33 - National implementation and monitoring
Background Documents | Article 33 Background
Seventh Session | Sixth Session
Fourth Session | Third Session | Working Group
National Human Rights Institutions
Meeting convened by the Office of the Swedish Disability Ombudsman
Children's Rights Alliance for England
International Save the Children Alliance
Landmine Survivors Network
People with Disability Australia
Working Meeting of NGOs for people with disabilities from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Article 25.- Le suivi de la mise en œuvre de la Convention.
Au delà du suivi au niveau national, la délégation camerounaise estime qu’il est nécessaire de prévoir, comme c’est le cas dans la plupart des conventions internationales, un organe de suivi au niveau international, à l’égard duquel les Etats parties à la convention devraient rendre compte des mesures prises pour assurer la mise en œuvre des dispositions de ladite convention.
La Coopération Internationale
Si la convention en élaboration se veut un cadre normatif ambitieux, il devrait néanmoins être pris en compte, pour l’effectivité de son application, non seulement des capacités réelles des Etats, dans leur grande diversité socio-économique, à mettre en œuvre les dispositions qui vont être adoptées, mais aussi des mécanismes de soutien nécessaires, notamment le renforcement de la coopération technique et financière internationale d’une part, et d’autre part la mise en place au sein des Etats d’un Fonds de solidarité. Il importe de relever que le Cameroun appuie entièrement la proposition du groupe africain relative à la coopération internationale.-
EU position on International Monitoring Mechanisms (Article 25)
• The European Union is strongly committed to the full and effective implementation of international human rights instruments. The EU is entirely convinced of the need for this convention to have a strong and effective international monitoring mechanism.
• The purpose of this new convention, as we have previously stated, should be to ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities. To this end, strong and effective monitoring mechanisms are essential in order to ensure that this convention positively impacts upon the lives of persons with disabilities.
• The members of the Ad Hoc Committee will be aware that the operation of the existing treaty monitoring system has been under review for some time. This review has been born out of a number of factors, among them: the overall UN reform effort, as well as recognition that there is room for improving the effectiveness of these entities in delivering on their core function: of international oversight of the full implementation of the contents of the respective international human rights instruments.
• A number of points are emerging from treaty body reform debate:
o The significant delays in the submission by member states of initial and periodic reports.
o The considerable delays in consideration of reports presented and the necessity, on occasion, to up-date these reports due to these delays.
o The extent of reporting obligations which States Parties undertake and the non-reporting by some.
o The duplication of reporting requirements.
o A questioning of the effectiveness of the current format of fixed interval, broadly-based (often without a specific or thematic focus) and periodic reporting.
• The European Union considers that in coming up with an international monitoring mechanism for this convention, we should endeavour to be as innovative and creative as possible, with the clear goal of overseeing the full and comprehensive implementation of this new international human rights instrument. In developing a contemporary mechanism we must be cognisant of the strengths of the existing system of human rights treaty monitoring, while not replicating its weaknesses.
• For the EU there are a number of basic principles which must be encompassed within an effective international monitoring mechanism. Among these principles are the following:
o Recognition that monitoring is an obligation which all States Parties freely enter into when they sign and ratify a human rights convention.
o Those conducting the monitoring must be expert, independent of governments and of high moral standing, and should include an appropriate involvement of person(s) with disabilities.
o The desirability to formalise the role of civil society in the process.
o The necessity for adequate support for the mechanism from the UN Secretariat.
o The mechanism should take the work already undertaken by the existing treaty monitoring mechanisms fully into account, particularly with a view to avoiding duplication and ensuring consistency.
o The mechanism established should not be contrary to the overall UN reform effort.
o States Parties have a right and an obligation to engage actively with the mechanism. An effective and constructive dialogue should exist between the two, as well as among States Parties.
o Reporting should be effective and more focused than is currently the case. In this process, thematic reporting could be envisaged, upon request by the monitoring mechanism. Such a mechanism could have a competence to examine reports, request supplementary information and transmit comments and recommendations to the State Party concerned.
o Implementation and follow-up is an essential part of the monitoring process. We should discuss the need for State Party’s reporting on the implementation of recommendations of the monitoring mechanism. The monitoring mechanism could also have a role in the national implementation process by offering expert advice. In addition the monitoring mechanism could have an important role in identifying good practices in the implementation of the Convention.
o Monitoring is not an end in itself, it is a means to an end, which is the effective implementation of the provisions of the convention.
