Abstract
Article 16 is a rather lengthy provision, made up of five paragraphs imposing a variety of obligations on the States Parties to the Convention. Most of these obligations require the adoption of “appropriate” measures, which may include “legislative, administrative, social, educational and other” measures. The aim of the measures to be adopted is to “protect” persons with disabilities; to “prevent” all forms of exploitation, violence, and abuse; to “promote” the recovery, rehabilitation, and social reintegration of persons with disabilities who have become victims of exploitation, violence, and abuse; and, finally, to “identify, investigate and prosecute” instances of exploitation, violence, and abuse against persons with disabilities.
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Notes
- 1.
The different approaches to the situation of persons with disabilities are summarized in United Nations. Office of the High Commissioner for Human Rights (2014), pp. 8–14. On the novelties of the CRPD in the context of international human rights protection and on its potential influence on the development of international human rights law in general, see Kayess and French (2008) and Mégret (2008). See also Hendricks (2007).
- 2.
CRC, Article 34.
- 3.
CRC, Article 35.
- 4.
CRC, Article 36.
- 5.
CRC, Article 39.
- 6.
Para. 1 refers to “gender-based aspects” of exploitation, violence, and abuse; para. 2 to “protection services that are gender and age-sensitive”; para. 4 to “gender- and age-specific needs”; and para. 5 to “women- and child-focused legislation and policies.”
- 7.
According to the Committee on the Rights of the Child, “This explicit mention of disability as a prohibited ground for discrimination in article 2 is unique and can be explained by the fact that children with disabilities belong to one of the most vulnerable groups of children. In many cases forms of multiple discrimination - based on a combination of factors, i.e. indigenous girls with disabilities, children with disabilities living in rural areas and so on - increase the vulnerability of certain groups. It has been therefore felt necessary to mention disability explicitly in the non-discrimination article” (CRC Committee, General Comment No. 9 “The rights of children with disabilities,” CRC/C/GC/9, 27 February 2007). The Convention on the Elimination of Discrimination against Women (CEDAW), instead, does not include an explicit reference to the rights of persons with disabilities, but these are nonetheless addressed in the context of the implementation of the Convention. The Committee on the Elimination of Discrimination against Women has adopted a General Recommendation on “Disabled women,” inviting States Parties to provide in their periodic reports “information on disabled women … and on measures taken to deal with their particular situation, including special measures to ensure that they have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life” (CEDAW Committee, General Recommendation No. 18 “Disabled Women,” A/46/38 at 3 (1993), 1991).
- 8.
Emphasis added.
- 9.
CRC Committee, General Comment No. 9, cit.
- 10.
CRC Committee, General Comment No. 9, cit., para. 43.
- 11.
According to the Committee on Economic, Social and Cultural Rights, “The absence of an explicit, disability-related provision in the Covenant [the ICESCR] can be attributed to the lack of awareness of the importance of addressing this issue explicitly, rather than only by implication, at the time of the drafting of the Covenant over a quarter of a century ago” (CESCR, General comment No. 5 “Persons with Disabilities,” E/1995/22, para. 6).
- 12.
CESCR, General Comment No. 5, cit., para. 2.
- 13.
CESCR, General Comment No. 5, cit., para. 5.
- 14.
CESCR, General Comment No. 5, cit., para. 32.
- 15.
An in-depth analysis of the way in which international human rights instruments different from the CRPD, both specific and general in scope, can be used in order to protect the rights of persons with disabilities is in Quinn and Degener (2002).
- 16.
In this respect, the structure of the obligation in Article 16, para. 1, is similar to that of the obligation in Article 4, para. 1 (e),—although it refers to exploitation, violence and abuse rather than to discrimination.
- 17.
See, for example, the Concluding Observations on Paraguay (“The Committee regrets that offences of exploitation, violence and abuse against persons with disabilities are still not visible because judicial bodies do not keep systematic records of cases,” CRPD/C/PRY/CO/1, 15 May 2013, n. 39), on El Salvador (“The Committee is concerned at: (a) The lack of official records of cases of exploitation, violence and abuse of persons with disabilities, especially children and women,” CRPD/C/SLV/CO/1, 7 October 2014, n. 35), on Belgium (“The Committee is concerned … about the absence of protocols to register, monitor and track the conditions in institutions that care for persons with disabilities, particularly those that care for older persons with disabilities,” CRPD/C/BEL/CO/1, 28 October 2014, n. 30), on Denmark (“The Committee is … concerned about the lack of available disaggregated data on the reports of abuse, exploitation and violence by persons with disabilities, and on their outcomes,” CRPD/C/DNK/CO/1, 29 October 2014, n. 40).
