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Article
34 - International monitoring
Background Documents | Article 34 Background
Eighth Session | Seventh Session | Sixth Session
Fourth Session | Third Session | Working Group
Fourth Session
Governments
Israel
National Human Rights Institutions
Meeting convened by the Office of the Swedish Disability Ombudsman
Non-governmental organizations
Children's Rights Alliance for England
International Save the Children Alliance
People with Disability Australia
Working Meeting of NGOs for people with disabilities from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Governments
CAMEROON
Article 25.- Le suivi de la mise en œuvre de la Convention.
Au delà du suivi au niveau national, la délégation
camerounaise estime qu’il est nécessaire de prévoir, comme
c’est le cas dans la plupart des conventions internationales, un organe
de suivi au niveau international, à l’égard duquel les Etats
parties à la convention devraient rendre compte des mesures prises
pour assurer la mise en œuvre des dispositions de ladite convention.
La Coopération Internationale
Si la convention en élaboration se veut un cadre normatif ambitieux,
il devrait néanmoins être pris en compte, pour l’effectivité
de son application, non seulement des capacités réelles des
Etats, dans leur grande diversité socio-économique, à
mettre en œuvre les dispositions qui vont être adoptées, mais
aussi des mécanismes de soutien nécessaires, notamment le
renforcement de la coopération technique et financière internationale
d’une part, et d’autre part la mise en place au sein des Etats d’un Fonds
de solidarité. Il importe de relever que le Cameroun appuie entièrement
la proposition du groupe africain relative à la coopération
internationale.-
EUROPEAN UNION
EU position on International Monitoring Mechanisms (Article 25)
Speaking Points
• The European Union is strongly committed to the full and effective implementation
of international human rights instruments. The EU is entirely convinced
of the need for this convention to have a strong and effective international
monitoring mechanism.
• The purpose of this new convention, as we have previously stated, should
be to ensure the full and equal enjoyment of all human rights and fundamental
freedoms by persons with disabilities. To this end, strong and effective
monitoring mechanisms are essential in order to ensure that this convention
positively impacts upon the lives of persons with disabilities.
• The members of the Ad Hoc Committee will be aware that the operation of
the existing treaty monitoring system has been under review for some time.
This review has been born out of a number of factors, among them: the overall
UN reform effort, as well as recognition that there is room for improving
the effectiveness of these entities in delivering on their core function:
of international oversight of the full implementation of the contents of
the respective international human rights instruments.
• A number of points are emerging from treaty body reform debate:
o The significant delays in the submission by member states of initial and
periodic reports.
o The considerable delays in consideration of reports presented and the
necessity, on occasion, to up-date these reports due to these delays.
o The extent of reporting obligations which States Parties undertake and
the non-reporting by some.
o The duplication of reporting requirements.
o A questioning of the effectiveness of the current format of fixed interval,
broadly-based (often without a specific or thematic focus) and periodic
reporting.
• The European Union considers that in coming up with an international monitoring
mechanism for this convention, we should endeavour to be as innovative and
creative as possible, with the clear goal of overseeing the full and comprehensive
implementation of this new international human rights instrument. In developing
a contemporary mechanism we must be cognisant of the strengths of the existing
system of human rights treaty monitoring, while not replicating its weaknesses.
• For the EU there are a number of basic principles which must be encompassed
within an effective international monitoring mechanism. Among these principles
are the following:
o Recognition that monitoring is an obligation which all States Parties
freely enter into when they sign and ratify a human rights convention.
o Those conducting the monitoring must be expert, independent of governments
and of high moral standing, and should include an appropriate involvement
of person(s) with disabilities.
o The desirability to formalise the role of civil society in the process.
o The necessity for adequate support for the mechanism from the UN Secretariat.
o The mechanism should take the work already undertaken by the existing
treaty monitoring mechanisms fully into account, particularly with a view
to avoiding duplication and ensuring consistency.
o The mechanism established should not be contrary to the overall UN reform
effort.
o States Parties have a right and an obligation to engage actively with
the mechanism. An effective and constructive dialogue should exist between
the two, as well as among States Parties.
o Reporting should be effective and more focused than is currently the case.
In this process, thematic reporting could be envisaged, upon request by
the monitoring mechanism. Such a mechanism could have a competence to examine
reports, request supplementary information and transmit comments and recommendations
to the State Party concerned.
o Implementation and follow-up is an essential part of the monitoring process.