EU PROPOSAL ON DRAFT ARTICLE 25 - MONITORING
National Implementation Framework
1. States Parties shall designate a focal point within Government for matters relating to the implementation of the present Convention, and give due consideration to the establishment or designation of a coordination mechanism to facilitate related action in different sectors and at different levels.
2. States Parties shall, in accordance with their legal and administrative system, maintain, strengthen, designate or establish at the national level a framework to promote, protect and monitor implementation of the rights recognised in the present Convention.
EU Proposal: Replace 1. and 2. by the following:
“States Parties shall ensure monitoring of implementation of the present Convention in accordance with their legal and administrative system. They shall establish or designate an appropriate mechanism to facilitate related action in different sectors and at different levels of society”.
EU Proposal for new paragraph 2:
“Where necessary, States Parties shall collect appropriate information to enable them to formulate and implement policies to give effect to this Convention. The process of collecting and maintaining this information should:
(a) comply with legally established safeguards to ensure confidentiality and respect for the privacy of persons with disabilities, including legislation on data protection;
(b) comply with internationally accepted norms to protect human rights and fundamental freedoms;
(c) where appropriate, be undertaken in collaboration with and following consultation of organisations of persons with disabilities.”
EU Proposal for new paragraph 3: (moved from Article 4):
“States, when developing and implementing policies and legislation to give effect to this Convention, shall take appropriate measures to ensure adequate consultation with, and involvement of, persons with disabilities and their representative organisations.”
EU Proposal for new paragraph 4:
"States Parties undertake to make the principles and provision of the Convention widely known by appropriate and active means" (CRC Art. 42).
EU Proposal for new paragraph 5:
Nothing in the present Convention shall affect any provisions which are more conducive to the enjoyment of human rights by persons with disabilities. (Cf CRC Art. 41)
ISRAEL’S PROPOSAL - ARTICLE 25:
INTERNATIONAL AND NATIONAL MONITORING
25. Establishment of Committee
1. For the purpose of reviewing this implementation by States Parties of this Convention, there shall be established a Committee on the Rights of Persons with Disabilities (hereinafter referred to as “the Committee”) which shall carry out the functions hereinafter provided.
2. The Committee shall consist, at the time of entry into force of this Convention, of 12 independent experts serving in their personal capacity, of high moral standing and impartiality, holding no position which compromises the appearance of independence and impartiality expected of the Committee, and shall have a recognized competence in the field covered by the Convention. Thereafter, for every additional twenty-five ratifications of this Convention, the membership shall increase by 2 members, until the composition of the Committee attains a maximum number of 20 members. This Committee, in its overall composition, shall:
a. Include members with disabilities, reflecting the entire spectrum of the various disabilities, who shall form the majority of the committee;
b. Comprise an equal number of women and men members;
c. Reflect equitable geographic distribution; and
d. Reflect representation of the principal legal systems.
3. Members of the Committee shall be elected by secret ballot by the States Parties from a list of persons nominated by the States Parties.
4. Each State Party may nominate one person from among its own nationals, chosen from a list of individuals proposed by organizations of persons with disabilities in that State. If no individuals are nominated by organizations of persons with disabilities in a State Party, the State Party may select a nominee, wherever possible in consultation with organizations of persons with disabilities or other appropriate groups.
5. The initial election shall be held no later than six months after the date of the entry into force of this Convention and subsequent elections every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to all States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties that have nominated them, and shall submit it to the States Parties not later than one month before the date of the corresponding election, together with the curricula vitae of the persons thus nominated.
6. Elections of members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the States Parties present and voting.
7. The members of the Committee shall serve for a term of four years. However, the terms of five of the members elected in the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting of States Parties.
8. The members of the Committee shall be eligible for re-election if re-nominated, but no person may serve more than two full terms on the Committee.
9. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party that nominated the expert shall appoint another expert from among its own nationals for the remaining part of the term. The new appointment is subject to the approval of the Committee.
