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Session of the Ad Hoc Committee
Summaries of the Sixth Session
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ARTICLE 25 - MONITORING
The Chair noted yesterday’s presentation of the Office of the High Commissioner of Human Rights (OHCHR) on UN human rights treaty monitoring. International treaty monitoring practices are in a state of flux. A draft concept paper regarding the establishment of a standard, unified treaty body will be available next year and a meeting will be held in May 2006. National monitoring is a different matter. The WG text deals with national monitoring only, but discussion was open on international monitoring as well.
The EU stated that without a monitoring system which ensures the best possible implementation of this Convention, this process will be a waste of time and energy as well as a disservice to PWD. This group must take time to consider what monitoring mechanism will be most effective. Pursuant to a resolution from the Commission on Human Rights, the OHCHR is working on a report about possible innovative monitoring strategies for this Convention, to be given to member states this summer. In addition, the High Commissioner will present a proposal in January for a unified monitoring body followed by consultations and then a super-meeting of states parties on the best way forward. Other treaty monitoring processes do not work as well as intended. There are backlogs and delays, so that even a state that reports every five years may have to wait several years before that report is examined. These backlogs take away from the monitoring committees’ time to address cross-cutting thematic issues. A better monitoring model should be implemented for this Convention. The WG text focuses on national monitoring, not international monitoring, even though they are linked. The relationship between national and international monitoring must be established. Beyond these points, the EU is not at the point where it has a specific model to propose and would prefer to wait for both the OHCHR reports mentioned above.
The Chair brought to the attention of the Committee the resolution E/CN.4/2005/L.65, at http://ap.ohchr.org/documents/dpage_e.aspx?si=E/CN.4/2005/L.65 titled "Human Rights of PWD.” Paragraph 7 reads: "Request OHCHR to prepare an expert paper focusing on the lessons learned from existing monitoring mechanisms, possible relevant improvements and possible innovations in monitoring mechanisms for a Comprehensive and Integral International Convention on the Promotion and Protection of the Rights and Dignity of Persons with Disabilities and to make the paper available to the AHC at its 7th session." The 7th session is in January. Therefore, there are two papers of interest which are coming soon, one on this convention, and another on the international process.
Japan expressed appreciation for the work of the treaty monitoring bodies, but noted that the reporting process has become burdensome and unsustainable both for the countries and the treaty bodies. The CRC Committee has asked that the number of experts on its committee be doubled. The CEDAW Committee has asked for more time for the examination of states reports, from 3 weeks to 4 per session, and with 3 sessions instead of 2 each year. New monitoring mechanisms should be developed cautiously after release of the OHCHR reports. Article 25 should make clear that PWD must participate in monitoring, not only in the development stage, but in the implementation.
Yemen saw value in the WG text but by focusing on national, governmental monitoring mechanisms, it requires the implementer to monitoring its own work. Monitoring should be done by the direct beneficiaries of this convention. International monitoring is also important. States parties should submit reports and be held accountable for implementation, for example by losing privileges if necessary. PWD must take part in monitoring processes at the national, regional, and international levels and in 25(1) “private institutions that work on behalf of PWD” should be added after “Government”. As proposed by Mexico, States Parties should convene annual regular meetings to examine implementation progress. International monitoring should be linked to international cooperation in order to help States Parties implement this Convention.
Serbia and Montenegro supported the EU positions and stressed the need to coordinate national with international monitoring and with existing treaties. As noted by Japan and Yemen, PWD should be involved in the monitoring process. The Committee needs more time to fine tune the monitoring mechanism. Israel's proposal merits consideration. (http://www.un.org/esa/socdev/enable/rights/ahc6israel.htm)
Costa Rica saw the possibility for this Convention could become a model given current efforts to reform the UN's human rights treaty monitoring system. Although it offered no specific proposals, Costa Rica urged a discussion of the Article's premises, and supported an explicit reference linking national and international monitoring. The monitoring system should be proactive rather than just receiving reports. Its procedures should allow civil society to assist in gathering data, and should include on-site visits. There should be a way to deal with individual communications from PWD, especially those in crisis.
South Africa stated that monitoring should track progress as well as do necessary follow-ups for implementation. There must be a government-wide monitoring and evaluation system which can assist countries in tracking the progress of their implementation plans, at the level of disability-specific indicator-development, and at the level of mainstreaming disability within the government's planning processes, policies, and legislation. Legal and administrative systems could be monitored by statutory commissions in addition to the government’s own reporting processes. International monitoring bodies should assist countries in submitting comprehensive reports, which should include descriptions of internal monitoring mechanisms and legal/administrative structures. South Africa has a system of monitoring, evaluation and reporting which includes a compendium of indicators, indices and statistics. This Article's text should contain more detail. The monitoring mechanisms should be modeled on those in CRC and CEDAW.
Mexico voiced support for robust national and international mechanisms with more authority than those of other treaties. Its original draft of the Convention included such a monitoring provision. This Convention cannot wait for existing monitoring mechanisms to evolve. Instead it should be innovative and nontraditional, not necessarily entailing reports. The Committee should figure out how to rectify the shortcomings which exist in other monitoring mechanisms. Because this is a modern Convention with many technical issues, both follow-up and international cooperation are important elements. The monitoring instrument must be flexible given the importance of progressive implementation that transcends a simple follow-up function. It must also include appropriate and equitable regional representation.
Brazil stated that while current reporting systems do not work as well as they should, creating backlogs and other problems, the monitoring system has nevertheless made significant contributions to implementing human rights treaties. Brazil remains open to innovations and looks forward to reading the upcoming report. This Convention may be able to set an example and help to reform other monitoring systems. Brazil supported adding the capacity to receive individual communications. If no consensus is reached to improve the monitoring mechanism, it at least cannot be allowed to be less effective than other treaties; this cannot be seen as a second-rate treaty. This Convention could use the same monitoring system as others and could integrate reforms as they develop.
Norway supported national monitoring and added that each country should choose its own focal point. As for international monitoring, existing treaties offer ample experience. Detailed discussions should be deferred until the reforms related to the existing treaties are online, and after the expert paper is issued. Already the UN receives many reports regarding PWD, such as for the Standard Rules and the action plan. This Convention's monitoring system should be equal to the others, but should also be innovative.
