ICESCR Training Guide - Module 5: United Nations Human Rights Monitoring Mechanisms for Economic, Social and Cultural Rights

Facilitator Overview

Introduction

This module will familiarize participants with monitoring mechanisms at the national and international (United Nations) levels and how to use them to achieve positive change.

Description

• 5.1 Introduction to National Action (10 min)
  • Introduce methods of national action
• 5.2 Types of Action Available at the National Level in Canada (20 min)
  • Review the types of action available at the national level in Canada, discuss the highlighted cases provided as concrete examples of action. Show participants the links to provincial human rights codes.
• 5.3 Referring to International Human Rights Standards in Actions at the National Level (10 min)
  • Briefly describe the process of using international human rights processes in a Canadian context
• 5.4 Taking Action Internationally (10 min)
  • Discuss how action can be taken internationally including a discussion about the use of shadow reports
• 5.5 Final Points Regarding International Action (10 min)
  • Review final points

Time: 60 minutes

Participant Overview - Module 5: United Nations Human Rights Monitoring Mechanisms for Economic, Social and Cultural Rights

Objectives

To become familiar with monitoring mechanisms at the national and international (United Nations) levels and how to use them to achieve positive change.

Description

Previous modules discussed international human rights standards; how to frame issues as violations of rights and how to progressively address these issues. This module will address the ways in which you can both bring attention to, and seek redress for, violations of the rights of persons with disabilities.

• 5.1 Introduction to National Action (10 minutes)
• 5.2 Types of Action Available at the National Level in Canada (20 minutes)
• 5.3 Referring to International Human Rights Standards in Actions at the National Level (10 minutes)
• 5.4 Taking Action Internationally (10 minutes)
• 5.5 Final Points Regarding International Action (10 minutes)

Time: 60 minutes

Section 5.1 – Introduction to National Action

The main goal of any action to bring attention to, or seek redress for, human rights violations is to achieve positive change in the lives of persons with disabilities. As a result, action strategies should begin at the national level, with attempts to influence the behaviour of domestic government officials and other individuals and groups with the power to influence the enjoyment of rights by people with disabilities (e.g. employers, owners of private businesses, educators, etc.).

In addition to these formal procedures, people with disabilities and their representative organizations can lobby national political officials to effect change.

The procedures available to bring attention to, and seek redress for, violations of human rights at the national level will vary depending on the country's legal and political system. They may include:

• courts of law
• national human rights institutions or national disability rights institutions
• other administrative tribunals

Each of these procedures will be discussed in the Canadian context in the next section.

The Convention on the Rights of Persons with Disabilities (CRPD) addresses the need for national implementation and monitoring of the rights of people with disabilities. Article 33 requires each member country to establish:

• Focal points within government for matters relating to implementation of the CRPD and
• A framework to promote, protect and monitor implementation of the CRPD, including one or more independent procedures.

Article 33 also requires that persons with disabilities and their representative organizations be involved and participate fully in the monitoring process.

Section 5.2 – Types of Action Available at the National Level in Canada

The following section examines the types of action available in Canada, at the national (or domestic) level.

a) Court Cases – "Charter Challenges"

In Canada, the main way that a case regarding a violation of the rights of persons with disabilities can be launched in a court is by claiming a violation of the Charter of Rights and Freedoms (Charter) which forms part of the Canadian constitution. The Charter can be used, for example, to have a law that violates the rights of people with disabilities struck down or to force the government to provide compensation to an individual or group whose rights have been violated. In each case, the court hearing the case decides what is fair and appropriate.

One of the most important grounds for court challenges under the Charter is the section15 equality provision which states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The following chart outlines a number of leading cases in which the Supreme Court of Canada found violations of the section 15 guarantee. In each case, the court found both a violation of section 15 and that the violation was not saved by the Charter, section 1 provision which allows the government to argue that a given violation can be justified within reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Adapted from Charter Equality Rights: Interpretation of Section 15in Supreme Court of Canada Decisions

Note

The Charter cannot be used to challenge every possible violation of disability rights. The Charter controls laws made by government (at all levels – federal, provincial, municipal) and all other actions by government officials (including for example, the police and school boards). If a private individual, organization or company violates your rights, you may have to use one of the other human rights procedures discussed below to pursue your claim.

b) National Human Rights Institutions – Federal and provincial human rights commissions/tribunals

In Canada, there are human rights institutions at both the federal and provincial/ territorial levels.

