DREAM ITN
Final Deliverable
Magdolna Birtha
Centre for Disability, Law and Policy, University of Ireland, Galway
Supervisor: Professor Gerard Quinn
DREAM work package: Monitoring: European & National monitoring of the
UN CRPD
April, 2015
1 1.
Introduction to My Topic and Research Questions.
The centre of gravity of the research was to explore the challenges in implementing
Article 33 of the UN Convention on the Rights of Persons with Disabilities (hereafter
CRPD or the Convention) in a Treaty compliant way and to establish a sustainable,
independent monitoring framework with the involvement of the representative
organisations of persons with disabilities at both National and European level.
Besides the 25 EU Member States that ratified the CRPD, the European Union for the
first time in its history has also become party to an international human rights treaty
by ratifying the Convention on 23 December 2010. The formal commitment to
promote and protect the rights of persons with disabilities and remove longstanding
barriers from their full social inclusion presents an important milestone in the history
of the EU. Therefore, it is very important to ensure the ratification will result in real
positive changes in the lives of persons with disabilities living in the European Union.
The work package on monitoring the CRPD at National and EU level had
three main objectives. First of all, it intended to gain a deep understanding of the
importance of independent monitoring. Secondly, the project aimed to develop
insights into how independent monitoring can be best achieved at EU level and within
the Member States. Thirdly, the project wants to make practicable recommendations
for effective and independent monitoring at EU and Member State level.
Article 33 of the CRPD is arguably the most comprehensive provision on
national level implementation and monitoring ever included in an international human
rights treaty.1 Article 33 requires States Parties to designate one or more focal points
within government for matters relating to the implementation of the CRPD and to
coordinate the implementation across and within different departments. Furthermore,
partly due to the emergence of National Human Rights Institutions (NHRI) and partly
to correct past faults in implementing international human rights treaties effectively,
there is an explicit role given to NHRIs to participate in the work of the monitoring
framework as the independent element. Their knowledge and experience in promoting
1 The only partially comparable example to Article 33 of the CRPD could be Article 3 of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), which requires states parties to designate or maintain a ‘national preventive mechanism’ (NPM). 2 and protecting human rights will be an essential addition to the successful
implementation of the Convention. The third element of the triangulation makes
Article 33 truly innovative, by involving in the monitoring process the voice of civil
society and in particular persons with disabilities. I fully agree with Professor Gerard
Quinn, that the triangulation of Article 33 is the engine room of the Convention that
will bring the social model of disability right to the power. Effective monitoring is
therefore one of the most important prerequisites to ensure the CRPD becomes a tool
to reflect the paradigm shift in all government policies and to change the attitudes of
the society as well.
It has been realized since the early stages of the research that the successful
implementation of Article 33 requires complex changes in the working methods of the
government, National Human Rights Institutions (NHRI) and Disabled People’s
Organisations (DPO) as well as building up strong partnerships among them. The
research had its main focus on the process of creating a self-sustaining triangular
mechanism to promote, protect and monitor the implementation of the Convention by
collecting promising international practices. The research intended to find answers to
two main problematic. On one hand, while States Parties are in the process to
establish their monitoring mechanisms, the current knowledge is very limited on what
makes the Article 33 framework work? Therefore, the research was seeking for the
necessary requirements that will ensure the sustainability and effective operations of
the monitoring framework both at EU and at the Member States level. Secondly, the
CRPD requires the involvement and full participation of persons with disabilities and
their representative organisations in the monitoring framework, however the critical
success factors of effective involvement are not yet defined. Persons with disabilities
have been excluded from the society for a long-time therefore it is a great challenge to
remove all longstanding barriers. The research builds on the grass-root level, and
explores the current level of involvement from the perspective of disabled people’s
organisations. Furthermore, it describes the ideal level of involvement based on what
would satisfy persons with disabilities.
The research provides recommendations to the EU and Member States on the
necessary requirements to fill these new spaces and thus improve the implementation
of the CRPD considerably. The research had been carried out along two main parallel
3 streams: on one hand, researching for promising inclusive and independent practices
at the National level and on the other hand, following closely the process of
designating an EU level monitoring framework. Given the specificity of the European
Union’s institutional structure and legal order as a regional integration organisation,
the establishment of an effective monitoring mechanism at the EU level is facing
different challenges than single Member States. The present report will discuss the
findings from both the National and the European level.