China urged caution; monitoring is a vital component and deserves detailed discussion. Absent a well drafted text, this discussion should wait for the report from the OHCHR. National and international monitoring should be interactive and interrelated to support better implementation.
Canada stated that the true measure of the Convention's success will be real improvements in the quality of life of PWD. Canada has a framework for monitoring its national disability policies, programs, and services, using specific indicators to measure progress toward positive outcomes for PWD. NGOs participated in the creation of these measurements. A domestic monitoring requirement may be an innovative way to promote effective implementation. However, this must be flexible enough to include all kinds of domestic arrangements such as in a federal state. An effective monitoring system should also require states parties to report at the international level, with disability-related reporting mainstreamed into existing monitoring mechanisms. In this regard Canada has fully supported resolutions of the Commission on Human Rights inviting existing human rights treaty bodies to monitor compliance of states with respect to PWD. However the Secretary General’s report recognizes that many existing treaty monitoring mechanisms have overlapping content and create burdens for both governments and the treaty monitoring system. It has recommended creating one standardized monitoring system for all human rights treaties so that a single report may be made. In addition, treaty bodies must be more effective at responding to human rights violations. The treaty body system is little known and is undermined by States’ failure to report and by poor implementation of recommendations. The Plan of Action of the High Commissioner responding to this report went further, recommending the consolidation of all seven treaty bodies to create a unified body. Canada is interested in this recommendation, and believes the discussion on monitoring in this Convention should take place in the context of both this proposal, that of the Secretary General, as well as those for UN reform, which create an opportunity to be innovative. It therefore looks forward to the OHCHR proposals to be submitted in the new year and at the next session of the AHC. PWD need to be involved in the creation and implementation of this monitoring system and Canada looks forward to their proposals.
New Zealand looks forward to the OHCHR expert paper at the next session for practical and innovative options for the AHC to consider. However this should not delay the current discussion of monitoring. Any international monitoring system should be flexible enough to benefit from reforms as they are implemented. A national monitoring system should also be included, and the statistics provisions in Article 6 should be moved to the article on monitoring, but these should not be too prescriptive for States. Any monitoring should be funded through the regular budget so as not to be held hostage to voluntary funding.
Sierra Leone stated that the success of this Convention depends on effective national monitoring; and it supported adding the words "with the full participation of PWD" after "administrative system" in 25(2) because PWD need to participate in national implementation mechanisms. Because this is a legally binding instrument and not a plan of action, an international monitoring mechanism should be included. The Committee should not wait on reform efforts indefinitely. Although the national monitoring provisions should not be too prescriptive, governments' actions in implementing the Convention will, in large part, determine its success. It is a burden to make reports to treaty bodies. National monitoring should be discussed now, and international monitoring should be discussed at the next meeting.
Senegal called for improving and strengthening this article because it is legally binding. Once ratified this Convention must be implemented; this article should therefore include PWD to carry out the monitoring. NGOs must also be involved with monitoring because a State cannot see its own shortcomings. Senegal supported Japan and Yemen's proposals.
Thailand emphasized the equal participation of diverse groups of PWD and representative organizations. The treaty committee should reflect geographical diversity. As suggested by Sierra Leone, the Committee should focus on national monitoring now and wait until the next session to discuss international monitoring, in light of the impending reform proposals. A national monitoring mechanism should be disability centered and independent, and should allow participation by civil society. States have a responsibility to implement the Convention, but monitoring should be done by those affected by it.
Russian Federation noted that monitoring this convention should not be any less effective or more simplistic than that for other treaties. States must provide mechanisms for national monitoring to measure the fulfillment of obligations. The monitoring should require participation of PWD and NGOs. International monitoring should not neglect existing monitoring provisions because provisions of some treaties such as ICCPR, CRC, and CEDAW are relevant to PWD. As stated by EU and other delegations, discussion of international monitoring should await the forthcoming reports.
Peru urged creation of a new monitoring system which should avoid the significant problems of the current system. It should include social and development aspects, assistance to countries to support implementation, and a component to ensure gradual implementation. PWD must be included.
Sudan stated that monitoring will not be sufficient unless it includes both voluntary and compulsory mechanisms. Official reports may not reflect real achievements and commitments. Monitoring should be done with organizations of PWD and government authorities. In Sudan, there is a high council for PWD which advises gives the government about laws and policies. International bodies should coordinate with regional groups such as the Arab League and African Union. Annual reports should be required, as with human rights treaties, to ensure governments' commitment. The report should be prepared by a committee with geographical parity organized for this task.
Algeria suggested the Committee consider the monitoring provisions of the environmental convention as a model, given that part of this Convention relates to social development and given the difficulties and delays in the existing human rights monitoring system. For example, once or twice a year, States Parties could hold conferences where reports would be made public and examined by NGOs, and be a forum to share ideas, encourage activities, consider shortcomings, and propose solutions. Such a conference of state Parties could also provide a framework for international cooperation. Algeria has adopted a national law to protect PWD and a national council, comprised of representatives of organizations serving PWD, evaluates implementation of this law. There is also an appeals commission. A similar organizational scheme could be used for this Convention.
Australia stated that any monitoring system would have to be consistent with their treaty body reform objectives. As other delegations have said, the Committee should wait for the reports before having a detailed discussion. The Convention should not impose duplicative reporting obligations, requiring reports to several UN agencies. Australia supports the national monitoring mechanism in Article 25, but it is too short and lacking in detail. The monitoring mechanism will depend on the nature and form of the substantive obligations in other articles. Australia will not support a complaint or inquiry mechanism while its concerns with the UN treaty body system remain. It could support a complaint mechanism on an opt-in basis, and would be alarmed by proposals for complaints on a different basis. Any complaint system must contain procedural mechanisms to ensure that a single complaint could not be considered by more than one committee.
Kenya stressed that time is of the essence in finalizing this Convention so PWD can enjoy their rights. Monitoring mechanisms should be consolidated, but this process must not slow agreement regarding monitoring in this convention. There are problems in other treaty bodies, but even those processes have been useful in enabling people to exercise their human rights. At both the national and international level, independent processes, that are at least equivalent to those of existing treaties, should be developed to monitor implementation of this Convention.