Federal Level – Canadian Human Rights Commission & Canadian Human Rights Tribunal

As noted in Module 2 (section 2.6), the Canadian Human Rights Act prohibits discrimination by the federal government (e.g. all federal legislation, regulations, departments, agencies and Crown corporations) and federally regulated businesses and industries (e.g. banks, national airlines, interprovincial telephone companies and interprovincial transportation companies). "Disability" is included in Article 3 as a prohibited ground of discrimination.

People who have complaints regarding violations of the Canadian Human Rights Act should contact the Canadian Human Rights Commission. The Commission will screen the case to determine whether it should be resolved through another administrative process (see next section below), dealt with by a mediator or be further investigated.

Ultimately, the Commission may ask the Canadian Human Rights Tribunal to hear the case and come to a determination. The Tribunal is similar to a court of law but is less formal and only hears cases related to human rights violations.

Provincial / Territorial Level

Each of Canada's provinces and territories also have human rights codes or acts, some of which are mentioned in Module 2 (section 2.6). This legislation prohibits some types of discrimination within the relevant province or territory and establishes mechanisms to hear complaints about violations. The legislation does not cover discrimination falling under the Canadian Human Rights Act. Each provincial and territorial code or act and complaint resolution process is different so it is important to understand those that apply to the area where you live.

The following provides links to websites for the provincial and territorial human rights complaints mechanisms in Canada:

• Alberta Human Rights and Citizenship Commission (process also involves: Chief Commissioner and Panel appointed by Chief Commissioner)
• British Columbia Human Rights Tribunal
• Manitoba Human Rights Commission
• New Brunswick Human Rights Commission (process also involves: Board of Inquiry):
• Newfoundland and Labrador Human Rights Commission (process also involves: Board of Inquiry)
• Northwest Territories Human Rights Commission (process also involves: Director of Human Rights and NWT Human Rights Adjudication Panel)
• Nova Scotia Human Rights Commission (process also involves: Board of Inquiry)
• Nunavut Human Rights Tribunal (located in Coral Harbour, currently does not have a website)
• Human Rights Tribunal of Ontario
• Prince Edward Island Human Rights Commission (process also involves: Executive Director and Human Rights Panel)
• Quebec Commission des droits de la personne et les droits de la jeunesse (process also involves: arbitration)
• Saskatchewan Human Rights Commission (process also involves: Chief Commissioner and Saskatchewan Human Rights Tribunal)
• Yukon Human Rights Commission (process also involves: Human Rights Board of Adjudication)

c) Other Administrative Tribunals

In some cases, human rights complaints can be raised before administrative procedures other than human rights commissions and tribunals. Some examples include proceedings before a labour arbitrator (e.g. failure to accommodate a disability in the workplace) and adjudication under employment standards legislation (e.g. disability-based discrimination leading to the termination of an employee who is not in a union).

d) Lobbying Government Officials

In some cases, rather than filing a complaint about a specific human rights violation, persons with disabilities and their organizations may prefer a strategy that involves lobbying national government officials. "Lobbying" involves trying to influence the actions of public officials, especially legislators to make changes. Possible changes could include the repeal or amendment of existing legislation or the passage of new legislation.

Section 5.3 – Referring to International Human Rights Standards in Actions at the National Level

When bringing actions before courts and administrative tribunals, in addition to relying on a violation of the Charter or human rights legislation, it is important to also mention in your argument any violations of international human rights standards (treaties). While the fact that Canada has violated an international human rights treaty obligation may not be binding on the court or administrative tribunal hearing the case, they can take it into consideration. It is also important to highlight violations of international human rights law when lobbying for legislative changes. Citing a violation of international law can give added weight to your argument before adjudicators, government officials, the media and the general public. Citing alleged violations of international standards can also help to pave the road for filing an international complaint – as will be discussed below.

