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<p><img width="90%" src="//d24jp206mxeyfm.cloudfront.net/assets/courseware/v1/8e4c75055b681c94ee8b4e3fc14834d0/asset-v1:OSCE+HD-RPD-EN+2021_09+type@asset+block/undraw_Documents_re_isxv.png" alt="Welcome" /></p>
<p>This module is relevant to everyone who has an interest in disability or responsibility for addressing issues of disability - including through legislative reform - including persons with or without disabilities in civil society, civil and public service, national human rights institutions, parliaments, development agencies, universities and the private sector.</p>
<p>In this module, you will become familiar with and work towards the following learning objectives:</p>
<ul>
<li>Review approaches to harmonizing domestic laws with international norms and standards on disability, in particular the Convention on the Rights of Persons with Disabilities (CRPD).</li>
<li>Outline the important role of legislation in implementing the Convention on the Rights of Persons with Disabilities (CRPD);</li>
<li>Review the obligations of State parties under the CRPD in relation to law reform;</li>
<li>Set out key considerations in legislating for disability rights and inclusion;</li>
<li>Explain strategies to ensure that legislative reform and development are consistent with the CRPD;</li>
<li>Highlight the participatory nature of law reform required by the CRPD; and</li>
<li>List key resources for additional reference.</li>
</ul>
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<h3>Background </h3>
<p>The CRPD requires that the domestic legal framework of States Parties be brought into alignment with CRPD obligations. In this respect, governments are expected to undertake a scoping exercise to review and assess existing domestic legislation in order to identify shortcomings or gaps. Once a comprehensive scoping exercise is completed, a plan for legislative reform needs to be adopted, including the required measures for reform, amendment, and removal of laws to align the domestic legal framework with the CRPD.</p>
<p>Scoping exercises serve a variety of purposes beyond setting priorities for law reform. They can help identify additional areas for policy development and foster coordination across government agencies and between government, OPDs, and national human rights institutions. The findings of a scoping exercise may also assist in drafting a national disability strategy or developing a national human rights plan or thematically focused plan (e.g., national plan for education, national health strategy). Broad consultation with persons with disabilities and other stakeholders is central to the success of any scoping exercise.</p>
<p>Legislation plays an important role in CRPD implementation in all countries, but its role varies depending on the legal context. In some legal systems, legislation is required in order to incorporate an international treaty into the domestic legal order. In other countries, the standards set out an international treaty take on constitutional hierarchy upon treaty ratification and are therefore automatically part of the national legal order on ratification. In other countries, elements of both approaches are evident in that some standards are self-executing and do not require additional domestic action to be enforceable, while other standards require legislative action or need clarification to have legal effect.</p>
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<h3>Review of Legal Framework </h3>
<p>The CRPD sets out general requirements that States Parties must undertake to give full effect to its obligations. Of particular importance in this regard is <em>Article 4 - General obligations</em>, which mandates States Parties to undertake legislative, administrative and other measures in order to give effect to disability rights obligations. The provision lays out specific requirements for addressing domestic legal frameworks in order to achieve compliance with the CRPD. The requirements include:</p>
<ul>
<li>Adopting legislative, administrative and other measures for the implementation of the rights recognized in the CRPD;</li>
<li>Modifying or abolishing existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities, including through legislative measures; and</li>
<li>Developing measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise – in addition to Article 4, non-discrimination requires a legislative base under Article 5, Equality and non-discrimination, as well as other articles in the CRPD.</li>
</ul>
<p>Legislative drafting and reform exercises should be undertaken to ensure that the general and specific obligations in the CRPD are addressed and that the legislation is consistent with its general principles. Legislation may also be relevant for ensuring that implementation and monitoring measures are fully incorporated into the domestic legal framework.</p>
<p>Article 4 also requires States Parties to take additional measures, all of which may be addressed within a country's domestic legal framework or other mechanisms. The additional measures include:</p>
<ul>
<li>Taking into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;</li>
<li>Refraining from engagement in any act or practice that is inconsistent with the CRPD and ensuring that public authorities and institutions act in conformity with the CRPD;</li>
<li>Undertaking or promoting research and development of universally designed goods, services, equipment and facilities;</li>
<li>Undertaking or promoting research and development of, and promoting the availability and use of, new technologies;</li>
<li>Providing accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities; and</li>
<li>Promoting the training of professionals and staff working with persons with disabilities about the rights recognized in the CRPD.</li>
</ul>
<p></p>
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<h3>Participation in disability law reform</h3>
<p>The common refrain of persons with disabilities and their representative organizations throughout the negotiation of the CRPD at the UN was a simple message: "Nothing about us without us!" This was quite simply a call for due process, natural justice, the human right to be heard and to participate in decisions when interests of the affected group are at issue. The drafters of the CRPD responded and the text reflects, in many of its provisions, this key concern.</p>
<p>The CRPD requires States Parties to ensure that persons with disabilities and their representative organizations participate in law reform and policy development. Article 4(3) requires lawmakers to consult with persons with disabilities and their representative organizations and to undertake active steps that ensure their full and effective participation. The importance of participation is also reaffirmed in Article 3 which makes participation and inclusion a general principle of the CRPD. Further, Article 29 recognizes the right of persons with disabilities and their representative organizations to participate in political and public life.</p>
<p>Governments, national human rights institutions, and OPDs can undertake a variety of measures to enhance the participation of persons with disabilities in decision-making processes. The measures include:</p>
<ul>
<li>Ensuring that constitution drafting exercises include persons with disabilities;</li>
