Abstract
Articles 34–36 of the CRPD set up an international mechanism on monitoring the implementation of the Convention. Although there were innovative proposals during the preparatory works, the mechanism that has been put in place and which is mandatory to all Contracting Parties is very simple. It does not substantially differ from the model of “self reporting” by national governments to an ad hoc treaty body provided by the earlier UN human rights treaties. The system is complemented by further procedures laid down in the OP-CRPD, which is, however, a distinct treaty (and is therefore discussed in another chapter of this Commentary). Articles 34–36 of the CRPD provide the general legal framework regarding state obligations on reporting, and the competences of the CRPD Committee to review the reports and make recommendations to Contracting Parties. The expected result is supporting implementation of the rights of disabled persons at the state national level, and preventing non-compliance by Contracting Parties. Like the other human rights treaty bodies, the CRPD Committee cannot impose further legal obligations upon States Parties. This does not mean that its recommendations remain ineffective. The effectiveness of the procedure is enhanced by the relevant CRPD Committee’s RP, “Working Methods” and adopted guidelines, which have embedded some progressive practices (for example, when a given question needs to be considered by the CRPD Committee as a matter of urgency), and to which States Parties generally conform, on a voluntary basis.
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Notes
- 1.
See Optional Protocol to the Convention on the Rights of Persons with Disabilities, in this Commentary.
- 2.
The ICCPR and the first Optional Protocol, which supplements the ICCPR monitoring system by providing for an individual communication procedure, were adopted by the UNGA, as a whole, through Resolution 2200A (XXI) of December 16, 1966.
- 3.
The Ad Hoc Committee was established by the UNGA through Resolution No. 56/168 of December 19, 2001. It held eight sessions (July 29-August 9, 2002; June 16–27, 2003; May 24–June 4, 2004; August 23–September 3, 2004; January 24–February 4, 2005; August 1–12, 2005; and January 16-February 3, 2006). At its second session, the Ad Hoc Committee established a Working Group, composed of representatives of States, NGOs, and a national human rights institution, which met from 5 to 16 January 2004 and prepared a draft text of the convention, as a basis for state negotiations. Documents on the work of the Ad Hoc Committee and the Working Group are published at http://www.un.org/esa/socdev/enable/rights/adhoccom.htm. Accessed June 25, 2015.
- 4.
A comprehensive review of the UN treaty body system had started with three reports authored, between 1988 and 1995, by Philip Alston, as Independent Expert appointed by the SG. On this early initiative, and further steps for reform, from and outside the UN system, see O’Flaherty (2010), especially pp. 322–327, and Egan (2013), pp. 210–214. On outcomes, see UNGA Resolution 68/268, of April 9, 2014, “Strengthening and enhancing the effective functioning of the human rights treaty body system.”
- 5.
Stein and Lord (2010), p. 690.
- 6.
Cf. “Informal Briefing on the Ad Hoc Committee”, June 26, 2002, United Nations, New York, “Síntesis Executiva de los debates de la Reunión de expertos” (available only in Spanish, at http://www.un.org/esa/socdev/enable/rights/adhocinfbrief3.htm. Accessed May 18, 2015). On the individual claim procedure set out in the OP-CEDAW, see Connors (2012), pp. 619–659.
- 7.
Cf. “Seminar of Quito”, in Ad Hoc Committee, New York, 16–17 June 2003, “Compilation of Proposals for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities”, http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp13.htm. Accessed May 19, 2015.
- 8.
Cf. draft Article 20, in Ad Hoc Committee, New York, 29 July–9 August 2002, “Working paper by Mexico”, Articles 20–24, A/AC.265/WP.1, http://www.un.org/esa/socdev/enable/rights/adhocmeetaac265w1e.htm. Accessed May 19, 2015.
- 9.
Cf. Ad Hoc Committee, New York, 16–17 June 2003, “Views submitted by Governments, intergovernmental organizations and United Nations bodies concerning a comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities,” A/AC.265/2003/4+A/AC.265/2003/4/Corr.1, para. 29, http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_4e.htm. Accessed May 19, 2015.
- 10.
Ibid., para. 30.
- 11.
Ibid., paras. 36 and 37. The “Standard Rules” were adopted by the UNGA through Resolution 48/96 of December 20, 1993.
- 12.
