International Actors in the Protection of Adults
Major International Actors in the Protection of Adults [1]
European Union
The European Union (EU) is an association of 27 States. The political system of the EU is based on the Treaty on European Union which took effect on 1st November 1993. The EU Treaty has created what is commonly referred to as the three pillars of the European Union: the European Community (EC) – which originally was an economic union -, the Common Foreign and Security Policy (CFSP), and the Police and Judicial Cooperation in Criminal Matters (PJC). 16 Member States of the EU have introduced a single currency, the euro, which constitute the eurozone. All the Member States have transferred certain domains of their decision-making competence, fully or partly, to the European Union. In these domains, the EU is developing its own legislation. The body responsible for proposing legislation is the European Commission. Legislation is made in the form of regulations and directives. Regulations are directly applicable, whereas directives have to be implemented by the Member States into their national systems (e.g. adaptation of their national laws).
Draft of a new anti-discrimination directive
This directive supplements the already existing laws which ban discrimination on grounds of religion or ideology, disabilities, age, or sexual orientation. The new directive provides a set of minimum standards which offer protection against discrimination. The Member States can always offer a higher standard of protection but are not allowed to lower their current protection standards as a result of the directive. The directive gives victims of discrimination the right to challenge a decision, and points out the Member States’ willingness and obligation to fight discrimination.
The new directive bans discrimination in a number of areas outside the labour market, e.g. in the fields of social protection, education, and access to goods and services, including housing, transport and health care. “Effective non-discriminatory access” has to be guaranteed. Differences in treatment may be permitted “if they are objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” Moreover, “actuarial and risk factors related to disability and to age”, which are applied by insurance companies or by banks, may not be regarded as constituting discrimination if they are proved by accurate scientific data. Moreover, measures relating to age and disability which set more favourable conditions than are available to others, such as free or reduced tariffs for the use of public transport, museums, or sport facilities, are presumed to be compatible with the principle of non-discrimination.
The draft directive has not yet been adopted.
website: http://europa.eu/
website: www.behindertenbeauftragte.de
Council of Europe
The Council of Europe is NOT part of the EU but an independent international body. It was founded on 5th May 1949 for the purpose of developing common and democratic principles all over Europe. This includes the European Convention on Human Rights as well as other texts referring to protection of the individual. The Council of Europe is an international organization which now has 47 Member States, i.e. all European states have acceded to it, with the exception of Belarus. Germany acceded to the Council of Europe on 13th July 1950. All the 27 Member States of the European Union (EU) are members of the Council of Europe. The seat of the Council of Europe is in Strasbourg (France). Since its foundation it has placed particular emphasis on the promotion of human rights, pluralistic democracy, and the rule of law, and has created guidelines for a democratic Europe. Its decision-making body is the Committee of Ministers, which comprises the Ministers of Foreign Affairs of all 47 Member States or their representatives, the Permanent Representatives and Ambassadors in Strasbourg. The Committee of Ministers concludes conventions and agreements and makes recommendations to Member States. The recommendations are not legally binding but set minimum standards for the Member States’ policy on a specific issue; they can be a pre-stage for legally binding agreements. Recommendations have a signal effect.
1. Recommendation No. R (99) 4 of the Committee of Ministers to Member States on Principles concerning the Legal Protection of Incapable Adults
The Recommendation refers to the protection of adults with limited capacity of acting. It lays down the principle that every human being, regardless of their limitations, has a right to a self-determined life.
2. Draft Recommendation on Principles concerning continuing powers of attorney and advance directives for incapacity
The Recommendation refers to the modalities, contents, and possibilities of control in cases concerning continuing powers of attorney or advance directives for incapacity. Both instruments have in common that a capable adult can decide what shall happen to him or her in the event of his or her future incapacity, so that it will not be up to the State to decide on their behalf. According to the Recommendation, a continuing power of attorney is a mandate given by a capable adult with the purpose that the attorney appointed by the granter can act on his or her behalf in the event of the granter’s future incapacity. Equally, an advance directive is issued by a capable adult for the event of future incapacity; however, it does not grant powers of attorney, but gives binding instructions or expresses wishes concerning situations that may arise in the event of the adult’s future incapacity. The form of advance directive most commonly known in Germany is the “Patientenverfügung” (living will). The Draft Recommendation supplements Recommendation No. R (99) 4. It articulates principles to give the States a stimulus and guideline for the introduction or improvement of the above-mentioned instruments. The Recommendation is to be accompanied by an Explanatory Report which explains each of the principles. The Recommendation is written in English and French. It is mainly intended for Eastern European States, where the concept of vulnerable adults who are in some parts capable of making decisions is something new.
The Draft Recommendation was adopted by the Committee of Ministers at the end of 2009.
website: www.coe.int/
website: www.behindertenbeauftragte.de
Hague Conference on Private International Law
The Hague Conference on Private International Law (HCCH) had its First Session in 1893. Since 1955, it has been a permanent organization. At present it has 68 Member States, which are working towards unification of civil law. In matters with an international dimension, the national laws of the relevant States are often mutually exclusive, which results in collision between the laws. The Hague Conference on Private International Law has the mission to draft binding international conventions on jurisdiction, applicable law, the recognition of foreign judgments, and enforceability of claims. It is mainly concerned with family law, commercial law, and civil procedure law. The conventions, which are more than 30 by now, are open to accession by any State worldwide.
For the protection of adults, the Hague Conference in 2000 developed the Convention on the International Protection of Adults, which entered into force on 1.1.2009 – also for Germany.
website: http://www.hcch.net
United Nations
The United Nations was founded on 26th June 1945; its aims were the achievement of world peace and international security. There are 192 member states. It also aims to facilitate international cooperation. The organization is based on sovereign equality of its member states, all of whom can express their opinion. The pursuit of human rights as well as economic and social development are the main fields of activity of the General Assembly, which is the “parliament” of the UN, and the Economic and Social Council. Moreover, the UN has a major part in the development and implementation of international conventions – the UN conventions. Its headquarters are located in New York. Most of the institutions which are concerned with refugees as well as social and human rights are based in Geneva.
The United Nations has adopted a number of international conventions and declarations concerning the protection of adults, ranging from the Universal Declaration of Human Rights, to the human rights covenants, or the “Standard Rules on the Equalization of Opportunities for Persons with Disabilities”.
A milestone in the field of the protection of adults is the UN Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention, which entered into force in Germany on 26.03.2009. It defines a number of rights for persons with disabilities, including the right to individual autonomy, participation and the prevention of discrimination, and it demands an inclusive society, with accessibility for people with disabilities. Up to now, the Convention has been ratified by 95 States. The Optional Protocol provides a monitoring mechanism for the implementation of the Convention in the Member States – Germany has adopted this mechanism. The Optional Protocol has been recognized by 58 States until now.
website: www.un.org/disabilities
website: www.behindertenbeauftragte.de
website: www.institut-fuer-menschenrechte.de
Ulrike Schwarz (International Social Service / Dept. VII of the German Association, 14.10.2009; updated on 22.10.2010
[1] This overview makes no claim to completeness. It only provides an outline of most recent developments. For more detailed information, please visit our website.
To download the PDF file, click on the following link (in German language):
Wesentliche internationale Akteure im Erwachsenenschutz