JB,
Thanks for the info, I've circulated it to a few interested people.
At our meeting in Sydney we had Government reps from Familiy & Community
Services and also Attorney Generals.
Not sure, (probably not) that our conservative politicians will be leaders and
not wolves in sheeps' clothing.
Frank
-------- Original Message --------
Subject: PDF and Convention
Date: Mon, 24 Feb 2003 07:53:09 +1300
From: "JB Munro" <[log in to unmask]>
Reply-To: <[log in to unmask]>
To: "Frank Hall-Bentick \(E-mail\)" <[log in to unmask]>
Thanks Frank for the flow of information. Keep it up even if occasionally it
is duplicated. I am attaching the latest position paper from the European
Union on the Convention and am asking Sai to include it on the PDF list.
How are things going in Australia in getting the Australian Government
onside. We recently had a meeting with our Foreign Affairs desk on Human
Rights and urged their greater involvement in the process. It was described
to me that with Government policies on the international level a government
could fit into one of three categories. Follower Participant Leader
The follower tends to link with another friendly nation and follow their
lead. A participant attends discussion and policy meeting and intervenes
where necessary. A leader leads.
At this stage we are trying to mover New Zealand as far as the Convention is
concerned from a follower to a participant and then hopefully a leader,
especially when it comes to working with the Pacific nations. Which
category is Australia at?
Look after yourself and regards to the team
JB Munro
COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels, 24.1.2003
COM(2003) 16 final
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL
AND THE EUROPEAN PARLIAMENT
Towards a United Nations legally binding instrument
to promote and protect the rights and dignity
of persons with disabilities
EXECUTIVE SUMMARY
The purpose of this Communication is to set out the European Commission's
support for a United Nations (UN) legally binding instrument to protect and
promote the rights and dignity of persons with disabilities, and to explain why
an active participation of the European Community in the development of such an
instrument is indispensable.
Discussions have started to take place in the framework of a UN Ad Hoc Committee
set up by UN Resolution 56/168 to " consider proposals for a comprehensive and
integral international convention to protect and promote the rights and dignity
of persons with disabilities".
Even if there is no doubt that general human rights standard apply to people
with disabilities, there is widespread evidence that they face major obstacles
to enjoy these rights. This has been explicitly recognised at the international
level. Respect of the equality principle which is at the core of any human
rights instrument requires recognising that people with disabilities are
entitled to enjoy the full range of internationally guaranteed rights and
freedoms and to do so without discrimination on the grounds of disability. This
should be the added value of a new UN legally binding instrument which would
complement the existing human rights framework. Thematic conventions have
demonstrated added value and complementarity with existing human rights
instruments.
The emphasis on discrimination is fully in line with the Community rights-based
approach to disability, which implies that people with disabilities should have
the opportunity to enjoy their rights on an equal footing with the rest of the
population. It is also in line with policy developments which have taken place
on the basis of Article 13 of the EC Treaty, which enables the Community to take
initiatives to combat discrimination on the grounds of disability. The Community
has already made use of these new provisions, in particular in the areas of
employment and occupation.
Active Community participation in efforts at the international level to develop
effective mechanisms to combat discrimination against people with disabilities
would be a natural complement to the European Year of People with Disabilities.
It would also send a strong signal to the international community of the
importance which the Community attaches to promoting the rights of people with
disabilities.
Therefore the Commission will soon propose a recommendation to the Council in
order to authorise the Commission to negotiate in the context of forthcoming
sessions of the UN Ad Hoc Committee and to conduct these negotiations on behalf
of the European Community.
1. INTRODUCTION
Discussions have started to take place in the framework of a United Nations (UN)
Ad Hoc Committee set up by the UN resolution 56/168 to "consider proposals for a
comprehensive and integral international convention to protect and promote the
rights and dignity of persons with disabilities" . The Commission welcomes this
debate at the international level. This debate is very much in line with the
Community's policy to combat discrimination implemented in accordance with
Article 13 of the EC Treaty, and with the key objectives agreed by the Member
States for the European Year of People with Disabilities in 2003.
The purpose of this Communication is to set out the European Commission's
position regarding a possible international legally binding instrument.
