34 - International monitoring
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• Discussion Text
• Questions on International Monitoring
This text contains possible draft articles on international monitoring and
national monitoring mechanisms, based on preliminary discussion in the Ad
Hoc Committee, material presented to it and practice in other treaty monitoring
Article 34 – Committee on the Human Rights of Persons with Disabilities
For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of Persons with Disabilities (the Committee).
Article 35 – Establishment of the Committee
1. The Committee shall consist of eighteen experts of high moral standing, and recognized competence and experience in the field covered by this Convention (article 43.2 CRC).
2. The members of the Committee shall be elected by States Parties, consideration being given to equitable geographical distribution, as well as to the principal legal systems (CRC, article 43.2, CEDAW, article 17.1 ). Consideration shall also be given to balanced gender representation (OPCAT, article 5.4; draft International Convention for the Prevention of All Persons from Enforced Disappearances, article 26.2) and representation of different kinds of disabilities (OHCHR background paper, paragraph 19). Members shall serve in their personal capacity (CRC, article 43.2) and be independent and impartial (Draft Convention on Disappearances, article 26.1) and shall be available to serve the Committee efficiently (OPCAT, article 5.6).
3. The members of the Committee shall be elected by secret ballot from a list of candidates possessing the qualifications and meeting the requirements set out in paragraphs 1 and 2 of this article, [half of which is to be nominated by States Parties, and half of which is to be nominated by the (Secretary-General) (High Commissioner for Human Rights)].
4. Each State party may nominate one person from among its nationals in consultation with competent national bodies. [Nominations by the Secretary-General/High Commissioner for Human Rights shall also be made in consultation with competent national bodies.]
5. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the Convention and thereafter 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 States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention. (CRC, article 43.4)
6. The elections shall be held at meetings of States Parties convened by the Secretary-General. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. (CRC, article 43(5)).
7. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election once if re-nominated (OPCAT, article 9; draft International Convention for the Prevention of All Persons from Enforced Disappearances, article 26(4)). The term of half of the members elected at 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 Chairperson of the meeting referred to in paragraph 6 of this article (CRC article 43.6).
7. If a member of the Committee dies or resigns or declares that for any other cause she or he can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another eligible person possessing the qualifications and meeting the requirements set out in paragraphs 1 and 2 of this article taking account the need for proper balance among the various fields of competence (OPCAT, article 8) to serve for the remainder of the term, subject to the approval of the Committee (article 43.7 CRC).
8. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention (CRC, article 43(11)). The Secretary-General of the United Nations shall convene the initial meeting of the Committee (article 26.1, Draft Convention on Disappearance). The meetings of the Committee shall normally be held at the United Nations Office in Geneva or at any other convenient place as determined by the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided by its rules of procedure (OPCAT, article 10.3).
Article 36 – Organisation of the Committee
1. The Committee shall establish its own rules of procedure (CRC, article 43(8)).
2. The Committee shall elect its officers for a period of two years (CRC, article 43(9)).
Article 37 – Cooperation by States with the Committee
Each State party shall cooperate with the Committee and assist its members in the fulfillment of their mandate, to the extent of the Committee’s functions that the State party has accepted (Draft Convention on Disappearance, article 26.9).
Article 38 – The Committee in the human rights treaty body system
1. A Conference of the States parties will take place at the earliest four years and the latest six years following the entry into force of this Convention to evaluate the functioning of the Committee and to decide, by a majority of two-thirds of the States parties present and voting, whether it is appropriate to transfer to another body – without excluding any possibility – the monitoring of this Convention (draft International Convention for the Protection of All Persons From Enforced Disappearance, article 27).
2. Where fundamental changes have affected the human rights treaty body system prior to the entry into force of the Convention, a Conference of States parties will take place six months after the entry into force of the Convention to decide, by a majority of two-thirds of the States present and voting, whether it is appropriate to transfer to another body – without excluding any possibility – the monitoring of this Convention.
Article 39 – Reporting by States Parties
1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized in the present Convention and on the progress made on the enjoyment of those rights (CRC, article 44, chapeau).
