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Art.40 Conference of States Parties

Ilias Bantekas

From: The UN Convention on the Rights of Persons with Disabilities: A Commentary

Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
01 November 2018
ISBN:
9780198810667

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Subject(s):
Disability — Jurisdiction

(p. 1135) Article 40  Conference of States Parties

  1. 1.  The States Parties shall meet regularly in a Conference of States Parties in order to consider any matter with regard to the implementation of the present Convention.

  2. 2.  No later than six months after the entry into force of the present Convention, the Conference of the States Parties shall be convened by the Secretary-General of the United Nations. The subsequent meetings shall be convened by the Secretary-General of the United Nations biennially or upon the decision of the Conference of States Parties.

1.  Introduction

The older generation of human rights treaties prior to the 1990s simply set out the pertinent rights and at best established a quasi-judicial entity to receive and assess periodical state reports and individual communications. This monitoring and implementation model is best exemplified with the ICCPR. The absence in this model of an inter-governmental entity that would possess several administrative, fundraising, and enforcement capacities led to the adoption of treaties since the early 1990s whereby a conference (or assembly) of parties (COP) undertook a variety of functions and powers.1 The greatest advancements typically associated with the operations of COP (p. 1136) are in the field of environmental law, which in turn convinced treaty makers to establish similar entities in treaties dealing with international and transnational crimes, such as the Assembly of Parties (ASP) to the Rome Statute of the International Criminal Court (ICC)2 and its counterpart in the context of the 2003 UN Convention against Corruption.3 The Conference of States Parties (COSP) in article 40 CRPD is therefore part of an established tradition whose principal aim is to keep the Convention alive by stimulating actions, collaborations, enforcement, capacity building and others. It should be pointed out that the new generation of COSP, which is the case also with the CRPD COSP, broadly exercise parliamentary functions with wide stakeholder participation, where members as well as non-members may express views and offer insights.4 Although this parliamentary function of the CRPD COSP has not necessarily produced concrete results at the inter-state or transnational level, it may nonetheless influence pertinent processes at the domestic level.

The enforcement powers of the COSP are severely limited, if any, and should not therefore be compared to those enjoyed by entities with enforcement powers, such as the UN Security Council or the Council of the European Union. Although the powers and functions of the COSP could be achieved outside the legal person of the COSP on the basis of joint action by CRPD member states, the formal collectivization of member states ensures annual discussions on important and emerging issues affecting disability rights, and contributes towards a consistency among a group of equal partners undertaking the same obligations. This outcome could not be achieved in the absence of a formal entity. Even so, the CRPD COSP has not so far pushed the boundaries of its capacity or its mandate; quite the contrary. Its actions have been largely discussion-based and of a hortatory nature and has not assumed the type of supervisory and dynamic actions typically associated with environmental COSP.

2.  Background and Travaux Préparatoires

The creation of a Conference of States Parties (COSP) was not contained in all the reports of the second preparatory session,5 but elsewhere there was ample reference. In a working paper submitted by Mexico and endorsed by the ad hoc committee during the second session, a draft article 19 envisaged the establishment of a conference with far greater authority than the current version in article 40. More specifically, it was to be vested with authority to: a) evaluate the operation and status of the Convention; b) promote international cooperation and assistance; c) consider the recommendations and suggestions of the Committee and; d) elaborate a final report on agreements reached among its members and submit these to the UN Secretary-General.6 More specifically, the Mexican (p. 1137) non-paper suggested the following actions as far as the conference of states parties was concerned:

  1. 1.  A Conference or Meeting of States Parties could have an active role in overviewing the implementation of the Convention, by using it as a forum that may review any matter related to the operation of the Convention.

  2. 2.  As such, the Conference would engage in activities that could include the discussion and review of issues related to the operation and implementation of the Convention; the setting of goals and targets on implementation; and the promotion of international cooperation and assistance.

  3. 3.  Aside from this, the Conference would also perform other more frequent functions such as the consideration of additional norms to the Convention and elections.

  4. 4.  The Conference could also play a significant role in defining possible reforms of the monitoring mechanism.

  5. 5.  The Conference of States Parties should meet regularly to discharge its work. Due consideration should be given to the frequency of meetings that will be necessary in this regard.

  6. 6.  The modalities of work of the Conference should also be considered, including the participation of other stakeholders.

