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Ad Hoc Committee Daily Summary
UN Convention on the Rights of People with Disabilities
A service made possible by the Landmine Survivors Network
Volume 3, #3
May 26, 2004
MORNING SESSION
Commenced: 10:27 am
Recessed: 12:54 pm
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SUMMARY: The AHC completed consideration of Articles 8 and 9.
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The Chair opened the morning session by carrying over additional Article 8
interventions.
ARTICLE 8: RIGHT TO LIFE (Cont)
Costa Rica reiterated their proposal with regard to the definition in Article
8, filed with the Secretariat, and withdrew their observation as to Article 8
(bis) in order to back Kenya’s proposal as endorsed by other delegations.
Yemen, on behalf of the Arab Group, proposed a new two-part 8(b), with added
reference to “armed conflicts, occupations, and wars.” These create special
conditions impacting PWD, and Yemen expressed readiness to look at any ways
and means to enhance the text. They reminded the delegates that PWD in
countries in armed conflict, refugee situations, and under occupation deal
with problems of such severity as to result in suicides. All delegates are
encouraged to “strive to protect the disabled laboring under such travail” by
adding a reference to “persons under the yoke of occupation.”
The floor was opened for comments from NGOs.
National Right to Life (NRL), also speaking on behalf of International Right
to Life,
supported the Article as written, and as a separate Article. “If we do not
have the right to life, we have no other rights.”
Save the Children International (SCI), speaking also on behalf of Handicap
International, agreed that the Article is for everyone, including children.
It supported the proposal of Argentina, India and others on the concept of
survival and development, and suggested modifying the Article title to
harmonize with core principles of right to life, survival, and development
contained in Article 6 of the Convention on Rights of the Child (CRC), and to
reflect “not only right to life as such, but the right to survive.” An
additional paragraph 8.1 is suggested, as follows: “Children and young people
have right to physical, mental, spiritual, moral and social development to
the maximum extent possible.” Since the global increase of conflict and
natural disaster pose an extra risk for PWD, Save the Children also supported
the Costa Rica, Uganda, Kenya, and NRL positions regarding the need for a
separate Article on the issue of conflict.
Landmine Survivors Network (LSN) supported the Article because “the right to
life is a fundamental principle of human rights law from which no derogation
is permitted.” They agreed with the WG proposal, but commented that serious
consideration should be given to India’s proposal reflecting the CRC
approach. Groups at risk would be more appropriately addressed in a separate
Article addressing the situations of PWD in armed conflict and natural
disasters, in rural or remote areas, or scattered populations, based on the
CEDAW precedent.
The Canadian Association of Living (CAL) supported the Article and urged that
genetics and biotechnology issues also be addressed. As parents, they
expressed concern that scientific and medical models may pose a “slippery
slope toward genetic perfection” detrimental to PWD. CAL stated a need for
the families of people with disabilities to be included in all discussion on
bioethical issues, and for recognition that “technology must sustain
diversity and common humanity.” Parents and families should be provided
education and support to help them resist the societal pressure to abandon or
hide their children. Delegates were encouraged to “start a new page to
embrace our sons and daughters, and promote their inclusion and right to
life.”
ARTICLE 9: EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
India proposed deleting from 9(b) of “as others, including in financial
matters”, and inserting instead “except as provided by law.” In 9(c), the
clause “endeavor to” should be inserted prior to “ensure”. Under 9(c)(i), “to
the extent feasible” should be inserted between “assistance is”
and “proportional.” In 9(d), the words “endeavor to ensure” should again be
inserted; and the words “as well as to enter into binding agreements or
contracts, to sign documents, and act as witnesses" should be deleted. It
would be “imprudent and unfair to leave unprotected a large number of people
with multiple disabilities in circumstances of abandonment, destitution, or
extreme poverty and whose families desperately require assistance.” India
proposed inserting this new paragraph: “The state must protect the interests
of PWD who cannot exercise their legal capacity in reduced /temporarily
reduced situations. In exceptional circumstances where legal safeguards are
necessary, the appointment of third parties as legal guardian/surrogate may
be made in the best interests of PWD.”
Japan proposed a new subparagraph after 9(f): ”Take appropriate and effective
measures to eliminate physical and communication barriers and to reduce
understanding difficulty of PWD in order to exercise all the rights in
judicial procedure which are provided in the International Covenant on Civil
and Political Rights.” They reasoned that in interrogations and tribunals,
PWD -- especially people with mental, hearing and visual disabilities -- are
often victims of so-called normal procedures. Due to their inability to
understand what judges and interrogators are saying, PWD should be given
extra protections to avoid being wrongly judged.
Syria suggested adding at the end of 9(e) the words, “bearing in mind the
quality and degree of disability,” arguing that this would make the Article
more realistic, applicable, and efficient.
Canada called Article 8 an important Article, and stated that it welcomes the
opportunity to hear all views. They stated that the current Article has some
difficulties, as reflected in the footnotes to the WG text, alluded to by
other delegations including India. The main difference is a lack of consensus
around what is meant by legal capacity. Canada proposed replacing the current
WG draft text with the following:
“1. States Parties shall recognize that, in civil matters, adults with
disabilities have a legal capacity identical to that of other adults and
shall accord them equal opportunities to exercise that capacity. In
particular, they shall recognize that adults with disabilities have equal
rights to conclude contracts and to administer property and shall treat them
equally in all stages of procedure in courts and tribunals.
"2. States Parties shall ensure that where adults with disabilities need
support to exercise their legal capacity, including assistance to understand
information and to express their decisions, choices and wishes, the
assistance is proportional to the degree of support required and tailored to
the adult’s individual circumstances.