26. Administration of the Committee
1. The Committee shall elect its officers for a period of two years. The Chair of the Committee shall be a person with a disability.
2. The Committee shall adopt its own rules of procedure.
3. The Committee shall meet for such time as is necessary for it to undertake its work, and this shall involve at least one meeting per year for a period of three weeks.
4. The meetings of the Committee shall be held at United Nations Headquarters and on a rotational basis at the offices of the regional commissions of the United Nations.
5. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee.
6. The members of the Committee shall receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide.
7. The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.
27. Reporting by States Parties
1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, a report on the legislative, judicial, administrative and other measures they have taken to give effect to the provisions of the present Convention.
2. States Parties shall submit an initial report within one year of the entry into force of the Convention for the State Party concerned and thereafter every 5 years or whenever the Committee so requests.
3. Reports prepared under the present article shall also indicate factors and difficulties, if any, affecting the implementation of the Convention in the State Party concerned, and shall be prepared in consultation with non-governmental organizations with competence in the field, including organizations of persons with disabilities.
4. The Committee shall adopt any further guidelines relating to the content of the reports, which it considers appropriate.
5. A State Party which has submitted a comprehensive initial report to the Committee need not in its subsequent reports submitted in accordance with this article repeat basic information previously provided.
6. States Parties shall make a draft of their reports widely available to the public in their own country in local languages and accessible formats 6 months prior to the finalization of the report and its submission to the Secretary-General.
7. States Parties shall make their reports widely available to the public in their own countries in local languages and in accessible formats as soon as possible after the State Party has submitted its report to the Secretary-General.
28. Consideration of Reports
1. The Committee shall examine the reports submitted by each State Party and shall transmit such comments as it may consider appropriate to the State Party concerned. This State Party may submit to the Committee observations on any comment made by the Committee in accordance with the present article. The Committee may request supplementary information from States Parties when considering these reports.
2. The Committee shall invite representatives of States Parties to participate in its consideration of the report. Where a State Party is significantly overdue with the submission of its report, the Committee may consider the situation in that State Party in the absence of a report.
3. The Committee may also adopt such general comments as it sees fit, and may also address recommendations to the United Nations and other bodies as it considers appropriate.
4. The Secretary-General of the United Nations may also, after consultation with the Committee, transmit to the specialized agencies as well as to intergovernmental organizations, copies of such parts of these reports as may fall within their competence.
5. The Committee shall present an annual report to the General Assembly of the United Nations on the implementation of the present Convention, containing its own considerations and recommendations, based, in particular, on the examination of the reports and any observations presented by States Parties. Such reports shall be made available in accessible formats.
6. The Secretary-General of the United Nations shall transmit the annual reports of the Committee to the States Parties to the present Convention, the Economic and Social Council, the Commission on Human Rights of the United Nations, the Commission on Social
Development of the United Nations and other relevant organizations.
7. Non States Parties may, on a voluntary basis, provide reports to the Committee for consideration.
29. Relationship between the Convention and Other Bodies
In order to foster the effective implementation of the Convention, to encourage coordination among relevant stakeholders and to encourage international cooperation in the field covered by the Convention:
1. The Committee shall request the specialized agencies, organs, special and thematic rapporteurs, of the United Nations, regional commissions of the United Nations, as well as intergovernmental organizations and other concerned bodies to submit, for consideration by the Committee, written information on such matters dealt with in the present Convention as fall within the scope of their activities.
2. The Committee shall invite representatives of specialized agencies, organs, special and thematic rapporteurs of the United Nations, as well as of intergovernmental organizations to be present and to be heard in its meetings whenever matters falling within their field of competence are considered.
3. The Committee shall seek, as relevant, technical assistance from the specialized agencies, organs, special and thematic rapporteurs of the United Nations and other relevant bodies to assist it in its consideration of the reports of States Parties.
4. The Committee may recommend areas of cooperation among States Parties and other competent bodies that will facilitate the implementation of this Convention. To this end, the Committee shall make its recommendations to the Secretary-General of the United Nations.
5. The Committee shall invite representatives of non-governmental organizations with expertise in the field of disability issues or other relevant fields to submit relevant information to the Committee to assist it in its work and to be present and to be heard in its meetings.