From there, until the seventh preparatory session the idea for a COSP had matured but did not receive much attention. During the seventh session of the ad hoc committee, the facilitator proposed a much more elaborate version of article 40 (then draft article 42). He added at the end of paragraph 1 the following: ‘including the operation and status of the Convention; matters arising from experience in the implementation of the present Convention; and the facilitation of international cooperation and the exchange of information and best practices for the implementation of the present Convention’.7 While there was general support for the thrust of this provision, it was felt that it spelt out the Conference’s powers in very specific terms and was ultimately rejected. Moreover, draft paragraph 2 stipulated that ‘two years after the first election of the members of the Committee, the Conference shall be convened by the UN Secretary-General’. This was equally rejected. The facilitator further added two more sub-sections that were also rejected by the ad hoc committee, namely that:

  1. 3.  When fundamental changes have affected the human rights treaty body system, the Conference of States Parties will decide, by a majority of two-thirds of the States present and voting, whether it is appropriate to transfer to another body—without excluding any possibility—the functions pertaining to the implementation of the present Convention.

  2. 4.  In any event, a Conference of the States parties will take place at the earliest four years and the latest six years following the entry into force of the present Convention to evaluate the functioning of the Committee.8

The current version of article 40 was cemented in the final preparatory session and was retained in the final text of the Convention.9 Stein and Lord correctly point out that one (p. 1138) of the key aims of the COSP was to bring around the same table not only states but also NHRIs, NGOs,10 UN agencies, and other actors with a view to reflecting on how best to operationalize the Convention. Such a forum would avoid criticisms levelled in the past against the UN Human Rights Committee—and perhaps at a future time the CRPD Committee—of assuming powers (as was the case with its GC on reservations)11 that were never conferred upon it by member states.12

3.  Paragraph 1

Paragraph 1 of article 40 gives rise to three distinct, but certainly inter-related issues, namely: a) the Conference’s legal personality, if any; b) its internal organization and; c) its competences, or powers, particularly whether besides its express powers it also enjoys implied powers. These matters are not discussed in the text of the CRPD or its travaux and hence the considerations outlined here are predicated on general international law within the context of the COSP and the intentions of the parties.

3.1  Legal Personality

Neither para 1 nor other provisions in the CRPD specifically confer any distinct legal personality on the COSP. Even so, the COSP is expected to ‘consider any matter’ relating to the Convention’s implementation. Although the conferral of such a broad express power does not automatically also confer legal personality, it does at the very least necessitate that when the COSP is engaging with other actors (inter-governmental or private) it enjoys some legal personality, particularly given that the CRPD itself is not an international organization, which would have allowed it to contract with third parties under its own legal person. The practice of other COP confirms the existence of this implicit international legal personality, chiefly for practical reasons. COP to environmental treaties regularly, for example, adopt decisions by which they appoint a third entity as a trustee to a financing mechanism stipulated under their founding treaty,13 followed thereafter by the conclusion of a memorandum of understanding (MoU) with the designated trustee.14 The UN Legal Counsel has made it clear that COP operating under universal treaties possess the legal capacity, within the limits of their mandate, to enter into agreements and other arrangements with both state and non-state entities.15 Several commentators have gone as far as argue that several COP to environmental treaties operate not as mere treaty bodies but as ‘international organisations with a distinct legal (p. 1139) personality’, especially where they possess power to establish subsidiary bodies, amend their founding statutes, adopt protocols, or interact with other international organizations, among others.16

The COSP’s powers and functions under the CRPD are especially broad, although not necessarily invasive or of an enforcement nature. As will be explained in the section dealing with its competences, the term ‘consider’ in article 40(1) CRPD encompasses also the authority to implement and undertake pertinent action. This may include the establishment of a trust fund for purposes of fundraising, employing third parties as advisors for capacity building, entering into agreements which ultimately give rise to locus standi before judicial and executive bodies (eg procurement), and others. Moreover, given that a decision of the COSP regarding the appointment and functioning of the CRPD Committee under article 34(5) of the CRPD may give rise to a dispute between itself and a state party, its resolution necessarily confers legal personality on the COSP as a party to the dispute.17 Finally, in accordance with article 47(1) CRPD the COSP may by a two-thirds majority decide to amend the Convention. This is an important power that would otherwise have rested with the states parties. It is clear that if the COSP is to undertake all the aforementioned actions, its international legal personality is both express and implicit (particularly as regards the term ‘consider’).

