Innovative Governance in a Federal Europe: Implementing the Convention on the Rights of Persons with Disabilities

Date01 January 2014
Published date01 January 2014
DOIhttp://doi.org/10.1111/eulj.12050
Innovative Governance in a Federal
Europe: Implementing the Convention on
the Rights of Persons with Disabilities
Jennifer W. Reiss*
Abstract: A recent development in European law, less heralded, but no less path-
breaking than the Treaty of Lisbon, was the ratif‌ication by the EU of its f‌irst human
rights treaty—the United Nations Convention on the Rights of Persons with
Disabilities (CRPD). Concluded as a mixed agreement, the CRPD’s pioneering
monitoring mechanisms demand a high level of cooperation from both the Union and its
Member States. It, thus, provides an opportunity for the Union to further develop a
distinctly European notion of federalism by the use of new, innovative governance
mechanisms. This article looks at the Union as a federalist project through the prism
of the mixed agreement, and specif‌ically the ways that federalism may be balanced
within it, using the CRPD as an example. Although the Union has an existing Code of
Conduct under the Convention, it lacks true engagement with these issues, and this
article proposes changes to that end.
I Introduction
When the Treaty of Lisbon entered into force on 1 December 2009, the EU funda-
mentally changed the frameworks by which its institutions operate. The tripartite
pillar structure is gone, new leadership positions have been introduced, the Commu-
nity has ceased to exist, and a streamlined Union has succeeded to its legal obliga-
tions. As the EU settles into the twenty-f‌irst century, it moves farther away from the
early alliance to promote economic solidarity, and closer to a unif‌ied polity with
comprehensive economic, political and social power.
Amidst this metamorphosis, the EU (as the EC) formally participated in the nego-
tiation of its f‌irst international human rights treaty, the United Nations (UN) Con-
vention on the Rights of Persons with Disabilities (CRPD).1But the CRPD is a
breakthrough in more ways than one. It is the f‌irst UN human rights treaty of the
* Associate, White & Case LLP; Former Associate, Center for Human Rights and Global Justice, New
York University School of Law. LL.M., Cambridge University, 2010; J.D., Harvard Law School, 2011;
B.A., University of Pennsylvania, 2007. Many thanks to Gráinne de Búrca for advice on drafts of this
article.
1G. de Búrca, ‘The European Union in the Negotiation of the UN Disability Convention’, (2010) 35
European Law Review 174.
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European Law Journal, Vol. 20, No. 1, January 2014, pp. 107–125.
© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
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twenty-f‌irst century;2it adopts a modern ‘social model’ of disability3to explicitly
recognise the legal rights of the world’s largest marginalised group,4and in a break
from its predecessor treaties, the CRPD contains novel provisions for implementation
and monitoring,5portending a ‘progressive[] reconf‌igur[ation] of the structure and
process of human rights oversight.’6
The CRPD provides for a treaty monitoring body (the Committee on the Rights of
Persons with Disabilities) with an international Conference of States Parties to
monitor periodic State reports and to issue general recommendations, and it is sup-
plemented by an Optional Protocol under which it can receive individual or collective
complaints.7But these traditional functions and institutions are underpinned by the
requirement to establish a national framework for implementation of the Convention
into domestic law—for example, a national human rights institution to monitor
implementation8—governed by national ‘focal points’ to facilitate coordinate steps
taken by national and subnational organs to fulf‌il the Convention. The CRPD also
requires the cooperation with non-governmental organisations, which, it is hoped, will
be facilitated by these organisational centres. The CRPD, thus, revolutionises gov-
ernments’ accountability to the international community.
This unusually activist stance from the UN on monitoring and implementation has
already grabbed the attention of academics and policy makers.9In Europe, however,
the questions posed by the CRPD go far deeper than merely how to more effectively
translate treaty commitments into practice. The conclusion of the CRPD by the EU
itself10 poses interesting questions regarding the acceptance of human rights as a
fundamental part of the ‘constitutional’ character of the EU and the potentially wide
breadth of Union legislation affected by the Convention obligations. Moreover, the
convergence of extensive reform to the system of international human rights imple-
mentation, its embrace by the EU and the wholesale reform of the European
2Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, UN GAOR, 61st Sess. Supp.
No.49, UN Doc. A/RES/61/106/Annex II, at 65 (13 December 2006) (entered into force 3 May 2008;
hereinafter CRPD).
3For an overview of the social model of disability, see M. Stein, ‘Disability Human Rights’, (2007) 95
California Law Review 75, 85–93.
4G. Quinn, ‘A Short Guide to the United Nations Convention on the Rights of Persons with Disabilities’,
(2009) 1 European Yearbook of Disability Law 89, 89–90.
5CRPD, supra n 2, Arts 33–40. For an overview of the CRPD, see M. Stein and J. Lord, ‘Monitoring the
Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future
Potential’, (2010) 32 Human Rights Quarterly 689.
6ibid, at 690.
7Optional Protocol to the Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, UN
GAOR, 61st Sess. Supp. No. 49, UN Doc. A/RES/61/106/Annex II, at 65 (13 December 2006, entered
into force 3 May 2008).
8An ‘institution’ is not mentioned specif‌ically, but in creating such a framework, nations are to take into
account the UN’s 1993 Paris Principles on national institutions that protect human rights, thus suggest-
ing that such an organ was what the framers intended. The ‘framework’ can take the form of adminis-
trative commissions or ombudsman, who are charged with raising public awareness, performing
quasi-judicial functions by addressing complaints, reviewing proposed legislation, reporting on the state
of domestic human rights, and working with the UN to encourage ratif‌ication of human rights treaties.
United Nations, Handbook for Parliamentarians on the Convention of the Rights of Persons with Disabili-
ties and its Optional Protocol (United Nations, 2007), at 96–98 (hereinafter Handbook). For a further
discussion of the purposes of focal points, see infra n 92.
9M. Stein and J. Lord, supra n5.
10 Dec 2010/48/EC, 2010 O.J. (L 23) 35. The Commission is designated as the ‘focal point’ for coordination
under the CRPD.
European Law Journal Volume 20
108 © 2013 John Wiley & Sons Ltd.

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