Necessitiy and Importance of the Optional Protocol to the Convention on the Rights of People with Disabilities Presentation at the International Conference

Necessitiy and Importance of Necessitiy and Importance of the Optional Protocol to the the Optional Protocol to the Convention on the Rights of Convention on the Rights of

People with DisabilitiesPeople with Disabilities

Presentation at the International ConferencePresentation at the International ConferenceGuardianship – Legal Capacity – Supported Guardianship – Legal Capacity – Supported

Decision MakingDecision MakingBudapest, 18th & 19th October, 2007Budapest, 18th & 19th October, 2007

Ulrich Hellmann, Lebenshilfe, GermanyUlrich Hellmann, Lebenshilfe, Germany

19. Oktober 200719. Oktober 2007 Ulrich Hellmann, Lebenshilfe GermUlrich Hellmann, Lebenshilfe Germanyany

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The Issue:The Issue:

The UN-Convention is an International The UN-Convention is an International Legal Treaty which is binding for States Legal Treaty which is binding for States PartiesParties

There has to be an effective Monitoring There has to be an effective Monitoring Mechanism to ensure its implementationMechanism to ensure its implementation

Which are the elements for a Monitoring Which are the elements for a Monitoring Mechanism of this UN-Convention?Mechanism of this UN-Convention?

Structure and Importance of the Structure and Importance of the Optional ProtocolOptional Protocol


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Monitoring Mechanism Monitoring Mechanism FrameworkFramework

Monitoring Body at UN-level:Monitoring Body at UN-level:

System of Reports and CommunicationSystem of Reports and Communication

Individual ComplaintsIndividual Complaints Inquiry ProceduresInquiry Procedures

CommitteeCommittee

Optional Competence:


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Committee on the Rights of Committee on the Rights of Persons with DisabilitiesPersons with Disabilities

Committee of 12 experts at the time of the Committee of 12 experts at the time of the entry into force, initial election no later than entry into force, initial election no later than 6 months afterwards6 months afterwards

after another 60 ratifications increase to after another 60 ratifications increase to the maximum of 18 expert members (Art. the maximum of 18 expert members (Art. 34, Para. 2), 34, Para. 2),

Election by States Parties, considering Election by States Parties, considering equitable geographical distribution, equitable geographical distribution, representation of the different forms of representation of the different forms of civilization and of the principal legal civilization and of the principal legal systems, balanced gender representation systems, balanced gender representation and and participation of experts with participation of experts with disabilities disabilities (Art. 34, Para. 4)(Art. 34, Para. 4)


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Functions of the CommitteeFunctions of the Committee

Report-System between Committee and Report-System between Committee and States Parties, Articles 35 – 37States Parties, Articles 35 – 37– Comprehensive report on measures taken and Comprehensive report on measures taken and

on the progress in regard of the Convention, on the progress in regard of the Convention, within 2 years after the entry into force of the within 2 years after the entry into force of the Convention for this State PartyConvention for this State Party

– Afterwards at least every 4 years or on request Afterwards at least every 4 years or on request of the committeeof the committee

– Consideration of reports by the committee, Consideration of reports by the committee, suggestions and general recommendations as suggestions and general recommendations as appropriate (Art. 36, Para. 1)appropriate (Art. 36, Para. 1)


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Consideration of ReportsConsideration of Reports

The Secretary General of the United The Secretary General of the United Nations shall make available the reports Nations shall make available the reports to all States Parties (Art. 36, Para. 3)to all States Parties (Art. 36, Para. 3)

States Parties shall make their reports States Parties shall make their reports widely available to the public of their widely available to the public of their own countries and facilitate access to own countries and facilitate access to the suggestions and general the suggestions and general recommendations relating to these recommendations relating to these reports (Art. 36, Para. 4)reports (Art. 36, Para. 4)


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Committee-Report and States Committee-Report and States Parties ConferenceParties Conference

The Committee shall report every two The Committee shall report every two years to the General Assembly and to the years to the General Assembly and to the Economic and Social Council on its Economic and Social Council on its activities, and may make suggestions and activities, and may make suggestions and general recommendations based on the general recommendations based on the examination of reports and information examination of reports and information received from the States Parties (Art. 39)received from the States Parties (Art. 39)

States Parties shall meet regularly in a States Parties shall meet regularly in a Conference of States Parties to consider Conference of States Parties to consider any matter with regard to the any matter with regard to the implementation of the Convention (Art. 40)implementation of the Convention (Art. 40)


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Individual and Group Individual and Group Communications to the Communications to the

CommitteeCommittee The system of international cooperation (Art. The system of international cooperation (Art.

