Ombudsman institutions and article 33(2) of the United Nations Convention on the Rights of Persons with Disabilities.

• Author: Reif, Linda C.
• Position: The Impact of International Law on Canadian Law

INTRODUCTION

It is estimated that over one billion persons around the world live with some form of disability. (1) Persons with disabilities (PWDs) are often discriminated against and subjected to more egregious treatment by state and non-state actors. Women and girls with disabilities are often maltreated, suffering violence, exploitation, and forced sterilization. (2) Most of the children with disabilities who live in developing countries have no access to education. (3) The elderly often live with disabilities, either longstanding or appearing with the aging process. (4) In industrialized countries, increasing numbers of prisoners are PWDs due to the percentage of inmates with mental health needs and the growth in the geriatric inmate population. (5) Furthermore, the majority of PWDs live in poverty. (6)

In recent years, the international human rights system has paid greater attention to articulating and enforcing the human rights of PWDs. Moving from the initial use of medical or welfare models, the international community has adopted a social model of disability. (7) The social model is reflected in the broad spectrum of human rights enshrined in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which came into force in 2008. (8)

Article 33(2) of the CRPD requires states parties to establish or designate a framework of one or more independent mechanisms to protect, promote, and monitor the domestic implementation of their CRPD obligations, taking into account the United Nations (UN) Paris Principles on national human rights institutions (NHRIs). (9) National level human rights commissions and human rights ombudsman institutions are the predominant types of NHRIs. (10) However, there are other independent non-judicial public sector institutions that can also play a role in furthering domestic compliance with the state's CRPD obligations. These institutions are predominantly sub-national human rights ombudsman institutions and human rights commissions, national and sub-national classical ombudsman institutions, and thematic human rights institutions, such as equality and disability rights bodies. Some CRPD parties are establishing multi-institutional article 33(2) frameworks that include a NHRI as well as additional institutions. The Committee on the Rights of Persons with Disabilities (CRPD Committee) is the CRPD's treaty body and it determines whether the frameworks established by CRPD parties comply with Article 33(2). In doing so the CRPD Committee applies the Paris Principles which have been authoritatively interpreted by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). (11)

Based on the work of the CRPD Committee and ICC, when a CRPD party establishes an article 33(2) framework consisting of one institution, it must be a Paris Principles compliant national human rights ombudsman or national human rights commission. However, the CRPD Committee has not yet squarely addressed whether all of the institutions in a multiple mechanism article 33(2) framework must be Paris Principles compliant or whether inclusion of one Paris Principles compliant NHRI will suffice. This paper will demonstrate how the ICC interpretation of the Paris Principles and its accreditation process permits ICC accreditation of only one NHRI in a state and usually excludes other independent national and sub-national institutions from being classified and accredited as NHRIs. These institutions are not considered to be fully Paris Principles compliant because of their sub-national status, their thematic human rights focus, and/or their lack of an explicit human rights mandate. However, these other independent state institutions can protect and promote CRPD rights.

To enable CRPD parties to establish the multiple institutional frameworks permitted by article 33(2), I argue that a multiple institutional framework should be acceptable to the CRPD Committee as long as one of the institutions included in the framework is a Paris Principles compliant NHRI, the other institutions included in the framework meet most of the Paris Principles' essential requirements (including independence from government and adequate funding), and the multiple institutions working together can fulfill the promotion, protection, and monitoring roles required by article 33(2). The Paris Principles' essential requirement that a NHRI must have a legal mandate for the promotion and protection of all human rights should be adapted in its application to other national and sub-national statutory institutions in a CRPD article 33(2) framework to accept a legal mandate that either expressly or in practice permits them to promote and/or protect CRPD rights. In this way, classical ombudsman institutions, sub-national human rights ombudsman institutions, subnational human rights commissions, and thematic human rights institutions can be included in a multiple body article 33(2) framework. (12) This approach will be applied to recommend changes to Canada's article 33(2) multiple institution framework.

CATEGORIES OF OMBUDSMAN INSTITUTIONS

Ombudsman institutions can be roughly divided into classical, human rights, and thematic human rights ombudsman institutions. They are found at national, subnational (in provinces, states, and autonomous communities), and supranational European Union (EU) levels of government. National level human rights ombudsman institutions qualify as NHRIs which is an important consideration given article 33(2) of the CRPD.

As ombudsman institutions around the world are being given a variety of new roles beyond their original function of combating maladministration, it becomes increasingly difficult to place them in clear cut categories. Some human rights ombudsman institutions have been designated by their state as a national preventive mechanism (NPM) under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and/or a CRPD article 33(2) independent mechanism. (13) In a few cases, classical ombudsman institutions have been given express human rights mandates when they have been designated as OPCAT NPMs and/or CRPD article 33(2) mechanisms, giving them treaty-derived functions in furthering their state's compliance with its international human rights treaty obligations. (14)

1. Classical Ombudsman Institutions

   There are still many ombudsman institutions with mandates that focus on combatting maladministration and are silent on human rights protection. The classical ombudsman is typically appointed by and reports to the legislature to oversee the conduct of the administrative branch of government. (15) Most classical ombudsman institutions have jurisdiction only over the public sector and have the powers to investigate government authorities on receipt of a public complaint or on their own motion, make recommendations if illegal or unfair conduct is uncovered, and submit annual and special reports to the legislature and the public. (16) Some classical ombudsman institutions also have additional powers, such as undertaking inspections of facilities and suspicious death reviews. Classical ombudsman institutions are found in many common law countries and in some civil law and mixed jurisdictions. (17)

   While the bulk of classical ombudsman work addresses domestic law and policy, even classical ombudsman institutions occasionally use international and domestic human rights law in their work given that classical ombudsman institutions apply standards of legality and fairness in their investigations. (18) International law obligations of the state may be domesticated which permits their application by the ombudsman. Fairness standards enable ombudsman institutions to use international law norms as examples of state obligation and good practice. The extent to which classical ombudsman institutions can and do use international and domestic human rights norms depends on a variety of factors. (19)

2. Human Rights Ombudsman Institutions

   Human rights ombudsman institutions have express human rights protection mandates in their governing legal framework and some are also endowed with human rights promotion functions. (20) Human rights ombudsman institutions were established initially in Portugal and Spain in the 1970s and the number of these types of ombudsman institutions has increased considerably over the past four decades. Today, they represent at least fifty percent of total national level ombudsman institutions worldwide. (21) Human rights ombudsman institutions are found mainly in civil law nations. (22) They are located in most Latin American and Central/Eastern European nations, their numbers are increasing in Western Europe, and they are also scattered throughout other parts of the world. (23)

   Like the classical ombudsman, the human rights ombudsman is typically appointed by the legislature, reports to the legislature, and has the mandate to monitor public administration. A few human rights ombudsman institutions also have jurisdiction over private sector actors. (24) While some address purely human rights matters, others have both human rights functions and classical ombudsman administrative justice mandates. (25) All human rights ombudsman institutions have the power to undertake investigations against public authorities, make recommendations for redress, and report to the legislature and the public. Investigations are launched on receipt of complaints from members of the public. Many human rights ombudsman institutions also have the power to commence their own investigations. Further, many human rights ombudsman institutions have additional powers, such as inspections of facilities where persons are confined involuntarily, launching court actions before constitutional and administrative law courts to determine the constitutionality or legality of laws, making law reform...