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

• Author: Jennifer W. Reiss
• Date: 01 January 2014
• Published date: 01 January 2014
• DOI: http://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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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.

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