Some examples of cases before the Supreme Court of Canada where arguments were raised regarding violations of international human rights obligations include:

• Canada (Justice) v Khadr [2008] SCR 28: dealing with the right to challenge the legality of detention. Here, Canada's international obligations cited by the court included the Geneva Conventions.
• Suresh v Canada (Minister of Citizenship and Immigration [2002] 1 SCR 3: dealing with deportation to a country where the deportee will be tortured. Here, Canada's international obligations cited by the court included the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Geneva Conventions, International Covenant on Civil and Political Rights and Universal Declaration of Human Rights.

Section 5.4 – Taking Action Internationally

The goal of using international (United Nations) monitoring mechanisms is to influence the behaviour of governments and other actors in domestic sphere.

Possible mechanisms include:

1) Treaty Monitoring Bodies

Each of the major United Nations human rights instruments has a group of experts that has been given responsibility to oversee whether countries are meeting their human rights obligations. These groups of experts are called "treaty monitoring bodies". The experts come from countries around the world.

The following chart shows which body monitors each international human rights instrument:

ICESCR = International Covenant on Economic, Social and Cultural Rights
CRPD = Convention on the Rights of Persons with Disabilities
ICCPR = International Covenant on Civil and Political Rights
CEDAW = Convention against All Forms of Discrimination against Women
CRC = Convention on the Rights of the Child
CERD = Convention on the Elimination of all Forms of Racial Discrimination
CAT = Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CRMW = Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

2) Periodic State Reporting

All of the major international human rights treaties require that the countries that have ratified the instrument provide regular reports to the treaty bodies explaining the steps they have taken to make sure that people within their jurisdiction are enjoying the human rights protected by the treaty. These are called "State Reports".

Opportunities for Action

• Writing Shadow Reports: Organizations of people with disabilities and other non-governmental organizations (NGOs) can play an important role in the state reporting process by submitting shadow or parallel reports regarding the progress (or lack of progress) of the country whose human rights record is being reviewed. Shadow reports provide the treaty bodies with additional information that may not be mentioned in the State's reports – including areas where the State is violating its human rights obligations. The treaty bodies can use the additional information included in the shadow reports to question and challenge claims made by states.
• Influencing the Questions asked by the Treaty Body: Organizations can also try to influence the questions posed by the treaty body when reviewing the State's report, encouraging the treaty monitoring body to raise certain contentious or important issues.
• Following-up Concluding Obligations: After considering the State's written and oral reports and any shadow reports that have been submitted, the treaty monitoring body writes its own report called "Concluding Observations". The Concluding Observations talk about areas where the country should make new laws, policies or practice in order to meet its human rights obligations. People with disabilities, disability organizations and allies can use the information contained in the Concluding Observations to pressure governments to make changes.

Possible Outcomes

Generally, the State reporting process results in "naming and publicly shaming" the state being reviewed by asking the state to explain a particular action or omission during public hearings and/or mentioning particular issues in its Concluding Observations.

All reports submitted to and made by the treaty bodies are posted on the United Nations website. However, it is also important that NGOs ensure that the domestic media are alerted to any criticisms made, that recommendations are mentioned in any relevant domestic litigation and are followed-up in domestic lobbying efforts.

Activity: Understanding Shadow Reports

In small groups, discuss and answer the following:

1. Based on your own experience, what role do you think "shadow reports", put together by organizations of people with disabilities can play in realizing the human rights of persons with disabilities?

3) Complaints and Communications Mechanisms

Under all of the human rights instruments except the Convention on the Rights of the Child, individuals and/or groups can bring complaints to the treaty body claiming that their rights under the convention have been violated. Sometimes these complaints are called "communications".

