UN Convention on the Rights of People with Disabilities
Ad Hoc Committee Daily Summary
A service made possible by the Landmine Survivors Network
Volume 4, #2
May 25, 2004
Morning Session
Commenced: 10:20 AM
Adjourned: 12:50 PM
ARTICLE 4: GENERAL OBLIGATIONS (CONT)
China suggested new language for Article 4.1: “States Parties undertake to
adopt legislative or administrative and other measures to ensure the full
realization of all human rights and fundamental freedoms for all individuals
within their jurisdiction without discrimination of any kind on the basis of
disabilities. With regard to economic social and cultural rights, States
Parties shall undertake such measures to the maximum extent of their
available resources and, where needed, within the framework of international
cooperation.” China went on to suggest an amendment to 4.1(a), “to amend,
repeal, or nullify any laws or regulations and discourage customs or
practices that are inconsistent with this Convention.” The Chinese amendments
to Article 1 will be distributed later.
Ireland, speaking for the EU, responded to the comments made regarding the
EU’s proposals for Article 4, and stated that it was not the EU's intention
to turn the Convention into one about non-discrimination. Before the December
(2003) meeting, the EU proposed a text of the Convention aimed at producing a
strong document that will be implemented and ratified by the widest possible
sector of the international community so that PWD can enjoy rights already
guaranteed to them by international law. The EU advocates four basic
principles -- non-discrimination, equality of opportunity, autonomy, and
participation/inclusion -- which must remain at the core of the final
Convention. Non-discrimination is an essential element that needs to be
reflected in the Convention, which is why the EU proposed strengthening this
language. The intent is not to dilute Article 4, and the EU fully respects
both the Article and the Working group. The EU reasoned that non-
discrimination is essential because existing international human rights
instruments already apply to PWD, but PWD still face denials of rights to
which they are entitled, and states can bring about situations where PWD can
enjoy full rights without discrimination. The EU affirmed that all human
rights will apply to PWD, not just the rights stated in this Convention.
The EU also stated that later it will suggest that Articles 18 and 19 be
moved further up in the draft and that Article 4.2 (with amended language) be
moved to Article 25.
The EU read this amendment during the present discussion, without prejudice
to where it might eventually be placed: “States, when developing and
implementing policies and legislation to give effect to this Convention,
shall take appropriate measures to ensure adequate consultation with, and
involvement of, PWD and their representative organizations.”
Morocco stressed that in the body of Article 4 the question of progressive
achievement of political, social, and cultural rights must be addressed in
order to enable countries to achieve the purposes of Convention under the
best possible circumstances.
Yemen, on behalf of the Arab Group, urged the AHC not to omit discussion of
the Preamble, and suggested that certain articles discussed in haste could
require further consideration later. Yemen also stated its desire to remain
as close as possible to the Working Group text, as the WG considered numerous
views. Amendments should be limited to explanatory notes or legal angles. The
WG's draft of Article 4 should be preserved.
India agreed that the EU proposal deserves some attention. However, in order
to reconcile various aspects of the Convention, India proposed that what is
now Article 7.3 be moved to Article 4 after the discrimination clause. India
proposed an amendment to 7.2, to delete the words “close" and “the active
involvement of,” both of which are subjective and unnecessary. India proposed
appending “and their families" because in some developing multicultural
countries PWD have not reached a stage of empowerment where they can
be “spokesmen for themselves.” Families should be included as stakeholders in
all planning and policy discussions.
Next the floor was opened to interested NGOs.
Rehabilitation International stated that retaining the Article on general
obligations is crucial, underscoring the congruity between this Convention
and other existing human rights instruments, and that there should be a
direct and visible correlation between Articles 4 and 1, with the purpose to
secure full and equal enjoyment of all human rights for PWD. RI stated that
it could live without the word “effective,” but only if it is understood that
this is included in the word “equal.” RI, like Lebanon, New Zealand, Costa
Rica, and Jordan, questions whether the EU proposal supports the underlying
purposes of the Convention. Non-discrimination describes how rights are to be
delivered, but does not go to the substantive content of these rights. It is
a tool to advance the equal enjoyment of rights but does not exhaust the
equality idea, and it does not go to the full enjoyment of human rights. RI
supports a broader conception of the role of the treaty. Non-discrimination,
though perhaps indispensable, is but a means to the ends of the Convention.