"3. Only a competent, independent and impartial authority, under a standard
and procedure established by law, can find an adult not to have legal
capacity. States Parties shall provide by law for a procedure with
appropriate safeguards for the appointment of a personal representative to
exercise legal capacity on the adult’s behalf. Such an appointment should be
guided by principles consistent with this Convention and international human
rights law, including:
"(a) ensuring that the appointment is proportional to the adult’s degree of
legal incapacity and tailored to the adult’s individual circumstances; and,
"(b) ensuring that personal representatives take into account, to the maximum
extent possible, the adult’s decisions, choices and wishes.”
This new language would address the lack of clarity regarding the definition
of “legal capacity” by referring to CEDAW, Article 15.2. There would be no
need to include 9(a), 9(b), and 9(c) equality provisions since equality would
be fully covered by Article 7.
The proposed text for 9.2 comes from WG draft 9(c)(i),(ii) with important
concepts of proportionality and the tailoring of support to the individual
circumstances of PWD. 9.3 is included to clearly address India and other
delegates’ concerns regarding what would happen when a PWD is found to have
diminished or no legal capacity. Language addressing these issues is
necessary for inclusion in the Article, so that critical safeguards regarding
appointment of a personal representative or substitute decisionmaker for that
adult are in place. Canada’s two Article revision imperatives are to
incorporate proportionality, and adult choices and wishes.
China proposed to make 9(a) more concise by adding the word “equal”
before “rights” and deleting the phrase “equal to all other persons.” The
content of 9(b), regarding PWD having the same rights under the law, is
already reflected in 9(a). Paragraph 9(e) should be deleted. The Convention
should not be too detailed, but should focus on principles. Since 9(b), 9(c)
and 9(d) have similar content concerning assistance to disabled, and Article
13 has specific provisions on providing information to PWD, 9(c) and 9(d)
should be merged into the following text: “States Parties shall endeavor to
provide assistance to PWD who experience difficulties in exercising their
rights.”
Uganda suggested redrafting 9(a) to read “States Parties shall organize and
ensure that PWD are individuals with equal right before the law as other
persons." Under 9(b) “accept” should be replaced by “ensure." In order to
provide wider areas of equality for PWD, the end of 9(b) should read: “Ensure
that PWD have full legal capacity on an equal basis as others including in
political, civil, social, cultural and economic matters.” In 9(c)(i) the
word “interfere” should be replaced with “undermine.”
Argentina stated that this is a very important Article, and offered comments
about the risk of rewriting definitions already embodied elsewhere; and also
about a lack of clarity in describing how to empower PWD who need assistance.
To simplify matters, Argentina supported the proposal introduced by Canada as
more general, avoiding listings that may falsely imply exclusion of other
types of assistance.
Thailand supported the retention of WG Article 9, but are willing to support
any proposed amendment seeking to clarify confusing language. It is not
necessary to replace the term "persons with disabilities" with the
word "adults," as the article should address adults who have legal capacity;
children normally have other legal safeguards.
Ireland stated that the EU shares many of the concerns about this Article
being too detailed in certain areas and insufficient in others. The EU
supported the Canadian proposal, except that there is a need at the outset of
the Article for a strong statement of equality to set the framework for
subsequent discussion of legal capacity. For that reason, like China and
others, the EU supported rephrasing 9(a) and 9(b) to read along the lines
of, “Recognize PWD as individuals with equal rights before the law, and
guarantee equality before the law without discrimination against PWD” There
is a difference between recognition of equal rights and guaranteed equality,
and both should feature in this Article. It is necessary to return to an
exploration of recognition of legal capacity by persons who need assistance,
and therefore the EU supported 9(c)(i). The words after “tailored to their
circumstances" should be deleted because they are unclear. The idea in 9(c)
(ii) is central. Any decision in relation to legal capacity needs to be taken
by independent and impartial authority, Canada's proposal in this regard
deserves a close look. Paragraphs 9(d) and 9(e) are too detailed and lack
clarity. As an odd mixture of ideas in these paragraphs, they should be
deleted initially, and their concepts should be considered later. The issue
of property is worthy of special mention, and can be resolved by keeping 9
(f), but the EU remains open to further proposals in that regard.
Kenya proposed working with the WG draft text on this Article. Amendments
should be made to 9(e), as follows: “Take all appropriate and effective
measures to ensure the equal rights of PWD to own, inherit, use, or otherwise
dispose of property.” In Africa PWD often are not allowed to own or use
property. Kenya supports CEDAW language vis-à-vis property rights.
Qatar stated that this was an important Article, but difficult without a
definition of disability to go along with relevant subparagraphs. Qatar would
be ready to look at any relevant proposals along these lines.
Costa Rica agreed with the EU proposal to revamp 9(a) noting this Article
represents a major step forward in establishing and recognising equality of
PWD under the law. Costa Rica supported the Canadian proposal, especially
9.3, which deals with the problem of PWD who don’t have a chance to get
representation. The reference to financial matters in 9(b) should be deleted.
9(c)(ii) requires additional language recognising the need for periodic
review and revision of the decisions in question, relating to individuals
that assist or may represent PWD. A subparagraph should be added, based on
language found in other international instruments, as follows: ”Take
necessary measures to ensure everyone whose rights and freedoms as recognized
in this Convention are violated should have an effective remedy before a
national authority, notwithstanding that the violation has been commited in
an official capacity.” Costa Rica reaffirmed backing for proposals made by
India, Canada, Ireland, and Japan.
Kuwait stressed the importance of this Article. It also affirmed the need for
a juridical, legal definition of equal recognition, but adding greater detail
to the text might spawn controversy and undermine prospects for the
Convention. Canada’s approach in 9(a) and 9(b) might be a proper beginning of
the process of amending the Article.