The United States of America recommended, in preliminary remarks on this issue, that national monitoring should remain the WG text's focal point given the current discussion about possible reforms to international monitoring and to avoid any duplication.
Islamic Republic of Iran supported the inclusion of civil society groups in national monitoring councils that would be a focal point for government ministries. International monitoring must be consistent with other mechanisms. This discussion should be postponed until the next session. International monitoring committees should have equal geographical representation.
Argentina stated that this Convention, like other human rights conventions, needs both national and international monitoring mechanisms. An expert, independent monitoring committee should be formed, with equal geographical and gender representation, as part of the ongoing reform of the human rights system. New mechanisms could increase effectiveness. Dialogue with civil society and their “shadow reports” will both be important in implementing this Convention.
Cameroon noted the current reform movement could allow for new approaches, such as creating one body to monitor all treaties; or the current system could be adapted. Issues that need to be addressed: 1) Are these bodies quasi-judicial? 2) Will they receive communications from individuals and groups of PWD? 3) Who will serve as members? If the membership is to be comprised of specific experts, PWD must be the vast majority, not marginalized. A monitoring body must be impartial, independent and competent, with regional representation. Whether the new UN treaty body system results in a unified body or a collection of specific bodies, there should be synergy and interaction among the different review groups, so that human rights can be addressed in a comprehensive and multifaceted way.
Chile expressed its concern about suggestions to water down monitoring provisions. This Convention deals with social, cultural, and economic concerns rights of PWD who historically have been treated with discrimination and intolerance. The monitoring system should be strong and inclusive of civil society. International cooperation must be addressed. As stated by Australia, Article 25 should have more detail about structure and objectives.
El Salvador called for protection of all human rights and fundamental freedoms without any restrictions based on religion, race, or sex, for all women, children and PWD. Monitoring will ensure effectiveness. As suggested by Costa Rica and the EU, the Committee should wait for the reports before discussing the details of this article. The new monitoring mechanism should be based on past experience of the UN treaty monitoring system. National and international monitoring should be linked. Monitoring mechanisms must allow for the gradual implementation of the Convention. Social monitoring is also important. As Mexico stated, developing countries must draw support from donor countries.
Israel agreed that the WG text must be expanded. It has proposed changes over a year ago to this article, which can be found at http://www.un.org/esa/socdev/enable/rights/ahc6israel.htm . This proposal's international monitoring section is detailed, on which Israel is flexible. The proposed national monitoring system is based on other national human rights institutions, with a combination of enforcement and promotion. All committees require that a majority of members be PWD. These proposals are subject to the two reports which will soon be released. There is a strong relationship between international monitoring and international cooperation.
India was satisfied with the WG text’s representation of national monitoring. International monitoring should await the High Commissioner's reports, and should incorporate lessons learned in the implementation of previous treaties.
Ukraine noted that the new monitoring mechanism should not exclusively involve PWD and their NGOs, but also include governmental representatives and agencies. Without a monitoring provision this is only a declarative Convention.
Qatar supported both a national and international monitoring system. The national mechanism should consist of national reports, with the participation of NGOs, especially those dealing with PWD. Legislative councils should be used because laws have a role to play in implementation. The Committee should consider lessons learned and proposed reforms in determining how to attain its goals. International monitoring should be linked with the article on international cooperation to help States implement this Convention.
Liechtenstein agreed that treaty body reform is important, but this process may continue much longer. Meanwhile this Committee needs to finish its work and should come up with something innovative, while taking into account the status of reforms. Some of the problems involved in monitoring other Conventions are caused by a lack of resources and of political will. Mechanisms that have more support are more efficient. For example, the counterterrorism taskforce has ample staff all year round and therefore equipped to engage in a proactive dialogue with member states that leads to concrete changes on the ground. To overcome "reporting fatigue," the monitoring body should be designed to proactively collect information, rather than just wait for reports.
The Chair asked for specific proposals regarding this article.
Sierra Leone responded that it did propose adding a requirement for full participation of PWD and their organizations in monitoring. It also suggested a separate article, 25bis or 26, to deal with international monitoring. Paragraphs (1) and (2) of Article 25 could be merged as the language is prescriptive. For example, "focal point" in para 1 implies an individual, when in fact some States already have structures in place to deal with the rights of PWD.
The Chair noted consensus from proposals so far that PWD and NGOs should be involved in the monitoring process at both the national and international level.
Statements from NHRIs and NGOs
National Human Rights Institutions brought to the attention of the Committee
its proposed text http://www.un.org/esa/socdev/enable/rights/ahc6nhri.htm drawing
on their experience in monitoring at the national and international levels
and based on a careful study of proposals that have been put forward. A general
discussion has been going on for several years on the current treaty body system's
well known problems, and the need to build on its under-emphasised successes.
This has produced modest results. At this point platitudes will not help; the
challenge is to produce concrete solutions and proposals.
The NHRI proposal, as a starting point, seeks to harness international law to stimulate and steer a process of domestic reform, rather than create a layer of administrative burdens. It takes domestic sovereignty seriously and thereby stands a good chance of advancing the goals of this convention. International monitoring should add value to the domestic process, essential if progress is to take place where it matters most.
It would require States Parties to create action plans with goals and timetables and practical indicators to measure progress. This would allow governments to take ownership over the process of change and the crafting of an action plan would embed a positive dynamic of change.
A national monitoring mechanism would illuminate domestic reform efforts and provide local knowledge and constructive advice to governments.
An international monitoring committee would provide guidance in crafting action plans aided by a baseline report from states parties from which progress can be measured, possibly at a regional level where distinctive factors may be relevant.
Reporting is not just an administrative burden or a process of documentation. In fact it is a core part of analysis and policy development which is at the heart of implementation.
The international committee should also produce thematic studies to assist States Parties in finding practical solutions to intractable problems.
Change will not occur without more resources. A Global Disability Rights Advocate would enhance the capacity of national monitoring bodies, implementing agencies and NGOs. It would be a repository of useful knowledge to facilitate sharing of best practices among States Parties. There may be no need to create a new body for this purpose; instead it might be possible to update the role of the existing Special Rapporteur, who already has a programmatic mandate. Either way this advocate’s proactive role is important.
