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Article 4 [General Obligations]

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The United Nations Convention on the Rights of Persons with Disabilities

Abstract

Article 4 is a key provision to fully understand the obligations that States Parties have undertaken by ratifying the Convention as the norm defines the scope of these obligations and their legal nature.

More generally, the content of Article 4 is strictly linked with the question of the mandatory character of the norms arising from treaties and their implementation at domestic level. A general obligation to implement the CRPD and to ensure the enjoyment by people with disabilities of all human rights recognized in the Convention is imposed on States Parties by the norms of general international law codified in the 1969 Vienna Convention on the Law of Treaties. Nevertheless, Article 4 of the CRPD further strengthens this general obligation requiring States Parties to give full effect, at domestic level, to the rights set out in the Convention “without discrimination of any kind on the basis of disability” and making explicit a number of detailed obligations to achieve this purpose.

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Notes

  1. 1.

    See Article 3 of the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, A/AC.265/WP.1.

  2. 2.

    See Draft Article 4—General Obligations, A/AC.265/2004/WG/1, Annex I. Draft Article 4 was modeled on Article 4 (General Obligations of States Parties) of the Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities (December 2003) and on Bangkok Draft. http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm. Accessed March 10, 2015.

  3. 3.

    For the proposals submitted, including the one of the EU that was criticized for limiting the chapeau to non-discrimination, see http://www.un.org/esa/socdev/enable/rights/ahcstata4tscomments.htm. Accessed March 10, 2015.

  4. 4.

    The wording of the paragraph was referred to the facilitator’s group on this draft article, led by Gustavo Ainchil (Argentina), for further work. Article 4 of the CRC affirms: “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.”

  5. 5.

    http://www.un.org/esa/socdev/enable/rights/ahcstata4fsrepcoord.htm. Accessed March 13, 2015.

  6. 6.

    http://www.un.org/esa/socdev/enable/rights/ahc7sum30jan.htm. For proposals to modify the draft Article see http://www.un.org/esa/socdev/enable/rights/ahcstata4sevscomments.htm Accessed March 12, 2015.

  7. 7.

    On Article 26, see Villiger (2009), p. 363 et seqq.

  8. 8.

    In the field of human rights, Article 27 was recalled in a decision of the CCPR according to which national legal systems or internal practices cannot be invoked as reasons to justify the lack of implementation of the ICCPR. See A/33/40, 1978.

  9. 9.

    Article 4 needs to be read in conjunction, among others, with Articles 2, 5, 7, 9, 20, 21, 26, 29, and 32 of the Convention.

  10. 10.

    See fourth session of the Ad Hoc Committee—Daily Summary, August 24, 2004. http://www.un.org/esa/socdev/enable/rights/ahc4sum24aug.htm. Accessed March 10, 2015. On the process of domestic incorporation of the CRPD, see Lord and Stein (2008).

  11. 11.

    See seventh session of the Ad Hoc Committee—Daily summary of discussion, January 31, 2006. http://www.un.org/esa/socdev/enable/rights/ahc7sum31jan.htm. Accessed March 10, 2015.

  12. 12.

    During negotiations, Mexico proposed to formulate the chapeau of Article 4 in order to comply with the purpose of the Convention (current Article 1). See Lord and Stein (2008), pp. 457–458; Schulze (2009), p. 34.

  13. 13.

    Federation of and for People with Disabilities in Kenya proposed adding “and to promote” after “ensure” in the first line of Article 4, para. 1, believing that States cannot ensure the full realization of the rights of persons with disabilities in all instances but they can always promote them (http://www.un.org/esa/socdev/enable/rights/ahc7sum31jan.htm. Accessed March 20, 2015). This proposal, supported by the African Group, was accepted at the last session of the Ad Hoc Committee.

  14. 14.

    See CCPR, General Comment No. 31, Nature of the General Legal Obligation on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), para. 6.

  15. 15.

    http://www.ohchr.org/Documents/Issues/ESCR/FAQ%20on%20ESCR-en.pdf. Accessed March 14, 2015.

  16. 16.

    The CESCR affirmed that “While each State party must decide for itself which means are the most appropriate under the circumstances with respect to each of the rights, the “appropriateness” of the means chosen will not always be self-evident. It is therefore desirable that States parties’ reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most “appropriate” under the circumstances. However, the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make.” See CESCR, General Comment No. 3: The nature of States Parties’ obligations, E/1991/23, para. 8.

  17. 17.

