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Oxford Law Citator

Art.18 Liberty of Movement and Nationality

Lawrence Mute

From: The UN Convention on the Rights of Persons with Disabilities: A Commentary

Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou

Content type:: Book content

Product:: Oxford Scholarly Authorities on International Law [OSAIL]

Series:: Oxford Commentaries on International Law

Published in print:: 01 November 2018

ISBN:: 9780198810667

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Subject(s):: Right to liberty of movement — Disability — Jurisdiction

(p. 508) Article 18 Liberty of Movement and Nationality

1. States Parties shall recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities:
1. (a) Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability;
2. (b) Are not deprived, on the basis of disability, of their ability to obtain, possess and utilise documentation of their nationality or other documentation of identification, or to utilise relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement;
3. (c) Are free to leave any country, including their own;
4. (d) Are not deprived, arbitrarily or on the basis of disability, of the right to enter their own country.
2. Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents.

1. Introduction

Persons with disabilities find that their rights to liberty of movement, residence, as well as to a nationality are violated or abused on a regular and on-going basis: they are declined entry into countries based on past or present psychosocial disabilities;¹ deaf persons Page Id: 508References(p. 509) encounter limitations on their right to obtain a driver’s licence with consequent limitations on employment and social possibilities;² and persons with disabilities are denied reasonable accommodations to enable them to commute on airlines.³ At the same time, legal and administrative barriers are used to stop refugees or migrants with disabilities from crossing country borders on a basis of equality, and persons with disabilities displaced by humanitarian conflicts suffer the triple disadvantages of being outside their countries of origin; having no protections of citizenship or residence, and living in fear of persecution in the event of repatriation; and having disabilities.⁴ Persecution that may engender refugee status can be specific to persons with disabilities in respect of forms of harm that are particular to them (such as the sexual exploitation of persons with psychosocial disabilities), or in respect of actions that would not amount to persecution when inflicted on persons without disabilities (such as those entailing absence of reasonable accommodations).⁵

The United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’ or ‘Convention’) guarantees and protects the rights of persons with disabilities to the freedoms of movement, residence, and nationality on an equal basis with other persons. Persons with disabilities may leave their countries on an equal basis with others, and they may not be arbitrarily deprived, on the basis of disability, of the right to enter their countries. These rights, which are established in article 18 of the CRPD, are cardinal to the full realization of that Convention and play critical twin roles. Firstly, they establish actionable distinct rights while, secondly, they play indispensable facilitative functions for enabling persons with disabilities to have full and equal enjoyment of all human rights and fundamental freedoms. The general principles established in article 3 of the CRPD indeed reflect the relevance of these three rights: the individual autonomy of persons with disabilities, their protection from discrimination, as well as their full and effective inclusion in society cannot be realized when article 18 rights are being violated. In the same vein, society affirms its acceptance of persons with disabilities as part of human diversity and humanity by ensuring that policies, laws, or practices do not bar persons with disabilities from interacting and discoursing with the rest of society. Finally, equality of opportunity cannot be realized when barriers to movement and nationality are placed in the way of persons with disabilities or indeed when the physical environment is not accessible to them.

This chapter explains the principles and norms that informed the drafting of article 18 of the Convention. It discusses the specific meanings of the various elements of the article. It also assesses how international and domestic jurisdictions have begun to interpret article 18.

Page Id: 509References(p. 510) 2. Background and Travaux Préparatoires

The need for provisions on liberty of movement for persons with disabilities had been demonstrated time and again by accounts of participants with disabilities to the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Rights of Persons with Disabilities (Ad Hoc Committee) who were denied access to airports or refused transportation by airlines.⁶ Yet early drafts of what became the CRPD did not include provisions on liberty of movement and the right to nationality, and substantive discussions on these matters did not happen until the seventh session of the Ad Hoc Committee which took place between 16 January and 3 February 2006. Prior to that, the sixth session of the Ad Hoc Committee, held between 1–12 August 2005, had agreed to the inclusion of an article on liberty of movement, noting this was an area where persons with disabilities were often disadvantaged, for example, through non-registration of births or denial of passports.⁷ The initial text of the article was an abbreviated form of a proposal during the sixth Ad Hoc session⁸ first made by Kenya⁹. Canada also made substantive proposals,¹⁰ as did the International Disability Caucus (IDC).¹¹ The abbreviated text provided as follows:

States Parties shall take effective measures to respect and ensure the rights of persons with disabilities to liberty of movement on an equal basis with others, including by ensuring that persons with disabilities:

(a) Have the right to acquire a nationality and are not deprived of their nationality arbitrarily or on the basis of disability;

(p. 511) (b) Are not deprived, on the basis of disability, of their ability to possess and utilise documentation of their nationality or other documentation of identification, or to utilise relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement;

(c) Are free to leave any country, including their own.¹²

During the seventh session of the Ad Hoc Committee, Kenya, Canada, Japan, the Russian Federation, New Zealand, Qatar, Yemen, Argentina, Sudan, the Syrian Arab Republic, and Mexico made contributions relevant to the discussions on what became article 18.

The Russian Federation successfully argued for the inclusion in the chapeau to paragraph 1, alongside the right to liberty of movement, of one’s right to choose their residence, for purposes of being consistent with article 12 of the International Covenant on Civil and Political Rights (ICCPR), which bundles the two rights.¹³ The effect of this inclusion is that choice of residence for persons with disabilities in the CRPD is dealt with both in article 18 as well as in article 19, with the latter requiring states to ensure that persons with disabilities have the opportunity to choose their place of residence as well as where and with whom they live on an equal basis with others.¹⁴

New Zealand also successfully proposed the replacement in the chapeau of the phrase ‘take effective measures’ with the term ‘recognize’, explaining that this would emphasize the right rather than the state conduct.¹⁵ The IDC, whose particular interest in this regard was fortified by the difficulties its members faced even while travelling to attend sessions of the Ad Hoc Committee,¹⁶ backed New Zealand’s proposal.¹⁷

Debate also arose about the link between the right to liberty of movement on the one hand and the right to a nationality on the other, which in other core human rights conventions are addressed in separate articles.¹⁸ It was, however, pointed out that movement and nationality have key common ingredients that, therefore, may be conveniently dealt with together: for example their mutual focus on relevant processes such as immigration proceedings. As Kenya noted, when one is not provided with documentation of travel, one’s movement is thereby limited.¹⁹ The IDC also successfully proposed that the right to acquire nationality should be extended to include the right to change nationality.²⁰

Page Id: 511References(p. 512) Twin concerns were addressed with regard to the equal exercise of rights: that a lesser standard on liberty of movement and nationality should not be legislated in respect of persons with disabilities; and that ‘extra’ rights should not be assigned to persons with disabilities over and above other individuals. A notable concern here was whether prohibited deprivation of nationality related to original or acquired nationality (Qatar, Yemen). The agreed fundamental was that this provision would not impeach domestic legislation, save to the extent that such legislation might provide for unequal treatment of persons with disabilities.²¹

A further concern was whether article 18, paragraph 1 (b), of the abbreviated text should be aligned with article 12, paragraph 3, of the ICCPR, which subjected the liberty of movement to limitations such as the protection of national security (Canada, Japan, New Zealand, Argentina, Mexico). It was agreed that the draft article’s provisions reflected commitments made in similar provisions in other human rights instruments and it was not necessary to set out the restrictions more specifically since the liberty of movement for persons with disabilities would be exercisable by persons with disabilities on an equal basis with others.²²

The negotiations noted that a clear distinction should be made between liberty of movement which guarantees individuals the rights inter alia to move freely within the borders of their state, and personal mobility which focuses on facilitating the mobility of persons with disabilities through quality mobility aids, devices, assistive technologies, and forms of live assistance and intermediaries. The chapeau of the article on personal mobility in early drafts of the Convention was framed as follows: ‘States parties to this Convention shall take effective measures to ensure liberty of movement with the greatest possible independence for persons with disabilities …’.²³ That language was revised into its present formulation in article 20 CRPD which does not address liberty of movement, specifically requiring states to: ‘… take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities …’. That draft article had also included a requirement for states parties to facilitate: ‘… the freedom of movement of persons with disabilities in the manner and at the time of their choice, and at affordable cost’. At the time, it was noted that the draft article’s title of ‘personal mobility’ aimed to distinguish it from the broader right to liberty of movement established in article 12 ICCPR. Personal mobility was a term of art focusing on persons with disabilities and the technologies that enable them to move, while liberty of movement was a broader concept set out in the ICCPR.²⁴

Finally, the IDC proposed that persons with disabilities should have the right to enter a country, its proposed language being that persons with disabilities: ‘enjoy on an equal basis with others the right to enter and immigrate to a country other than their state of Page Id: 512References(p. 513) origin’,²⁵ to ensure there was an obligation to treat persons with disabilities equally in regard to entry and immigration into a country. The final framing of what is now paragraph 1(d) of article 18 was consequently revised to conform to the international standard that while a state may determine who may enter its territory, such determination should neither be arbitrary nor based on one’s disability. But, as we show in the next section of this chapter, the failure to include IDC’s specific proposal on the right to emigrate perhaps unwittingly offered states the option to restrict emigrants with disabilities from entering their countries.