Ad Hoc Committee, New York, 16–17 June 2003, “Views submitted by Governments, intergovernmental organizations and United Nations bodies concerning a comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities,” cit., para. 40. On the topic of the soft law instruments that have been adopted over the years to protect the rights of disabled persons, see Kayess and French (2008), pp. 14–17.
- 13.
See Ad Hoc Committee, New York, 29 July–9 August 2002, “Position paper by the European Union”, A/AC.265/WP.2, http://www.un.org/esa/socdev/enable/rights/adhocmeetaac265w2e.htm. Accessed May 19, 2015. See also Ad Hoc Committee, New York, 16–27 June 2003, “European Union – Elements for an international convention” A/AC.265/2003/CRP.13/Add.2, http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp13_add2.htm. Accessed May 19, 2015.
- 14.
Ad Hoc Committee, “Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities”, “Draft Elements on Implementation”, 24 December 2003, http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair2.htm. Accessed May 19, 2015.
- 15.
Influential was, among others, the so-called Bangkok Draft. Cf. “Regional Workshop towards a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 14-17 October 2003, Bangkok, Thailand,” http://www.un.org/esa/socdev/enable/rights/bangkokdraft.htm#part5. Accessed May 19, 2015.
- 16.
See Ad Hoc Committee, “Compilation of proposals for elements of a Convention,” 5 January 2004, Part VII. Monitoring Mechanisms, http://www.un.org/esa/socdev/enable/rights/comp-element7.htm. Accessed May 19, 2015.
- 17.
See Article 33 [National Implementation and Monitoring] in this Commentary.
- 18.
“Report of the Working Group to the Ad Hoc Committee”, Annex I, “Draft articles for a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities”, A/AC.265/2004/WG/1, fn. 112, http://www.un.org/esa/socdev/enable/rights/ahcwgreport.htm. Accessed May 19, 2015.
- 19.
Cf. Stein and Lord (2010), p. 693 and fn. 14.
- 20.
See Annex II to “Interim Report of the Ad Hoc Committee on its Eighth session”, A/AC.265/2006/4, September 1, 2006, http://www.un.org/esa/socdev/enable/rights/ahc8intreporte.htm. Accessed May 19, 2015. See also “Final Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities”, A/61/611, December 6, 2006, https://treaties.un.org/doc/source/docs/A_61_611_E.pdf. Accessed May 19, 2015.
- 21.
A/RES/61/106, January 24, 2007.
- 22.
As at July 13, 2015, there were 157 Contracting Parties to the CRPD (https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en) and 87 Contracting Parties to the OP-CRPD (https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15-a&chapter=4&lang=en).
- 23.
See infra, para. 2.2.
- 24.
See Article 45 [Entry into Force] in this Commentary.
- 25.
Amendment to Article 43, para. 2, of the CRC was adopted by the COP on December 12, 1995, and approved by the UNGA on December 21, 1995. It has entered into force on November 18, 2002. Cf. UNTS, vol. 2199, p. 210.
- 26.
Cf. CRC, Article 43, para. 2, and ICMW, Article 72, para. 1(b).
- 27.
See Article 4 [General Obligations] in this Commentary.
- 28.
Cf. CPED, Article 26.
- 29.
Cf. “Chair’s Draft Elements”, Article 30 bis; “Bangkok Draft”, Article 37. See also Bruce (2009), pp. 137–138. Currently, the most part of the CRPD Committee members are persons with disabilities.
- 30.
States Parties to the CRPD meet regularly in order to consider any matter with regard to the CRPD’s implementation. See Article 40 [Conference of States Parties] in this Commentary.
- 31.
Cf. “Report of the Committee on the Rights of Persons with Disabilities on its first session. Geneva, 23-27 February 2009”, CRPD/C/1/2, October 8, 2009, p. 3, paras. 7–8, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2f1%2f2&Lang=en. Accessed May 21, 2015.
- 32.
See “Membership of the Committee on the Rights of Persons with Disabilities and terms of office”, Annex II to “Report of the Committee on the Rights of Persons with Disabilities on its first session. Geneva, 23-27 February 2009”, cit.
- 33.
“Report of the Committee on the Rights of Persons with Disabilities on its fourth session, 4-8 October 2010”, CRPD/C/4/3, March 7, 2012, p. 3, paras. 7–8, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2f4%2f3&Lang=en. Accessed May 22, 2015.
- 34.