We should discuss the need for State Party’s reporting on the implementation
of recommendations of the monitoring mechanism. The monitoring mechanism
could also have a role in the national implementation process by offering
expert advice. In addition the monitoring mechanism could have an important
role in identifying good practices in the implementation of the Convention.
o Monitoring is not an end in itself, it is a means to an end, which is
the effective implementation of the provisions of the convention.
EU PROPOSAL ON DRAFT ARTICLE 25 - MONITORING
National Implementation Framework
1. States Parties shall designate a focal point within Government for matters
relating to the implementation of the present Convention, and give due consideration
to the establishment or designation of a coordination mechanism to facilitate
related action in different sectors and at different levels.
2. States Parties shall, in accordance with their legal and administrative
system, maintain, strengthen, designate or establish at the national level
a framework to promote, protect and monitor implementation of the rights
recognised in the present Convention.
EU Proposal: Replace 1. and 2. by the following:
“States Parties shall ensure monitoring of implementation of the present
Convention in accordance with their legal and administrative system. They
shall establish or designate an appropriate mechanism to facilitate related
action in different sectors and at different levels of society”.
EU Proposal for new paragraph 2:
“Where necessary, States Parties shall collect appropriate information to
enable them to formulate and implement policies to give effect to this Convention.
The process of collecting and maintaining this information should:
(a) comply with legally established safeguards to ensure confidentiality
and respect for the privacy of persons with disabilities, including legislation
on data protection;
(b) comply with internationally accepted norms to protect human rights and
fundamental freedoms;
(c) where appropriate, be undertaken in collaboration with and following
consultation of organisations of persons with disabilities.”
EU Proposal for new paragraph 3: (moved from Article 4):
“States, when developing and implementing policies and legislation to give
effect to this Convention, shall take appropriate measures to ensure adequate
consultation with, and involvement of, persons with disabilities and their
representative organisations.”
EU Proposal for new paragraph 4:
"States Parties undertake to make the principles and provision of the
Convention widely known by appropriate and active means" (CRC Art.
42).
EU Proposal for new paragraph 5:
Nothing in the present Convention shall affect any provisions which are
more conducive to the enjoyment of human rights by persons with disabilities.
(Cf CRC Art. 41)
ISRAEL
ISRAEL’S PROPOSAL - ARTICLE 25:
INTERNATIONAL AND NATIONAL MONITORING
25. Establishment of Committee
1. For the purpose of reviewing this implementation by States Parties of
this Convention, there shall be established a Committee on the Rights of
Persons with Disabilities (hereinafter referred to as “the Committee”) which
shall carry out the functions hereinafter provided.
2. The Committee shall consist, at the time of entry into force of this
Convention, of 12 independent experts serving in their personal capacity,
of high moral standing and impartiality, holding no position which compromises
the appearance of independence and impartiality expected of the Committee,
and shall have a recognized competence in the field covered by the Convention.
Thereafter, for every additional twenty-five ratifications of this Convention,
the membership shall increase by 2 members, until the composition of the
Committee attains a maximum number of 20 members. This Committee, in its
overall composition, shall:
a. Include members with disabilities, reflecting the entire spectrum of
the various disabilities, who shall form the majority of the committee;
b. Comprise an equal number of women and men members;
c. Reflect equitable geographic distribution; and
d. Reflect representation of the principal legal systems.
3. Members of the Committee shall be elected by secret ballot by the States
Parties from a list of persons nominated by the States Parties.
4. Each State Party may nominate one person from among its own nationals,
chosen from a list of individuals proposed by organizations of persons with
disabilities in that State. If no individuals are nominated by organizations
of persons with disabilities in a State Party, the State Party may select
a nominee, wherever possible in consultation with organizations of persons
with disabilities or other appropriate groups.
5. The initial election shall be held no later than six months after the
date of the entry into force of this Convention and subsequent elections
every second year. At least four months before the date of each election,
the Secretary-General of the United Nations shall address a letter to all
States Parties inviting them to submit their nominations within two months.
The Secretary-General shall prepare a list in alphabetical order of all
persons thus nominated, indicating the States Parties that have nominated
them, and shall submit it to the States Parties not later than one month
before the date of the corresponding election, together with the curricula
vitae of the persons thus nominated.
6. Elections of members of the Committee shall be held at a meeting of States
Parties convened by the Secretary-General at United Nations Headquarters.
At that meeting, for which two thirds of the States Parties shall constitute
a quorum, the persons elected to the Committee shall be those nominees who
obtain the largest number of votes and an absolute majority of the votes
of the States Parties present and voting.