3. Paragraph 1

3.1 Chapeau of Paragraph 1

3.1.1 ‘right of persons with disabilities to liberty of movement … freedom to choose their residence and to a nationality’

Article 18, paragraph 1, of the CRPD requires states parties to recognize the rights of persons with disabilities to liberty of movement, and freedom to choose their residence and nationality, on an equal basis with others. The full purport of this chapeau and indeed the whole of article 18 may be understood better by recalling the liberty of movement and right to nationality provisions in predecessor human rights instruments.

Article 18 is a combination of two rights initially recognized in the Universal Declaration of Human Rights (UDHR).²⁶ Firstly, article 13 of the UDHR affirmed everyone’s right to freedom of movement and residence within the borders of each state. In addition, it affirmed the universal entitlement to leave any country and the right to return to one’s country. Secondly, article 15 of the UDHR established everyone’s right to a nationality as well as to protection from arbitrary deprivation of nationality and or denial to change one’s nationality. These rights were consequently codified in the core human rights treaties, notably the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD);²⁷ ICCPR;²⁸ the Convention on Elimination of all Forms of Discrimination against Women (CEDAW);²⁹ the Convention on the Rights of the Child (CRC);³⁰ and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW).³¹

Article 12 ICCPR qualified the broad declarative provisions on the right to freedom of movement and residence framed in article 13 UDHR. While under the UDHR everyone had the right to liberty of movement and freedom to choose their residence in a territory, and while everyone too was free to leave any country, including their own, these guarantees were restricted by a panoply of permissible limitations under the ICCPR. Firstly, under paragraph 1 of article 12, the right to liberty of movement in a territory was Page Id: 513References(p. 514) conditioned on a person being in that territory lawfully. Secondly, article 12, paragraph 3, of the ICCPR provided that those rights could be subjected to restrictions consistent with other ICCPR rights as provided by law necessary to protect national security, public order, public health or morals, or the rights and freedoms of others.³²

3.1.2 Liberty of Movement and Residence

The rights to liberty of movement and to one’s freedom to choose their residence were, therefore, well established in international human rights instruments. The patently existing gap in this regard was the applicability of these rights to persons with disabilities. International instruments were quite often used to justify the discrimination of persons with disabilities predicated on considerations such as public security, public order, or public health.³³ As such, countries around the world have continued to prohibit or restrict persons with disabilities from moving within their borders or leaving or returning on spurious grounds. Illustratively:

1. Foreigners desiring to settle in Paraguay temporarily or permanently may be impeded from entering the country on account of physical or mental disability or a chronic disease ‘… such that they cannot practice their profession, occupation, trade or craft’.³⁴
2. Foreigners with mental disabilities ‘… who are void of the capacity to make decisions on their own and have no person to assist their sojourn …’ are prohibited from entering Korea.³⁵
3. El Salvador subjects the freedom to enter, stay in or leave the country to legal limitations in the case of persons without legal capacity. Permission for persons without legal capacity—who are referred to as ‘incompetent persons’—to acquire passports is given by a designated official in the Directorate-General for Migration. Persons with physical disabilities too are required to use a special passport application procedure.³⁶
4. The spectre of persons with disabilities being processed in exclusive spaces is also apparent in Qatar where the Interior Ministry designates separate spaces for the processing of services such as issuance and renewal of passports and identity cards.³⁷
Page Id: 514References(p. 515) 5. In Uganda, persons of unsound mind are prohibited from acquiring dual citizenship.³⁸
6. Uruguay’s Constitution provides that under no circumstances shall admission into the country be granted to ‘… immigrants with physical, mental or moral defects that could be harmful to society’. At the same time, the grounds on the basis of which citizenship is suspended include physical or mental incompetence that prevents the free and reasoned exercise of citizenship.³⁹

This is the context within which the chapeau of article 18(1) should be understood. By using the equality with others standard in its articulation of the rights to liberty of movement, freedom to choose one’s residence and nationality for persons with disabilities, article 18 recognizes that these rights are necessarily bound by the limitations applicable to all persons established in the ICCPR.⁴⁰ At the same time, persons with disabilities may not be stopped from cross-border immigration on the sole basis of disability. They may have as good reason as others to flee their countries of origin as refugees on account of persecution or as immigrants, and they are only bound by the limitations applicable to other persons established for refugees and immigrants.⁴¹

In the above regard, the recommendations which the Committee on the Rights of Persons with Disabilities (Committee) has made to states in relation to measures taken to give effect to article 18 in fulfilment of article 35 of the Convention⁴² are illuminating.⁴³ The Committee has made its displeasure known about states which discriminate non-nationals, whether refugees or migrants, on the sole basis of disability. It has raised concerns about the restriction from basic disability services for migrants with disabilities (Republic of Korea),⁴⁴ and the unequal access to and choice of available social services and support for migrants with disabilities (Germany),⁴⁵ in consequence of which non-nationals with disabilities are restricted from accessing community inclusion services (Dominican Republic).⁴⁶ The Committee’s recommendations in all these instances have focused on ensuring that all non-nationals are treated on the basis of equality. It has stressed:

1. That detention and deportation centres should be made accessible to migrant workers with disabilities and that they should be provided with reasonable accommodation;
Page Id: 515References(p. 516) 2. That disability should be mainstreamed in all migration policies, and persons with disabilities should be permitted free movement across state borders on an equal basis with others;
3. That all persons with disabilities should benefit from available services and entitlements, including those from different nationalities; and
4. That all policies and programmes for migrant populations should be fully accessible for persons with disabilities.⁴⁷

3.1.3 Interlinkages with Other Rights

A close nexus exists for persons with disabilities between the exercise of liberty of movement and that of other rights. The recognition of legal capacity is inextricably linked to the enjoyment of many other human rights, including the right to liberty of movement and nationality.⁴⁸ Addressing the question of how the concept of universal design supports accessibility, the Committee introduces liberty of movement issues by noting as follows:

The strict application of universal design to all new goods, products, facilities, technologies, and services should ensure full, equal, and unrestricted access for all potential consumers, including persons with disabilities, in a way that takes full account of their inherent dignity and diversity. It should contribute to the creation of an unrestricted chain of movement for an individual from one space to another, including movement inside particular spaces, with no barriers. Persons with disabilities and other users should be able to move in barrier-free streets, enter accessible low-floor vehicles, access information and communication, and enter and move inside universally designed buildings, using technical aids and live assistance where necessary. …⁴⁹

The Committee further states that:

Article 9, paragraph 2, stipulates the measures states Parties must take in order to develop, promulgate and monitor the implementation of minimum national standards for the accessibility of facilities and services open or provided to the public. These standards shall be in accordance with other states parties’ standards to ensure their interoperability with regard to the free movement within the framework of the liberty of movement and nationality (article 18) of persons with disabilities.⁵⁰

More generally, the right to liberty of movement is also linked intrinsically with other civil and political as well as economic, social and cultural rights. Writing about article 12 of the ICCPR, Quinn and Degener have in this regard noted as follows:

… The right to liberty of movement (article 12) includes the right to move around freely within a State and freedom to choose one’s residence. To implement this human right for their disabled citizens, States Parties may need to reconsider their public transportation and housing policies. The provision of such transport is not an ICCPR but an ICESCR issue. It highlights the interdependence and indivisibility of the two sets of rights, especially in the disability context.⁵¹

Page Id: 516References(p. 517) The Committee on Economic, Social and Cultural Rights has, for example, stated that the right to attain the highest standard of health may not be realized fully if an individual’s liberty of movement is curtailed, thereby impeding her from seeking medical attention.⁵² Hence, a state which uses public health to justify limiting an individual’s liberty of movement: ‘… has the burden of justifying such serious measures … (which must accord) with the law, including international human rights standards, compatible with the nature of the rights protected by the Covenant, in the interest of legitimate aims pursued, and strictly necessary for the promotion of the general welfare in a democratic society’.⁵³ Similarly, the UN Human Rights Committee has found that restrictions to the liberty of movement may prevent persons entitled to vote from exercising that right effectively.⁵⁴

The discrimination and disempowerment of persons with disabilities bears a close nexus with situations faced by women particularly in the past where their legal capacity was withheld in not too dissimilar fashion as that of persons with disabilities. Manifestations of restricted liberty of movement for women were identified to include:

… the exercise of marital powers over the wife or of parental powers over adult daughters; legal or de facto requirements which prevent women from travelling, such as the requirement of consent of a third party to the issuance of a passport or other type of travel documents to an adult woman.⁵⁵

The right to choose one’s own residence is as much an economic, social, and cultural right as it is a civil and political right. This interconnection is quite apparent in the way the Convention dovetails its article 18 provisions on the freedom to choose one’s residence with its article 19 provisions on living independently and being included in the community. In particular, article 19 (a) of the CRPD infers that freedom of residence may not be fully realized for a person with disability when states do not ensure that: ‘persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others’.⁵⁶ The Committee notes that this article 19 (a) provision is a civil and political right which is hence applicable immediately as opposed to progressively.⁵⁷ Yet still the full enjoyment of the right to freedom of residence is closely interconnected with economic, social and cultural rights and, as an example, the right to adequate housing may not be realized and maintained by all groups in society without full enjoyment of the right to freedom of residence.