“Report of the Committee on the Rights of Persons with Disabilities on its third session. Geneva, 22-26 February 2010”, CRPD/C/3/2, March 7, 2011, p. 4, paras. 7–8, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/414/37/PDF/G1141437.pdf?OpenElement. Accessed May 21, 2015.
- 35.
Cf. CRPD/C/1, June 5, 2014, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/042/41/PDF/G1404241.pdf?OpenElement. Accessed May 21, 2015.
- 36.
Cf. Ad Hoc Committee, “Chair’s Draft Elements”, cit., Article 33.
- 37.
These officers are elected for a term of 2 years and are eligible for reelection, provided that the principle of rotation is upheld (Rule 18).
- 38.
Rule 18, para. 2, states that “In exercising her or his functions, the Chairperson shall remain under the authority of the Committee.” The chairperson has the power of, inter alia, convening special sessions (Rule 2), declaring the opening and closing of sessions, directing the discussion, ensuring observance of the rules of procedure, putting a question to the vote, announcing decisions, and so on (Rule 33).
- 39.
If a vote is equally divided on matters other than officer’s elections, the proposal is regarded as rejected (Rules 34 and 36).
- 40.
See Article 41 [Depositary] in this Commentary.
- 41.
“Guidelines on the independence and impartiality of members of the human rights treaty bodies”, A/67/222/21887, Annex I, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=A/67/222_&Lang=en. Accessed June 25, 2015. See also Truscan (2012). The CRPD Committee has adopted the “Addis Ababa Guidelines” at its eighth session and has included them as an integral part of its RP. Cf. “Report of the Committee on the Rights of Persons with Disabilities on its eight session, 17-28 September 2012”, CRPD/C/8/2, May 29, 2013, Annex III, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2f8%2f2&Lang=en. Accessed May 25, 2015.
- 42.
Ad Hoc Committee, Documents of the Eight Session, Intersessional Documents, “Report by the United Nations Special Rapporteur on Disability on the Question of Monitoring”, p. 7, para. 3.3, http://www.un.org/esa/socdev/enable/rights/ahc8documents.htm. Accessed May 25, 2015.
- 43.
See Ulfstein (2012), p. 80.
- 44.
“I solemnly declare that I will perform my duties and exercise my powers as a member of the Committee on the Rights of Persons with Disabilities honourably, faithfully, impartially and conscientiously” (Rule 14).
- 45.
Cf.: ICCPR, Article 32, para. 1; ICERD, Article 8, para. 5 (a); CEDAW Article 17, para. 5; CAT, Article 17, para. 5; CRC, Article 42, para. 6.
- 46.
Boerefijn (2012), p. 479.
- 47.
- 48.
ICERD, Article 8, para. 5 (b); CEDAW Article 17, para. 7; CRC, Article 42, para. 7.
- 49.
CAT, Article 17, para. 6; CPED, Article 26, para. 5.
- 50.
Rule 43 of the CRPD Committee RP.
- 51.
Rule 60.
- 52.
Cf. “Proposed Criteria to Safeguard the Independence of Treaty Body Members”, in Truscan (2012), p. 17. The “Addis Ababa Guidelines” set out standards to avoid any “real or perceived” conflict of interest of treaty body members: cf. “Guidelines on the independence and impartiality of members of the human rights treaty bodies”, cit., pp. 2–3.
- 53.
Convention on the Privileges and Immunities of the UN, February 13, 1946, Sections 22–23. In: UNTS, vol. 1, pp. 26–28.
- 54.
Cf. Keller and Ulfstein (2012), pp. 2 et seqq.
- 55.
Cf. Tomuschat (2014), pp. 271–276.
- 56.
Keller and Ulfstein (2012).
- 57.
Based on its competence of making and including in its reports to the GA and the ECOSOC “suggestions and general recommendations” (see Article 39 [Report of the Committee] in this Commentary), the CRPD Committee has so far adopted three “general comments” in accordance with Rule 47 of its RP (“The Committee may prepare general comments based on the articles and provisions of the Convention, with a view to promoting its further implementation and assisting States Parties in fulfilling their reporting obligations”).
- 58.
- 59.
See Article 37 [Cooperation Between States Parties and the Committee] in this Commentary.
- 60.
Article 26 of the Vienna Convention on the Law of Treaties (May 23, 1969) reads: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” In: UNTS, Vol. 1155, p. 339.