The Communication explains the UN background to this issue. It considers the
human rights approach to disability and presents the potential added value of a
UN legally binding instrument. The Commission considers that the primary purpose
of such an instrument should be to draw out and make more directly relevant and
visible the application of general human rights standards in the context of
disability. Rather than create new law, the instrument should tailor the
existing human rights implementation standards to the specific circumstances of
people with disabilities, thereby improving access for people with disabilities
to their rights.
Drawing upon the Community's experience in the field of combating discrimination
and the implementation of Directive 2000/78/EC concerning equal treatment in
employment and occupation, which includes specific provision for people with
disabilities, the Communication outlines the guiding principles that the
envisaged instrument should contain. Finally, the Communication signals the
Commission's intention to contribute actively to the development of such an
instrument, given the Community's competence in the field of combating
discrimination.
2. BACKGROUND
The debate in the UN about a thematic Convention on the rights of persons with
disabilities is not a new one. Disability issues have been considered on several
occasions in the UN history. In the 1970's, two declarations, the Declaration on
the Rights of Mentally Retarded Persons (DRMRP) and the Declaration on the
Rights of Disabled Persons (RDP) , were the first instruments in which the human
rights of persons with disabilities were explicitly recognised. Although these
declarations constituted important first steps toward awareness of disability
rights, they were criticised for being based on outmoded medical and welfare
models of disability.
Two further instruments in the late 1980's - the Principles for the Protection
of Persons With Mental Illnesses and the Improvement of Mental Health Care
(PPPMI) and the Standard Rules on the Equalisation of Opportunities for Persons
with Disabilities (StRE) put the emphasis on equal opportunities. All these
instruments have been useful in spelling out the rights to independence and
self-determination for people with disabilities, and have improved understanding
of the general human rights conventions insofar as they relate to people with
disabilities. Nonetheless, all these instruments are not binding on the UN
member states and contain no provisions for monitoring of disabled people's
rights.
It is in this context that, in December 2001, the Government of Mexico put
forward UN Resolution 56/168, calling for consideration of a convention on the
human rights of persons with disabilities and calling for the immediate
formation of an ad-hoc committee. This ad-hoc committee would "consider
proposals for a comprehensive and integral international convention to protect
and promote the rights and dignity of persons with disabilities". Backed with
the support of the Third Committee (on social issues), this Resolution was
passed in the UN General Assembly without any vote.
Subsequently, the UN Commission for Social Development adopted a resolution on
21 February 2002, which welcomes the UN Resolution 56/168 on a comprehensive and
integral international convention to promote and protect the rights and dignity
of persons with disabilities. This resolution was followed by resolution
2002/61 adopted on 26 April 2002 by the UN Commission on Human Rights.
Following this, the Ad Hoc Committee held its first session from 29 July to 9
August 2002. In its Recommendations to the UN General Assembly, the Ad Hoc
Committee has invited inter alia "regional commissions and inter-governmental
organisations, as well as non-governmental organisations to make available to
the Ad Hoc Committee suggestions and possible elements, to be considered in
proposals for a Convention".
3. THE ACCESSIBILITY OF HUMAN RIGHTS IN THE CONTEXT OF DISABILITY
The United Nations estimates that more than half a billion people are disabled
as a result of mental, physical or sensory impairment and no matter which part
of the world they are in, their lives are often limited by physical, technical
or social barriers. The majority of disabled people live in developing countries
where they also experience poverty and lack of basic social services and
education. People with disabilities do not constitute a homogeneous group and
there is a broad range of disabilities and corresponding issues. Disabilities
may be apparent or hidden, severe or mild, singular or multiple, chronic or
intermittent. Types of disabilities include mobility/agility, mental/cognitive,
hearing, speaking, and visual impairments. When people with disabilities are in
an environment which fails to accommodate the consequences of their impairments,
they face barriers and obstacles to exercising their rights and enjoying equal
opportunities on the same basis as other people.
The existing legal framework
Key human rights instruments - including the Universal Declaration of Human
rights and the International Covenants on Civil and Political Rights and
Economic, Social and Cultural Rights - make clear that human rights are vested
in all human beings and that everyone is entitled to the enjoyment of those
rights without distinction of any kind. The entitlement to full enjoyment of all
human rights without discrimination extends to people with disabilities - the
challenge is to ensure that this entitlement is fully recognised and realised.