2. The States parties shall submit a first, comprehensive, report within two years of the entry into force of the present Convention for the State party concerned (CRC, article 44.1). States parties shall submit further reports upon request of the Committee. The Committee shall determine the issues or provisions of the present Convention to be addressed by States parties in these reports ( OHCHR background paper, paragraph 37).
4. The State party shall consult with competent national bodies in preparing its reports (OHCHR background document, paragraph 28, language drawn from CRC article 45.1).
6. Non-States parties may, on a voluntary basis, provide reports to the Committee on implementation of the Convention in their respective States (OHCHR background document, paragraph 35).
Article 40 – Consideration of reports
1. The Committee shall consider reports submitted under article 38 and shall issue comments, observations or recommendations as it may deem appropriate (draft International Convention for the Protection of All Persons from Enforced Disappearances, article 29(3), OHCHR background paper paragraph 29).
2. The Committee may request from States Parties further information relevant to the implementation of the Convention. (CRC, article 44(4)).
3. The Committee may receive information from international and national competent bodies when considering reports submitted by States parties under the present article (OHCHR background document, paragraph 27; language drawn from CRC, article 45.1).
Article 41 – Consideration of implementation of the Convention in the absence of a report
4. Where appropriate, the Committee may consider the situation in a State party in the absence of a report. (OHCHR background paper, paragraph 35)
Article 42 – Follow-up
1. States Parties shall make their reports (CRC, article 44.6) and the comments, observations and recommendations of the Committee on those reports, widely available to the public in their own countries.
2. The Committee may request the State party to submit a written response on the measures taken or identified in order to implement the recommendations of the Committee within a specified time period (OHCHR background paper, paragraph 30).
Article 43 – Annual report of the Committee
1. The Committee shall report annually to the General Assembly of the United Nations on all its activities (CEDAW, article 21.1).
2. The Secretary-General of the United Nations shall transmit the reports of the Committee to the Commission on Social Development and the Commission on Human Rights (Human Rights Council) for their information (CEDAW, article 21.2).
Article 44 - Co-operation with organizations and bodies
1. In the framework of the competencies granted by the Convention, the Committee shall co-operate with all relevant organs, offices and specialized agencies and funds of the United Nations, with the treaty bodies instituted by international human rights instruments, with the special procedures of the United Nations, and with the regional intergovernmental organizations or bodies concerned, as well as with all relevant State institutions, agencies or offices and other competent bodies working in the field covered by this Convention. (draft International Convention for the Protection of All Persons from Enforced Disappearances, article 28(1), OHCHR background document paragraph 28).
2. As it discharges its mandate, the Committee shall consult with other treaty monitoring bodies established in the framework of relevant international human rights instruments, with a view to ensuring the consistency of their respective comments, observations and recommendations. (draft International Convention for the Protection of All Persons from Enforced Disappearance, article 28(2))
3. In order to foster the effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention (CRC, article 45, chapeau) the relevant organs, offices and specialized agencies and funds of the United Nations, in particular the Department of Economic and Social Affairs, International Labour Office, the World Health Organization, the United Nations Educational, Scientific and Cultural Organization and the United Nations Children's Fund, shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite these organs, offices and specialized agencies and funds and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates and may invite them to submit reports on the implementation of the Convention in areas falling within the scope of their activities (CRC, article 45(a))
4. The Committee shall transmit, as it may consider appropriate, to the relevant organs, offices and specialized agencies, and funds of the United Nations and other competent bodies, any reports from States Parties that contain a request, or indicate a need for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications (CRC, article 45(b)). The Committee may recommend that a State party consider seeking technical advice or assistance from these bodies.
5. The Committee may invite representatives of international and national competent bodies to provide relevant information that would assist the Committee in its consideration of reports (OHCHR background paper).
6. The Committee may make suggestions and general recommendations based on information received pursuant to its work. Such suggestions and general recommendations shall be transmitted to (any) States parties concerned and reported to the General Assembly, together with comments, with any from States parties (article 45 (d) CRC).
Article 45 – Individual communications
1. A State party may, at the time of ratification or at any time afterwards, declare that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals or groups subject to its jurisdiction claiming to be victims of a violation by this State party of the provisions of this Convention. The Committee shall not receive a communication if it concerns a State party that has not made such a declaration.
