DISABILITY

The Preamble to the UN Convention on the Rights of Persons with Disabilities (UN CRPD) reads:

‘Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, Indigenous or social origin, property, birth, age or other status.’¹²³

All of the key minority groups are referenced in this provision, including national, ethnic, religious and linguistic groups, as well as Indigenous peoples. According to Article 5(2) of the UN CRPD, ‘States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.’ The Committee on the Rights of Persons with Disabilities (CRPD) has issued General Comment 6 on Equality and Non-discrimination, which recognizes that ‘[p]rotection against “discrimination on all grounds” means that all possible grounds of discrimination and their intersections must be taken into account.’¹²⁴ It indicates that such grounds may include ‘Indigenous or social origin’ as well as ‘belonging to a national minority’.¹²⁵ Therefore, there can be little ambiguity that the text of the UN CRPD protects minorities and Indigenous peoples with disabilities. Nevertheless, as Minority Rights Group International concluded in a submission to the CRPD, ‘[t]he issues faced by Indigenous people with disabilities remain unaddressed in policies relating to disability and those related to Indigenous peoples.’¹²⁶ Likewise, ‘for people with disabilities belonging to ethnic and religious minority communities around the world, similar issues resulting from structural, systemic and intersectional discrimination remain unaddressed’ by States Parties.¹²⁷

The CRPD has raised the issue of intersectional discrimination in State reports, requiring information from States Parties where this has not been provided. Thus, in relation to Israel, the Committee expressed concern about the ‘limited information provided on persons with disabilities facing multiple and intersectional discrimination, including … Palestinians with disabilities, Palestinian refugees with disabilities, persons with disabilities in Bedouin or herder communities’.¹²⁸ It criticized the incomplete mainstreaming of the rights of persons with disabilities in Kazakhstan, given the limited information on policies to address ‘persons with disabilities belonging to ethnic minorities, including Uzbeks, Uighurs, Koreans, Tatars and Azerbaijanis’.¹²⁹ It deplored in relation to Peru the ‘lack of information, including disaggregated data, on the situation of…Indigenous persons with disabilities and persons of African descent with disabilities’.¹³⁰

CRPD has required greater focus from States Parties on particularly vulnerable minority groups in emergency situations. Thus, in relation to the Rohingya in Bangladesh, it stated: ‘Increase the level of humanitarian protection for persons with disabilities, especially women and girls with disabilities and those belonging to ethnic and religious minority groups, including Rohingya refugees, and include them in all evacuation, rescue, shelter, relief and post-disaster rehabilitation plans.’¹³¹ It highlighted the impact of wider rights violations on minority persons with disabilities, expressing concern to China about ‘reports of Uighur and other Muslim minority persons with disabilities who are detained in vocational education and training centres without support to ensure their safety and to meet all their disability-related needs.’¹³² The Committee then called for ‘prompt action to release Uighur and other Muslim minority persons with disabilities deprived of their liberty’.¹³³

The CRPD has to date over 40 decisions on the merits under its Optional Protocol. Importantly, issues of minority or Indigenous rights have arisen in individual communications as intersectional aspects of claims. In Manuway Doolan v Australia (2019),¹³⁴ the claimant was an Aboriginal national of Australia with intellectual and psychosocial impairments who was incarcerated in a high-security section of Alice Springs Correctional Centre following a psychotic episode. The communication alleged that the author’s right to liberty and security under Article 14 UN CRPD had been violated because the deprivation of liberty was disproportionate to the justifying factor, and ‘was also based on his Aboriginal origins’.¹³⁵ The claim highlighted: ‘Aboriginal persons with disabilities are significantly more likely to be subject to custodial supervision orders because they are disproportionately exposed to poverty and homelessness, and have few or no stable and supportive family and community ties’.¹³⁶

Australia argued for the inadmissibility ratione materiae of the author’s claims in relation to his Aboriginal status, on the grounds that Article 5 covers only discrimination on the basis of disability. The Committee disagreed, recalling that ‘all possible grounds of discrimination and their intersections must be taken into account, including Indigenous origin’, citing in support its General Comment 6.¹³⁷ Nonetheless, it also noted that the author had not provided arguments to explain the extent to which his Aboriginal origin had any specific impact on the violations of his rights under the Convention.¹³⁸ As a result, it found Australia in breach, but on the basis that confining the author to live in a special institution on account of his disability alone amounted to a violation of Article 5.

The decision seems quite strict in relation to its Indigenous aspect. Australia appeared to acknowledge in the communication that ‘Indigenous persons were more likely than non-Indigenous persons to have a custodial - rather than a non-custodial - supervision order imposed on them’, arguing that even if this was the case, these were only imposed if there was no other practicable alternative.¹³⁹ As context, reports clearly show that ‘Indigenous Australians are among the most incarcerated population groups worldwide.’¹⁴⁰Furthermore, ‘Indigenous Australians with a known mental health diagnosis are shown to have earlier and more frequent police contact, and more frequent stays in custody compared to non-Indigenous Australians with a mental health diagnosis’.¹⁴¹ In other words, it appears difficult to disaggregate the Aboriginal status of the claimant in Doolan from his treatment, although the Committee did just that. Nevertheless, it did offer an important affirmation that Indigenous status can affect Convention rights and may form part of litigation in individual communications. Note that very similar facts arose in another communication before CRPD, Christopher Leo v Australia (2019),¹⁴² again involving incarceration of an Aboriginal claimant, with the same outcome in that the Committee considered that the applicant had failed to explain the extent to which his Aboriginal origin impacted on the violations of his rights under the Convention.¹⁴³ This appears to highlight a possible pattern that the Committee may wish to address more closely in any future litigation.