7. The members of the Committee shall serve for a term of four years. However,
the terms of five of the members elected in the first election shall expire
at the end of two years; immediately after the first election, the names
of these five members shall be chosen by lot by the Chairman of the meeting
of States Parties.
8. The members of the Committee shall be eligible for re-election if re-nominated,
but no person may serve more than two full terms on the Committee.
9. If a member of the Committee dies or resigns or declares that for any
other cause he or she can no longer perform the duties of the Committee,
the State Party that nominated the expert shall appoint another expert from
among its own nationals for the remaining part of the term. The new appointment
is subject to the approval of the Committee.
26. Administration of the Committee
1. The Committee shall elect its officers for a period of two years. The
Chair of the Committee shall be a person with a disability.
2. The Committee shall adopt its own rules of procedure.
3. The Committee shall meet for such time as is necessary for it to undertake
its work, and this shall involve at least one meeting per year for a period
of three weeks.
4. The meetings of the Committee shall be held at United Nations Headquarters
and on a rotational basis at the offices of the regional commissions of
the United Nations.
5. The Secretary-General of the United Nations shall provide the necessary
staff and facilities for the effective performance of the functions of the
Committee.
6. The members of the Committee shall receive emoluments from United Nations
resources on such terms and conditions as the General Assembly may decide.
7. The members of the Committee shall be entitled to the facilities, privileges
and immunities of experts on mission for the United Nations as laid down
in the relevant sections of the Convention on the Privileges and Immunities
of the United Nations.
27. Reporting by States Parties
1. States Parties undertake to submit to the Committee, through the Secretary-General
of the United Nations, a report on the legislative, judicial, administrative
and other measures they have taken to give effect to the provisions of the
present Convention.
2. States Parties shall submit an initial report within one year of the
entry into force of the Convention for the State Party concerned and thereafter
every 5 years or whenever the Committee so requests.
3. Reports prepared under the present article shall also indicate factors
and difficulties, if any, affecting the implementation of the Convention
in the State Party concerned, and shall be prepared in consultation with
non-governmental organizations with competence in the field, including organizations
of persons with disabilities.
4. The Committee shall adopt any further guidelines relating to the content
of the reports, which it considers appropriate.
5. A State Party which has submitted a comprehensive initial report to the
Committee need not in its subsequent reports submitted in accordance with
this article repeat basic information previously provided.
6. States Parties shall make a draft of their reports widely available to
the public in their own country in local languages and accessible formats
6 months prior to the finalization of the report and its submission to the
Secretary-General.
7. States Parties shall make their reports widely available to the public
in their own countries in local languages and in accessible formats as soon
as possible after the State Party has submitted its report to the Secretary-General.
28. Consideration of Reports
1. The Committee shall examine the reports submitted by each State Party
and shall transmit such comments as it may consider appropriate to the State
Party concerned. This State Party may submit to the Committee observations
on any comment made by the Committee in accordance with the present article.
The Committee may request supplementary information from States Parties
when considering these reports.
2. The Committee shall invite representatives of States Parties to participate
in its consideration of the report. Where a State Party is significantly
overdue with the submission of its report, the Committee may consider the
situation in that State Party in the absence of a report.
3. The Committee may also adopt such general comments as it sees fit, and
may also address recommendations to the United Nations and other bodies
as it considers appropriate.
4. The Secretary-General of the United Nations may also, after consultation
with the Committee, transmit to the specialized agencies as well as to intergovernmental
organizations, copies of such parts of these reports as may fall within
their competence.
5. The Committee shall present an annual report to the General Assembly
of the United Nations on the implementation of the present Convention, containing
its own considerations and recommendations, based, in particular, on the
examination of the reports and any observations presented by States Parties.
Such reports shall be made available in accessible formats.
6. The Secretary-General of the United Nations shall transmit the annual
reports of the Committee to the States Parties to the present Convention,
the Economic and Social Council, the Commission on Human Rights of the United
Nations, the Commission on Social
Development of the United Nations and other relevant organizations.
7. Non States Parties may, on a voluntary basis, provide reports to the
Committee for consideration.
29. Relationship between the Convention and Other Bodies
In order to foster the effective implementation of the Convention, to encourage
coordination among relevant stakeholders and to encourage international
cooperation in the field covered by the Convention:
1. The Committee shall request the specialized agencies, organs, special
and thematic rapporteurs, of the United Nations, regional commissions of
the United Nations, as well as intergovernmental organizations and other
concerned bodies to submit, for consideration by the Committee, written
information on such matters dealt with in the present Convention as fall
within the scope of their activities.