    See CRPD Committee, Concluding Observations on the initial report of Austria, CRPD/C/AUT/CO/1, October 8, 2012, para. 4. Some States Parties, after the CRPD’s ratification, have adopted National Disability Action Plans (this is the case, among others, of Austria, Germany, Hungary, Italy, and Spain). See European Agency for Fundamental Rights (2015), p. 3 et seqq. On national disability strategies, see Flynn (2011).

  18. 18.

    A similar provision is also contained in Article 2 of the CERD and CEDAW respectively; see Schulze (2009), p. 34. During negotiations, some countries proposed to add in this paragraph a reference to remedies, including the mention of legal remedies in case of violations of the rights recognized by the CRPD, on the model of Article 2, para. 3 (a), of the ICCPR. This proposal did not receive the necessary consensus because it was observed that the ICESCR did not include a similar provision, and it was difficult, therefore, to introduce such an article into the CRPD that elaborated the rights contained in both Covenants; see the Report of the third session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, A/AC.265/2004/5, June 9, 2004.

  19. 19.

    This paragraph is modeled on Article 2, para. (e), of the CEDAW requiring States “to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise” and on Article 3, para. 1, of the CRC.

  20. 20.

    See CESCR, General Comment No. 5: Persons with Disabilities, December 9, 1994, E/1995/22 (para. 11). The CRPD Committee has recalled the obligations under Article 4, para. 1(e), of the Convention in the case Nyusti & Takacs v. Hungary (Communication No. 1/2010), in which it was asked to consider whether Hungary’s failure to ensure that persons with disabilities could access banking services offered by a private financial institution violated its obligations under the CRPD. The Committee has observed that, pursuant to Articles 4, para. 1(e), and 9 of the Convention, States Parties should ensure that private entities offering facilities and services that are open to the public take into account all aspects of accessibility for persons with disabilities. See the views adopted by the CRPD Committee on this case at its ninth session (15–19 April 2013), CRPD/C/9/D/1/2010, para. 9.4.

  21. 21.

    See Article 2 [Definitions] in this Commentary.

  22. 22.

    See UN-DESA, OHCHR, IPU (2007), p. 20.

  23. 23.

    See the Report of the third session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, A/AC.265/2004/5, June 9, 2004.

  24. 24.

    See Article 32 [International Cooperation] in this Commentary.

  25. 25.

    Similar norms are contained in other human rights treaty, such as Article 2, para. 1, of the CERD requiring States Parties “to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.”

  26. 26.

    A/AC.265/2004/WG/1, emphasis added.

  27. 27.

    Assistive technology is any item, piece of equipment, software or product system that is used to increase, maintain, or improve the functional capabilities of individuals with disabilities. Assistive technology includes products and services to help people who have difficulty speaking, typing, writing, remembering, pointing, seeing, hearing, learning, walking, and others (see http://www.atia.org/i4a/pages/index.cfm?pageid=3859. Accessed March 15, 2015).

  28. 28.

    See also Article 13, para. 2, of the CRPD requiring States Parties “to promote appropriate training for those working in the field of administration of justice, including police and prison staff” with the aim of ensuring effective access to justice for persons with disabilities. Other references to training on the rights of persons with disabilities in several fields are contained in Articles 8, 9, 20, 24, 25, and 26 of the Convention.

  29. 29.

    http://www.un.org/esa/socdev/enable/rights/ahc4sumart04.htm. Accessed March 20, 2015. Article 2, para. 1, of the ICESCR states: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” On this issue, see Alston and Quinn (1987); Flóvenz (2009), p. 265 et seqq.

  30. 30.

    http://www.un.org/esa/socdev/enable/rights/ahc4sumart04.htm. Accessed March 20, 2015.

  31. 31.

    http://www.un.org/esa/socdev/enable/rights/ahc4sumart04.htm. Accessed March 20, 2015.

  32. 32.

    http://www.un.org/esa/socdev/enable/rights/ahc7sum31jan.htm. Accessed March 20, 2015.

  33. 33.

    See CESCR, General Comment No. 3, cit., para. 5. On the progressive realization of economic, social, and cultural rights, see, among others, Bruce et al. (2002), pp. 79–132; Sepúlveda (2003); Young (2008), pp. 113–175; Müller (2013), p. 67 et seqq.

  34. 34.

    Ibidem.

  35. 35.

    See CESCR, General Comment No. 5, cit., para. 9.

  36. 36.

    See CESCR, General Comment No. 14 (2000): the right to the highest attainable standard of health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, paras. 30–32. Cf. Sepúlveda (2003), p. 176 et seqq.

  37. 37.

    http://www.un.org/esa/socdev/enable/rights/ahc4sumart04.htm. Accessed March 20, 2015.

