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NGO Comments at the Fourth Session

Comments by NGOs at the Fourth Session
Landmine Survivors Network

Convention on the Rights of Persons with Disabilities
NGO common objectives for an international monitoring mechanism
on the Disability Rights Convention
23 August 2004

On behalf of World Blind Union, Rehabilitation International, World Federation for the Deaf, World Network of Users and Survivors of Psychiatry, World Federation of the Deaf Blind, Landmine Survivors Network, International Service for Human Rights, International Commission of Jurists, Centre on Housing Rights and Evictions, Handicap International, European Disability Forum, Bizchut, the Israel Human Rights Centre for Peoples with Disabilities, World Union of Progressive Judaism, and International Save the Children Alliance

This statement is presented on behalf of the World Blind Union, Rehabilitation International, World Federation for the Deaf, World Network of Users and Survivors of Psychiatry, World Federation of the Deaf Blind, Landmine Survivors Network, International Service for Human Rights, International Commission of Jurists, Centre on Housing Rights and Evictions, Handicap International, European Disability Forum, Bizchut, the Israel Human Rights Centre for Peoples for Disabilities , World Union of Progressive Judaism, and International Save the Children Alliance.

An international monitoring mechanism and a national implementation mechanism are both essential parts of the Convention and should be fully set out in the text. The possibilities of regional implementation should also be explored. These different levels complement each other and should be formally linked and mutually supportive.

The international monitoring mechanism will have to take into account the multi-facetted nature of this convention. It is conceived as a human rights treaty as well as incorporating elements of social development. The disability movement insists that it must be a rights-based treaty. A treaty taking this call seriously must be firmly embedded into the UN human rights system. At the same time, the international mechanism should also be capable of supervising implementation of State obligations to make structural, social development related changes.

Within this framework, different options should be explored, looking at both traditional models and innovative ideas. Whichever form the monitoring mechanism ultimately takes, it must fulfil three core functions: monitor State compliance, interpret legal obligations arising from the treaty and ensure that violations of the treaty obligations are remedied.

Regardless of the final option chosen, the aim of ensuring that people with disabilities can exercise their rights through a convention and monitoring mechanism should not be contingent on the current process of treaty body reform in the United Nations.

In the light of these preliminary thoughts, our organizations would like to share with the Ad Hoc Committee some of the principles that we consider essential for an effective international monitoring mechanism of the Disability Rights Convention. They relate to the underlying objectives of the mechanism, the quality and independence of experts, and the need for flexible working methods.

General Statement of Objectives

The monitoring body should:

• be a source of recognized expertise on disability rights;
• have the competence to develop jurisprudence and interpretation of the rights of persons with disabilities enshrined in the Convention, including through general comments and individual complaints;
• have the capacity to formulate adequate remedies;
• have the power to conduct independent inquiries;
• promote implementation of the Convention, including through in-country visits and regional seminars or meetings;
• review State compliance, through in-country visits and through the review and monitoring of national plans of action or reports, without prejudice to the nature of the reports;
• have the competence and capacity to follow up on its “decisions” (recommendations; concluding observations/comments) to improve State Party compliance;
• enable more national and regional actors to access the international system and to draw more effectively on the expertise of the UN human rights system and social development promotion;
• have adequate resources to accomplish its tasks under the convention.

Expertise and independence of the monitoring body

It is imperative, therefore, that the Disability Rights Convention should contain clear principles that ensure the outstanding expertise and absolute independence of the monitoring body. If the monitoring body were to be a multiple member body rather than an individual, it should include a majority of members with disabilities who reflect equitable diverse cross-disability representation and an equal number of men and women. However, regardless of the nature of the body, any international expert should at least:

• have proven expertise in the field of disability and human rights;
• be selected solely because of this expertise and no other motive and serve in his or her individual capacity as independent expert;
• not hold any position which is incompatible with his or her independence and impartiality or the appearance of independence and impartiality;
• be selected on the basis of equitable diverse cross-disability representation;
• be selected on the basis of equitable geographic distribution and representation of the principal legal systems;
• enjoy independence throughout the mandate.

Flexibility and accessibility

In light of the experience of the existing treaty bodies, the monitoring mechanism must be highly flexible and efficient. To have a real impact, it must provide effective access to concerned individuals and groups. Existing treaty bodies are overburdened and have considerable backlogs in examining country reports. To avoid these difficulties, the following ideas could be explored:

• Reporting is an indispensable requirement of any monitoring framework. Nevertheless, different types of reporting methods could be explored, e.g. national plans of action, with performance targets, benchmarks and indicators. The process need not be limited to a rigid system of periodic reporting. It should not be confined to the presentation of written documents. The process of dialogue should be emphasized.
• In-country visits should be encouraged; while they may appear cost-intensive, the advantage of real dialogue at local level and the impact of strong supervision and monitoring will make the investment worthwhile in the long term. The inclusion of a standing invitation clause in the Convention should envisaged.
• Meetings held rotationally in the regions would create greater accessibility to all actors involved.
• The Convention should have an inbuilt system of continuous dialogue between the national and international monitoring mechanisms.
• A system for that provides for efficient and authoritative interpretation of the Convention by the monitoring body could contribute to the clarification and implementation of its provisions.
• The process should ensure the active participation by NGOs, particularly organisations of persons with disability, at all levels of monitoring (national, regional and international).

General Obligations
Convention on the Rights of Persons with Disabilities
Draft Article 4

Intervention by Mona Abdeljawad on behalf of Landmine Survivors Network
August 25, 2004

We would like to speak to the necessity of a general obligation on remedies. It goes without saying that if there is no remedy there is no right. International human rights law is no exception to this. The International Covenant on Civil and Political Rights requires that there be effective and enforceable remedies for violations of civil and political rights. However, it is sometimes argued that economic, social and cultural rights are too vague to be enforceable, or that these rights cannot be assessed through legal processes therefore there cannot be a remedy. This argument can be rejected for a number of reasons:

1. Economic, social and cultural rights are required to be immediately applied in a non-discriminatory manner. If not, then there must be a remedy just as there would be in the civil and political rights context.

2. The Committee on Economic, Social and Cultural Rights has developed an understanding of the nature and scope of State party obligations in the context of economic, social and cultural rights. In this regard, obligations with respect to family, education, and work are capable of immediate application by the courts or other judicial and quasi-judicial bodies. (Cf. General Comment No. 3) Many domestic courts and regional systems, such as the European, African and Inter-American, offer an adequate remedy for victims, including in health, education and housing.

3. Ensuring that these rights have a remedy in the event of a violation will not bankrupt governments. As currently drafted, the obligation is to progressively realize these rights within the maximum available resources. This requires States only to demonstrate in good faith the fulfillment of the rights overtime within their capacities. Where courts and other bodies have adjudicated economic, social and cultural rights claims, they have shown considerable deference to governments’ decisions about resource allocation, and intervened only to ensure that governments take reasonable steps, without discrimination, and subject to available resources to respect, to promote and to fulfil these rights.

Thank you for your attention.

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