Page Id: 517References(p. 518) 3.1.4 Movement within the Borders of a Country

While the chapeau of article 18 requires states parties to recognize the rights of persons with disabilities to liberty of movement, it does not make explicit reference to the right of persons with disabilities to movement within the borders of a country.⁵⁸ This lacuna exists despite the fact that Mexico unsuccessfully proposed appropriate language to fill that gap. Its suggestion was that the right of a person with disability to leave any country including their own should include the right to freedom of movement within one’s own country.⁵⁹ In consequence of this failure, inference has to be made regarding the liberty of movement for persons with disabilities within the borders of a country. While persons with disabilities may seek redress in terms of other Convention rights, it is still significant as examples therefore that persons confined to institutions⁶⁰ or commuters who are refused embarkation onto public transport⁶¹ because of their disabilities may not have a direct remedy as regards the violation of their right to move freely in their country.⁶²

In this respect, the Human Rights Committee has established three essentials that resonate in respect of disability too. Firstly, the right to move freely relates to the entire territory of a state, including all parts of federal states. Secondly, the entitlement of a person to move from one place to another and to establish themselves in a place of their choice must not be made dependent on any particular purpose or reason. Thirdly, these rights are protected both from public as well as private interference.⁶³ The UN Human Rights Committee illustrates this final point by stating as follows:

In the case of women, this obligation to protect is particularly pertinent. For example, it is incompatible with article 12, paragraph 1, that the right of a woman to move freely and to choose her residence be made subject, by law or practice, to the decision of another person, including a relative.⁶⁴

Page Id: 518References(p. 519) 3.1.5 Freedom of Choice of Travel

It is relevant to address the question of travel further. The spectre of airlines refusing to board passengers with disabilities is common: from a pilot in the United States who made an emergency stop to disembark passengers who were travelling with their daughter who is autistic;⁶⁵ to a passenger in Canada who was refused travel because of his oversize wheel-chair.⁶⁶ The International Civil Aviation Organization (ICAO) has made post-CRPD revisions to its regulations to ensure that passengers with disabilities have equivalent access to air travel. Issues covered in ICAO’s guidance include reservations, check-in, immigration and customs, security clearances, transfers within airports, embarkation and disembarkation, departure, carriage, and arrival.⁶⁷

In Jeeja Ghosh & Another v Union of India & Others,⁶⁸ a petitioner with cerebral palsy sought relief from the Supreme Court of India, alleging violation of her right to liberty of movement. The petitioner had been ordered despite her protestations to disembark her flight from Calcutta to Goa, with the plane’s captain having insisted that she be removed because of her disability. The petitioner argued that Indian regulations on the carriage by air of passengers with disabilities⁶⁹ in fact established clear protocols under which it was illegal for crew to behave as they had. One regulation specifically provided that an airline shall not refuse to carry persons with disabilities or persons with reduced mobility and their assistive aids/devices, escorts, and guide dogs, including their presence in the cabin, provided those persons or their representatives had at the time of booking and/or check-in for travel informed the airline of their requirements. The respondent argued that the petitioner had not informed the airline about her disability and the airline could not risk her on a five-hour flight when she was unescorted. In response, the petitioner stated that the provision at issue covered two scenarios: persons with disabilities and persons with disabilities requiring assistive devices or aids. The petitioner did not fall in the second category and hence did not need to notify the airline for any special arrangements to be made. She sought the only assistance she needed at the security check-in—to carry her baggage. The Supreme Court found that the petitioner had not been given ‘… appropriate, fair and caring treatment …’ and that the decision to de-board her was uncalled Page Id: 519References(p. 520) for. While a decision could have been taken to de-board a passenger in the larger interest and safety of other passengers, the airline did not make due deliberation or indeed even consult experts or the petitioner before de-boarding her. The Supreme Court ultimately ruled that disabled persons must enjoy the same rights as all others, including freedom of travel and movement.

European Union legislation has established bases for ensuring that persons with disabilities and those with reduced mobility are not refused transport on the ground of disability. Carriers and other relevant service providers are required to provide persons with disabilities opportunities for air travel comparable to that of other persons travelling to or from European Union destinations. Necessary assistance should be provided on board aircraft as well as at the airport, and necessary staff and equipment should be deployed at no extra cost to commuters with disabilities.⁷⁰

3.2 Paragraph 1(a): Have the Right to Acquire and Change a Nationality and [to] not [Be] Deprived of … Nationality Arbitrarily or on the Basis of Disability

Citing the International Court of Justice’s judgment in the Nottebohn case, Alice Edwards explains that nationality is determined by one’s social ties to the country of their nationality which consequently gives rise to rights and duties on the state’s part too.⁷¹ Nationality is acquired or conferred by a state to an individual who is born on the territory of that state (jus soli—law of the soil); or it may be acquired by descent (jus sanguinis—law of the blood); or by naturalization such as following long residence (jus domicili).⁷²

This paragraph is more expansive than similar treaty formulations such as in the ICCPR, which rather laconically provides that: ‘Every child has the right to acquire a nationality.’⁷³ The ICCPR also does not establish the right to change one’s nationality or provide protection from deprivation of nationality.⁷⁴ Concerns that limitations to the right to a nationality could be applied unfairly to restrict the rights of persons with disabilities may have spurred the Ad Hoc Committee not to burden that right with the sort of restrictions common to other core human rights instruments. Notably, the CRC provides that implementation of a child’s right to acquire a nationality shall be ensured by states parties: ‘… in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless’.⁷⁵

Page Id: 520References(p. 521) Paragraph 1 (a) establishes or reaffirms that persons with disabilities, as indeed all other individuals, have the right to acquire a nationality and change their nationality. This means that a state may not bar a person from acquiring or changing nationality on the sole basis of disability. Where nationality is conferred by birth, the failure to register children with disabilities denies them evidence of nationality and this can have long-term impacts on these children whose nationality may be questioned as they grow into adulthood. At the same time, some states have nationality restrictions that discourage or bar applicants for nationality who have disabilities. This for example is the case in Uganda, which has a legal bar of dual citizenship for persons with psychosocial and/or intellectual disabilities⁷⁶ and Ecuador, which denies nationality to persons with a ‘chronic illness’.⁷⁷ Regarding these denials, the Committee called for the repeal of laws that restrict the acquisition of citizenship by persons with disabilities, and the repeal of laws restricting persons with disabilities from applying for citizenship on an equal basis with others.⁷⁸

The right to a nationality is doubly important for persons with disabilities since it establishes the legal relationship of rights and obligations between the person and the state. Its limitation undermines the full exercise of rights by persons with disabilities and amounts to discrimination. As the CEDAW Committee has noted in respect of women, nationality is critical to full participation in society, should be capable of change by an adult woman and should not be arbitrarily removed because of marriage or dissolution of marriage or because one’s husband or father changes their nationality.⁷⁹ This position clearly applies to women with disabilities too.

The right not to be deprived of one’s nationality is not only a consequence of the right to a nationality and the obligation on states not to impose or facilitate situations of statelessness,⁸⁰ but is also nothing short of anathema in international relations. Statelessness leads to refugee and migrant flows and hence disturbs international peace and security. The general rule in international law is that a denial or stripping of one’s nationality is prohibited, save for persons with dual nationality or naturalized aliens who obtained their new nationality through fraudulent means.⁸¹ The denial of nationality on any other grounds, including disability, will amount to persecution and the victim will be entitled to asylum as a refugee.