Exceptionally, states parties may expressly agree prior to a treaty coming in force that several powers of the COP be curtailed on the basis of interpretative declarations.18 No such interpretative declarations have been entered in respect of the COSP’s powers to the CRPD, but this may well occur in the future if the COSP assumes powers and functions at the dismay of one or more parties.

3.2  Organization of the Conference

Paragraph 1 of article 40 CRPD simply states that the Conference ‘shall meet regularly’, whereas para 2 goes on to say that subsequent meetings shall be convened by the UN Secretary-General (in his capacity as depositary) ‘biennially or upon the decision of the Conference’. Equally, article 40 is silent as to the organization and structure of the Conference.

3.2.1  Sources

The convening, organization, and operational aspects of the Conference’s meetings are regulated in more detail through three sources, other than the CRPD, namely: its own (p. 1140) internal rules of procedure;19 other rules and procedures of the United Nations, to the degree that the matter under consideration is not dealt with in the CRPD or the COSP’s own rules of procedure20 and; the practice of the COSP.

The COSP’s rules of procedure are adopted by the parties and are amenable to amendment but may not override the principal treaty, namely the CRPD. Moreover, such rules may not be invoked as justification for violating undertakings assumed under private or public international law.21 This is different to any privileges attributed, recognized, contractually agreed, or conferred upon the COSP as a result of its express or implicit legal personality. The rules cannot confer such privileges to the Conference.

Regarding the use of UN internal rules as a supplementary means of interpretation of the COSP’s powers and organisation, r 26 of the COSP rules stipulates that:

Any procedural matter arising at meetings which is not covered by these rules, shall be dealt with by the Chairperson in the light of the rules of procedure of the General Assembly which may be applicable to the matter at issue.

The UNGA’s rules of procedure deal with issues stipulated in the COSP’s rules, albeit with far more detail.22 On the basis of r 26 COSP rules, the UNGA’s rules of procedure carry the same legal weight as the COSP’s own rules. This is known as ‘incorporation by reference’, albeit in the case at hand the UNGA rules of procedure are a supplementary source of law for the Conference and in the event of conflict the COSP’s rules prevail.

Where the practice of the COSP is consistent and uniform (and without dissent), participating states cannot subsequently disassociate themselves from it as they will have no doubt created legitimate expectations to other parties within the framework of the COSP.23 This ‘binding’ nature emanating from the internal practice of constituent organs of international organizations24 and COP,25 while undeniable, is subject to the obvious limitation that it cannot override an existing rule of international law and that in any event it does not establish rights and obligations for third parties.

3.2.2  Organization

The COSP is composed of a standing organ, its Secretariat, and the participating states through a bureau. The function of the Secretariat is purely administrative26 and its operation is entrusted to the UN Secretary-General,27 who may in addition participate in (p. 1141) meetings by making written or oral statements.28 In practice, the UN’s Department for Economic and Social Affairs (DESA) is tasked with the role of co-Secretariat and it is the DESA that effectively, if not exclusively, services the COSP. Given the volume of work involved and the fact that those engaged with the COSP have other duties, as is the case with similar entities and treaty bodies in the UN system, the role of DESA is unsurprising. DESA possesses significant experience with disability-related issues as it serves as secretariat for the 1994 Standard Rules on Equalization of Opportunities for Persons with Disabilities and the 1982 World Programme of Action Concerning Disabled Persons adopted in 1982. In addition, DESA prepares publications and acts as a clearinghouse for information on disability issues; promotes national, regional and international programmes and activities; provides support to governments and civil society; and gives substantial support to technical co-operation projects and activities. It also services the work of the UN Special Envoy on Disability and Accessibility, the Forum on Disability and Development and the Expert Group Meetings on disability. This expertise makes DESA an ideal secretariat that moreover reduces unnecessary duplication, at least within the UN system.29

Besides setting the agenda, the Secretariat has progressively made more substantive comments on disability issues, particularly through background papers on the items identified in the Conference’s provisional agendas. These are typically short and concise (no more than ten pages) and are prepared on the basis of contributions by non-state actors.30

The bureau, on the other hand, is elected by the Conference and consists of one president and four vice-presidents, which serve for a term of two years.31 For the purpose of the Conference’s decision-making powers, a quorum exists when two-thirds of parties are present, in accordance with rule 12. Each state party at the Conference is represented by a single vote32 and the same is true of regional integration organizations that are parties, subject to the limitations stipulated in article 44(4) CRPD. Decisions are adopted by a majority of members present and voting,33 save for the special majority required for the election of CRPD Committee members.34 States that abstain from voting are not considered as ‘present and voting’,35 and as a result it is in the interests (and certainly an incentive) for states to participate in the COSP’s sessions. The Conference adopted its first decisions at its seventh session in 2014.