<li>Including OPDs in all law reform processes where their interests are affected;</li>
<li>Consulting with OPDs in the development of national human rights laws and action plans;</li>
<li>Ensuring that government ministries and agencies have disability focal points and in-house disability expertise;</li>
<li>Including OPDs in training of Parliamentary human rights committees; and</li>
<li>Consulting with OPDs in all national human rights treaty reporting processes.</li>
</ul>
<p></p>
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<h3>CRPD Summary: Articles 4(3) & 29</h3>
<p><strong>Article 4(3)</strong></p>
<ul>
<li>States Parties are required to closely consult and actively involve persons with disabilities through their representative organizations in decision-making processes;</li>
</ul>
<p><strong>Article 29</strong></p>
<ul>
<li>States Parties must guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others;</li>
<li>States Parties must actively promote measures for persons with disabilities to participate in the conduct of public affairs;</li>
<li>States Parties must take measures to ensure that persons with disabilities are able to participate in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;</li>
<li>States Parties must take measures to ensure that organizations of persons with disabilities are able to represent persons with disabilities at international, national, regional and local levels.</li>
</ul>
<p>The full and effective participation of persons with disabilities and their representative organizations in law reform efforts provides a greater understanding of the lived experience of disability. This understanding lends insights for effective law reform and policy development processes and how they can address the human rights obligations to which persons with disabilities are entitled. Moreover, such participation helps to empower persons with disabilities to be active agents in law reform efforts that directly impact their lives. Where members of a community are involved in law reform efforts, they are more likely to become drivers of social change and to promote effective implementation and enforcement of their legal rights.</p>
<p>Consultation with persons with disabilities and their representative organizations in decision-making empowers persons with disabilities to claim their human rights. Too often in decision-making processes the role of persons with disabilities has been devalued or ignored. In order to ensure full and effective participation, governments must consider when, how, and with whom such consultation should occur in the legislative process. For a good practice tip, see the Australian example.</p>
<p></p>
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<h3>Good practice case study</h3>
<p><strong>Good Practice Tip: Australian Disability Consultation</strong></p>
<p><strong>Purpose of Public Inquiry</strong>: The Productivity Commission, an Australian Government independent research and the advisory body was asked to hold a public inquiry into Australia's long-term disability care and support scheme.</p>
<p><strong>Launch of Public Inquiry</strong>: The Commission placed notices on an accessible Inquiry website, advertised in national and metropolitan newspapers and sent a circular to a wide range of individuals and organizations, inviting participation in the inquiry.</p>
<p><strong>Rounds of Information Consultations</strong>: The Commission held extensive rounds of informal consultations to elicit feedback on key issues and to identify ways to engage people with different disabilities.</p>
<p><strong>Release of documents for comment in accessible formats</strong>: </p>
<p>· Held online Auslan (Australian sign language) presentation to ensure access to the consultation process.</p>
<p>· A full issues paper was disseminated covering the issues in detail, indicating issues for input and invited formal public submissions.</p>
<p>· A short set of questions addressing the main issues for people wanting to provide a personal response based on their personal experiences.</p>
<p>· A short Auslan presentation of the key questions and a text version of the Auslan presentation was placed on the Commission website.</p>
<p>· An Easy English version of the key issues was also made available.</p>
<p>· A circular was disseminated to advise participants about the various methods for providing inputs.</p>
<p><strong>Initial Public Hearings:</strong> Hearing conducted over a period of 2 months. The draft report was released and distributed widely and made available on the inquiry website for downloading in whole or in part. All material was available on the Commission website, and printed copies were available to anyone on request.</p>
<p><strong>Public Hearings on Draft Report:</strong> The Commission held 23 days of public hearings, at which 237 presentations were made, and received over 1000 public submissions, of which more than 400 were received in response to the draft report.</p>
<p><strong>Final Report:</strong> The final report was made available in alternative formats:</p>
<p>· Executive Summary of the Proposed Scheme</p>
<p>· Executive Summary in Plain English and Easy English versions.</p>
<p>· All reports, transcripts and public submissions were accessible on the Commission website and will remain there indefinitely.</p>
<p></p>
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<p>The CRPD does not require any particular form of legislation in order to implement treaty obligations. There are various approaches that may be taken depending upon the domestic legal framework in question.</p>
<p> One option could include the enactment of a comprehensive non-discrimination law that includes protection from discrimination on the basis of disability in one or numerous contexts. Alternatively or in addition, a State might introduce an integral disability rights law covering not only protection from discrimination, but other areas such as accessibility standards, awareness-raising and actions related to habilitation and rehabilitation, amongst others. </p>
<p>Equally, a State might include disability rights across a whole range of justice, health, employment, education, cultural and other legislation to ensure that the rights of persons with disabilities are clearly mainstreamed across the entire legislative landscape. </p>
<p>A combination of the three approaches may also be utilized in order to effect full compliance across a domestic legal framework and to avoid inconsistencies not only between the CRPD, but also within domestic law.</p>
<p>While there are numerous approaches that may be employed to give effect to the CRPD in domestic law, there are essential elements that must be incorporated into all forms of domestic legislation.</p>
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<h4>Good Practice Tips</h4>
<p>A number of essential elements are required to be incorporated into implementing legislation, irrespective of the form it takes. The legislation should:</p>
<ul>
<li>Refer explicitly to the CRPD and to its acknowledgment that the concept of disability is still evolving, and to the notions of "discrimination on the ground of disability," "reasonable accommodation" and other important terms defined in the CRPD;</li>
<li>Prohibit discrimination on the ground of disability in all areas covered by the CRPD;</li>
<li>Identify duty-bearers, including different levels of government and non-State actors;</li>