2. The Committee shall invite representatives of specialized agencies, organs,
special and thematic rapporteurs of the United Nations, as well as of intergovernmental
organizations to be present and to be heard in its meetings whenever matters
falling within their field of competence are considered.
3. The Committee shall seek, as relevant, technical assistance from the
specialized agencies, organs, special and thematic rapporteurs of the United
Nations and other relevant bodies to assist it in its consideration of the
reports of States Parties.
4. The Committee may recommend areas of cooperation among States Parties
and other competent bodies that will facilitate the implementation of this
Convention. To this end, the Committee shall make its recommendations to
the Secretary-General of the United Nations.
5. The Committee shall invite representatives of non-governmental organizations
with expertise in the field of disability issues or other relevant fields
to submit relevant information to the Committee to assist it in its work
and to be present and to be heard in its meetings.
30. Relationship between Committee and National Mechanisms
In regard to the national mechanisms, the Committee shall:
1. Advise and assist States Parties, when necessary, in their establishment
and management.
2. Maintain direct, if necessary confidential, contact with the national
mechanisms and offer them training and technical assistance with a view
to strengthening their capacities;
3. Advise and assist them in the evaluation of the needs and the implementation
of the means necessary to strengthen the protection of the human rights
of persons with disabilities;
4. Make recommendations and observations to the States Parties with a view
to strengthening the capacity and the mandate of the national legislation
and mechanisms of implementation of the promotion and protection of the
human rights of persons with disabilities;
5. Cooperate, for the promotion and protection of the rights of persons
with disabilities in general, with the relevant United Nations organs and
mechanisms as well as with the international, regional and national institutions
or organizations working toward the strengthening of the rights of persons
with disabilities and their full participation in the society, in general,
and in the decision making process about their life, in particular.
31. National Human Rights Institution
1. Each State Party shall maintain, designate or establish within one year
after the entry into force of this Convention of its ratification or accession,
an independent national human rights institution for the promotion and protection
of the rights of person with disabilities at the domestic level. Where an
independent national human rights institution already exists in the State
Party, its mandate shall be extended to comply with this convention and
the provisions of this article shall apply with the necessary changes.
2. The States Parties shall guarantee the functional and financial independence
of the national human rights institution as well as the independence of
their personnel including by way of earmarked funding from the state budget.
3. The States Parties shall ensure that the composition of the national
human rights institution includes majority representation of persons with
disabilities, reflecting the entire spectrum of disabilities. They shall
strive for a gender balance and the adequate representation of national,
ethnic and minority groups.
4. States parties shall establish an advisory committee of the national
human rights institution, which will include a majority of people with disabilities,
reflecting the entire spectrum of disabilities. The Advisory Committee shall
also include professionals, legal experts and public representatives. The
Chairperson of the Advisory Committee shall be a person with disability.
5. The States Parties undertake to make available the necessary resources
for the independent functioning of the national human rights institution.
6. The establishment, composition and operation of the national human rights
institution shall be in compliance with the Principles relating to the State
and Functioning of National Institutions for Protection and Promotion of
Human Rights (the “Paris Principles”).
7. The competent authorities of the State Party concerned shall examine
the recommendations of the national human rights institution and participate
in dialogue with the body on measures taken to implement the provisions
of this convention.
8. The national human rights institution shall be granted, at a minimum,
the powers and functions to:
a. Make recommendations to the relevant authorities with the aim of improving
the promotion and protection of the rights of persons with disabilities
based on the obligations contained in this Convention and other relevant
international norms.
b. Submit proposals and observations concerning existing or draft legislation.
c. Establish contact with the Committee, to submit information to the Committee
and to meet with the Committee.
d. Conduct public awareness raising and other advocacy activities for the
promotion of the rights and obligations included in the Convention.
e. Promote cooperation on issues related to the implementation of the Convention
between all relevant bodies and stakeholders on the national and international
level, including government ministries, state-funded bodies, local authorities,
the private and voluntary sectors, the relevant non-governmental organizations,
non-governmental organizations of people with disabilities, specialized
agencies, and UN bodies.
f. Publish, with the relevant authorities, guidelines concerning all matters
which are the subject of the Convention.
g. Identify the special needs of persons with disabilities and the selection
of the most effective and appropriate ways to respond to these needs, including
the initiation, commissioning and encouragement of research.
h. Promote the establishment of national quantitative data base and information
centers about the rights and the relevant services in relation to persons
with disabilities.
i. Advise about and protect persons with disabilities' rights.
j. Submit an annual national report on the implementation of the rights
of persons with disabilities in the State Party concerned.
k. Investigate complaints by persons with disabilities and initiate investigations
as to infringements of the rights of persons with disabilities.
l. Conduct mediation, arbitration and other action designed to settled disputes
regarding the rights of persons with disabilities.
m. File legal actions in the courts and national tribunals in the Commission’s
name and in the name of persons with disabilities with a view to protecting
and implementing the rights of persons with disabilities.
n. Issue directions and orders with a view to protecting and implementing
the rights of persons with disabilities.
