Persons with disabilities are NOT excluded from ....

"the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability"
Article 24 CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

European Parliament sub-Committee on Human Rights / Public Hearing

Public hearing on

The EU Accession to the UN Convention on the Rights of Persons with Disabilities

22 February 2010, 16.15-17.20

European Parliament Brussels, PHS4B001

 

Background oF the UN Convention

-         In force since 3 May 2008 for the States that have ratified it

-         As of today, there are 80 ratifications worldwide, out of which 13 among the EU Member States

-         The EU signed the Convention and its Optional Protocol on 30 March 2007 (the day when it was opened for signature).

-          The EU Council of Ministers adopted the decision to accede to the UN Convention in November 2009. Main features of the Decision:

o   It approves the Convention on behalf of the Community (now Union);

o   It nominates the Commission as the focal point for matters relating to the implementation of the Convention

o   A Code of Conduct is to be drafted by the Presidency to lay out the details of the EU accession (functions of the focal point, the role of the DPOs, the procedure for representation of the EU before the UN)

o   It spells out (in Annex II) the matters that are within the exclusive competence of the Community (compatibility of state aid with the common market, common customs tariff, institutional matters, such are employment of officials, etc) and shared competence of the Community (anti-discrimination, free movement of goods, services, persons and capital, transport, gender equality, statistics, etc)

o   It also mentions the matters where the EU has only complementary competence (employment, education, vocational training, economic and social cohesion).

o   It lists (in the same Annex) the legislative acts that illustrate the extent of the area of competence of the Community.

o   It includes (in Annex III) the reservation of the Community in relation to the employment of people with disabilities in the armed forces (allegedly, to conform to the Employment Directive).

-         The Optional Protocol is not covered by the above-mentioned Decision. It will be treated separately when the political climate is more favourable and the pending legal questions are answered (currently, many Member States are worried about the possible impact of the EU ratification of the Protocol on their national legal systems).

 

PENDING CONCERNS NOW:

-         When will the EU ratification be confirmed at the UN in New York?

-         How are the implementation process and the reporting to the Committee on the Rights of Persons with Disabilities going to look like?

-         Where exactly in the Commission will the focal point be placed and what powers will it have?

-         Who will play the role of the European independent monitoring mechanism required to be established under the Convention?

-         What role for DPOs, in accordance with the obligation under the Convention to involve them in all matters relating to the implementation of the Convention?

 

1.     Ratification: The current work on the ratification at the EU level is happening under the premise that all EU Member States must ratify it before the EU ratification is confirmed at the UN. The EDF disagrees with this for a number of reasons:

a.     This creates uncertainty in the protection of rights of people with disabilities in those EU Member States that have already ratified it. For example: Hungary ratified the Convention two years ago and it is now being implemented. A Hungarian with a disability can complain about the violation of rights to a Hungarian court. However, such a complaint is very unlikely to be accepted by the court if the law violating the right of the person is based on the EU law. The EU is not yet obliged to comply with the Convention in passing its legislation, and the Member States are not obliged to implement the EU legislation beyond the required minimum. Unless the EU and UN legal standards are uniform, the Hungarian with a disability will only be partially protected from her human rights' violation (not mentioning that this sets the EU and the UN against each other, which just cannot be good!).

b.     For example, the Convention sets out very clearly that the denial of reasonable accommodation in the workplace is a form of discrimination and a violation of a human right. However, this doesn't come up as clearly in the Employment Directive 2000. Some Member States, as we know, took the decision to implement the Employment Directive to the minimum. However, as long as they comply with it, they are protected against complaints related to reasonable accommodation in the workplace based on the Convention. Such a complaint would have to be submitted against the EU whose legislation does not comply with the UN Convention. Currently, this is not possible, and therefore, the person with a disability is not protected.

c.      The decision to postpone the confirmation of the EU ratification is political, rather than a legal one. The Community has previously ratified international agreements ahead of its individual Member States. Some examples include:

                                                  i.      UN Convention on the Law of the Sea of 10 December 1982:

1.     EU ratified on 01/04 1998, before Belgium, Luxembourg or Denmark

                                                ii.      UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 20 October 2005

1.     Community ratified on 18/12/2006, before most of its Member States (including Italy, Germany, Portugal, Netherlands…)

                                              iii.      European Convention for the Protection of Animals during International Transport (Revised), 2003

1.     European Union ratified on 25/04/2004, whereas a number of its member States (including Austria, Denmark, France, Ireland, Poland) still have neither signed nor ratified it.

                                             iv.      UN Convention against Corruption, adopted on 31 October 2003

1.     European Community approved of it on 12 November 2008, whereas the Czech Republic and Germany have still not done so.

                                               v.      WHO Framework Convention on Tobacco Control

1.     European Community formally confirmed its accession on 30 June 2005, whereas the Czech Republic still has not done so.     

d.     Some (most??) of these international agreements are adopted by unanimity.

e.     EU signed the Convention on 30 March 2007, before some of its Member States. This shows that such a commitment is possible and realistic.