2. The Committee shall consider a communication inadmissible when:
(a) the communication is anonymous;
(b) the communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of this Convention;
(c) is manifestly ill-founded or not sufficiently substantiated (CEDAWOP, article 3.2 (c);
(d) the same matter is being examined under another procedure of international investigation or settlement; or when
(e) all effective available domestic remedies have not been exhausted. This rule shall not apply where the application of the remedies is unreasonably prolonged;
(f) the facts that are the subject of the communication occurred prior to the entry into force of the Convention or this procedure for the State party concerned, unless those facts continued after that date (CEDAWOP, article 3.2 (e).
3. Unless the Committee considers a communication inadmissible without reference to the State party concerned, the Committee shall bring that communication confidentially to the attention of the State party concerned. Within six months, the receiving State party shall submit to the Committee written explanations clarifying the matter and the remedy, if any that may have been provided (CEDAWOP, article 6, modified)
4. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State party concerned for its urgent consideration a request that the State party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation. Where the Committee exercises its discretion, this does not imply a determination on admissibility or on the merits of the communication (CEDAWOP, article 5).
5. The Committee shall consider communications in the light of information made available to it by their authors and by the State party concerned, provided that this information is transmitted to the parties concerned (CEDAWOP, article 7. 1 modified).
6. The Committee shall hold closed meetings when examining communications under the present article (CEDAWOP, article 7.2). After examining a communication, the Committee shall transmit its views and recommendations, if any, to the parties concerned (CEDAWOP, article 7.3).
7. The State party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee. (OP to CEDAW, article 7.4).
8. The Committee may invite the State party to submit further information about any measures the State party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 38 of this Convention (OP to CEDAW, article 7.5).
Article 46 – Inquiry procedure
1. If the Committee becomes aware of reliable information indicating grave or systematic violations by a State party of rights set forth in the Convention, the Committee shall invite that State party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.
2. Taking into account any observations that may have been submitted by the
State party concerned as well as any other reliable information available to
it, the Committee (may designate one or more of its members), to conduct an
inquiry and to report urgently to the Committee. Where warranted and with the
consent of the State party, the inquiry may include a visit to its territory.
3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State party concerned, together with any comments and recommendations.
4. The State party concerned shall, within six months of receiving the findings, comments and recommendations, transmitted by the Committee, submit its observations to the Committee.
5. Such an inquiry shall be conducted confidentially and the cooperation of the State party shall be sought at all stages of the proceedings.
6. The Committee may invite the State party concerned to include in its report under article 38 of this Convention, details of any measures taken in response to an inquiry conducted under this article.
7. The Committee may, if necessary, after the end of the period of six months referred to in article 46.4, invite the State party concerned to inform it of the measures taken in response to such an inquiry.
(OP to CEDAW, articles 8 and 9)
8. At the time of signature or ratification of the present Convention, or
accession thereto, a State party may declare that it does not recognize the
competence of the Committee provided for in this article. Any State party having
made such a declaration may, at any time, withdraw it by notification to the
Secretary-General (CEDAWOP, article 10).
Article 47 – Interstate complaints procedure
A State party to this Convention may, at any time, declare that it recognizes the competence of the Committee to receive and consider communications to the effect that a State party claims that another State party is not fulfilling its obligations under this Convention. The Committee shall not receive communications concerning a State party that has not made such a declaration, nor communications from a State party that has not made such a declaration (Draft Treaty on Disappearances, article 33).
Article 48 - Studies, thematic work and visits to States parties
1. The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of persons with disabilities; (CRC, article 45(c)).
2. The Committee may conduct thematic consultations with States parties, United Nations bodies and other competent international and national bodies on any matter addressed in this Convention (based on discussion day/ thematic discussion practice)
3. With the consent of the State party, the Committee may conduct a visit to its territory, in particular to provide assistance on implementation of the Convention. The Committee may also convene national, sub-regional and regional seminars on any aspect of the Convention. (practice of treaty bodies)
9. Each State party undertakes to make widely known and give publicity to the Convention and to facilitate access to information about the work and recommendations of the Committee, in particular on matters involving that State party (CEDAWOP article13 modified).
