Independent Monitoring Frameworks

Article 33 (2)

States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.

Article 33 (2) requires State Parties to designate or establish, if not already existing, a framework to promote, protect and monitor the implementation of the Convention. For the sake of brevity, this paper uses the term ‘independent monitoring framework’, in line with the language employed by the CRPD Committee.[1]These  frameworks should be separate from the focal point appointed under Article 33 (1) – in other words, the focal point or coordination mechanism cannot be assigned to act as the independent monitoring framework.[2]Article 33 (2) also stipulates that monitoring frameworks must include one or more mechanisms that satisfy the Paris Principles’ standards and thus are entirely independent of the work of Governments, most commonly national human rights institutions (NHRIs). NHRIs and similar institutions are a critical aspect of Article 33 (2) frameworks: while independent monitoring frameworks may involve bodies with close ties to Governments in their work, such as bodies concerned with statistics or policy advisory, the actual act of monitoring should be vested in a mechanism that is compliant with the Paris Principles. More largely, the mandated inclusion of NHRIs in independent monitoring frameworks is central to the advancement of the human-rights based model of disability the Convention seeks to further.[3]

Box 2. The Paris Principles

Sources: DESA et al., 2007, p. 99; Global Alliance of National Human Rights Institutions, 2017; National Institutions for the Promotion and Protection of Human Rights (A/RES/48/134); Thematic Study by the Office of the High Commissioner for Human Rights on the structure and role of national mechanisms for the implementation and monitoring of the Convention on the Rights of Persons with Disabilities (A/HRC/13/29), pp. 10-11.

Functions

Independent monitoring frameworks have specific responsibilities under each of the three main areas of Article 33 (2): promotion, protection and monitoring. Promotion activities relate mainly to awareness-raising, training and dissemination of information related to the CRPD. Protection refers to responsibilities through quasi-judicial powers, such as handling complaints regarding CRPD violations, providing mediation services and supporting legal processes including the provision of assistance to persons with disabilities before the courts. Monitoring involves reviewing the State Party’s legal and practical compliance with CRPD obligations, as well as conducting inquiries and submitting reports and recommendations to State authorities.[5]

Independent monitoring frameworks also play a particularly important role vis-à-vis the CRPD Committee (see Box 3).

Box 3. Role of independent monitoring frameworks in the proceedings of the CRPD Committee

Source: Committee on the Rights of Persons with Disabilities, 2016.

Article 33 (2) requires States Parties to maintain and strengthen their independent monitoring frameworks by ensuring that they can actively engage in the above activities.[7] Recent guidance issued by the Committee has expanded on this requirement, stressing the duty of States Parties to ensure their monitoring frameworks possess the technical resources necessary to function successfully, including full and complete access to relevant databases, records and facilities.[8]  Inversely, Article 33 (2) should also be read as requiring States Parties to refrain from restricting or limiting the capacities of the independent monitoring framework as it promotes, protects, and monitors the Convention.

Single vs. multiple entity frameworks

States Parties have several different options when structuring their independent monitoring frameworks. The most straightforward model is the designation or establishment of a single entity that discharges all of the above functions. The selection of one institution entails certain advantages with regards to accountability and visibility to stakeholders, but also means that the entity must be fully equipped and resourced to handle the wide mandate of Article 33 (2). 

In order to satisfy the Article’s requirement relating the Paris Principles, and in line with the recommendations of the CRPD Committee, this entity should normally take the form of an NHRI,[9]such as a human rights commission, ombudsman or equality body. This is the case in Germany, which has designated the German Institute for Human Rights,[10] and in Australia, where the Australian Human Rights Commission represents the independent monitoring framework.[11]A number of countries have designated or established a single non-NHRI entity as their independent monitoring frameworks, such as an OPD federation in Spain and a specialized monitoring committee in Austria. However, the selection of a non-NHRI entity as a State Party’s only mechanism in its independent monitoring framework may present challenges for compliance with the Paris Principles, particularly legally guaranteed independence and adequate mandates.

When appointing multiple mechanisms to the independent monitoring framework, States have different options. They can designate more than one NHRI, like in New Zealand where both the Human Rights Commission and the Office of the Ombudsman have been appointed to the independent monitoring framework.[12] Such an institutional arrangement can be particularly relevant for decentralized states, as they enable the State Party to incorporate NHRIs at the sub-national level. States may also choose to include other non-NHRI bodies in the independent monitoring framework, such as advisory bodies or civil society structures like OPD federations. In Denmark for example, the Danish Disability Council (a national advisory body on disability) is part of the independent monitoring framework along with the Danish Institute for Human Rights and the Parliamentary Ombudsman.[13]If multiple monitoring mechanisms are appointed by the State Party, all mechanisms must be independent from the Executive Branch of government.[14] This was reiterated in the Committee’s concluding observations to the European Union, which called for the removal of the European Commission, an executive-level body, from the EU’s independent monitoring framework.[15]

While they are inherently more complex and require additional effort in terms of securing a clear division of labour and solid cooperation channels, multi-institutional monitoring frameworks often carry significant benefits. They allow States to utilize the comparative advantages of different bodies to implement the three different areas of responsibility outlined in Article 33 (2). In New Zealand, namely, the Human Rights Commission focuses more on promotion and monitoring functions, while the Ombudsman handles broader protection responsibilities.[16] In Denmark, the Ombudsman is the only member of the independent monitoring framework that has the mandate to treat individual complaints,[17] and as such is an important complement to the Danish Institute for Human Rights and the Danish Disability Council. Moreover, including organizations of persons with disabilities and their federations can also be instrumental for the functioning of the independent monitoring framework. While organizations of persons with disabilities cannot comply with the Paris Principles (and thus cannot alone fulfill the requirements of Article 33 (2), they can ensure a strong and effective channel for the participation of persons with disabilities in the monitoring processes, which is also an obligation under Article 33 (3) (to be discussed in more detail in a later section).