RI proposes that the chapeau read, “In order to secure the full and equal
enjoyment of the human rights of PWD, parties undertake without
discrimination to” and then continue from there.
World Network of Users and Survivors of Psychiatry conceded the need for
redrafting to make the Convention clearer, but cautioned against reducing the
coverage and scope of the rights and obligations in this Convention. WNUSP
also warned that it could be dangerous to overemphasize the role of families
of PWD, especially if families are not working alongside of PWD. The
participation of PWD needs to be the rule in the implementation of
obligations.
PWD Australia and National Association of Community Legal Centers supported
Article 4 in principle, but asserted that an explicit statement of
international obligations is crucial. Two-thirds of the 600 million PWD live
in the developing world, and practical implementation of this Article must
involve the transfer of resources, technical assistance, and policy advice to
the developing world. Without such a transfer people in developing countries
will not benefit from this Convention. They further stated that it is
important to understand that in many cases international cooperation will
cost very little and will amount to information exchange about technical
standards and the provision of policy advice based on domestic experience.
There is already considerable resource transfer occurring between developed
and developing States, through intergovernmental aid programs, and it is
critical that these aid programs respect the rights of PWD. They affirmed the
importance of cooperation on trade and commerce standards with regards to
accessibility, telecommunications, copyrights, and so on, and they
recommended an explicit statement on these international obligations in
Article 4.
Asia Pacific Forum on National Human Rights Institutions (APF), speaking also
on behalf of National Human Rights Institutions, raised a concern about the
draft's absence of an explicit provision on remedies. In a Convention
designed to ensure the effective and practical realization of the human
rights of PWD, judicial and other appropriate remedies should be included as
explicit provisions of the Convention. With regard to the progressive
realization of economic, social, and cultural rights (ESCR), he pointed out
that developments in ESCR over the last 20 years have meant that many of its
aspects, like nondiscrimination, can in fact be effectively and immediately
realized. This was reflected in the Bangkok and Chair’s Drafts.
Thailand supported the APF’s position that remedies should be a core part of
the Convention. The rights of PWD continue to be violated repeatedly and by
ignoring remedies it ignores the reality that “we cannot only look into the
future, we have to come back and look at the past and present.” Thailand also
expressed concern over an overemphasis on progressive realization, even
though it has been proven repeatedly that some ESCR can be immediately
implemented. This was well reflected in the Bangkok draft and should be
reconsidered.
India echoed the position of Thailand and urged inclusion of a new paragraph
from the Bangkok draft, obligating states to give immediate effect to those
aspects of those ESCR rights that are capable of immediate implementation.
Costa Rica supported the proposal that the Bangkok text should be mentioned.
Jordan affirmed the importance of 4.2 on participation of PWD. It also agreed
with India that the involvement and efforts of families on behalf of PWD
should not be underestimated, and text to that effect should be included in
Article 4, but should not be repeated in other Articles.
Uganda supported the retention of the Article on obligations to ensure that
states understand their obligations under the Convention. Paragraph 4.1(c)
should include the word “culture,” alongside economic and social, as this is
the setting where people face discrimination and stigmatization. Uganda
suggested that 4.1(f) substitute “to ensure” for “to promote,” as “ensure” is
a stronger word that imposes commitments on states. Uganda offered a
definition of “universally designed goods” - products, information, services
and environments which are designed in such a manner that they are usable by
all people including PWD with minimal adaptation and cost. Uganda recommended
that 4.2 be broadened to include families of PWD, professionals and experts.
Costa Rica reaffirmed the importance of maintaining in the text of 4.1 the
concept of non-discrimination on the grounds of disability.
ARTICLE 5: PROMOTION OF POSITIVE ATTITUDES TOWARDS PWD
Trinidad and Tobago supported the inclusion of families in Article 4 and also
wanted the committee to consider expanding the definition to
include “caregivers,” particularly for “persons suffering from severe
disabilities.”
Uganda supported the inclusion of this Article because a negative attitude by
society is a major source of discrimination and marginalization of PWD. It
proposed an amendment to 5.1(a), adding “their needs, potential and
contribution to society” after “PWD.” Uganda also suggested the addition in
5.2(d): “and families” after "representative organizations. "
Yemen, representing the Arab Group, expressed misgivings that the committee
could leave out some important aspects of the text of Article 5, and proposed
an amendment to 5.1(c), replacing the words “commit ourselves” with the
word “promote,” which the Arab Group considers to be a stronger word.