30. Relationship between Committee and National Mechanisms
In regard to the national mechanisms, the Committee shall:
1. Advise and assist States Parties, when necessary, in their establishment and management.
2. Maintain direct, if necessary confidential, contact with the national mechanisms and offer them training and technical assistance with a view to strengthening their capacities;
3. Advise and assist them in the evaluation of the needs and the implementation of the means necessary to strengthen the protection of the human rights of persons with disabilities;
4. Make recommendations and observations to the States Parties with a view to strengthening the capacity and the mandate of the national legislation and mechanisms of implementation of the promotion and protection of the human rights of persons with disabilities;
5. Cooperate, for the promotion and protection of the rights of persons with disabilities in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organizations working toward the strengthening of the rights of persons with disabilities and their full participation in the society, in general, and in the decision making process about their life, in particular.
31. National Human Rights Institution
1. Each State Party shall maintain, designate or establish within one year after the entry into force of this Convention of its ratification or accession, an independent national human rights institution for the promotion and protection of the rights of person with disabilities at the domestic level. Where an independent national human rights institution already exists in the State Party, its mandate shall be extended to comply with this convention and the provisions of this article shall apply with the necessary changes.
2. The States Parties shall guarantee the functional and financial independence of the national human rights institution as well as the independence of their personnel including by way of earmarked funding from the state budget.
3. The States Parties shall ensure that the composition of the national human rights institution includes majority representation of persons with disabilities, reflecting the entire spectrum of disabilities. They shall strive for a gender balance and the adequate representation of national, ethnic and minority groups.
4. States parties shall establish an advisory committee of the national human rights institution, which will include a majority of people with disabilities, reflecting the entire spectrum of disabilities. The Advisory Committee shall also include professionals, legal experts and public representatives. The Chairperson of the Advisory Committee shall be a person with disability.
5. The States Parties undertake to make available the necessary resources for the independent functioning of the national human rights institution.
6. The establishment, composition and operation of the national human rights institution shall be in compliance with the Principles relating to the State and Functioning of National Institutions for Protection and Promotion of Human Rights (the “Paris Principles”).
7. The competent authorities of the State Party concerned shall examine the recommendations of the national human rights institution and participate in dialogue with the body on measures taken to implement the provisions of this convention.
8. The national human rights institution shall be granted, at a minimum, the powers and functions to:
a. Make recommendations to the relevant authorities with the aim of improving the promotion and protection of the rights of persons with disabilities based on the obligations contained in this Convention and other relevant international norms.
b. Submit proposals and observations concerning existing or draft legislation.
c. Establish contact with the Committee, to submit information to the Committee and to meet with the Committee.
d. Conduct public awareness raising and other advocacy activities for the promotion of the rights and obligations included in the Convention.
e. Promote cooperation on issues related to the implementation of the Convention between all relevant bodies and stakeholders on the national and international level, including government ministries, state-funded bodies, local authorities, the private and voluntary sectors, the relevant non-governmental organizations, non-governmental organizations of people with disabilities, specialized agencies, and UN bodies.
f. Publish, with the relevant authorities, guidelines concerning all matters which are the subject of the Convention.
g. Identify the special needs of persons with disabilities and the selection of the most effective and appropriate ways to respond to these needs, including the initiation, commissioning and encouragement of research.
h. Promote the establishment of national quantitative data base and information centers about the rights and the relevant services in relation to persons with disabilities.
i. Advise about and protect persons with disabilities' rights.
j. Submit an annual national report on the implementation of the rights of persons with disabilities in the State Party concerned.
k. Investigate complaints by persons with disabilities and initiate investigations as to infringements of the rights of persons with disabilities.
l. Conduct mediation, arbitration and other action designed to settled disputes regarding the rights of persons with disabilities.
m. File legal actions in the courts and national tribunals in the Commission’s name and in the name of persons with disabilities with a view to protecting and implementing the rights of persons with disabilities.
n. Issue directions and orders with a view to protecting and implementing the rights of persons with disabilities.