<li>Confer rights on individuals and groups to (a) raise claims of discrimination on the ground of disability; (b)have those claims investigated; and (c) have access to appropriate remedies;</li>
<li>Provide for independent institutions to: (a) review allegations of systematic discrimination and individual complaints; (b) investigate and report on those allegations; and (c) seek systematic remedies and change through appropriate legal and other channels.</li>
</ul>
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<h3>Defining the purpose of disability legislation</h3>
<p>The purpose of the CRPD 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."</p>
<p>The CRPD's purpose should be taken into consideration in the development of domestic law and policy, as it underscores that persons with disabilities are entitled to all of the same human rights as other human beings and that these rights are not to be limited or restricted based on disability.</p>
<blockquote>
<p>CRPD Summary: Who is Covered?</p>
<p>Article 1(2):</p>
<p>Persons with disabilities include 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.</p>
</blockquote>
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<h3>Defining disability in legislation</h3>
<p>While there is no universally accepted definition of "persons with disabilities" or indeed of "disability," there is a common understanding of disability set out in the Convention on the Rights of Persons with Disabilities (UN CRPD). </p>
<p>The term "persons with disabilities" includes individuals "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."</p>
<p>The reference to "persons with disabilities" is not exhaustive and could refer to a broader group of people at the national level. Further, as recognized in the CRPD, "disability is an evolving concept" and "results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society." This means that legislation should be directed at ensuring barriers to full participation are identified and measures are taken for their removal. This approach to disability recognizes that disability is not a narrowly defined medical or charity issue and that inattention to a range of barriers in the environment – attitudinal, physical, communication, legal – will result in exclusion from development gains.</p>
<p>Disability is heterogeneous and persons with disabilities have different needs and requirements to experience barrier free access to their environment and the benefits of development. Law and policy should take care to differentiate the needs of individuals with disabilities and groups of persons with disabilities.</p>
<p>For example, a person with a visual disability may require Braille printed materials to access information, whereas another individual with a visual disability may require audio or electronic versions of the same information.</p>
<p>Children with disabilities have needs that will differ from adults with disabilities, underscoring the need to be mindful of differentiated group needs.</p>
<p>The CRPD clarifies in Article 1(2) the approach to disability known as the social model of disability. Legislation should reflect both the social perspective of disability, according to which the disability is understood as the result of the interaction between a person's impairment and the barriers in the surrounding environment, and a human rights approach which requires specific guarantees to ensure that the human rights of persons with disabilities are respected, protected and fulfilled. The following are important factors in defining disability in domestic legislation and are based on the understanding of disability in the CRPD:</p>
<ul>
<li>The reference to "persons with disabilities" is inclusive and may be broader in domestic law. For example, it could also include people with short-term or temporary impairments, such as a physical injury due to an accident or illness that might improve in a matter of months.</li>
<li>Impairments are referred to in Article 1 of the CRPD as "physical, mental, intellectual or sensory" and thus the CRPD recognizes the diversity of disability. It is therefore essential that legislation not restrict rights on account of an individual's type of impairment(s). Notably, the CRPD protects the human rights of all persons with disabilities, whatever their impairment. Laws that restrict rights on the basis of the type of impairment, for instance denying education to persons with intellectual disabilities, are in violation of the CRPD.</li>
</ul>
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<h3>Aligning domestic legislation with disability rights principles</h3>
<p>The general principles of the CRPD are set out in Article 3 and should be used to inform the development and/or reform of national legislation.</p>
<p>The principles are legally binding and are intended to apply across all articles of the CRPD and, accordingly, must be applied to any aspect of domestic legislation, whether in education, employment, recreation, health or other spheres. The principles include:</p>
<ul>
<li>Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;</li>
<li>Non-discrimination;</li>
<li>Full and effective participation and inclusion in society;</li>
<li>Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;</li>
<li>Equality of opportunity;</li>
<li>Accessibility;</li>
<li>Equality between men and women; and</li>
<li>Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.</li>
</ul>
<p></p>
</div>
</div>
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<h4>Specific Disability Rights Standards</h4>
<p>The CRPD sets forth a number of specific standards containing rights and obligations related to persons with disabilities. While the standards in the CRPD reflect existing human rights law as applied to the situation of persons with disabilities, the rationale for drafting a disability-specific treaty was due to the general neglect of persons with disabilities in the existing practice of human rights. Thus, all of the provisions in the CRPD connect to the general human rights law framework, but certainly represent a progressive development of that framework and provide more specific guidance to help States understand how human rights obligations connect to the situation of persons with disabilities.</p>
<p><em>Select each tab to learn more.</em></p>
<p></p>
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<p>Article 33 of the CRPD sets out national monitoring obligations and thus guides States Parties on the implementation of the CRPD at the national level. Three types of national level monitoring, implementation and coordination mechanisms are required by Article 33 and, in addition, the provision specifies a role for civil society:</p>
<p>1) The designation of one or more focal points within government for matters relating to the implementation of the Convention;</p>
<p>2) The establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels;</p>
<p>3) One or more independent national human rights institutions; and</p>
<p>4) Participation of civil society in national monitoring.</p>
<p>There are a variety of approaches that governments have adopted in satisfying their obligations to put in place governance structures to help support implementation of the CRPD. There is no "one size fits all" approach and governance structures must adhere to the particular structures in place in a given country context. </p>