Japan accepted the Article as it is in its entirety, but welcomed positive
improvements to the draft.
Kenya expressed concern at the negative attitudes toward PWD, especially in
Africa, and suggested new language for Article 5.1(b): “States Parties
undertake to adopt immediate and effective measures to combat practices,
whether cultural, religious or other, which discriminate PWD.”
Ireland/EU proposed that Article 5 be amalgamated with Article 4. The chapeau
of Article 5 would not be needed, as it would be covered in the previous
chapeau in the combined Article. It proposed appending to 5.1(a), “and foster
respect for the rights of PWD,” as it believes that it is important that
raising awareness be done from the positive perspective. The EU also proposed
moving 5.2(c), without changes, up under this heading because 2(a) and 2(b)
already are covered by 1(a) and 1(b) if the EU proposal is accepted. The EU
suggested that 2(d) is already covered by the current Paragraph 2 which deals
with the participation and involvement of PWD in implementation, and to
streamline the Convention 2(d) could be deleted. The EU also sought
clarification from the Chair on the methodology of the compilation of the
proposals that have been made in this first reading of the Articles.
Jordan emphasized the importance of the paragraph on attitudes, as attitudes
influence behaviors. Jordan suggested reordering subparagraphs in the
interest of logical progression of behaviors, listing knowledge first in 5.1
(a) because proper knowledge is a building block for proper attitudes. Next
should come raising awareness, and then combatting stereotypes. 5.1(b) should
be 5.1(c), and so on.
Canada supported Article 5 and offered changes of an editorial nature. In the
title, Canada suggested changing the word “to” to “towards” and in 5.1(b)
agreed with the EU on the additional text. In 5.1(c) Canada would delete the
words “promote an image of” and substitute “portray.” In 5.2(a), “initiating
and maintaining” should be replaced with “promoting," and the
words “awareness” and "receptiveness" should be removed. After the
word “nurture,” the words “awareness of and respect for” should be added.
Finally, in 5.2(c) Canada recommended replacing “project an image of”
with “portray,” adding “in a manner” after “disability,” and removing “with
the purpose.”
Argentina affirmed that it was important to foster positive attitudes and
that the scope and visibility of the text should be appropriate for this.
Starting with the chapeau, Argentina expressed concern that “immediate
measures” might imply that some measures are more important than others, so
it suggested that “immediate” be included in brackets.
Australia suggested that “immediate and effective” is too detailed and would
be difficult to evaluate without significant benchmarking, and suggested
adding “by appropriate and active means.”
Philippines suggested appending to 5.1(a) “foster respect for the rights and
dignity for PWD,” and adding to 5.1(c) “rights, freedoms, and
responsibilities.” Philippines also suggested substituting “receptiveness”
with “respect and protection.”
South Africa expressed concern that the title of Article 5 does not allow for
promotion of rights which is the cornerstone of Convention, and proposed
adding “creating and raising awareness” to the provisions. SA also proposed
that 5.2(b) be moved to the section on education. SA suggested a minor
amendment to 5.1(a), to insert after “disability” the words “raise awareness
throughout society regarding disability as part of humanity as a human rights
issue.” SA also suggested that in 5.1(c) the word ”image” is a labeling one
and suggested instead to use language that talks about the promotion and
understanding of PWD as people first and as contributing members of society.
SA further suggested that in 5.2(a) “nurture receptiveness” should be
replaced with “promote the rights of PWD,” as it would be more useful to have
positive language in this provision. It also suggested rephrasing 5.2(b) to
read, “develop and maintain programs on awareness” that would allow a focus
on children who can be very cruel, especially in interactions with children
with disabilities.
Costa Rica stated the importance of making society aware of the human rights
of the disabled and suggested adding “and the human rights" to 5.1(a). They
also suggested adding “policies designed to nurture” to 5.2(a) and suggested
adding “in the population” after “promoting awareness” in 5.2(b).
Mexico stressed the importance of this Article, and stated that it should be
separate from other articles. Mexico supported the title amendment by South
Africa, as it would contribute to a culture of respect and inclusion. It also
agreed with the EU proposal, but would like to add to the EU amendment for 5.1
(a) “foster a culture of respect” to align it with the title and essence.
Mexico advocated keeping the chapeau, which follows the example of other
human rights instruments.