National Human Rights Institutions
MEETING CONVENED BY THE OFFICE OF THE SWEDISH DISABILITY OMBUDSMAN
Observations Regarding Draft Article 25 on Monitoring
1. propose that the framework for national monitoring of the Convention be centred around the implementation of a National Plan of Action based on the Standard Rules.
2. suggest that the specific reference to the obligation to create “a focal point” within governments in Paragraph 1 of Draft Article 25 is omitted in order to leave the question of the particular design of a system for implementation at governmental level more open.
3. wish to underline the importance of the national framework for implementation of the Convention containing an institution independent from the government, in accordance with the Paris Principles. This institution should include experts from the disability movement and be empowered to, inter alia, monitor implementation of the Convention, raise awareness on the rights, obligations and remedies under the Convention, receive individual and group complaints, make recommendations to relevant entities, and interact with the international monitoring framework. The participants would like to emphasise the value of active and ongoing consultations with such an institution by other national and international actors involved in the implementation and monitoring of the Convention.
4. wish to emphasise that the international framework for monitoring the implementation of the Convention should under no circumstances be of a lesser standard than that of any existing United Nations Human Rights Convention. The design of monitoring mechanisms such as State reporting and individual and group complaints should benefit from the current review within the United Nations of the monitoring mechanisms under existing Conventions, and the Convention should be a part of any future reform targeting the monitoring mechanisms under United Nations Human Rights Conventions.
5. put forward that the international framework for monitoring the Convention should contain an independent body of experts, including experts from the disability movement.
6. propose that the design of an international mechanism for monitoring the Convention build upon the existing monitoring mechanisms under the Standard Rules conducted by the United Nations Special Rapporteur on Disability.
7. would like, finally, to emphasise that the consultation with DPOs must be an inherent part of the drafting, implementation and monitoring of the Convention.
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
National implementation framework
1. States Parties shall designate a focal point within government for matters relating to the implementation of the present Convention, and give due consideration to the establishment or designation of a coordination mechanism to facilitate related action in different sectors and at different levels.
2. States Parties shall, in accordance with their legal and administrative system, maintain, strengthen, designate or establish at the national level a framework to promote, protect and monitor implementation of the rights recognized in the present Convention.
3. States Parties shall undertake to systematically provide to all children accessible information about the rights in the present Convention
INTERNATIONAL SAVE THE CHILDREN ALLIANCE
Monitoring – a briefing paper
1 National implementation
It is clearly imperative that appropriate measures are introduced at national level for the effective implementation of the rights embodied in the Convention. In this regard, the recent General Comment No 5 from the Committee on the Rights of the Child provides a comprehensive overview of the range of measures needed in order to ensure meaningful fulfilment, protection and respect for human rights. These measures, while drafted in respect of a Convention addressing the rights of children, have general applicability in respect of the realisation of human rights for all other groups. Accordingly, consideration needs to be given to the following measures to promote implementation at a national level:
Legislative measures – States parties need to review all relevant legislation and related administrative guidance to ensure that it is consistent with the principles of the Convention. While this needs to be undertaken internally by government departments, some independent scrutiny, for example by parliamentary committees or national human rights institutions is also valuable. In addition, States parties must ensure that the provisions of the Convention are given effect within national law, whether by incorporation, introduction of new legislation or other means.
Judicial remedies – effective remedies must be available to enable persons with disabilities to redress violations. These remedies must to be accessible to persons with disabilities, including children, and provide for accessible information, access to independent advice and advocacy, safe access to complaints procedures and courts with the necessary legal and other assistance. Where rights have been breached, there should be appropriate reparation.
National strategy for implementation - a strategy must be developed for implementing all the rights embodied in the Convention and in respect of all persons with disabilities, irrespective of age, gender, impairment, ability, ethnicity, or other status. It must be developed through a process of consultation with adults and children with disabilities. The strategy must establish concrete and realisable targets.
Co-ordination of implementation of rights across government – most government departments will carry responsibilities which have a direct or indirect impact on the realisation of the rights in the Convention. It is not sufficient for exclusive responsibility to lie within one department such as the department for social welfare. Article 25 proposes the designation of a focal point within government for matters relating to the implementation of the Convention. Some governments have established dedicated units with responsibility for overseeing implementation of the rights of disabled people under national legislation. If such a unit has sufficiently high level authority within government, has trained staff and is properly resourced, it can be a highly effective means of giving visibility to disabled people and ensuring greater respect for their rights.
