NHRI response to the questions proposed by the Chair on Monitoring
Draft No. 1 - (MS Word)
Intervention by National Human Rights Institutions
Tuesday, 31 January 2006.
National Human Rights Institutions wish to stress two issues in the context of draft Article 4. We consider Article 4 as fundamental to ensuring that this Convention becomes an effective instrument for ensuring that persons with disabilities enjoy their human rights in practice.
These issues are, first, the need to include a provision on remedies, and secondly, the need to amend para 2 in order to adopt an understanding of the nature of economic, social rights and cultural rights that is more in keeping with modern international and comparative jurisprudence on the subject.
We have spoken to these issues at earlier sessions of the Committee, so will comment only briefly on them.
First, with respect to remedies, on the basis of their extensive national experience in responding to allegations of violations of human rights, National Institutions consider that it is critical to include a provision which will require States parties to ensure that persons with disabilities who suffer violations of their rights obtain remedies for those violations.
Remedies may take various forms – judicial, administrative, and legislative, among others. It is true that, unlike the ICCPR, the ICESCR does not contain an explicit provision on remedies. Yet the Committee on Economic, Social and Cultural Rights operates under a presumption in favour of some form of domestic remedies for such rights. In the language of General Comment 9 of the ICESCR, such remedies – whatever shape they take - must be ‘accessible, affordable, timely and effective’.
Whatever form they may take, there must be remedies if the guarantees of rights set out in this Convention are not to remain empty words.
Indeed, the principle of remedies for human rights violations is part of customary international law binding on all member States.
And, a guarantee of a remedy for a violation is included in many human rights treaties, including universal treaties such as the ICCPR, CAT and CEDAW and various regional human rights treaties.
We see no reason why, if only for consistency, it should not be included in this one. And we see every reason in principle for such an addition to ensure that the law in action matches the law in the books.
Secondly, and with respect to States Parties obligations with respect to progressive implementation, while appreciating the efforts made in the draft text, National Human Rights Institutions remain uneasy with the language proposed in draft Article 4.2.
Fifty years ago the separation of different categories of rights into the two Covenants introduced a false distinction between two categories of human rights which has taken the last five decades to overcome. The caricature that only civil and political rights are immediately implementable and that economic, social and cultural rights can only be progressively implemented, was discredited a long time ago.
We appreciate the effort made in the Chair’s text to reflect a more nuanced and modern perspective based on contemporary human rights law. It is now well accepted that the obligation of non-discrimination in relation to ESCRts is in general capable of immediate implementation. But the immediate applicability of ESCRts goes well beyond the obligation of non-discrimination. Most, if not all, ESCRts have aspects which are capable of immediate implementation, just as they have aspects which require to be implemented progressively.
Our own experience with both categories of rights at the national level confirms this, but we feel that the draft Article 4.2 does not yet adequately reflect it.
A further difficulty arises from how one characterises some of the rights in this Convention. While some might clearly be ESCRts or CPRts, other rights – such as the right of accessibility – are hybrid rights, some aspects of which can be given effect to immediately, others only progressively. It would be unfortunate if the effect of the current draft were to make the entirety of this right subject only to an obligation of progressive implementation.
National Human Rights Institutions respectfully request that the text should be amended along the lines of the Bangkok draft1 (which is largely reflected in the IDC text) to provide that States Parties undertake to give immediate effect to the aspects of those rights which are capable of immediate implementation (including, but not limited to obligations of non-discrimination in the enjoyment of those rights); and in relation to other aspects of those rights, to implement them in a progressive manner.
This would ensure that this Convention does not simply reproduce the mistakes of the past but will be an instrument that embodies 21st century human rights thinking.
We are happy to support the EU proposal as an acceptable way forward.
NHRI Intervention – Article 2 (Definitions).
Tuesday 31 January, 2006.
Thank you Mr Chair,
National Human Rights Institutions have two points to make with respect to draft Article 2.
First, National Human Rights Institutions strongly support the proposal put forward by many delegations including Canada, Australia, Lichtenstein, the EU and also the IDC to amend the definition of discrimination to explicitly include a “denial of reasonable accommodation” as a form of discrimination. Like many others, we view this issue as crucial.
