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Contribution by Governments
Monitoring and following up
Mechanisms of the world Convention about the Disabled rights.
I.- MECHANISMS AT INTERNATIONAL LEVEL.
Background:
The public international right of the human right has been characterized by
the most of the international instruments, for setting up specific monitoring
and following up mechanisms on each of the states compromises and obligations;
so that, we will make a brief reference of them with the purpose of illustrating
an organic proposal for the coming world convention on the Disable rights.
1. United Nations (UN)
International pact on political and civil rights, 1996.
This instrument has thoroughly defined the shape of a Human Rights Committee,
not only in charge of receiving states reports and specialized organism’s, but
also getting and examining the communication by which a state party claims other
state is not meeting the obligations imposed by the pact (art. 41).
More over, if issue is sent to the committee, in the terms mentioned before
and according to art. 41, but it isn’t satisfactorily solved by he interested
states; the committee, with the previous consent of these states, could appoint
a special commission for conciliation, that will offer its special office to
get to a friendly solution to that issue (art. 42).
Even though it exist the articulated mechanism in the international Pact on
the Political and Civil Rights. The itemization of determined collectives and
issues motivates the UN itself when approving different conventions, and it
considers in each of them monitoring and checking mechanisms to know:
Convention about the elimination of any form of discrimination against women,
1979:
It is created a committee which will examine the reports of the states over
legislative, judicial, administrative or any other measures that has been adopted
to make the convention dispositions effective and progresses full filled. In
his context, it will annually inform he general Assembly, making recommendations
and suggestions. It will also have the power to ask specialized organisms to
report on the application of the convention (art. 17 and following).
As far as the Falcutative protocol of this 1999 convention is concerned in its
article to add the committee the power to receive and consider the communications
presented by an individual or a group of individuals under. State party in any
of the rights stated in that convention.
The committee could ask the interested state party to take provisional steps
needed to avoid any possible irreparable harm to the victims or assumed victims
of such violation.
Convention on the children’s rights, 1989.
It is set up a committee with the purpose of examining the progresses done within
the obligations assumed by the states party (art. 43). This committee will present
reports to the General Assembly that research over concrete matters connected
with children’s rights can be made, formulating recommendations or general suggestions
in some cases.
International Convention against torture and other Treatment or Cruel,
inhuman or degrading sentences, 1984
A committee against torture will be created. It will be in charge of examining
the reports of the states in relation to the compromises to make the convention
effective, it could formulate comments to those reports and transmit them to
states, it will be authorized to invite those states which are involved in this
type of injuring to cooperate with the examination of the data, asking some
or various of its members to proceed a confidential investigation and inform
the committee will transmit conclusions and suggestions to the state party,
it could put its good offices (meditations). At the disposal of the interested
states party with the purpose of getting to a friendly solution, being able,
to designate a special commission of conciliation.
Moreover, the committee will have competence to receive and examine the communications
in which a state party alleged that the state party is not full filling the
obligations that were imposed by the convention. Competence that can be extended
to individual as well as an affected group of individuals communications and
complaints (art. 22)
Observation;
a)International Convention over the elimination of all forms Discrimination,
1965 (preceding International Pact of Political and civil rights).
A committee to examine the states reports over legislative, judicial, administrative
or any other step taken is constituted; this committee will inform about its
activities every year and could make general suggestions or recommendations
that will be informed in the general Assembly. It will also examine the communication
of State party that consider that other state party is not carrying out the
dispositions of the convention. If the roused issue is not solved, the case
could be submitted to the committee again; furthermore, the Committee President
could name a committee will also be authorized to receive and examine individual
o groups of individuals’ communication within the committee jurisdiction who
alleges being victims of violation.
b)International Convention against corruption, 2003.
A conference of states party of the Convention is set up, with the purpose of
improving the capacity of states and their cooperative work to reach the goals
mentioned in this Treaty as well as promoting and examining its application
(art.63)
This conference will include the admission and participation of observers. It
will make the activities of the states easier in terms of articles 66 or 62.