This right includes the right not to lose or be deprived of one’s nationality on the sole basis of disability. Indeed, the arbitrary or discriminatory deprivation of nationality on bases such as race, ethnicity, religion, or political views are not permitted under international law.⁸²

Page Id: 521References(p. 522) 3.3 Paragraph 1(b)

This paragraph covers two aspects of relevance to persons with disabilities: firstly, the deprivation of their ability to obtain, possess, and utilise documents of identity; and, secondly, the ability to utilize processes such as immigration proceedings to facilitate their exercise of the liberty of movement.

Regarding the first issue, the reference to ‘documentation of … nationality or other documentation of identification’ is understood broadly to include a passport or any other document of identification used in a particular country.⁸³ This means that persons with disabilities have the right to a birth certificate and national identification documents, including passports. Here, it should be pointed out that although many states have resorted to specific identification cards for persons with disabilities, this paragraph does not make any such demand and indeed such cards may not be issued in substitution of nationality documents used by the general population. Yet where disability cards are issued, the Committee has raised concern about the exclusion of non-citizens with disabilities from acquisition of those cards (Thailand).⁸⁴

This paragraph recognizes that states have through acts of commission or omission hindered persons with disabilities from obtaining, possessing, or utilizing documents of nationality. The phrase ‘ability to obtain’ is quite significant. Deprivation of that ability may firstly be direct, for example where persons are denied such documents because of their disability, or secondly it may be indirect, such as where issuing offices are located in places that are inaccessible to persons with disabilities. In the former instance, states have used legislative or administrative instruments to restrict free acquisition and use of nationality documents by persons with disabilities. In the latter instance, states have failed to calibrate their infrastructure to accommodate persons with disabilities seeking documents of nationality.

Concerns raised by the CRPD Committee in this regard have included the absence of reasonable accommodations for persons with disabilities in deportation centres (United Arab Emirates,⁸⁵ Qatar)⁸⁶ and the inaccessibility of migration decision procedures for persons with disabilities, as well as the absence of information and communication in accessible formats (Slovakia).⁸⁷ The Committee’s recommendations called for detention and deportation centres to be made accessible to migrant workers with disabilities who should also be provided with reasonable accommodation.

Regarding the second aspect covered by the paragraph, protection of the right of persons with disabilities not to be deprived of the use of relevant immigration proceedings that may be needed to facilitate exercise of the right to liberty of movement responds to situations where states have used immigration proceedings, either indirectly or directly, to stop persons from crossing their borders on the sole basis of disability, and where states have not put in place accommodations to enable persons with disabilities to use Page Id: 522References(p. 523) immigration processes. Indirect denials of entry have taken forms such as language proficiency testing or knowledge testing devoid of reasonable accommodations and financial requirements (19) which may not be readily realizable by migrants with disabilities. Migrants and refugees with disabilities have routinely faced more direct forms of denial when they have been refused entry into states on the basis of the apparent costs associated with such persons’ disabilities. Illustratively, section 38 (1) (a) of the Canadian Immigration and Refugee Protection Act⁸⁸ provides that a foreign national may not be admitted to Canada on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services. In consequence of this, non-Canadians can be refused entry into Canada if they might reasonably be expected to make excessive demands on health and social services. Migrants to Canada with various disabilities have been denied entry into the country, including individuals with developmental disabilities, intellectual disabilities, and physical disabilities.⁸⁹ Canadian immigration policy seems to be guided by the notion of excessive demands under which potential immigrants must undergo physical and mental exams ‘… to prove that their bodies and minds will not be a burden on Canada’s socioeconomic structure’.⁹⁰

Indeed, states such as the United Kingdom and Australia have entered reservations or made interpretive declarations on article 18 ostensibly to allow them leeway to have full control over which individuals may be allowed across their borders. To this end, the United Kingdom reserved to itself: ‘… the right to apply such legislation, insofar as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, as it may deem necessary from time to time’.⁹¹ However, as Britain’s Equality and Human Rights Commission has explained, the United Kingdom’s reservation to article 18 may be incompatible with the principle of non-discrimination under article 5 of the CRPD and the basic purposes of the Convention. The Commission explained that article 18 in fact seeks to ensure that while exercising their immigration functions states do not discriminate against a person based on any disability; article 18 would not undermine the United Kingdom’s ability to regulate who and in what circumstances a person would gain citizenship.⁹²

In its instance, Australia made the interpretive declaration of: ‘… its understanding that the Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, nor impact on Australia’s health requirements for non-nationals seeking to enter or remain in Australia, where these requirements are based on legitimate, objective and reasonable criteria’.⁹³ It would seem that this Page Id: 523References(p. 524) declaration⁹⁴ has made Australia able to continue its legal approach under which emigrants with disabilities who hold certain types of visas have to wait for ten years before they are eligible for disability support pension.⁹⁵

One other instance of reservation to article 18 should be highlighted here. Malaysia made a far more general reservation to articles 15 and 18 of the Convention, stating it considered itself not to be bound by those articles.⁹⁶ Austria objected to this reservation, noting that both articles related to fundamental principles of the CRPD and their non-application by Malaysia would be contrary to the object and purpose of the Convention.⁹⁷ Belgium’s objection went further, noting that the vagueness and general nature of the reservation may contribute to undermining the basis of international human rights treaties. Belgium cited article 46 (1) of the CRPD as well as article 19 (c) of the Vienna Convention on the Law of Treaties which codify the customary international law norm that reservations incompatible with the object and purpose of a Convention are not permitted.⁹⁸ Other states that offered objections included Germany,⁹⁹ Hungary,¹⁰⁰ Portugal,¹⁰¹ Slovakia,¹⁰² and Sweden.¹⁰³ Malaysia did not explain why it lodged its reservation to article 18, but perhaps Slovakia and Sweden attempted to second-guess the Malaysian position by noting in their objections that states should be prepared to undertake any legislative changes necessary for them to comply with their treaty obligations. It is indeed instructive that Thailand withdrew an interpretive declaration which had subjected the application of article 18 to its national laws, regulations, and practices.¹⁰⁴

In light of the incompatibility of Malaysia’s article 18 reservation, and the dubious character of the reservation and declaration by the United Kingdom and Australia respectively, three possible consequences may be drawn.¹⁰⁵ Firstly, is the question of whether the ratification remains valid excluding the reserved articles—what is referred to as the ‘surgical’ solution. This approach, however, would defeat the object and purpose of the CRPD and hence it is not tenable. The second option is where the instrument of reservation becomes invalid on account of its content’s incompatibility with the object and purpose of the CRPD—what is referred to as the ‘backclash’ solution. This approach would disregard the state party’s view on the matter totally and in effect force her to remain a party to the Convention, again, a possibly untenable situation. A third option concerns whether a reservation against article 18 becomes severed from the instrument of ratification, leaving the state a party to the CRPD without the reservation’s benefit—what is referred to as the ‘severability’ doctrine. This was the approach taken by the UN Human Rights Committee in its General Comment No 24.

Page Id: 524References(p. 525) Clearly, a state may regulate who may enter its territory. Such regulation though must be by law and it must not discriminate immigrants on the basis they have a disability.¹⁰⁶ Furthermore, once allowed entry, disability-based targeting must not be used to restrict exercise of rights. This is in line with the recognized norm that while aliens do not have the right to enter or reside in the territory of a state and while consent for entry may be granted subject to conditions relating to movement, residence, and employment, once they are allowed entry, aliens too are entitled to all fundamental rights and freedoms, subject to article 12 (3) ICCPR.¹⁰⁷

The Committee has in this sense been concerned about the adversities occasioned by the setting of stricter entry requirements for persons with disabilities (Mexico)¹⁰⁸ and the denial of entry of persons with disabilities on the ground of disability (Cook Islands),¹⁰⁹ including persons with psychosocial disabilities who are not accompanied by an assistant (Republic of Korea).¹¹⁰ The Committee has also raised concerns regarding the barriers which persons with disabilities or families with members who are disabled face when moving to live or work in another state (European Union).¹¹¹

The Committee has responded to this discrimination by stipulating that: persons with disabilities should be treated on an equal basis with others in the issuance of visas and entry permits; and that persons with disabilities and their families should be enabled to enjoy their right to freedom of movement on an equal basis with others, including with regard to the portability of social security benefits.¹¹²