The intimate connection between ‘reasonable accommodation’ and non-discrimination is the most visible positive accomplishment of modern non-discrimination law in the context of disability. Indeed, it is highlighted in General Comment 5 of the Committee on Economic, social and cultural rights.
It would seem strange, to say the least, if the most innovate aspect of comparative disability discrimination would be conspicuous by its absence in this convention.
As you indicated yesterday, I chaired the sub-group of the Working Group in January 2004 that worked on this issue. I will not rehearse the debate within the Working Group and the opposition within that group to connecting ‘reasonable accommodation’ to non-discrimination. Thats for the history books. Suffice it to say, that national positions have evolved quite positively since then. National Human Rights Institutions both acknowledge these positive steps and welcome them.
If there is real but largely inarticulate fear that the concept might provide a back door allowing for the judicial enforceability of a broad sweep of socio-economic rights beyond those that give rise to obligations of immediate effect then this fear is misplaced.
The concept ‘reasonable accommodation’ stems from a very simple insight that refraining from discrimination may not be enough to respect difference – sometimes, something more should happen to accommodate the difference. That something more usually costs nothing and is normally quite modest.
The obligation of ‘reasonable accommodation’ does not lead to wholesale structural change. It does not amount to ‘positive’ or ‘affirmative action’ in the traditional sense. And it certainly does not equate to economic, social and cultural rights. In short, the fear that the concept is some sort of back-door to allow for the full judicial enforceability of all socio-economic rights is without foundation.
The US courts and indeed many other courts throughout the world have built up an elaborate body of jurisprudence on ‘reasonable accommodation’ over several decades and especially since the enactment of the rightly famous Americans with Disabilities Act (1990). This comparative jurisprudence is almost unanimous in explicitly pegging ‘reasonable accommodation’ to the non-discrimination norm.
In point of fact, the concept began its life on the ground of religion but was, of course, subsequently made more famous on the ground of disability.
It is in this light that National Human Rights Institutions greatly welcome the draft text to reconnect ‘reasonable accommodation’ with non-discrimination now put forward by many delegations including Canada, Australia, Lichtenstein and the European Union. Such language would be to the effect that discrimination on the basis of disability includes ‘denial of reasonable accommodation.’
We are less worried about where it is placed – at the start of the definition of discrimination as suggested by the EU or toward the end as suggested by Lichtenstein - but we stress the importance of restoring the link and thank national delegations for their positive attitude on the subject.
Secondly, National Human Rights Institutions also strongly support the EU’s proposal to insert the word ‘unless’ in place of the word ’not’ in the definition of ‘reasonable accommodation’ for the reasons put forward so clearly and succinctly by the Presidency.
Article 12, para 2
after the words "in all fields"...
States parties shall ensure that, in their laws relating to civil and criminal responsibility, disability shall not, as such, constitute the basis for the non-ascription of responsibility.
NHRIs – Article 23 Intervention.
23 January 2006.
National Human Rights Institutions have listened to the discussions with keen interest.
The National Institutions consider it important in the context of Article 23 to recall that the underlying purpose of this convention is to secure the equal effective enjoyment of all human rights for persons with disabilities. One tool – perhaps one of the strongest tools – with which to ensure this is the non-discrimination tool. Article 23 is clearly cast as a non-discrimination provision as applied in the context of the family. Given the foundational role of the family to humanity this Article plays a potentially vital role in opening up family life to all.
Nevertheless, we are genuinely worried with the phrase ‘in accordance with national laws, customs and traditions of general application’ in Article 23.1(a). We would prefer its deletion and in this regard we endorse the reasoning advanced by many delegations including the EU and the IDC in this regard. This seems altogether prudent to us.
We strongly echo the call of Chile, Mexico and the USA as well as the IDC for an explicit prohibition against forced sterilization. When all is said and done, this is something that goes to the dignity of what it means to be human. Whether this prohibition finds a home in this Article or elsewhere is secondary. The primary thing is to prohibit it. This is a matter on which the High Commissioner for Human Rights of the Council of Europe, among others, has been active.
With respect to Article 23.2 we see this paragraph as simply ensuring that whatever family institutions exist in national law are open to persons with disabilities on a truly non-discriminatory manner. Discriminatory exclusion has been the problem in the past. And this is what the sub-paragraph accurately targets. It is in that spirit that we endorse the general approach you have taken as Chair in draft Article 23.2.