It will also facilitate the exchange of data among states party and efficient
practice to prevent and fight corruption, being able to publish the information
as well.
The conference will also cooperate with organizations, international and regional
mechanisms and no-governmental organizations; it will take advantage of the
elaborated information by other international and regional mechanisms in the
matter; it will examine the application of the Convention by the states, recommend
take note of the needs in terms of technical support for the states in relation
with the convention, get the knowledge of the steps taken and the difficulties
found by the state party, receive information about the plans, programs and
practice of the states such as the adopted legislative and administrative steps
it could set up , if necessary, an appropriate organism or mechanism to support
the effective application of the convention.
c)Uniform regulations about equal opportunities for disable individuals,
1993.
This instrument that have a juridical rank of resolution in the General Assembly
of the UN had devoted a special relatory about disability as a supervising mechanism
based in at central objective of promotion in the evaluation of its degree of
application and the measurement of the progresses that are reaches.
2.- American States Organization/ OEA regional mechanism.
American Convention of Human Rights, 1969:
This instrument creates two mechanisms:
a)Interamerican Commission of the Human rights.
Together with its function of promoting the human rights it can also formulate
recommendations to member states, prepare the studies for its functions performance,
ask for reports to the governments to the states members about the steps that
they adopt when it comes to human rights, pay attention to the questions of
the member states in this matter, giving them assessment. This commission must
inform about its activity annually in the General Assembly of the OEA.
The commission has the right to know petitions or individual complaints of groups
and non governmental entities for violations of the rights committed by states
party. In this last exercise, the commission will try to reach a friendly solution
between the parties interested (art. 48). If solution is not reached, the commission
will write a report that will be given to the interested state. If after a 3
month period from the delivery of the above mentioned report, the issue hasn’t
been solved or submitted to the court decision by the Commission could give
its opinion and conclusions about it, setting up a time limit for the respective
state adopt the steps they are concerned to remediate the examined situation.
The Commission will decide if the report is published.
Observation:
It is important to highlight that even though some cases has been presented
to the commission because of disabled’s rights affectation and had taken refuge
in procedure. The process itself, has shown its huge slowness, especially due
to the continuous prorogation that the states require to hand in their reports
nevertheless, these cases that many times refer t the “access” topic in some
places are not considered as serious violations of the human rights and for
that reason they don’t have a procedure accordingly to the one that is taken
respect to other vulnerability of rights (freedom of speech, physical integrity
or life vulneration among others). The lack of specialization of the commission
is a complex integral matter such as “disability”, it should make the complaints
presented about this topic to be treated with the meticulousness, deepness and
celerity it deserves.
b)Interamerican Court of Human Rights.
Its function is to know the cases that the Commission on the States party put
forward its consideration. It will also have the right to interpret the convention’s
dispositions or their application, give advisory opinions over internal laws
and the international instruments compatibility under consideration of the Court.
It will have to give an annual report of its activities to the General Assembly
of OEA.
Interamerican Convention for the Elimination of every Form of Discrimination
against Disabled Individuals, 1999
In this instrument you can foreseen the shape of a Committee to keep following
up to the compromises assumed by the States in virtue of the Convention.
The Committee will be the forum to examine the progress registered in the application
of the convention to exchange experiences between the states party. The reports
done by the Committee will gather the debate and will include information about
the steps that they had adopted in the application of this Convention, the progress,
circumstances or difficulties, as well as conclusions, observations and general
suggestions of the Committee for the progressive fullfilment of the same (art.
6)
Observation:
Since more than year ago necessary confirmation had been completed to activate
the Committee Mechanism . however, this situation hasn’t occurred despite of
clear requests from some states to give effectiveness to the body of this Convention.
II.- MONITORING AND FOLLOWING UP MECHANISM PROPOSAL FOR THE WORLD CONVENTION
ABOUT THE DISABLED RIGHTS.