Trinidad and Tobago supported Kenya’s amendment to include a new subparagraph
on different kinds of cultural practices. An alternative amendment to 5.1(b)
could read, “combat negative stereotypes, negative cultural practices, and
prejudices about PWD.” Some families hide their children with disabilities
out of shame. In discussing 5.2(c), Trinidad and Tobago suggested an
amendment that would encourage the mass media to use proper terminology when
describing PWD, so that they would no longer refer to PWD as
being “crippled,” “deaf and dumb,” or “blind.” It suggested appending to 5.2
(c), “through, inter alia, the use of proper terminology.”
Swaziland supported Costa Rica’s proposals, but suggested
deleting “disability” in 5.1(a) as it is repetitive.
New Zealand agreed with Canada that in 5.1(c) and 5.2(c) “image” should be
replaced with “portray.” Also, 5.2(d) should be moved to Article 4.
Norway voiced support for the EU's proposed amendment to 5.1(a), and
supported the deletion of 5.2(d) since it is covered elsewhere.
Morocco defended the language in 5.1(a), “disability and PWD,” and asserted
that this was not redundant and suggested maintaining it in the text.
At this time the Chair gave the floor to NGOs
Save the Children Alliance supported the adjustments by Canada, South Africa,
and Uganda and stressed the importance of this Article for children and young
people. They emphasized the intrinsic value and contribution of all children
and adults with disabilities, irrespective of their ability to socialize and
their level of self-reliance. They stressed the importance of ensuring the
inclusion of severe and multiply disabled persons. They proposed changes to
5.1(c), substituting “children and adults” for “persons,” and “valuable”
for “capable,” and “in their own respect” inserted after “society.” They also
suggested a new subparagraph, 5.1(d), “combat patronizing, bullying and
neglect on the basis of perceived incapacity of disabled children and adults
in public services and society overall." Save the Children wished to ensure
that governments work with children with disabilities, as well as adults, and
suggested adding “including children” to the text of 5.2(d), to be inserted
after “PWD.”
European Disability Forum suggested that the title of Article 5 be changed to
make reference to “awareness raising.” It also proposed a paragraph on
families, while recognizing that families can play both positive and negative
roles in the lives of PWD.
World Blind Union suggested that below 5.1(b) there should be an additional
paragraph concerning cultural diversity within the disabled community, using
language such as “promote cultural diversity of PWD.”
Thailand stated that it would have liked to bring attention in this
instrument to people with “severe and multiple disabilities,” but having
heard from colleagues that specific disabilities should not be singled out,
Thailand now supports the inclusion of the phrase “irrespective of types,
severities, and complexities of disabilities” in 5.1(c).
ARTICLE 6: STATISTICS AND DATA COLLECTION
Kenya supported the inclusion in Article 6 of data collection, and emphasized
its role in helping governments make decisions about the allocation of
resources.
Uganda supported the inclusion of Article 6, which is appropriate and useful
in providing for the rights of PWD. They proposed changing the title
to “Collection and protection of statistics and data” to allay fears about
the misuse of data.
Colombia stressed the importance of this Article to the international
community. It also echoed concerns about the privacy of data and would like
the title changed to a reformulation of “Collection and Protection.”
South Africa supported this Article, especially the provision on respect for
the right to privacy.
Japan in general supported the Article, but expressed concerns about
dictating the statistical categories into much detail, as in 6(d) and 6(e),
because each government has different concerns about information. Decisions
about data should be left to individual countries.
Lebanon added that statistics should include at least age and sex, and
suggested deleting type of disability and adding “and other relevant areas”
at the end of 6(e) so as not to limit data collection to sectors that have
been mentioned. After 6(d), in accordance with the move from a medical to a
social model, Lebanon suggested “States should move away from statistical
investigations that merely enumerate impairments that may become a
statistical means of patronizing PWD.” Lebanon also proposed adding a
paragraph reading, “States Parties should include disability figures among
the indicators to assess the development of the country reflecting the close
link between poverty and disability when relevant,” but it acknowledged that
the paragraph might be included elsewhere in the Convention as well.
Eritrea considered this an important tool in implementing Article 4, which
calls on States to adopt legislative and administrative measures. On the
issue of privacy, Eritrea suggested that 6(a) could conclude with “should be
treated with sensitivity,” while deleting “on a voluntary basis.”