In particular we feel that the phrase ‘where these concepts exist in national law’ is sufficiently flexible to allow for a diversity of family institutions – yet it is also sufficiently concrete to ensure that the non-discrimination principle can actually attach to whatever institutions happen to exist under domestic law. And indeed, this approach is fully congruent with Article 20 paragraph 3 of the Convention on the Rights of the Child which similarly and appropriately genuflects before the diversity of family institutions under comparative law.
NHRI Intervention on Education (Art 24).
National Human Rights Institutions consider the right to education as foundational since it is an end in itself and is also a means to the end of opening up doors to self-development as well as economic and social advancement – not to mention equal citizenship.
We fully support the ethic of full inclusion on a non-discriminatory basis that is the very essence of this draft Article. Such inclusion – when achieved - has the added benefit of sensitising other children as well as educators themselves to the presence and equal rights of persons with disabilities.
National Human Rights Institutions have three brief observations on the draft text.
First, we echo the sentiment of Jamaica and others as to the importance of training. If teachers and others are not sensitised to disability then they might view the presence of children with disabilities as a ‘problem’ and this may lead to a negative attitude toward difference in the classroom. This is precisely why there is a separate Rule in the UN Standard Rules dealing with this issue: Rule 19. It follows in our view, that flexibility should be shown to the proposals put by both Jamaica and Jordan to highlight the importance of training by separating out the existing Article 24.2.e into a free-standing paragraph. This would not alter content – but it would serve to reinforce the central message of the convention.
Secondly, and with respect to Article 24.2.d we view the texts proposed both by Canada and Australia favourably since they seem to us to better anchor the ethic of full inclusion and non-discrimination in the text, are appropriately person-centered and would place a much clearer onus on States to ensure full inclusion.
We believe the Canadian and Australian draft texts would bring Article 24.2.d into much closer alignment with existing international law and policy in this regard including specifically:
General Comments 5 and 13 of the Committee on Economic, Social and Cultural Rights,
Rule 6 of the Standard Rules,
as well as Article 2.2 of the UNESCO Convention against Discrimination in Education.
We believe that these international legal provisions and the sensitive balance they contain on this vexed issue should be revisited and are confident that when they are the practicality of the Canadian and Australian approach will become plain.
The Canadian and Australian texts in this regard would, in our view would have the merit of maximising consistency with existing international law and policy – surely a desirable goal in any standard setting exercise - and would add real value in the specific context of disability. These draft texts bear further serious study as other delegations have indicated.
And last, we agree with the EU and others to the effect that all drafting efforts should be made to avoid the impression that the non-discrimination norm is subject to the overall limitation of progressive achievement. The view of the EU on this also seems well grounded in existing international law and it would be sensible to bear this in mind during the drafting process as the text moves forward.
NHRI Intervention on Article 25 (Health).
National Human Rights Institutions have two brief observations on the draft text.
First, National Human Rights Institutions believe that the text proposed by you would be further strengthened with the addition suggested by US in a new para (e) with respect to the conditions under which genetic information can be obtained and used. We remind delegates that this matter already arose in the Working Group. Footnote 78 of the Working Group text stated:
Some members of the Working Group suggested there should be a specific mention of the fields of (bio)medical, genetic, and scientific research, and its applications, and its use to advance the human rights of persons with disabilities.
We are naturally delighted to see the United States move these ideas forward with its draft textual proposals for a new para (e). There is ample precedent in, for example, Article 11 of the Council of Europe Biomedicine Convention. And we are of course mindful of the UNESCO Universal Declaration on the Human Genome and Human Rights – especially Articles 6 and 7. We view the US proposals in this regard as fully in keeping with the norms and principles contained in these instruments and a welcome step forward in the disability context. We therefore urge delegations to take the ideas contained in the US proposal seriously as the draft text moves forward.
Secondly, we recognize that the ideas contained in Para D and new E and G proposed by the US in Article 25 and para 3 of article 17 are interconnected and premised on the principles of equality and autonomy. Indeed, they are throughout consistent in their intent.
