Chapter Three: Monitoring the Convention and the Optional Protocol

THE OPTIONAL PROTOCOL TO THE CONVENTION

An optional protocol is a legal instrument related to an existing treaty that addresses issues that the parent treaty does not cover or does not cover sufficiently. It is usually, although not always, open to ratification or accession only by States that are parties to the parent treaty. It is “optional” in the sense that States are not obliged to become parties to the protocol, even if they are party to the parent treaty.

The Optional Protocol to the Convention on the Rights of Persons with Disabilities introduces two procedures to strengthen the implementation of the Convention: an individual communications procedure and an inquiry procedure.

An optional protocol will clearly bolster the current system of treaty monitoring. Importantly, it will help to clarify what is - and what is not - required of States, while providing effective remedies to aggrieved individuals. Ultimately, I hope that an optional protocol will be a step towards the dismantling of the unduly rigid categories of rights and a move towards a unified vision of civil, cultural, economic, political and social rights.

Louise Arbour, United Nations High Commissioner for Human Rights

The individual communications procedure

The individual communications procedure permits individuals and groups of individuals in a State party to the Optional Protocol to complain to the Committee on the Rights of Persons with Disabilities that the State has breached one of its obligations under the Convention. That complaint is known as a “communication.” The Committee will then examine the complaint, formulate its views and recommendations, if any, on the communication, and send them to the State in question. Those views and recommendations appear in the Committee’s public report to the General Assembly. Normally, individual communications procedures are paper or written procedures, in other words, neither the complainant nor the State appears before the Committee in person; all submissions are made in writing.

Not all communications are admissible. The Committee will consider a communication inadmissible when:

It is anonymous;
It is an abuse of or incompatible with the provisions of the Convention;
The same complaint has already been examined by the Committee;
The same complaint has been or is being examined under another international investigations procedure;
All available domestic remedies have not yet been exhausted;
It is ill-founded or not sufficiently substantiated;
The facts occurred and terminated prior to entry into force of the Protocol for the State in question.

INDIVIDUAL COMMUNICATIONS PROCEDURE

The individual communications procedure is composed of the following steps:

The Committee receives the complaint.
The Committee considers the admissibility of the complaint. Sometimes, the admissibility of the complaint is considered at the same time as the merits of the complaint, in other words, a decision is made that the complaint is admissible (admissibility) and a decision is made at the same time whether the State is or is not in breach of its obligations (merits).
The Committee submits the complaint confidentially to the State.
Within six months, the State submits written explanations or statements clarifying the issue and indicating what remedial and/or other steps, if any, have been taken.
The complainant is given an opportunity to comment on the State’s observations.
The Committee may ask the State to take interim measures to protect the rights of the complainant.
The Committee examines the complaint in closed session.
The Committee makes suggestions and recommendations, if any, to the State and the complainant, and often requests States to provide information on the action it has taken as a result.
The Committee publishes its suggestions and recommendations in its report.

Increasingly, other committees with individual communications procedures are asking States to report to them on actions taken in response to their suggestions and recommendations.

The inquiry procedure

If the Committee receives reliable information indicating grave or systematic violations of the provisions of the Convention by a State party, the Committee may invite the State to cooperate in the examination of the information by submitting observations. After considering the State party’s observations, and any other reliable information, the Committee may designate one or more of its members to conduct an inquiry and issue a report urgently. Where warranted, and with the consent of the State concerned, this inquiry may include a visit to the country in question. After examining the findings of the inquiry, the Committee must transmit those findings, and its own comments, to the State, which then has six months to submit its observations to the Committee. The inquiry is confidential and has to be conducted with the full cooperation of the State concerned.

After the six-month period in which it may submit its observations, the State may be invited to provide details of measures taken to respond to the inquiry. The Committee may request further information from the State. The Committee will then publish a summary of its findings in its report to the General Assembly. With the agreement of the State concerned, the Committee may also publish its full report on the inquiry.

A State ratifying the Optional Protocol may “opt out” of the inquiry procedure. In other words, at the time of signing, ratification or accession of the Protocol, the State may declare that it does not recognize the competence of the Committee to undertake inquiries. However, even if a State “opts out” of the inquiry procedure, all States parties to the Optional Protocol must accept the individual communications procedure.

HUMAN RIGHTS COMMITTEE CONSIDERS INDIVIDUAL COMMUNICATIONS FROM PERSONS WITH DISABILITIES

The Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, has already considered individual communications concerning the rights of persons with disabilities:

In the case Hamilton v. Jamaica (1995), the Human Rights Committee considered the treatment and conditions of confinement of a disabled prisoner on death row. The claimant was paralysed in both legs and experienced extreme difficulty in climbing onto his bed. The Human Rights Committee found that the failure by prison authorities to take the detainee’s disability into account and make proper arrangements for him violated the author’s right to be treated with humanity and with respect for the inherent dignity of the human person, and was therefore contrary to article 10 (1) of the Covenant.