  38. 38.

    See para. 5 of the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights on June 25, 1993.

  39. 39.

    See ECJ, case C-26/62, Van Gend en Loos v. Netherlands Inland Revenue Administration, judgment of February 5, 1963. http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61962CJ0026&from=EN. Accessed March 10, 2015. Cf. Rasmussen (2014); Robin-Olivier (2014).

  40. 40.

    On the domestic application of the ECHR, see Caligiuri and Napoletano (2010).

  41. 41.

    At the sixth session of the Ad Hoc Committee (August 11, 2005), a Joint EU/Canada proposal was submitted to add a new para. 3 in Article 4 (General Obligations), which reads as follows: “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the present Convention. With regard to economic, social, and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources. In this regard, States Parties recognize that the promotion of international cooperation , such as the exchange of experience, best practice, technical assistance, and capacity building, in which there is an important role for persons with disabilities and their organizations, can contribute to the realization of the purposes of this Convention.” http://www.un.org/esa/socdev/enable/rights/ahcstata32sscomments.htm. Accessed March 20, 2015.

  42. 42.

    See Hamm (2001).

  43. 43.

    Under Rule 14 “States should involve organizations of persons with disabilities in all decision-making relating to plans and programmes concerning persons with disabilities or affecting their economic and social status.”

  44. 44.

    A similar provision is contained in Article 422 of the CRMW with regard to the consultation and participation of migrant workers and their representatives in the life and administration of local communities. On the implementation of Article 4, para. 3, of the CRPD in EU Member States, see European Agency for Fundamental Rights (2015), pp. 6–7.

  45. 45.

    See Article 3 [General Principles] and Article 7 [Children with Disabilities] in this Commentary.

  46. 46.

    The Working Group was composed of 27 governments (equally distributed among the five UN regions), 12 DPOs, and one representative of NHRIs.

  47. 47.

    See Guernsey et al. (2007), pp. 3–4.

  48. 48.

    See Statement by Louise Arbour, UN High Commissioner for Human Rights at the resumed eighth session of the Ad Hoc Committee on the Convention on the Rights of Persons with Disabilities, New York, December 5, 2006.

  49. 49.

    See Article 23 of the CEDAW, Article 41 of the CRC, Article 81 of the CRMW, Article 50 of the ICCPR, Article 28 of the ICESCR. As for regional treaties, see Article 53 of the ECHR, and Article 29 of the ACHR. On these clauses, see, among others, Neuman (2003), pp. 1886–1887; Graf-Brugère (2013), p. 254 et seqq.

  50. 50.

    See European Commission for Democracy Through Law, Opinion on the Legal problems arising from the coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights, adopted by the Venice Commission at its 34th plenary session (Venice, March 6–7, 1998), p. 5. http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(1998)017-e. Accessed March 20, 2015.

  51. 51.

    See also Article 5, para. 2, of both Covenants of 1966.

  52. 52.

    See Schulze (2009), p. 39.

  53. 53.

    See UN-DESA, OHCHR, IPU (2007), pp. 74–76. During negotiations, the Ontario Human Rights Commission, in supporting the drafting of Article 4, para. 5, observed that in Canada, all provincial and federal jurisdictions have legislated the rights of equality and non-discrimination on the ground of disability, set out in federal, provincial, and territorial human rights codes, as well as being entrenched in the Charter of Rights and Freedoms under Canada’s Constitution Act. In addition, Ontario has legislated barrier-removal planning and reporting requirements for government and para-public sectors under its Ontarians with Disabilities Act (2001).

  54. 54.

    See the Concluding Observations on the initial report of Austria, cit., in which the CRPD Committee has noted “that Austria has a federal system of government and is concerned that this has led to undue fragmentation of policy, especially as the Länder (regions) are the providers of social services. Such fragmentation can be seen in the development of the National Disability Action Plan, in which the participation of the Länder was intermittent and uneven, as well as in the different definitions of disability, different accessibility standards and different types of protection against discrimination across the various Länder” (para. 11).

  55. 55.

    See CRPD Committee, Concluding Observations on the initial report of Argentina, CRPD/C/ARG/CO/1, October 8, 2012, para. 6.

  56. 56.

    See “Responsibility of States for Internationally Wrongful Acts,” text adopted by the ILC at its 53rd session in 2001. http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf. Accessed March 20, 2015.

