Thursday, November 24, 2011

Spain and Article 33.2 of the CRPD

by Meredith Raley

As has been explained previously on this blog (see here), Article 33.2 of the Convention on the Rights of Persons with Disabilities requires state parties to appoint an independent mechanism to promote, protect and monitor progress on the implementation of the Convention.  As we have also covered, the gold standard for an independent mechanism is an National Human Rights Institution (NHRI), as these institutions must meet the requirements for independence set out in the Paris Principles.  For this reason, it was generally expected that states with A status NHRIs would be appointed those institutions as the independent section of their Article 33.2 framework.  Internationally, a clear trend in this direction has already been established, with most countries that have a NHRI appointed it as the independent (if not sole) part of the 33.2 framework.  See here.

For these reasons, the results of Spain’s review by the Committee on the Rights of Persons with Disabilities came as a surprise to many observers.  Spain, at the time, appeared to be one of the few countries that had followed an alternate route on 33.2, appointing the NGO CERMI as the main monitoring body, rather than Spain’s own A status Ombudsman.  Many parties hoped that the review of Spain by the Committee would clarify the position of the Committee as far as the role of NHRIs in Article 33 was concerned.  Given this hope, there was some concern when the concluding observations on Article 33.2 read, in their entirety ‘The Committee commends the State party for establishing independent monitoring mechanisms in full compliance with article 33, paragraph 2, of the Convention’.  For several weeks, it was unclear exactly what had occurred during Spain’s review by the Committee. Many observers and commenters worried that if the Committee had approved of an article 33.2 framework consisting solely of an NGO, it would weaken the independence requirement of the Article.  This concern was addressed on this blog previously.  

Since then, the exact events of Spain’s time before the Committee have become clearer.  See here.  Apparently, during or shortly before their appearance before the Committee, Spain decided that their Article 33.2 framework would not meet the independence requirement, and added their ombudsman to a framework already containing the NGO CERMI.  This, clearly, create a framework that met all of the requirements of Article 33.2, in that it was able to both promote, protect, and monitor the Convention, and was suitably independent.  This change, however, while communicated immediately to the Committee, was not publicly announced until some time later.  This fact, combined with the brief treatment of the issue in the concluding remarks, led to much of the speculation that followed.

As far as the interpretation of Article 33.2 is concerned, this incident shows that there is a strong feeling among many working in disability rights that only NHRIs can meet the requirements for independence set out in the article.  It also shows that, at least at this point, the Committee on the Rights of Persons with Disabilities has done nothing to suggest that it disagrees with this interpretation of the article.  The incident also highlights the need for the review process to be as transparent as possible, as well as the importance of the Committee making clear statements about how it intends to interpret various articles of the Convention.  At the moment, given that the Committee on the Rights of Persons with Disabilities is still fairly new and due to a limited budget has somewhat limited meeting time, the Committee has not been able to issue general comments that will clarify its interpretation of the Convention.  With only two state parties examined so far, there is also little in the way of precedent for observers to turn to when they wish to clarify the Committees actions.  Both of these factors may have contributed to the confusion around Spain’s article 33.2 framework, and it is to be hoped that as the Committee builds up a larger body of work, incidents such as this will become less frequent.