Respect of the equality principle which is at the core of any human rights
instrument requires ensuring that people with disabilities can exercise their
rights on an equal basis as other people. Although there has been significant
progress over the past few years, a number of problems remain which prevent
people with disabilities from fully participating in society. A key question
therefore is whether or not the current protection provided by the existing
international human rights instruments is adequate for people with disabilities.
The political will to secure rights of people with disabilities
The international community has underlined its commitment to the principle that
human rights are vested equally in people with disabilities. For example, the
World Conference on Human Rights in Vienna , Paragraph 63 of the Vienna
Declaration and Programme of Action states:
"The World Conference on Human Rights reaffirms that all human rights and
fundamental freedoms are universal and thus unreservedly include persons with
disabilities. Every person is born equal and has the same rights to life and
welfare, education and work, living independently and active participation in
all aspects of society. Any direct discrimination or other negative
discriminatory treatment of a disabled person is therefore a violation of his or
her rights. The World Conference on Human Rights calls on Governments, where
necessary, to adopt or adjust legislation to assure access to these and other
rights for disabled persons".
The evidence of discrimination.
Whilst on terms of the international human rights legal framework people with
disabilities are vested with the same human rights as everyone else, the reality
is that they face lack of equal effective enjoyment of their rights. This
problem is well documented at international level.
The Special Rapporteur of the United Nations High Commission on Human Rights ,
in its report on Human Rights and Disability indicated that:
"In most countries, human rights violations against disabled people take the
form of unconscious discrimination, including the creation and maintenance of
man-made (sic) barriers preventing disabled people from enjoying full social,
economic and political participation in their communities. Most governments
appear to have a narrow understanding of human rights vis-ŕ-vis disabled people
and believe they need only abstain from taking measures, which have a negative
impact on them. As a consequence, disabled people are neglected in the area of
human rights policy and legislation".
The Office of the Special Rapporteur on Disability of the United Nations
Commission for Social Development organised a seminar on Human Rights and
Disability whose purpose was to draft guidelines for more effective
identification and reporting of violations and abuse of the human rights of
persons with disabilities. On this occasion, incidents of abuses and violations
of people with disabilities' human rights were reported.
Inclusion International, a non-governmental organisation, submitted a written
statement to the UN Human Rights Commission in which it highlighted that:
"In practice, people with disabilities continue to be marginalised. People with
intellectual disability, in particular, are the most likely of all to be
incarcerated in inhumane institutions. They are commonly deprived of an
education, refused ordinary social relationships, blocked from meaningful and
gainful employment, reduced to irrevocable poverty… their civil and political
rights are frequently abused, as are their physical persons."
This experience at international level is mirrored by experience at the European
level. In the context of the annual European Days of Disabled People sponsored
by the European Community, disability organisations reported cases where people
with disabilities were denied equal treatment on the grounds of their
disability. In particular, a report prepared in the context of the 1995 European
Day of Disabled People, "Invisible Citizens" examined the status of disabled
people in Europe from a legal perspective and described in very concrete terms
the discrimination encountered by disabled people on a daily basis .
The European Disability Forum, the largest disability organisation in Europe,
published the findings of a survey among all its national members' organisations
on the "violence and discrimination against disabled people" in 1999. The
report refers to surveys, which revealed that disabled people are the victims of
a high number of incidents and suffer from violence and discrimination in many
forms.
The European Parliament has referred on several occasions to the adverse
situation of people with disabilities and the discrimination which they
experience throughout the Union , and put a strong emphasis on the need for
developing policies in areas such as education and employment. The European
Economic and Social Committee has spoken of the grave situation faced by people
with disabilities. The European Committee of the Regions has also referred to
the exclusion and discrimination felt by people with disabilities in Member
States. These problems have also been observed in Candidate Countries.
The Council of Europe has recently published a report on "safeguarding adults
and children with disabilities against abuse" . The report underlines that
"their fundamental human rights may still be compromised including the
fulfilment of basic needs such as nutrition, warmth, hygiene and privacy".