(p. 1142) 3.2.3  Meetings

Each annual assembly of the Conference is called a session. Each session is composed of meetings. Two types of meetings are envisaged in rule 1(1) of the COSP’s rules; ordinary, organized biennially, and extraordinary sessions upon the decision of the Conference. Observers, including states non-parties, international organizations non-parties, and NGOs, are allowed to attend meetings under rule 25 of the COSP’s rules.36 From a practical point of view, each meeting is organized around a series of round-tables, with each assuming responsibility for developing a particular agenda item with a view to its inclusion in a plenary discussion. Other forms of discussion include informal panels, as was the case with youth with disabilities at the seventh session in 201437 and interactive dialogues.38 The role of NGOs and NHRIs is much more important than this appears in the CRPD or the rules.39 As has already been explained in a previous section, the Secretariat prepares background papers on issues identified in the agenda in advance of each meeting. The bulk of the contribution to these background papers has thus far been made by NGOs. In addition, NGO statements are included in reports.

3.3  Competence of the Conference

It should be made clear from the outset that in respect of certain matters, member states enjoy unilateral competence (eg reservations), whereas in respect of others exclusive competence rests with the Conference. The latter is true, for example, as regards the election of Committee members in accordance with article 34(5) CRPD and amendment of the Convention under article 47(1) CRPD. In terms of competence, the Conference is effectively a formal collectivity of member states with a limited degree of legal personality. If the Conference did not exist, member states would have to rely on treaty or customary international law to resolve matters requiring collective action under the CRPD, assuming they decided to undertake collective action in the first place. By way of illustration, in case of proposals to amend the CRPD, the parties would have been bound to follow the rule laid down in articles 39 and 40 VCLT whereby a collective agreement is required.

The key phrase describing the Conference’s competence in article 40(1) CRPD is that which allows it to ‘consider any matter with regard to the implementation’ of the CRPD.40 A useful distinction should be highlighted from the outset. Depending on its mandate and constitution an entity may possess powers, functions, or both. A power refers to an authority, express or implied, involving a binding decision-making capacity that may lawfully be addressed upon its intended addressees. A power may be granted either by law (p. 1143) or private agreement (between the power-holder and the assignee) as is the case with the mandate of tribunals to decide a dispute. A function, on the other hand, does not confer decision-making authority to the assignee, but merely the ability to carry out a specific action. This dichotomy is useful also in the context of the COSP.41 Typical functions of the Conference include the organization of meetings, as well as the setting out of its agenda,42 whereas powers constitute the election of Committee members and amendment of the Convention. Both of the aforementioned powers and functions are express, because they are stipulated in the CRPD. Besides express powers, however, entities may be endowed with implied powers if these are necessary in order to carry out duties expressly assigned to the entity in question. This principle of implied powers was recognized in one of the first cases decided by the ICJ, the Reparations for Injuries case.43 Given that the Conference’s express powers are clearly spelt out in articles 34(5), 44(4), and 47 CRPD, it is necessary to examine whether article 40(1) gives rise to other express (although not clearly spelt out) powers. In this connection, the Conference’s power to ‘consider’ any matter pertaining to the ‘implementation’ of the CRPD necessarily excludes matters unrelated to implementation, but encompasses also the adoption of concrete ‘measures’, as otherwise the Conference would be reduced to a think-tank.44 Given our previous observation that the Conference is simply a formal collectivity of what member states would otherwise be entitled to undertake through joint action, the Conference is authorized to undertake any measure as long as it is consistent with general international law and assuming it does not conflict with the CRPD. Hence, if the majority of the parties in the Conference wished to adopt countermeasures against a party that persistently violated its obligations under the Convention, such a power would be encompassed under paragraph 1 because it is already available to member states in their individual capacity, but would have to be exercised within the limits of articles 49ff of the Articles on State Responsibility.

