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Article 33 - National implementation and monitoring
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Seventh Session

 

 

Comments, proposals and amendments submitted electronically


 

Governments

European Union

Kenya

National Human Rights Institutions


National Human Rights Institutions

Non-governmental organizations

Amnesty International

International Disability Caucus

Japan Disability Forum

People with Disability Australia

 
 

 

Comments, proposals and amendments submitted electronically

Governments

EUROPEAN UNION

Article 33

EU Position on “Women” and “Children” in response to the joint facilitator’s proposal, 31 January 2006

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 taking into account where necessary gender and child specific issues.

3. Civil society, in particular persons with disabilities and their organisations, shall be involved and participate fully in all levels of the monitoring process.

 

KENYA

Article 33
                
[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.       Civil society, in particular persons with disabilities and their representative organisations, shall be involved and participate fully in all levels of the monitoring process.

 

 

National Human Rights Institutions


NATIONAL HUMAN RIGHTS INSTITUTIONS

NHRIs Intervention on National Monitoring
(33 + Chair’s Discussion Text).

Chair,

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.

Thank you.

 

Intervention by National Human Rights Institutions
Monday, 23 January 2006

Chair,

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.

 

National level

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.


National Human Rights Institutions

Response to Questions Proposed by the Chair on Monitoring.

1 February, 2006.

Individual Qualities.

Qualities of the Committee as a Whole.

 

 

 

 

4(a).           How should States Parties report to the Committee?

 

4(b).                 Should there be Periodic Reporting.

 

4(c).                 Should the Committee have the flexibility to decide on when reports should be submitted, and to request that States Parties report on specific issues?

 

  1. Should the Committee be able to receive individual communications?

 

 

 

 

 

 

 

 


Non-governmental organizations


AMNESTY INTERNATIONAL


ORAL STATEMENT – Draft Article 33: National Implementation and Monitoring

Chairperson, Delegates

Amnesty International welcomes the commitment expressed by many delegations during current and past sessions of this Ad Hoc Committee to ensure that the Convention provides for a strong and vigorous approach to implementation of the treaty and to monitoring at both the national and international levels. The inclusion of national monitoring and implementation, as a separate article in the “Chair’s Text” and as a complement to the provision on an international mechanism for monitoring, should be maintained.

However, we believe that further improvements could be made to paragraphs (1) and (2) of Article 33 of the October 2005 Chair’s Text through increased clarity and further specifications. In its discussion paper on national implementation, prepared in advance of the last session of this Committee, Amnesty International considered in more detail some elements of a national implementation framework and outlined some necessary attributes1. In the context of today’s debate on draft Article 33 we would like to emphasize the following points:

First, while a government focal point, as proposed in the current draft, could indeed strengthen national implementation, its effectiveness will ultimately depend on its status within government and its mandate. It will be important that governmental focal points do not operate in isolation but rather possess the authority to effectively foster intra-governmental coordination. Further, government focal points should be specifically required to cooperate with the international mechanism – particularly in connection with periodic reporting, follow up to and implementation of recommendations emanating from the international mechanism. We believe that the Convention could be more specific in regard to these attributes without being too prescriptive.

Secondly, in addition to the designation of a government focal point – and preferably in a separate paragraph – the Article should require states to put in place a broader and inclusive coordinating mechanism such as a national coordinating committee, rather than merely giving “due consideration” to their establishment as phrased in the current draft. Such a coordinating mechanism should provide a forum for inclusive policy evaluation and formulation aimed at strengthening implementation of the rights contained in the Convention. Such coordinating mechanisms should consist of the government focal point, representatives from relevant government authorities, national human rights institutions or specialized human rights institutions for the protection of the rights of persons with disabilities, relevant non-governmental organizations, including organizations of persons with disabilities.

Finally, Amnesty International strongly believes that the concept of promoting, protecting and monitoring at the national level by independent institutions needs to be strengthened in Article 33. Paragraph 2 of the current draft refers to “a framework to promote, protect and monitor implementation”. Institutions mandated to promote, protect and monitor the rights of persons with disabilities under the Convention must be independent and have the powers and resources to be effective. The relevant provision should, therefore, contain reference to some necessary attributes of such a framework. This must – at a very minimum – include that national mechanisms to promote, protect and monitor should operate in accordance with the “Paris Principles”, whose importance was underlined by the High Commissioner for Human Rights this morning.

Thank you, Chairperson.

 

Footnotes:

1. Strengthening implementation at the national level, Discussion paper on Article 25 of the draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, AI Index: IOR 40/029/2005, September 2005.