<p>Guidance and good practices are emerging. Regarding governmental mechanisms to facilitate implementation of disability rights issues, Article 33(1) clarifies that focal points are 'within government' and should be composed of public officials. The UN Office of the High Commissioner for Human Rights (OHCHR) takes the position that the preferred administrative home for a focal point is at the most senior level of government. This is also supported by the CRPD Committee which has raised concerns in cases where they have deemed the Article 33(1) institution is 'not of a sufficiently high institutional rank to effectively carry out its duties.'</p>
<p>The CRPD permits States to designate one or more focal points within government. The OHCHR guidance document emphasizes the development of a two-pronged approach, with a central focal point and focal points across levels of government and within departments. Where there are multiple focal points, the UN Special Rapporteur on the Rights of Persons with Disabilities has reiterated the need to ensure 'a mechanism to coordinate and harmonize the initiatives carried out at the federal, provincial and territorial levels by these different focal points.'</p>
<p>The examples provided in the chart below are those of governments party to the CRPD that have advanced national level governance institutions to provide governmental coordination and oversight of disability inclusion and frameworks for independent monitoring and consultations with civil society, especially organizations of persons with disabilities.</p>
<p> </p>
<h5>Chart 1: Chart Summarizing Approaches to Disability-Focused National Level Coordination & Implementation Oversight</h5>
<table width="633">
<tbody>
<tr>
<td>
<p><strong>Country</strong></p>
</td>
<td>
<p><strong>Focal points </strong></p>
</td>
<td>
<p><strong>Coordination mechanism </strong></p>
</td>
<td>
<p><strong>Independent mechanisms </strong></p>
</td>
<td width="54">
<p><strong>Umbrella organization </strong></p>
</td>
</tr>
<tr>
<td>
<p><strong>Austria</strong></p>
</td>
<td>
<p>Federal Ministry of Labour, Social</p>
<p>Affairs and Consumer Protection (BMASK)</p>
<p>Assisted by the Federal Disability</p>
<p>Advisory Board (BBB)</p>
</td>
<td>
<p>Federal Ministry of Labour, Social</p>
<p>Affairs and Consumer Protection (BMASK)</p>
<p>Assisted by the Federal Disability</p>
<p>Advisory Board (BBB)</p>
</td>
<td>
<p>Independent Monitoring Committee</p>
</td>
<td width="54">
<p>Austrian National Council of</p>
<p>Disabled People (OAR)</p>
</td>
</tr>
<tr>
<td>
<p><strong>Belgium</strong></p>
</td>
<td>
<p>Directorate-General for Strategy and Research of the Ministry of Social Affairs</p>
<p>+ 7 focal points at the regional level</p>
</td>
<td>
<p>Directorate-General for Strategy and Research of the Ministry of Social Affairs</p>
</td>
<td>
<p>Centre for Equal Opportunities and Opposition to Racism</p>
</td>
<td width="54">
<p>Belgium Disability Forum (BDF)</p>
</td>
</tr>
<tr>
<td>
<p><strong>Denmark</strong></p>
</td>
<td>
<p>Ministry of Social Affairs</p>
</td>
<td>
<p>Inter-ministerial Committee of civil servants on disability matters </p>
</td>
<td>
<p>Danish Institute for Human</p>
<p>Rights (DIHR) </p>
</td>
<td width="54">
<p>Disabled Peoples</p>
<p>Organizations Denmark (DH)</p>
</td>
</tr>
<tr>
<td>
<p><strong>Germany</strong></p>
</td>
<td>
<p>Federal Ministry for Labour and Social Affairs (BMAS)</p>
<p>+ 16 focal points at the Länder level</p>
</td>
<td>
<p>Federal Government Commissioner for Matters relating to Persons with Disabilities </p>
<p>Assisted by the Inclusion</p>
<p>Committee </p>
</td>
<td>
<p>German Institute for Human</p>
<p>Rights (GIHR)</p>
</td>
<td width="54">
<p>German Disability Council</p>
</td>
</tr>
<tr>
<td>
<p><strong>Italy</strong></p>
</td>
<td>
<p>Directorate-General for inclusion,</p>
<p>Social Rights and Social</p>
<p>Responsibility of the Ministry of</p>
<p>Labour and Social Policies</p>
</td>
<td>
<p>Directorate-General for inclusion,</p>
<p>Social Rights and Social</p>
<p>Responsibility of the Ministry of</p>
<p>Labour and Social Policies</p>
</td>
<td>
<p>National Observatory on the</p>
<p>Situation of Persons with</p>
<p>Disabilities</p>
</td>
<td width="54">
<p>Consiglio Nazionale sulla</p>
<p>Disabilità (CND)</p>
</td>
</tr>
<tr>
<td>
<p><strong>New Zealand</strong></p>
</td>
<td>
<p> Office for Disability Issues</p>
</td>
<td>
<p> Ministerial Committee on Disability Issues</p>
</td>
<td>
<p>Independence in promoting, protecting and monitoring implementation will be achieved through the action of:</p>
<p>the Human Rights Commission</p>
<p>the Office of the Ombudsman</p>
<p>the OPD Coalition, a grouping of disabled people's organisations monitoring rights of disabled people</p>
</td>
<td width="54">
<p>CCMG</p>
</td>
</tr>
<tr>
<td>
<p><strong>Spain</strong></p>
</td>
<td>
<p>Directorate-General for the Coordination of Sectoral Policies on Disability of the Ministry of Health, Social Policy and Equality</p>
</td>
<td>
<p>National Disability Council </p>
</td>
<td>
<p>Spanish Committee of</p>
<p>Representatives of People with</p>
<p>Disabilities (CERMI)</p>
</td>
<td width="54">
<p>Spanish Committee of</p>
<p>Representatives of People with</p>
<p>Disabilities (CERMI)</p>
</td>
</tr>
<tr>
<td>
<p><strong>United Kingdom</strong></p>
</td>
<td>
<p>Office for Disability Issues (ODI)</p>
<p>+ focal points in Northern Ireland,</p>
<p>Wales and Scotland</p>
</td>
<td>
<p>Office for Disability Issues (ODI)</p>
</td>
<td>
<p>Equality and Human Rights Commission (EHRC)</p>
<p>Scottish Human Rights Commission (SHRC)</p>
<p>Northern Ireland Human Rights</p>
<p>Commission (NIHRC)</p>
<p>Equality Commission for</p>
<p>Northern Ireland (ECNI)</p>
</td>
<td width="54">
<p>United Kingdom Disabled</p>
<p>People's Council</p>
</td>
</tr>
</tbody>
</table>
<p>While each country must consider what governance structure will work best to advance disability inclusion, coordination across government and consultation with civil society organizations of persons with disabilities, there are some general guidelines that should inform the selection of disability-related institutional arrangements. </p>
<p>These include:</p>
<p>(1) the designation of a disability focal point or points in government;</p>
<p>(2) the designation of a coordination mechanism to consider disability inclusion across ministries and government agencies;</p>
<p>(3) the designation of an independent monitoring mechanism; and</p>
<p>(4) measures to ensure that civil society organizations of persons with disabilities have meaningful consultation roles. </p>
<p>These core roles are summarized in the chart below.</p>
<h5>Chart 2: Chart Showing General Criteria for Disability-Focused Governance</h5>
<table>
<thead>
<tr>
<td width="214">
<p><strong>Government</strong></p>
</td>
<td width="214">
<p><strong>Monitoring mechanism</strong></p>
</td>
<td width="214">
<p><strong>Organizations of persons </strong><strong>with disabilities</strong></p>
</td>
</tr>
</thead>
<tbody>
<tr>
<td width="214">
<p>Disability focal point at the highest possible level in the administration</p>
<p>Disability focal points in ministries</p>
<p>Coordination mechanism among ministries</p>
</td>
<td width="214">
<p>National Human Rights Institution</p>