Opportunities for Action

Before filing a complaint, a number of conditions must be met:

• The state you are complaining about must have ratified the human rights treaty in question and also its complaints mechanism. Complaints mechanisms are sometimes found within an Optional Protocol to the treaty rather than in the main body of the treaty (e.g. the CRPD, ICCPR, ICESCR and CEDAW all have Optional Protocols). Where the mechanism is in the main body of the treaty (e.g. CAT, CERD and CRMW), it is necessary for the State to specifically declare its intention to be bound to the complaints mechanism when it ratifies that treaty.
• The Complainant must first "exhaust" all domestic options. This means that the complainant must first file the case at that national level (before a court or administrative tribunal as described above). The case must be heard at the national level and all possible appeals be pursued before the case can be brought before an international treaty body. Some common exceptions to this are that:
  • no remedy exists at the domestic level;
  • the remedy that exists is not effective; OR
  • the case has been unreasonably prolonged at the domestic level, through no fault of the complainant
• Finally, the same matter cannot be considered by more than one international mechanism at the same time.

Note

More information on these procedures can be found at: www.bayefsky.com

Possible Outcomes

Complainants can request that interim measures be taken pending a final decision on the merits, where such measures are necessary to ensure that irreparable harm is not done to the victim in the course of the treaty bodies' consideration of the complaint. Note that irreparable harm does not include damage which can be compensated by a financial award.

Upon determination that a violation has taken place (in an 'Opinion'), the treaty monitoring body may recommend that the State Party take remedial action. Such action frequently takes the form of financial compensation. The treaty body may also recommend release, investigation, re-trial, commutation of a death sentence, etc. The State has a moral obligation to implement the decision but they are not legally bound to do so. This means that the implementation of the treaty body's decision is at the State's discretion. As a result, it is important for NGOs to widely publicize treaty body findings of violations and award of remedies at the national level, using these international results to pressure for domestic change. When writing shadow reports, NGOs should also provide information to the relevant treaty-monitoring body on cases in which its Opinions have not been given effect by the state.

4) General Comments / Recommendations

All of the treaty monitoring bodies also write General Comments or Recommendations. These documents explain what the rights set out in the human rights instrument monitored by the treaty body mean. For example, General Comment No. 5 issued by the Committee on Economic, Social and Cultural Rights provides important information regarding what the rights set out in the ICESCR mean in the context of disability.

Opportunities for Action

NGOs can call for treaty bodies to write General Comments or Recommendations regarding issues in the treaty that require further clarification. NGOs can contribute to this process by making submissions regarding what should be written e.g. "educating the experts".

Possible Outcomes

General Comments and Recommendations play an important role in the interpretation of the rights guaranteed in human rights treaties, bringing greater specificity to the obligations set out therein. Securing a favourably worded General Comment or Recommendation can have a lasting positive effect on the interpretation of the rights contained in the treaty.

5) Human Rights Council - Universal Periodic Review

The United Nations has recently started a new monitoring procedure called the Universal Periodic Review. Once every four years, the UN Human Rights Council (made up of 47 UN member countries), reviews how well each country is meeting its human rights obligations and commitments under all of the UN human rights instruments ratified by that country and the Universal Declaration of Human Rights. Countries submit a written report (State Report) and answer questions from Council members during an oral hearing. This new process is intended to work along side rather than repeat the work of the treaty bodies.

The Universal Periodic Review process differs from periodic state reporting overseen by the treaty monitoring bodies, because the members of the Human Rights Council represent States rather than being independent experts. This means that the process is more openly influenced by geo-political considerations, offering a different way to influence state action.

The two processes also differ in their scope. All member states of the United Nations are subject to the Universal Periodic Review procedure whereas only countries that have ratified a particular human rights treaty are subject to its periodic state reporting mechanism.