1.-Original Ideas:
a) Creation of a Committee with specific attributions to:
• Receive and examine the reports of the states over the progresses in the application
of the Convention, being able to formulate suggestions and recommendation.
• Receive complaints from individuals or group of individual who are disabled,
their representatives or organizations that give service to them in terms of
disabled’s rights injuring.
• Receive communications of the State party in relation to harm committed by
other states in the field matters of the Convention.
• Interpret the norms of the Convention and their application.
• Give advisory opinions to the states about the compatibility or incompatibility
of its international legislation in relation to the regulations of the Convention.
• Provide or guide the States with technical assistance for the implementation
of the norms of the convention.
b) Committee with the authorization to create Special Commissions for the analysis
of high complexity specific cases.
c) Keeping up the special reporter figure on disability as permanent collaborator
in the Committee duties. If the uniform norms about equal opportunities are
kept up dates as orienting device; the shape of a special reporter will continue
unless the opposite is agreed. If this special court reporter keeps going, the
idea is that its cooperating function to the central body instituted by the
convention.
2.-Articles Proposal.
The Committee
Article *:
It is established a Committee about the disabled’s rights which will be integrated
by 18 members who must be individuals with a high moral integrity as well as
a recognized competence in the field covered by the Convention. Its structure
and functioning will be ruled by the following rules.
a) The members of this committee will be chosen by the States party its national,
valuing positively the condition of disability that the expert could have.
b) The members of the Committee will be chosen and will exercise their functions
on their own.
c) Each state party will propose a candidate for the Committee conformation
of these article. The election of members of the Committee will be held in a
meeting of the States party of the present convention, called by the Secretary
General of the United Nations in the Organization Headquarters. In this meeting,
to which the quorum will be constituted by two thirds of the State parties of
this Treaty, The candidates who obtain absolute majority in the votes of the
state representatives and voters will be elected as members of the Committee.
In the event that absolute majority would not be obtained for the 18 people
who must integrate the Committee will go for a second round among the candidates
that wouldn’t have got the majority until completing the positions.
d) The members of the Committee will be chosen by secret voting from a list
of people proposed by the State party in agreement with a letter.
e) The initial election will be held within six months the present convention
goes into force and effect.
f) At least three months before the date of each election, the Secretary General
of the United Nations will send to States party inviting them to present candidates
in a two month period. The Secretary General will prepare an alphabetically
ordered list of all the designated in this way, indicating the States party
that have proposed them, to communicate the rest of the states the official
list.
g) The members of the Committee will be elected for four years. Nevertheless,
the mandate of nine of the members elected in the first round will expire in
two years. Immediately after the first election, the President of the Committee
will designated by a raffle the name of those nine members.
In this raffle of the committee members, it will be taken into account the reasonable
geographical distribution and the representation of different forms of civilization
as well as the principal judicial systems.
h) The Committee will chose its board for two year period.
i) The Committee will approve its own set of Rules and Regulations
j) To cover unexpected vacancies, it will be acting according to the set of
Rules and Regulations.
k) The Secretary General of the United Nations will provide the personal and
necessary services to the efficient performance of the functions of the Committee
enlightened by the present convention, which will embrace the maintenance of
a permanent secretary whose functioning will be ruled by the set of rules and
regulations contemplated in the letter i) of this article.
Moreover, the help and support required by disabled experts will be considered,
with the purpose of making the tasks fullfilment easy.
Article **:
The states party agrees to subordinate a report to the Secretary General of
the United Nations, about legislative, judicial, administrative or any other
nature measures to be examined by the Committee, make the dispositions of the
Convention effective and check progresses done in this sense. It could be also
be informed about the causes and difficulties that affects the fullfilment degree
of the obligations imposed by the present convention.
The period to hand in the above mentioned reports will be:
a) A year starting from the state convention.
b) Every two years since then, and
c) When the Committee asks for it.
