Developments in PIL EU Legislation Normative texts

UN Experts Say the EU Should Do More to Ensure that Proposed PIL Rules on the Protection of Adults Comply with the UNCRPD

On 2 August 2023, Gerard Quinn, the UN Special Rapporteur on the rights of persons with disabilities, and Claudia Mahler, the Independent Expert on the enjoyment of all human rights by older persons, issued a joint statement regarding the European Commission’s proposals of 31 May 2023 on the protection of adults in cross-border situations.

As explained in a post on this blog, the latter proposals consist of a proposal for a Council Decision whereby all Member States would become (or remain) parties to the Hague Convention of 2000 on the International Protection of Adults Convention “in the interest of the Union”, and a proposal for a Regulation of the Parliament and the Council that would complement the Hague Convention in the relations between Member States. The envisaged complementing measures include the creation of a European Certificate of Representation which would make it easier for the representatives of an adult to prove their powers in a Member State other than the Member State where those powers were conferred or confirmed.

Scope and Purpose of the Submission

The joint submission examines the above proposals against the background of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). While acknowledging that private international law “has a profoundly important role to play in giving effect to the object and purpose, substance and interpretation of the UNCRPD”, the authors express serious reservations regarding the solutions envisaged by the Commission, and reiterate the idea – voiced in a previous joint statement, of 2021 – whereby the Hague Convention should “be re-purposed” in light of the UNCRPD “to subserve higher and newer goal of protecting human autonomy”.

According to the document, ratification of the Hague Convention and its implementation (including regionally, through the proposed EU measures) “must selfconsciously steer toward higher substantive norms and trends”, notably as regards the preservation of the autonomy of persons with disabilities.

There is “a real risk”, the submission warns, that, “if enacted as proposed”, the Regulation and the Decision

will only be used to freeze into place an outdated policy response to disability and the needs of older persons [and] only attract needless legal liability in the international legal order for the EU and its Member States.

Hence the call to

think through how the Hague Convention might be selfconsciously moulded to underpin and not undermine the UN CRPD and also create breathing space for the drafting and eventual adoption of a universal (UN) treaty on the rights of older persons.

Main Concerns Expressed in the Submission

The authors of the submission note that the Commission did recall the UNCRPD in its proposals, notably in Recitals 10 and 15 of the proposed Regulation, but consider that is largely insufficient. They just “do not see any consistent follow-through from these Recitals in the substantive provisions of the proposed Regulation”, and rather see “many contradictions”.

According to Recital 10, the interpretation of the Regulation “should be guided by its objectives that are to enhance the protection of fundamental rights and freedoms and other rights of adults in cross-border situations, including their right to autonomy, access to justice, right to property, right to be heard, right to free movement and equality”, since the rights enshrined in this regard in both the UNCRPD and the Charter of Fundamental Rights of the European Union “are to be protected both in national and cross-border cases”. Measures taken in relation to persons with disabilities, the Recital goes on, are to be in line with the UNCRPD in order to benefit from recognition under the Regulation.

For its part, Recital 15 of the proposed Regulation observes that, regardless of the terminology used in each Member State, “measures directed to the protection of adults and taken in compliance with the fundamental rights of the adults concerned should circulate without obstacles in the Union”, adding that, to this end, the Regulation “should be interpreted in accordance with the Charter and the UNCRPD”, where assessing whether a measure taken by the authorities of another Member State is not manifestly contrary to public policy (and should accordingly be refused recognition), “the authorities of a Member State where the recognition is sought should assess whether that measure ensures the fundamental rights of the adult, in light of Articles 3, 9 12 and 19 of the UNCRPD”.

All this being regarded as insufficient, the authors of the submission reiterate the view, expressed in the joint statement of 2021, mentioned above, that States, when joining the Hague Convention, should adopt an interpretive declaration whereby they would commit to interpret and apply the Hague Convention in accordance with obligations arising out of or relating to their participation in the UNCRPD and other relevant human rights obligations, “or as a result of participation in future human rights treaties” on the same matter.

The move, the submission explains, “would make clear (not only within the EU but also vis-à-vis third States) that the CRPD is given lexical priority”.

The authors of the joint submission further suggest, for the same purpose, that States joining the Hague Convention should make a reservation to that Convention, aimed at excluding (to the effect that the Convention does allow for it) “institutionalisation” (i.e., measures whereby an adult would be placed or kept in a residential institution against or regardless of their will), from the scope of protective measures that would benefit from the Convention (and the Regulation).

This would play a significant role, they say, in ensuring that institutionalisation “is no longer seen as an appropriate response to the needs of persons with disabilities or older persons”.

According to the submission, the proposed Regulation should even go further than that, and “explicitly” prohibit institutionalisation “as a form of ‘protection’ … as between EU Member States”, as this would be “manifestly at odds” with Articles 5 and 19 of the UNCRPD.

The submission is also concerned with “representation agreements”. The expression is used in the document to refer to private mandates or “powers of representation”, to use the language of the Convention. The authors argue that the arrangements in question “should be re-framed to only mean ‘supported decision making agreements’”. Arrangements “that only kick into place upon the occurrence of a contingency like ‘incapacity’”, it is added, should be “avoided at all costs”.