An optional complaints procedure should also be created. Complaints are not an end in themselves, but they are a useful reality check. Both individual and collective complaint procedures have merit. The latter has the added benefit of addressing structural inequities.
An ongoing dialogue between the Committee, national monitoring mechanisms, States Parties, and DPOs is necessary; all voices must be heard if progress is to be sustained.
The discussions on UN reform have been ongoing for more than a decade. They are unlikely to result in major structural changes to the treaty body system in the time that it will take to adopt this Convention. As noted by Mexico, Canada, Kenya and others, this Convention should not be held hostage to those efforts. Indeed there is an opportunity to set innovative approaches to monitoring that might serve as a guide to the larger reform process.
This monitoring process is flexible enough to incorporate whatever changes to the general treaty body system that might eventually be adopted. It provides for a Conference of States Parties to this Convention to be convened no later than 5 years after its entry into force to review those reforms and to make appropriate changes.
Landmine Survivors Network for IDC, composed of more than 50 national, regional and international disability organizations, as well as the International Service for Human Rights and the International Commission for Jurists drew the attention of the Committee to its proposed text http://www.un.org/esa/socdev/enable/rights/documents/ahc6idcda25.doc. National monitoring is essential to the implementation of this Convention, but so is an international monitoring provision. Its absence from the WG text reflects a difference of opinion among delegations for a monitoring system with teeth. Some states are uncomfortable being monitored. There is self-interest in this silence.
Delegates in this Committee agree that disability rights are human rights. However this view is not widely understood outside of this forum. This is why there was a need for this convention, and why this Convention should also be a part of the core human rights system. This means having a treaty body mandated to monitor implementation. Status does matter, and this sends a message to the international community that this is a core convention on par with other human rights conventions.
This is not to say that “we want what everyone else has even though it is broken.” This new process has the opportunity to learn from the existing 7 human rights conventions. The positive elements of international monitoring that should be preserved in this convention are: ensuring international accountability, promoting dialogue between experts and States, and developing jurisprudence. The Convention should not inherit passive and routine reporting cycles, overburdened committee members, or an under-resourced system. Only 1.8% of the UN budget goes to human rights.
IDC supports reform to consolidate the work of the treaty bodies into one, but the inclusion of monitoring in this convention should not wait for such reform. This negotiation is under scrutiny and there is an opportunity to lead the broader reform agenda by setting the highest possible standards rather than the lowest common denominator.
These standards should include:  Full participation of PWD and their organizations not only in contributing toward monitoring but in undertaking it at all levels;  monitoring mechanisms at international and national levels with interaction between them, and a regional component focusing on awareness raising and promoting universal standards;  national monitoring mechanisms whose independence complies with the Paris Principles;  proactive international mechanisms that has independence legally and an independent mandate for action, the authority to control the implementation agenda, and an integrated follow-up procedure. The international mechanism would comprise 4 levels: [i] a treaty body, [ii] a full time disability rights advocate, [iii] interagency coordination, [iv] conference of states parties to promote cooperation. International monitoring should use baseline data to monitor performance and make action plans to encourage compliance. Plans need to be made in conjunction with international monitors so they are not just showpieces for governments.
Disabled Peoples International (representing the women’s caucus of the IDC which represents 50 organizations) called for more substantive provisions with respect to women with disabilities. It pointed to the IDC’s proposed language for integrating gender in this article’s reporting and composition aspects, and emphasized that this is not contingent upon the evolving content either of this provision or other provisions of this convention.
Center for International Rehabilitation emphasized the coordination among and participation of PWD as well as relevant NGOs in the monitoring and reporting process. It proposed adding this language: "The committee shall include representatives of NGOs with expertise in the field of disability issues or other relevant fields to submit relevant information to the committee to assist in its work and to be present and to be heard in its meetings.” The inclusion of shadow reports as part of the monitoring process complements States Parties' reports and ensures inclusion of PWD in all aspects. NGOs are already involved in the practice of human rights treaty monitoring of CEDAW and CESCR. The CRC Committee has formally institutionalized the consideration of NGO reports by dedicating the last week of each session to reports of coalitions of NGOs from countries that are due to report at the subsequent session. The CRC text also makes specific provision for the involvement of NGOs in the work of the Committee, and this is also reflected in the IDC text. NGOs are similarly involved in the reporting process of the Mine Ban Treaty and the Convention on International Trade in Endangered Species. NGO involvement in monitoring this convention can build on these examples and underlines one of its fundamental principles B the inclusion and participation of PWD.
International Disability Caucus called on governments to thoroughly review its proposal, http://www.un.org/esa/socdev/enable/rights/ahc6contngos.htm prepared in cooperation with mainstream organizations involved in the existing human rights monitoring system. The IDC reacted to delegations’ interventions so far. It agreed with Costa Rica and others that highlight the link between national and international monitoring and with those that emphasized civil society input at both levels including through shadow reports. It was in favor of those States calling for a proactive monitoring system and a conference of States Parties in particular as proposed by Algeria. As Liechtenstein pointed out, the human rights system’s budget problems are a matter of political will and in this regard the IDC supports calls to ensure that follow-up actions are funded as part of the regular UN budget. Israel's proposal contains some very good elements similar to IDC's proposal. The NHRI's proposal is responds to delegations’ requests for innovation and improvement in a text that contains many good elements. The WG text is inadequate. It should include an independent national monitoring system with the full participation of civil society, and on this point the IDC is concerned about the “wait and see” position of delegations. The IDC requests from the Committee and the Chair that sufficient time be reserved towards the beginning of the next session for a thorough discussion on national and international monitoring, by which time the OHCHR report would be available.
Mental Disability Advocacy Center, as an organization for PWD rather than of PWD, endorsed the position of the IDC and called on governments to do the same in the spirit of "nothing about us, without us." This convention cannot be held hostage to the reform process, which can in fact benefit from a creative, innovative approach to monitoring in this convention. States’ concerns are understandable and MDAC emphasized that they are addressed in the IDC proposal. MDAC endorsed convening a committee, and urged that it be composed of PWD. In this regard some states have expressed concerns that technical expertise is needed, but it should be noted that PWD can also contribute technical expertise.