There have been three communications taken under CRPD against Tanzania in relation to violent attacks on persons with albinism - X v United Republic of Tanzania (2017),¹⁴⁴ Y v United Republic of Tanzania (2018),¹⁴⁵ and Z v United Republic of Tanzania (2019).¹⁴⁶ As the UN Independent Expert on the enjoyment of human rights by persons with albinism has described: ‘Albinism is a relatively rare, non-contagious, genetically inherited condition that affects people worldwide regardless of ethnicity or gender.’¹⁴⁷ The Independent Expert notes that persons with albinism have normative protection in the International Bill of Rights covering all their fundamental human rights, but that further protection can also be found in specific instruments including ICERD ‘which proscribes “racial discrimination” based on colour’, as well as the CRPD.¹⁴⁸ We may note also that Minority Rights Group International includes persons with albinism in its advocacy work, notably in Tanzania.¹⁴⁹

The severity of the issue is well illustrated in Z v Tanzania. Here, the author was a person with albinism from the village of Ntubeye, in the Kagera Region of Tanzania, who was attacked resulting in amputation of one arm as well as a miscarriage. Her attackers were later acquitted. In the communication, the author submitted that impunity characterizes most cases of violence perpetrated against persons with albinism.¹⁵⁰ The Committee determined that the author had been a victim of a form of violence that exclusively targets persons with albinism in violation of Article 5 UN CRPD.¹⁵¹ Furthermore, the lack of action by the State Party in order to allow the effective prosecution of the suspected perpetrators of the crime became a cause of revictimization, amounting to psychological torture or ill-treatment in violation of Article 15.¹⁵²

¹²³ UN Convention on the Rights of Persons with Disabilities, Preamble para (p).
¹²⁴ CRPD, General Comment 6 ‘Equality and Non-discrimination’ CRPD/C/GC/6 (2018) para 21.
¹²⁵ Ibid.
¹²⁶ MRG, ‘Submission to the CRPD Committee General Discussion on Article 11 People with Disabilities in Situations of Risk and Humanitarian Emergencies: Focus on People with Disabilities belonging to Indigenous Peoples and Ethnic, Religious and Linguistic Minorities’ (London: MRG 2023) <https://minorityrights.org/app/uploads/2024/01/mrg-crpd-feb-2023-submission-1.pdf>
¹²⁷ Ibid.
¹²⁸ UN Doc. CRPD/C/ISR/CO/1 (2023) para 65.
¹²⁹ UN Doc. CRPD/C/KAZ/CO/1 (2024) para 7(c).
¹³⁰ UN Doc. CRPD/C/PER/CO/2-3 (2023) para 10(b).
¹³¹ UN Doc. CRPD/C/BGD/CO/1 (2022) para 24(b).
¹³² UN Doc. CRPD/C/CHN/CO/2-3 (2022) para 32.
¹³³ Ibid para 33(c).
¹³⁴ UN Doc. CRPD/C/22/D/18/2013 (2019).
¹³⁵ Ibid para 3.6.
¹³⁶ Ibid.
¹³⁷ Ibid para 7.6.
¹³⁸ Ibid.
¹³⁹ Ibid para 4.14.
¹⁴⁰ Australian Institute of Health and Welfare, ‘Improving Mental Health Outcomes for Indigenous Australians in the Criminal Justice System’ (Canberra: AIHW 2021) at 5 <https://www.indigenousmhspc.gov.au/getattachment/15fbcd00-30f1-4170-acd3-206c3b884a61/aihw-2021-criminal-justice-system-20210804.pdf?v=1513>
¹⁴¹ Ibid at 7.
¹⁴² UN Doc. CRPD/C/22/D/17/2013 (2019).
¹⁴³ Ibid para 7.6: ‘the Committee recalls that all possible grounds of discrimination and their intersections must be taken into account, including indigenous origin. Nonetheless, it also notes that the author does not provide arguments to explain the extent to which his Aboriginal origin has had any specific impact on the violations of his rights under the Convention’.
¹⁴⁴ UN Doc. CRPD/C/18/D/22/2014 (2017).
¹⁴⁵ UN Doc. CRPD/C/20/D/23/2014 (2018).
¹⁴⁶ UN Doc. CRPD/C/22/D/24/2014 (2019).
¹⁴⁷ ‘Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism’ UN Doc. A/HRC/34/59 (2017), para 15.
¹⁴⁸ Ibid para 17.
¹⁴⁹ Minority Rights Group International, ‘People with Albinism in Tanzania’ <https://minorityrights.org/communities/people-with-albinism/>
¹⁵⁰ Z v Tanzania, para 8.2.
¹⁵¹ Ibid para 8.4.
¹⁵² Ibid para 8.6.