- The gap between the myth (UN CRPD) and the reality.
Article 33 manifests that an important mission of the CRPD is to renew traditional
human rights monitoring and facilitate to plug the gap between international and
national human rights norms. During the drafting process of the CRPD, participants
perceived that previous UN Treaties failed to put effective monitoring framework in
place and were unable to ensure state compliance and to protect the human rights of
persons with disabilities. Therefore, States Parties had a strong willingness to learn
from past mistakes and establishing an innovative system. Effective monitoring must
ensure that States Parties fully implement the provisions of the Treaty and make
effective steps against human rights violations. The CRPD requires the full
involvement of the organisations of persons with disabilities during the monitoring
process. Furthermore, States Parties are required under Article 4(3) of the CRPD to
create a new space where the organisations of persons with disabilities can actively
participate in the development and implementation of laws and policies that affect
their lives.
Yet, the already published Concluding Observations of the UN CRPD
Committee clearly show, that most States Parties have not made sufficient efforts
neither to establish an independent monitoring framework, nor to involve the
representative organisations of persons with disabilities in a meaningful way in the
monitoring activities. Despite the CRPD provides solid and very innovative
provisions on the structure of the monitoring framework, States Parties have not
created yet fully CRPD compliant, sustainable, dynamic mechanisms in strong
collaboration with the disability movement. The research goes beyond looking solely
at the structure of the mechanisms and considers also the functioning and
4 sustainability. Presumably, both the States Parties and the EU underestimated the
extent and importance of these provisions of the CRPD at the time of ratification.
The reality is that in many cases monitoring frameworks are facing significant
challenges, due to the lack of independent mandate, guaranteed funding, or the lack of
resources and capacity to carry out all activities besides the preparation for the
reporting in front of the UN CRPD Committee. When it comes to the involvement of
the representative organisations of persons with disabilities, it is not only the
governance, but also Human Rights Commissions and Ombudsman offices that are
struggling with developing meaningful collaboration with disability organisations.
Furthermore, as the empirical data collection demonstrated, the disability movement
might also operate in a fragmented way and excludes the voices of the most
marginalized segments of the movement, such as persons with intellectual disabilities,
persons with psychosocial disabilities, or persons with profound disabilities.
In order to transfer the ambitious provisions of the CRPD into reality, deeprooted structural changes are necessary in the day-to-day operations of the governance
and NHRIs. The organisations of persons with disabilities should also obtain the
capacity and skills to provide the monitoring framework (and the policy and decisionmaking processes in general) with useful high-level contributions. In reality, only
very few States Parties have started to carry out those deliberate structural changes
and provide full accessibility and reasonable accommodation to persons with any kind
of disabilities. The CRPD envisages a clear understanding of the important role and
mandate of National Human Rights Institutions or similar bodies with a fully
independent status for the promotion and protection of human rights. Their
involvement in the monitoring framework should not be replaced, but complemented
with the active participation of disability organisations.
Presumably some States Parties have not immediately realized the difference
between tokenism and meaningful participation and the urging need to offer
transparent, accessible and effective forms of collaborations instead of maintaining
old consultative practices. It is very important to emphasise that the UN CRPD has a
strong mission to create an inclusive space for persons with disabilities and put in
effect independent monitoring frameworks accordingly.
5 2.
My Research Journey.
Based on the work package, the research initially was dealing solely with the
independent monitoring of the CRPD. It was soon realized that one of the key
challenges during monitoring – besides the involvement of the independent element in
the framework – is the participation of persons with disabilities and their
representative organisations. Therefore, the scope of the research was broadened to
cover the implementation of Article 4(3) of the Convention and research the
establishment of new, meaningful consultative methods in general. Article 33 of the
CRPD on national implementation and monitoring in fact complements and further
expands the scope of this new space between the government and civil society. It
requires the full involvement of persons with disabilities and their representative
organisations in the monitoring framework to the CRPD and thus opens a second
space between the independent monitoring mechanism and DPOs. The research then
commenced to have a more comprehensive focus on participation and look at the
triangular Article 33 framework as a rather dynamic process. Shifting from a
descriptive perspective towards a more analytical one considering the functioning and
sustainability of the monitoring framework was a crucial conceptual amendment.
