Panel Presentation by Alex Neve, Secretary General of Amnesty International (Canada)

(Alex Neve has been Secretary General of Amnesty International Canada since January 2000. He has been a member of Amnesty for twenty years, having joined when he was a student at Dalhousie University in Halifax. He has worked for the organization nationally and internationally in a number of different roles, including research missions to Tanzania, Guinea, Mexico, Burundi, Colombia, Honduras, Zimbabwe, South Africa, Cote d'Ivoire and Ghana. He has appeared before various UN human rights bodies, Canadian parliamentary committees and has represented Amnesty International at numerous international meetings. He speaks and writes regularly in the national media on a range of human rights topics. Alex is a lawyer, with a Master's Degree in International Human Rights Law from the University of Essex in the United Kingdom, and undergraduate commerce and law degrees from Dalhousie. He has practiced law in Toronto, privately and in a community legal aid clinic, primarily in the areas of refugee and immigration law. He has taught international human rights and refugee law at Osgoode Hall Law School in Toronto and has been affiliated with the Centre for Refugee Studies at York University. Prior to taking up his current position he served as a Member of Canada's Immigration and Refugee Board.)

Thank you very much, Steve.

I want to begin by letting all of you know who and what I am not. I am not an expert on disability rights. I also am not someone who personally has been involved in or is even closely following the negotiations of this very important convention. I do have other colleagues within Amnesty International who have been doing that.

What I am, though, is someone who passionately believes in a strong and effective international human rights system that protects the fundamental rights of all people equally. That is the perspective that I will try to share with you this morning in my comments.

I want to start with an obvious but fundamentally critical observation. Human rights protection relies on compliance. Governments may make many, many fine human rights promises, and they have. It is I suppose fitting that you are meeting today, December 9, one day before tomorrow, December 10, which is, of course, International Human Rights Day, and that day marks the 57th anniversary of the adoption of perhaps the most fundamentally important human rights document of all, the Universal Declaration of Human Rights.

An avalanche of other promises has followed. Andrew referred to some of these. Many have taken the form of treaties, legally binding documents, the International Covenant on Civil and Political Rights and its companion, dealing with economic, social and cultural rights, being arguably the two most important, I suppose because of the fact that they are overarching in their scope. There are also specific treaties dealing with women's equality, racial discrimination, the rights of children, torture, the protection of migrant workers, and now, hopefully, we actually stand on the cusp of doing yet another international treaty, dealing with very critical human rights issue of disabilities. Beyond treaties, governments have made a multitude of promises in other forms as well, declarations, principles, resolutions, plans of action, and on and on and on. That is just at the United Nations level. Add in regional multilateral bodies, like the Organization of American States, the Council of Europe, the African Union, the Commonwealth, and many others, all with their own set of human rights promises of some sort.

Therefore, yes, governments have made many fine human rights promises. Of course, we all hope that with the eventual successful completion of the negotiations around this important convention, there will be another set of promises that governments have made to the world community. However, one need not look too far or think too hard to realize that many, many of those promises remain unfulfilled, and, in fact, are often cruelly violated on a daily basis: everywhere, in Darfur, in China, in Iraq, Guantanamo Bay, here in Canada. Violations and abuses committed by a variety of actors, by government officials, by police, by armies, by paramilitary groups, rebel organizations, terrorist groups, and violations and abuses that touch on the entire range of rights, the right to life, to be free from discrimination, not to be tortured, to have access to basic health care and education, to be able to freely express one oneself. How can that be—so much good work done by governments over the years, encouraged and supported by civil society groups. Careful, sometimes contentious negotiations over wording, getting it just right, positioning the commas and semicolons in just the right places. Seeking just the right balance. To come up with promises that governments felt they could make, felt they could keep, and felt they could sign on to, and sign on they did.

All for naught? Why the gap between promise and reality? One very clear lesson that has emerged over these past six decades of international human rights protection is that human rights promises remain empty without strong and effective means of oversight and enforcement to ensure that there is implementation and compliance. Oversight, implementation, monitoring, compliance. There are shades of difference among those various terms, but the bottom line quite simply is that there has to be a system in place to ensure that governments will live up to their promises. They have to be watched, and they have to be encouraged to succeed. They have to be called to account when they fall short.