The Namibia Association of People with Physical Disabilities agreed that developing the monitoring process for this convention should not wait for the treaty reform process to be completed. Fundamental principles of monitoring need to be discussed. People with all kinds of disabilities and cross-disability organizations need to be enabled so they can effectively participate in monitoring. A disability rapporteur or ombudsperson should oversee the monitoring.
Arab Organization of Disabled People was convinces that without a monitoring mechanism the Convention will not receive the necessary attention by States. The Article should include: a national implementation mechanism; a regional monitoring mechanism for follow up; an international body to monitor implementation and to coordinate States Parties' efforts; a committee to coordinate national, regional and international efforts; participation of PWD and DPOs at each level; preparation of reports by states parties on implementation and follow up at each level; integration of disability in the work of other human rights treaty bodies.
People with Disability Australia/National Association of Community Legal Centers noted that monitoring alone will not ensure implementation; states must be obliged to take additional steps at the domestic level:  incorporate the rights specified in the Convention into domestic law;  enact laws to provide domestic avenues for complaint/redress when PWD human rights under this convention have been breached;  mandate the role of PWD and independent disability organizations in public policy development, implementation and evaluation of issues impacting them;  provide financial and other resources to enable PWD input;  develop, implement, evaluate national programs of independent advocacy services, providing individual and group advocacy assistance so PWD can realize their rights under this convention. Additional proposals, traditionally not found within human rights instruments, can facilitate domestic implementation measures are: a new UN Decade for Disabled Persons and a World Program of Action to promote celebration and implementation of the Convention, in which regional commissions could play a role in facilitating international cooperation. Some elements still missing from the Convention: refugees with disabilities, freedom of association, benefits of scientific progress, assurances of no decreased rights under existing international or national laws. The report of Australia’s national consultation with PWD contains suggested text on these issues.
ARTICLE 25 – MONITORING (cont)
Mental Disability Rights International called for specialized independent monitoring to protect the rights of vulnerable people particularly those in institutions in addition to general monitoring, based on its experience assisting States with deinstitutionalization and community integration. Although the Convention should contain a right to community integration, millions of PWD remain segregated from society in institutions. As noted by three UN Special Rapporteurs on human rights and disability, mental health, and most recently, Paul Hunt in his report on the Right to Mental Health, special measures are needed in every country to protect these individuals who do not have the means to publicize or reclaim their rights, until community integration becomes a reality.
One useful set of monitoring guidelines that could be incorporated into this convention or inform rules of procedure of its monitoring body lies in Recommendation 10 on the human rights and dignity of people with mental disabilities, adopted by the Council of Europe’s Committee of Ministers. This requires monitoring to ensure compliance with both legal and professional standards of treatment and care, by an independent organization. Such monitoring includes regular unannounced visits and inspections of mental health facilities (Article 37.1) and publication of statistical information on mental health practices and implementation of mental health laws (Article 38). Monitoring should be conducted by mental health professionals, lay persons and people with mental disabilities (Art 36.2). Because the UN Standard Rules also recognize the right of PWD to be involved with monitoring and implementing human rights affecting them, Sierra Leone's and Yemen's proposal to incorporate this guarantee into Article 25 should be adopted.
Deinstitutionalization at the national level results in a shift towards community based services and this means, more abuse occurs in the community. Often such services are in fact small and isolated institutions located in physical proximity to what could be called “the community”. Thus any oversight mechanism must also include monitoring of such community based services.
MDRI endorsed suggestions by Costa Rica and Liechtenstein to create a proactive treaty body, one that not only reacts to reports but also more importantly responds to complaints of violations by PWD. Situations do not change until those on the ground force that change to occur. However, civil society requires the support of international oversight bodies who will assist in settlement, reform, follow-up, and supervision. As Brazil stated, an individual complaint mechanism is essential for enforcement of any human rights treaty. Individual complaints, when focused on a concrete instance of abuse that affects similarly situated persons, can address structural inequities through effective remedies. Remedies include guarantees of nonrepetition that get to the larger policies that perpetuate abuse and allow for a direct response to the contours of the violation. This has been the experience in the Inter American human rights system generally, which will soon hear its first case involving abuses in a psychiatric hospital in Brazil.
In response to Australia's concerns, all judicial or quasi-judicial bodies in international law include a jurisdictional requirement that the same complaint not be considered by 2 international instances. To assist with potential overlaps and also maximize existing resources the Committee could endow a committee of experts with the capacity to refer individual complaints to one of the 3 corresponding regional human rights systems which receive individual complaints. This would lessen the workload of the Committee allowing it to focus instead on individual complaints from regions which lack judicial and quasi-judicial human rights bodies. The regional systems are well developed and have strong friendly settlement, follow up and supervisory procedures. It would also mainstream disability rights protections into non-disability specific human rights treaties.
Judicial and quasi-judicial adjudication of complaints need to be linked to processes for follow up and continual supervision by monitoring bodies. Simple recommendations alone without follow up would reproduce a weakness of the existing human rights treaty bodies.
Two additional mechanisms can contribute to the proactive nature of this Convention’s monitoring mechanism, as stressed by Costa Rica. While a complaint is being processed, which often involves significant delays, precautionary or urgent interim measures and onsite visits are vital to protect PWD from grave and irreparable harm. MDRI has successfully used precautionary measures in the Inter American human rights system to ensure the immediate protection of the right to life of people caged in institutions in sub-human conditions. Onsite visits allow monitors to directly see abuses, speak with persons affected, negotiate with decision-makers, and to put remedial actions plans in place.
Latin American NGO (name unclear) called for civil society to be a part of the monitoring process. The government cannot be both a party to the Convention and judge of its actions. PWD and their organizations must participate, as should other groups like churches, an ombudsman, etc. There must also be international oversight with outside neutral experts visiting countries and making reports. PWD participation will help them acquire the freedom to make decisions individually and as a community. Paternalistic aid relationships with governments should end.
Mali expressed concern that the substance of a national or international monitoring system has not been discussed. Implementing a Convention takes a lot of coordination from the grassroots, local, regional, and state levels to the international level. It will require human and financial resources. If this flow of information is not managed at the national level, implementation and monitoring will fail.
