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D. MONITORING IMPLEMENTATION
The aim of monitoring the implementation of rights and recommendations in the national context is to examine developments that have taken place since the introduction of legislation and the effects, if any, at the national, regional and local level. Monitoring assists Governments to measure progress. Monitoring provides an opportunity for obstacles to be identified so that suitable measures can be implemented to overcome the obstacles. Disabled persons, lawyers, legislators, representatives of government ministries, health care personnel and other experts from NGOs may then survey and evaluate existing legislation and recommend legislative reforms and new procedures for the effective implementation of the legislation.
1. International Level
1.1 Instruments
Some instruments refer to monitoring and call countries to set up monitoring mechanisms. As examples, we can refer to the World Programme of Action concerning Disabled Persons and The Standard Rules on the Equalization of Opportunities for Persons with Disabilities:
Paragraph 194 of the World Programme of Action concerning Disabled Persons states that monitoring and evaluation should be carried out at periodic intervals at international and regional levels, as well as at the national level. It states, after pointing out the obligation of Government to establish a focal point to look into and follow the activities of various ministries, other government agencies and NGOs, that Member States should increase their assistance to organisations of disabled persons and help them organise and co-ordinate the representation of the interests and concerns of disabled persons. NGOs composed of disabled persons or representing their interests have one of the most important roles to play in implementing the Plan and achieving the objectives of the Decade.
Rule 20 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities: "National Monitoring and evaluation of disability programmes in the implementation of the Rules: States are responsible for the continuous monitoring and evaluation of the implementation of national programmes and services concerning the equalisation of opportunities for persons with disabilities. 1. States should periodically and systematically evaluate national disability programmes and disseminate both the bases and the results of the evaluation. 2. States should develop and adopt terminology and criteria for the evaluation of disability-related programmes and services. 3. Such criteria and terminology should be developed in close co-operation with organisations of persons with disabilities from the earliest conceptual and planning stages. 4. States should participate in international co-operation in order to develop common standards for national evaluation in the disability field. States should encourage national co-ordinating committees to participate also. 5. The evaluation of various programmes in the disability field should be built in at the planning stage, so that the overall efficacy in fulfilling their policy objectives can be evaluated."
The monitoring implementation of rights and recommendations can be appreciated at the national level, the regional level and the international level.
1.2 Special Rapporteur
A Special Rapporteur on Disability on the Commission for Social Development was appointed by the UN in 1994. His work consists of monitoring the implementation of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities through communicating directly with States and NGOs. In doing his work, the Special Rapporteur works with a panel of experts on disability issues, as well as with the UN Secretariat.
1.3 Human Rights Committee
The Human Rights Committee consists of 18 members, elected by the States Parties for a term of four years, who serve in their private capacities and not as representatives of their home countries. Three of the activities of the Human Rights Committee are of particular interest for individuals, including persons with disabilities.
1.3.1 Reporting Procedure
Article 40 of the International Covenant on Civil and Political Rights obliges States Parties to submit reports within one year of the Covenant coming into force for the States concerned, and thereafter, whenever the Committee so requests. The reports should indicate measures adopted to give the effect to rights in the Covenant. It should also indicate the factors and difficulties affecting the implementation of those rights. The Committee expects the States Parties to indicate in their reports the manner in which human rights knowledge is promoted at every level of society within that State.
The obligations of the States include undertakings by them not only to respect, but also to actively ensure all the rights mentioned in the Covenant to individuals within their territory. This calls for affirmative action by the States to deal with the Covenant violations wherever they occur, in the private or in the public sector. After consideration of the reports, the Committee proceeds to draft and adopt it comments comprising a critique of the report, noting positive factors, drawing attention to matters of concern and making suggestions and recommendations.
1.3.2 Emergency Procedure
This procedure based on article 40 of the Covenant, has been developed by the Committee since 1991. In case of an exceptional situation, the Committee, when it is not is session, may make a request through the chairman that a report be submitted. In most of those cases, the States Parties are requested to submit the reports within three months. The reports are then considered by the Committee at the next scheduled session. Concluding comments may include a provision whereby the Secretary General of the United Nations is requested to bring grave human rights situations to the attention of the competent organs of the UN, including the Security Council.
1.3.3 Individual Communication Procedure
This procedure permits individuals to complain directly or through representatives to the Committee, about a State Party in circumstances where they are the alleged victims of violations of the Covenant, and the State Party has ratified the Optional Protocol to the Covenant. Nevertheless, it should be noted that the Committee is not a court; it does not issue judgements. It can only issue views which might be published with the Committee's annual report, but it has no means to enforce any views, which it might adopt.