Some General Remarks

Gerard Quinn and Claudia Mahler address in their submission a range of delicate and complex issues. These cannot be discussed in detail here. I will limit myself to two rather general remarks.

Do the Hague Convention (and the Proposed EU Regulation) Really Need “Re-purposing”?

The joint submission appears to build on the premise that the rules of private international law (PIL) laid down in the Hague Convention (and in the Proposed Regulation) are designed to serve goals that differ from (and couldin fact be incompatible view) the objects of the UNCRPD. The general orientation, the submission seems to argue, not just their practical operation, should be reconsidered.

This assumption is, in my view, questionable. In a contribution to the Guide to Global Private International Law edited by Paul Beaumont and Jayne Halliday (Hart Publishing 2022), I argued that the Hague Convention was designed in such a way as to advance precisely the goals that the UNCRPD (which was adopted a few years later) is meant to promote.

The Convention, for example, sets out some rather elaborate rules regarding the allocation of jurisdiction among Contracting States and the mutual communication and cooperation between the authorities of the States concerned. These rules depart significantly from those found in other texts (the Brussels I bis Regulation for instance). This is so because they are inspired by policy considerations that reflect the peculiar concerns that surround the protection of adults, including the preservation and enhancement of their autonomy. In fact, the Convention is not guided by “value-neutral” policies such as legal certainty, nor it purports to ensure that Contracting States “blindly” open their legal systems to measures of protection taken elsewhere, or private mandates governed by foreign law. Rather, the Hague Convention aims to ensure that the fundamental rights of the adults concerned may be properly realised in cross-border situations; the same can be said, generally speaking, of the proposed EU Regulation.

The question, then, in my view, is not so much whether the purpose of the Convention or the proposed Regulation should be “corrected”. The issue is rather whether the technical solutions in the Convention and in the Regulation are such that they effectively and efficiently ensure the realisation of the UNCRPD in all circumstances.

Thus, the matter is not one of orientation, but one of legal engineering. I believe the Convention and the proposed Regulation already go in the same direction as the UNCRPD. One might wonder whether the interpretation of the Convention and the wording of the proposed Regulation can be improved in a way that is more conducive to the objectives of the UNCRPD being fully met.

Should References to the UNCRPD be Featured More Prominently in PIL Rules in this Area?

The joint submission seems to underlie a concern for the visibility of the UNCRPD. This is entirely understandable. The UNCRPD brought about a real paradigm shift in disability law. Tremendous efforts are needed at the national, regional and international law level to make sure that the rights enshrined in the UNCRPD turn into policy and normative changes that can actually improve the life of those concerned. In this sense, recalling the achievements of the UNCRPD and the challenges posed by its implementation is no doubt helpful.

That said, various elements indicate that PIL scholars and practitioners are already generally aware, notably in Europe, of the need to take human rights seriously in their day-by-day work.

For instance, more than twenty years have passed since the European Court of Human Rights ruled, in Pellegrini, that foreign judgments simply cannot be recognised if they were given in breach of the fundamental rights of the parties. And while it’s true that EU legislation has made the (intra-EU) movement of judgments easier, but – as the Court of Justice itself consistently repeated (starting from Debaecker) – this goal cannot be attained by undermining in any way the fundamental rights of those concerned. The two-decade long experience with EU texts dealing with the cross-border protection of children further attest that it is perfectly possible to embody human rights considerations in PIL instruments. Additionally, as the Court made clear in Krombach, the public policy defence – if no other tools are available – can always be triggered to avoid that fundamental rights are infringed through a “mechanical” application of PIL rules.

The question, accordingly, is not whether practitioners should be directed at taking the UNCRPD into account (they obviously should, and this should occur in respect of any rule, in the field of PIL or elsewhere). The issue is, again, technical rather than political in nature. It is uncontroversial that PIL rules must be crafted and applied in a manner that is entirely consistent with the UNCRPD: the question is, rather, whether this entails that safeguards other than those arising from the Convention and the Regulation must be adopted.

The joint submission suggests that States should issue a declarative interpretation when ratifying the Hague Convention that the latter must be read and applied in light of the UNCRPD, and even make a reservation regarding institutionalisation.

I’m not entirely certain this would be strictly necessary (the Vienna Convention on the Law of Treaties already provides various tools aimed to guarantee the kind of inter-textual coordination advocated by the submission), and sense that a similar initiative may have some unintended adverse effects.

I consider, however, that such a move would hardly be sufficient in itself. It is the task of those applying PIL rules (and, of course, the task of the Union’s legislature, for its part) to ensure the proper articulation of PIL rules and human rights instruments relating to the protection (including the self-determination) of adults. It’s a complex and certainly unfinished task, but one that should reasonably be approached with optimism.

The joint submission of Gerard Quinn and Claudia Mahler is a powerful reminder that the topic requires further discussion, and that efforts aimed to ensure mutual understanding between experts in different fields (human rights law and PIL, in this case) remain crucially necessary.

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