An issue of future contention is the relation between articles 33 and 40 CRPD, in the sense that under the Convention member states are solely responsible for implementation at the domestic level, with no pertinent power other than ‘considering’ having been conferred upon the COSP. We have already stated that other treaties, such as article 63 of the UN Convention against Corruption, authorize conferences to establish elaborate review mechanisms for this purpose. This is not the case with the COSP to the CRPD. The COSP to the CRPD is at present taking a distanced stance to domestic (p. 1144) implementation.45 However, if future domestic implementation weakens, civil society and concerned (powerful) states may assert a greater and more assertive implementation role for the COSP. Such an eventuality will no doubt be resisted by states relying on the express authority and delimitation of powers stipulated in article 33 CRPD, but may be admitted as lawful if it is found to be based on practice arising from tacit acquiescence or an absence of persistent objection in such a manner that manifests true consent.46

In terms of implied powers, and given the limited scope of the CRPD (as opposed to the UN Charter for example), their scope is limited. Anything that may assist, facilitate, or enhance the implementation of the CRPD qualifies as either an express power under paragraph 1 of article 40 or alternatively as an implied power under customary law. A typical example is the creation of a trust fund for the funding of capacity building, scholarships or other activities. This task may be delegated to the UN Secretary-General given the Secretariat’s expertise in setting these up.47 When the CRPD was adopted, the resources of the UN Voluntary Fund on Disability were extended to cover the implementation of the Convention.48 In practice, the Conference has not shown any desire to pursue, claim or adopt any implied powers and is content with its current role.

4.  Paragraph 2

The Conference of States Parties as an autonomous entity should be (and is) distinguished here from its sessions and meetings. The UN Secretary-General, not in his depositary function, was entrusted with the task of convening the Conference no later than six months after the entry into force of the CRPD. The Convention entered into force thirty days after the deposit of the twentieth instrument of ratification in accordance with article 45(1) CRPD. The Convention entered into force on 3 May 2008. The first meeting of the Conference took place on 31 October 2008.49

As far as its subsequent (post-2008) sessions are concerned, the Conference has been content for the UN Secretary-General, through DESA as described above, to set out the agenda for the meetings of its sessions (as well as to service these), to which it has always provided its approval.50 Up until 2016 no meeting had been arranged by the Conference through a decision adopted by its plenary.

Footnotes:

1  See Jutta Brunnée, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 Leiden JIL 1; Art 63(1) of the 2003 UN Convention against Corruption (CAC) established a COSP with extensive powers, namely to improve capacity and cooperation between states, as well as promote and review the implementation of CAC. To this end it has established an elaborate review mechanism of CAC—see CAC COSP, ‘Summary of the state of implementation of CAC’ UN Doc CAC/COSP/2015/5 (19 August 2015); for an analysis of COSP in the context of the negotiation of Art 40 CRPD see ‘Expert Paper on Existing Monitoring Mechanisms, Possible Relevant Improvements and Possible Innovations in Monitoring Mechanisms’, OHCHR, Ad Hoc Comm on a Comprehensive & Integral Int’l Convention on Protection & Promotion of the Rights & Dignity of Persons with Disabilities, 7th Sess UN Doc A/AC 265/2006/CRP 4 (2006) 65–66.

2  Art 112 ICC Statute; it should be remembered, however, that unlike the CRPD the ICC is an international organization.

3  Ch VII of the 2003 Corruption Convention.

4  See eg the COSP’s ninth session (2016), where in the course of the discussions on the 2030 SDG agenda, statements were made by two signatories and twelve NGO observers, in addition to states parties. COSP, Report of the Ninth Session UN Doc CRPD/CSP/2016/5 (16 August 2016) para 9.

5  Ad Hoc Committee, ‘Compilation of Proposals for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ UN Doc A/AC 265/2003/4 (16–27 June 2003).

6  Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, Working Paper by Mexico, Ad Hoc Comm, 1st Sess UN Doc A/AC 265/WP 1 (2002).

7  This was inspired by Art 63(4) of the 2003 UN Convention against Corruption and Art 11(1) of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction [Ottawa Convention].

8  Facilitator’s Text, Draft provisions for an implementing mechanism (11 August 2006) Rev 2, draft Art 42.

9  See generally Rosemary Kayess, Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 HRLR 1.

11  UN HRCtee, ‘General Comment 24’ UN Doc CCPR/C/21/Rev 1/Add 6 (1994).

12  Michael Ashley Stein, Janet E Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities and Future Potential’ (2010) 32 HRQ 689, 700.