Monitoring implementation – States parties need to undertake a continuous process of disability impact assessment, a process of predicting the impact of any law, budget or policy which affects disabled people and their enjoyment of rights. This process needs to be built into government at all levels and as early as possible in the development of policy. Governments also have responsibility for monitoring implementation of rights. In addition, it is important for independent monitoring to be undertaken by, for example, parliamentary committees, academics, disabled people’s organisations, including youth and children’s organisations, and national human rights institutions.
Data collection – this is already dealt with in Article 6
Visibility in budgets – Governments need to undertake budgetary analysis to assess whether an appropriate proportion of national budgets are being allocated to persons with disabilities. It is not yet clear whether the final text of the Convention will include reference to the progressive realisation of economic, social and cultural rights, on the lines of the text included in the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. If it does, it needs to be recognised that States parties cannot assess whether they are fulfilling their obligations to the maximum extent of their available resources, unless disabled people are rendered visible in budgetary allocations.
Training and capacity building – all personnel involved in implementation of the Convention will require training and capacity building including government officials, parliamentarians, members of the judiciary, police, education and health professionals and staff working in institutions. The aim of such training is to promote awareness of persons with disabilities as subjects of rights, to increase awareness and understanding of the Convention and to promote active respect for all its provisions.
Co-operation with civil society – while implementation is an obligation for States parties, it also requires the engagement of all sectors of civil society. For example, in its General Comment No 14 on health, the Committee on Economic, Social and Cultural Rights emphasizes that all members of society have a responsibility regarding the realisation of the right to health and that States parties should therefore provide an environment which facilitates the discharge of those responsibilities. In addition, the State must work closely with organisations of disabled people, including those of and representing disabled children and young people, as well as other civil society actors.
Independent human rights institutions – the establishment of independent human rights institutions by States parties provides a mechanism by which they can be held to account on the commitments undertaken in the Convention. The Committee on the Rights of the Child in its General Comment No 2 observes that ‘the establishment of such bodies falls within the commitment made by States parties upon ratification to ensure the implementation of the Convention’. Such bodies provide a complementary process of monitoring and should not lead to governments delegating their own monitoring obligations. Human rights institutions must be independent of government and free to set their own agenda and determine their own activities.
Making the Convention widely known - rights are of little value if they are not known about. Both disabled and non-disabled adults and children need to understand the implications of the Convention and the status of disabled people as subject of equal rights. States parties need to develop a strategy for disseminating knowledge about the Convention throughout society.
2 International monitoring mechanisms
To date, the text of the draft Convention contains no provisions on international monitoring mechanisms. Clearly, if the new Convention is to have force, it will be necessary to introduce mechanisms through which states parties can be held to account on their obligations to disabled people. A number of different options exist, including:
• A new treaty body established under the terms of the new Convention to monitor States parties progress in implementation
• An international Ombudsman to oversee progress in ratification and implementation
• A provision included in the new Convention requiring the treaty bodies for the existing human rights conventions to appoint a minimum of two disabled human rights advocates to those bodies.
The International Save the Children Alliance supports the third approach for the following reasons:
1 Governments already have a heavy burden of reporting to existing treaty bodies. Acknowledgement of this problem has led to a current review of the reporting processes by the UN . It is at least possible that the establishment of a new treaty body under the terms of this Convention will act as a deterrent to ratification, with governments reluctant to undertake a commitment to further reporting. On the other hand, the appointment of disabled human rights experts to the existing treaty bodies would serve to strengthen their capacity for effective monitoring, while introducing no additional reporting obligations. It is axiomatic that these individuals are themselves disabled people with expertise in the field of disability rights.
2 The fundamental rights and freedoms embodied in the existing human rights treaties already extend to persons with disabilities. The problem is not that the rights do not exist: it is that they are not recognised or implemented for disabled people. A primary goal for this Convention, therefore, should be to ensure that those existing rights are more effectively monitored and implemented. Creating a separate treaty body will not advance this objective. It may have the consequence of further marginalising disabled people and failing to ensure that State parties are properly examined on their obligations to disabled people under the existing human rights treaties.