The traditional approach at the UN, of course, has been to set up committees to oversee each treaty that has come along, and each does have one. The Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, the Committee on the Elimination of Racial Discrimination, the Committee against Torture, the Committee on the Rights of the Child, more recently the Committee on Migrant Workers. Their powers vary. Each, however, is supposed to receive periodic reports from the States that have ratified, providing details as to what has been done to live up to the obligations of the particular treaty. The committee reviews the report, often receives submissions—sometimes extensive submissions from civil society groups as well—and then issues its own report setting out a set of recommendations for reform.

That is the theory. Practice has been a bit of a challenge. Many governments fail to produce and submit their periodic reports at all, or are woefully late in doing so. Those governments that do report have a haphazard record at complying with the recommendations that emerge, at the end of the day. I would have to include Canada in that latter camp. In fact, Amnesty International and many organizations in this country have been expressing increasing concern about Canada's record of unimplemented recommendations from a whole range of UN human rights bodies.

The other approach is to allow individual complaints to be made about violations of the treaties. That is a possibility for all of the treaties except the one dealing with economic, social and cultural rights and the one dealing with the rights of children. Canada has agreed to receive individual complaints when it comes to the International Covenant on Civil and Political Rights, the convention dealing with torture, and the convention dealing with discrimination against women. We have declined to accept that right of individual complaint with respect to the racial discrimination convention, and we have not yet signed on to the migrant workers convention, so the possibility of individual complaints there is simply illusory.

In those instances, a complaint is made by an individual, who feels aggrieved. In a sort of quasi-judicial setting, it is adjudicated by the committee, which issues what are termed a set of views—not a binding court judgment. No one will be thrown into jail, if they do not comply. It is recommended again, and again. The track record is uneven. Canada has complied with the views of the Human Rights Committee regarding Aboriginal women losing Indian status when they married non-Aboriginal men, as one example. Canada has failed to comply as well. The 1990 case, 15 years of non-compliance, of the Lubicon Cree in northern Alberta, where the Human Rights Committee called on Canada to reach a just settlement of a long-standing land rights dispute. Amnesty International participates actively in all of this monitoring and oversight.

I personally was in Geneva in October, presenting an Amnesty International report at the time of the most recent Human Rights Committee review of Canada's record under the International Covenant on Civil and Political Rights. A superb set of recommendations was issued by the Committee, which we are now pressing Canada to implement, and sadly, many of the recommendations the Committee made this year are recommendations that they and other UN bodies have made previously.

Beyond Canada, globally, Amnesty International contributes probably about 25 briefings a year to the various treaty bodies. Throughout that experience, we have certainly come to appreciate first-hand the strengths and weaknesses of the current system. We have understood and welcomed various discussions and processes that have been launched over the years seeking to strengthen and reform the treaty bodies.

Just to step to the side here for a moment, as an aside, it is probably worth noting that perhaps the most significant advance in international human rights enforcement in recent years has come outside the treaty system, and that is initiatives that hold individual violators rather than governments per se accountable for violations and abuses. I am thinking of new institutions like the International Criminal Court. That is a digression. I want to keep us focused on the treaty system.

The problems with the treaty system as it exists now are legion, starting with membership of the various committees. Canada has proposed some fine members over the years and some fine Canadians have actually served on those committees: Most recently, Max Yalden, a member of the Human Rights Committee for eight years, and Peter Burns, a law professor at the University of British Columbia, who was on the Committee against Torture for, I think, close to 20 years. But overall, the selection process is by no means transparent and usually takes place without any consultation at national levels. The terms of the treaties do require committee members to be both independent and expert, but reality is that many of the members serve simultaneously on the Committee while also still being part of their governments, and their levels of expertise are — maybe the charitable way to put it would be—often questionable.

There are other challenges. I have already referred, of course, to the non-binding nature of the recommendations that come out of the committees, the overdue reports. Across the treaty body system at the beginning of this year, the beginning of 2005, there were 1,400 overdue reports from governments. There are significant backlogs within many of the committees. I suppose, to a certain degree, we can be thankful therefore that there are so many reports overdue, because the committees are backlogged already with what they have and there is chronic under-funding. All of that is at the international level.

Another significant problem arises nationally in that governments do not have effective processes in place to ensure consultation and review in advance of the preparation of reports, or reliable follow-up after the treaty body has completed its review.

Canada, with its great global reputation, well deserved for human rights protection—I am sorry to say—often falls into this camp, particularly when it comes to having sufficient national level processes in place to ensure proper follow-up. UN recommendations often deal with issues that implicate a number of different government departments at both federal and provincial levels, and that gives rise to institutional uncertainty. UN recommendations consistently seem to fall into an institutional vacuum, where it is often even impossible to determine who within government is responsible for ensuring follow-up.