4. THE EU RIGHTS-BASED APPROACH TO DISABILITY
The European Union has made considerable progress in acknowledging the need to
ensure the equal effective enjoyment of all human rights by people with
disabilities. In its 1996 Communication on equal opportunities for disabled
people , the Commission made clear that "the old medical-centred approach is now
giving way to a social one which puts much stronger emphasis on identifying and
removing the various barriers to equal opportunities and full participation in
all aspects of life for people with disabilities".
This social approach to disability seeks to achieve the full participation in
society of people with disabilities by breaking down the barriers that prevent
the realisation of equal opportunity, full participation, and respect for
difference. Changes in the way societies are organised can substantially reduce
or even overcome obstacles encountered by people with disabilities. It noted
that "it is essential for the European Community to clarify and confirm its
overall disability strategy, the core of which should be a shared commitment by
all Member States to promote equal opportunities, to eliminate discrimination in
this field and to recognise the rights of people with disabilities".
This analysis recognises that the circumstances of people with disabilities and
the discrimination they face, are socially created phenomena which are not
directly related to their impairments per se. While the medical approach is
often characterised as locating the "problem" of disability within the person,
the social approach locates the problem of disability in the environment, which
fails to accommodate people with disabilities. For example, the social approach
would conclude that the reason why a deaf person cannot watch TV programmes or
attend conferences is not located in his/her deafness but in the fact that TV
programmes are not subtitled or that conferences do not have interpretation in
sign languages .
This is a critical reorientation of perspective, which has important
implications for the way in which policy and law in relation to disability are
developed and interpreted, as well as for its substantive content. It focuses on
the many barriers within the existing social environment faced by people with
disabilities who seek to carry out the usual activities of everyday life and to
participate in the full range of activities in society. Thus, the problem is not
in the impairment itself but rather is one which results from the structures,
practices and attitudes that prevent the person from exercising his or her
capabilities.
Following this 1996 Communication, the Council of the European Union and Member
States reaffirmed their commitment to the principle of equality of opportunity
in the development of comprehensive policies in the field of disability, and to
the principle of avoiding or eliminating any form of negative discrimination on
the sole grounds of disability.
The growing attention to the discrimination on the grounds of disability as well
as on a number of other grounds was reflected in the preparatory work to the
Amsterdam Treaty. This led to the introduction, in the EC Treaty, of a general
anti-discrimination article which enables the Community to combat
discrimination, inter alia, on the grounds of disability. For the first time,
disability is explicitly mentioned in a European Treaty and the need for
combating discrimination on this ground is publicly acknowledged.
On the basis of this new Treaty article, the Council adopted on 27 November 2000
Directive 2000/78/EC "Establishing a general framework for equal treatment in
employment and occupation". The Directive prohibits any discrimination, be it
direct or indirect, on the grounds of religion or belief, disability, age or
sexual orientation . With regard to disability, this Directive recognises that
the failure to provide a reasonable accommodation in the workplace can
constitute discrimination. In practical terms such accommodation includes
measures to adapt the workplace to people with disabilities, for example
adapting premises and equipment, patterns of working time etc. in order to
facilitate their access to employment.
The obligation to accommodate is aimed at removing barriers to the participation
of people with disabilities in employment. This means that employers shall take
appropriate measures to enable people with disabilities to have access to,
participate in, or advance in employment, or to undergo training, unless such
measures would impose a disproportionate burden on the employer. Rather than
aiming to achieve identical results for disabled people, as compared to
non-disabled people, it simply aims to ensure that people with disabilities are
afforded an equal opportunity to achieve those results .
The Charter of Fundamental Rights proclaimed at the European Council in Nice on
7 December 2000, by the Presidents of the Council, the European Parliament and
the Commission includes the prohibition of any discrimination on the ground of
disability (Article 21). It also recognises as a fundamental right "the right of
persons with disabilities to benefit from measures designed to ensure their
independence, social and occupational integration and participation in the life
of the community" (Article 26).
This approach of enabling people with disabilities to full and equal enjoyment
of their rights has been endorsed by the Council of the European Union in its
Decision establishing 2003 as the European Year of People with Disabilities .
The Year will provide the European Union a unique opportunity to promote equal
rights and full participation in society for people with disabilities. It will
improve the knowledge on and the visibility of disability issues . It is
expected to act as a catalyst for a new political impetus to achieving equal
rights for people with disabilities both at the European and at international
level, which will continue well after the closure of the Year.