Despite the continuing challenges, many positive developments in this area have been noted. Some states establish exemptions for persons with disabilities which may amount to reasonable accommodations for purposes of enabling them to leave or indeed return to a country. Qatar waives fees for persons with disabilities applying for passports,¹¹³ while Mauritius charges such applicants a concessionary fee.¹¹⁴ Bolivia entitles persons with serious disabilities a 50 per cent discount on public air or land transport,¹¹⁵ while Korea exempts foreigners with some autistic disorders or mental or intellectual disabilities whose father or mother is a Korean national from taking written tests in the Page Id: 525References(p. 526) naturalization screening process.¹¹⁶ In Denmark, persons with disabilities may, in relation to the language requirement and the requirement to pass a nationality test, be given remedial instruction, granted exemption from the form or content of the tests, and allowed to use aids.¹¹⁷ Danes with disabilities can travel abroad for limited temporary stays with disability-compensating services, including aids, a disability car, allowances for additional expenses, and citizen-managed personal assistance, without prior application to their municipalities.¹¹⁸ In Germany, applicants for nationality with disabilities are covered by exceptional statutory regulations if their disabilities would make naturalization more difficult or impossible, for example regarding proving knowledge of German.¹¹⁹ This too is the case in Hungary.¹²⁰ Finally, the European Union has resolved to include in current and future legislation the guarantee of equal opportunities, fundamental rights, equal access to services and the employment market, and the same rights and obligations in accessing social security to persons with disabilities as nationals of relevant member states. Furthermore, migrant women and girls with disabilities will be supported to develop skills to afford them opportunities for suitable employment.¹²¹ This should lead to the revision of instruments such as the Asylum Procedures Directive of the European Commission,¹²² which does not provide adequate protection for migrants with disabilities.

3.4 Paragraph 1(c): Are free to Leave Any Country, Including Their Own

The right to leave a country enables persons to move freely from their country of nationality or residence without undue obstacles. Leaving a country may be occasioned by many factors, including fear of or actual persecution (for refugees) or poverty (for migrants). Persons with disabilities too have the right to leave their country of nationality or country of residence. Border control and immigration policies should not stop any persecuted persons from seeking refugee status.¹²³

The language of this paragraph conforms to article 12, paragraph 2, of the ICCPR which provides that: ‘Everyone shall be free to leave any country, including his own.’¹²⁴

The Human Rights Committee has explained that the freedom to leave the territory of a state may not be made dependent on any specific purpose or on the period of time the Page Id: 526References(p. 527) individual chooses to stay outside the country.¹²⁵ Pursuant to this paragraph, persons with disabilities have the freedom to leave their country or any other country. Any restrictions that may bar persons with disabilities from exercising this right must be necessary and subject to a proportionality test. As such, neither legal nor administrative hurdles should be placed in the way of persons with disabilities to stop them from travelling abroad, emigrating, or determining their destination. Even aliens under legal expulsion are entitled to determine their state of destination.¹²⁶

As has already been explained, administrative impediments have been placed in the way of travellers with disabilities, for example with airlines declining to embark persons with certain types of disabilities. Legal hurdles have included denial of travel documents such as passports. One cannot leave their own country if they do not have a travel document. This means states have the positive obligation to provide travel documents to persons with disabilities. Conditions should not be placed on a permission for a person with disability to travel, and persons with disabilities therefore may also depart a country as potential emigrants.¹²⁷

3.5 Paragraph 1(d)

This paragraph is similar to paragraph 4 of article 12 of the ICCPR which provides that: ‘No one shall be arbitrarily deprived of the right to enter his own country’, but with the additional caveat that deprivation of such entry should not be made on the basis of one’s disability. That right also implies the right for anyone to remain in the country as well as the right to return to one’s country. The rationale for this right is founded on the special bond which a person has to their country of nationality.¹²⁸ Indeed, modern bills of rights pointedly provide that every citizen has the right to enter, to remain in and to reside anywhere in their country.¹²⁹ The UN Human Rights Committee has explained the concept of arbitrariness as used in paragraph (d) as follows:

… The reference to the concept of arbitrariness in this context is intended to emphasise that it applies to all state action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A state party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.¹³⁰

Protection of the right of persons with disabilities not to be barred from emigrating into another country though is not established explicitly in article 18. It should be recalled that the IDC proposed, without success, the inclusion of a paragraph stating that persons with disabilities had the right to: ‘enjoy on an equal basis with others the right to enter and immigrate to a country other than their state of origin’.¹³¹ With hindsight, this Page Id: 527References(p. 528) paragraph would in fact have captured more aptly the sorts of concerns that have exercised the mind of the Committee on entry into countries by non-nationals with disabilities. As we have already shown, the immigration policies of many countries discourage the migration of individuals who are deemed not to be productive; and migrants with disabilities have been viewed as being incapable of contributing to the economic, social, or cultural circumstances of host countries.¹³²

4. Paragraph 2

‘Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents.’ This paragraph evokes article 24, paragraphs 2 and 3 of the ICCPR, and covers the key elements found in article 7, paragraph 1, of the CRC, which provides as follows: ‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’

The need to make specific provision for the naming and registration of children with disabilities immediately after birth arises because cultural, religious, and practical factors in real life undermine such naming and registration. It is not uncommon for infants with disabilities to stay unnamed because of cultural reasons and for their births to remain unregistered, particularly where those children are not born in hospital. Children with disabilities, for example those who require intensive support and who therefore may never have had opportunity to go to school, mature into adulthood without birth certificates, which in turn means they cannot apply for documents evidencing their nationality, such as national identity cards and passports.¹³³ The Committee has indeed noted that:

Persons with disabilities have the right to a name and registration of their birth as part of the right to recognition everywhere as a person before the law (art. 18, Para. 2). States parties must take the necessary measures to ensure that children with disabilities are registered at birth. … Children with disabilities are disproportionately likely not to be registered as compared with other children. This not only denies them citizenship, but often also denies them access to health care and education, and can even lead to their death. Since there is no official record of their existence, their death may occur with relative impunity.¹³⁴

Even while children with disabilities are disproportionately likely to experience non-registration at birth, the consequences of such non-registration are gendered, and unregistered girls with disabilities are particularly at risk of violence from family members and caregivers.¹³⁵

Ensuring the registration of all children at birth requires the establishment of a universal well-managed registration system that is accessible to all and free of charge. That system must be flexible and responsive to the circumstances of different families, and may Page Id: 528References(p. 529) include mobile registration units, facilitation of late births registration, and the provision of services on an equal basis even to children who have not been registered.¹³⁶

The Committee has time and again raised concerns about the non-registration or low level of registration of the births of children with disabilities (Ethiopia,¹³⁷ Uganda)¹³⁸ and the absence of data about such non-registered children, including girls (Gabon),¹³⁹ children in situations of internal displacement and those living in refugee camps (Kenya),¹⁴⁰ and the absence of information on the registration of Bedouin children with disabilities (United Arab Emirates).¹⁴¹ It has also been concerned about the non-registration of children, adolescents and adults with disabilities living in rural areas (Paraguay,)¹⁴² who hence do not have identity cards (El Salvador)¹⁴³ or indeed a name (Guatemala).¹⁴⁴ The Committee’s recommendations in these regards have included the strengthening of the birth registration system to ensure the immediate, simple and free registration and certification of all new-born children with disabilities, including those living in remote and rural areas, those living in refugee camps and those from minority groups.¹⁴⁵

Footnotes:

¹ World Network of Users and Survivors of Psychiatry, ‘Implementation Manual for the United Nations Convention on the Rights of Persons with Disabilities’ (February 2008).

² National Association of the Deaf, ‘Deaf People and Human Rights’ (January 2009).

³ Brian Wasuna, ‘Disabled Doctor Sues Fly 540 After Being kicked Out of Nairobi flight’ Nairobi News (16 December 2016), available at: <http://nairobinews.nation.co.ke/news/disabled-doctor-sues-fly-540-kicked-flight/>. Airlines have been fined for not letting passengers with disabilities to board their planes. A French court has, for example, found as discriminatory the airline policy requiring persons with disabilities to mandatorily travel with a companion. In Gianmartini et al v Easyjet the TGI Bobigny and Paris Court of Appeal decided that Easyjet’s accompanying person policy discriminated travellers with disabilities, and it fined the airline 70,000 Euro. This decision was affirmed by the Criminal Chamber of the Court of Cassation—see Cass crim 15 décembre 2015, Bull crim 2015 n° 286.

⁴ Mary Crock et al, ‘Where Disability and Displacement Intersect: Asylum Seekers and Refugees with Disabilities’ (2012) 24 Int’l J Refugee L 736.

⁵ ibid 748.

⁶ Marianne Schulze, Understanding the UN Convention on the Rights of Persons with Disabilities (Handicap International 2010) 109, available at: <http://www.hiproweb.org/uploads/tx_hidrtdocs/HICRPDManual2010.pdf>.