- 61.
See Article 38 [Relationship of the Committee with Other Bodies] in this Commentary.
- 62.
See infra, para. 3.2.
- 63.
See Optional Protocol to the Convention on the Rights of Persons with Disabilities, in this Commentary.
- 64.
Cf. Broecker (2014), p. 3.
- 65.
Cf.: ICCPR, Article 40; ICESCR, Article 16; CAT, Article 19; ICERD, Article 9; CEDAW, Article 19; CRC, Article 44; ICRMW, Article 73; CPED, Article 29.
- 66.
Kälin (2012), pp. 16–17.
- 67.
One consequence of self-reporting is that States are deemed, ironically, to have accomplished their obligations once they submitted their reports, and this without paying sufficient attention to the capacity of the measures they have taken to effectively ensure respect for human rights within their country. Cf. Stein and Lord (2010), pp. 703–704.
- 68.
Cf. Tomuschat (2014), p. 224.
- 69.
Cf. Bruce (2009), pp. 141–142.
- 70.
Cf. Kälin (2012), p. 22.
- 71.
In practice, many States have established independent mechanisms for ensuring national implementation and monitoring of human rights treaties, including the CRPD. Cf. Pavone (2010), pp. 469–470.
- 72.
A precedent for Article 35, para. 3, of the CRPD is found, however, in Article 73, para. 3, of the ICMW.
- 73.
“Guidelines on treaty-specific document to be submitted by states parties under Article 35, paragraph 1, of the CRPD”, CRPD/C/2/3, November 18, 2009, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD/C/2/3&Lang=en. Accessed May 15, 2015.
- 74.
“Compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties”, HRI/GEN/2/Rev.5, May 29, 2008, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=HRI%2FGEN%2F2%2FRev.5&Lang=en. Accessed May 15, 2015. See also HRI/GEN/2/Rev.6, June 3, 2009, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=HRI%2fGEN%2f2%2fRev.6_&Lang=en. Accessed May 15, 2015.
- 75.
Kälin (2012), pp. 17–19.
- 76.
CRPD Committee, “Guidelines on treaty-specific document”, cit., pp. 7–20. As for the length, initial reports should be of no more than 60 pages and periodic reports of no more than 40 pages (ibid., pp. 3–4).
- 77.
Ibid., p. 4.
- 78.
Ibid., p. 5.
- 79.
Ibid.
- 80.
Cf. Crawford (2000), pp. 4 et seqq.
- 81.
Rule 48 ter provides that “The Committee shall offer to States parties the possibility of submitting their periodic reports under a simplified reporting procedure.”
- 82.
- 83.
UNGA Resolution No. 68/268, April 21, 2014, cit., paras. 1 and 2.
- 84.
See Egan (2013), p. 212.
- 85.
CRPD Committee, “Working methods of the Committee on the rights of persons with disabilities adopted at its fifth session (11-15 April 2011)”, CRPD/C/5/4, September 2, 2011, http://www.ohchr.org/Documents/HRBodies/CRPD/CRPD-C-5-4_en.doc. Accessed May 25, 2015.
- 86.
Cf. “Report of the Committee on the Rights of Persons with Disabilities on its fifth session, 11-15 April 2011”, CRPD/C/5/5, April 5, 2012. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2f5%2f3%2fCORR.1&Lang=en. Accessed May 25, 2015.
- 87.
CRPD Committee, “Working methods”, cit., I, p. 3, E.
- 88.
Rule 5 of the Committee RP. “LOIs” are published on the CRPD Committee website, at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=18. Accessed May 15, 2015.
- 89.
CRPD Committee, “Working Methods”, cit., I, p. 3, F.
- 90.
Rule 48 bis of the Committee RP.
- 91.
Cf. CRPD Committee, “Working Methods”, cit., II. “Relationship with other organizations and agencies for the completion of the work of the Committee”, pp. 5–7.
- 92.
CRC, Article 45 (a).
- 93.
Cf. “Report of the Committee on the Rights of Persons with Disabilities on its eleventh session (31 March-11 April 2014)”, CRPD/C/11/2, 14 May 2014, Annex II, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2f11%2f2&Lang=en. Accessed May 15, 2015.
- 94.