A case must negotiate through two stages, those of consideration for admissibility and on the merits. The admissibility requirements are as follows:
a) Cases may only be taken by an individual who claims to be a victim of violations of the rights guaranteed under the Covenant; b) The alleged victim must have been subject to the jurisdiction of the State Party at the time of the alleged violation; c) The alleged violation must be of rights in the Covenant; d) The alleged violation must have occurred after the State Party acceded both to the Covenant and to the Optional Protocol; e) The State Party must not have contracted out of the specific provisions by means of a reservation or by a declaration under article 4; f) Cases may only be taken against a States Party. It is necessary to indicate culpability on the part of the State; g) Cases may not be taken which are subject to consideration by another redress mechanism; and h) All relevant domestic redress procedures must have been exhausted. This requirement is waived if it can be shown that the pursuit of the local remedy would be ineffective.
On average, once a case is found to be admissible, it can take from two and a half to four years for the case to negotiate its way through the process. Nevertheless, the Committee may at any state of the process, request that the State take interim measures to safeguard the alleged victim. Such a request has no binding force.
Pursuant to the decision on admissibility, comes a period of exchanging views between the State Party, the alleged victim, and the Committee. Afterwards, the matter may be put before a Rapporteur or working group of the Committee before going the plenary meeting for the adoption of the view on the merits. Where the Committee is of the view that there has been a violation, it will give suggestions as to how the matter might be rectified. Such suggestions may indicate that compensation be paid.
A member of the Committee, the Special Rapporteur for the Follow-up of Views, is charged with maintaining contact with the Parties to observe the manner in which effect is given to the action of the Committee. In March 1994, the Committee adopted a number of decisions intended to increase the level of publicity accorded to its follow-up activities, such as naming recalcitrant States in annual reports and welcoming information of NGOs as to what measures the State Party has taken.
1.4 Committee on the Rights of the Child
The Committee is established pursuant to the provisions of article 43 of the Convention. The members of the Committee serve in their private capacities, just as the members of the other treaty based committees.
1.4.1 Reporting Procedure
States Parties are obliged, under article 44, to submit reports to the Committee two years after the Convention comes into effect for the States, and thereafter, every five years, on the measure they have adopted to give effect to the rights in the Convention and on the progress made in the enjoyment of those rights.
The initial reports should categorise material as follows:
a) General measures of implementation: Information should be provided on implementation of articles 4,42 and 44, paragraph 6; b) Definition of the Child: Information pursuant to article 1; c) Civil rights and freedoms: should be provided on implementation of articles 7,8,13,14,15,16,17,37 (a); d) Family environment and alternative care: Information should be provided, with particular attention paid to the principles of the best interest of the child and respect of the views of the child concerning articles 5, 18, paragraphs 1, 2, 9, 10, 27, paragraphs 4, 20, 21, 11, 19, 39, and 25; e) Basic health and welfare; f) Education, leisure and cultural activities; and g) Special protection measures (articles 22, 30, 32-40).
Before being considered by the Committee, reports first receive the attention of an informal working group. The purpose is to identify areas in the reports, which require clarification or give cause for concern, and to prepare a list of issues for transmission to the State Parties, with a request for written replies to be considered together with the report. Afterwards, reports are considered by the Committee in public session and in dialogue with representatives of the State.
Towards the end of the discussion, the Committee summarises the observations and may make suggestions and recommendations. Following the consideration, the Committee adopts its Concluding Observations". These comments comprise a critique of the State report, noting positive factors and drawing attention to matters of concern. Comments are then issued as public documents and are also included in the Committee's biennial report to the General Assembly of the United Nations.
1.4.2 Thematic Consideration of Issues
According to Rule 75 of the Rules of Procedure, the Committee may devote one or more meeting of its regular sessions to a general discussion on one specific article of the Convention or related subject in order to enhance a deeper understanding of the content and implication of the Convention. The Committee has based a series of Days of General Discussion on a wide range of topics, including the situation of the girl child. In 1995, the conclusion of the discussion of the girl child influenced the content of the final document of the Fourth World Conference on Women.
1.4.3 Missions
The Committee has undertaken a number of regional and sub-regional missions. During those trips, members have had the opportunity to discuss all aspects of the implementation of the Convention with representatives of States, and also with NGOs and international organisations. The missions are of use in alerting the Committee to particular and regional problems and challenges and in indicating the existence of local organisations.
1.5 Committee on the Elimination of Discrimination against Women
Pursuant to article 17 of the Convention on the Elimination of All Forms of Discrimination against Women, the task of the Committee on the Elimination of Discrimination against Women (CEDAW) is to consider the progress made in the implementation of the Convention. The members of the Committee, just like the members of the Human Rights committee, are independent of the Governments.