32), national implementation and monitoring 32), national implementation and monitoring (Art. 33), and the mandate of the Committee (Art. 33), and the mandate of the Committee in the described context of a report system in the described context of a report system (Art. 35 ff.) is insufficient to give the (Art. 35 ff.) is insufficient to give the international norms of the UN-Convention international norms of the UN-Convention practical effectpractical effect

In accordance with other Human Rights In accordance with other Human Rights Treaties there must be provisions for Treaties there must be provisions for individual or group communications and individual or group communications and inquiry procedures in order to give rights set inquiry procedures in order to give rights set up by the Convention concrete meaningup by the Convention concrete meaning


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The importance of the OPThe importance of the OP

The OP is the enlargement of the scope of The OP is the enlargement of the scope of responsibility of the new UN-Committee on responsibility of the new UN-Committee on the Rights of Persons with Disabilities (Art. the Rights of Persons with Disabilities (Art. 34) beyond the Level of "Communication 34) beyond the Level of "Communication only“ with States Parties!only“ with States Parties!

By ratifying the OP, States Parties enable By ratifying the OP, States Parties enable their Citizens to file their Citizens to file Individual ComplaintsIndividual Complaints before the UN-Committee, by which they before the UN-Committee, by which they may claim to be victims of a violation by may claim to be victims of a violation by that State Party of the provisions of the that State Party of the provisions of the Convention (Art. 1, Para. 1 OP) Convention (Art. 1, Para. 1 OP)


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Regulations of the Optional Regulations of the Optional Protocol …….Protocol …….

were developed in accordance and were developed in accordance and on the basis of experiences with on the basis of experiences with monitoring mechanisms in other monitoring mechanisms in other Human Rights TreatiesHuman Rights Treaties

other Human Rights Treaty bodies other Human Rights Treaty bodies may consider individual complaints may consider individual complaints under certain conditions, provided under certain conditions, provided that the State has recognized the that the State has recognized the competence of the committee to competence of the committee to receive such complaintsreceive such complaints


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Example for an individual Example for an individual Complaint:Complaint:

A Person with Disability who is denied A Person with Disability who is denied access to the labour-market, because access to the labour-market, because he/she is deemed „legally uncapable“ he/she is deemed „legally uncapable“ according to national law, under which according to national law, under which even the signature of a guardian under even the signature of a guardian under a work contract is not recognised as a work contract is not recognised as possible, would be entitled to challenge possible, would be entitled to challenge the lack of compliance of this situation the lack of compliance of this situation with regard to Articles 12 and 27with regard to Articles 12 and 27


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Provisions on the acceptance Provisions on the acceptance of individual complaints:of individual complaints:

individual or group communications individual or group communications about violations are considered about violations are considered inadmissible…..inadmissible…..– If they are anonymousIf they are anonymous– In cases of abuse of the right to submission In cases of abuse of the right to submission

or incompatibility with the Conventionor incompatibility with the Convention– If the same matter has already been If the same matter has already been

examined or is being examined under examined or is being examined under another procedure of international another procedure of international investigationinvestigation


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Provisions on the acceptance Provisions on the acceptance of individual complaints:of individual complaints:

– If all available domestic remedies have If all available domestic remedies have not been exhaustednot been exhausted

– If it is manifestly ill-founded or not If it is manifestly ill-founded or not sufficiently substantiatedsufficiently substantiated

– If the violation occurred prior to the entry If the violation occurred prior to the entry into force of the OP for the State Party into force of the OP for the State Party concerned unless those facts continued concerned unless those facts continued after that dateafter that date

(Article 2 OP)(Article 2 OP)


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Procedural Regulations for the Procedural Regulations for the Committee to deal with Committee to deal with

complaints:complaints: Confidential submission to the State PartyConfidential submission to the State Party Explanation or Statement by the State Party Explanation or Statement by the State Party

to the Committe within 6 months, clarifying to the Committe within 6 months, clarifying the matter and the remedy, if any, that may the matter and the remedy, if any, that may have been taken by that State (Art. 3 OP)have been taken by that State (Art. 3 OP)

Mandate of the Committee to request Mandate of the Committee to request interim measures of the State in cases of interim measures of the State in cases of urgent consideration in order to avoid urgent consideration in order to avoid irrapable damage to the victim of the irrapable damage to the victim of the alleged violation (Art. 4 OP)alleged violation (Art. 4 OP)


