiv. http://www.humanrightsconsultation.gov.au/www/nhrcc/RWPAttach.nsf/VAP/(4CA02151F94FFB778ADAEC2E6EA8653D)~NHRC+Report+(Prelims).pdf/$file/NHRC+Report+(Prelims).pdf
[4]
Ibid, Recommendation
19.
[5] HRLRC
National Human Rights Consultation: Submission on a Human Rights Act for All
Australians (May 2009) available at http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/a-human-rights-act-for-all-australians/
[6]
Human Rights Acts 2004 (ACT); Charter of Human Rights and
Responsibilities Act 2006
(Vic)
[7] Above
note 3, Recommendations 24 &25.
[8] Both the ACT and
Victoria have indicated that they will consider the inclusion of social,
economic and cultural rights in the future.
[9] Above note 3,
Recommendation
22.
[10] HLRC
discussion paper Engage, Educate, Empower: Measures to Promote and Protect
Human Rights available at www.hrlrc.org.au/files/hrlrc-the-national-human-rights-cusultation-engaging-in-the-debate.pdf;
[11]
Ibid.
[12]
Convention on the Rights of Persons with Disabilities http://www2.ohchr.org/english/law/disabilities-convention.htm
.The draft convention was finalised at the Eighth Session (14 - 25 August 2006)
and adopted by the general assembly on December 13th
2006. It opened for
signature on 30th March 2007. Australia signed in New York on
30th March 2007. http://www.ohchr.org/english/press/newsFrameset-2.htm
access 2/3/07.
[13]
Shestack, J ‘The Philosophical Foundations of Human Rights’ (1998)
20 Human Rights Quarterly
201-223.
[14]
Brown, W States of Injury-power and freedom in late modernity (Princeton
University Press, Princeton, New Jersey, 1995)
[15] Weller, P Reclaiming a sociological voice in mental health law (Published Conference Paper, TASA Melbourne Dec. 2008)
[16] Rose, N
‘Unreasonable rights: mental illness and the limits of the law' (1985) 12
Journal of Law and Society 199-218; Foucault, M., Power/Knowledge:
selected interviews and other writings 1972-1977 (Harvester Press, Brighton,
1980); Hunt, A. and Wickham, G Foucault and law- towards a sociology of law
as governance (Pluto Press, London,
1994)
[17]
Douzinas, C, The end of human rights: critical legal thought at the turn of
the century (Hart Publishing Oxford, 2000); Douzinas, C,Human Rights and
Empire: the political philosophy of consmopolitanism (Routledge-Cavendish,
Adingdon, New York,
2007)
[18]
Cotterrell, R, Law, culture and society: legal ideas in the mirror of social
theory (Ashgate, Aldershot, 2006); Nijman, J and A Nolkaemper, New
Perspectives and the Divide Between National & International law (OUP,
Oxford, 2007); Deflem, Mathieu, Sociology of Law: visions of a scholarly
tradition (Cambridge University Press, Cambridge,
2008)
[19]
Meckled-Garcia, S. and Cali, B., The Legalization of Human
Rights-multidisciplinary perspectives on human rights and human rights law
(Routledge, London, New York, 2006);
[20]International Covenant on Civil and Political Rights http://www2.ohchr.org/English/law/ccpr.htm; International Covenant on Economic Social and Cultural Rights http://www2.ohchr.org/English/law/cescr.htm. The ICCPR adopted by UN Resolution 2200A (XXI) on 16 December 1966 entered into force on 23 March 1976. The ICESR adopted by UN Resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976.
[21] Sohn, L 'The
New International Law: Protection of the Rights of Individuals Rather than
States' (1982 – 1983) 32 The American University Law Review 1, 38;
Forsythe, D Human Rights in International Relations (2nd ed, Cambridge
University Press, Cambridge, New York, Melbourne,
2006)
[22] Dhanda,
A, ‘The right to treatment of persons with psychosocial disabilities and
the role of the courts' (2005) 28(2) International Journal of Law and
Psychiatry 155-170 at
156.
[23] Sohn,
above note 14 at
18-19.
[24]
Chomsky, N Profit over people: neoliberalism and global order (Seven
Stories Press, New York,1999);
Yeates, N ‘Globalization and Social
Policy: From Global Neoliberal Hegemony to Global Political Pluralism.’
Global Social Policy.2002; 2: 69-91
[25] Kennedy D, The Dark side of virtue: reassessing international humanitarianism (Princeton University Press, Princeton and Oxford, 2004); Farmer, P Pathologies of Power: Health, Human Rights, and the New War on the Poor, (Berkeley, Cal.: University of California Press,2003).
[26] Davidson, A
and Spegele, R.D, Rights Justice and Democracy in Australia, Melbourne:
Longman Cheshire,
1991)
[27] Zifcak
S, New Managerialism: administrative reform in Whitehall and Canberra, (London,
Open University Press, 1994); Kirkpatrick,
I, Ackroyd, S and Waker RM, The
new managerialism and the public service professions: change in health, social
services and housing, (London, Palgrave MacMillan,
2005)
[28] Sen A
Poverty and Famine (Oxford: Oxford University Press,1983); Sen, A.