1.5.1 Reporting Procedures
Article 18 of the Convention obliges States Parties to submit reports to the Committee within one year of the Convention coming into effect, whenever the Committee so requests. The reports should indicate factors and difficulties affecting the degree of fulfilment of the obligations which have been undertaken, as well as the legislative, judicial and administrative or other measures which have been adopted to give effect to the provisions of the Convention. Reports are introduced by Government representatives who are asked for an explanation and supplemental information. CEDAW may take suggestions of an informal nature regarding specific countries or general situations and general comments of a formal nature regarding general situations. At the outset of each session, the Committee adopts concluding comments, which resemble those adopted by the Human Rights Committee. CEDAW reports annually to the General Assembly, via the Economic and Social Committee, on its consideration of country reports.
In 1987, CEDAW decided that it was authorised to make suggestions and general recommendations addressed to individual States. This decision constitutes a major advance over other human rights treaty committees that have not yet decided to issue formal comments on individual States.
Since this mechanism is also based on States reports, it is crucial, if it is meant to be effective, that the Committee has recourse to resources of information, in addition to the reporting Governments. CEDAW left ambiguous whether its decision authorises consideration of information concerning practices of individual States that appear to violate the Convention. Such a construction undoubtedly would enhance CEDAW's review of reports and should be pressed. NGOs constitute, in this manner, a rich source of information and procedural suggestions.
1.5.2 Exceptional Reports Procedure
Pursuant to article 18 of the Convention, the Committee requested in 1993, reports on an exceptional basis from certain States of the former Yugoslavia. With regard to the reports, which have been submitted by these States, the Committee has adopted the procedure of:
a) Tabling the reports at the upcoming session without sending them for attention of the working group; b) Permitting the State representatives to orally introduce the report at the session; c) Inviting questions by members; d) Permitting responses by the State representatives; e) Adopting and publishing brief comments for inclusion in the annual report, together with a summary of the discussions in the case of periodic reports.
1.6 Committee against Torture
This Committee is established pursuant to the provisions of article 17 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. This Convention applies to persons with disabilities, as torture is a great cause of disabilities.
1.6.1 Reporting Procedure
As is required of the other treaty based Committees, the States Parties have to submit reports to the Committee. Initial reports should be submitted in two parts. The first part should do the following:
a) Describe the general legal framework to prohibit torture and other inhuman treatment; b) Indicate national or international binding obligations on the State to provide greater protection than that afforded by the Convention; c) Indicate national redress procedures for victims of violations of the Convention and provide information on cases dealing with by those authorities.
The second part of the report should provide information on the implementation of articles 1 to 16 of the Convention, indicating the following:
a) The legislative, judicial and administrative measures in force which give effect to the relevant provisions; b) Any factors and difficulties affecting the practical implementation of the provisions; and c) Statistical data on cases where measures giving effect to the respective provisions have been enforced, including descriptions of actual cases.
Subsequent periodic reports should provide information additional to that in initial reports on new measures taken. Before being considered by the Committee, the reports receive the attention of the member designated as Country Rapporteur, who undertakes a detailed analysis in preparation for the consideration by the Committee, and to both identify key issues and prepare questions and comments to be put to the representatives of the Government. After consideration by the Committee, it adopts its Conclusions and Recommendations, which comprises a critique of the State report, noting positive factors, but also drawing attention to subjects of concern.
1.6.2 Investigation Procedure
This procedure has no equivalent in other UN human rights instruments. All State Parties to the Convention are bound by the terms of article 20, unless they have, at the time of ratification or accession, declared and not subsequently withdrawn such declaration that they do not recognise the competence of the Committee under the article.
The article 20 procedure provides for the investigation of well-founded indications of the systematic practices of torture in a State Party. In order to initiate this procedure, information provided must indicate the systematic practice of torture (article 20, paragraph 1). Once the information is deemed to meet the criteria of article 20, paragraph 1, the Government concerned is invited to comment within a stated time limit. The Committee may then decide to conduct an enquiry. This would be conducted by one or more of its members, assisted by appropriate independent specialists. It may also invite the Government to afford its co-operation, including, if appropriate, the provision of facilities for the conducting of visiting missions. The enquiry may involve the conducting of sworn hearings. The Governments are requested that such proceedings are not interrupted and that those heard are not intimidated.
After examining the findings of the enquiry, the Committee sends the findings, together with its comments and recommendations, to the State Party, inviting it to indicate action, which it intends to take. Finally, the Committee may decide to publish a summary of the proceedings in its annual report.