In the first couple of months the research explored the implementation of Article 33
of the CRPD in different States Parties and looked for promising international models
as suggested in the original work package. The idea was to make qualitative
interviews with the different actors of the Article 33 framework and model the
structure and the functioning of the frameworks based on this information. Through
interviewing the representatives of the government, the independent mechanism and
different DPOs, a first hand understanding has been gained on the operations of the
framework and the occurring challenges. Finally the following three countries have
been chosen for the purpose of a field trip: Zambia, Australia and New Zealand.
Zambia was an important example to show the perspectives of CRPD monitoring in a
developing country where there is a very strong disability movement rigorously
monitor the CRPD and build disability advocacy along the provisions of the CRPD.
At the time of selection, Australia and New Zealand have been considered as among
6 the most promising practices as regard having a CRPD compliant framework
designated.
- Methodology.
The research methodology initially aimed to involve some elements of participatory
research method. The main reason was to solve the oxymoron of carrying out a
research on the participation of the disability movement without involving their voice
in the whole research process. However, due to the lack of resources it was unfeasible
to carry out the whole research as a participatory action research. Yet, leaders of the
European disability movement provided great input in the development of the
research terminology and in choosing the final directions of the research. For further
consideration, socio-legal researches focusing on disability rights should promote
better the inclusive and participatory approach in line with the principles of the UN
Convention and the philosophy of participatory action research.
As part of the qualitative data collection, a questionnaire was developed to
explore the current and ideal level of the involvement of DPOs in policy and decisionmaking processes and in monitoring the CRPD. In total 10 filled out questionnaires
have been received from members and leaders of the European disability movement
between 29 June and 31 July 2012 that gave an informative overview on their
experiences. Furthermore, 10 thematic interviews have been conducted with leaders
of the disability movement to develop the conceptual frame of ‘involvement’ and
‘participation’ as both are required under Article 33 of the CRPD.
After preliminary researches, the destinations of the three field trips have been
carefully decided. The two main selection criteria were whether the countries could
offer promising patterns in implementing Article 33 of the CRPD and have a great
number of potential interviewees representing the CRPD focal point(s), the Article
33(2) independent mechanism and the organisations of persons with disabilities. The
success of each field trip heavily relied on finding a well-connected contact person
7 who provided help in arranging meetings with all key stakeholders.2 Face-to-face
interviews had been conducted with over 50 interviewees in Zambia, Australia and
New Zealand between July 2012 and April 2013.
- Some Adaptations of the Research during the Journey.
First and foremost it was an important apprehension that in order to measure the level
of participation of disability organisations in policy-making and monitoring
processes, it is not enough to focus on the impact, but the whole process of change
must be considered. The research therefore had developed and applied the dual
concept of ‘impact’ and ‘process’ approaches. Initially, the research considered that
tokenism happens when persons with disabilities are consulted during the policy or
decision-making process, but their contribution is not considered in the final
outcomes. Later, it was realized that the main problem in most States Parties is that
the form of collaboration is still based on inaccessible and patronizing practices that
certainly kept away the most marginalized parts of the disability movement from
participation and limited the contribution of others as well. In order to live up to the
high pressure by the governance and provide excellent input, those parts of the
movement that need less complex adaptations would take then ownership and play the
most dominant role in liaison with governing bodies and the human rights regime.
This could indeed easily result in the reproduction of inequalities within the disability
movement. Therefore the assessment of the processes themselves are equally
important as considering the influence disability organisations could make on the final
outcomes. Moreover, if the processes are well established, it is less likely that there
are shortcomings on the impacts side.
One of the most surprising knowledge that had been gained during the research is that
in many countries the Human Rights Commissions or Ombudsman Offices are as
isolated in their every day work from the organisations of disabled people as the
governance. Despite the explicit reference in their mandate for the pluralistic
composition in the Paris Principles, many of them have not carried out work in close
2 The researcher is extremely grateful to Milika Sakala, Rosemary Kayess, Kris Gledhill and Nicola Owen for their time and support in organizing the field trips in Zambia, Australia and New Zealand between 2012 and 2013. 8 collaboration with disability organisations yet. The research fulfilled its mission in
raising awareness among the Human Rights Commissions and Ombudsman offices
that were in direct contact with the researcher on the importance of building
meaningful partnerships with DPOs.
