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.