Tuesday, June 14, 2011

Day 5: CDLP NUI Galway & Harvard Disability Project Summer School

by Mary Keogh & Charles O’Mahony

Morning Session

Andrea Coomber the Legal Practice Director with Interights led the morning session on day 5 of the Summer School on interacting with the CRPD processes at the international level. She noted that the CRPD is the latest of the 8 international treaties and that the CRPD offers opportunity for shadow reporting. In that regard it is important to look at the other UN Committees and try and avoid pitfalls of engaging at the international level.

UN Committee's with 18 members inadequately resourced are ineffective. Andre suggested that in 10 years time there could be consolidation of UN Committees. Speaking about the underfunding of the UN Committee system it was noted that less than 1% of the UN budget was allocated to human rights. It was also noted that there is only one person supporting the CRPD Committee. The CRPD Committee membership has a regional, gender and cultural balance and also includes people with disabilities as required by Article 34(4). It was noted that while State Parties nominate members of the Committee members serve in their private capacity under Article 34(3). The Committee meets 2 weeks a year in Geneva, which is not a lot of time to get through its workload. The resourcing of the Committee as with all UN committees is insufficient. The CRPD Committee has so far met 5 times with the next meeting scheduled for September 2011. The CRPD Committee is currently developing 2 general comments; one comment on accessibility and the other on legal capacity.

Andrea made the point that Committee is yet untested and that it will be tested quickly and not just through State Reporting but also through individual communications and general comments. Within 2 years of ratifying the CRPD, an initial report must be submitted to the Committee. It is important for State Reports to be submitted on time and that submission 17 years late (as has happened with reporting to other UN Committees) should be avoided. Andrea also noted that the CRPD requires consultation with civil society in its State Reporting see Article 35(4). She also spoke about the success of NGO's in using shadow reporting and then using that process for publicity in advancing their agenda. She proposed that this was done effectively in Australia.

When a UN Committee expresses concerns around issues Andrea suggested that this amounts to an invitation to receive individual communications on the issue. The CEDAW Committee came out with strong positions following individual communications on cases being litigated.

Andrea stated that when the media reports that the United Nations condemns a practice or State it generally refers to critical statements made by a UN Committee. State Party Reports need to be read with a deeply critical eye as some governments will tell untruths in their Reports or will talk about the law but not its deficits in practice.

Shadow Reporting

Andrea spoke in greater detain about Shadow Reports, which provide an opportunity for direct impact. However, in Shadow Reporting NGO's need to be strategic and work collaboratively as a coalition of NGOs/DPO's carry weight. Shadow Reports need to be clear and follow a sensible order; if it is well laid out and structured it is more likely to be read by the Committee. Shadow Reports should be as specific and factual as possible in the provision of information and it is preferable for shadow reports to be written in English. It is important to note that Shadow Reports are not a backdoor for individual communications in circumstances where a State has not ratified the Optional Protocol to the CRPD.

Andrea spoke about detailed Shadow Report prepared by Hungarian NGO's. This Shadow Report was submitted in absence of a State Report one month after the State Report was due. She also spoke about the importance of capacity building NGO's and the opportunity available to NGO’s to attend the plenary session in Geneva. The International Disability Alliance has a permanent presence in Geneva and it was suggested that the IDA may be willing to represent NGO's if they do not have the resources to travel to Geneva.

A participant asked what happens when a State Party does not report in a timely manner. Andrea responded that the Committee is some ways was a toothless beast in that there are no real sanctions at their disposal to deal with delayed reporting. However, she did indicate that political pressure could be applied.

Individual Reporting

Andrea noted that individual reporting was based on signature of the optional protocol. Article 1 of the Optional Protocol provides that individuals and groups can submit communications. Article 2 sets out the admissibility of communications and lists circumstances where communications will be deemed inadmissible. Andrea suggested that it is very simple to submit a communication. It cannot be anonymous, however, confidentiality can be requested. Article 2(d) of the optional protocol requires that “domestic remedies” have to be exhausted in order to bring an individual complaint. However, Article 2(d) does provide for avoiding the requirement of exhausting domestic remedies where the remedies are unlikely to bring “effective relief” or where the remedies are “unreasonably prolonged”. These are key aspects of the optional protocol as persons with disabilities have significant barriers in accessing justice. If there are structural difficulties to access justice in the State a complainant can raise the argument of having exhausted domestic remedies. However, the violation complained of needs to be contained in the Convention and cover the timeframe of the Convention.

Andrea noted that 4 of the other Committees have developed model complaint forms and that it is likely that the CRPD Committee will adopt a similar model. It is essential to make things easy as possible for the Committee and a good communication should address admissibility criteria and state that complaint is not submitted to another international forum. All relevant facts of the case should be submitted and should be factually accurate and presented in a chronological order. It is essential that the Committee be provided with all of the information that it needs as it does not have the resources to gather this information. However, it was noted that UN Committees have a broad understanding of the concept of evidence and that NGO Reports on disability issues can be used as a supporting context.

It is also important that Individual communications be signed and posted. Andrea noted that you might hear little back from the Office of the High Commissioner for Human Rights after you initially submit your individual communication to the Committee. This may be the case as there is no news to communicate. Under Article 3 of the Optional Protocol the Committee can bring any communication submitted to it to the attention of the State Party. Within six months the State Party are required to submit to the Committee written explanations or statements clarifying the matter and the remedy if any that may have been taken by the State. Article 4(1) of the Optional Protocol provides that before the merits of a communication are reached the Committee can transmit to the State Party a request to “take such interim measures as may be necessary to avid possible irreparable damage to the victim or victims of the alleged violation.” However, such a request does not imply the admissibility of the communication under Article 4(2).