Such information may be submitted at various stages of the reviewing process, that is, (a) before or after the submission of a report by a State Party, (b) before the adoption of a LOI by the Committee, (c) after the reporting State has submitted its replies to the Committee and before the “constructive dialogue” with this State or within the framework of the “simplified procedure,” (d) before the Committee adopts a LOI to be submitted to the reporting State. Ibid., p. 9, para. 5.
- 95.
Ibid., pp. 11, paras. 14–19. At the CRPD Committee 13th session (25 March–17 April 2015), nine alternative reports were submitted by civil society organizations, seven of which are about the CRPD’s implementation in Europe. Cf. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=982&Lang=en. Accessed June 12, 2015.
- 96.
Cf. “Report of the Committee on the Rights of Persons with Disabilities on its fifth session, 11-15 April 2011”, cit., Annex II.
- 97.
In accordance with Rule 40 of the CRPD Committee RP, the SG notifies in advance the Committee, at each of its sessions, of all cases of non-submission of reports, and the Committee makes any effort for encouraging the submission of the report, “in a spirit of dialogue” with the State concerned.
- 98.
Cf. Bruce (2009), p. 141.
- 99.
Cf. Kälin (2012), p. 31.
- 100.
CRPD Committee, “Working Methods”, cit., I, p. 3, G.
- 101.
Ibid., pp. 9–10, V, A.
- 102.
Ibid., I, p. 4, H. The “concluding observations” are published at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=5. Accessed May 13, 2015.
- 103.
Cf. “Report of the Committee on the Rights of Persons with Disabilities on its tenth session, 2-13 September 2013”, CRPD/C/10/2, May 13, 2014, Annex II, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2f10%2f2&Lang=en. Accessed May 13, 2015.
- 104.
Cf. “Report of the Committee on the Rights of Persons with Disabilities on its twelfth session (15 September-3 October 2014)”, CRPD/C/12/2, November 5, 2014, p. 5, para. 25, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2f12%2f2&Lang=en. Accessed May 13, 2015.
- 105.
Cf. CRPD, “13 Session (25 March 2015–17 April 2015)”, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=982&Lang=en. Accessed July 6, 2015.
- 106.
Cf. Kanter (2015), pp. 10–11.
- 107.
See Mégret (2008), p. 506.
- 108.
Cf. “Report of the CRPD Committee on its twelfth session (15 September-3 October 2014)”, cit., Annex II, pp. 9–10.
- 109.
See Schmidt (2009), pp. 25–26.
- 110.
CRPD Committee, “Working Methods”, cit., I, p. 4, paras. 19 and 20.
- 111.
CRPD Committee, “Guidelines on the procedure for follow up”, cit., p. 9, para. 2.
- 112.
CRPD Committee, “Working Methods”, cit., p. 4, paras. 20 and 21.
- 113.
CRPD Committee, “Guidelines on the procedure for follow up”, cit., pp. 9–10, para. 4.
- 114.
CERD Committee, “Guidelines for the Early Warning and Urgent Action Procedures”, Annual Report A/62/18, Annexes, Chapter III, p. 2, para. 7, http://www.ohchr.org/EN/HRBodies/CERD/Pages/EarlyWarningProcedure.aspx#about. Accessed June 22, 2015.
- 115.
Cf. Shirane (2011), pp. 20–22, 36.
- 116.
CPED, Article 30, para. 1.
- 117.
CRPD Committee, “Working Methods”, cit., I, K, p. 5, para. 26.
- 118.
Ibid., para. 27.
- 119.
Ibid., loc. cit.
- 120.
Cf. Rule 54 of the Committee RP.
- 121.
CRPD Committee, “Working Methods”, cit., I, K, p. 5, para 27.
- 122.
Ibid., paras. 27–28.
- 123.
Ibid., para. 29.
- 124.
“The Committee … (f) Took note of the decision of the Working Group on Communications and Inquiries to discontinue the consideration of the first submission registered under the Committee’s early warning and urgent action procedures, in view of the information provided by the State party concerned.” “Report of the Committee on the Rights of Persons with Disabilities on its tenth session, 2-13 September 2013”, cit., p. 4, para. 10. On the Working Group on Communications and Inquiries, see further ‘Optional Protocol to the Convention on the Rights of Persons with Disabilities’, in this Commentary.
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Ferrajolo, O. (2017). Article 34 [Committee on the Rights of Persons with Disabilities] Article 35 [Reports by States Parties] Article 36 [Consideration of Reports]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_38
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