3 Although the appointment of an international ombudsman may play a valuable role in mainstreaming disability rights and raising their profile, such a post is unlikely to have the direct impact on States parties that can be achieved through the reporting process and subsequent dialogue with treaty bodies. It would, therefore, not compensate for the existing weaknesses in monitoring the rights of persons with disabilities.
4 From 2001-2003, Rights for Disabled Children, an international working group of disabled people’s organisations and the International Save the Children Alliance, undertook regular scrutiny of States parties reports to the Committee on the Rights of the Child and the subsequent summary records and concluding observations of the Committee. It found that, apart from on education and institutional care, there was little reference made to the rights of disabled children . For example, the right to express views and have them taken seriously, to protection from all forms of violence, to information, to freedom of association, to an adequate standard of living for proper development, to play and recreation were rarely, if ever raised in respect of disabled children. There is a significant lack of expertise within the Committee on the social model of disability and its implications for the realisation of rights. The presence on the Committee of a minimum of two disabled experts would transform the examination of States parties and go a long way towards ensuring that they were held to account in respect of the rights of disabled children to enjoyment of all the rights in the Convention on the Rights of the Child. Similar benefits would accrue to the other human rights treaty bodies from such appointments.
LANDMINE SURVIVORS NETWORK
Draft Article 25 - MONITORING112
SYNTHESIS OF PROPOSALS
National Implementation Framework113
1. States Parties shall designate a focal point within Government for matters relating to the implementation of the present Convention, and give due consideration to the establishment or designation of a coordination mechanism to facilitate related action in different sectors and at different levels.
2. States Parties shall, in accordance with their legal and administrative system, maintain, strengthen, designate or establish at the national level a framework114 to promote, protect and monitor implementation of the rights recognised in the present Convention.
DRAFT ARTICLE 25 FOOTNOTES:
112 The Working Group did not have time to consider the issue of international monitoring of the draft Convention. Some members of the Working Group indicated, however, that international monitoring was an issue of considerable importance to them. Other members, however, had reservations in this respect.
113 The Working group did not discuss in detail the wording of the draft provisions. It noted that the Ad Hoc Committee may wish to discuss the issue further and take into account the on-going review of the work of the existing UN human rights treaty monitoring bodies.
114 The Working Group did not reach agreement on a number of issues relating to the role of national human rights institutions in the process of the promoting, protecting and monitoring the implementation of the Convention but some members considered that they might perform, inter alia, the following functions: promoting awareness of the provisions of the Convention to persons with disabilities and to the general population; monitoring national legislation, policies and programmes to ensure consistency with the Convention; undertaking or facilitating research on the impact of the Convention or of national legislation; developing a system for assessing that impact on persons with disabilities; and hearing complaints about failure to observe the Convention.
The issue of monitoring was postponed for consideration until the fourth session of the Ad Hoc Committee. Accordingly, most of the comments in our previous analysis are still applicable. We have reprinted our previous comments, with some minor changes.
The inclusion of this provision in the Working Group text reflects the now routine treaty practice to create obligations in relation to national legal implementation. Developments in the law of treaties in this regard recognize that the primary responsibility for implementation lies with states. The article is a substantially shortened version of the original text considered for inclusion by the Working Group.
FN 112 references the subject of international monitoring which the Working Group did not consider in any detail and notes some disagreement among members on the subject of international monitoring. It is noteworthy that all principal international human rights Conventions do create international monitoring mechanisms within the framework of the treaties. The absence of any such framework within a Convention on the rights of people with disabilities would represent a significant departure from international human rights treaty practice, and a weakening of this Convention.
FN 113 indicates that the Working Group was unable to undertake detailed drafting of this provision, and references the on-going UN review of existing human rights treaty monitoring. Some Working Group members felt that whilst the treaty reform process should be taken into consideration, the Ad Hoc Committee should certainly not wait for that process to be completed.