 

INTERNATIONAL DISABILITY CAUCUS

Chairman’s text as amended by the IDC

Article 33 

1.  Each State Party shall maintain, designate or establish within one year after the entry into force of this Convention or its ratification or accession, an independent national mechanism for the promotion and protection of the rights of persons with disabilities at the domestic level.  Where an independent national mechanism already exists in the State party, its mandate shall be extended to comply with this Convention.  The national mechanism shall be established in consultation with persons with disabilities and organizations representing persons with disabilities and structured so as to facilitate the involvement on an ongoing basis of persons with disabilities in the formation of the national institution’s policies and processes.

2. The States Parties shall guarantee the functional independence of the national mechanism as well as the independence of their personnel.

3. The States Parties shall ensure that the composition of the national mechanism includes experts with a majority representation of persons with disabilities.  In this regard, there must be equitable representation of persons with disabilities with diverse disability experience. The national mechanism shall comprise an equal number of men and women and the adequate representation of national ethnic, indigenous, and minority groups.

4. The States Parties undertake to make available the necessary resources for the functioning of the national mechanism.

5. The establishment, composition and operation of the national mechanism shall be consistent with the Principles relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights (the “Paris Principles”).

6. The competent authorities of the State Party concerned shall examine the recommendations of the national mechanism and participate in dialogue with the body on measures taken to implement the provisions of this Convention.

7. The national mechanism shall be granted, at a minimum, the powers to:

a. Draft and adopt its own rules of procedure;

b. 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;

c. Submit proposals and observations concerning existing or draft legislation;

d. Establish contacts with the Committee, to submit information to the Committee and to meet with the Committee; 

e. Conduct public awareness raising and other advocacy activities for the promotion of the Convention;

f. Liaise with relevant non-governmental organizations, specialized agencies, and UN bodies on issues related to the implementation of the Convention;

g. Build the capacity of disabled persons organizations and other members of civil society; and

h. Hear any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law.

Women’s IDC
Proposals on inclusion of gender aspects in a specific article
Article 33

[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 co-ordination mechanism to facilitate related action in different sectors and at different levels.

  1. 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.]
  2. Civil society, in particular persons men and women with disabilities and their representative respective organisations, shall be involved and participate fully in all levels of the monitoring process.

JUSTIFICATION:
It has to be ensured that not only men with disabilities but also women with disabilities participate in all levels of the monitoring process. Thus there will be not only a male perspective included but also a female perspective.

 

IDC DRAFT ON ARTICLE 33 AND 34 INTERNATIONAL AND NATIONAL MONITORING AND OTHER ASPECTS OF IMPLEMENTATION, FEBRUARY 1, 2006

Article 33  National Implementation and Monitoring

1. States Parties shall designate at least one focal point within government for matters relating to the implementation of the present Convention.

2. States Parties shall establish or designate of a coordination mechanism to facilitate related action in different sectors and at different levels.  Such coordination mechanism shall be composed of members of government as well as persons with disabilities through their representative organizations.

3.  Each State Party shall maintain, designate or establish within one year after the entry into force of this Convention or its ratification or accession, an independent national mechanism for the promotion and protection of the rights of persons with disabilities at the domestic level.  Where an independent national mechanism already exists in the State party, its mandate shall be extended to comply with this Convention.  The national mechanism shall be established in consultation with persons with disabilities and their organizations and structured so as to facilitate the involvement on an ongoing basis of persons with disabilities in the formation of the national institution’s policies and processes.

4. The States Parties shall guarantee the functional independence of the national mechanism as well as the independence of their personnel.

5. The States Parties shall ensure that the composition of the national mechanism includes experts with a majority representation of persons with disabilities.  In this regard, there must be equitable representation of persons with disabilities with diverse disability experience. The national mechanism shall comprise an equal number of men and women and the adequate representation of national ethnic, indigenous, and minority groups.

5. The States Parties undertake to make available the necessary resources for the functioning of the national mechanism.

6. The establishment, composition and operation of the national mechanism shall be consistent with the Principles relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights (the “Paris Principles”) or the highest international standard.

6. The competent authorities of the State Party concerned shall examine the recommendations of the national mechanism and participate in dialogue with the body on measures taken to implement the provisions of this Convention.
7. The national mechanism shall be granted, at a minimum, the powers to:

a. Draft and adopt its own rules of procedure;

b. 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;

c. Submit proposals and observations concerning existing or draft legislation;

d. Establish contacts with the Committee, to submit information to the Committee and to meet with the Committee; 

e. Conduct public awareness raising and other advocacy activities for the promotion of the Convention;

f. Liaise with relevant non-governmental organizations, specialized agencies, and UN bodies on issues related to the implementation of the Convention;

g. Build the capacity of disabled persons organizations and other members of civil society; and

h. Hear any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law.