However, the ideas contained in Para 4 of article 17 seem to make a slight deviation and may amount to inconsistency. Our intent is not to reopen the debate on involuntary intervention but to simply to highlight a possible drafting inconsistency. In that respect – and for the sake of drafting consistency - it may be a good idea to revisit the congruence between Article 17 and Article 25.
NHRIs – Intervention on Employment (Art 27).
National Human Rights Institutions have a few brief interventions on draft Article 27.
First, we are interested in the draft text put forward by Israel with respect to a proposed new sub-para (j) dealing with a strong dynamic toward mainstreaming in the open labour market as well as protecting all workers with disabilities no matter what sector of the employment sphere they occupy.
We recall that General Comment 5 of the ICESCR states:
The "right of everyone to the opportunity to gain his living by work which he freely chooses or accepts" (art. 6 (1)) is not realized where the only real opportunity open to disabled workers is to work in so-called "sheltered" facilities under substandard conditions.
In our view, this powerfully supports the dynamic of integration.
General Comment 5 also states:
The right to "the enjoyment of just and favourable conditions of work" (art. 7) applies to all disabled workers, whether they work in sheltered facilities or in the open labour market. …States parties have a responsibility to ensure that disability is not used as an excuse for creating low standards of labour protection or for paying below minimum wages.
In our view, this powerfully supports the call for decent conditions of employment and standards for all.
We believe there is merit in the Israeli proposal in that it reaches such hidden workers and their conditions of employment – and seems crafted to advance (and not detract from) Article 7 of the ICESCR in the disability context. We believe there is also merit in the Israeli proposal as it seeks to place a clear onus on States to move workers with disabilities into the open and supported labour market and to retain them there.
We see the Israeli proposal as trying to provide a dynamic toward the open market and also taking care to protect all workers with disabilities no matter where they happen to find themselves as required by Article 7 of the ICESCR. We feel the dynamic of open labour market integration is crucially important and could perhaps be made even clearer in the draft text.
We are mindful of the reasoned and indeed powerful interventions of many other delegations in this regard which deserve to be accommodated in sub-para (j) if it is, in some modified form, to be included. Indeed, we ourselves are somewhat concerned that the phrase ‘adequately resourced’ might be misunderstood to mean, or lead to, the needless perpetuation of sheltered workshops. We feel confident this is not the intention behind the Israeli proposal and that flexibility can be found on this. We would therefore respectfully submit that the Israeli deserves further study and consideration as the text moves forward and especially the moral imperative of ensuring a dynamic toward the open labour market and ensuring decent standards for all.
Secondly, we do not favour the removal of the phrase ‘affirmative action programmes’ from Article 27(f). To do so would seem strangely inconsistent with draft Article 5(4) which creates a permission – not an obligation – to adopt measures which advance de facto equality. Such a saving clause is to be found in most international instruments on discrimination - and is found in most comparative discrimination legislation. It may be called different things in different jurisdictions such as ‘employment equity’ in Canada, but regardless of the term used, the meaning is universally accepted. In our view, para (f) simply seeks to anchor the general permission for positive action that is contained in Article 5(4) in the specific context of employment.
In any event, the phrase as used in the context of 27(f) is rightly not prescriptive as to the kinds of affirmative actions that might be adopted. This is rightly a matter for the local legal culture.
Thirdly, we support the Kenyan proposal – which builds on an IDC initiative – to include a provision that would ensure that persons with disabilities enjoy equal protection with all others against servitude and forced or compulsory labour. In our view this would do no more than fill a gap in the text and is fully congruent with Article 8 of the ICCPR.
Lastly, we support the Canadian proposal to the effect that mention might also be made of workers who acquire disabilities during the course of their employment in the draft text. We consider that such a reference might best fit in para (a) after the words ‘continuance of service’ to then read ‘including those who acquire disability during the course of their work’.
National human rights institutions have 2 brief, but important, points.
Firstly, water is the first and foremost need of all human beings. Some delegates have voiced concerns about including an explicit reference to a right to clean water in art 28. These concerns seem to be based on that such a reference is not present in the text of the International Covenant on Economic, Social and Cultural Rights.
However, such a reference is explicitly included in article 14 of the Convention on the Elimination of All Forms of Discrimination against Women. Moreover, the Committee on Economic, Social and Cultural Rights has interpreted articles 11 and 12 of the International Covenant on Economic Social and Cultural Rights as including, and here I quote General Comment number 15, “the human right to water”.