<p>Other independent monitoring mechanism compliant with the <a href="https://www.ohchr.org/en/professionalinterest/pages/statusofnationalinstitutions.aspx">Paris</a><a href="https://www.ohchr.org/en/professionalinterest/pages/statusofnationalinstitutions.aspx"> Principles</a></p>
</td>
<td width="214">
<p>Formally granted consultative status vis-à- vis the government focal point and in monitoring mechanism</p>
<p>Allocation of funds to sustain their independent functioning</p>
</td>
</tr>
<tr>
<td colspan="3" width="642">
<p><strong>The Government disability focal point</strong> is the central reference on the issue within the government.</p>
<p>Ministry disability focal points (officials and/or departments with expertise on disability in the area of competence of the ministry) should be appointed.</p>
<p><strong>Federal countries</strong> should appoint focal points by State/Province. Local government focal points can also bring value and coordination at the local level.</p>
<p><strong>The coordination mechanism</strong> aims at facilitating coordination and coherence of policies among ministries, departments, agencies and federal governments, to ensure that persons with disabilities are included and enjoy the same rights, regardless of the level of government.</p>
<p>Source: United Nations, Human Rights Council, Thematic study by the Office of the United Nations High Commissioner for Human Rights on the structure and role of national mechanisms for the implementation and monitoring of the Convention on the Rights of Persons with Disabilities, 22 December 2009, <a href="https://undocs.org/en/A/HRC/13/29">A/HRC/13/29</a></p>
</td>
</tr>
</tbody>
</table>
<p></p>
</div>
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<p>Disability is a cross-cutting issue and numerous laws affect persons with disabilities. The following is a rough typology of disability-related laws:</p>
<ul>
<li>Laws that relate specifically to persons with disabilities – for example, an integral or comprehensive national law on disability or an education law that specifically applies to persons with disabilities;</li>
<li>Laws that relate to a range of people but include specific references to persons with disabilities – for example, anti-discrimination law, social security law, guardianship laws, criminal codes, electoral codes; and</li>
<li>Laws that do not specifically mention persons with disabilities, but which are relevant to persons with disabilities – for example, construction laws, family laws, intellectual property laws, contract laws. (For example, family law is important given that in many instances, persons with disabilities have been subject to discriminatory laws relating to marriage and parenting children. Similarly, contract law is highly relevant for persons with disabilities who may be denied rights to own a bank account based on discriminatory exclusions in contract or banking law or in financial practices (e.g., denial of a bank account to a blind person).)</li>
</ul>
<p>To assess compliance with CRPD obligations, a comprehensive scoping exercise must review numerous statutes given the cross-cutting nature of disability and the relevance of many types of legislation for the rights of persons with disabilities.</p>
<h5>Areas of law for review in disability rights scoping exercises</h5>
<table>
<tbody>
<tr></tr>
<tr>
<td width="319">
<ul>
<li>Constitution</li>
<li>Anti-discrimination legislation (general and disability-specific)</li>
<li>Comprehensive disability rights legislation</li>
<li>Human rights acts</li>
<li>Social assistance, social services and social protection</li>
<li>Laws relating to persons with specific disabilities</li>
<li>Child protection laws</li>
<li>Juvenile justice laws</li>
<li>Electoral code</li>
<li>Family law</li>
</ul>
</td>
<td width="319">
<ul>
<li>Guardianship</li>
<li>Criminal</li>
<li>Labour</li>
<li>Occupational health and safety</li>
<li>Vocational training</li>
<li>Health insurance</li>
<li>Mental health</li>
<li>Education</li>
<li>Construction</li>
<li>Social housing</li>
<li>Taxation</li>
<li>Immigration</li>
<li>Civil society and non-profit organizations</li>
</ul>
</td>
</tr>
</tbody>
</table>
<p></p>
</div>
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<h3>Prioritizing areas for legislative reform</h3>
<p>The CRPD specifies a number of areas of particular concern requiring legislative guarantees or protection. While the need for law reform or development will vary in the case of each State Party to the CRPD and may also take on regional variations, there are some key areas where many countries are finding the need for legislative action. Some of these are addressed in this section, although it should be recognized that this is not an exhaustive list and there are many additional areas where legislative action may be in order to give effect to CRPD obligations. </p>
<h4>Equality and non-discrimination</h4>
<p>Equality is the heart of the Convention. The principle of equality is promoted through specific measures to address inherent disadvantages and is protected through the legal standard of non-discrimination. The Convention:</p>
<ul>
<li>Recognizes 'non-discrimination' as a core principle in Article 3;</li>
<li>Requires the protection of all persons from and equal and effective legal protection against discrimination on all grounds, including the denial of reasonable accommodation, in all fields of public and private life, in Article 5;</li>
<li>Recognizes the need for specific measures to promote equality for persons with disabilities;</li>
<li>Defines discrimination on the basis of disability in Article 2.</li>
</ul>
<p>The prohibition against disability discrimination is cross-cutting and applies across the entirety of the Convention. Thus, each article concerns both protection from discrimination and the promotion of conditions required to achieve equality for persons with disabilities.</p>
<p>Equality and non-discrimination incorporates two interrelated elements. Firstly, it requires the protection of equality through the prohibition of discrimination in law and in fact. This requires legislation to prohibit both direct and indirect discrimination. In other words, acts of discrimination that have the purpose or effect of denying persons with disabilities the exercise of their human rights.</p>
<p>This includes denying a reasonable accommodation to persons with disabilities where it is needed. Secondly, it requires the promotion of equality through measures aimed at addressing inherent disadvantages and discrimination within society.</p>
<p>This will include specific measures to support persons with disabilities to achieve equality and measures that address the conditions within society that can lead to discrimination. For example, negative attitudes in society about persons with disabilities – persons with disabilities cannot work or learn – can be discriminatory and prevent persons with disabilities from accessing employment or education. </p>
<p>Protecting against discrimination means more than confronting these negative attitudes when they emerge; it requires taking active steps to change these negative attitudes, for example, by promoting the voice and image of persons with disabilities as students, employees, citizens, athletes, tourists and persons making meaningful contributions in their communities.</p>
<h4>Elements of equality and non-discrimination</h4>
<ul>
<li><em> Equality and non-discrimination are central to the enjoyment of all rights;</em></li>