Mexico expressed concerns about the differences among the legal systems of
various countries, some based on Roman/Continental law and some on
Common/Anglo Saxon law. Under these two approaches, either a PWD is
considered to have full capacity or is prohibited from certain things; there
is no intermediary position. Mexico stated that its first goal was to
stipulate safeguards necessary for preventing abuse; its second goal was to
propose measures so that each country can adopt legislation that fits its own
circumstances; and its third goal was to leave the door open, so that the
Convention would not serve as a “straitjacket for more favorable laws.”
Mexico further suggested that the title of the Article be changed
to “Equality under the law,” and recommended that the text of 9(a) be changed
to: “Recognize PWD as subjects of rights and obligations before the law, in
equal conditions to those of persons without disabilities.”
Mexico considered 9(b) to be redundant since 9(a) is so broad. It considered 9
(c) to be well constructed and general enough to establish the principle
regarding assistance PWD may require to fully exercise their legal
capacities. In this regard 9.3 of the Canadian proposal is excessively
detailed. This only needs to ensure an established process under the law for
applying necessary legal safeguards. Mexico expressed concern that in some
countries it may not be the judiciary per se that handles these matters, but
some other entity, such as in the case of tutelage over minors. Moreover, the
Canadian proposal introduces a series of difficult subjective elements, such
as guardians to make decisions for PWD. In Mexico, the delegate explained, a
judge can decide on these situations on an ad hoc basis, and the status of
legal incapacity is not irreversible. Mexico suggested that 9(d) be
maintained as it is, but it stated that although a person may be fully
legally capable, he or she might need juridical backing to understand certain
things. Mexico considered 9(e) to be excessively detailed and thought that
certain elements of it could be worked into 9(d), although Mexico agreed with
the EU on deleting 9(e) from the text. Mexico also suggested that the end of
Convention should contain an Article as a safeguard clause, based on those in
other human rights instruments, stipulating that no provision in this
Convention shall undermine the provisions of any domestic law more favorable
to the rights of PWD. Finally, Mexico welcomed Japan’s proposal, but felt
that it could be covered by a general provision, as it would otherwise need
to be infused into all the Articles of the Convention.
Viet Nam suggested adding “if the PWD are in need” after “their own financial
affairs.”
India expressed its support of the Canadian proposal.
Sierra Leone noted that PWD gave significant contributions to this Article
and asserted that it is important to review the footnotes for this article
when considering it. It stated that the Article could end after 9(c)(i), as
it recognizes PWD as individuals, and agrees with Uganda’s proposals in this
regard. There must be established legal procedures within the jurisdiction of
each state to ensure the rights of PWD. It cautioned that the Committee
should avoid legal commentary in reviewing this Article. The Convention
cannot include everything; the Committee should work within the WG draft.
New Zealand stated that the Canadian proposal seemed to capture more clearly
some of the ideas already contained in Article 9, but does not contain ideas
expressed in 9(e) and 9(f). While further clarity can be brought to the
Article, the Committee should recall why 9(e) and 9(f) were included in the
draft in the first place. New Zealand then recalled Articles 13 and 15 of the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), which was an effort to correct the historical presumption that women
were not capable of owning property or exercising legal capacity; there is a
similar presumption facing PWD which should be corrected with a similar level
of detail. New Zealand stated that while specific issues of loans, mortgage,
and credit could be incorporated into Article 15, it would like to see other
important concepts retained in the text of this Article. New Zealand then
pointed out that the Canadian proposal is the only one explicitly stating the
important safeguard that only a court can deem a PWD to have reduced or no
legal capacity, though the WG's draft hints at it. India’s proposal mentions
guardians or surrogates, which leaves out the possibility that a person can
be appointed to exercise legal capacity for a PWD only for a limited time or
in a limited function.
Liechtenstein did not agree with the placement of the Article and suggested
that it would be more appropriately placed after Article 7, and remarked that
the ordering of Articles seemed to be a problem throughout the draft. It also
agreed with the Canadian proposal, especially surrounding the issues of equal
legal capacity in general and the provisions and safeguards for those who
need assistance. The WG draft did not address personal representatives or
guardians. The AHC should work with the Canadian proposal, but should not
forget other ideas that were contained in the WG draft or suggested later,
such as the right to have and dispose of property.
Serbia and Montenegro suggested working with the EU draft of 9(a) and
accepted Canada’s proposal from 9(b) on; and suggested adding to 9.3 of
Canada’s proposal “and with the application of relevant safeguards, including
provisions for review.” PWD should enjoy equal rights to property without
discrimination. Serbia and Montenegro agreed with New Zealand that this might
not be the right placement of the Article, and proposed that the Article
retain the last subparagraph.
Jordan called this a very important Article that needs serious revision and
supported the Canadian proposal, especially point 3; and Jordan proposed the
addition of subparagraph 9(c) to the Canadian text, “ensuring regular review
of the findings of legal incapacity.”
Botswana supported the suggestions made by Japan, with the addition
of “social” after “physical” to address negative attitudes toward PWD.
Oman agreed that this is an important Article and affirmed that PWD are equal
before the law and have full legal capacity on an equal basis with others,
but questioned how this is exercised. It is crucial that PWD have the ability
to participate in the legal process; 9(d) deals with the provision of tools
that enable PWD to participate and to ensure that the legal process itself is
accessible, and 9(d) must be formed sufficiently broadly to make all legal
processes exercisable. The Committee should consider degree and quality of
disability when providing assistance for the exercise, not the limits, of
rights.