The Chair noted overwhelming support for monitoring at both the national and international level, though a few delegations had concerns about international monitoring. There was consensus that the monitoring system should be as good as or better than that for existing treaties, and should involve PWD and civil society at both levels. Some suggested creating a system which could serve as a model to the existing treaties. States have stressed the need for effective monitoring because this is an "implementation Convention," dealing with existing – though neglected - rights set out in other treaties, and how to help PWD realize those rights. Some States wanted to await reports on treaty reform before discussing details, while others opposed being "held hostage" to these processes. As noted by Brazil, there is always criticism of the treaty monitoring process, yet they have impacted the implementation of existing human rights treaties. Mexico, Israel and NGOs have made proposals that would be a good start for discussion in January: annual conferences of States Parties to track progress; shadow reports from representatives of civil society; individual communications, though some delegations held differing views about this; funding from the regular UN budget; enabling opportunities to share information on best practices rather than as a forum for negative judgment. Other specific issues raised included the role of legislative councils, model monitoring mechanisms such as those in CRC and CEDAW, and, as suggested by Cameroon, several other specific and complex issues such as membership mandate. The report of the OHCHR would be helpful in this regard. National monitoring as outlined in the WG text remains open.
STRUCTURE OF CONVENTION
The Chair recalled that there had been much discussion about adding or deleting articles, and about moving issues or sections from one part of the Convention to another. These discussions should not be reopened as they deal with structural issues at the micro-level. The focus at this point should be on the bigger picture, to establish a logical order, flow, and relationship among the articles. This Convention, like most conventions, will probably begin with a preamble. Also, Conventions typically have articles which apply generally and horizontally. There are articles generally addressing civil and political rights, followed by articles addressing economic, cultural and social rights, followed by monitoring provisions and final clauses, which the Committee has not yet addressed and should not address until the end. This is a hybrid Convention dealing with civil and political rights as well as economic, cultural, and social rights; these are not easy to divide. However, there should be a logical flow to the Convention.
Australia referred to its proposal on structure made at AHC4 that would make the Convention easy to understand while reflecting the approach of other conventions, like CERD, CEDAW, CCPR. http://www.un.org/esa/socdev/enable/rights/ahc4australia.htm. After the preamble, there would be five logically ordered parts: Part I, Interpretive provisions; Part II, General provisions; Part III, civil and political rights; Part IV, economic, social and cultural rights; Part V, monitoring and implementation. In its outline of the arrangement of the articles, Australia noted that Article 19 (accessibility) as currently drafted is more of an implementation measure and could appropriately be placed after Part 4. This structure would separate out immediately realizable rights from those that are progressively realizable.
Thailand endorsed Australia's proposals on:  a definitions section because for those PWD from developing countries the lack of definitions could mean no effective implementation, and while Thailand understands the concerns some delegations have with inclusion, a realistic approach is necessary;  the placement of the statistics provision in the monitoring and implementation section since this article does not specifically deal with the rights of PWD. It supported the general structure outlined by the chair while remaining flexible on details.
Liechtenstein noted that the existing structure of the Convention is already
laid out in a fairly logical way and so providing some additional ordering
in the form of parts should not be to difficult. While generally supporting
the Australian proposal, Liechtenstein cautioned against making an explicit
distinction between those articles that belong to civil and political rights
and those that belong to economic, cultural, and social rights. This dichotomy
has caused more problems than solutions in past human rights discourse and
should not be reproduced here. Furthermore the separation of progressively
realizable rights in one part and categorizing these as economic and social
rights is also potentially misleading. Some economic and social rights are
implementable right away and do not require resources. Making these distinctions
could lead to second class status for these rights implying that states would
not be obligated to adhere to them when there are fewer resources.
Articles 19 and 20 distinguish themselves because of their particular relevance for PWD and because of their added value in this human rights convention. They are closely related to non-discrimination rights and therefore should be placed near that article. Accessibility, mobility, and non-discrimination are horizontal articles which make it possible for PWD to enjoy the rights in other articles.
Titles of individual articles should be retained for the sake of readability and accessibility to PWD, even though other UN human rights conventions do not provide article titles. Many international Conventions in other fields and regional human rights conventions do have titled articles.
The Chair agreed many people who will be consulting the convention will not be lawyers and as Liechtenstein stated, titles enhance readability. He noted that because a particular article is titled "education" does not mean that education is not dealt with in other parts of the Convention; the title would serve to lead readers to the primary article.
Jordan proposed a four part structure that would:  move from abstract to concrete ideas, ie. from general principles and rights to implementation;  ensure mutual exclusivity among articles so no article would overlap with any other article or part of another article;  be parsimonious with language as more words create more ambiguity. Part 1 would include the preamble and general principles, recognition and establishment of all rights, and Articles 7, 8, 9, 10, 16, 21, and 22. Part 2 would include all the articles on implementation, i.e., Articles 5, 15, 17, 18, 19, 20, 24, and 23. Part 3 would include Articles that sustain implementation and provide safeguards and protection, i.e., Articles 7, 11, 12, 13, and 14. Part 4 would cluster articles addressing research, development, monitoring, and evaluation. These proposals are negotiable
Israel agreed with the Chair's suggested framework and with Australia's proposal. It asked the Secretariat to pull together all the new bis articles that have been proposed to assist delegations. It fully supported the assertion by Liechtenstein that the distinction between civil and political rights and economic, cultural, and social rights is highly problematic, especially in the field of disability. Many rights have a dual or mixed nature and making this distinction will create "more heat than light.” The structure should first deal with norms, i.e., purpose, general principles, definitions, as in the Australian proposal, and should then address implementation provisions. Australia's Parts III and IV should remain together as Special Provisions. Articles 19, 16, and 15bis are general in nature and should be placed under general provisions. Accessibility is the other side of equality and should be made a part of general provisions, placed after non-discrimination as suggested by Liechtenstein. Israel endorsed Australia's Part V with the inclusion of the final clauses.
South Africa agreed with the Australian proposal with minor changes noting that all rights are of equal importance. The logical order of the Convention should follow the structure of other Conventions: preamble, general principles, definitions, text, monitoring mechanisms, and operational mechanisms. In Australia's Part II, Article 19 should be added after equality and non-discrimination, and Parts III and IV should be reversed.
EU endorsed the Chair's framework and broadly supported Australia's proposal. It questioned Australia's placement of Article 5 which may be appropriate in Part IV because it was about cultural life, and attitudes in society. Article 19 should be linked with Article 7, as Israel and others suggested. The Committee should think carefully whether titles should be used as stated by Liechtenstein but, as emphasized by Jordan articles should be clearly delineated to avoid duplication.