Draft Article 25(2) refers to the requirement to have a national level framework. However, it does not go as far as requiring a national human rights institution, or other type of monitoring mechanism that is independent of government. FN 114 references possible functions for national human rights monitoring institutions, drawn from the Paris Principles, which provide detailed and highly relevant guidelines on the operation of national institutions. An explicit reference to the Paris Principles, previously deleted from an earlier draft of Draft Article 25, should be reinstated to ensure that the national level monitoring mechanism complies with the international legal standard. (Cf. Paris Principles on National Institutions for the Promotion and Protection of Human Rights, GA Res. 48/134 (20 December 1993) In addition, the national level monitoring mechanism must be formally linked to the international level monitoring mechanism to help facilitate the international and national bodies to have a meaningful exchange on methods and strategies to promote and protect the rights of people with disabilities. In addition, the complementary relationship will ensure that capacity is being developed at both national and international levels. (Cf. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Articles 17-20).
PEOPLE WITH DISABILITY AUSTRALIA
Contribution in relation to MONITORING
People with Disability Australia
Australian Federation of Disability Organisations
(Australian) National Association of Community Legal Centres
As it is currently drafted, article 25 only deals with two aspects of domestic implementation. Much more is obviously required to ensure the implementation and monitoring of the convention, both at the national and international levels.
At the domestic level the implementation and monitoring provisions of the convention should require States to:
(a) Enact laws to directly incorporate the rights set out in the convention into the domestic laws of the State
(b) Develop, implement, and evaluate, progressive national action plans to realise the rights set out in the convention;
(c) Establish or designate an independent office of commissioner or ombudsman, operating consistent with the Paris Principles, with the role of monitoring the implementation of the convention within the State to ensure that the human rights of persons with disability are realised;
(d) Enact laws providing domestic avenues of complaint and redress for persons with disability, and classes of persons with disability, in circumstances where their human rights under this convention have been breached;
(e) Mandate the role of persons with disability, and independent disabled peoples organisations, in public policy and program development, implementation, and evaluation in relation to issues impacting on persons with disability;
(f) Provide financial support and other resources for the operation of independent disabled peoples organisations;
(g) Develop, implement, and evaluate on a progressive basis a national program of independent advocacy services for people with disability capable of providing individual, group and systemic advocacy assistance to persons with disability to realise their rights under this convention.
At the international level the implementation and monitoring provisions of the convention should:
(a) Establish a treaty monitoring body, constituted by persons with specific expertise in the area of disability. It was generally agreed that this body should be constituted by a majority of experts with disability, drawn from a variety of impairment backgrounds;
(b) Require States to submit periodic reports outlining their progress in implementing the convention at the domestic level for examination by the treaty monitoring body. In this respect, it was generally thought that a 5 yearly reporting cycle was appropriate;
(c) Establish a procedure for complaints to be made to the treaty body by (or in respect of) individuals with disability and classes of persons with disability where there has been breach of their rights under the convention, and where no domestic remedy is available;
(d) Establish a conciliation commission to resolve major breaches of human rights through high-level international dialogue;
(e) Ensure the referral of issues of concern to United Nations specialist agencies for attention;
(f) Establish a position and office of Special Rapporteur on Disability that would have the role of:
• Coordinating the work of the treaty body, conciliation commission, and complaints procedure;
• Promoting and monitoring the implementation of the convention internationally;
• Drawing the international community’s attention to areas of key concern, and promoting international cooperation, where applicable, to address them;
• Developing guidance and advisory materials on implementation measures for distribution within the international community;
• Facilitating international cooperation and dialogue in relation to cross jurisdictional problems;
• Ensuring that the obligations set out in the convention are promoted and applied throughout the United Nations system, agencies and initiatives, and through other intergovernmental and international civil society organisations and corporations;
• Maintaining dialogue with disabled peoples’ organisations in relation to these matters.
Apart from these issues, the convention also still requires a procedure for signature, ratification, accession and entry into force. In this respect we are strongly opposed to the incorporation of any procedure that would permit reservations to be made against any of the substantive or procedural obligations of the convention.
WORKING MEETING OF NGOs FOR PERSONS WITH DISABILITY FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
National implementation framework
It should be clearly stated that national monitoring mechanisms should be developed and established with participation of non-governmental organizations of people with disabilities, their relatives and professionals.