Article ***:
The Committee will get together regularly every year for a non- exceeding two
week period to examine the reports that can be presented in agreement with the
previous article and to exercise the rest of the duties fore seen in the Convention.
The Committee meetings will be held in the UN head quarters or any other place
the Committee estimates.
Article ****:
The Committee will inform at the UN General Assembly, trough its Economic and
Social Council, about its activities and will be able to formulate general suggestions
or recommendations, including the observations of the State party if there some.
Article *****:
The specialized organism will have the right to be represented in the examination
of the Convention dispositions application that correspond to this organism’s
field of competence.
The Committee could invite the specialized organisms to present reports about
the application of the Convention, in the correspondent areas which could match
its activities. To these effects it will also be considered as specialized organisms
the non- governmental organizations at a national and international level, which
are also familiar with disabled rights.
The General Secretary of the UN after celebrating consultations with the committee
will be able to transmit to the specialized organisms a copy of parts of the
reports which have to do with their field of competence.
Article ******:
Every state as part of the pact, could declare, at any time, it recognizes the
Committee competence to receive and examine the communications by which a State
party in not meeting the obligations imposed by the Convention. The communications
done in agreement to the present article could only be admitted examined if
they are presents by the State party that may have done a declaration by which
it recognizes to it self the committee competence. The Committee will not allow
any communication related to a State party which hasn’t done such declaration.
The received communication in virtue of this article will be negotiated in agreement
with the following procedure:
a) If a State party in the convention considers that other state party does
not meet the dispositions of this treaty, it will communicate the issue in written
communication to the Committee.
Within a three month period, counting from the date the communication was received
the addressee state will provide the sending state an explanation or another
written declaration that can clarify the topic which will also make reference,
up to an extent and within national procedure and the adopted resources in application
or that can be used this situation. The answer must be sent with a copy to the
Committee.
b) If the topic can’t be solved satisfactorily between the two states within
a six month period counting from the date the addressee state had received the
first communication, any of the states involved will have the right to subdue
it to the Committee through a notification directed to that organism and the
other state.
c) The Committee will know the subject that is been subdued to, after making
sure that all the resources had been presented and exhausted by the internal
jurisdiction first. This rule won’t be apply when the presentation of the resources
mentioned are delayed unnecessarily.
d) The Committee will hold its sessions behind closed doors when examining the
foreseen communications in this article.
e) Subject to the dispositions in sentence c), the committee will put his good
office to the disposition of the interested states party, whit the purpose of
getting a friendly solution of the topic founded in respect of human rights
and fundamental deliverance that assist every disabled in the terms indicated
in this convention.
f) The Committee will ask the interested state party referred in sentence b)
to give any pertaining information, in every subject subdued to consideration.
g) The state that are interested party ad it is mentioned in sentence b), will
have the right to be represented when the topic will be examined by the Committee;
they will also be allowed to present oral expositions, written expositions or
both.
h) The Committee will present, within the following six months a report to the
date the notification mentioned in sentence b) is received.
The report will tell:
I) If a solution had been reached according to what is arranges in sentence
e), or will consider a brief exposition of the events and the solution reached.
II) If a solution hadn’t been reached according to what is arranged in sentence
e), it will consider a brief exposition of the events and will add the written
presentation and acts of the oral presentations that had been made by the interested
states party.
Furthermore, the committee will emit
a pronouncement with the suggestions and recommendation adjudged to the case.
In each case situation, a report will be sent to the interested states party.
Article *******:
Every state party in the convention could recognize the Committee competence
to receive and consider the communications filed by natural people that are
disabled their representatives in the cases which correspond, as well as groups
that gather them or provide them with services which are under the State party
jurisdiction and that alleged to be victims of a violation by the states respect
to any of the rights mentioned in the convention when a condition as such is
presented, it will be required that the victims give their consent unless the
petitioner can justify that the consent can’t be possible due to the nature
of the disability that the natural person or the group present or the circumstances
they are experiencing stop them to express their will in a free way.