<li><em> Effective access to human rights is central to the enjoyment of equality and non-discrimination;</em></li>
<li><em> Equality means that we all have the same inherent worth, regardless of our differences. There are different approaches to equality:</em></li>
<li><em>Formal Equality</em></li>
<li><em>Equality of opportunity</em></li>
<li><em>Substantive or "de facto" equality</em></li>
<li><em> Non-discrimination concerns avoiding and correcting unfair treatment on the basis of disability, regardless of whether the unfair treatment is blatant or subtle;</em></li>
<li><em> Under the CRPD:</em></li>
<li><em>Equality and non-discrimination are two of the most important principles;</em></li>
<li><em>States cannot discriminate on the basis of disability, and they must act to stop non-State actors discriminating on the basis of disability;</em></li>
<li><em>Failure to provide reasonable accommodation is a form of discrimination on the basis of disability;</em></li>
<li><em>States must take positive action to promote and ensure de facto equality of people with disabilities.</em></li>
</ul>
<p>In many jurisdictions, persons with disabilities experience direct and indirect discrimination:</p>
<ul>
<li>Persons with psychosocial or intellectual disabilities experience discrimination when they are excluded from participating in political life on the basis that they are "incompetent."</li>
<li>Children with disabilities face discrimination when they are denied education on the basis that they are "not educable."</li>
<li>Women with disabilities face discrimination when they are denied access to sexual and reproductive health services on the basis that they are "asexual" and thus do not need such services.</li>
<li>Persons with sensory disabilities experience discrimination when they are not provided with sign language interpretation or other accessible means of communication when trying to access justice mechanisms.</li>
</ul>
<h4>Relevant legislation</h4>
<ul>
<li>Constitution</li>
<li>Anti-discrimination legislation (general and disability-specific)</li>
<li>Comprehensive disability rights legislation</li>
<li>Human rights acts</li>
<li>Gender equality law</li>
<li>Issues to consider in reviewing legislation</li>
</ul>
<p></p>
</div>
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<h5>Does the law prohibit both de jure and de facto discrimination?</h5>
<p>De jure discrimination occurs in legislation. De Jure or 'in law' discrimination is where the law makes discriminatory provisions such as excluding persons with disabilities from voting on the basis of disability. De facto discrimination occurs in practice. De Facto or 'in practice' discrimination is where, for example, persons with disabilities are not provided with information about recreation because it is assumed that they cannot participation in recreational activities or where job interviews are not held in an accessible location because it is not anticipated that a wheelchair user might be qualified and interested in a job. Legislation should be clear in prohibiting discrimination not only in laws but also in practice.</p>
<h5>Does the law prohibit direct and indirect discrimination?</h5>
<p>Legislation should prohibit both 'direct' and 'indirect' discrimination. Direct discrimination occurs when the express purpose of an act is to discriminate such as treating someone less favorably on the basis of their personal characteristics. For example, excluding a person who uses a wheelchair from traveling on an airplane because "they do not have a doctor with them" is direct discrimination. Indirect discrimination occurs when a measure is applied equally but has the effect of discriminating against some on the basis of their personal characteristics. With indirect discrimination, discrimination occurs, even if the measure does not appear to be discriminatory. For example, advertising a job, but only holding interviews on an upper floor of a building with no elevators would indirectly discriminate against a person who uses a wheelchair or who has a mobility impairment. It is important that legislation prohibits both forms of discrimination.</p>
<h5>Does the law prohibit discrimination by association?</h5>
<p>Discrimination by association occurs when someone without a disability suffers discrimination because they have a connection or association with a person with a disability: for example, the parent of a child with a disability. If a mother of a child with a disability loses her job because she has to work different hours to accommodate her child's needs, this could amount to discrimination. Legislation may expressly cover associates as a protected class (e.g. Hong Kong) or it may be implied through the legislation as it covers detrimental treatment on the basis of disability.</p>
<h5>Does the law protect against harassment?</h5>
<p>Harassment occurs when an individual is subject to comments, ridicule, or any other demeaning conduct on the basis of disability. Legislation should protect against harassment. Article 27(a) refers expressly to protection against harassment related to work and employment. Legislation could go further and prohibit harassment in any situation, for example, harassment against children with disabilities at school. </p>
<h5>Does the law prohibit instruction and incitement to discriminate?</h5>
<p>Instruction and incitement to discriminate on the basis of disability occurs when a person or institution demands or encourages another person to treat an individual less favorably than another person in a similar situation because that person has a disability. While the CRPD does not require the prohibition of instruction or incitement to discriminate, but legislators might consider including this in legislation to ensure comprehensive protection.</p>
<h5>Does the law recognize that discrimination might occur on multiple bases?</h5>
<p>Discrimination occurs in many situations and an individual might experience discrimination not only on the basis of disability but also on the basis of gender, sexual identity, ethnicity, or age. Article 6 recognizes that women and girls with disabilities are subject to multiple discrimination and requires States to take measures to ensure that women and girls with disabilities enjoy their human rights. Legislation should protect against multiple forms of discrimination: for example, through a comprehensive non-discrimination law, or through ensuring that an integral law on disabilities protects against discrimination on any other basis, not only disability.</p>
<h5>Does the law include specific measures and other positive measures to promote equality for persons with disabilities?</h5>
<p>Non-discrimination does not always prohibit States from treating people differently. States are permitted to introduce measures that permit different treatment in order to achieve equality. In other words, protection against discrimination does not require the same treatment for persons with and without disabilities in all situations. The CRPD permits the introduction of specific measures to achieve equality for persons with disabilities. For example, in the area of work and employment, States may include 'affirmative action programmes, incentives and other measures' to promote the employment of persons with disabilities in the private sector.</p>
