Necessitiy and Importance of the Optional Protocol to the Convention on the Rights of People with Disabilities Presentation at the International Conference Guardianship – Legal Capacity – Supported Decision Making Budapest, 18th & 19th October, 2007 Ulrich Hellmann, Lebenshilfe, Germany

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany2 The Issue: The UN-Convention is an International Legal Treaty which is binding for States Parties The UN-Convention is an International Legal Treaty which is binding for States Parties There has to be an effective Monitoring Mechanism to ensure its implementation There has to be an effective Monitoring Mechanism to ensure its implementation Which are the elements for a Monitoring Mechanism of this UN-Convention? Which are the elements for a Monitoring Mechanism of this UN-Convention? Structure and Importance of the Optional Protocol Structure and Importance of the Optional Protocol

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany3 Monitoring Mechanism Framework Monitoring Body at UN-level: Monitoring Body at UN-level: System of Reports and Communication System of Reports and Communication Individual Complaints Individual Complaints Inquiry Procedures Inquiry Procedures Committee Optional Competence:

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany4 Committee on the Rights of Persons with Disabilities Committee of 12 experts at the time of the entry into force, initial election no later than 6 months afterwards Committee of 12 experts at the time of the entry into force, initial election no later than 6 months afterwards after another 60 ratifications increase to the maximum of 18 expert members (Art. 34, Para. 2), after another 60 ratifications increase to the maximum of 18 expert members (Art. 34, Para. 2), Election by States Parties, considering equitable geographical distribution, representation of the different forms of civilization and of the principal legal systems, balanced gender representation and participation of experts with disabilities (Art. 34, Para. 4) Election by States Parties, considering equitable geographical distribution, representation of the different forms of civilization and of the principal legal systems, balanced gender representation and participation of experts with disabilities (Art. 34, Para. 4)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany5 Functions of the Committee Report-System between Committee and States Parties, Articles 35 – 37 Report-System between Committee and States Parties, Articles 35 – 37 –Comprehensive report on measures taken and on the progress in regard of the Convention, within 2 years after the entry into force of the Convention for this State Party –Afterwards at least every 4 years or on request of the committee –Consideration of reports by the committee, suggestions and general recommendations as appropriate (Art. 36, Para. 1)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany6 Consideration of Reports The Secretary General of the United Nations shall make available the reports to all States Parties (Art. 36, Para. 3) The Secretary General of the United Nations shall make available the reports to all States Parties (Art. 36, Para. 3) States Parties shall make their reports widely available to the public of their own countries and facilitate access to the suggestions and general recommendations relating to these reports (Art. 36, Para. 4) States Parties shall make their reports widely available to the public of their own countries and facilitate access to the suggestions and general recommendations relating to these reports (Art. 36, Para. 4)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany7 Committee-Report and States Parties Conference The Committee shall report every two years to the General Assembly and to the Economic and Social Council on its activities, and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties (Art. 39) The Committee shall report every two years to the General Assembly and to the Economic and Social Council on its activities, and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties (Art. 39) States Parties shall meet regularly in a Conference of States Parties to consider any matter with regard to the implementation of the Convention (Art. 40) States Parties shall meet regularly in a Conference of States Parties to consider any matter with regard to the implementation of the Convention (Art. 40)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany8 Individual and Group Communications to the Committee The system of international cooperation (Art. 32), national implementation and monitoring (Art. 33), and the mandate of the Committee in the described context of a report system (Art. 35 ff.) is insufficient to give the international norms of the UN-Convention practical effect The system of international cooperation (Art. 32), national implementation and monitoring (Art. 33), and the mandate of the Committee in the described context of a report system (Art. 35 ff.) is insufficient to give the international norms of the UN-Convention practical effect In accordance with other Human Rights Treaties there must be provisions for individual or group communications and inquiry procedures in order to give rights set up by the Convention concrete meaning In accordance with other Human Rights Treaties there must be provisions for individual or group communications and inquiry procedures in order to give rights set up by the Convention concrete meaning

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany9 The importance of the OP The OP is the enlargement of the scope of responsibility of the new UN-Committee on the Rights of Persons with Disabilities (Art. 34) beyond the Level of "Communication only“ with States Parties! The OP is the enlargement of the scope of responsibility of the new UN-Committee on the Rights of Persons with Disabilities (Art. 34) beyond the Level of "Communication only“ with States Parties! By ratifying the OP, States Parties enable their Citizens to file Individual Complaints before the UN-Committee, by which they may claim to be victims of a violation by that State Party of the provisions of the Convention (Art. 1, Para. 1 OP) By ratifying the OP, States Parties enable their Citizens to file Individual Complaints before the UN-Committee, by which they may claim to be victims of a violation by that State Party of the provisions of the Convention (Art. 1, Para. 1 OP)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany10 Regulations of the Optional Protocol ……. were developed in accordance and on the basis of experiences with monitoring mechanisms in other Human Rights Treaties were developed in accordance and on the basis of experiences with monitoring mechanisms in other Human Rights Treaties other Human Rights Treaty bodies may consider individual complaints under certain conditions, provided that the State has recognized the competence of the committee to receive such complaints other Human Rights Treaty bodies may consider individual complaints under certain conditions, provided that the State has recognized the competence of the committee to receive such complaints