Sierra Leone urged avoiding a hierarchy of rights. Australia's proposal creates a hierarchy and South Africa's proposal turns that hierarchy around. As highlighted by Liechtenstein the Convention's structure should not make any direct or indirect reference to progressive realization. Because this document is directed at the general population, it must be clear, understandable, and legally logical. The articles should have titles. Part V is the only part of the Australian proposal that Sierra Leone can support. The current order of the Convention should be kept: preamble, purpose, general principles, definitions, right to life, etc. The implementation part of the Convention should be separate. It does not matter whether a right is civil or political or economic or cultural or social; they should all be together. International systems pay more attention to political rights such as the right to vote, and neglects the right to eat. Progressive realization is a frustrating concept. Sierra Leone expressed interest in listening to NGOs' comments regarding structure.
The Chair pointed out that the 1993 UN Declaration from the World Conference
for Human Rights, in #3, states "All human rights are universal, indivisible,
interdependent and interrelated. The international community must treat human
rights globally, in a fair and equal manner on the same footing and with the
same emphasis." The text should not contain a hierarchy of rights, but
a logical sequence. All the rights are of equal importance and status.
Progressive realization is shorthand; all of these rights are immediately binding but some have to be realized to the maximum extent possible given the available resources in some states. This does not mean the rights are any less important. Some ESC rights take no resources to implement and therefore should be realized immediately. There is a need to avoid slipping into this shorthand which risks making the discussion a two –tiered one.
Serbia and Montenegro endorsed the current order of the draft Convention, and agreed generally with the Chair's outline and the Australian proposal. As stated by Liechtenstein, South Africa, Israel and EU, Articles 19 and 20 should be placed after Article 7. As proposed by Australia Article 6 should be moved to monitoring. Although there could be merit to keeping titles of articles, this should be approached cautiously because of the complexity of some articles; some rights are mixed rights. There should be no overlapping of articles.
China supported the existing structure because it conforms to other Conventions. There is no need for titles. Article 9 is a general provision which should be moved to after Article 5, followed by Articles 8, 10, and others.
Australia clarified that its proposal for Part II was for the following cluster of Articles: 4, 7, 4bis, and 5.
Yemen believed that some articles should be highlighted and titles are very important for giving the reader an idea about what is in each article. It does not object to the inclusion of subtitles. There could be many approaches to the order of the Convention. Yemen endorsed the structure proposed by the EU and South Africa: preamble, principles, objectives, definitions, followed by the articles progressively ordered, then monitoring, then implementation. Article 19 and 20 and some others combine political, civil, economic, cultural, and social rights. These rights should be placed under general provisions. The structure and order of other human rights conventions should be followed. As Jordan stated, there should be no overlapping.
Liechtenstein supported the non-hierarchical ordering of articles, however some ordering is inevitable. Alphabetical order is one option, but difficult due to language differences. The order of the Convention now is the same as other similar hybrid Conventions, such as CRC and the UN Declaration of Human Rights. The preamble could mention the universal, indivisible, interdependent and interrelated nature of human rights. As an extra cautionary measure it could also state that titles indicate the content of the article and are for reference only. Titles would be very useful.
The Chair responded by asking whether anyone in the negotiations can find anything in the Convention without the titles. He uses the titles. Although no decision has been made yet about titles, it is worth thinking about the extent to which this Committee, which is most familiar with this convention, needs to use titles. If titles are useful, should they be eliminated?
Senegal expressed support for retaining titles, but very short ones. It suggested asking a group of experts to choose the titles.
Canada urged placing equality and non-discrimination as well as accessibility higher in the text. It is difficult to draw distinctions between rights in this Convention. Many are cross-cutting, while some are essentially political and civil, and others are essentially economic, cultural, and social. All rights require some resources to effectively implement, and this is not the basis for a distinction between ESCR and CCPR. This Convention's articles should have titles for ease of reference and readability for PWD and others.
Palestine expressed its preference for an arrangement of articles that would place them all on an equal basis. However ordering is necessary and it noted in this regard a general agreement for a structure that moves from the Preamble to the general provisions followed by rights, etc Titles allow easy access to the articles and should remain.
The Chair noted that CRC follows a format of distinguishing civil and political rights and economic, cultural and social rights, while CEDAW follows no order in that regard.
Statements from NGOs
International Disability Caucus expressed its preference for the following structure: preamble, purpose, general principles, definitions, followed by general obligations, equality and non-discrimination, specific population groups (indigenous PWD), non-derogation from existing rights, and Article 5 (which could also go in the monitoring section). The placement of Article 19 should depend on its final wording. The provisions on specific rights should not be in a hierarchical format; therefore the Australian proposal which divides rights into 2 groups, should be opposed. Rights are universal, indivisible, interdependent and interrelated. The proposed "freedom of movement" article from Kenya should be included in the list. The IDC is interested in the content of proposed 19bis, "benefits of scientific progress". The final section on monitoring and implementation should contain international and national monitoring, international cooperation and statistics. Titles should be retained in the interest of accessibility, but could be reconsidered and clarified – eg that of Article 5 on positive attitudes.
The Chair observed that the Convention's current structure is similar to what delegations support, with a few changes inlcuding some reflecting article relocations proposed in earlier sessions. The framework receiving the most support followed this order: preamble, purpose, general principles, and definitions. Thailand has pointed out that without clear definitions, implementation would be more difficult. The general consensus on the rights provisions was that it is not helpful to distinguish between civil and political rights and economic, cultural, and social rights. CEDAW reflects this in its seeming randomness. Implementation, monitoring and final clauses are the last sections. Delegations have stresses simplicity, the need to avoid wholesale rewriting and duplication. There are different views about retaining titles. Most speakers supported titles, though some expressed doubts about them without opposing them. As noted by the IDC titles promoted accessibility. The Committee will have to discuss in detail the wording of titles to ensure that each is appropriate. In the meantime it should be understood that titles will be used in their current form for reference purposes only.