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Procedural Regulations for the Procedural Regulations for the Committee to deal with Committee to deal with

Complaints: Complaints: Closed Meetings of Committee when Closed Meetings of Committee when

examining a communicationexamining a communication After the examination the Committee After the examination the Committee

shall forward its suggestions and shall forward its suggestions and recommendations, if any, to the recommendations, if any, to the State Party concerned and to the State Party concerned and to the petitioner (Art. 5 OP)petitioner (Art. 5 OP)


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Inquiry ProcedureInquiry Procedure If the Committee receives reliable If the Committee receives reliable

information indicating information indicating grave or systematic grave or systematic violationsviolations by a State Party of rights set forth by a State Party of rights set forth in the Convention, the Committee shall in the Convention, the Committee shall invite that State Party to cooperate in the invite that State Party to cooperate in the examination of the information (Art. 6, Para. examination of the information (Art. 6, Para. 1))1))

The Committee may designate one or more The Committee may designate one or more of its members to conduct a confidental of its members to conduct a confidental inquiry and to report urgently to the inquiry and to report urgently to the Committee; where warranted and Committee; where warranted and with the with the consentconsent of the State Party, the inquiry may of the State Party, the inquiry may include a visit to its territory (Art. 6, Para. 2)include a visit to its territory (Art. 6, Para. 2)


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Inquiry ProcedureInquiry Procedure

Transmission of the findings together Transmission of the findings together with comments and recommendations with comments and recommendations to the State Party; submission of its to the State Party; submission of its observations to the Committee within 6 observations to the Committee within 6 months afterwards, (Art. 6, Para. 3 & 4) months afterwards, (Art. 6, Para. 3 & 4)

The State Party may include details The State Party may include details about measures taken in response to about measures taken in response to an inquiry in its report under Art. 35, an inquiry in its report under Art. 35, (Art. 7, Para 1)(Art. 7, Para 1)


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Inquiry Procedure: Opt-out Inquiry Procedure: Opt-out ClauseClause

Each State Party may, at the time of Each State Party may, at the time of signature or ratification of the OP, signature or ratification of the OP, declare that it does not recognize the declare that it does not recognize the competence of the Committee to competence of the Committee to conduct an Inquiry Procedure conduct an Inquiry Procedure provided for in Art. 6 & 7 OPprovided for in Art. 6 & 7 OP


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Entry into Force of the OPEntry into Force of the OP

……..on the thirtieth day after the deposit of ..on the thirtieth day after the deposit of the tenth instrument of ratification, Art. 13the tenth instrument of ratification, Art. 13

A State Party may denounce the OP by A State Party may denounce the OP by written notification to the UN General written notification to the UN General Secretary, Art. 16Secretary, Art. 16

A State Party may propose an amendment A State Party may propose an amendment to the OP; adoption by a majority of two to the OP; adoption by a majority of two thirds of the States Parties present in a thirds of the States Parties present in a meeting has to be approved by the UN meeting has to be approved by the UN General Assembly, Art. 15General Assembly, Art. 15


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Important Element of the Important Element of the Monitoring Mechanism:Monitoring Mechanism:

Art.33: National implementation and Art.33: National implementation and monitoringmonitoring– States Parties shall designate one or States Parties shall designate one or

more focal points within government for more focal points within government for matters relating to the implementation matters relating to the implementation of the Convention, of the Convention,

– States Parties shall give due States Parties shall give due consideration to the establishment of a consideration to the establishment of a coordinating mechanism within coordinating mechanism within government,government,


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Art. 33 – National Art. 33 – National implementation and implementation and

monitoringmonitoring– States Parties shall maintain, strengthen, States Parties shall maintain, strengthen,

designate or establish a framework, designate or establish a framework, including one or more independant including one or more independant mechanisms, as appropriate, to promote, mechanisms, as appropriate, to promote, protect and monitor implemenation of the protect and monitor implemenation of the Convention, taking into account the status Convention, taking into account the status and functioning of national institutions for and functioning of national institutions for protection and promoting of human rights,protection and promoting of human rights,

– Persons with disability and their Persons with disability and their representative organizations shall be representative organizations shall be involved fully in the monitoring involved fully in the monitoring process.process.


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Thank you for listening!Thank you for listening!

Documents

Necessitiy and Importance of the Optional Protocol to the Convention on the Rights of People with Disabilities Presentation at the International Conference