OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
ICC 25 GENERAL MEETING
Palais des Nations, Room XVIII, 21 March 2012
CRPD: National implementation and monitoring frameworks
Speaking notes
Stefano Sensi, Advisor on human rights and disability
Mr./Madame Chair,
Colleagues,
Ladies and gentlemen,
The adoption of the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol on 13 December 2006 represented the culmination of the dedicated efforts of the persons with disabilities and their representative organisations in the last three decades to move from an approach motivated by charity towards persons with disabilities to one based on rights. The human rights approach to disability which the Convention endorses means that persons with disabilities are now regarded as holders of rights, and no longer as mere “objects” of protection.
The Convention on the Rights of Persons with Disabilities is a wide-ranging human rights treaty covering the full spectrum of civil, cultural, economic, political and social rights. Its aim is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
The Convention has the potential to bring about real and tangible changes in the lives of all persons with disabilities. However, ratification alone is not sufficient to make a change in the life of these people. What is needed, as you know, is that States parties effectively implement the Convention at the national level, through the adoption of all appropriate measures – be they legislative, judicial, administrative, educational and others.
The question now is: what can trigger the effective implementation of the Convention at the national level?
Part of the answer is in article 33 on national monitoring. The monitoring of human rights treaties is needed to assess whether measures to implement the treaty are adopted and applied at the national level. Monitoring also permits to evaluate the effectiveness of the measures adopted, and therefore provide feedback for implementation. Monitoring mechanisms foster accountability and, over the long term, strengthen the capacity of States parties to fulfil their commitments and obligations.
The CRPDprovides for monitoring of the implementation of the Convention both at the international and national level. At the international level, the Convention provides for monitoring through three procedures. In the first instance, the Convention regulates, on grounds similar to other human rights treaties, a reporting procedure. States and regional integration organizations which are parties to the Convention commit to periodically reporting on measures taken to give effect to their obligations under the Convention and on the progress made in this regard.
These reports are examined by an international committee of independent experts – the Committee on the Rights of Persons with Disabilities. This Committee has the mandate to consider the reports and make suggestions and recommendations for strengthening implementation of the Convention. Monitoring also takes place through an individual communication procedure and an inquiry procedure. Both these procedures are subject to ratification of the Optional Protocol to the Convention.
Furthermore, the Convention includes specific national monitoring measures in a dedicated provision, article 33 of the CRPD. The inclusion of a norm detailing national implementation and monitoring structures and their functions at national level is unprecedented in a human rights treaty. In this way, the Convention is in fact the most comprehensive human rights treaty in the area of monitoring.[1]
Article 33 provides for three different national monitoring and implementation mechanisms. The first two mechanisms are established within Government. To avoid blurring of responsibility across Government or uncoordinated action, Article 33 (1) requires States to designate one or more focal points with responsibility for the implementation of the Convention within government and to consider the establishment of a coordination mechanism. These are related more to implementation than to monitoring and I will not dwell on them.
Instead, I would like to focus on the third national mechanism required by the Convention: the national human rights institution. The CRPD is the first human rights convention that includes an explicit role for national human rights institutions in promoting, protecting and monitoring implementation of a treaty at national level.
The Convention requires States parties to ‘maintain, strengthen, designate or establish’ a national monitoring framework. It leaves to States parties the choice of whether to assign the monitoring function to an existing mechanism or to establish an entirely new framework. States parties must also consider whether they will have ‘one or more independent mechanisms’ making up the national framework.
Such decisionswill naturally be affected by financial and human resource considerations. In some cases, creating a new structure shaped on the CRPD expectations could be less ‘expensive’ than re-conceptualizing the mandate, the expertise and the ‘mentality’ of an existing institution; in other cases, the NI, ombudsperson or specialized agency already on the ground could be sufficiently flexible to adapt to additional tasks.
Article 33 (2) does not prescribe a specific organizational form for the national monitoring framework, and States parties are free to determine the appropriate structure according to their political and organizational context. In establishing or designating this body, however, the Convention requires States to ‘take into account’theParis Principles.
The explicit linkage between the framework and the Paris Principles suggests a preference for the attribution of the monitoring function to a national human rights institution. The reference to the Principles has also been included to ensure the independence, diversity of membership, sustainability of funding, breadth of mandate and openness to the public of the national monitoring mechanism.
Although the heading of article 33 uses the term monitoring, it is important to note that paragraph 2 actually refers to States establishing a framework to ‘promote, protect and monitor’the implementation of the Convention. In accordance to the Paris Principles, the mandate of the national framework should be as broad as possible, and should be clearly set forth in a constitutional or legislative text. Slide 6 in the
Promoting the implementation of the Convention includes a broad range of activities, ranging from awareness-raising activities such as the ones highlighted in article 8 of the Convention to the provisions of technical advice to public authorities or other agencies in order to facilitate the compliance of national legislation and policies with the requirements of the CRPD.
Protection under the Convention can include a broad range of different activities that range from examining individual and group complaints to providing conciliation and arbitration services, from amicus curiae in key national court cases to conducting public inquiries and fact-finding missions.
Monitoring the implementation of the Convention can be approached from multiple perspectives. On one hand, it can be achieved through assessing progress, stagnation or retrogression in the enjoyment of rights over a certain period of time. The development of indicators and benchmarks is a particularly effective way to monitor implementation, particularly with regard to the progressive realization of economic, social and cultural rights in the Convention.
Article 33, paragraph 3, of the CRPD requires the involvement and full participation of civil society, in particular persons with disabilities and their representative organisations, in the monitoring process. This requirement further specifies the general principle of participation of persons with disabilities in article 3 and the general obligation in article 4, paragraph 3, to closely consult with and actively involve persons with disabilities through their representative organisations in the development and implementation of legislation and policies to implement the Convention and in all decision-making processes relating to persons with disabilities.
Article 33, paragraph 3, arguably seems to include both direct participation of persons with disabilities in the monitoring process, as well as indirect participation, through representative organisations. Direct participation of persons with disabilities in the monitoring process can take place, for example, by having experts who are persons with disabilities to participate in the work of the monitoring framework. Some national human rights institutions have commissioners who are persons with disabilities or have persons with disabilities on their executive boards.
Mr. /Madame Chair,
National human rights institutions provided an important contribution to the drafting of the Convention on the Rights of Persons with Disabilities. It is now imperative that the obligations that the Convention creates be implemented at national level and take real effect in the lives of persons with disabilities. National human rights institutions have a crucial role to play in promoting and monitoring the full and effective implementation of the Convention.
During the negotiation process, OHCHR has worked closely with many of you to make this Convention a reality. We now look forward to continuing working with you in ensuring that the implementation of the Convention bring about a real change in the lives of our fellow women and men with disabilities.
Thank you.
1
[1] With regard to national monitoring, see the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT), which requires ratifying States to set up a national preventive mechanism. The OP-CAT establishes a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.