13  UN Doc UNEP/CBD/COP/1, Decision1/2 para 2 and UN Doc UNEP/CBD/COP/2/19, Decision II/6 para 1.

14  MoU between the COP to the Convention on Biological Diversity (CBD) and the Council of the Global Environmental Fund (GEF) UN Doc UNEP/CBD/COP/3/38, Decision III/8; see also the MoU between COP to the Convention to Combat Desertification (CCD) and the International Fund for Agricultural Development (IFAD) regarding the Modalities and Administrative Operations of the Global Mechanism, UN Doc ICCD/COP(3)/10 (30 August 1999) Annex I.

15  Legal Opinion of 4 November 1993, UNJYB (1993) 427, 429.

16  Robin R Churchill, Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little Noticed Phenomenon in International Law’ (2000) 94 AJIL 623, 625–35. Para 11 of the 2008 (unedited version of the) Decision of the COP to the 1997 Kyoto Protocol confers upon the Adaptation Fund Board ‘such legal personality as [is] necessary for the discharge of its functions with regard to direct access by eligible parties and implementing and executing agencies … in particular legal capacity to enter into contractual arrangements and to receive projects, activity and programme proposals directly and to process them … as appropriate’.

17  The same is true, mutatis mutandis, in respect of possible disputes arising from the voting rights of regional organizations under Art 44(4) CRPD.

18  By way of illustration, on the basis of interpretative declarations to the CBD entered into by Switzerland, Italy, France, and the UK, the COP may only request developed countries to contribute financial assets to the ‘amount of resources needed’ and that the CBD does not authorize the COP to take decisions concerning the amount, nature, or frequency of the contributions from states parties. Available at 1760 UNTS 302 ff.

19  Provisional Rules of Procedure of the COSP to the CRPD UN Doc CRPD/CSP/2008/3 (14 October 2008).

20  Particularly r 26 COSP Rules of Procedure.

21  Given the COSP’s limited legal personality, any liability for breaches committed by the COSP will be incurred by its members, whether individually or jointly under the Articles on State Responsibility.

22  UNGA Rules of Procedure UN Doc A/520/Rev 17 (2008).

23  See below the discussion on the possible conflict between Arts 33 and 40 CRPD.

24  The internal practice of organs of international organisations is very much recorded and ‘codified’ as a result; see eg the Repertoire of the Practice of the UNSC, available at: <http://www.un.org/en/sc/repertoire/>.

25  The draft rules of procedure of the COP to the UNFCCC, although not formally adopted, have ‘governed its practice’; see Jutta Brunnée, Ellen Hey, ‘Transparency and International Environmental Institutions’ in Andrea Bianchi, Anne Peters (eds), Transparency in International Law (CUP 2013) 23, 32.

26  See eg rr 20 and 21 COSP rules of procedure. It does, however, possess authority to draw up the provisional agenda of the Conference’s sessions in consultation with the bureau under r 5 of the COSP’s rules, which is not a purely administrative function.

27  The function and powers of the UN Secretary-General as depositary should be distinguished from the conferral of secretariat duties. Although both require his consent, the former is conferred by the CRPD (as is the case with Art 34(6) CRPD) whereas the latter by internal rules. In any event, the practice of the UN S-G as depositary has given rise to customary powers and functions that are known in advance whereas his secretariat role involves further logistic and other considerations. See commentary to Art 41.

28  r 3 COSP rules of procedure.

29  The COSP-related provisions of other treaties, such as Art 64 of the 2003 UN Convention against Corruption, expressly mandate the UN S-G to provide full secretariat support and services.

30  See ‘Economic empowerment through inclusive social protection and poverty reduction strategies: Note by the Secretariat’ UN Doc CRPD/CSP/2013/2 (7 May 2013); ‘Incorporating the provisions of the CRPD in the post-2015 development agenda: Note by the Secretariat’ UN Doc CRPD/CSP/2014/2 (1 April 2014); ‘Youth with Disabilities: Note by the Secretariat’ UN Doc CRPD/CSP/2014/4 (1 April 2014); ‘Improvement of disability data and statistics’ UN Doc CRPD/CSP/2015/3 (1 April 2015); ‘Mainstreaming Disability in reduction of poverty and inequality’ UN Doc CRPD/CSP/2015/2 (1 April 2015); ‘Eliminating Poverty and Inequality for Persons with Disabilities: Note by the Secretariat’ UN Doc CRPD/CSP/2016/2 (30 March 2016).

31  r 9 (n 19).

32  r 14 ibid.