The other unexpected gap was the complete lack of literature or qualitative
analysis on the participation of the organisations of persons with disabilities in public
processes. This in fact, underpinned the relevance of the research project in providing
a first set of data and information in this regard.
Regarding the CRPD monitoring at the EU level, the primary obstacle to change from
the beginning was that the EU intended to designate a monitoring framework that is
not compliant with Article 33 of the CRPD. Considering that the EU has no such
body that is fully compliant with the Paris Principles, the framework was likely
lacking the independent element. If the European Union designates a monitoring
framework that is not in line with the Treaty provisions, it will certainly have a
negative impact on the decisions of those States Parties within and outside the EU that
do not want to improve human rights monitoring effectively. However, the EU as a
regional integration organisation has a very different institutional structure than single
States Parties, it was rather a political decision and a result of austerity measures that
no efforts were made to establish a new independent body. In theory, the EU could
have decided to create a new body that would fulfil the independent element in the
framework and eventually may apply for a status of an NHRI through the
International Coordinating Committee.
On 29 October 2012, the Council of the European Union adopted the
Commission's proposal for the EU Framework, which includes five existing entities:
the European Ombudsman, the European Parliament's Committee on Petitions
(PETI), the EU Agency for Fundamental Rights (FRA), the European Commission
(EC), and the European Disability Forum (EDF). The Council's decision outlines the
essential elements of the EU framework, its scope of action, components, and their
respective tasks, as well as its modus operandi. According to the EU’s rationale,
elements of the framework are independent when they perform their role and monitor
the CRPD. It was immediately clear that the established framework is facing
9 considerable challenges. Beside the lack of the independent element, one of the
further challenges is the involvement of the European Commission as focal point in
the monitoring framework. Nevertheless, it was confirmed that no additional funding
would be given to the framework to carry out tasks. This raises serious concerns
towards the effectiveness and sustainability of the framework. Another problem is
that the members of the framework do not have the capacity to cover all tasks that fall
under promotion, protection and monitoring.
Yet, it was a great achievement that the European Disability Forum (EDF) as
the representative organisation of persons with disabilities at the European level could
be formally included in the EU monitoring framework in line with Article 33(3).
Another positive aspect is the involvement of the European Ombudsman in the
framework. The Ombudsman in fact is the only entity that has a limited, but fully
independent mandate when carrying out its task and investigates complaints about
maladministration in the institutions and bodies of the European Union.
The EU had had the chance to be more ambitious and despite the recession referring to its international legal obligations - establish a more Paris Principles
compliant independent mechanism. The EU framework wrongly implies that one of
the most important novelties and centre of gravity of the CRPD can be easily
overlooked and implemented without applying necessary structural changes. However
the research tried to influence the process of change during the secondment with the
European Disability Forum (EDF) by providing many position papers and proposing
the establishment of the ‘European Platform for CRPD monitoring’ to shift the
structure of the framework to a more CRPD complaint one. Finally, it had to be
accepted that the EU framework to monitor the CRPD – at least for now – would
remain in its current form and thus will face criticism at the international level.
3.
My Formation as a Policy Entrepreneur.
Probably the most important lesson that I learnt about the process of change is that
there are often very complex obstacles blocking the process of change, and many of
them root in current political interest. Sometimes it is hard to immediately realize the
10 matrix as some obstacles only implicitly interfere with the matter in question.
Therefore, it is very important to find and engage with the right policy and decisionmakers who can be helpful in pushing forward the process and address the points we
want to see as researchers in the final outcomes. It can be very coincidental which
stakeholders could be seen as allies and their personal interest in engaging with the
process varies significantly. It is also important to address our points as clear and
simple as possible otherwise the policy-makers will likely find them unrealistic or
overcomplicated.