Opportunities for Action

• Contributing to Written Reports: Organizations of people with disabilities and other non-governmental organizations (NGOs) can play an important role by providing information for the report compiled by the UN Office of the High Commissioner for Human Rights including information that extends and/or critiques the State Report and provides information that the Human Rights Council can use to question and challenge claims made by countries.
• Influencing the Questions asked by the Human Rights Council: NGOs can also attempt to meet the members of the Human Rights Council leading the review of a particular state in order to encourage them to raise particular issues with the state during the oral hearing.
• Following-up Concluding Obligations: After considering the State's written and oral reports and other reports submitted to it, the Human Rights Committee writes own report that highlights areas where the country should make new laws, policies or practice in order to meet its human rights obligations. People with disabilities, disability organizations and allies can use the information contained in the Human Rights Committee's Report to pressure governments to make changes.

Possible Outcomes

Generally, this process will result in "naming and publicly shaming" the state being reviewed by asking the state to explain a particular action or omission during public hearings and/or mentioning particular issues in its Concluding Observations and Recommendations.

All reports submitted to and made by the Human Rights Council are posted on the United Nations website. However, it is also important that NGOs ensure that the domestic media are alerted to any criticisms made, that recommendations are mentioned in any relevant litigation and followed-up in lobbying efforts.

February 2009: Canada's Record was Reviewed by the Human Rights Council

Canada was specifically asked Human Rights Council members about the steps it has taken to improve the rights of persons with disabilities. The Council recommended that Canada ratify the Convention on the Rights of Persons with Disabilities. The full report can be found on the OHCHR website.

Note

Navanethem Pillay is the UN High Commissioner for Human Rights and serves as the principal human rights official of the United Nations. The High Commissioner spearheads the United Nations' human rights efforts which work to offer leadership, education and action to empower individuals and assist States in upholding human rights.

6) Special Procedures

In addition to the treaty bodies, individuals may be appointed by the United Nations to investigate particular human rights issues or national human rights situations. These individuals can be referred to as either "Special Rapporteurs" or "Independent Experts". Some examples include:

• Special Rapporteurs who report on:
  • Implementation of the Standard Rules on Disability
  • The Right to Food
  • The Right to Education
  • Violence Against Women, Its Causes and Consequences
  • The Right to the Highest Attainable Standard of Physical and Mental Health
  • The Right to Adequate Housing
• Independent Experts who report on:
  • The Question of Human Rights and Extreme Poverty
  • The Right to Development
  • The Sale of Children, Child Prostitution and Child Pornography

Note

A list of the people who hold current thematic/special procedures mandates from the UN Human Rights Council can be found on the OHCHR website.

Independent Experts and Special Rapporteurs gather facts, interview victims, visit locations of alleged abuses and make recommendations on steps that should be taken to better protect, promote, respect and fulfill human rights. They investigate situations in specific countries and conduct thematic studies on such issues as torture, religious intolerance, racism, the sale of children and violence against women. Each year they send thousands of urgent cables to governments requesting actions such as the release of prisoners or stopping torture.

Opportunities for Action

NGOs can participate in the work of the special procedures by submitting reports regarding human rights violations relevant to their procedure's mandates.

Possible Outcomes

Thematic/special procedures mandate holders may issue reports in which they find that a state has violated particular human rights guarantees. They can also send urgent communications to governments requesting immediate action.

Again, the aim of raising these national human rights violations at the international level is to engage in public "naming and shaming" and influence the state to take action domestically to avoid further international criticism.

Section 5.5 – Final Points regarding International Action

Always keep in mind that the purpose of engaging in action at the international action is to effect change at the national level. As a result, it is very important for NGOs to:

• Make sure that any statements or decisions by international monitoring bodies (e.g. treaty bodies, Human Rights Council, Special Rapporteurs and Independent Experts) are brought to the attention of domestic media, politicians (e.g. opposition parties) and other interested pressure groups.
• Wherever possible, refer to statements and findings made by international bodies when pursuing cases before domestic courts or administrative procedures.
• In Canada, lobby for the government to ratify the Optional Protocol to the CRPD (containing the complaint mechanism) and the Optional Protocol to the ICESCR (containing the complaint mechanism) so that these international mechanisms can be used by Canadian disability rights activists.

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