Famine and other crises (Oxford, Oxford University Press, 2001); Sen, A
Development as Freedom (Oxford, Oxford University Press, 1999); Sen A and
M Nausbaum The quality of Life (Oxford: Oxford University
Press,1993).
[29]
Thornton, Margaret, Public and Private : feminist legal debates (Oxford
University Press, Melbourne,
1995)
[30]
Charlesworth, H and Chinkin, C, The boundaries of international law : a
feminist analysis (Manchester University Press, Manchester,
2000)
[31] Dejener,
T 'Disability as a Subject of International Human Rights Law and Comparative
Discrimination Law' in Kerr, S. Gostin, L.
Koh, H (eds) The human rights of
persons with intellectual disabilities. (Oxford and New York. Oxford
University Press,
2003)
[32] World
Conference on Human Rights, Vienna Declaration and Programme of Action (1993).
UN Doc A/CONF.157/23 http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument
[33] Chinkin, C,
'Monism and Dualism: the impact of private authority on the dichotomy between
national and international law' in Nijman,
J and Nolkaemper, A (eds), New
Perspectives and the Divide Between National & International law (Oxford
University Press, Oxford,
2007)
[34] Amita D,
Legal Capacity in the Disability Rights Convention: Stranglehold of the Past
or Lodestar for the Future?, 34(2) Syracuse Journal of International Law
& Commerce Syracuse (2007) 429-441, p432
[35] Kayess, R
and B Fogarty. (2007) 'The Rights and Dignity of Person with Disabilities' 32
Alternative Law Journal 1:22-2.
[36] Quinn, G. and
T. Degener Human Rights and Disability: the current use and future potential
of United Nations human rights instruments in the context of
disability (New York & Geneva: United Nations, 2002); Dejener, T
'Disability as a Subject of International Human Rights Law and Comparative
Discrimination Law' in Kerr, S. Gostin, L. Koh, H (eds) The human rights of
persons with intellectual disabilities, (Oxford and New York: Oxford
University
Press,2003)
[37]
Weller, P ‘Supported Decision-Making and the Achievement of
Non-Discrimination: The Promise and Paradox of the Convention on
the Rights of
Persons with Disabilities’ in McSherry B (ed) International Trends in
Mental Health Laws (The Federation Press, Sydney,
2008)
[38] Arbour,
L 2006 UN High Commissioner for Human Rights. Press release statement on the Ad
Hoc Committee's adoption of the International
Convention on the Rights of
Persons with Disabilities New York 5th Dec 2006. http://www.ohchr.org/english/press/newsFrameset-2.htm
access 2/3/07.
[39]
United Nation Treaty database. http://www.un.org, accessed
1/10/2009.
[40]
Optional Protocol to the Convention on the Rights of Persons with Disabilities,
Doc. A/61/611, New York, 13 December 2006. In force
3 May 2008, in accordance
with article 13(1).
http://www2.ohchr.org/english/law/disabilities-op.htm
[41]
Article1, Optional Protocol to the Convention on the Rights of Persons with
Disabilities. Accession indicates that the State consents
to becoming a party to
that treaty by depositing an "instrument of accession". Accession has the same
legal effect as ratification.
Asian Legal Resource Centre, Definitions http://hrli.alrc.net/mainfile.php/glossary/130/
[42]An
interpretative declaration is a declaration by a State as to its understanding
of some matter covered by a treaty or its interpretation
of a particular
provision. Declarations clarify a State's position and do not purport to exclude
or modify the legal effect of a
treaty.
[43] http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en#EndDec
[44]United
Nations Treaty Database: http://www.un.org accessed 1/10/2009.
.
[45] http://www.aph.gov.au/house/committee/jsct/index.htm
[46] Report No 95, Joint Standing Committee on Treaties (JSCOT), 16 October 2008, Chapter 2: Convention on the Rights of Persons with Disabilities, para 2.7.
[47] This paper
refers to Substituted Decision Making as the process whereby decisions are made
on behalf of people who are considered
not capable of being able to make
decisions for
themselves.
[48]
This paper refers to Compulsory Treatment as treatment of mental illness that
is conducted without consent, or contrary to the wishes
of the person receiving
treatment.
[49]
Above note 34 para
2.9.
[50] Human
Rights and Equal Opportunity Commission National Inquiry into the Human
Rights of People with Mental Illness Vol. 1 & 2 (HREOC,1993) http://www.humanrights.gov.au/human_rights/mental_illness/national_inquiry.html;
Senate Select Committee on Mental Health, First Report& Final Report : A
national approach to mental health – from crisis to community (2006)
http://www.aph.gov.au/Senate/committee/mentalhealth_ctte/report/index.htm
;Mental Health Council of Australia, Brain and Mind Research Institute, &
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