Yemen clarified that when it speaks on behalf of the Arab Group, it does not
block the members’ right to speak for themselves. Yemen stated that the Arab
Group cannot adopt measures without the availability of statistics, but that
it is important to respect the secrecy and discretion of collection,
referring to the protection of data in the title, while respecting the
privacy issues that may vary among communities. Yemen stated that the details
of disabilities should not be specified unless it is essential to have those
details.
Ireland/EU questioned the need for this article, suggesting instead that the
focus should be on the rights of persons with disabilities rather than on the
policy making functions of States; however, the EU is now prepared to make a
proposal about the gathering of information. States should not simply collect
information for its own sake, and suggested that the paragraph start
with “where necessary.” The EU asserted that this Article should enable
States to form policies and that it is insufficient to have a vague reference
to privacy; rather, clear and legally established safeguards are needed to
respect the privacy of persons with disabilities. The EU also affirmed that
any process adopted by States should comply with international norms to
protect human rights and fundamental freedoms and that such processes should
be undertaken in collaboration with and following consultations with
organizations of persons with disabilities. The EU opposed 6(d) and 6(e) for
the reasons put forth by Japan.
Costa Rica agreed that this Article is important and should be retained. It
proposed adding “and dissemination” after “codification” in the chapeau and
changing all instances of the verb “should” to the variant “shall,” as it is
imperative to observe the privacy and dignity of persons with disabilities.
Because it is necessary to collect data on place of domicile to judge the
appropriateness of measures by governments, the phrase “and if it is located
in rural or urban areas” should be appended to 6(d).
Mexico considered it important to include this Article so that all States can
provide for all the rights of persons with disabilities. Data collection
should be voluntary and confidential, and should include socioeconomic and
biomedical information. States should be responsible for data and statistical
collection. Mexico also stressed the need to establish mechanisms and norms
to safeguard information.
Bahrain proposed that 6(d) include educational level and social status. It
also suggested that 6(f) be redrafted so that families would be provided
information, taking into account confidentiality in data collection.
Sierra Leone supported the inclusion of this Article with an amendment of the
title to read “Collection and protection of statistics and data.” Like all
tools, information can be misused, but items 6(b), 6(d), and 6(f) contain
certain principles to act as safeguards so that the tool could not be
misused. Sierra Leone supported prohibiting unauthorized access, and ensuring
voluntarism, confidentiality, and anonymity. It also supported Costa Rica’s
amendments as a whole, but would not insist that 6(d) reference age, sex, or
type of disability, because adding new data requirements might open
a “Pandora’s Box.”
Algeria expressed its support for keeping the Article's present wording,
except the listing of examples of other aspects of the lives of PWD. They
commented that this looks like an exhaustive list, and that others could be
added, e.g., health care, social security, rehabilitation programs, housing,
employment, medical, training, etc. Algeria stated that it is preparing a
proposal, which it will distribute.
India supported the EU proposal in its entirety.
Philippines proposed exchanging the words “should encourage” with “shall
include in their data gathering program the collection of…” in the chapeau.
It recommended an additional paragraph: “States Parties should provide a
conducive environment that would encourage non-governmental organizations and
the private sector to conduct research and studies on the issues of concern
to persons with disabilities.”
Egypt, responding to Bahrain, stated that families will not receive, but
instead will provide, information.
Colombia supported amendments by Mexico and Costa Rica and suggested adding
the recent initiative taken by Philippines regarding the role of NGOs.
Thailand supported the EU proposals regarding the Article’s content but
opposed the EU suggestion to consolidate it with Article 25.
Jordan agreed with the EU that more is needed than data and statistics, and
thus proposed moving this to Article 25 on research, monitoring, and
evaluation. Jordan stated that this Article would serve all other articles.
States should include disability in their national censuses. Jordan asserted
that 6(a) and 6(f) refer to norms and ethics of research, and that they can
be combined into a general statement; and that 6(c) and 6(d) are redundant
and could be deleted.
Canada supported the substance of the EU proposal.
The Chair concluded the delegates' discussion of Article 6 and moved on to
NGOs.
International Rehabilitation Center supported moving the Article to the end
of the text where there are concrete provisions. It underlined the importance
of data gathering not only to develop policies but also to support following
up on those policies. Data collected should be made accessible. The
Convention should specifically address privacy concerns. Disabled peoples’
organizations should always be involved in the design, gathering, and follow-
up of statistical activities. While several delegations believe this data
should be broken down by sex and age categories, IRC believes that indigenous
peoples should also be included. International cooperation should be
encouraged on this issue so as to generate uniformity in states efforts.