Any concerns by states that the right to clean water is not a recognized human right can thus be put to rest. For additional comfort the phrase “on an equal basis with others” can be coupled with the reference to this right.
On the second issue, we echo the concerns about the language of the last section of paragraph 2 c) in art 28 as expressed by some delegations; including, Canada; New Zeeland and Israel.
We welcome the language proposed by Israel as well as the more elaborate language proposed by the IDC.
These proposals expressly address the need to make sure that all assistance to persons with disabilities promotes their autonomy and full participation in the community. This is the intention of para 2c) of the chairs text. However, national human rights institutions believe that the Israeli proposal and the IDC proposal improve on the chairs text by conveying both the crucial concept of individual choice, by referring to autonomy, and the express link to participation in the community.
NHRIs Intervention on National Monitoring – (33 + Chair’s Discussion Text).
National Human Rights Institutions welcome your discussion text. We spoke at length our general approach to national and international monitoring on Monday and again at the seminar organised by the OHCHR yesterday. We will not repeat what we said then on national monitoring which is broadly in line with the views put forward by the IDC.
Our detailed draft text on both national and international monitoring which we presented at the 6th Ad Hoc Committee is on the ENABLE website. Delegates may access it by looking at the documentation on the website for the 6th session. It is therefore freely available to delegations for consideration over the next few days especially as they ponder their positions on international monitoring.
We will study your discussion text in detail and especially on international monitoring and it is too early to pronounce on it exhaustively at this stage.
We do however appreciate the focus in the discussion text on effective national monitoring.
First, we reiterate a point we have emphasised throughout – namely, that implementation and monitoring should be kept distinct – both conceptually and institutionally. Like Jordan, we feel that perhaps a separate Article on implementation and on a clear focal point would clarify the focus of Article 52 on monitoring. Perhaps broader language on implementation could be inserted into Article 4 on General Obligations.
Secondly, and with respect to implementation, regardless of where it is placed in the text, we would also like to see a reference to the compilation of National Action Plans in para 1 of Article 52(1).
Thirdly, With respect to national monitoring, we of course appreciate the reference to Principles governing the establishment and functioning of National Human Rights Institutions in the discussion draft text.
We agree with Jamaica that the important thing here are the essential principles of independence and a systematic approach to the tasks of the domestic monitoring body. We don’t think the detail in your draft discussion document strays unduly beyond what these general principles would support.
We specifically appreciate the fact that the Article 52 of the discussion text seeks to build on the model provided by the Optional Protocol to CAT – especially in Articles 17-18. This Protocol provides a recent, innovative model and we welcome it since it is flexible and is premised on the need to ensure effective national monitoring. In point of fact, most National Institutions are constructed along the lines of Articles 17-18 of this Optional Protocol and indeed have a much wider remit that torture which is the immediate subject of the OPCAT.
And we feel that one role of the national monitoring body should be to monitor progress under National Action Plans.
MONITORING AND IMPLEMENTATION MECHANISMS AT THE INTERNATIONAL AND NATIONAL LEVELS
Intervention by National Human Rights Institutions
Monday, 23 January 2006
Throughout these proceedings and from the outset, the National Human Rights Institutions have stressed the importance of effective national and international mechanisms for monitoring and implementing the Convention. Our own experience as front line human rights institutions tells us that an elegantly crafted legal text is one thing: making sure that it stimulates reform is quite another. That is why monitoring is so important.
We previously outlined our broad proposals in a paper circulated at the 6th session of the Committee, and we will at this time only briefly recall the major elements of those proposals. These proposals were fully aired and supported by NHRIs at a special seminar at Harvard in November 2005.
We welcome the background paper prepared by the Office of the High Commissioner.
We especially appreciate the manner in which the paper highlights a range of possibilities for improving on existing human rights treaties and practice and draws attention to other systems of monitoring. Our proposals and the paper presented on behalf of the OHCHR share the same purpose – to have an effective monitoring mechanism – and are in broad alignment.
National institutions consider it important to distinguish between monitoring and implementation at the national level and monitoring at the international level. We see international monitoring as adding value to national processes of implementation and reform – and not substituting for them.