 

2.     Implementation:

In parallel with the political work, more clarification is needed to understand how the implementation process will work on the EU level. It is understood that the EU will only be able to implement the Convention as far as its competencies go but the details of it are now being discussed by the Commission and the Presidency drafting the Code of Conduct.

As the Convention Article 33.3 provides, the organisations of people with disabilities must be actively involved in all work on the implementation of the Convention. So far the EDF has not been contacted to give its input to the Code of Conduct (in fact no one even informed us of the procedure!). We would like to use this opportunity to publicly ask for close involvement in the drafting process.

Having to base my recommendations on the speculations on what such a Code of Conduct should include, I would like to suggest that it must cover the following elements:

2a. Provision on a European strategy on implementation. Important elements:

-         Making the Convention known among all relevant parties (EU institutions, not forgetting external delegations). They cannot be expected to implement it without knowing its content and the expected impact

-         Analysis of existing gaps (in law and policy) and suggested actions to close them

-         Timeline. The progress in the implementation of the Convention must be measurable. It must be linked to reaching concrete milestones in set time period.

2b. Institutional framework. The Council decision nominated the Commission to serve as the focal point for the EU implementation but there are many more open questions:

-         Who in the Commission? Based on our experience, we insist that the focal point placed so that it is able to oversee horizontally as well as vertically the implementation of the Convention across all policy areas. For example, it could be the Office of the Commission President (Secretary-General).

-         What powers will the focal point have? We suggest that it should have the clear mandate to demand from other services the information on progress towards the implementation. In order to do this ambitious work, the focal point will need additional human and financial resources.

-         The UN Convention will change the role of all EU institutions. Therefore, we have to think in broad terms, how the focal point would look like and who it would include. The main point is that it would have to have a very strong mandate in order to be able to coordinate the work of all EU institutions in implementation of the Convention.

-         What role for the existing structures, such as the High Level Group on Disability or the Commission Inter-service group on disability? These bodies are clearly insufficient to serve as focal points or independent mechanisms, but should they be restructured and given a new (clearer and stronger) mandate to perform some function under the CRPD?

2c. Independent mechanism. The Convention requires that an independent mechanism be established to "promote, protect and monitor" implementation of the Convention.

This is one of the novelties of this Convention, compared to other UN Treaty body instruments (the closest independent mechanism to that already exists is the Optional Protocol to the Convention Against Torture, but naturally it has a different scope and application).

Independence of the body is a crucial point. Different Member States have approached this requirement differently – some have revised the mandate of the existing bodies, some have created the new ones. At the EU level, there is currently no body that could play this role. The most often mentioned candidate for this role – the Fundamental Rights Agency – is neither independent enough, nor has the mandate to required to fulfil the job. We are therefore in favour of creation of a new body that would comply with the Paris Principles.

The study recently published by the OHCHR states that the framework of independent mechanisms can include more than one body: in addition to a human rights institution established in compliance with Paris Principles, it can include others. In this context, we think it is completely appropriate to suggest that the EDF could be part of the framework.

The European Ombudsman should also not forgotten. This is an institution that deals with maladministration of the institutions and bodies of the EU, and it has previously addressed the disability-related complaints.

2d. Involvement of civil society, in particular, DPOs. The Convention obliges the States Parties to enable the involvement and full participation of DPOs in the monitoring process. The Code of Conduct that is now being drafted, will outline the details of this involvement. Some suggestions:

-         DPOs participate in the nomination of the members of the independent monitoring mechanism

-         DPOs participate in the drafting and approval of the action plan in implementation of CRPD. The participation must go beyond inviting them to make comments at the final stage of drafting!!!

-         DPOs participate, as equal partners, in the evaluation of the progress made in implementation

 In order to fully involve the civil society in the monitoring work, the EU must foresee a special budget and terms of reference for this. 

3.     Possible role of the European Parliament. The EP has traditionally been the EU human rights guardian and the long-standing ally of the disability community. We would of course be very interested to see the EP have a formal role in the process. Some ideas:

-         Annual report on the implementation of the Convention

-         Commission presents its periodic reports to the EP before it send it to the UN Committee on the Rights of Persons with Disabilities

-         EP ensures that the adequate budgetary framework for the implementation of the Convention.

 

In conclusion, the two main points need to be stressed again:

-         Speedy ratification of the Convention

o   Article 44 on Regional Integration Organisations was included in the Convention at the request of the EU. In enables the EU (and other regional organisations) to accede to the Convention. Having placed this Article in the Convention, it is the EU's obligation to live up to its promises and make the Convention part of its legal system as soon as possible.

-         Involvement of DPOs in all processes relating to the implementation, incl drafting the Code of Conduct.

-         It is the first time in the EU history that it accedes to an international human rights treaty. Ti really showed the EU commitments in promoting human rights of people with disabilities. This leading role of the EU should be maintained today, bearing in mind the diverse levels of protection of the rights of people with disabilities in the Member States set against 27 different historical backgrounds. The EU should show its leadership in uniting the Member States and confirming its ratification speedily. 


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