Another
crucial
element
is
to
present
our
ideas
and
recommendations with great confidence – policy-makers have to believe us and invest
their time and resources to engage with us. They would not do so if they perceive the
lack of professionalism, rationalism or accuracy in our work. In the process to bring
about change we may have to make temporary compromises. I believe that there
should be a threshold in compromising otherwise it is easy to lose the momentum of
achieving real progress.
Researchers can offer a very independent voice in the process of change without
having any burdens of institutional strategies or direct political interest. They can
collect data, develop indicators, theorize important problems and provide
comprehensive high-level analysis as well as recommendations to decision-makers as
a contribution to the change. Yet, researchers must present their findings and the
generated knowledge in a way that is easily adoptable for policy-makers.
While working with civil society and with European public administration, I
often felt that the long-term strategic decisions influence very much the substance of
the reports or submissions, and further then the credibility. In contrary, as a
researcher, one could feed the discussion with objective information, independent
analysis and clear recommendations. The role of advocates still remains to highlight
and transfer the most important messages from the academic contribution to their
work and in their lobby activities. In the same time, it is important to produce
impartial knowledge based on academic literature and carefully collected
representative data to have a clear understanding of the on-going processes and
provide their contextualization and deeper theoretical understanding.
11 The DREAM project meetings and trainings provided an extremely useful space to
exchange experiences and to gain important skills on policy entrepreneurship, sociolegal research, accessibility and many other topics. They also helped to discover
intersectionality between the different work packages. Furthermore, the meetings led
to fruitful discussions with the associate partners of the network who contributed with
their essential practical experiences and grass-root knowledge. Moreover, during
these events each of us had the opportunity to meet with leading experts of the
disability rights field and get feedback on our projects, methodology and approaches.
The insight of inspirational academics, such as Professor Theresia Degener (Member
of the UN CRPD Committee) or Rosemary Kayess (UNSW Law) alongside with the
professors of the DREAM network helped to constantly re-think and enhance our
projects.
- The added value of my internships.
In the frame of this research, two secondments had been carried out. First, I spent five
months with the European Disability Forum (EDF) in Brussels between March and
July 2012. It was an extremely important opportunity to follow closely the process of
designating the EU level monitoring framework to the CRPD. The placement had
great impact on the research and supported the work of EDF in numerous ways. The
researcher supported closely EDF Director by preparing a number of background
documents on the different mechanisms existing at national level to fulfill the
obligations derived from Article 33, a summary table of tasks derived from the Paris
principles for the Framework with an analysis of the capacity of existing EU bodies to
perform them, a detailed briefing for EDF intervention at the Council Working Group
on Human rights, as well as support to amend the Commission on paper from the
perspective of EDF. As part of the research, a written survey and direct interviews
with EDF members had been conducted in order to assess their level of participation
in the implementation of the UN Convention, and in particular as regards Articles
4(3) and 33. The placement made it possible for the researcher to have direct access to
the documents during the negotiations of the EU monitoring framework and influence
directly the process through working with the Secretariat of the European Disability
Forum.
12 The other secondment took place in Vienna with the EU Agency for
Fundamental Rights (FRA) for the period of four months between November 2012
and March 2013. Since FRA is also part of the EU monitoring framework, it was the
perfect timing to follow up the EU decision on monitoring disability rights shortly
after the announcement of the framework. FRA is the tasked entity to collect data as
part of monitoring the implementation of the CRPD at the EU level, however, without
any additional resources provided, it is unlikely to carry out such complex task
successfully. FRA is the organisation within the framework that could in theory play a
much more independent role, if its mandate was amended. The secondment with FRA
helped the researcher to understand the exact role and activities of FRA in relation to
disability. Furthermore, the researcher has been actively involved in the project on
political participation of persons with disabilities and could support FRA with her
knowledge and research results effectively.
4. Tentative Outcomes & Recommendations.
Regarding the monitoring of the CRPD at the EU level, the European Union must
consider amending the structure of the current framework building on its great
experience in experimental governance and giving more voice to NHRIs and civil
society in the whole process. The EU has a unique opportunity to show in the
international arena its commitment to protect human rights and to overcome the past
failures of traditional human rights monitoring regimes. The exact consequences of
missing out this opportunity are not yet realized, although they have to be explored
and taken into consideration by the Union as soon as possible.
