The Paris Principles and Article 33.2 CRPD

By Meredith Raley

One of the most important innovations in the Convention on the Rights of Persons with Disabilities (CRDP) is Article 33.  As explained in a previous post see here, Article 33 is a unique attempt to improve the process of implementing the CRPD and quickly and fully realising the rights it contains.  Within Article 33, one of the most important provisions is 33.2, which requires an independent monitoring mechanism.  Specifically, it requires the state to designate or establish ‘a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention.’ In establishing this framework, the state is required to ‘take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.’  The principles referenced in article 33.2 are the ‘Principles Relating to the Status of National Institutions’ more commonly known as the Paris Principles. See here. 

The Paris Principles were written in 1991 at the first International Workshop on Institutions for the Promotion and Protection of Human Rights, and later adopted by the United Nations General Assembly. Generally, these principles are the guidelines that states are expected to follow when establishing and maintaining a National Human Rights Institution (NHRI). NHRIs are national level bodies created to promote and monitor human rights within their state.  These bodies can, among other things, advise the government, promote implementation of human rights on a domestic level, and contribute to state reports to the various UN treaty bodies. Since the Paris Principles were adopted by the General Assembly in 1991, the UN has encouraged the creation of NHRIs around the world.  Because of this work, the number of NHRIs, and the negotiation of the CRPD was the first UN human rights treaty where NHRIs had both a significant voice, and were considered in the drafting of the treaty. The NHRIs were among those who campaigned for the novel monitoring mechanism of 33.2.  However, 33.2 does not specifically state that the independent mechanism must be a NHRI, only that it must follow the Paris Principles insofar as they relate to independence.  Therefore, it is worth looking at exactly what the principles say in this regard.

Despite their importance, the Paris Principles are short (4 pages in PDF format), and only contain 2 specific requirements to ensure independence.  First the institution must be provided with the necessary infrastructure to run smoothly, particularly adequate funding.  An institution should have enough funding to afford its own staff and premises, both separate from government institutions.  Second, members of the institution should be appointed by an official act that gives their appointment a specific duration. This ensures that a member’s appointment is stable, and government interference in the actions of members is less likely. In addition to these two requirements, other parts of the Principles touch on the idea of independence.  Most importantly, institutions must have their mandate, composition and responsibilities clearly laid out either in a legislative or constitutional text.  This is important for the independence of the organisation, because the better established its mandate, the less able the government is to change or challenge that mandate.

These are the standards an institution must meet if it is to fulfill the ‘independence’ requirement of article 33.2.  The next question is whether it is possible for an organisation that is not a NHRI to meet these requirements, and so fulfill the article.  This is important because not all states have NHRIs, and even among those that do, some states, such as Spain, have chosen to appoint bodies other than NHRIs as the monitoring body.  See here.  Furthermore, nowhere in article 33.2 is it explicitly stated that the independent body must be a NHRI, only that it must conform to the same standard of independence.  There is nothing about the requirements for independence stated above that prevents them from being applied to bodies or organisations other than NHRIs.  Indeed, for states that do not currently have NHRIs, this may be the best option, as the process of setting up a full NHRI is often long and complex.

One reason full NHRIs are preferred over other bodies--even if those bodies meet the independence requirements of the Paris Principles--is the International Coordination Committee.  See here.  This is an international body, established under the Office of the High Commissioner for Human Rights (OHCHR) that coordinates activity between NHRI and, importantly for Article 33.2, accredits these institutions.  This provides a layer of oversight completely independent of the NHRI’s government, and helps to ensure that a level of independence is maintained. (A list of currently accredited NHRIs can be found here).

Certainly Article 33.2 was drafting with NHRIs in mind, and these institutions are the gold standard for independent monitoring bodies.  However, judging by the Committee on the Rights of Persons with Disabilities response to Spain’s appointment of an NGO (CERMI), organisations other than NHRI are acceptable under the terms of 33.2.  As implementation moves forward and more 33.2 bodies are appointed, it will be important to monitor their progress to find the best way to apply the unique provisions of 33.2.

Canadian Human Rights Commission Survey on Article 33.2 of the Convention on the Rights of Persons with Disabilities

Article 33.2 of the Convention on the Rights of Persons with Disabilities requires State Parties to the Convention to implement a “... framework...to promote, protect and monitor implementation.”  Within the “framework” a number of governmental and civil society entities may be connected.  In addition the CRPD requires that there be “…one or more independent mechanisms…” involved in the process.  In creating the framework, states are to take into account the Principles Relating to the Status of National Institutions (the Paris Principles) adopted by the UN General Assembly in 1993.  For an accessible and instructive introduction to Article 33 see Meredith Railey’s blog post here.