Yemen questioned the title, asking, “before the law – what law? Of what
nation?” Yemen asserted that laws differ from one country to the next and
cautioned that a text must be crafted that is mindful of this. Legal capacity
of PWD differs depending on the type of disability – e.g., with disabilities
of movement or vision “we can find a way of dealing with it but certain
disabilities do not lend themselves to recognition under the law as to legal
capacity.” Therefore, Yemen supported Qatar, in that there is not a precise
definition of disability in defining legal capacity.
Ireland, speaking on behalf of the EU, suggested a change to 9(c)(ii),
deleting “only” and, after the word “taken,” adding the words “by a
competent, independent and impartial authority”; and appending “including
provisions for review.”
Lebanon expressed interest in the Canadian proposal, especially paragraph 3;
suggested keeping all elements of the WG draft; and agreed with the
amendments proposed by the EU.
Norway remarked that the EU proposal, more than the Canadian one, emphasized
not only equal rights, but also equality before the law. Norway agreed with
Costa Rica's proposal to include a review mechanism in 9(c)(ii) as a
safeguard.
Thailand reiterated its support for the content as put forth by the WG. Any
attempt to move away from it should only be for the purpose of clarity. Some
countries may not think 9(d), 9(e), and 9(f) are important, but in some
developing countries, PWD are at risk of being deprived of these rights.
However, Thailand would support their placement, in their entirety, in a
different Article.
Colombia expressed concern that the Canadian proposal focused only on adults
and addressed only civil matters, not criminal or other areas of law.
Colombia suggested keeping 9(a) and 9(b), and agreed with Mexico that there
should be equality vis-à-vis persons without disabilities, by establishing
affirmative measures to help persons with disabilities. Colombia suggested
deleting 9(d), as it lacks clarity with regards to managing personal affairs,
control over moneys, and access to credit.
Mexico stated that Canada’s proposal might have a restrictive impact by
limiting the scope of the Article to the civil arena only.
The floor was opened to comments from NGOs.
International Labor Organization suggested the preparation of detailed
guidelines for implementation, not only for this Article but also for other
Articles, a procedure which the ILO itself has found effective. The Article
should provide for an effective dispute, prevention, and settlement system,
as well as for legal aid.
The Chair noted that this practice already exists under international law.
Landmine Survivors Network stated that the Canadian proposal left out
essential elements of the text, specifically 9(b) and 9(c)(i) that would be
necessary to support the achievement of full equal rights by PWD. If
assistance is provided, the rights and freedoms of legal capacity is not
interfered with. LSN agreed with Uganda and with the World Network of Users
and Survivors of Psychiatry, that “undermine” should be replaced
with “interfere” in order to make it harder to impose guardianship, because
it is in effect a “social and legal death” and a violation of human rights
and dignity for a person not to exist before the law. People may need support
in decisions and some people may need a high level of support, but that does
not mean a person may be excluded. It is possible to provide assistance
without taking away or limiting a person’s rights. Autonomy must be
respected; a support person should facilitate self- determination in the
decision-making of the person being supported. LSN also discussed
interdependence and relationships of trust, and the need for procedural
safeguards to assure that support people act on the wishes of PWD and do not
abuse their position by imposing their own wishes on the PWD. When capacity
is assessed, it begins a process of discrimination, especially in cases
involving people with intellectual or psychiatric disabilities. Even where
this is not a legal presumption, it is a social presumption and lawmakers and
judges retain that social presumption. LSN suggested that the Committee
review their model on supported decision-making and issues of providing
assistance without limiting rights.
People with Disabilities Australia, the National Association of Community
Legal Centers, and Australian Federation of Disability Organizations stated
that there are four key rights underpinning Article 9: 1) the right to
recognition everywhere as persons before the law, found in Article 16 of the
ICCPR and in 9(a) of this draft Convention; 2) the right to be presumed to
have full legal capacity to make decisions in all areas of life, found in
Article 15 of CEDAW, in the common law of various states and jurisdictions,
and in 9(c) and 9(d) of this Convention; 3) the right to the full and equal
enjoyment before and under the law as all other people, recognized in
Articles 14, 15, and 26 of the ICCPR and 9(a) of this Convention; and the
right to own and administer property, as recognized in Article 17 of the
UDHR, Articles 13 and 15 of CEDAW, and 9(d) to 9(f) of this Convention. PDA
asserted that these rights represent the necessary preconditions to the
effective exercise of all other rights of PWD and recommended they be
addressed in separate articles, rather than together in Article 9, which is
neither clear nor far-reaching enough, and which “conflates and confuses the
four quite separate rights.” PDA agreed with the wording of 9(d), but
recommended substantial redrafting of 9(c)(i) to elaborate procedures and
safeguards necessary to support the full range of assisted and substituted
decision making from the most informal, culturally appropriate, and least
restrictive to the more formal options of limited and plenary guardianship.
PDA supported ILO in that legal aid must be provided for PWD to challenge
deprivations of their liberty.
Inclusion International supported the position of the World Network of Users
and Survivors of Psychiatry in that people with psychosocial and intellectual
disabilities are most vulnerable in attempts to propose substituted decision-
making. While II endorsed the idea of seeking legal means to develop
supported decision making options before the law, they hoped that the
Committee would adopt recommendations by Jordan and others that substitute
decision-making be granted only as a last resort and only on a time limited
basis. II stated that Japan raised an important issue, touching upon the
spirit of the Convention, related to people with significant communication
challenges who need to be assisted in having their needs understood and
expressed.