National Human Rights Institutions
MEETING CONVENED BY THE OFFICE OF THE
SWEDISH DISABILITY OMBUDSMAN
Observations Regarding Draft Article 25 on Monitoring
The participants,
1. propose that the framework for national monitoring of the Convention
be centred around the implementation of a National Plan of Action based
on the Standard Rules.
2. suggest that the specific reference to the obligation to create “a focal
point” within governments in Paragraph 1 of Draft Article 25 is omitted
in order to leave the question of the particular design of a system for
implementation at governmental level more open.
3. wish to underline the importance of the national framework for implementation
of the Convention containing an institution independent from the government,
in accordance with the Paris Principles. This institution should include
experts from the disability movement and be empowered to, inter alia, monitor
implementation of the Convention, raise awareness on the rights, obligations
and remedies under the Convention, receive individual and group complaints,
make recommendations to relevant entities, and interact with the international
monitoring framework. The participants would like to emphasise the value
of active and ongoing consultations with such an institution by other national
and international actors involved in the implementation and monitoring of
the Convention.
4. wish to emphasise that the international framework for monitoring the
implementation of the Convention should under no circumstances be of a lesser
standard than that of any existing United Nations Human Rights Convention.
The design of monitoring mechanisms such as State reporting and individual
and group complaints should benefit from the current review within the United
Nations of the monitoring mechanisms under existing Conventions, and the
Convention should be a part of any future reform targeting the monitoring
mechanisms under United Nations Human Rights Conventions.
5. put forward that the international framework for monitoring the Convention
should contain an independent body of experts, including experts from the
disability movement.
6. propose that the design of an international mechanism for monitoring
the Convention build upon the existing monitoring mechanisms under the Standard
Rules conducted by the United Nations Special Rapporteur on Disability.
7. would like, finally, to emphasise that the consultation with DPOs must
be an inherent part of the drafting, implementation and monitoring of the
Convention.
Non-governmental organizations
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 25
Monitoring
National implementation framework
1. States Parties shall designate a focal point within government for matters
relating to the implementation of the present Convention, and give due consideration
to the establishment or designation of a coordination mechanism to facilitate
related action in different sectors and at different levels.
2. States Parties shall, in accordance with their legal and administrative
system, maintain, strengthen, designate or establish at the national level
a framework to promote, protect and monitor implementation of the rights
recognized in the present Convention.
3. States Parties shall undertake to systematically provide to all children
accessible information about the rights in the present Convention
INTERNATIONAL SAVE THE CHILDREN ALLIANCE
Article 25
Monitoring – a briefing paper
1 National implementation
It is clearly imperative that appropriate measures are introduced at national
level for the effective implementation of the rights embodied in the Convention.
In this regard, the recent General Comment No 5 from the Committee on the
Rights of the Child provides a comprehensive overview of the range of measures
needed in order to ensure meaningful fulfilment, protection and respect
for human rights. These measures, while drafted in respect of a Convention
addressing the rights of children, have general applicability in respect
of the realisation of human rights for all other groups. Accordingly, consideration
needs to be given to the following measures to promote implementation at
a national level:
Legislative measures – States parties need to review all relevant legislation
and related administrative guidance to ensure that it is consistent with
the principles of the Convention. While this needs to be undertaken internally
by government departments, some independent scrutiny, for example by parliamentary
committees or national human rights institutions is also valuable. In addition,
States parties must ensure that the provisions of the Convention are given
effect within national law, whether by incorporation, introduction of new
legislation or other means.
Judicial remedies – effective remedies must be available to enable persons
with disabilities to redress violations. These remedies must to be accessible
to persons with disabilities, including children, and provide for accessible
information, access to independent advice and advocacy, safe access to complaints
procedures and courts with the necessary legal and other assistance. Where
rights have been breached, there should be appropriate reparation.
National strategy for implementation - a strategy must be developed for
implementing all the rights embodied in the Convention and in respect of
all persons with disabilities, irrespective of age, gender, impairment,
ability, ethnicity, or other status. It must be developed through a process
of consultation with adults and children with disabilities. The strategy
must establish concrete and realisable targets.
