European Foundation Centre and European Disability Forum Joint Seminar on National Implementing
European Foundation Centre and European Disability Forum joint seminar on national implementing and monitoring bodies, 28 October 2009, Brussels
SEMINAR REPORT
The seminar stressed the uniqueness and novelty of the UN CRPD that is the first UN treaty-body that provides for an elaborate framework for monitoring the implementation[1]. It is also the first ever human rights treaty to be ratified by the European Community, which makes it unprecedented in the European history.
It is crucial to remember that that CRPD is a binding instrument, and not a simple declaration of good intentions.Its implementation is an obligation of the States Parties whose task is made more challenging by the fact that there are no good practices to draw the inspiration from.
Article 33 «National implementation and monitoring» is one of the most interesting provisions of the Convention. Very few States Parties have taken steps to implement it, and most of those who have are European countries.Some of the countries have not yet started implementing it believe that the existing national structures already correspond to the requirements of Article 33.
Article 33 provides for creation of structures on two levels: implementation (focal point or points, and coordination mechanisms), and monitoring (framework of independent mechanisms). Further, it requires that organizations of people with disabilities be fully involved in the monitoring.
The considerations highlighted by the participants regarding focal points are:
-Where should the focal point (points) be placed?
The participants agreed that it should be on the highest appropriate level, avoiding the traditionally ‘social affairs’-related structures (such as Ministries of Health). It has been suggested that the focal point should be placed under the jurisdiction of the office of Prime Minister.
On the European level, it was suggested that the focal point be established under the Cabinet of the Commission’s President to provide for sufficiently broad overview of all Community policies that inform the implementation of the Convention. It was also suggested that an interdepartmental group (on level of Directors General) be created to enforce the implementation in respective sectors. It has been stressed that the European reporting will have to include the policy areas of Community competence as well as the administrative and procedural matters (accessibility and recruitment in the Institutions).
One speaker proposed the idea of involving the President of the Council of the European Union, the new function introduced by the Treaty of Lisbon, in the work of the focal point. The President could ensure continuous presence of the UNCRPD on the Council agenda and represent the EU political commitment to disability cause.
-How many focal points should there be?
Many agreed that more than one focal point may be needed. German Human Rights Institute (that has been nominated to fulfill the role of the independent monitoring mechanism) has asked for an additional focal point to complement the Federal Ministry of Labour and Social Affairs.
A special care to avoid unnecessary duplication of workof focal points must be taken in case of federal countries, where the competencies are divided between local, regional and national levels (examples are Belgium and Germany).
-What should the role and powers of the focal point(s) be?
The EDF speaker pointed out that the focal points should have a real say within the government to ensure that the development of policies and legislation gives due account to the Convention both by mainstreaming disability and ensuring that nothing is adopted against the spirit or the letter of the Convention.
Participation of DPOs has been the central issue in discussing the coordination mechanisms. The questions such as: “Who decides on participation?”,“How to ensure representativity of participation?” have been raised.
Coordination mechanisms at the European level should be present in all EU institutions (some structures already exist at the Parliament and the Commission). It has been suggested that the High Level Group on Disability (HLG) could play some role as well. However, in order to perform this function and be taken seriously, the HLG members should have expertise in disability as a human rights issueand be granted a strong mandate to represent their Member State.
Independent mechanisms were discussed at much length. Article 33.2 requires a framework for monitoring to be established but it does not specify what kind of framework it should be. An independent mechanism – a national human rights institution functioning in accordance with Paris Principles - should be one of the components of the framework. If such an institution does not yet exist in a State Party, it much be established, otherwise the implementation of Article 33.2 cannot be considered complete.
National example:
The speaker from the United KingdomEquality and Human Rights Commission (EHRC) explain that due to legal and political traditions, the UK independent mechanism currently consists of four bodies: the Equality and Human Rights Commission, the Scottish Human Rights Commission, the Northern Ireland Human Rights Commission, and the Northern Ireland Equality Commission. The monitoring work of this newly established mechanism will consist of interpretative exercise of the Convention articles, research concerning overall compliance, possible inquiries into priority issues, and data collection. This work would be done in cooperation with disabled people. In the European level, the EHRC will chair the Eurogroup of national human rights institutions on the UNCRPD.
-Consultation with the civil society organisaions
Civil society organization, in particular, DPOs, must also be part of the framework – this was made very clear by the representatives of the European Disability Forum. However, the seminar participants did not find a clear-cut answer on how to marry the clear obligation to involve the civil society with the criteria for the human rights institutions to be independent from all external interests, including those of the civil society. It has been suggested that the national DPOs could participate in the designation of the independent mechanism (as happened in Germany, where the National Disability Council approved of the nomination of the Human Rights Institute as the independent mechanism). It has also been suggested that DPOs can participate in the definition of the independent mechanism’s mandate that does not always come from the appointing body.
As for the membership in the independent mechanism, it was debated whether public appointees (if they are drawn from the civil society pool) can be members, and whether the participation in the monitoring framework should be extended to structures such as judiciary, parliamentary commissions etc..
National practice:
The German Institute for Human Rights, established in 2001, has been accredited an A-status institution according to the Paris Principles. Following the ratification of the CRPD by Germany, the Institute was designated by the both chambers of the Parliament to be the independent national monitoring body for the purpose of the Convention. In making this decision, the nominating organ consulted civil society organizations, in particular the representative organizations of persons with disabilities. They had also been consulted in two stages with respect to the draft law on the ratification of the Convention by Germany.
The Institute will receive additional public funding of 430.000,00 € per year in order to perform the monitoring tasks.
Following the nomination, the Institute has started to invite NGOs for consultations on a regular basis. It is the intention that these consultations form a crucial pre-condition for the monitoring tasks according to Article 33 (2) and (3) CRPD.
The question of the European independent monitoring mechanism is an important one and does not suggest an immediate answer. Possibly, either the Fundamental Rights Agency or the European Ombudsman could play this role but only if their respective mandates are revised to give them enough power and independence to deal with this task. Neither of these bodies meets the Paris Principles or the CRPD requirements at the moment.
The role of the European Parliament – the traditional EU human rights guardian – as either one of the focal points or as part of the monitoring framework has been raised. It has been suggested that the work done by the Subcommittee on Human Rights could be expanded to cover monitoring of the Convention in third countries. It was also stressed that a synergy between different parliamentary committees that deal with disability as a human rights issue (EMPL, LIBE, DROI, DEVE) must be found.
Given the number on uncertainties and open questions about the structure and role of the Article 33 bodies, it has been suggested that the UN Committee on the Rights of Persons with Disabilities explore the issue further either in a General Comment or at a day of general discussion.
Janina Arsenjeva
European Disability Forum
30 October 2009
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[1]Optional Protocol to the Convention against Torture is the only other UN treaty-body instrument that provides for creation of an independent body - national prevention mechanism.