Save the Children supported the statements of the World Network of Users and
Survivors of Psychiatry and Inclusion International. It suggested appending
to 9(a) the words “and respect the rights of children with disabilities to
exercise legal capacity in accordance with their evolving capacities” and
replacing "persons" with “children and adults.” In 9(d) the words “difficulty
in asserting their rights, in understanding information and in communicating
have access to assistance to understand information presented to them and to
express their decision, choices” should be replaced with the
words “difficulty in communication, accessing and handling information needed
to address their rights, can acquire non-partial assistance.”
Disabled Peoples’ International stated that the failure to recognize the
fundamental right to make decisions with support has resulted in
institutionalization, forced sterilization and countless human rights
infractions for PWD all over the world. Paragraph 9(c) is a key element, but
additional wording is needed. DPI directed the Committee’s attention to
footnote 33, which articulates that where assistance is necessary, the
underlying assumption is still for full legal capacity; DPI felt that this
principle was not made explicit in the draft text. Similarly, DPI stated that
9(c) does not outline procedural safeguards, such as when and how assistance
should be provided, who will make these determinations, or avenues for review
and appeal. DPI supported Japan on the need to take effective measures to
eliminate physical and communication barriers and to ensure the exercise of
rights in judicial procedures according to the ICCPR.
World Blind Union stated that these rights should be equal to other persons,
and should be detailed and specific. WBU considered that 9(d), 9(e), and 9(f)
were of the highest importance and should remain in the text, as blind
persons are often denied the right to own property, to marry, to inherit, to
sign contracts, to hold bank accounts, to sign documents, or even to vote in
public elections. WBU also pointed out that in footnote 33 the term “disabled
person” is used, and urged "person first" language in all cases.
The UN Economic and Social Commission for the Asia and the Pacific (ESCAP)
stated that the draft does not have specific provisions for remedies, and
suggested adding text from the Bangkok draft, as follows: “States Parties
recognize that access to effective remedies may require the provision of free
legal assistance to PWD and the modification or flexible application of
existing laws and practice regulating matters of procedure and evidence.”
World Federation of the Deaf stated that assistance alone is not enough.
Often in court or police situations sign language interpreters are ordered to
leave the room. WFD suggests adding “interpreter services” to both 9(d) of
the WG draft and to 9.2 of Canada's draft. WFD remarked on the importance of
a property clause, and on the interconnectedness of legal capacity and
property.
The Special Rapporteur stated that 9(f) is not sufficient to protect the
rights of PWD.
Mexico supported the ILO in calling for the development of guidelines or even
a model law which could direct the preparation of domestic law.
AFTERNOON SESSION
Commenced: 3:16 PM
Adjourned: 5:50 PM
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The AHC finished discussion of Articles 10 and 11 and began discussions on
Article 12.
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ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON
China suggested, in 10.2(b), inserting before “reasons” the words “the
applicable law and” because freedom of parties should be based on fact and
law. Regarding 10.2(d), it would delete the phrase “or deprivation of liberty
based on disability, contrary to this Convention” because it is redundant
with 10.1(b).
Changing the subject back to Article 9, Thailand supported Costa Rica's
proposed remedies section.
New Zealand referred to the comment in footnote 35 that it is not clear
whether Article 10 deals with civil commitment, or criminal incarceration, or
both. It supported the LSN position that this Convention cannot accept a
lesser standard than the ICCPR, Article 9. New Zealand suggested an amendment
similar to China's, in 10.2(b), to add after Aformats as to@ the words Atheir
legal rights and. The words “at the time this occurs" should be added at the
end of 10.2(b). The EU's proposed new 10.3(i) is problematic because it may
create an internal contradiction in the document, and 10.3(ii) should be
rewritten to reflect the autonomy and dignity of PWD.
Argentina stated that there is a translation error in 10.2(a), Spanish
version: Inherent is the correct word, not imminent.
Ireland, on behalf of the EU, asked that 10.2(d) be changed to: “Compensated
following determination by an appropriate authority that the deprivation of
liberty has been unlawful.” There needs to be an impartial authority to rule
in such cases. The EU’s 3 (bis) was written in response to concerns in
footnote 36 about whether this Article does or should prohibit civil
commitments. This concept should be dealt with as a question of deprivation
of liberty, instead of in Article 11. Ireland concurred with New Zealand that
this Convention should contain no lesser standard than that which is in the
ICCPR, Article 9. That however covers criminal detentions so its provisions
may not apply to health-related detentions at issue in this Convention.
Forced institutionalization is illegal. It needs to be clear that involuntary
commitment should only be allowed in exceptional circumstances, and with
clear legal safeguards. The EU's 10.3(i) (bis) provides stronger safeguards
than does the ICCPR. A central issue is consideration of the best interests
of the individual person with a disability. Consent is the issue, therefore
the AHC should think about adding “involuntary institutionalization” because
this may be a more appropriate term.
Japan proposed two changes. The words “seek regular review of deprivation of
their liberty” should be deleted from10.2(c)(ii), because the right to appeal
to a court is more important than review by States; and the
second “deprivation of liberty” should be deleted from 10.2(d) to eliminate
the redundancy.
Costa Rica suggested adding “fully respecting their rights in conditions of
equality” at the end of 10.2(a).
Canada proposed adding “solely” to 10.1(b), so it would read “shall be based
solely on disability.” It prefers deleting 10.2(d) and replacing it with a
new paragraph 10.3 which tracks the ICCPR, Article 9.5: “Any PWD who has been
the victim of unlawful deprivation of liberty shall have an enforceable right
to compensation.” It is important to make this Convention consistent with
other Conventions.