Co-ordination of implementation of rights across government – most government
departments will carry responsibilities which have a direct or indirect
impact on the realisation of the rights in the Convention. It is not sufficient
for exclusive responsibility to lie within one department such as the department
for social welfare. Article 25 proposes the designation of a focal point
within government for matters relating to the implementation of the Convention.
Some governments have established dedicated units with responsibility for
overseeing implementation of the rights of disabled people under national
legislation. If such a unit has sufficiently high level authority within
government, has trained staff and is properly resourced, it can be a highly
effective means of giving visibility to disabled people and ensuring greater
respect for their rights.
Monitoring implementation – States parties need to undertake a continuous
process of disability impact assessment, a process of predicting the impact
of any law, budget or policy which affects disabled people and their enjoyment
of rights. This process needs to be built into government at all levels
and as early as possible in the development of policy. Governments also
have responsibility for monitoring implementation of rights. In addition,
it is important for independent monitoring to be undertaken by, for example,
parliamentary committees, academics, disabled people’s organisations, including
youth and children’s organisations, and national human rights institutions.
Data collection – this is already dealt with in Article 6
Visibility in budgets – Governments need to undertake budgetary analysis
to assess whether an appropriate proportion of national budgets are being
allocated to persons with disabilities. It is not yet clear whether the
final text of the Convention will include reference to the progressive realisation
of economic, social and cultural rights, on the lines of the text included
in the International Covenant on Economic, Social and Cultural Rights and
the Convention on the Rights of the Child. If it does, it needs to be recognised
that States parties cannot assess whether they are fulfilling their obligations
to the maximum extent of their available resources, unless disabled people
are rendered visible in budgetary allocations.
Training and capacity building – all personnel involved in implementation
of the Convention will require training and capacity building including
government officials, parliamentarians, members of the judiciary, police,
education and health professionals and staff working in institutions. The
aim of such training is to promote awareness of persons with disabilities
as subjects of rights, to increase awareness and understanding of the Convention
and to promote active respect for all its provisions.
Co-operation with civil society – while implementation is an obligation
for States parties, it also requires the engagement of all sectors of civil
society. For example, in its General Comment No 14 on health, the Committee
on Economic, Social and Cultural Rights emphasizes that all members of society
have a responsibility regarding the realisation of the right to health and
that States parties should therefore provide an environment which facilitates
the discharge of those responsibilities. In addition, the State must work
closely with organisations of disabled people, including those of and representing
disabled children and young people, as well as other civil society actors.
Independent human rights institutions – the establishment of independent
human rights institutions by States parties provides a mechanism by which
they can be held to account on the commitments undertaken in the Convention.
The Committee on the Rights of the Child in its General Comment No 2 observes
that ‘the establishment of such bodies falls within the commitment made
by States parties upon ratification to ensure the implementation of the
Convention’. Such bodies provide a complementary process of monitoring and
should not lead to governments delegating their own monitoring obligations.
Human rights institutions must be independent of government and free to
set their own agenda and determine their own activities.
Making the Convention widely known - rights are of little value if they
are not known about. Both disabled and non-disabled adults and children
need to understand the implications of the Convention and the status of
disabled people as subject of equal rights. States parties need to develop
a strategy for disseminating knowledge about the Convention throughout society.
2 International monitoring mechanisms
To date, the text of the draft Convention contains no provisions on international
monitoring mechanisms. Clearly, if the new Convention is to have force,
it will be necessary to introduce mechanisms through which states parties
can be held to account on their obligations to disabled people. A number
of different options exist, including:
• A new treaty body established under the terms of the new Convention to
monitor States parties progress in implementation
• An international Ombudsman to oversee progress in ratification and implementation
• A provision included in the new Convention requiring the treaty bodies
for the existing human rights conventions to appoint a minimum of two disabled
human rights advocates to those bodies.
The International Save the Children Alliance supports the third approach
for the following reasons:
1 Governments already have a heavy burden of reporting to existing treaty
bodies. Acknowledgement of this problem has led to a current review of the
reporting processes by the UN . It is at least possible that the establishment
of a new treaty body under the terms of this Convention will act as a deterrent
to ratification, with governments reluctant to undertake a commitment to
further reporting. On the other hand, the appointment of disabled human
rights experts to the existing treaty bodies would serve to strengthen their
capacity for effective monitoring, while introducing no additional reporting
obligations. It is axiomatic that these individuals are themselves disabled
people with expertise in the field of disability rights.