The foreseen communications in the article will continue the following procedure:
a) The communication will be presented in a written form and can not be anonymous.
b) The Committee will check those communication which were guaranteed for having
exhausted all the internal jurisdiction resources, unless the procedures of
these resources take unnecessary a longer time so it makes no possible to provide
an effective reestablishment of the right of the victim.
c) The committee will declare a communication inadmissible if:
I) It refers to a question that has already been examined by the committee or
that has been examining in accordance with other procedures of examination or
in accordance with international organisms
II) It is incompatible with the dispositions of the Convention;
III) It is obviously groundless
IV) The object facts of the communication had happened before the convention
went into effect to the interested state party, unless that those facts keep
on producing after that date.
d) It had received a communication and before getting to a conclusion about
its foundations the Committee could send the interested State party an urgent
examining request for adopting temporary steps to avoid irreparable harms to
the victim of the assumed violation.
e) When the Committee exercises its discretionary power, as shown in the previous
letter; it will imply no judgment about the communication’s admissibility or
the content of it.
f) If necessary, the Committee could decide upon the reliability if the communications
it has received.
g) Within a six month period, since the correspondent notification had been
sent, the State party will present to the Committee written explanations in
which the State clarifies the topic and indicates the corrective measures that
it had adopted.
h) Taking into account the observations that the interested State party had
presented, as well as all the reliable information the Committee may require,
the Committee could make one or more of its members to do a research and present
to it an urgent report. When there is a justification, these members can include,
as part of the investigation, a visit to the territory with the previous consent
of the State party involved.
i) The investigation will be confidential and it will be confidential and it
will be asked to the State party to collaborate in every stage.
j) Each State party will take all the necessary steps to guarantee that individuals
under its jurisdiction will not be subject of mistreatment or intimidation as
a consequence of a communication to the Committee in agreement to this article.
k) In this procedures, as in any other in which a disable appeared in court
in agreement to what it had been foreseen in this Convention, the Committee
will take all the assistance and support measures to facilitate the proper presentations
of such appearing parties.
l) If a friendly solution has been reached, the Committee will write a report
which will be transmitted to the petitioner and the States party in this Convention
and communicate to its publication, to the Secretary General of the United Nations.
This report will have a brief description of the events and the solution that
had been reached. If any of the parties ask for it, it will be provided further
detailed information of the case.
m) If a solution is not reached, within the term fixed in the rules and regulations
of the Committee, this one will write a report in which facts and conclusions
should be shown. If the report does not represent, as a whole or partly, the
unanimous opinion of the members of the Committee, any of them could add to
the report their opinion separately. Oral or written expositions will also be
added to the report.
n) When the report is notified, the Committee could formulate the suggestions
and recommendations they believe adequate, setting a period within the State
party must take the necessary steps to remedy the examined situation.
o) After the arranged period, the Committee will decide, by absolute majority
of its members votes, if the State has taken or not the adequate steps, being
allowed to publish the report.
Article ********:
The dispositions mentioned in the articles ****** and *******, will be put into
effect when ten State parties in this Convention had made their declaration
recognizing the Committee’s competence. Such declarations will be given to the
Secretary General of the United Nations by the States party who will send a
copy the rest of the States party. Every declaration could be withdrawn by means
of a notification directed to the Secretary General. This retirement will not
be an obstacle so any topic of an already presented communication could be examined.
It will not be accepted any new communication of an State party once the Secretary
General of the United Nation had received the retirement notification of the
declaration.
Other faculties of the Committee.
Article *********:
The Committee will be authorized to:
a) Emit reports about the interpretation of the norms of this Convention or
their applications, if any State party requires it.
b) Emit advisory opinions about the compatibility among any of the States internal
laws and the already mention international instruments, if any of the States
party require them.
c) Give technical orientations about disabilities to the States party that requires
them deriving such solicitudes to the specialized organisms when necessary
d) Recommend to the General Assembly of the United Nations to make studies about
specific issues related to disabled.