Andrea indicated that there has been a rich jurisprudence from the CEDAW Committee and that there was much hope that there would be a good jurisprudence from the CRPD Committee. Andrea also spoke about the finding of a violation of a UN Convention. She noted that such a finding was very significant and powerful for complainants and for social movements and domestic strategies for law reform. A finding of a violation was also very significant for a complainant as recognition by an international body of their situation was important for them.

Andrea then spoke about the inquiry team provided for under Article 6 of the Optional Protocol. The CRPD Committee can designate one or more of its members of the Committee to conduct an inquiry and report urgently to the Committee. This may involve a visit to the territory of the State Party provided that they consent. Importantly the inquiry team can decide upon their working methods. The Committee can go through the inquiry process and keep it private or make it public. However, there is precedent for publishing the findings of an inquiry. The CEDAW investigation in Mexico on abuse of women and girls was published. Andrea noted that it is often not in the States interests to consent to greater scrutiny. However, the CEDAW Committee decided not to have an inquiry on the sterilisation of Roma women as they considered the problem not to be systematic and grave enough.

Andrea refereed to movements to reform UN Committees and she indicated that there is a concern that the Committees could lose their independence. She noted that the CEDAW Committee had adopted inconsistent criteria for permitting complaints. Andrea made the point that strong decisions come out of strong arguments and it was important for complainants to craft arguments carefully. She reiterated the point that the Committee does not have the time to do additional research and that complainants need to provide good quality information and arguments in their communication to the Committee.

In that regard there is a need to investment in domestic litigation and when the domestic remedies are exhausted cases can then be brought to the Committee. Andrea made the point those lawyers who loose cases at national level can become winners in international human rights litigation. Andrea noted that NGO’s/DPO’s need to adopt broad strategies as once off shadow reports have limited impact. Forum shopping in terms of the options of international litigation is hugely significant. There needs to be an understanding of the advantages and disadvantages of bringing cases before regional human rights bodies such as the European Court of Human Rights and before the CRPD Committee. For example, the CRPD Committee might be attractive as the CRPD is disability specific, however, the remedies may not be as strong as those available under the ECHR. It is essential that NGO’s and activists see how the CRPD sits within the context of international human rights law.

Andres also reiterated that CEDAW decisions are hugely important from a disability perspective. She also spoke about making sound human rights arguments. She referred to the DH case where one of the arguments was based on Article 3 of the ECHR. She suggested that the argument did not make since and the Court did not even address it in their judgment. International human rights law takes a lot of time as UN Committees are under significant time pressures. A case can take many years to come to hearing and that can have a huge impact on the litigant, therefore, it is important to provide psychosocial support for litigants.

Andrea emphasised that you did not need to be a lawyer to prepare a Shadow Report but that you should seek some support if needed from organisations such as Interights. She also emphasised the point that many of the CRPD Committee members are not lawyers.

Afternoon Session

The afternoon session of Day 5 focused on Interacting with the new Institutional Architecture for Change at National level with a particular emphasis on Article 33 of the Convention. The session heard inputs from Dr Gautheir de Beco, Associate Researcher at the University of Louvain; Harvey Goldberg from the Canadian Human Rights Commission, Dr Eilionoir Flynn of the Centre for Disability Law and policy and Professor Mark Priestly from the University of Leeds. Dr de Beco started the session giving a presentation of Article 33 of the CRPD, which deals with implementation. He pointed out that the CRPD was one of the first Conventions to deal with national implementation and monitoring. In terms of implementation, he highlighted that Article 33 creates a 3 pillar structure with focal points/coordination mechanism, an independent mechanisms and civil society, particularly organisations representing persons with disabilities.

Within this 3-pillar structure Article 33(1) sets out the provision for focal points and Dr de Beco suggested that States are encouraged to have a number of focal points at the horizontal or vertical level. Coordination mechanisms were also envisaged to be at the highest level of administration as possible. Since the adoption of the Convention, he informed the Summer School that many questions have been asked about Article 33 and what is the best location for the focal point. Most of the time (at least in Europe) the focal point is the Ministry for Social Affairs. Dr de Beco pointed out that not all States have established coordination mechanisms. Article 33(2) deals with Independent mechanisms and states can either appoint existing bodies to be independent mechanism or they can establish something new. He pointed out that where States had different levels of government it might be necessary to cover the whole jurisdiction with a number of mechanisms. In terms of the use of promotion and protection of human rights in the text of Article 33, Dr de Beco indicated that promotion could be in the form of awareness raising, research, training and education. Protection can be in the form of complaints handling, amicus curiae, assistance and representation.

Dr de Beco spoke about how monitoring can take different forms, e.g. evaluation, opinions, general inquiries and follow up. In terms of the framework as suggested by Article 33, in practice Dr de Beco commented that there are a lot of different combinations and that no state that has adopted identical solutions so far. Finally, he raised the point that Article 33(3) requires that persons with disabilities and their representative organisations to be involved in monitoring.

Harvey Goldberg and Dr Eilionoir Flynn followed Gautheir with more in-depth presentation on the different aspects of Article 33. Mr Goldberg spoke about human rights institutions and their role in monitoring. Dr Flynn presented research her forthcoming book on national disability strategies and their factors for success. The session was concluded by Professor Mark Priestly who gave an interesting presentation on the potential of the Open Method of Coordination as a means to implementing and monitoring the CRPD at an EU regional level.

Useful Links:

Full list of reports submitted to the Committee are available at: http//tinyurl.com/6a3zrka (including the recent comments on Tunisia's Report)

Reporting guidelines for States are available here: http//tinyurl.com/5wd8sv9

An example of a NGO/DPO Shadow Report on the CRPD is available at: http//www.mdac.info/node/380

For examples of Shadow Reporting see the International Disability Alliance here: http//tinyurl.com/27bm2au