It is still not too late for the European Commission to consider stronger
collaboration with the independent mechanisms of the Member States and to create as
proposed by the current research, the ‘European Platform for CRPD Monitoring’
consisting representatives of the already appointed national level independent
mechanisms. The Platform could be the sixth element of the designated European
level framework. Nonetheless, it would provide an additional level of independence
and bring collective expertise together. The creation of such a platform and its
involvement in the framework would neither require big institutional changes nor
13 major financial investments as the NHRIs are already operating entities themselves.
Most of the organisations regularly meet in Brussels to coordinate their work as part
of the European Network of Equality Bodies (Equinet) or the European Group of
National Human Rights Institutions (Eurogroup). Furthermore, the Platform could
help the national independent mechanisms to exchange experiences and to improve
their understanding of shared competences between the EU and Member States
regarding CRPD monitoring. The European Platform for CRPD monitoring could
contribute by advising the European Commission, the Council of the EU and the
European Parliament through delivering formal opinions on the Commission’s
legislative proposals and on EU policy in general relating to the implementation of the
CRPD.
In relation to the effective participation of persons with disabilities and their
representative organisations in policy processes and monitoring human rights, the
greatest challenge is to tackle exclusion and tokenistic consultations. The most
important advise for the governing bodies, is that the involvement of civil society
must start at the planning phases of any law or policy-development process. It is too
late when already prepared drafts are shown to some randomly selected organisations,
giving them too less time to make considerable changes and exploiting their resources
with the illusion that their voice matters in cases where it clearly doesn’t. In order to
ensure the meaningful participation of persons with disabilities, the research provides
the following five main recommendations to Member States and the EU:
•
The full participation of persons with disabilities requires great structural
changes and the elimination of past exclusive patterns – shift from tokenistic
consultation to meaningful involvement;
•
Past working methods of the governance and NHRIs were highly inaccessible
– developing new, accessible and transparent working methods, providing
reasonable accommodation;
•
Capacity building programmes should be available for the disability
movement including the most marginalized segments of the movement to
engage them in policy and decision-making processes effectively – to avoid
perpetuating a fragmented disability movement;
14 •
Independent funding should be provided for members of the Article 33
framework to carry out systematic monitoring activities – to achieve
sustainability;
•
Indicators and benchmarks should be developed to monitor the quality of
participation of DPOs and the work of the Article 33 framework– to avoid
illusive functioning.
By the conclusion of the CRPD, the European Union certainly pioneered in
committing itself to promote the human rights of persons with disabilities across the
Member States and within the EU institutions. However, the ratification creates a
completely new and unexpected situation for the EU due to the specific status of the
Convention as a mixed agreement and its implications of exclusive and shared
competences between the EU and the Member States. For instance, one of the main
impacts that the EU level independent monitoring framework is supposed to make is
to scrutiny existing and draft EU legislation, which are not compliant with the
obligations of the international treaty. This is however an unprecedented role to play
at EU level as no other external entity could comment or criticize on the legislative
proposals of the EU up until now. With the ratification of the CRPD this task would
be envisaged to one of the elements of the monitoring framework. It is somehow
understandable that the EU is not willing to open this Pandora box and give an
explicit mandate to an independent organisation. On the other hand, with the
ratification, the EU undertook responsibility to fully implement all provisions of the
Treaty.
At the EU level, the negotiations on the Article 33(2) framework mostly happened
behind closed doors. The European Union was very careful about holding back all
information in relation to the on-going debate. The public was only informed at a very
last stage of the negotiations, after the Commission submitted its proposal to the
Council. The lack of transparency made very hard to follow up the process, and it
would not have been possible to carry out that part of the research without the
placements with EDF and FRA.
15 As regard to the National monitoring mechanisms, one of the most inhibiting
factors in making a change is that if the government does not establish a framework
including a Paris Principles compliant element, the UN CRPD Committee has no real
tools to enforce changes and compliance with the Convention. However, it is
expected in good democracies that the governance make efforts to live up to its
international legal obligations, in reality many States Parties are not willing to make
all changes especially in areas that are hard to measure. This applies for instance to
the quality of participation of disability organisations in decision-making processes or
to their involvement in the monitoring of the implementation of human rights.
16