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany11 Example for an individual Complaint: A Person with Disability who is denied access to the labour-market, because he/she is deemed „legally uncapable“ according to national law, under which even the signature of a guardian under a work contract is not recognised as possible, would be entitled to challenge the lack of compliance of this situation with regard to Articles 12 and 27 A Person with Disability who is denied access to the labour-market, because he/she is deemed „legally uncapable“ according to national law, under which even the signature of a guardian under a work contract is not recognised as possible, would be entitled to challenge the lack of compliance of this situation with regard to Articles 12 and 27

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany12 Provisions on the acceptance of individual complaints: individual or group communications about violations are considered inadmissible….. individual or group communications about violations are considered inadmissible….. –If they are anonymous –In cases of abuse of the right to submission or incompatibility with the Convention –If the same matter has already been examined or is being examined under another procedure of international investigation

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany13 Provisions on the acceptance of individual complaints: –If all available domestic remedies have not been exhausted –If it is manifestly ill-founded or not sufficiently substantiated –If the violation occurred prior to the entry into force of the OP for the State Party concerned unless those facts continued after that date (Article 2 OP)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany14 Procedural Regulations for the Committee to deal with complaints: Confidential submission to the State Party Confidential submission to the State Party Explanation or Statement by the State Party to the Committe within 6 months, clarifying the matter and the remedy, if any, that may have been taken by that State (Art. 3 OP) Explanation or Statement by the State Party to the Committe within 6 months, clarifying the matter and the remedy, if any, that may have been taken by that State (Art. 3 OP) Mandate of the Committee to request interim measures of the State in cases of urgent consideration in order to avoid irrapable damage to the victim of the alleged violation (Art. 4 OP) Mandate of the Committee to request interim measures of the State in cases of urgent consideration in order to avoid irrapable damage to the victim of the alleged violation (Art. 4 OP)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany15 Procedural Regulations for the Committee to deal with Complaints: Closed Meetings of Committee when examining a communication Closed Meetings of Committee when examining a communication After the examination the Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner (Art. 5 OP) After the examination the Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner (Art. 5 OP)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany16 Inquiry Procedure If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information (Art. 6, Para. 1)) If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information (Art. 6, Para. 1)) The Committee may designate one or more of its members to conduct a confidental inquiry and to report urgently to the Committee; where warranted and with the consent of the State Party, the inquiry may include a visit to its territory (Art. 6, Para. 2) The Committee may designate one or more of its members to conduct a confidental inquiry and to report urgently to the Committee; where warranted and with the consent of the State Party, the inquiry may include a visit to its territory (Art. 6, Para. 2)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany17 Inquiry Procedure Transmission of the findings together with comments and recommendations to the State Party; submission of its observations to the Committee within 6 months afterwards, (Art. 6, Para. 3 & 4) Transmission of the findings together with comments and recommendations to the State Party; submission of its observations to the Committee within 6 months afterwards, (Art. 6, Para. 3 & 4) The State Party may include details about measures taken in response to an inquiry in its report under Art. 35, (Art. 7, Para 1) The State Party may include details about measures taken in response to an inquiry in its report under Art. 35, (Art. 7, Para 1)

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany18 Inquiry Procedure: Opt-out Clause Each State Party may, at the time of signature or ratification of the OP, declare that it does not recognize the competence of the Committee to conduct an Inquiry Procedure provided for in Art. 6 & 7 OP Each State Party may, at the time of signature or ratification of the OP, declare that it does not recognize the competence of the Committee to conduct an Inquiry Procedure provided for in Art. 6 & 7 OP

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany19 Entry into Force of the OP …..on the thirtieth day after the deposit of the tenth instrument of ratification, Art. 13 …..on the thirtieth day after the deposit of the tenth instrument of ratification, Art. 13 A State Party may denounce the OP by written notification to the UN General Secretary, Art. 16 A State Party may denounce the OP by written notification to the UN General Secretary, Art. 16 A State Party may propose an amendment to the OP; adoption by a majority of two thirds of the States Parties present in a meeting has to be approved by the UN General Assembly, Art. 15 A State Party may propose an amendment to the OP; adoption by a majority of two thirds of the States Parties present in a meeting has to be approved by the UN General Assembly, Art. 15

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany20 Important Element of the Monitoring Mechanism: Art.33: National implementation and monitoring Art.33: National implementation and monitoring –States Parties shall designate one or more focal points within government for matters relating to the implementation of the Convention, –States Parties shall give due consideration to the establishment of a coordinating mechanism within government,

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany21 Art. 33 – National implementation and monitoring –States Parties shall maintain, strengthen, designate or establish a framework, including one or more independant mechanisms, as appropriate, to promote, protect and monitor implemenation of the Convention, taking into account the status and functioning of national institutions for protection and promoting of human rights, –Persons with disability and their representative organizations shall be involved fully in the monitoring process.

19. Oktober 2007Ulrich Hellmann, Lebenshilfe Germany22 Thank you for listening!