2 The fundamental rights and freedoms embodied in the existing human rights
treaties already extend to persons with disabilities. The problem is not
that the rights do not exist: it is that they are not recognised or implemented
for disabled people. A primary goal for this Convention, therefore, should
be to ensure that those existing rights are more effectively monitored and
implemented. Creating a separate treaty body will not advance this objective.
It may have the consequence of further marginalising disabled people and
failing to ensure that State parties are properly examined on their obligations
to disabled people under the existing human rights treaties.
3 Although the appointment of an international ombudsman may play a valuable
role in mainstreaming disability rights and raising their profile, such
a post is unlikely to have the direct impact on States parties that can
be achieved through the reporting process and subsequent dialogue with treaty
bodies. It would, therefore, not compensate for the existing weaknesses
in monitoring the rights of persons with disabilities.
4 From 2001-2003, Rights for Disabled Children, an international working
group of disabled people’s organisations and the International Save the
Children Alliance, undertook regular scrutiny of States parties reports
to the Committee on the Rights of the Child and the subsequent summary records
and concluding observations of the Committee. It found that, apart from
on education and institutional care, there was little reference made to
the rights of disabled children . For example, the right to express views
and have them taken seriously, to protection from all forms of violence,
to information, to freedom of association, to an adequate standard of living
for proper development, to play and recreation were rarely, if ever raised
in respect of disabled children. There is a significant lack of expertise
within the Committee on the social model of disability and its implications
for the realisation of rights. The presence on the Committee of a minimum
of two disabled experts would transform the examination of States parties
and go a long way towards ensuring that they were held to account in respect
of the rights of disabled children to enjoyment of all the rights in the
Convention on the Rights of the Child. Similar benefits would accrue to
the other human rights treaty bodies from such appointments.
LANDMINE SURVIVORS NETWORK
Draft Article 25 - MONITORING112
SYNTHESIS OF PROPOSALS
National Implementation Framework113
1. States Parties shall designate a focal point within Government for matters
relating to the implementation of the present Convention, and give due consideration
to the establishment or designation of a coordination mechanism to facilitate
related action in different sectors and at different levels.
2. States Parties shall, in accordance with their legal and administrative
system, maintain, strengthen, designate or establish at the national level
a framework114 to promote, protect and monitor implementation of the rights
recognised in the present Convention.
DRAFT ARTICLE 25 FOOTNOTES:
112 The Working Group did not have time to consider the issue of international
monitoring of the draft Convention. Some members of the Working Group indicated,
however, that international monitoring was an issue of considerable importance
to them. Other members, however, had reservations in this respect.
113 The Working group did not discuss in detail the wording of the draft
provisions. It noted that the Ad Hoc Committee may wish to discuss the issue
further and take into account the on-going review of the work of the existing
UN human rights treaty monitoring bodies.
114 The Working Group did not reach agreement on a number of issues relating
to the role of national human rights institutions in the process of the
promoting, protecting and monitoring the implementation of the Convention
but some members considered that they might perform, inter alia, the following
functions: promoting awareness of the provisions of the Convention to persons
with disabilities and to the general population; monitoring national legislation,
policies and programmes to ensure consistency with the Convention; undertaking
or facilitating research on the impact of the Convention or of national
legislation; developing a system for assessing that impact on persons with
disabilities; and hearing complaints about failure to observe the Convention.
COMMENTS
The issue of monitoring was postponed for consideration until the fourth
session of the Ad Hoc Committee. Accordingly, most of the comments in our
previous analysis are still applicable. We have reprinted our previous comments,
with some minor changes.
The inclusion of this provision in the Working Group text reflects the now
routine treaty practice to create obligations in relation to national legal
implementation. Developments in the law of treaties in this regard recognize
that the primary responsibility for implementation lies with states. The
article is a substantially shortened version of the original text considered
for inclusion by the Working Group.
FN 112 references the subject of international monitoring which the Working
Group did not consider in any detail and notes some disagreement among members
on the subject of international monitoring. It is noteworthy that all principal
international human rights Conventions do create international monitoring
mechanisms within the framework of the treaties. The absence of any such
framework within a Convention on the rights of people with disabilities
would represent a significant departure from international human rights
treaty practice, and a weakening of this Convention.
FN 113 indicates that the Working Group was unable to undertake detailed
drafting of this provision, and references the on-going UN review of existing
human rights treaty monitoring. Some Working Group members felt that whilst
the treaty reform process should be taken into consideration, the Ad Hoc
Committee should certainly not wait for that process to be completed.