The Commission believes that this emphasis on the rights approach to disability
should be reflected in the evolution of international human rights standards
relating specifically to disability. Such an achievement at international level
would in turn reinforce the coherence between internal and international action
of the EU.
In this regard, the Commission notes the statement of the Danish Presidency on
behalf of the European Union at the UN Third Committee's meeting on 3 October
2002 whereby it welcomed the stronger focus put on the rights of persons with
disabilities and recognised the usefulness of an international legally binding
instrument to promote and protect the rights of persons with disabilities.
5. ADDED VALUE OF A NEW UN LEGALLY BINDING INSTRUMENT
Under the global umbrella of the Charter of the United Nations six specific
conventions have been developed and are implemented with regard to Human Rights:
· International Covenant on Civil and Political Rights (CCPR);
· International Covenant on Economic, Social and Cultural Rights (CESCR);
· Convention against Torture (CAT);
· Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW);
· Convention on the Rights of the Child (CRC), and the
· Convention on the Elimination of All Forms of Racial Discrimination (CERD).
In a study commissioned by the United Nations Commission for Human Rights, two
renowned disability and human rights experts have attempted to clarify the
relevance of these six United Nations human rights treaties to disability. They
also reviewed how the system actually works in practice with respect to
disability, by looking at how States parties report to the treaty monitoring
bodies on human rights and disability and how the current treaty monitoring
bodies respond. While underlining a positive move towards considering disability
as a human rights issue, the study calls for a thematic convention as an "aid to
the mainstreaming of disability in United Nations human rights instruments".
Throughout the 1970's and 1980's, the United Nations began recognising certain
populations as being particularly vulnerable to human rights violations. To
ensure their protection under international law, the United Nations adopted
thematic legally binding instruments such as the Convention on the Elimination
of Discrimination Against Women (CEDAW), the Convention on the Rights of the
Child (CRC), and the Convention on the Elimination of All Forms of Racial
Discrimination (CERD). These Conventions created legal protections addressing
the social, political and cultural circumstances of these populations. They have
demonstrated added value and complementarity with existing Human Rights
instruments and there is no reason why a legally binding instrument on people
with disabilities should not follow the same course.
It should be explicitly acknowledged and recognised at international level that
people with disabilities are entitled to enjoy the full range of internationally
guaranteed rights and freedoms and to do so without discrimination on the ground
of disability. Not only would this give the claim of universality of human
rights real meaning, but it would underline the fact that people with
disabilities are full members of the community, equal in dignity and entitled to
enjoy the same human rights and freedoms as others, without discrimination.
A key tool in achieving equality is the non-discrimination principle. Equal
access to the human rights can be guaranteed by ensuring that people with
disabilities are not discriminated against on the grounds of their disability.
The legally binding instrument should protect people with disabilities from
discrimination in having access to and enjoying human rights.
Non-discrimination, and the equal enjoyment of all human rights by people with
disabilities, is currently the dominant and crucial theme as regards changing
the way disability and the disabled people are viewed throughout the world.
Non-discrimination is intrinsic to the principle of equality. It covers both
direct and indirect discrimination.
The concept of indirect discrimination is particularly important in this
context. It is deemed to occur where an apparently neutral provision, criterion
or practice would put some people at a particular disadvantage compared to
others. The recognition of indirect discrimination as a form of discrimination
is generally considered to reflect a more substantive interpretation of the
notion of equality. As with the concept of substantive equality, the notion of
indirect discrimination is primarily concerned with the outcome of a form of
treatment. The prohibition of indirect discrimination on the grounds of
disability thus allows for consideration of individual or environmental
differences which, in a particular situation, result in denying equal
opportunities to individuals belonging to a protected group .
The UN legally binding instrument would serve to tailor the application of human
rights to people with disabilities. This would not in the main create new rights
but would seek to clarify and make more visible existing human rights. It could
help trigger a positive dynamic of reform where it is currently lacking and
would further underpin positive trends elsewhere. It could develop a
knowledge-base and set of insights that could serve to further the mainstreaming
of disability. It could provide a focal point for the disability movement and
help it to influence policy and legislative change. It should also seek to
establish an institutional framework to monitor the global human rights
condition of people with disabilities. In sum, it should set concrete standards
for government conduct according to which States will guarantee equal effective
enjoyment of human rights by people with disabilities and will undertake to put
forward internal legislation and policies in line with applicable human rights
standards.