⁷ Report 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 on its Sixth Session UN Doc A/60/266 (17 August 2005) para 76.

⁸ Seventh Session, New York, 16–27 January 2006, letter dated 7 October 2005 from the Chairman to all members of the Committee, para 72, available at: <http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm>.

⁹ Kenya had proposed the following as Art 20 bis on liberty of movement:

States Parties to this Convention shall take effective measures to respect and ensure the rights of all persons with disabilities to liberty of movement on an equal basis with others, including by:

a. Ensuring that persons with disabilities have the right to a nationality and the right to change it, and are not deprived of their nationality arbitrarily on the basis of disability;

b. Ensuring that persons with disabilities are not deprived on the basis of disability of their ability to possess and utilise documentation of their nationality or other documentation of identification that may be needed to facilitate exercise of the right to liberty of movement;

c. Ensuring the accessibility to persons with disabilities of any processes relevant to the enjoyment of the right to liberty of movement, such as immigration proceedings, including through the removal of physical and communication barriers and the provision of reasonable accommodation;

d. Ensuring that persons with disabilities have the right to leave any country, including their own;

e. Facilitating the freedom of movement of persons with disabilities in the manner and at the time of their choice, and at affordable cost.

UN Enable—Ad Hoc Committee, ‘Sixth Session: Contributions by Governments: Kenya’, available at: <http://www.un.org/esa/socdev/enable/rights/ahc6kenya.htm>.

¹⁰ UN Enable—Ad Hoc Committee—Seventh Session—Contributions by Governments—Canada, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7canada.htm>.

¹¹ UN Enable—Ad Hoc Committee—Seventh Session—Vol. 8 No 4—Contributions by Nongovernmental Organizations—International Disability Caucus, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm>.

¹² Seventh Session, New York, 16–27 January 2006, letter dated 7 October 2005 from the Chairman to all members of the Committee. Annex I. Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, available at: <http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm>.

¹³ UN Enable—Seventh Session of the Ad Hoc Committee—Daily Summary of Discussions—Vol 8 No 4—19 January 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm>.

¹⁴ Art 19(a) CRPD.

¹⁵ UN Enable—Seventh Session of the Ad Hoc Committee—Daily Summary of Discussions—Vol 8 No 4—19 January 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm>.

¹⁶ Schulze (n 6).

¹⁷ Chairman’s Text as amended by the International Disability Caucus, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm>.

¹⁸ The ICCPR as indeed the International Convention on the Protection of All Migrant Workers and Members of their Families deal with the liberty of movement in Arts 12 and 39 respectively, while the right to a nationality is addressed in Arts 24 and 29 respectively.

¹⁹ UN Enable—Seventh Session of the Ad Hoc Committee—Daily Summary of Discussions Vol 8 No 4—19 January 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm>.

²⁰ Chairman’s Text as amended by the International Disability Caucus, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm>.

²¹ UN Enable—Seventh Session of the Ad Hoc Committee—Daily Summary of Discussions—Vol 8 No 4—19 January 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm>.

²² UN Enable—Seventh Session of the Ad Hoc Committee—Daily Summary of Discussions—19 January 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm>.

²³ Art 20 of Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. Final text compiled as adopted UN Doc A/AC265/2004/WG/1 CRP 4 (27 January 2004) and UN Docs CRP 4/Add 1, Add 2, Add 4, and Add 5 (27 January 2004).

²⁴ UN Enable—Sixth Session of the Ad Hoc Committee—Daily Summary of Discussions—Vol 7 No 5–5 August 2005, available at: <http://www.un.org/esa/socdev/enable/rights/ahc6sum5aug.htm>.

²⁵ Chairman’s Text as amended by the International Disability Caucus, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm>.

²⁶ The Universal Declaration of Human Rights, UNGA Res 217 (10 December 1948). See generally Colin Harvey, Robert P Barnidge, ‘Human Rights, Freedom of Movement and the Right to Leave in International Law’ (2007) 19 IJRL 1.

²⁷ Art 5(d)(i) and (ii) (movement); and (iii) (nationality) ICERD.

²⁸ Arts 12 (movement) and 24 (nationality) ICCPR.

²⁹ Arts 15(4) (movement) and 9 (nationality) CEDAW.

³⁰ Art 7 CRC.

³¹ Arts 39 (movement) and 29 (nationality) CMW.

³² Also see Art 39(2) CMW.

³³ Even the UN Human Rights Committee on occasion used these sorts of limitations with adverse consequences for the full enjoyment of rights by persons with disabilities. In its comments on art 25 ICCPR, it has stated as follows:

Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria. … The exercise of these rights by citizens may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable. For example, established mental incapacity may be a ground for denying a person the right to vote or to hold office.

HRCtee, ‘General Comment No 25: Article 25 (Participation in Public Affairs and the Right to Vote)’ UN Doc CCPR/C/21/Rev 1/Add 7 (12 July 1996) para 4.

³⁴ Art 6(3) of Act No 978/96. Cited in ‘Implementation of the CRPD: Initial Reports of Paraguay’ UN Doc CRPD/C/PRY/1 (29 June 2011) para 133.

³⁵ Art 11 of the Immigration Control Act. Cited in ‘Implementation of the CRPD: Initial Report Submitted by Korea’ UN Doc CRPD/C/KOR/1 (27 February 2013) para 83. Korea has explained this as a measure for making those who invite persons with mental disabilities to guarantee their safety.

³⁶ ‘Implementation of the CRPD: Initial Report Submitted by El Salvador’ UN Doc CRPD/C/SLV/1 (10 October 2011) paras 117–19. Incompetent persons include those with chronic or incurable mental illness (regardless of any lucid moments) and deafness (except where a deaf person can understand others and make themselves understood).

³⁷ ‘Implementation of the CRPD: Initial Report Submitted by Qatar’ UN Doc CRPD/C/QAT/1 (9 July 2014) para 36.

³⁸ ‘Implementation of the CRPD: Initial Report Submitted by Uganda’ UN Doc CRPD/C/UGA/1 (10 March 2015) para 137.

³⁹ Arts 37 and 80 of the Uruguay Constitution. Cited in ‘Implementation of the CRPD: Initial Report Submitted by Uruguay’ UN Doc CRPD/C/URY/1 (8 July 2015) para 293.

⁴⁰ Response by Chairman of Ad Hoc Committee, UN Enable—Sixth Session of the Ad Hoc Committee—Daily Summary of Discussions—Vol 7 No 5–5 August 2005), available at: <http://www.un.org/esa/socdev/enable/rights/ahc6sum5aug.htm>.

⁴¹ For a general explanation of these two phenomena, see Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (2nd edn, CUP 2016) 822–26.

⁴² Art 35 CRPD requires states parties to submit to the Committee comprehensive reports of the measures taken to give effect to its obligations under the Convention.

⁴³ While, as O’Flaherty & Fisher point out, it is true that concluding observations by treaty-body committees are non-binding and flexible and hence not necessarily useful indicators of what committees consider matters of obligation, expressions of concern or specific recommendations provide pointers on current understandings on norm-application—Michael O’Flaherty and John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8 HRLR 207–48.

⁴⁴ CRPD Committee, ‘Concluding Observations on the Initial Report of the Republic of Korea’ UN Doc CRPD/C/KOR/CO/1 (29 October 2014) para 35.

⁴⁵ CRPD Committee, ‘Concluding Observations on the Initial Report of Germany’ UN Doc CRPD/C/DEU/CO/1 (13 May 2015) para 39.

⁴⁶ CRPD Committee, ‘Concluding Observations on the Initial Report of the Dominican Republic’ UN Doc CRPD/C/DOM/CO/1 (8 May 2015) para 36.

⁴⁷ See above concluding observations from Dominican Republic, Germany, and Republic of Korea.

⁴⁸ CRPD Committee, ‘General Comment No 1 (2014, Article 12: Equal Recognition Before the Law’ UN Doc CRPD/C/GC/1 (19 May 2014) para 31.

⁴⁹ CRPD Committee, ‘General Comment No 2 (2014) Article 9: Accessibility’ UN Doc CRPD/C/GC/2 (22 May 2014) para 15.

⁵⁰ ibid para 18.

⁵¹ Gerard Quinn, Theresia Degener, ‘Building Bridges From “Soft Law” to “Hard Law”: The Relevance of the United Nations Human Rights Instruments to Disability’ in Gerard Quinn and Theresia Degener (eds), Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments (United Nations 2002) 47–50.

⁵² CESCR, ‘General Comment No 14: The Right to the Highest attainable Standard of Health’ UN DOC E/C.12/2000/4 (11 August 2000) para 3.

⁵³ ibid para 28.