The Canadian Human Rights Commission has recently carried out a survey on behalf of the International Coordinating Committee of National Institutions for the Promotion and Protections of Human Rights (ICC) and with the assistance of the Office of the High Commissioner for Human Rights.  See here.  The decision to undertake this survey followed a meeting of the National Human Rights Institutions attending the Third Conference of States Parties to the CRPD in September 2010 in New York.  It was agreed that it would be timely to survey National Institutions on their experience to date regarding implementation of Article 33.2.  In December 2010 the Chair of the ICC sent a questionnaire to all accredited members of the ICC and a follow-up email was sent in February 2011.  Forty-five percent of A Status NHRIs (35) responded and this data is now available in this Report.  See here. 

This is an extremely important initiative and provides interesting information that can inform debates around the world as to the different approaches that can be taken in developing a framework to promote, protect and monitor implementation of the Convention.  Importantly the CRPD does not require states to name existing Paris Principle compliant National Human Rights Institutions to be the independent mechanism.  The Convention only requires that in establishing these mechanisms that the Paris Principles be taken into account. 

Article 33: Bridging the Gap Between Domestic and International Law

by Meredith Raley

The United Nations Conventions on the Rights of Persons with Disabilities (CRPD) is a milestone achievement for human rights in many ways. In addition to the many important substantive rights it guarantees, such as the right to education, independent living and health, the convention also contains important procedural innovations that will encourage its implementation. One of the biggest obstacles to realising the rights laid out in all UN human rights conventions has always been the difficulty of translating international treaties into domestic law, or implementation. Historically, this process has been slow and uneven, even for treaties that are widely ratified. In an effort to prevent the same problems from befalling the current convention, the CRPD includesArticle 33 which is an attempt to bridge the gap between international and domestic law, with the goal of fuller and faster implementation of the rights enshrined the Convention.

Article 33 requires state parties to the CRPD to set up a framework to guide and monitor the implementation of the Convention. It also requires that civil society be involved in the implementation process. The framework required by Article 33 is divided broadly into three parts: The focal point, the coordination mechanism, and the monitoring mechanism. Article 33.1 requires states to ‘designate one or more focal points within government for matters relating to the implementation of the present Convention’. This focal point will be the government body responsible for overseeing the implementation of the CRPD. The purpose of a focal point is not to make a single government body solely responsible for ensuring that all domestic laws and regulations conform to the CRPD, as the convention is wide-ranging and covers areas that are the responsibly of many different ministries, branches, and levels of government. Rather, by focusing responsibility for overseeing the implementation process with a single body, Article 33.1 ensures that someone within government is always focused on the implementation process, and can encourage action to bring national laws in line with treaty obligations. This way, the complex problem of implementation is not simply ignored, postponed, or constantly assumed to be the responsibly of a different party. The article also allows for multiple focal points, largely to accommodate federal systems that have multiple levels of government responsible for different parts of implementation.

Article 33.1 also asks state parties to ‘give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels’. As mentioned, full implementation of the CRPD will require action from many different sectors of government, and for many state parties, action at multiple levels of government will also be necessary. For this reason, states are encouraged--but not required--to designate a coordination mechanism, which will be responsible for harmonising actions across all levels of government. The necessity of this part of the framework depends largely on a state party’s legal system.

While 33.1 is about the governmental side of implementation, 33.2 addresses the need for independent monitoring. In order to ‘promote, protect, and monitor’ implementation of the CRPD, state parties must establish or designate ‘a framework, including one or more independent mechanisms’. For many states, it is expect that this framework will include their National Human Rights Institution (NHRI). See here. For most states that have a NHRI, it typically takes the form of a Human Rights Commission, such as the New Zealand Human Rights Commission (see here) or an Ombudsman, such as Sweden’s Equal Opportunities Ombudsman (see here). NHRIs such as these are established under the Paris Principles (see here), a set of guidelines that ensure a NHRI remains independent of government and so can effectively monitor the human rights within its country. The Paris Principles are referenced within Article 33.2, which states that when establishing a monitoring body under 33.2 ‘States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.’ This means that even states that do not have and do not plan to establish a NHRI must take the Principles into account in order to establish a mechanism that fulfills 33.2. The monitoring mechanism helps the process of implementation by providing oversight, ensuring that implementation is not postponed, and that the rights in the CRPD are properly and fully implemented. The monitoring process must also, according to 33.3, fully involve civil society.

The goal of Article 33 is to correct one of the longest-standing problems in human rights law: how to translate international treaties into domestic law. There are certain assumptions about why states fail to implement treaties built into this article. It assumes that a states fail to implement treaties not out of malice, but instead because implementation is continuously postponed, or poorly managed, or it is not clear who is responsible for the implementation process. Hopefully, for the CRPD, many of these problems can be avoided, and full implementation will be achieved more quickly and easily than it has been in the past.