Special commissions.
Article **********:
a) If a topic that has been sent to the Committee with arrangement to the articles
****** y ******* is not solved satisfactorily by the interested parties, the
Committee with the previous consent of those parties, could point a Special
Commission of Conciliation, denominated from now on as “The Commission”. The
good offices of the Commission will be put on the interested parties disposition,
with the purpose of getting to a friendly solution upon the topic, based in
the respect of the present Convention.
b) The Commission will be integrated by five people elected among the members
of the Committee, excluding the nationals that belong to the involved States.
The members will be elected in secret voting, winning those who get the absolute
majority of the votes.
c) The Commission will elect its own president and approve its own rules and
regulations, in which it will be determined the reasons for vacancy of the position
as well as the Commission’s provision and place of functioning.
d) The Secretary foreseen for the Committee will provide services for the commissions
that can be established.
e) The formation received and studied for the Committee will facilitate the
Commission that could ask the interested States party to provide additional
relevant information.
f) Once the Commission had examined the topic in every single aspect, it will
present to president of the Committee a report to be transmitted to the interested
parties within a period no longer than six month after receiving the topic:
I) If the Commission can not complete the examination of the topic in the period
established, it will limit its report to a brief exposition of the situation
of the case analysis;
II) If the solution is not reached, the report of the commission will included
its conclusions over all the relevant questions of the outlined topic between
the interested parties and its observations about the possibility of a friendly
solution. this report will also have the written expositions and a summary of
the oral expositions performed by the interested parties;
III) If a friendly solution is reached respecting of the rights of people with
a disability in the terms foreseen by the Convention, the Commission will limit
its report to a brief exposition of the facts and the solution reached;
IV) Once the report of the Commission is presented to the Committee, the interested
parties will notify the President of this organism, within the three following
months to the arrival of the report, if they accept or not the terms of the
document’s contents.
Article ***********:
The members of the Committee and the members of the Special Commissions of Conciliation
will have the right to facilities, privileges, emoluments and immunity as, the
experts who performed missions for the United Nations are given, with arrangement
to what it was disposed in the relevant instruments to the effect. For this
cases, it will be specially consider the importance of the functions performed
by the Committee and the Commissions.
Article ************:
When the Committee verifies that there was a violation of a right or freedom
protected by this Convention, it will guarantee the victim with his rights or
freedom infringed as well as it will repair the consequences of the actions
or censurable omissions of the rights considering the payment of a fair indemnification.
In extremely serious and urgent cases the Committee could take temporary measures
if necessary to avoid irreparable harms to the people.
Special Court Reporter.
Article *************:
Considering the existence of Special Court Reporter about disability in agreement
with Chapter IV in the Uniform Norms about Equality of Opportunities for Disabled
People, this position will be kept according to what it was foreseen in this
resolution, as a direct collaborator of the Committee created for this Convention.
Interpretative norm of the Convention.
Article **************:
The dispositions of this Convention must be always interpreted in the most favorable
sense to the people with a disability, avoiding every kind of damage of the
rights.
In every case, the dispositions which lead to respect, promotion and protection
of the disabled people’s dignity and rights will be preferred. They will take
part of the legislation of a State party or any other Convention, treaty or
international agreement in force in this State.
III.- NATIONAL LEVEL MECHANISM
Article ***************:
The State party will point a governmental organism that will be in charge of:
a) Implementing this Convention for its application at a National Level, setting
its intersectorial mechanism for this effects.
b) Establishing, keeping and fortifying the legal administrative and public
policy frame at National Level, protecting and monitoring the achievement of
the rights in this Convention
c) Collaborating with the Committee and the Special Commissions in the procedures
they ask for, giving all the necessary information and background once the State
party had recognize the competence of the above mentioned organism.
The States party, at the moment of depositing their ratification of the instrument,
will also point out the coordinator governmental organism in agreement with
sentence 1 of this article.