Disabled Peoples' International stressed the importance of Article 6, as too
often countries fail to implement programs beneficial to persons with
disabilities because of a lack of supporting data. This is noted in Rule 13
of the Standard Rules, and by the Convention on the Rights of the Child, in
its reporting guidelines to States Parties. DPI stated that in particular 6
(c) needs to stress working in partnerships. DPI suggested that 6(a), 6(b)
and 6(f) be grouped together in order to avoid repetition. DPI also suggested
that this Article be moved further down in the treaty to better reflect its
character as an implementation measure.
Afternoon Session
Commenced: 3:20 PM
Adjourned: 5:59 PM
ARTICLE 6: STATISTICS AND DATA COLLECTION (CONT).
International Labor Organization welcomed the provision on statistics and
data collection. It accepted the addition of the word “information” as long
as it is clear that information will be used for planning and resource
allocation and not solely for monitoring. The introduction should call on
States Parties to ensure to the extent possible that national population
censuses, and labor force and other household surveys should gather
information on PWD. It should also include a provision for the dissemination
of statistics. Like DPI, it suggested that 6(a), 6(b), and 6(f) be combined
because they are interrelated. Confidentiality and anonymity is important not
only in data collection, but in dissemination. The second phrase of section 6
(a) should be deleted because census participation is mandatory in many
States. Section 6(d) should require internationally comparable categories.
PWD Australia/NACLC/Australian Federation of Disability Organizations
supported Article 6, but statistics and data collection are not human rights;
they are operational and should therefore appear at the end of the
Convention. Statistics are important for policy development, planning, and
evaluation. The opening paragraph needs to reference planning and evaluation,
making it clear that States are obligated to collect, analyze and codify
statistics on disability. A requirement should be added for making disability
statistics publicly available. Another new paragraph should promote the
development, through international cooperation, of consistent statistic
collection methodologies.
The UN Special Rapporteur for Disability emphasized the importance of
statistics, without which decision-makers may choose simplistic approaches to
the treatment of PWD. The term “promote” in the first paragraph is not strong
enough to create awareness. Awareness should be strengthened through suitable
policies.
World Network of Users and Survivors of Psychiatry urged specific provisions
to protect data collection in 7(a) and 7(b), rather than the EU’s language.
Clause 7(c) needs to say the preferred method of design and data collection
is in partnership with PWD because this not only creates better data, but
also this helps create disability movement.
National Human Rights Institutions supported the EU language because it has
more legal safeguards for privacy and confidentiality. It suggested an
amendment to delete “where necessary” from the chapeau, because it allows too
much discretion. It proposed an amendment to 6(c) reading: “to ensure that
the collection of information is done in partnership with PWD, their
respective organizations, and all other relevant stakeholders.” It also
supported retaining this as a separate article.
Yemen clarified that there is no consensus in the Arab Group regarding the
consolidation of Article 6 and Article 25.
ARTICLE 7: EQUALITY AND NONDISCRIMINATION
Mexico supported the EU proposal because the WG’s Article 7 deals more with
non-discrimination than equality; separating the two issues is essential as
is done in CEDAW. Non-discrimination guarantees equality. Equality before the
law is formal, requiring equal treatment. No one should be treated
differently because of disability. Non-discrimination is a duty to refrain
from something, whereas equality in dignity, rights and social opportunities
is a part of democratic society. Non-discrimination is an obligation to
provide positive measures. Mexico asked whether non-discrimination and
equality should be two separate articles, and whether non-discrimination is
incorporated in other Articles. It asked the EU whether the chapeau should
include references to gender, race, language, etc., and whether or why this
reference should be moved to the preamble which is legally weaker. Mexico
also asked the about the EU’s proposed new chapeau regarding direct and
indirect discrimination. It asked for more clarification regarding the
concept of direct and indirect discrimination. It noted that States may
establish criteria which is legitimate and justified, and therefore not
discriminatory; but raised a concern about the possibility of States abusing
that discretion. Mexico suggested that 7(4) should be in a separate article
dealing with all aspects of equality. It suggested adding provisions for
compensatory measures, similar to provisions in other human rights documents.
Ireland answered Mexico's questions. The EU proposal would delete other
discrimination categories. It suggested instead that problems of multiple
discrimination be recognized in the Preamble.