Korea proposed adding in 10.2(a): “the degree of the violation of freedom
against persons with disabilities should not exceed the general standard and
proper provision of conveniences such as the measure for ensuring a meeting
with the guardian, assistive tools and due medical service should be properly
secured.”
Colombia proposed adding a new paragraph, either at 10.1(c) or at 10.2(e), as
follows: “States Parties shall guarantee that when persons with disabilities
are detained or imprisoned that they be placed in a site adapted to their
particular circumstances of disability respecting their right to participate
in all activities necessary for them to be reincorporated in social life.”
Uganda stated that there must be a legitimate reason for deprivation, either
an offense committed by the person or a potential threat, and not on the
basis of disability. In 10.1(b), the word “solely” should be added before “on
the basis of disability.” Uganda proposed a new paragraph at 10.1(c), as
follows: “when lawfully deprived of liberty measures shall be taken to ensure
that they receive rehabilitation while under confinement.”
Serbia and Montenegro supported the WG's Article 10 with the amendments
proposed by the EU.
Mexico supported Argentina's translation correction in 2(a). It supported
addressing compensation issues more generally in the Convention. In
10.2, “through a civil or criminal procedure” should be added
after “liberty.” In 10.1(a), the addition of the word “solely” may cause
problems by implying that PWD should be deprived of their liberty.
Australia shares New Zealand's uncertainty about whether this Article covers
criminal or civil cases or both. It also supported New Zealand's amendment to
10.2(b), adding legal rights, and supported Canada in adding the
term “solely” to 10.1(b).
Kenya approved of adding 10.1(c), as suggested by Uganda, because disability
and rehabilitation needs must be taken into account during incarceration.
Jordan suggested that in 10.1(a), the phrase “based on disability” should be
deleted as redundant. In 10.2(a), “the needs they have because of” should be
deleted, due to its negative connotations, and replaced with “the challenges
they encounter due to.”
Norway agreed with the EU regarding the need to be consistent with other
Conventions. The article may need to deal with civil and criminal cases in
different parts to make it clearer.
The floor was opened for NGOs to offer comments.
DPI commented that due to disability many people are subjected to cruel and
inhuman treatment and abuse, both in and out of institutions. NGOs do not
support footnote 38 regarding permitting forced institutionalization.
Institutionalization should be defined with reference to one’s separation
from nondisabled people and the deprivation of liberty and/or autonomy.
Boarding schools chosen by deaf, blind and deaf-blind students should not be
considered institutionalization. No level of institutionalization should be
necessary.
WNUSP/Support Coalition International supported 10.1(b) as drafted by the WG
without any qualifications such as the term “solely.” Deprivation of liberty
based on disability encompasses civil commitment and forced
institutionalization as well as private deprivation of liberty. If the AHC
adds the term "solely," it would open the door for States to deprive persons
with disabilities of their liberty for being “a danger to society,” which is
discriminatory because people without disabilities are not subject to the
same standard. If there is no crime, a State cannot lock up person who is not
considered mentally all or intellectually disabled. PWD should not be subject
to a different standard. There is a moral obligation to move society toward
inclusiveness. If a person with a disability is deprived of liberty, that
imposes a social disadvantage and therefore, under the social model, that is
discrimination.
Inclusion International recommends changing Articles 10, 11, and 12 so that
no law could force people to live in institutions. Institutionalization is
very destructive to PWD and leads to dehumanization of both PWD and staff,
leading to abuse. Institutions take over the core of a person’s life.
Contrary to the claim that institutions offer quality care at an affordable
price, the speaker insisted that they are a costly form of segregation.
Instead, PWD need integration in school, housing, employment, and recreation.
PWD Australia/NACLC/Australian Federation of Disability supported Article 10.
A deprivation of liberty must not abrogate other human rights, including the
right to legal capacity and freedom from torture. It supported an obligation
to States to reform laws that result in the arrest and detention of PWD
(footnote 37). The least restrictive alternatives should be used during
permissible deprivations of liberty, the minimum level appropriate to the
circumstances. The guarantee in 10.2(b) needs to be more broadly stated so
that PWD who are detained will know the reason for their deprivation; it
should include obligations to provide information in alternate formats and
support people. The right to free legal assistance should be included. The
word “solely” should not be added because it would create a loophole allowing
States to deprive a PWD of liberty based on another reason, which by itself
would not be sufficient to deprive liberty gas. The Article needs to
explicitly state that deprivation of liberty should be broadly interpreted to
include civil commitment, mental health and immigration.
DPI Japan supported using the language in ICCPR to avoid misinterpretation.
The term “needs” in 10.2(a) is too ambiguous and does not state how needs are
determined nor who determines them. This section needs to include physical
and information access, general programs and services, and reasonable
accommodations must be provided in detention facilities. (See Chair’s draft
Article 14, Bangkok draft Article 13, and Mexican draft Article 10). The
standard in 10.2(c)(i) is below that in the ICCPR, Article 9.4. DPI Japan
remarked that 10.2(c)(ii) contradicts 10.1(b). It recommended changing the
language of the 10.2 chapeau as follows: “States Parties shall ensure that if
PWD are unlawfully deprived of their liberty or deprived of their liberty
based on disability contrary to this convention they are:” It supported
WNUSP's recommendation to keep 10.1(b) as drafted.
Save the Children expressed concern about this article. The title and the
grounds for permissible deprivation of liberty are unclear. In many
countries, the legal reasons for deprivation are questionable, and this
Article does not address that. The distinction between legal reasons for
deprivation of liberty and disability-based reasons is also not clear. The
Article does not provide protection for PWD. A drastic revision is needed to
ensure that institutionalization and perceived incapacity will be halted.
Save the Children commented that the drafted article is based on needs and
perceived needs instead of rights and there is nothing about who defines the
needs.