- 18.
See, for example, the Committee’s Concluding Observations on the Cook Islands (“The Committee is concerned that current legislation regarding domestic violence … does not provide accessible helplines or shelters,” CRPD/C/COK/CO/1, 15 May 2015, n. 29), on Turkmenistan (“The Committee recommends that the State party: … (c) Provide accessible shelters, hotlines and information for victims of violence and abuse,” CRPD/C/TKM;/CO/1, 13 May 2015, n. 30), on Sweden (“41. The Committee is concerned … at the low percentage of shelters accessible to persons with disabilities,” CRPD/C/SWE/CO/1, 11 May 2014, n. 41), on Costa Rica (“The Committee calls on the State party to ensure that women and children with disabilities are able to access protection mechanisms, such as temporary shelters and therapies to aid recovery from violence, abuse and exploitation, in an autonomous manner, and that these mechanisms are fully accessible,” CRPD/C/CRI/CO/1, 11 May 2014, n. 36).
- 19.
See, for example, the Committee’s Concluding Observations on El Salvador (“The Committee urges the State party: … (b) To set up … training in the investigation of cases of violence against persons with disabilities,” CRPD/C/SLV/CO/1, 7 October 2014, n. 36); Denmark (“The Committee is concerned at … the lack of training of police and other interlocutors,” CRPD/C/DNK/CO/1, 29 October 2014, n. 40); the Cook Islands (“The Committee is concerned that current legislation … does not provide … training for health professionals, counsellors and police unit personnel to work with women and girls with disabilities,” CRPD/C/COK/CO/1, 15 May 2015, n. 29); Turkmenistan (“The Committee recommends that the State party: … c) Provide … training for law enforcement officers and the judiciary”, CRPD/C/TKM;/CO/1, 13 May 2015, n. 30).
- 20.
See, for example, the Committee’s Concluding Observations on Turkmenistan (“The Committee recommends that the State party: (a) Ensure the availability and accessibility of effective independent monitoring and complaint mechanisms … .” CRPD/C/TKM;/CO/1, 13 May 2015, n. 30), Mongolia (“27. The Committee recommends that the State party: … (b) Appoint an independent authority to monitor and protect persons with disabilities from exploitation, violence and abuse, in accordance with article 16 (3) of the Convention,” CRPD/C/MNG/CO/1, 13 May 2015, n. 27); Germany (“The Committee is concerned about the lack of: a) The appointment of an independent monitoring authority to investigate violence and abuse of persons with disabilities both in and outside institutions where they face increased risks; b) Independent complaint mechanisms inside institutions,” CRPD/C/DEU/CO/1, 17 April 2015, n. 35).
- 21.
For example, in its Concluding Observations on China, the Committee expresses concern over “… incidents of abduction and forced labour of thousands of persons with intellectual disabilities, especially children” and “strongly urges the State party to continue investigating these incidents and prosecute the perpetrators” (CRPD/C/CHN/CO/1, 15 October 2012, n. 29). In its Concluding Observation on the Republic of Korea, the Committee invites the State Party to “strengthen its investigations into the incidents of forced labour of persons with disabilities and provide the victims with adequate protection,” (CRPD/C/KOR/C/1, 28 October 2014, n. 32).
- 22.
In its Concluding Observations on Paraguay, the Committee expresses concern “43. … at reports from various sources … that criminal gangs in Paraguay are exploiting persons with disabilities by making them beg” and recommends that “the State party: (a) Set up a special investigation unit within the competent law-enforcement bodies to find out how these gangs operate; (b) Take steps to protect the victims and place them in rehabilitation programmes, with the required support and reasonable accommodation, so that they can exercise their labour rights; (c) Take criminal proceedings against those responsible for the exploitation and impose the appropriate penalties” (CRPD/C/PRY/CO/1, 15 May 2013, n. 43).
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Marchesi, A. (2017). Article 16 [Freedom from Exploitation, Violence and Abuse]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_20
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