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Necessitiy and Importance of the Optional Protocol to the Convention on the Rights of People with Disabilities

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Presentation at the International Conference ... A State Party may denounce the OP by written notification to the UN General Secretary, Art. ... – PowerPoint PPT presentation

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Title: Necessitiy and Importance of the Optional Protocol to the Convention on the Rights of People with Disabilities


1
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

2
The Issue
  • 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
  • Which are the elements for a Monitoring Mechanism
    of this UN-Convention?
  • Structure and Importance of the Optional Protocol

3
Monitoring Mechanism Framework
  • Monitoring Body at UN-level
  • System of Reports and Communication
  • Individual Complaints
  • Inquiry Procedures

Committee
Optional Competence
4
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
  • 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)

5
Functions of the Committee
  • 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)

6
Consideration of Reports
  • 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)

7
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)
  • 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)

8
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
  • 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

9
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!
  • 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)

10
Regulations of the Optional Protocol .
  • 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

11
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

12
Provisions on the acceptance of individual
complaints
  • 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

13
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)

14
Procedural Regulations for the Committee to deal
with complaints
  • 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)
  • 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)

15
Procedural Regulations for the Committee to deal
with Complaints
  • 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)

16
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))
  • 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)

17
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)
  • The State Party may include details about
    measures taken in response to an inquiry in its
    report under Art. 35, (Art. 7, Para 1)

18
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

19
Entry into Force of the OP
  • ..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 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

20
Important Element of the Monitoring Mechanism
  • 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,

21
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.

22
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