1.6.3 Individual Complaints Procedure
This procedure permits individuals to complain to the Committee about a State Party in circumstances in which they are the alleged victims of violations of the Convention, and the State Party has made the necessary declaration under article 22. Nevertheless, it should be noted that the Committee is not a court. Thus, the Committee only adopts views but cannot issue judgements and has no possibilities to enforce the views it adopts.
All steps of the procedure under article 22 are confidential until the point where the Committee adopts its views or otherwise concludes the case. Before a case can be considered on its merits, it is necessary for it to have been found admissible. The admissibility requirements are similar to those of the individual complaints procedure before the Human Rights Committee.
Once the case has been found admissible and the Committee is of the view that it has gathered sufficient information, it proceeds to a consideration of the merits and the adoption of the views. The Committee can also make recommendations. The views are then communicated to the State Party and the complainant.
1.7 Non-Governmental Organisations
A great part of the work of the Committees is based on periodic reports that States Parties must submit to them. Thus, States must be willing to submit reports, which are in accordance with the facts and reflect reality. In this process, contributions of the NGO community is indispensable. Their tasks include:
a) The channelling of independent information to members of treaty bodies. No States' report can be examined adequately without reference to other sources of information. b) Promoting knowledge and understanding of the reporting process. NGOs play the lead role in encouraging individuals and groups to reflect on their situation in the context of their rights and in channelling any submissions they might wish to make to members if treaty bodies. c) NGOs are also crucial to the ongoing effectiveness of the reporting process following the examination by the treaty bodies. Without their lobbying and campaigns of public information, there is a danger that recommendations of the treaty bodies may either remain unimplemented be carried through in an inadequate manner.
NGO participation in the reporting process may occur at different stages:
1.7.1 NGO Action before Submission of a Report
A problem with the reporting process is that most of the treaty bodies suffer from a failure of many States to submit reports in conformity with the periodicity requirements. Skilful dissemination and employment of all relevant information by NGOs can do much to encourage tardy States in meeting their responsibilities. Sometimes, the delay in the submission of reports is due to the fact that the State Party is overwhelmed in attempting to meet the reporting obligations under a range of instruments or simply lacks the technical expertise to compile reports, which meet the reporting requirements. In those cases, NGOs can explore with Governments the extent to which they might offer assistance, either through the provision of training or direct participation in the drafting process.
1.7.2 NGO Participation in the Reporting Process in the Context of the Examination by a Treaty Body
Independent submissions are usually accepted by the members of the treaty bodies as an aid towards the carrying out of the scrutiny of State reports. The impact of such submissions can be greatly enhanced by the making of direct contact with Committee members. Possibilities range from formal interventions in Committee meetings or professional working groups to informal encounters outside the sessions. Whatever the forms of the meetings, they can prove invaluable in emphasising certain matters such as the situation of women with disabilities, providing fuller background briefings or otherwise directing thoughts.
Some other advantages of participation NGOs in meetings of the Committees are the following:
a) They can immediately contest any inaccurate or misleading statements made by Government representatives. b) NGOs attending the meetings have the opportunity to make new submissions based on the direction taken by the proceedings. An NGO might consider drafting its own alternative concluding observations in the hope that they might be of assistance to the Committee.
1.7.3 NGO Action following Examination of a Report
It is essential for NGOs to ensure that attention continues to be paid to the treaty body proceedings. In this context, the tasks of the NGOs of dissemination, promotion, publication and interpretation, are therefore, ongoing ones requiring the exercise of considerable imagination and ingenuity.
1.8 Commission on the Status of Women
The Commission on the Status of Women was established by the Economic and Social Council (ECOSOC) in 1946. The 32 members are representatives of their Governments. Its original charge was to prepare recommendations and reports to ECOSOC on promoting women's rights in different fields.
Currently, the Commission's major function is to promote the roles of women in economic and social development adopted by the world conferences. It regularly adopts resolutions on topics such as elimination of discrimination against women and exercise of all their rights, women and development, elderly women, etc. A second function of the Commission is to make recommendations, via ECOSOC to the Secretary-General and appropriate UN-Bodies concerning increased participation of women within the UN system and implementation and co-ordination of UN programs to advance the rights of women. Since 1987, the Commission assumes a third function, namely, making policy recommendations to ECOSOC concerning priority themes of the Forward-looking Strategies for the Advancement of Women12.
Notes
12 Adopted by the World Conference to Rview and Appraise the Achievements of the UN Decade for Women, held in Nairobi in July 1985