At the national level States must take charge of the reform process that will clearly need to be intensified to achieve the goals of the draft convention. We believe that it is important to distinguish between two types of domestic bodies that will be logically required – the first to provide a focal point for implementation within the executive and a second that is independent of the executive to monitor progress.
Ms Jane Connors reminded us that one of the primary functions of reporting is precisely to stimulate constructive engagement within States. It is in this light that we see the adoption of a National Plan of Action, starting with a baseline report, as a critical feature of implementation of the Convention.
At the same time, there is also an important role to be played by a monitoring mechanism independent of the executive government. This might be a national human rights commission or disability commission, an equality ombudsperson, or similar institution. We appreciate that institutional arrangements vary from State to State, but consider that the approach adopted in the Optional Protocol to the Torture Convention is a useful model.
Therefore, we recommend that the Convention oblige States to identify the agency or agencies independent of government that will monitor the implementation of the Convention in the State; the Paris Principles provide a useful framework for identifying the characteristics and functions of such bodies. These institutions might have a number of functions, including increasing awareness of the Convention, making recommendations for better implementation, and considering complaints.
International level monitoring
International monitoring is not an end in itself – it is a means to the end of ensuring that change happens where it counts most – in the countries where people with disabilities live. It will be judged by whether it adds value to domestic processes of change. We believe it can.
National institutions consider that effective international monitoring of the new treaty will require a committee of independent experts similar to those which exist under other UN human rights treaties. The Committee should be given the functions of:
• Considering regular reports from States parties on their implementation of the Convention – the reporting procedure should be a flexible one, with the Committee having the power to tailor the periodicity of reporting, and the content of reports requested from States, and should contain a clear mandate for follow-up
• Considering complaints from individuals and groups who claims that the State has failed to fulfil its obligations under the Convention
• Conducting inquiries on its own motion into situations where there are gross, systematic or serious violations of the rights guaranteed in the Convention
• Adopting general comments on the implementation of the Convention as a means to assisting States parties and others in its implementation.
In addition to these functions, which a number of the existing treaty bodies already perform under their treaties, we see the Committee as playing a proactive role: it should have the power to undertaken thematic studies to point the way toward rational and principled reform, to undertake visits, and to provide assistance to States parties and to national institutions to support implementation of the Convention.
Due to the historic neglect of persons with disabilities National Institutions consider that innovative methods are appropriate for the selection of members of the Committee, to ensure that all members of the Committee bring to it relevant expertise in disability, human rights or other relevant fields; that the Committee has strong representation of persons with disabilities; that members do not hold any position which is inconsistent with the independence expected of a Committee members; and that they have the time and commitment required to undertake the onerous duties of a Committee member.
In particular, we propose:
(a) any persons nominated by States parties should normally be put forward only after genuine consultation with representative organisations of persons with disabilities
(b) half the members of the Committee would be chosen by States parties from persons nominated by States; the other half of the members would be chosen by States parties from a list of persons nominated by the UN High Commissioner for Human Rights after due consultation with representative organizations of persons with disabilities.
We also see it as important to provide explicitly for the participation of persons with disabilities and DPOs in the work of the Committee more generally.
We are aware that the process of treaty body reform may ultimately lead to the establishment of a new unified standing treaty body to replace the existing committee. However, that seems some way off, and we believe that this possibility can be provided for. A provision in the treaty which left open the possibility of transferring the committee’s function to a new super-treaty body – along the lines of the article in the draft Disappearances Convention -- could be included in the Convention. However, any such transfer should be conditional on the possession by the new committee’s members of relevant expertise in disability issues and on ensuring the participation of persons with disabilities as members and non-governmental organisations in the work of the committee.
We also support the establishment of a Global Disability Advocate or Ombudsperson to complement the role of the Committee. We need more than the law – we need an international champion of the law.
In conclusion, the OHCHR’s paper and our own proposals, as well as those of the IDC, provide a basis for taking this issue to the next level. We believe that the next logical step in moving the debate forward would be if you, Mr Chair, were to introduce a draft text for discussion by the Ad Hoc Committee, if possible during this session..
National Human Rights Institutions - Proposal on Monitoring - 10 August 2005