In view of the above, it is important and useful to develop a new UN legally
binding instrument which spells out the relevance and application of the general
human rights standards to persons with disabilities. It would provide a clear
signal from and to the international community and serve as a political catalyst
and educational tool to enable a change in the way people with disability enjoy
their rights.
6. GUIDING PRINCIPLES FOR A FUTURE LEGALLY BINDING INSTRUMENT
The Commission calls for an effective and realistic legally binding instrument
to promote and protect the rights and dignity of persons with disabilities. This
instrument should be guided by the following overarching principles:
· a reaffirmation in law of the principle that people with disabilities have the
same fundamental rights as the rest of humanity;
· a reaffirmation in law of the core values at stake: namely equality, dignity,
liberty and solidarity;
· the securing of the equal effective enjoyment of all human rights for people
with disabilities through the combating of all forms of discrimination on the
grounds of disability, including the promotion of equal treatment and the
accommodation of difference.
The instrument should refer to and identify the full spread of human rights
including political and civil/fundamental rights as well as economic, social and
cultural rights. In line with the above mentioned human rights approach, the
instrument should highlight that states should take action to ensure that in
reality people with disabilities are in a position to exercise their rights. The
establishment of a strong monitoring mechanism and the specification of
enforcement provisions is crucial to the successful implementation of this new
international instrument.
The Commission believes that the current mechanisms put in place by the
Convention on the Elimination of All forms of Racial Discrimination, by the
Convention on the Elimination of Discrimination Against Women, and by the
Convention on the Rights of the Child, respectively, cap provide some useful
pointers as to how this issue might be dealt with in the context of disability
issues.
In dealing with discrimination, it is necessary to take into account the
diversity of people with disabilities as well as their common experience of
discrimination. In addition it is worth noting that experience of discrimination
on the grounds of disability has some common features with the experience of
discrimination on other grounds and indeed people with disabilities can be
victims of multiple discrimination (on the grounds of sex, racial or ethnic
origin, religion or belief, age or sexual orientation).
The participation of people with disabilities in decisions that concern them is
a fundamental principle that must be reflected in international law and policy.
All stakeholders, and first and foremost disability and human rights
organisations and their representatives, should be fully involved into the
process of the development of the UN legally binding instrument. The Commission
welcomes the resolution on the "accreditation and participation of
non-governmental organisations" in the Ad Hoc Committee's inaugural session,
which was put forward by the Danish EU Presidency and recommends that these
working methods continue in the forthcoming meetings. The Commission believes
that the involvement of non-governmental organisations in this process, amongst
other things, must be fully participatory and inclusive of people with
disabilities themselves.
7. CONCLUSIONS
In light of the above, and without pre-empting any substantive discussion, the
core of the debate currently taking place is how to ensure that people with
disabilities do not suffer discrimination when accessing or enjoying the full
panoply of existing human rights.
Article 13 of the EC Treaty enables the Community to combat discrimination, be
it on the grounds of sex, racial or ethnic origin, religion or belief,
disability, age and sexual orientation, in the areas of Community competence,
and the Community has already made use of these new provisions in particular in
the in the areas of employment and occupation. The Commission considers that it
is important that the European Community confirms at international level its
overall strategy with regard to disability, the core of which is a shared
commitment by all Member States to combat discrimination on this ground.
It is therefore the Commission's intention to play an active role on behalf of
the European Community in the process of the development of a future UN legally
binding instrument to promote and protect the rights and dignity of persons with
disabilities. The Commission will also seek to ensure consistency between
European internal and international action regarding disabled people.
Therefore the Commission will soon propose a Recommendation to the Council in
order to authorise the Commission to negotiate in the context of forthcoming
sessions of the UN Ad Hoc Committee established to "consider the proposals for a
comprehensive and integral international convention to protect and promote the
rights and dignity of persons with disabilities" and to conduct these
negotiations on behalf of the European Community, the Council appointing a
special committee to assist it in this task.
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