<p>The Convention refers to 'specific measures', these measures can address specific impairment requirements that are needed to achieve equality (e.g., the provision of in-home care services for persons who require assistance in daily living, sign interpretation so that a Deaf person can access medical appointments or free community mental health services for a person with a psycho-social disability) these measures as they relate to an individual's impairment would not be temporary in nature. Whereas specific measures to address systemic disadvantage and historical discrimination (e.g., quotas in public service employment, higher education scholarships for students with disabilities, or subsidies for parallel transport schemes) such measures could be removed once equality has been achieved.</p>
<h5>Does the law provide access to remedies for victims of discrimination?</h5>
<p>Any individual affected by discrimination on the basis of disability should have access to appropriate grievance mechanisms, such as courts, national human rights institutions, and anti-discrimination commissions. Such mechanisms should ensure appropriate remedies to the individual, such as compensation, policy reform, restoration and guarantees of non-repetition. It is also important that reasonable accommodations be provided to ensure equal access to justice for persons with disabilities.</p>
<h5>Is the burden of proof shifted?</h5>
<p>Generally, a person claiming before a tribunal to have been wronged by someone has to produce evidence to support the claim. With discrimination, such evidence may be difficult to produce, such as statistics to prove differential treatment indirect discrimination or access to government policy. These types of evidentiary difficulties can have a negative effect on protecting human rights. Furthermore, in disability discrimination cases, the individual complainant can often be making a claim against a large well resourced organization. In discrimination cases, the requirement in many jurisdictions (for example, UK, New Zealand, South Africa, Australia and the US) is that the burden of proof is shared. The claimant is required to establish a prima facie case of discrimination by providing facts from which a conclusion of discrimination can be drawn. It is then up to the respondent to prove that the discrimination was not unlawful.</p>
<h6>Case study: Shifting the burden of proof in disability discrimination cases</h6>
<p><strong>Canada:</strong> The Supreme Court of Canada has confirmed the shifting of the burden of proof as a matter of course in discrimination cases, regardless of the field of discrimination. Once a prima facie case is established, "the onus shifts to the defendant to prove on a balance of probabilities that the discriminatory standard… has a bona fide and reasonable justification". See British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) [1999] 3 S.C.R. 868.</p>
<p><strong>United States:</strong> The U.S. Supreme Court has held that, once an applicant has established 'an arguable claim' (or prima facie case), the burden of proof then shifts to the defendant to satisfy the court of the legitimacy and justification of the action impugned. See Griggs v Duke Power Co. 401 U.S. 424, 427 (1971); McDonnell Douglas Corp. v Green, 411 U.S. 792, 802 (1973) and St. Mary's Honor Centre v Hicks, 509 U.S. 502 (1993) at 507.</p>
<h5>Does the Constitution and other legislation on equality and non-discrimination expressly include "disability" as a protected category?</h5>
<p>Constitutional equality provisions and non-discrimination legislation should protect unequivocally persons with disabilities from discrimination. Many national constitutions include a clause protecting against discrimination. These clauses will generally protect against discrimination on several bases, such as sex, race, nationality, ethnicity, religion, language, and political views. Increasingly, constitutional non-discrimination clauses identify disability as a specifically protected ground. In other instances, the list of protected categories is left open, protecting against discrimination 'on any other basis'. Ideally, 'disability' should be listed explicitly as a protected category. If disability is not explicitly listed, then persons with disabilities should still be protected by virtue of the reference to an open-ended category such as 'social group' or protection on 'any other basis.' The express inclusion of disability is an important part of recognizing and promoting the human rights of persons with disabilities within the general community.</p>
<h5>Does the law define discrimination?</h5>
<p>The CRPD defines "discrimination on the basis of disability" in Article 2. It is essential that legislation provide a definition of discrimination: either through a general definition of 'discrimination' or through a specific definition of 'discrimination on the basis of disability'. The CRPD defines discrimination as follows:</p>
<p>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. It includes all forms of discrimination, including denial of reasonable accommodation.</p>
<h5>Does the law recognize that denial of reasonable accommodation amounts to discrimination?</h5>
<p>The Convention provides that the failure to provide reasonable accommodation constitutes discrimination. The duty to provide reasonable accommodation requires duty-bearers (such as employers, educators, providers of goods and services, and public authorities) to take reasonable steps to adjust their policies, practices and facilities or premises in order to remove disabling barriers. Legislation must recognize that the denial of reasonable accommodation amounts to discrimination. In other words, there is an express duty to provide reasonable accommodation in order to realize equality. Article 2 defines 'reasonable accommodation' as:</p>
<p><em>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.</em></p>
<h6>Case study: Reasonable accommodation under domestic disability laws</h6>
<p>The UK Disability Discrimination Act (1995) requires that 'reasonable adjustments' be made in respect of the needs of disabled people. See the cases of Jones v Post Office [2001] IRLR 384; Clark v TDG Limited (t/a Novacold) [1999] IRLR 318; and Morse v Wiltshire County Council [1998] IRLR 352.</p>
<p>Subsection 6 (3) specifies examples of steps an employer may have to take to comply with this duty:</p>
<ul>
<li>Making adjustments to premises;</li>
<li>Allocating some of the disabled person's duties to another person;</li>
<li>Transferring him/her to fill an existing vacancy;</li>
<li>Altering his/her work hours;</li>
<li>Assigning him/her to a different place of work;</li>
<li>Allowing him/her to be absent during working hours for rehabilitation, assessment or treatment;</li>
<li>Giving him/her, or arranging for him/her to be given, training;</li>
<li>Acquiring or modifying equipment;</li>
<li>Modifying instructions or reference manuals;</li>
<li>Modifying procedures for testing or assessment;</li>
<li>Providing a reader or interpreter;</li>
<li>Providing supervision.</li>
</ul>
<p>Under <strong>Canadian law</strong>, the 'duty to accommodate' refers to an employer's obligation to take appropriate steps to eliminate discrimination against employees, prospective employees or clients resulting from a rule, practice, or barrier that has or can have an adverse impact on individuals. The Canadian Human Rights Act (1976) provides that accommodation is required, except in cases of undue hardship, across all of the grounds of discrimination.</p>