In the case Clement Francis v. Jamaica (1994), the Human Rights Committee recognized that the State’s failure to attend to the deteriorating mental health of a detainee sentenced to death and failure to take the steps necessary to ameliorate his psychiatric illness constituted a violation of the victim’s rights under articles 7 and 10 (1) of the Covenant.

In the case C. v. Australia (1999), an Iranian asylum-seeker was detained by the Australian authorities while they considered his application for asylum. The Human Rights Committee found that the continued detention of the complainant, notwithstanding the deterioration of his mental health, constituted a violation of his rights under article 7 of the Covenant (prohibition of torture, and cruel, inhuman and degrading treatment). The Human Rights Committee also held that deportation of the applicant to the Islamic Republic of Iran, where he was unlikely to receive the only effective medication and related treatment, amounted to a breach of article 7.

Most international human rights treaties include optional communications procedures; some include inquiry procedures, as well. All of these procedures have some relevance to the rights of persons with disabilities. The following international instruments contain individual communications procedures:²

The Optional Protocol to the International Covenant on Civil and Political Rights
The International Convention on the Elimination of All Forms of Racial Discrimination
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women
The International Convention on the Protection of All Migrant Workers and Members of their Families
The International Convention for the Protection of All Persons from Enforced Disappearance (not yet in force)

The following international instruments contain inquiry procedures:

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women
The International Convention for the Protection of All Persons from Enforced Disappearance (not yet in force)

Although all of these treaties are open to communications from persons with disabilities living in States that have ratified the procedures, none of them specifically targets the rights of persons with disabilities; and while all of these committees include human rights experts, they do not necessarily benefit from expertise on human rights and disability. The Optional Protocol to the Convention on the Rights of Persons with Disabilities thus provides procedures that specifically target the protection of the rights of persons with disabilities.

THE INDIVIDUAL COMMUNICATIONS PROCEDURE and

INQUIRY PROCEDURE AT A GLACE

The individual communications procedure:

Provides an opportunity for specific redress in individual cases when a State violates the rights of persons with disabilities and no remedy can be obtained from national procedures;
Provides the possibility of international recourse for persons with disabilities who have been denied access to justice at the national level;
Allows the Committee to highlight the need for more effective remedies at the national level;
Allows the Committee to develop a new body of jurisprudence on how better to promote and protect the rights of persons with disabilities; and
Assists States in determining the content of their obligations under the Convention and thus assists them in implementing those obligations.

The inquiry procedure:

Enables the Committee to address systematic and widespread violations of the rights of persons with disabilities;
Allows the Committee to recommend measures to combat the structural causes of discrimination against persons with disabilities;
Gives the Committee an opportunity to set out a broad range of recommendations to achieve greater respect for the rights of persons with disabilities; and
Allows the Committee to work with the State in removing impediments to the full enjoyment of the rights of persons with disabilities.

Becoming a party to the Optional Protocol

The Optional Protocol encourages States to implement the Convention effectively, to provide more local remedies and remove discriminatory laws and practices, and represents an additional layer of commitment by providing additional guarantees that the State will be accountable for its obligations under the Convention.

The Optional Protocol is a tool used by States to:

Improve existing protection mechanisms for persons with disabilities;
Add to existing protection mechanisms;
Enhance the State’s understanding of the steps it must take to protect and promote the rights of persons with disabilities;
Vindicate State action in cases where the Committee makes a finding that no violation has occurred;
Foster changes in discriminatory laws, policies and practices; and
Create greater public awareness of human rights standards relating to persons with disabilities.

The procedure for signing and ratifying or acceding to the Optional Protocol is the same as for the Convention, although the Optional Protocol will come into force after only 10 ratifications or accessions, rather than 20 for the Convention. Chapter 4 discusses the procedures involved in signing and ratifying or acceding to the Convention.

CHECKLIST FOR PARLIAMENTARIANS

How I can raise awareness about the Optional Protocol

Determine if the Government intends to become a party and, if not, ask why.
Raise questions in parliament concerning what action the Government intends to take in relation to the Optional Protocol.
Submit a private member’s bill on the matter.
Encourage parliamentary debate on the Optional Protocol.
Mobilize public opinion through organized public campaigns and debates using television, radio and print media, and in public meetings.
Ensure that the Optional Protocol is translated into the national language(s) and widely distributed.
Ensure that the Optional Protocol and simple information about its procedures are available in local languages and accessible formats.
Organize and contribute to workshops or information seminars on the Optional Protocol for parliamentarians, members of the Government and civil society.
Liaise with organizations representing persons with disabilities and human rights organizations.
Use the International Day for Disabled Persons (3 December) as an occasion to encourage action towards signing and ratifying the Optional Protocol.
Encourage people with disabilities whose rights have been violated to use the Optional Protocol appropriately.

Next - Chapter Three: The United Nations secretariat that supports the Convention

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