Support Coalition International disagreed with the EU that involuntary
institutionalization is not the norm. Forced institutionalisation is the rule
not the exception in the U.S. Legal safeguards are set up to protect society,
not to protect PWD; in contrast, this Convention is about protecting PWD
rights.
NHRI supported EU 3 (bis) providing legal safeguards against arbitrary
institutionalisation, an illegal deprivation of liberty. Where a restriction
of liberty is necessary, procedures in law must be applied and States must
review their own laws. The focus should be in the best interests of the
person.
ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT
Ireland said the EU supported 11.1 because it obliges States to implement the
ICCPR and prohibits medical or scientific experimentation without consent.
The EU has made proposals in relation to forced institutionalization in
Article 10, and because forced interventions are dealt with in Article 12,
the EU recommends deleting from 11.2 the following words: "and shall protect
persons with disabilities from forced interventions or forced
institutionalisation aimed at correcting, improving, or alleviating any
actual or perceived impairment."
India proposed merging Articles 11 and 12. This new Article titled “Freedom
from Torture, Degrading Treatment, Violence and Abuse” (available on the UN
Enable website) retains 11.1 and 11.2 with an addition to 11.2. The new
paragraphs 11.3, 11.4, and 11.5 are similar to Article 12. Both these
articles deal with acts, which take away the fundamental freedoms, rights,
and dignity of persons and should be treated together.
Canada supported the EU in deleting the last part of 11.2.
Japan supported the EU and Canada because Article 10 addresses
institutionalization and Article 12 addresses the rest of 11.2.
Yemen stated that the title of Article 11 and 12 imply that they deal with
one subject that could be combined, and supported India’s proposal. It does
not support deleting 11.2, but it may be combined with Article 10.2.
Uganda supported 11.1 in total, and proposed adding in 11.2 the
word “abduction” after “forced interventions." PWD are abducted and taken to
institutions.
Argentina supported 11.1 in the original text. The language in 11.2 goes
further than the Convention against Torture and therefore may fit in Article
12, Protection against Violence.
China supported the deletion of the last part of 11.2, as advocated by the EU
and Canada. Forced interventions, footnote 38, is controversial and suggests
placement a separate article or in another article.
South Africa supported 11.1 and removal of last part of 11.2, because it is
already in Article 12.
Norway supported Canada, China and EU’s proposals to keep 11.1 and to delete
the last part of 11.2.
Costa Rica supported the current text Article 11, but may agree to delete the
second part of 11.2. There is a translation issue: The English version
says “forced intervention" while the Spanish version says “forced medical
interventions.”
Kenya supported retaining the original Article. Forced interventions and
institutions are cruel and inhuman treatment, and should be addressed in this
article. Article 11 and 12 should not be merged because Article 11 tracks
other Conventions and Article 12 is unique to PWD.
Holy See proposed adding “, including sterilization” after “forced
interventions” in 11.2.
Mexico spoke against the proposed merger of Article 11 and 12 because they
are separate issues. In 11.2, kidnapping (abduction) should not be listed
because it is a special kind of crime. It proposes a new Paragraph 11.3 to
address monitoring the living situations of PWD: “In order to monitor living
conditions and facilities of places where persons with disabilities are
placed, international instruments shall be applied, as appropriate, including
the Optional Protocol of the Convention against Torture, for the realization
of visits by national or international bodies to detention centres.”
Singapore supported deleting the last part of 11.2.
Thailand supported the text as drafted and suggested adding “and other forms
of experimentation" after "medical or scientific research," in order to be
more inclusive.
Eritrea supported the WG's original text. Although 11.2 it is redundant with
article 10, it is necessary to keep it in Article 11.
Sierra Leone supported the WG's original Article 11. The second part of 11.2
is important; footnote 38 merely states that there was disagreement about
whether it should appear in Article 11 or Article 12. There was no
disagreement about its necessity. The AHC needs to address appropriate legal
procedures and safeguards relating to forced interventions. It would like to
discuss whether to merge Articles 11 and 12 after the entire Convention is
drafted.
Algeria does not favor merging Articles 11 and 12 because the seriousness of
torture is different from abuse. It proposes adding the words “in all of its
forms” after the word "torture" in 11.1.
Liechtenstein supported keeping Articles 11 and 12 separate. Different actors
commit these different kinds of abuses. Article 11.1 mainly addresses the
public sphere, while Article 11.2 deals with medical situations. The focus of
Article 12 is on abuse and violence in the private sphere, which the State
should do everything to prevent.
The floor was opened for comments from NGOs.
WNUSP stated that its members experience forced interventions such as
electric shock and drugging which traumatize them for life. It agreed with
Kenya that these practices constitute torture. Under international law, there
is no distinction between torture and forced interventions. Abuse of
political prisoners is understood and confronted; but in “medical”
institutions it is more difficult to defend against violence, even though the
torture is the same, because it is not referred to as such. Legal standards
and procedural safeguards can never legitimize torture and other cruel
treatment. WNUSP finds Algeria’s amendment constructive.
Society of Catholic Social Scientists supported the WG draft text with the
Holy See’s amendment adding forced sterilization, because of the danger posed
by eugenics interventions. Bodily integrity is a vital concern to PWD.
ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE
Ireland explained that the EU does not favor merger of Articles 11 and 12
because violence and abuse is broader than torture. Although the EU agrees
with the first sentence in 12.1, it is more appropriate to the preamble. To
emphasize obligations, Article 12 should begin with States Parties duties to
protect PWD from all forms of violence. The EU has proposed rewriting 12.2 to
make it broader and stronger than the WG's language: “States shall take the
necessary measures to ensure that medical and related interventions,
including corrective surgery, are not undertaken without the free and
informed consent of the person concerned.” (Moved and reworded from Article 21
(k)).