33  r 15 ibid.

34  This is regulated in Part X ibid.

35  r 16 ibid.

36  For a list of accredited NGOs during the seventh session, see Report of the seventh session UN Doc CRPD/CSP/2014/5 (31 July 2014) Annex 3 at 15.

37  ibid para 14.

38  The concept of a ‘meeting’, however, is somewhat confusing. In its fifth session, between 12 and 14 September 2012, the COSP stipulated that it held four meetings. These comprised elections for the Committee, two roundtables and an interactive dialogue. An informal meeting on an agenda item was not viewed as a meeting—see Report of the fifth session UN Doc CRPD/CSP/2012/2 (25 October 2012) para 2. In the previous session, however, an informal meeting on the right to work and employment was classified as a meeting—see ‘Report on the fourth session’ UN Doc CRPD/CSP/2011/2 (8 December 2011) para 2.

39  The same is also true as concerns the work of the CRPD Committee, in accordance with Art 38(a) CRPD.

40  See ‘Report of the COSP’s eighth session’ UN Doc CRPD/CSP/2015/5 (13 July 2015), where it discussed the impact of poverty and under-development on disability as well as implementation of the Convention by the UN; equally, COSP, ‘Incorporating the provisions of the CRPD into the post-2015 development agenda’ UN Doc CRPD/CSP/2014/2 (1 April 2014).

41  Ilias Bantekas, An Introduction to International Arbitration (CUP 2015) 107.

42  The Conference has also delegated several functions to other entities, namely the UN Secretary-General. In its second session it decided to request the Secretariat to (a) continue to update the compilation on legislative measures to implement the Convention; (b) prepare a compilation of good practices on accessibility and reasonable accommodations; and (c) prepare a compilation on good practices on equal recognition before the law, access to justice and support and decision-making. ‘Report of the Conference in its second session’ UN Doc CRPD/CSP/2009/2 (11 January 2010) para 19.

43  Reparations for Injuries suffered in the Service of the UN, Advisory Opinion (1949) ICJ Rep 174, 182. The instrument upon which implied powers are founded may limit such powers and this is also true of the remit of any claimed powers; see Agricultural Production case, PCIJ Advisory Opinion, (1922) PCIJ Rep Ser B No 3 53–55 and Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion (1948) ICJ Rep 57, 64.

44  Unlike other COP, such as the ICC’s ASP, whereby Art 112 ICC Statute confers a significant amount of elaborate express powers to the ASP, the COSP to the CRPD has to find these powers through a broad interpretation of its express powers under Art 40(1) CRPD or by way of implied powers. The CRPD Committee’s functions and powers, on the other hand, are extensive and elaborate. By way of illustration, r 54 of the Committee’s rules of procedure, UN Doc CRPD/C/1 (5 June 2014) permits the creation of subsidiary organs.

45  COSP, ‘Matters related to the implementation of the Convention: National implementation and monitoring’ UN Doc CRPD/CSP/2013/4 (1 April 2014).

46  See Richard Sabel, Procedure at International Conferences: A Study of the Rules of Procedure of Inter-governmental Conferences (CUP 2008) 34–35.

47  We have already stated that under r 26 of the COSP’s rules of procedure, in the event of a gap in the rules, the Conference may defer to the rules of the UNGA. Besides its own power and practice in setting up funds, in respect of their practical modalities, all UN entities generally rely on the UN Secretary-General’s Bulletin on the Establishment and Management of Trust Funds, UN Doc ST/SGB/188 (1 March 1982); see generally, Ilias Bantekas, ‘The Emergence of the Intergovernmental Trust in International Law’ (2010) 81 BYIL 224.

48  UNGA Res 63/150 (18 December 2008) para 6. See also Ad Hoc Committee, ‘Use of the UN Voluntary Fund on Disability to Support the Participation of NGOs and Experts’ UN Doc A/AC.265/2004/3 (17 May 2004).

49  In convening the Conference and setting out the agenda for its first session, the UN Secretary-General had prepared a draft set of rules of procedure, nominations for election to the Committee and several other items; see COSP Provisional Agenda UN Doc CRPD/CSP/2008/2 (7 October 2008).

50  Exceptionally, the Conference has proceeded to make oral amendments to the agenda with the intention of introducing a new sub-item; see COSP, ‘Report of the fifth session’ UN Doc CRPD/CSP/2012/2 (25 October 2012) para 4.