Women’s IDC
Response to the Facilitator’s Proposals on Women with Disabilities
 from 28/30 January 2006

ARTICLE 33
Facilitator:
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 including focusing on gender and age specific issues.

3. Civil society, in particular men and women with disabilities and their organizations, shall be involved and participate fully in all levels of the monitoring process.

Women’s IDC

Women’s IDC supports the IDC proposal for a monitoring system of this Convention. Concerning the Chair’s Discussion Text the proposed amendments by the Facilitator are welcomed and underlined.

 

JAPAN DISABILITY FORUM

Article 33

Comments:

  1. It is important that full involvement and participation of persons with disabilities and their representative organizations in all levels of the monitoring process is clearly provided in paragraph 3.
  2. There is no change in the opinions with regard to the national monitoring by JDF (cited below) in particular. It shall be examined from the point of view how the task (ensuring the independence, involvement of the parties and balance between genders) has been achieved as purported in Paris Principle (1993).
  3. The content and evaluation of “the Central Human Rights Committee” under “Legislation for the Protection of Human Rights” shall be carefully examined, paying attention to the submission of the same legislation to the parliament next year, in relation with the demands and opinions in “Demands and opinions with regard to domestic monitoring; Section Three: The Role,” submitted by JDF below.


Comments on National Monitoring


(1) As to Draft Article 25(1), it is necessary to designate the position of the coordination mechanism and to reflect the will of the parties to the coordination mechanism.  Under CEDAW, the Bureau for Participation of Gender Equality of Cabinet Office is in charge.  Under Convention for People with Disabilities, it is necessary for the bureau in charge in Ministry of Foreign Affairs and the Bureau for Promotion of Policy for People with Disabilities the Cabinet Office play the role of general function for coordination.  It is also necessary to establish a coordination institution so that NGOs can participate and reflect their opinion.

Draft Article 25 of the Working Group text

  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) Under Article 25 (2), it is necessary that domestic monitoring institution monitors human rights, including its redress. The independence from the administrative branch and involvement of the parties of the organization shall be ensured.  The mechanism and the role shall be clarified in order to reflect the wills of the parties.

As to the domestic monitoring institution, according to “Principles relating to the status and functioning of national institutions for protection and promotion of human rights (Paris Principles),” it is necessary to examine the legislation which establishes a committee to monitor and protect the human rights so that the State can ensure that the institution be independent from the administrative system, that the parties may be involved (affirmative participation of NGO for people with disabilities in choosing the member of the committee) and that the committee monitor the domestic enforcement of the treaties (in relation with Article 3 of National Government Organization Law)

Article 25

  1. 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) The Role of the Institution


    PEOPLE WITH DISABILITY AUSTRALIA

    Report on National Consultations
    Article 33

    Participants strongly supported this article on national monitoring and implementation.  However, participants indicated that there were several additional elements to successful national monitoring and implementation that required inclusion.

    Participants highlighted the need for resources to enable civil society to fully participate in monitoring processes and recommended that States Parties be obliged to adequate resource organisations of disabled people in order to facilitate this.

    Participants argued that in order for the convention to be fully implemented accordingly there needed to be an obligation on States to ensure the rights explicated in this convention to be enshrined in domestic law.  Linked to this, participants indicated that there needed to be avenues for people with disability to complain and seek redress on matters of infringements of human rights.

    Participants endorsed the findings of the 2004 Australian consultation on matters related to national monitoring and implementation.  To this end, recommended amendments to the Chair’s Text are provided below.

    Recommended text

    States parties shall:

    1. Enact laws to directly incorporate the rights set out in the convention into the domestic laws of the State;
    2. Develop, implement, and evaluate, progressive national action plans to realise the rights set out in the convention;
    3. 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
    4. 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;
    5. 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;
    6. Provide financial support and other resources for the operation of independent disabled peoples organisations;
    7. 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.

     

    PWDA
    Commentary
    (Australian) National Association of Community Legal Centres

    National and International Implementation & Monitoring

    It is vital that this convention has strong national and international implementation and monitoring provisions.
    At the national level the implementation and monitoring provisions of the convention should require States to:

    1. Enact laws to directly incorporate the rights set out in the convention into the domestic laws of the State
    2. Develop, implement, and evaluate, progressive national action plans to realise the rights set out in the convention;
    3. 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;
    4. 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;
    5. 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;
    6. Provide financial support and other resources for the operation of independent disabled peoples organisations;
    7. 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.

     

     

     

     

     


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