The disabilities convention is being finalized in the midst of all of this, and at a time, when there is considerable debate about the future of the current treaty monitoring system. Recommendations for reform of that deeply flawed system abound. The most radical proposal that has emerged in the midst of that debate has actually come from the UN itself, from the High Commissioner for Human Rights, our own Louise Arbour, from her office. The suggestion is that there should be a new unified standing treaty body dealing with all of the treaties. A concept paper detailing that proposal further is expected early next year.

We are, of course, interested to see that paper and to continue to engage in that debate. However, our general position, at this point in time, is that other critical aspects of UN human rights reform need to go forward and be solidified. First, notably, for instance, the effort to replace the UN Commission on Human Rights with a new human rights council, before radical treaty reform is launched. Radical reform should only be considered after in-depth analysis is carried out of the personnel problems.

But where does that leave the disabilities convention? It is rather an unsettled time to be pushing ahead with establishing a new treaty-based monitoring process when the whole approach to treaty monitoring is open for debate. Here are a few key principles that we offer, as guides, I guess, to what should be taken into account in the development of monitoring for the disabilities convention, which draw upon the many lessons learned about the numerous and very serious shortcomings of the present system, and taking account of this rather fluid current context.

First, absolutely the convention needs a well conceived and vigorous approach to monitoring to ensure effective implementation. Do not let anyone ever suggest otherwise to you. A weak approach would jeopardize the achievement of the overall purpose of the convention, and beyond the convention it would diminish the human rights treaty monitoring system more widely. Yes, absolutely, alternatives to the standard traditional flawed approach to monitoring can and should be explored, but any alternate must ensure effective implementation of the convention.

Second, the real nuts and bolts of implementation of this convention or any other convention, of course, takes place at national level. The approach to monitoring must encourage and contribute effectively to national implementation, while provides strong and effective links between the national and international levels.

Amnesty International has actually made some detailed comments about what should be entailed in strong international monitoring of this convention. You have that paper in your conference materials. It is our offering meant to flesh out the provision in the draft convention dealing with national implementation and monitoring.

Third, any monitoring system must be grounded in the existing human rights framework, take account of disability specific standards and procedures, be supported by the office of the High Commissioner for Human Rights, and the Department of Economic and Social Affairs, and other relevant agencies. All of that is to say that we need to look for something that is integrated and cohesive, and that stands to strengthen protection of the rights of persons with disabilities throughout the UN system.

Fourth, the approach to monitoring must provide for strong interaction with civil society, particularly, of course, organizations of persons with disabilities.

Fifth, the monitoring approach needs to ensure the independent and impartial — those are two key words — review of implementation and create a source of indisputable expertise on disability rights within the existing human rights framework. That has to be at the heart of any effective process of implementation and oversight. Independence, impartiality, and expertise.

Sixth, any monitoring mechanism that is established under the convention must be adequately funded, staffed, and provided with effective secretarial support.

What might the international level monitoring look like? Well, to start with, it is a chance to improve on the existing committees, and that gets us into some fairly technical issues that I will not go into here, but it is things like considering the possibility of limited terms for members. That is something we have seen included in the new treaty—hopefully soon to be adopted—dealing with disappearances. Some clarity around the powers and provisions of the committee. The powers of the committees often need to be included. I will not go into all of that here.

It is also a good moment to think about innovation. Amnesty International is supportive of proposals that many have made, suggesting that something along the lines of what has been called a global disability rights advocate or ombudsman. A high-ranking and full-time UN official, who could be a focal point within the UN system and who could have a complementary relationship with the treaty monitoring body, would be an interesting advance.

One last word. It is critical that the negotiations on monitoring mechanisms not be held hostage to this current reform process, which is clearly going to take place over the long term. Instead, a clause could be included in the treaty to make provision for the eventual transfer of the functions of the new committee to any new unified treaty body should one be established. That approach has been taken in the new draft treaty on disappearances.

So what does all this add up to? Amnesty International believes that it is essential to pursue a dual track approach to monitoring. A consolidated reference point within the treaty monitoring system is necessary, with authoritative expertise on disability rights, and broad access for persons with disabilities, and that should be combined with efficient means of mainstreaming and building on existing standards and procedures, within the human rights framework, and the work of international and regional agencies.

We certainly look forward to continuing to work with Steve, with the rest of you, to ensure that what emerges offers effective advances in protecting the rights secured under this convention, and strengthens and bolsters the universal system writ large for the protection of human rights—all rights, all people.

Thank you.

9 December 2005