<p><strong>The Americans with Disabilities Act</strong> of 1990 (42 USC §12112) prohibits an employer from discriminating against "an individual with a disability" who with "reasonable accommodation" can perform a job's essential functions (see Section 12112); unless the employer "can demonstrate 113 that the accommodation would impose an undue hardship on the operation of [its] business."</p>
<p>As used in subsection (a) of this section, the term "discriminate" includes:</p>
<ul>
<li>(5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless suchcovered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or</li>
<li>(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant…</li>
</ul>
<p>Examples of cases:</p>
<ul>
<li>Changing recruitment and selection procedures. For example, providing a sign language interpreter for a deaf person, or ensuring the medical assessor is familiar with a person's particular disability and how it relates to the job requirements.</li>
<li>Modifying work premises. For example, making ramps, modifying toilets, providing flashing lights to alert people with a hearing loss.</li>
<li>Changes to job design, work schedules or other work practices. For example, swapping some duties among staff, regular meal breaks for a person with diabetes.</li>
<li>Modifying equipment. For example, lowering a workbench or providing an enlarged computer screen.</li>
<li>Providing training or other assistance. For example, induction programs for staff with a disability and co-workers, mentor or support person for a person with an intellectual disability, including staff with a disability in all mainstream training.</li>
</ul>
<p>Source: OHCHR, DESA, IPU, 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 60-62 (2009), <a href="http://www.ipu.org/PDF/publications/disabilities-e.pdf">http://www.ipu.org/PDF/publications/disabilities-e.pdf</a></p>
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<h3>Legal Recognition of Sign Language</h3>
<p>The CRPD imposes obligations on States parties to recognize and promote the use of sign language -- which is likely to require legislative measures. Article 30 recognizes the right of persons with disabilities to equal recognition and support of their cultural and linguistic identity and reinforces other provisions in the CRPD that support full participation in society on one's own terms.</p>
<p>A core component of cultural and linguistic identity for persons who are deaf and deaf-blind is the right to use sign language. These provisions are further supported by the requirements of the CRPD that persons with disabilities be accommodated and that failure to do so constitutes disability discrimination (Article 5). It also connects to the accessibility measures States parties must undertake to ensure inclusion and rights protection (Article 9).</p>
<p>Finally, Article 24 (Education), makes explicit reference to sign language requiring States parties to undertake measures to facilitate "the learning of sign language and the promotion of the linguistic identity of the deaf community" as a component of the right to education.</p>
<p>Significantly, Article 24 also requires States parties to take measures to ensure that there are qualified teachers of sign language, including individuals with disabilities, and to train professionals and staff who work at all levels of education.</p>
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<h3>Ensuring access to justice</h3>
<p>Legislation should ensure that persons with disabilities who have experienced human rights violations are able to obtain effective remedies. </p>
<p>Remedies might include:</p>
<ul>
<li>damages (e.g., compensatory or punitive)</li>
<li>an order of reinstatement</li>
<li>an order to stop discriminatory acts and prevent them in the future</li>
<li>a requirement to provide reasonable accommodation of the individual's rights</li>
<li>an apology, an order to take wide-ranging remedial measures (including positive action)</li>
<li>or other measures.</li>
</ul>
<p>In drafting disability discrimination legislation relating to complaints procedures and remedies, lawmakers should articulate the burden of proof requirements. Under the discrimination law of a number of countries, the burden of proof initially lies with the complainant to present facts that substantiate a discrimination claim.</p>
<p>Once the complaint meets the required threshold, the burden shifts to the defendant to demonstrate that the treatment was not based on a prohibited ground of discrimination or, if it was, that it fell within a permitted exception to the prohibition of discrimination.</p>
<p>Given the difficulties that complainants in discrimination cases often face in adducing direct evidence of discrimination, this is an important dimension of procedural law that should be addressed.</p>
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<h3>Legal recognition before the law</h3>
<p>The CRPD reaffirms the right of persons with disabilities to recognition as persons before the law under Article 12. It further recognizes that persons with disabilities must enjoy legal capacity on the basis of equality with others and outlines requirements to undertake measures to support the exercise of that capacity together with the need for safeguards to guard against abuse.</p>
<p>Denial of legal capacity has led to egregious violations of the rights of persons with disabilities all over the world. Consequently, it should receive particular attention as a matter of priority in any process of law reform. Legislative scoping exercises should identify whether any formal limitations on the capacity of persons with disabilities under the law (e.g., in electoral codes, civil or criminal procedure laws, health care law) and whether the provisions of the law and practice are consistent with the requirements of the CRPD. This is an area where the vast majority of States, if not all States Parties to the CRPD, will need to undertake legislative reform in order to bring domestic law into alignment with the CRPD.</p>
<p>Resource United Nations Office of the High Commissioner for Human Rights and Inter-Parliamentary Union. From Exclusion to Equality: Realizing the rights of persons with disabilities, Geneva, 2007, http://www.ipu.org/PDF/publications/disabilities-e.pdf</p>
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<p></p>
<p>Well done, you have completed this module.</p>
<p>You should be now familiar with and work towards the following learning objectives:</p>
<ul>
<li>Review approaches to harmonizing domestic laws with international norms and standards on disability, in particular the Convention on the Rights of Persons with Disabilities (CRPD).</li>
<li>Outline the important role of legislation in implementing the Convention on the Rights of Persons with Disabilities (CRPD);</li>
<li>Review the obligations of State parties under the CRPD in relation to law reform;</li>
<li>Set out key considerations in legislating for disability rights and inclusion;</li>
<li>Explain strategies to ensure that legislative reform and development are consistent with the CRPD;</li>
<li>Highlight the participatory nature of law reform required by the CRPD; and</li>
<li>List key resources for additional reference.</li>
</ul>
<p><em>Let's check what you have learned so far.</em></p>
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