[Article 50 – Appointment of Disability Advocate (RES/51/77 adapted: SRSG Children and armed conflict)
1. For the purposes of promoting implementation of the Convention, an Advocate on Disability with recognized competence and experience in the field covered by this Convention will be appointed by the Secretary-General on the recommendation of the High Commissioner for Human Rights following consultation with competent international and national bodies to serve for a five year non-renewable period.
2. The Disability Advocate shall foster cooperation to ensure promotion and protection of the rights of persons with disabilities and contribute to the coordination of efforts by Governments, relevant United Nations bodies, notably the Office of the High Commissioner for Human Rights and the Department of Economic and Social Affairs, the specialized agencies, as well as United Nations filed operations, regional and subregional organizations, other competent bodies.
3. The Disability Advocate shall work closely with the Committee on the Rights of Persons with Disabilities and the Special Rapporteur on Disability of the Commission on Social Development. He or she shall also collaborate with other treaty bodies, relevant special rapporteurs and working groups.
4. The Disability Advocate shall raise awareness and promote the collection
of information about the situation of the human rights of persons with disabilities.]
[Article 51 – Conference of States parties
A Conference of States parties shall be convened biennially. At this Conference,
national and international non-governmental organizations and competent bodies
with experience in the field of the human rights of persons with disabilities
may take part upon invitation of the Committee.]
Article 52 – National monitoring mechanisms (OPCAT article 17 to 23 adapted)
1. Each State party shall maintain, designate or establish, at the latest one year after the entry into force of the present treaty or of its ratification or accession, (one or more) national monitoring mechanism (s) to monitor the implementation of this Convention.
2. Each State party shall guarantee the functional independence of the national monitoring mechanism (s) as well as the independence of their personnel.
3. Each State party shall take the necessary measures to ensure that the experts of the national monitoring mechanism (s) have the required capabilities and professional knowledge. They shall ensure experts have a recognized competence in human rights and disability, and shall strive for gender balance and the adequate representation of ethnic and minority groups in the country.
4. When establishing (the) national monitoring mechanism (s) each State party shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.
5. The national monitoring mechanism (s) shall be granted the power to:
a. regularly examine the situation of persons with disability with a view
to promoting and protecting their human rights;
b. make recommendations to the relevant authorities with the aim of enhancing the enjoyment of persons with disabilities of their rights under this Convention;
c. submit proposals and observations concerning existing or draft legislation;
d. submit proposals and observations concerning existing or draft policies and programmes.
6. In order to enable the national monitoring mechanism (s) to fulfil its (their) mandate, the States parties to the present Convention undertake to grant them:
a. access to all information concerning persons with disabilities in the State
party, including information relating to the enjoyment of the rights under
b. the right to have contacts with the Committee on the Rights of Persons with Disabilities.
7. No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated with the national monitoring mechanism (s) any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.
8. Confidential information collected by the national monitoring mechanism(s) shall be privileged. No personal data shall be published without the express consent of the person concerned.
9. The competent authorities of the State party concerned shall examine the recommendations of the national monitoring mechanism (s) and enter into a dialogue on possible implementation measures.
10. The States parties to the present Convention undertake to publish and
disseminate the annual reports of the national monitoring mechanism (s).
A State party shall take all appropriate measures to ensure that individuals
under its jurisdiction are not subjected to ill-treatment or intimidation as
a result of accessing any procedure established under this Convention (OPCEDAW,
article 14, adapted).
1 On what basis should members of the Committee be elected?
2 How large should the Committee be?
3 How long should the term of office of Committee members be? Should re-election be a possibility?
4 How should States Parties report to the Committee? Should there be periodic reporting? Should the Committee have the flexibility to decide when reports should be submitted, and to request that States Parties report on specific issues?
5 Should the Committee be able to receive individual communications?
6 Should there be an inquiry procedure?
7 Should there be an inter-State complaints procedure?
8 Should there be other processes, such as regular conferences of States Parties?
9 Should there be any additional monitoring mechanisms, such as a Disability Rights Ombudsperson?