Tuesday, October 4, 2011

Has the UN Committee on the Rights of Persons with Disabilities re-written Article 33.2?

"Since publishing this blog posting it has transpired that shortly before Spain's examination the Spanish Ombudsman, which is an 'A' accredited National Human Rights Institution, was incorporated into Spain's independent framework alongside CERMI, hence explaining the UNCRPD Committee's concluding observation the Spain is in 'full compliance' with Article 33.2 the Convention.   Contrary to the posting, this suggests that the UNCRPD Committee does prefer the inclusion of Paris Principles compliant NHRI's in the framework and is unlikely to entertain States choosing to exclude them where they exist."
We are delighted to welcome this guest post by Neil Crowther a leading disability rights and equality advocate.  Neil an independent consultant and writes in a personal capacity. He was previously Director of Human Rights at Britain’s Equality and Human Rights Commission (EHRC) where he led the development and implementation of its domestic and international human rights programme.  Prior to his role as Director of the EHRC Neil led the Commission’s disability rights programme.  

In September, Spain followed Tunisia in becoming only the second State to have been examined by the United Nations Committee on the Rights of Persons with Disabilities.   The tone of the examination and the concluding observations made by the Committee will therefore be of considerable interest and are likely to be a reference point for future examinations and domestic implementation.

The concluding observations certainly make interesting reading and a number are likely to prove controversial, such as on the matter of late terminations of foetuses identified as having a disability.  I will focus here on the rather more prosaic, yet highly significant concluding observation regarding Spain’s compliance with Article 33.2.

In the section titled ‘positive aspects’ the Committee states emphatically that it:
“commends the State party for establishing independent monitoring mechanisms in full compliance with art. 33.2 of the Convention.” (my emphasis)
The reason this is so intriguing is that Spain has designated the Committee of Representatives of Persons with Disabilities (CERMI) – an NGO – to perform the monitoring function.
Article 33.2 requires that:
‘States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.’
That such a framework can include disabled people’s organisations is without doubt, and this posting should not be read as an attack on CERMI which is an excellent organisation with a strong pedigree on UNCRPD domestically and internationally.  The framework required by Article 33.2 can in effect be as wide as it is long and could equally include prisons inspectorates, care regulators or modes of alternative dispute resolution for example. However, the Convention very specifically requires that such a framework includes at least ‘one or more independent mechanisms’ and clearly indicates that the term ‘independent mechanism’ should be understood by reference to the ‘Paris Principles’ – the normative standards employed to accredit national human rights institutions.  The only competent body empowered to determine such status is the sub-committee on accreditation of the International Co-ordinating Committee of National Human Rights Institutions.

The Committee itself appeared to recognise this when it issued further questions to Spain following the meeting to discuss the ‘list of issues’:
“Please explain whether the Committee of Representatives of Persons with Disabilities (CERMI) complies with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).”
Spain’s answer to this question is not presently available on the OHCHR website.  Nevertheless, the only answer available to the Spanish government was to say that CERMI did not and could not comply with the Paris Principles.   That Spain actually has an ‘A’ status national human rights institution, yet did not designate it as the ‘independent mechanism’ does not appear from the information available to have been given any attention by the Committee.

In States in which national human rights institutions do not presently exist, it is of course pragmatic that alternative arrangements should be put in place.  Without doing so, implementation of the Convention may be delayed indefinitely.   It is also commendable that the Committee should explore with States whether or not such alternative arrangements include features which are approximate to the Paris Principles and that it encourages the development of Paris Principles-compliant bodies.

But States which have not included a Paris Principle’s compliant body in their framework should not be awarded a clean bill of health in relation to Article 33.2.  Indeed, following the Committee’s previous examination of Tunisia it recommended that the State:
Ensure that the Higher Committee for Human Rights and Fundamental Freedoms complies with the Principles relating to the Status of National Institutions (see General Assembly resolution 48/134, annex), and establish a dedicated unit on disabilities.’
Given the position taken on Tunisia, it seems highly inconsistent not to have queried Spain’s decision to have elected not to designate its own ‘A’ status NHRI and it is difficult to comprehend the Committee’s judgement that Spain is in ‘full compliance’ with Article 33.2.  In elevating this comment to the list of ‘positive aspects’ regarding Spain, it appears that the Committee deliberately wished to draw attention to its interpretation.

If correct, I suspect the Committee’s motivation to do so was in response to the failure of many States to meet the general obligation in Article 4 to consult and involve disabled people in implementing the Convention.  Indeed disability organisations internationally have expressed anger and disappointment that the question of involvement has largely been relegated in debates about implementation of Article 33.2.  After all, if the human rights system had historically failed to promote disabled people’s human rights – so creating the case for a specific Convention – then why should disabled people feel confident that the same system would deliver for them now?  Many have argued that Article 33.2 should include a designated role for disabled people’s organisations.   In fact a number of States have gone down this path, formally recognising DPO’s as part of their monitoring framework.  In a number of cases, DPO’s are in a formal partnership with the national human rights institution.  This is a welcome development, which the CRPD Committee should celebrate and promote, perhaps via a General Comment.  But the concluding observation regarding Spain indicates the Committee’s endorsement of a quite different, and in my view inappropriate and non-compliant, arrangement. In doing so it risks sending an extremely unhelpful and damaging signal.

NHRI’s and civil society bodies are fundamentally different.  NHRI’s occupy a very specific space between government and civil society and as a bridge between the domestic and international human rights system.  Their job is not to represent specific interests in society, but to take an independent and objective view.  Most are statutory bodies with mandates and powers to monitor human rights and to advise government and a number have complaints-handling and enforcement powers.  ‘A’ status NHRI’s enjoy speaking rights at the Human Rights Council and increasingly enjoy special status among treaty-monitoring bodies.   Those frameworks under Article 33.2 which do not include NHRI’s therefore lack a number of the vital components necessary to effectively promote, protect and monitor implementation.

Article 33.2 was drafted so as to promote both their formal recognition as ‘independent mechanisms’ in those States where they already exist, as well as their establishment in those States where they do not.  The innovative approach in Article 33 – unique amongst human rights treaties – was not simply to the ends of implementing UNCRPD.   It was also intended to stimulate the formal recognition and further development of NHRI’s more generally.

In failing to query the designation of CERMI and the exclusion of Spain’s NHRI, the Committee has elected to neither recognise or to promote the specific status or role for NHRI’s.  Doing so will allow States to marginalise them – as in Spain – or to fail to establish them in order to meet the obligations under 33.2.  The decision has elevated bodies which by their very nature cannot be considered ‘independent’ to the status of ‘independent mechanism’ and in doing so will create worldwide demand from DPO’s to enjoy equivalent status.

Some disability activists will view this as a victory.  I predict that the decision of the Committee, if it stands uncorrected or unexplained, may have just dealt implementation of the Convention – and human rights treaties more generally – a serious blow.