In the WG draft, 12.3 repeats 12.1. Therefore 12.3 should be deleted, and the
rest reworded to focus on information, as follows: “Such measures shall
include the provision of appropriate information to persons with disabilities
and their families.”
Although the EU agreed that forced intervention is illegal, there are
exceptional circumstances where it is appropriate. Therefore, the EU
suggested an addition 3 (bis): (i ) “States Parties shall accept the
principle that forced intervention of persons with disabilities is illegal,
save in exceptional circumstances in accordance with the procedures
established by law and with the application of appropriate legal safeguards.”
(ii) “The law shall provide that in any case of forced intervention of
persons with disabilities, the best interests of the person concerned will be
fully taken into account.” The EU supported 12.4 and 12.5. In 12.6, the EU
suggested replacing “treatment” with “prosecution” because this paragraph
addresses the perpetrators of violence and abuse. In addition, “as
appropriate” should be moved to before “of protection services” so it
includes both protection services and judicial involvement.
Argentina proposed deleting the first sentence of 12.1 because it is
redundant. In 12.2, it proposed deleting “abduction” in favor of a clearer
term. The terms "forced interventions" and "forced institutionalization" are
not clear.
Yemen agreed with the WG's draft of 12.5. This Convention needs explicit
remedies as stated in footnote 39.
Korea proposed to change 12.1 by adding “abandonment" to the list of forms of
violence and abuse in both sentences.
Jordan remarked that 12.3 is redundant because it is included in 12.1 and
should be deleted. It proposed adding “provision of information” to 12.5 and
adding “and their families” after PWD in 12.6. Forced interventions is an
abstract concept, but people are concrete. These decisions should be
supported by counselors, not just judges and lawyers in isolation.
China remarked that the first sentence in 12.1 of the WG text sentence may
lead to negative views of PWD. It suggests using Article 19 of CRC as a guide
and deleting 12.1 as drafted. With regard to 12.2, forced intervention and
institutionalization are important issues, and the AHC should further discuss
how to address them.
Bahrain proposed that 12.1 focus on institutional mistreatment.
Costa Rica stated that the Spanish text in 12.1, 12.2, and 12.3 include both
physical and mental abuse, but the English version does not include that
distinction. It suggested inclusion of both in all translations. It proposed
that 12.3 (the provision of information) be placed in 12.1. In 12.6, add
after “protection services,” “adequate deterrence and effective sanctions,
including as appropriate, traditional involvement.” This makes clear the need
to apply sanctions when violence is used as in CEDAW.
Japan stated that 12.2 mixes forced institutionalization with medical
treatment. If a person consents, then medical treatment is fine. The EU
proposal would clarify this.
Sierra Leone agreed with deleting the first sentence and placing it in the
preamble. It also supported deleting 12.2 because this is already in 11.2.
There is no need to address footnote 39 because 12.5 and 12.6 implicitly
address remedies. Sierra Leone asked for clarification as to
whether "judicial involvement" in 12.6 means legal remedies. It prefers to
incorporate remedies into the Articles instead of describing them in a
separate Article. Alternatively, 12.5 could be amended to add a provision for
appropriate legal remedies.
Uganda stated that the first sentence of 12.1 should not be deleted because
it contains information that States need to understand for the remedies that
follow. Paragraphs 12.1 and 12.3 need to be harmonized. In 12.4, the
phrase “placed together, separate from others” may reinforce
institutionalization and segregation. It proposes replacing this phrase
with “where PWD’s live and access services.” A new paragraph at the end
should read: “States Parties reaffirm the rights of persons to make a choice
over their bodies and shall ensure PWDs are not subject to sterilization or
forced abortions.”
Kenya recommended a paragraph that takes into account the fact that PWD are
more likely to suffer rapes and maimings in situations of armed conflict,
given especially that PWD are seen as less likely to be infected with AIDS.
It proposed language whereby States Parties recognize that armed conflict
particularly undermine freedom from violence and abuse of PWD, and shall
take appropriate legislative, administrative and other measures to protect
PWD from armed conflict.
New Zealand proposed several amendments. The first sentence of 12.1 can be
deleted as had already been proposed provided that it is moved to the
Preamble. The references to exploitation in this sentence and in 12.3, 12.5
and 12.6 should include “economic” exploitation as well. The instances
of “violence and abuse” mentioned n 12.6 should specify the whole list of
types of abuse as stated in the first sentence of 12.1. In 12.3 “And
education about how to avoid, recognise and report instance of the above. SP
shall also ensure those working with PWD that are trained to identify and
prevent such instances.” 12.4 should be amended to include the need for
monitoring and transparency: “Recognising that PWD are more at risk of
violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including economic and sexual exploitation and abuse in
segregated policies and programs where persons with disabilities are placed
together, separate from other people, NZ States Parties shall ensure that
those facilities and programmes, both public and private, are effectively
monitored by independent authorities, which include PWD, and the monitoring
reports made available to the public.” The following language should be added
to 12.5: “Such recovery and reintegration shall take place in an environment
that fosters the health, self-respect, dignity and autonomy of the person.“
These amendments are based on the LSN Legal Analysis. 12.6 should focus on
follow up as treatment has already been dealt with and amended as
follows: “States Parties shall ensure the identification, reporting and
investigation of all instances of violence, injury and abuse, neglect or
negligent treatment, maltreatment or exploitation, and referral to the
appropriate protection agency, and where necessary to the courts.”
-------------------------------------
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