⁵⁴ UN HRCtee, ‘General Comment No 25: Article 25 (Participation in Public Affairs and the Right to Vote)’ UN Doc CCPR/C/21/Rev 1/Add 7 (12 July 1996) para 12.

Also see CEDAW Ctee, ‘General Recommendation No 23: Political and Public Life’ UN Doc A/52/38 (13 January 1997) para 20.

⁵⁵ UN HRCtee, ‘General Comment No 28: Article 3 (The Equality of Rights Between Men and Women)’ UN Doc CCPR/C/21/Rev 1 Add 10 (29 March 2000) para 16.

⁵⁶ Art 19(a) CRPD.

⁵⁷ CRPD Committee, ‘General Comment No 5 on Article 19: Living Independently and Being Included in the Community’ UN Doc CRPD/C/18/1 (29 August 2017) para 39.

⁵⁸ eg compare Art 18 CRPD with Art 39 CMW which provides that: ‘migrant workers and members of their families shall have the right to liberty of movement in the territory of the State of employment and freedom to choose their residence there’.

⁵⁹ UN Enable—Seventh Session of the Ad Hoc Committee—Daily Summary of Discussions—Vol 8 No 4—19 January 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm>.

⁶⁰ eg see Human Rights Watch, ‘Like a Death Sentence: Abuses Against Persons with Mental Disabilities in Ghana’ (2 October 2012).

⁶¹ See Njoki Chege, ‘Disabled Medic Claims She was Kicked Out of Plane’ Daily Nation (5 May 2016), available at: <http://www.nation.co.ke/news/Pilot-kicked-me-out-says-disabled-doctor-/-/1056/3189356/-/554f4a/-/index.html>.

⁶² Hence, in Republic v Cabinet Secretary for Transport & Infrastructure Principle Secretary & 5 Others ex parte Kenya Country Bus Owners Association & 8 Others [2014] eKLR (available at: <http://kenyalaw.org/caselaw/cases/view/101872/>) an application for judicial review succeeded against Kenya’s National Safety and Transport Authority which had sought to introduce a regulation removing roof carriers from public transport vehicles. The High Court agreed with the applicant that outlawing the use of roof carriers would discriminate persons with mobility impairments who needed to use their wheelchairs since public transport vehicles would thereby not have the facilities to secure the wheelchairs in transit. Significantly, the pleadings in this application focused on violation of the rights to human dignity (Art 28 of the Constitution of Kenya 2010) and to reasonable access to all places, public transport, and information (Art 54 (1) (c) of the Constitution). The right to liberty of movement in the Constitution received no specific attention.

⁶³ UN HRCtee, ‘General Comment No 27: Article 12 (Freedom of Movement) UN Doc CCPR/C/21/Rev 1/Add 9 (2 November 1999) paras 5–6.

⁶⁴ ibid para 6.

⁶⁵ Nicholas Reilly, ‘Pilot “Refused to Fly Plane with their Daughter on board”’ Metro (10 May 2015), available at: <http://metro.co.uk/2015/05/10/pilot-refused-to-fly-plane-with-their-autistic-daughter-onboard-5190060/>.

⁶⁶ Nicole Thompson, ‘Disabled Passenger Claims Air Canada Denied Him Access to Flight due to Oversize Wheelchair’ Global News (August 3 2016), available at: <http://globalnews.ca/news/2860271/disabled-passenger-claims-air-canada-denied-him-access-to-flight-due-to-oversized-wheelchair/>.

⁶⁷ ICAO, ‘Manual on Access to Air Transport by Persons with Disabilities’ ICAO Doc 9984 (2013) para 1.1; see also International Air Transport Association, IOSA Standards Manual, INT 1 (8th edn, International Air Transport Association 2014); Airports Council International, Airports & Persons with Disabilities: A Handbook for Airport Operators 2 (4th edn, Airports Council International 2003).

⁶⁸ Jeeja Ghosh & ANR v Union of India & Others Indian Supreme Court judgment (12 May 2016); see also Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15, where the absence of reasonable accommodation for a disabled airline passenger was found to amount to discrimination.

⁶⁹ Government of India, Office of the Director-General of Civil Aviation, Civil Aviation Requirements Section 3—Air Transport Series ‘M’ Part I Issue 2, 1 May 2008 (CAR 2008) on ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’; see also Michael J McCarthy, ‘Improving the United States Airline Industry’s Capacity to Provide Safe and Dignified Services to Travelers with Disabilities: Focus Group Findings’ (2001) 33 Disabil Rehabil 2612; Yaniv Poria, Arie Reichel, and Yael Brandt, ‘The Flight Experiences of People with Disabilities: An Exploratory Study’ (2010) 49 J Travel Res 216; Michael A Schwartz, ‘Propelling Aviation to New Heights: Accessibility to In-flight Entertainment for Deaf and Hard Hearing Passengers’ (2012) 77 J Air L & Com 151.

⁷⁰ Such as Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 Concerning the Rights of Disabled Persons and Persons with Reduced Mobility When Travelling by Air.

⁷¹ Alice Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights: Procedural and Substantive Aspects’ in Alice Edwards and Laura Van Waas (eds), Nationality and Statelessness Under International Law (CUP 2014) 12–13.

⁷² Edwards, ‘The Meaning of Nationality’ (n 71) 16; Alexander Aleinikoff, ‘Between Principles and Politics: U.S. Citizenship Policy, in Alexander Aleinikoff et al (eds), From Migrants to Citizens. Membership in a Changing World (Brookings Institute Press 2000); Jeffrey L Blackman, ‘State Succession and Statelessness: The Emerging Right to an Effective Nationality under International Law’ (1998) 19 Mich JIL 1141; Ian Brownlie, ‘The Relations of Nationality in Public International Law’ (1963) 39 BYBIL 284; Haro F Van Panhuys, The Role of Nationality in International Law (Sijthoff 1959).

⁷³ Art 24(3) ICCPR.

⁷⁴ The ICJ had ruled in the Nottebohm case that although states are free to confer their nationality on any person, the legal effects of such conferral were to be assessed only by reference to international law; Nottebohm (Liechtenstein v Guatemala) [1955] ICJ Rep 4.

⁷⁵ Art 7(2) CRC.

⁷⁶ CRPD Committee, ‘Concluding Observations on the Initial Report of Uganda’ UN Doc CRPD/C/UGA/CO/1 (12 May 2016) para 36.

⁷⁷ CRPD Committee, ‘Concluding Observations on the Initial Report of Ecuador’ UN Doc CRPD/C/ECU/CO/1 (27 October 2014) para 32.

⁷⁸ See above concluding observations for Uganda and Ecuador. The Committee saw chronic illness as a condition closely linked to disability and hence discriminatory and contrary to Art 18 of the CRPD.

⁷⁹ CEDAW Ctee, ‘General Recommendation No 21: Equality in Marriage and Family Relations’ UN Doc A/47/38 (4 February 1994) para 6.

⁸⁰ See the 1954 Convention relating to the status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

⁸¹ See Alice Edwards and Laura Van Waas, Nationality Matters: Statelessness under International Law (CUP 2014); Paul Weis, Nationality and Statelessness in International Law (2nd edn, Kluwer 1979); David Weisbrodt and Clay Collins, ‘The Human Rights of Stateless Persons’ (2006) 28 Human Rights Quarterly 245.

⁸² Alice Edwards (n 71) 23.

⁸³ Inference from a concern raised by Japan during the Seventh Session of the Ad Hoc Committee (n 13).

⁸⁴ CRPD Committee, ‘Concluding Observations of Initial Report of Thailand’ UN Doc CRPD/C/THA/CO/1 (12 May 2016) para 37.

⁸⁵ CRPD Committee, ‘Concluding Observations on the Initial Report of the United Arab Emirates’ UN Doc CRPD/C/ARE/CO/1 (3 October 2016) para 35 (a).

⁸⁶ CRPD Committee, ‘Concluding Observations on the Initial Report of Qatar’ UN Doc CRPD/C/QAT/CO/1 (2 October 2015) para 35.

⁸⁷ CRPD Committee, ‘Concluding Observations on the Initial Report of Slovakia’ UN Doc CRPD/C/SVK/CO/1 (17 May 2016) para 53.

⁸⁸ Immigration and Refugee Protection Act, Sc 2001 c27, available at: <canlii.cat/t/52zzh>.

⁸⁹ Carolyn Zaikowski, ‘Canada is a Progressive Immigration Dream Unless You Have a Disability’, Washington Post (February 5, 2017), available at: <https://www.washingtonpost.com/posteverything/wp/2017/02/03/canada-is-a-progressive-immigration-policy-dream-unless-you-have-a-disability/?utm_term=.ffd9e38a0fb9>.