Draft Article 25(2) refers to the requirement to have a national level framework.
However, it does not go as far as requiring a national human rights institution,
or other type of monitoring mechanism that is independent of government.
FN 114 references possible functions for national human rights monitoring
institutions, drawn from the Paris Principles, which provide detailed and
highly relevant guidelines on the operation of national institutions. An
explicit reference to the Paris Principles, previously deleted from an earlier
draft of Draft Article 25, should be reinstated to ensure that the national
level monitoring mechanism complies with the international legal standard.
(Cf. Paris Principles on National Institutions for the Promotion and Protection
of Human Rights, GA Res. 48/134 (20 December 1993) In addition, the national
level monitoring mechanism must be formally linked to the international
level monitoring mechanism to help facilitate the international and national
bodies to have a meaningful exchange on methods and strategies to promote
and protect the rights of people with disabilities. In addition, the complementary
relationship will ensure that capacity is being developed at both national
and international levels. (Cf. Optional Protocol to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Articles
17-20).
PEOPLE WITH DISABILITY AUSTRALIA
Contribution in relation to MONITORING
by
People with Disability Australia
Australian Federation of Disability Organisations
(Australian) National Association of Community Legal Centres
As it is currently drafted, article 25 only deals with two aspects of domestic
implementation. Much more is obviously required to ensure the implementation
and monitoring of the convention, both at the national and international
levels.
At the domestic level the implementation and monitoring provisions of the
convention should require States to:
(a) Enact laws to directly incorporate the rights set out in the convention
into the domestic laws of the State
(b) Develop, implement, and evaluate, progressive national action plans
to realise the rights set out in the convention;
(c) Establish or designate an independent office of commissioner or ombudsman,
operating consistent with the Paris Principles, with the role of monitoring
the implementation of the convention within the State to ensure that the
human rights of persons with disability are realised;
(d) Enact laws providing domestic avenues of complaint and redress for persons
with disability, and classes of persons with disability, in circumstances
where their human rights under this convention have been breached;
(e) Mandate the role of persons with disability, and independent disabled
peoples organisations, in public policy and program development, implementation,
and evaluation in relation to issues impacting on persons with disability;
(f) Provide financial support and other resources for the operation of independent
disabled peoples organisations;
(g) Develop, implement, and evaluate on a progressive basis a national program
of independent advocacy services for people with disability capable of providing
individual, group and systemic advocacy assistance to persons with disability
to realise their rights under this convention.
At the international level the implementation and monitoring provisions
of the convention should:
(a) Establish a treaty monitoring body, constituted by persons with specific
expertise in the area of disability. It was generally agreed that this body
should be constituted by a majority of experts with disability, drawn from
a variety of impairment backgrounds;
(b) Require States to submit periodic reports outlining their progress in
implementing the convention at the domestic level for examination by the
treaty monitoring body. In this respect, it was generally thought that a
5 yearly reporting cycle was appropriate;
(c) Establish a procedure for complaints to be made to the treaty body by
(or in respect of) individuals with disability and classes of persons with
disability where there has been breach of their rights under the convention,
and where no domestic remedy is available;
(d) Establish a conciliation commission to resolve major breaches of human
rights through high-level international dialogue;
(e) Ensure the referral of issues of concern to United Nations specialist
agencies for attention;
(f) Establish a position and office of Special Rapporteur on Disability
that would have the role of:
• Coordinating the work of the treaty body, conciliation commission, and
complaints procedure;
• Promoting and monitoring the implementation of the convention internationally;
• Drawing the international community’s attention to areas of key concern,
and promoting international cooperation, where applicable, to address them;
• Developing guidance and advisory materials on implementation measures
for distribution within the international community;
• Facilitating international cooperation and dialogue in relation to cross
jurisdictional problems;
• Ensuring that the obligations set out in the convention are promoted and
applied throughout the United Nations system, agencies and initiatives,
and through other intergovernmental and international civil society organisations
and corporations;
• Maintaining dialogue with disabled peoples’ organisations in relation
to these matters.
Apart from these issues, the convention also still requires a procedure
for signature, ratification, accession and entry into force. In this respect
we are strongly opposed to the incorporation of any procedure that would
permit reservations to be made against any of the substantive or procedural
obligations of the convention.
WORKING MEETING OF NGOs FOR PERSONS WITH DISABILITY FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
Article 25
Monitoring
National implementation framework
It should be clearly stated that national monitoring mechanisms should be
developed and established with participation of non-governmental organizations
of people with disabilities, their relatives and professionals.