Table of Cases

  • CRPD Committee 16.04.2013, Communication No. 1/2010, Nyusti & Takacs v Hungary, CRPD/C/9/D/1/2010

    Google Scholar 

  • ECJ 05.02.1963, Case C-26/62, Van Gend en Loos v Netherlands Inland Revenue Administration, ECR 1

    Google Scholar 

References

  • Alston P, Quinn G (1987) The nature and scope of states parties’ obligations under the International Covenant on economic, social and cultural rights. Hum Rights Quart 9(2):156–229

    Article  Google Scholar 

  • Bruce A, Quinn G, Kenna P (2002) Disability and social justice: the International Covenant on economic, social and cultural rights. In: Degener T, Quinn G (eds) Human rights and disability: the current use and future potential of United Nations human rights instruments in the context of disability. United Nations, New York, pp 79–132

    Google Scholar 

  • Caligiuri A, Napoletano N (2010) The application of the ECHR in the domestic systems. It YB Int Law 20:125–159

    Google Scholar 

  • European Agency for Fundamental Rights (2015) Implementation of the Convention on the Rights of Persons with disabilities (CRPD). An overview of legal reforms in EU Member States. FRA Focus 05/2015. Available via http://fra.europa.eu/en/publication/2015/implementing-un-crpd-overview-legal-reforms-eu-member-states. Accessed 2 July 2015

  • Flóvenz BG (2009) The implementation of the UN Convention and the development of economical and social rights as human rights. In: Arnardóttir OM, Quinn G (eds) The UN Convention on the rights of persons with disabilities: European and Scandinavian perspectives. Martinus Nijhoff, Leiden, pp 257–278

    Chapter  Google Scholar 

  • Flynn E (2011) From rhetoric to action: implementing the UN Convention on the rights of persons with disabilities. Cambridge University Press, New York

    Book  Google Scholar 

  • Graf-Brugère A-L (2013) A lex favorabilis? Resolving norms conflicts between human rights law and humanitarian law. In: Kolb R, Gaggioli G (eds) Research handbook on human rights and humanitarian law. Edward Elgar, Cheltenham, pp 251–270

    Chapter  Google Scholar 

  • Guernsey K, Nicoli M, Ninio A (2007) Convention on the Rights of Persons with Disabilities: its implementation and relevance for the World Bank. http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/SP-Discussion-papers/Disability-DP/0712.pdf. Accessed 20 March 2015

  • Hamm BI (2001) A human rights approach to development. Hum Rights Quart 23(4):1005–1031

    Article  Google Scholar 

  • Lord JE, Stein MA (2008) The domestic incorporation of human rights law and the United Nations Convention on the rights of persons with disabilities. Wash Law Rev 83:449–479

    Google Scholar 

  • Müller A (2013) The relationship between economic, social and cultural rights and international humanitarian law. Martinus Nijhoff, Leiden

    Book  Google Scholar 

  • Neuman GL (2003) Human rights and constitutional rights: harmony and dissonance. Stanf Law Rev 55(5):1863–1900

    Google Scholar 

  • Rasmussen M (2014) Revolutionizing European law: a history of the Van Gend en Loos judgment. Int J Constitutional Law 12(1):136–163. doi:10.1093/icon/mou006

    Article  Google Scholar 

  • Robin-Olivier S (2014) The evolution of direct effect in the EU: stocktaking, problems, projections. Int J Constitutional Law 12(1):165–188. doi:10.1093/icon/mou007

    Article  Google Scholar 

  • Schulze M (2009) Understanding the UN Convention on the Rights of Persons with Disabilities. http://www.handicap-international.fr/fileadmin/documents/publications/HICRPDManualpdf. Accessed 20 March 2015

  • Sepúlveda MM (2003) The nature of the obligations under the International Covenant of economic, social and cultural rights. Intersentia, Utrecht

    Google Scholar 

  • UN-DESA, OHCHR, IPU (2007) From exclusion to equality: realizing the rights of persons with disabilities. Handbook for parliamentarians on the Convention on the rights of persons with disabilities and its Optional Protocol. United Nations, Geneva

    Google Scholar 

  • Villiger ME (2009) Commentary on the 1969 Vienna Convention on the law of treaties. Martinus Nijhoff, Leiden

    Google Scholar 

  • Young KG (2008) The minimum core of economic and social rights: a concept in search of content. Yale Journ Int Law 33:113–175

    Google Scholar 

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  1. Institute for International Legal Studies (ISGI), National Research Council (CNR), Rome, Italy

    Valentina Della Fina

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  1. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Valentina Della Fina

  2. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Rachele Cera

  3. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Giuseppe Palmisano

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Fina, V.D. (2017). Article 4 [General Obligations]. 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_8

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