⁹⁰ ibid citing Roy Hanes, available at: <http://www.ccdonline.ca/en/socialpolicy/access-inclusion/none-still-too-many>.

⁹¹ A list of reservations and objections thereto to the CRPD, along with a list of signatures and ratifications is available at: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en>.

⁹² Memorandum submitted by the UK’s Equality and Human Rights Commission to the CRPD Joint Committee (4 January 2009) paras 3.8–3.9, available at: <https://publications.parliament.uk/pa/jt200809/jtselect/jtrights/9/09we18.htm>.

⁹³ Australian reservation to CRPD.

⁹⁴ National Ethnic Disability Alliance, ‘Refugees and Migrants with Disability and the United Nations Convention on the Rights of Persons with Disabilities’ (21 October 2008), available at: <http://apo.org.au/node/8280>.

⁹⁵ Also see item 4005, schedule 4, Public Interest Criteria and Related Provisions, Australia Migration Regulations 1994, made under the Migration Act of 1958.

⁹⁶ Malaysian reservation to the CRPD. See for an in-depth analysis, commentary to Art 46 CRPD in this volume.

⁹⁷ Austria 24 June 2011.

⁹⁸ Belgium 28 June 2011.

⁹⁹ Germany 3 August 2011.

¹⁰⁰ Hungary 1 August 2011.

¹⁰¹ Portugal 26 July 2011.

¹⁰² Slovakia 18 July 2011.

¹⁰³ Sweden 6 July 2011.

¹⁰⁴ Thai reservation to CRPD. On 5 February 2015, Thailand informed the UN Secretary-General that it had withdrawn its Article 18 interpretive declaration.

¹⁰⁵ Roslyn Moloney, ‘Incompatible Reservations to Human Rights Treaties: Severability and the Problem of State Consent’ (2004) 5 Melbourne JIL 155.

¹⁰⁶ eg pursuant to HR 3734—Personal Responsibility and Work Opportunity Act of 1996, 104th Congress (available at: <https://www.congress.gov/bill/104th-congress/house-bill/3734>) most non-US citizens were made ineligible for most forms of social benefits, a situation which therefore applied to all immigrants and did not target a particular category; see Kristen Hill Maher, ‘Who Has a Right to Rights? Citizenship’s Exclusions in an Age of Migration’ in Alison Brysk, Globalisation and Human Rights (University of California Press 2002) 21.

¹⁰⁷ UN HRCtee, ‘General Comment No 15: The Position of Aliens under the Covenant’ UN Doc HRI/GEN/1/Rev 9 Vol 1 (11 April 1986) paras 5–6 and 8.

¹⁰⁸ CRPD Committee, ‘Concluding Observations on the Initial Report of Mexico’ UN Doc CRPD/C/MEX/CO/1 (27 October 2014) para 39.

¹⁰⁹ CRPD Committee, ‘Concluding Observations on the Initial Report of the Cook Islands’ UN Doc CRPD/C/COK/CO/1 (15 May 2015) para 37.

¹¹⁰ CRPD Committee, ‘Concluding Observations on the Initial Report of the Republic of Korea’ UN Doc CRPD/C/KOR/CO/1 (29 October 2014) para 35.

¹¹¹ CRPD Committee, ‘Concluding Observations on the Initial Report of the European Union’ UN Doc CRPD/C/EU/CO/1 (2 October 2015) para 48.

¹¹² ibid.

¹¹³ ‘Implementation of the CRPD: Initial Report Submitted by Qatar’ UN Doc CRPD/C/QAT/1 (9 July 2014) para 36.

¹¹⁴ ‘Implementation of the CRPD: Initial Report Submitted by Mauritius’ UN Doc CRPD/C/MUS/1 (11 August 2014) para 57.

¹¹⁵ Administrative Regulation TR-334/2010, issued by the Telecommunications and Transport Monitoring and Social Control Authority. Cited in ‘Implementation of the CRPD: Initial Report Submitted by Bolivia’ UN Doc CRPD/C/BOL/1 (28 September 2015) para 264.

¹¹⁶ Art 7 of the Nationality Processing Guidelines. Cited in ‘Implementation of the CRPD: Initial Report Submitted b Korea’ UN Doc CRPD/C/KOR/1 (22 February 2013) para 84.

¹¹⁷ ‘Implementation of the CRPD: Initial Report Submitted by Denmark’ UN Doc CRPD/C/DNK/1 (7 May 2013) para 58.

¹¹⁸ ibid para 160.

¹¹⁹ ‘Implementation of the CRPD: Initial Report Submitted by Germany’ UN Doc CRPD/C/DEU/1 (7 May 2013) para 142.

¹²⁰ ‘Implementation of the CRPD: Initial Report Submitted by Hungary’ UN Doc CRPD/C/HUN/1 (28 June 2011) para 105.

¹²¹ EC Committee on Employment and Social Affairs ‘Report on the Implementation of the UN Convention on the Rights of Persons with Disabilities with special regard to the Concluding Observations of the UN CRPD Committee’—Doc A8-0203/2016 (9 June 2016) paras 31–32.

¹²² Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection, OJ L 180 (29 June 2013) 60–95.

¹²³ Council of Europe, Commissioner for Human Rights, ‘The Right to Leave a Country’ (CoE October 2013).

¹²⁴ The only drafting variation is the usage of gender-neutral language in the CRPD provision. See also Hurst Hannum, The Right to Leave and Return in International Law and Practice (Springer 1987); Ilias Bantekas, ‘Repatriation as a Human Right under International Law and the case of Bosnia’ (1998) 7 Michigan State University Journal of International Law and Practice 53.

¹²⁵ UN HRCtee, ‘General Comment No 27: Article 12 (Freedom of Movement)’ UN Doc CCPR/C/21/Rev 1/Add 9 (2 November 1999) para 8.

¹²⁶ ibid.

¹²⁷ ibid.

¹²⁸ ibid para 20.

¹²⁹ See s 21 of the Constitution of the Republic of South Africa (Summary no 108 of 1996).

¹³⁰ General Comment No 27 (n 118) para 21; see Schulze (n 6) 110.

¹³¹ Chairman’s Text as amended by the International Disability Caucus, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm>.

¹³² Nicola Burns, ‘No Entry: Exploring Disability and Migration’ Nordic Network on Disability Research (21 October 2013).

¹³³ CRC Ctee, ‘General Comment No 9 (2006), The Rights of Children with Disabilities’ UN Doc CRC/C/GC/9 (27 February 2007) para 35.

¹³⁴ CRPD Committee, ‘General Comment No 1 (2014) Article 12: Equal Recognition Before the Law’ UN Doc CRPD/C/GC/1 (19 May 2014) para 31.

¹³⁵ CRPD Committee, ‘General Comment No 3 (2016) Article 6: Women and Girls with Disabilities’ UN Doc CRPD/C/GC/3 (25 November 2016) para 35.

¹³⁶ CRD Ctee, ‘General Comment No 7 (2005: Implementing Child Rights in Early Childhood’ UN Doc CRC/C/GC/7/Rev 1 (20 September 2006) para 25.

¹³⁷ CRPD Committee, ‘Concluding Observations on the Initial Report of Ethiopia’ UN Doc CRPD/C/ETH/CO/1 (4 November 2016) para 41.

¹³⁸ CRPD Committee, ‘Concluding Observations on the Initial Report of Uganda’ UN Doc CRPD/C/UGA/CO/1 (12 May 2016) para 36.

¹³⁹ CRPD Committee, ‘Concluding Observations on the Initial Report of Gabon’ UN Doc CRPD/C/GAB/CO/1 (2 October 2015) para 42.

¹⁴⁰ CRPD Committee, ‘Concluding Observations on the Initial Report of Kenya’ UN Doc CRPD/C/KEN/CO/1 (30 September 2015) para 35.

¹⁴¹ CRPD Committee, ‘Concluding Observations on the Initial Report of the United Arab Emirates’ UN Doc CRPD/C/ARE/CO/1 (3 October 2016) para 35 (c).

¹⁴² CRPD Committee, ‘Concluding Observations on the Initial Report of Paraguay’ UN Doc CRPD/C/PRY/CO/1 (15 May 2013) para 45.

¹⁴³ CRPD Committee, ‘Concluding Observations on the Initial Report of El Salvador’ UN Doc CRPD/C/SLV/CO/1 (8 October 2013) para 39.

¹⁴⁴ CRPD Committee, ‘Concluding Observations on the Initial Report of Guatemala’, UN Doc CRPD/C/GTM/CO/1 (30 September 2016) para 51.

¹⁴⁵ See above notes.

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