The Chair asked whether there were any other issues needed discussion in January. Australia pointed out that at AHC4 it had proposed three new articles, dealing with non-derogation of existing rights, specific population groups, and the benefits of scientific progress. The Chair asked whether the language on non-derogation of existing rights reflects that of standard Convention provisions, either as a separate article or a part of an article so that there is no risk of lowering standards in other Conventions. He asked whether there are other specific population groups Australia wishes to include since women, children, the elderly and indigenous people have already been discussed in other contexts. He also asked whether its language on the benefits of science would deal with issues not already mentioned with respect to ensuring that PWD can benefit from scientific and technical advances particularly in relation to disability. Australia responded that its article on specific populations also included people living in rural and remote areas, and racial, ethnic, and linguistic minorities.
United States expressed concerns with the latest facilitator's text regarding
Article 21(a), which reads: "provide persons with disabilities with the
same range and standard of health care services as provided others, [including
in the field of sexual and reproductive health]" because the bracketed
part is inappropriate. The US also objects to footnote 2, "There were
conflicting views on the mention of sexual and reproductive health services
and, therefore, further discussion is required. Many delegations found it very
essential to include it; otherwise issues such as cervical screening would
be missed." This footnote “conveys points of deliberation; it is
inappropriate to negotiate on the basis on a footnote”.
Israel added to the Chair's summary of the discussion the point that many delegates proposed moving the article on accessibility to just after the article on equality and non-discrimination. In addition, the articles on women and the article on children could be made part of the general provisions. Finally, Israel would also like to discuss its proposed new article on insurance. It requires non-discrimination in insurance coverage, and stipulates that insurance decisions such as denials, terms and conditions, should be made on sound actuarial data. This article could be placed after the article on social security.
Thailand agreed with Israel that the Accessibility article is one “that justifies the existence of this convention” and should be placed after the Equality article. In addition, to increase accessibility of the final, electronic version of the document, links should be used for internal cross-reference.
Sierra Leone suggested that non-derogation and insurance could be addressed in existing articles rather than creating new articles, especially since the titles of existing articles have not been resolved. Non-derogation could be included in the general principles section; insurance could be dealt with in the article on social security.
The Chair responded that there is generally a reluctance to create new articles. The trend has been to simplify and contract the text rather than to expand it.
The Chair asked for reports from facilitators. He acknowledged that some facilitators have not had extensive meetings or consultations, but asked to hear all reports, whether short or long.
The Children with Disabilities facilitator (Kenya) stated that there have been two very constructive meetings. The task is large, but there is common ground on many issues especially about how the Convention should address children with disabilities. Because a meeting was just held over lunch, there is no concrete report. It will be posted on the facilitators’ website soon. Children with disabilities will be part of this Convention.
The Chair asked whether making more time available at this meeting would be useful at this point. Kenya responded that more consultations were needed, as many delegates needed to check with their own delegation and other delegations.
The Women with Disabilities facilitator (Germany) stated that a first draft of the facilitator text was revised after the first meeting; a second draft was produced as a basis for discussion at a second meeting based on received written and verbal responses. This text does not address those parts of the WG text which already mention women with disabilities: the preamble and Articles 6, 7, and 23. It only identifies gaps in the text. It was taken as consensus that more disabled women's issues needed fuller treatment in the text. Some delegates supported a separate article; the majority did not. There was consensus for a preambular paragraph reading: "Reaffirming the obligations of State Parties to ensure the full enjoyment of all human rights and fundamental freedoms by women with disabilities and recognizing that the multiple discrimination and particular disadvantages which women with disabilities often experience, provide compelling reason to adopt specific measures to fulfill these obligations.” There was also general agreement that general obligations regarding women with disabilities could be included in Article 4, but the precise wording remains unresolved. One proposal would read: "Take all necessary measures to ensure the full and equal enjoyment of all human rights by women with disabilities on an equal basis with others (OR “without any discrimination of any kind).” There was also no consensus as to whether the principle of gender mainstreaming should be introduced in this article, or in a preambular paragraph, which could read: "Reaffirming that gender mainstreaming is a globally accepted strategy for promoting women's empowerment and achieving gender equality, and that it has the potential to play an important goal in advancing the enjoyment of human rights by women with disabilities.” There was no consensus, although there was a majority view, that disabled women should be mentioned in the substantive paragraphs. The group identified thematic issues, without agreement on placement or specific language, where disabled women could be mentioned: violence, education, health, and employment. The Norwegian proposal to include a gender perspective in the monitoring provisions received general support but discussion on this did not proceed further because the AHC had not discussed this Article in plenary.
The Education facilitator (Australia) stated that two very productive informal meetings had been held. Progress was made on two problematic areas, for dealing with exceptions, and for the provisions for deaf, deaf/blind, and blind students. With a little more time, further progress on these areas could be made, but there would not be a definitive outcome. The other provisions need less work, and there has not been much progress in these areas.
The Accessibility facilitator (Serbia and Montenegro) stated that no small group meetings were held, but that one-on-one consultations were held with several delegations based on a non-paper of a consolidated draft article. While wording remains controversial, there are only two substantive issues: progressive implementation which some delegations wanted to include; and developing exact wording on the extent of the obligations of private entities providing public facilities and services. These issues cannot be resolved at this meeting but can be pursued intersessionally.
The Right to Health and 21bis on Habilitation and Rehabilitation facilitator (Jordan) stated that a revised draft text was produced following an informal consultation. This reflects those elements that delegations agreed should be included in a more focused manner. Some of them were controversial and require more discussion. The text will serve as a basis for future negotiations and in no way excludes other proposals or amendments.
The Chair recalled that one of the controversial issues has been brought up by the United States, and is in square brackets. He asked whether the other elements of the text were now problem-free and had support. He requested a response the following day.
EU intervened on behalf of the Right to Health and 21bis (Habilitation and Rehabilitation) facilitator, in response to the United States' earlier intervention, stating that at all times the facilitator acted fairly and took all views into account. With regard to the issue the US raised, the EU noted that the overwhelming majority of delegations at the facilitator meeting had expressed one view, but that in recognition of dissenting views expressed by two delegations and one observer, the issue was placed in brackets.
The Chair stated that the issue in brackets is a political issue that cannot
be resolved at this time. However it would take the discussion of this article
a great deal further if consensus can be reached on the remaining issues. He
then adjourned the meeting.
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