Direct and indirect discrimination need to clear. There can be no exceptions
to the prohibition against direct discrimination, but the WG's Article 3
could allow direct discrimination. There are circumstances where a neutral
provision may have a discriminatory impact, but it has a legitimate aim. It
stressed that an exception to indirect discrimination must be limited, have
an objective, legitimate purpose, and means which are appropriate and
necessary.
Reasonable accommodation (RA) must have a clear definition because there is
confusion about this term. Reasonable accommodations are “necessary and
appropriate modification and adjustments, where needed in a particular case,
to ensure to PWD the enjoyment or exercise on an equal footing of all human
rights and fundamental freedoms, unless such measures would impose a
disproportionate burden.” It is an individualized concept. For private
institutions, there may be limited exceptions to the duty to provide
reasonable accommodations, if the costs are too high. Ireland supported
special measures aimed at accelerating de facto equality as they apply in
other Conventions.
South Africa and the African Group will submit proposed language regarding
discrimination.
Japan suggested changing the WG language in 7.1 from “any discrimination”
to “all forms of discrimination.” In 7.2(b), it sees no difference between
direct and indirect discrimination, nor actual or perceived discrimination.
In 7.3, it suggested adding at the end of the sentence “and consistent with
international human rights law.” Regarding 7.5, Japan pointed out that
although other Conventions' provisions have a sunset clause, some provisions
do not -- for example, the instrument on maternity in CEDAW does not have a
sunset clause. It wants no sunset clause in this Convention.
China suggested deleting the last sentence in 7.1 because all other kinds of
discriminations are covered by other Conventions and could cause unnecessary
confusion.
Canada suggested in 7.1 adding “and under the law” after the word “before”
and adding “and equal benefit of the law,” after “equal protection.” It would
add "ethnic" to the list of prohibited discrimination, as in Article 2.1 of
CRC. Change the words “on an equal footing” in 7.2(a) to “on a basis of
equality with others.” The definition of perceived disability in 7.2(b)
should be based on society’s perception. After “systemic,” the following
words should be inserted: “and shall also include discrimination based on an
actual disability or a disability that is perceived or attributed by
society.” It supported Japan's proposal for 7.3. In 7.5, “special measures”
could be changed to “positive measures.” Regarding the EU proposal regarding
direct and indirect discrimination (7.3), it is a very difficult distinction
to make in practice. If this section stays, it should apply to both kinds of
discrimination to avoid focusing on differences between the two.
Israel suggested adding to 7.1, “such” before “discrimination” so it is clear
it relates to disability discrimination. It also supported deleting the
second sentence of 7.1 because it may infer that PWD are not entitled to
rights under human rights instruments. To 7.2(a), after “exclusion or
restriction,” add “condition, act, or policy” because it needs to include all
acts which may discriminate. In addition, past disability needs to be
included by adding “past” after “actual.”
In 7.4 change the term “to provide” to “to ensure” because in the private
sector the State has no direct control, but States may still legislate. Also
in 7.4, after “disproportionate burden,” the following words should be
added: “In determining whether the burden in question is disproportionate,
consideration should be given to all relevant factors including the
availability of state funding for the purpose of making accommodations.” It
agreed with the balanced formulation of 7.5, but suggested
adding “affirmative action” or “positive discrimination.” Add to the end of
7.5, “Nothing in this article shall prevent limiting the scope of special
measures on a rational basis in accordance with the severity of the
disability.”
Lebanon supported deleting the sunset provision from 7.5.
New Zealand suggested adding, along with distinction, exclusion, or
restriction, the discriminatory nature of additional obligations or burdens
on people with disabilities. This is included in New Zealand's national law.
Columbia stated that if special measures are mentioned, this should refer to
affirmative action.
Thailand expressed concern that 7.3 is too blurry and may tend to legitimate
discrimination so it suggested deletion. It favored the term affirmative
action rather than positive discrimination.
Australia agreed that the last sentence of 7.1 should be deleted. In 7.2(b),
it suggested adding “imputed” before “perceived” and after “disability"; and
adding “or by association with PWD.” It agreed 7.3 should be deleted. Under
7.4, replace “disproportionate burden” to “unless such measures would impose
an unjustifiable hardship.” Equality is the goal, but it is given effect by
non-discrimination.
Jordan suggested that 7.2(a) and (b), because they are definitions, should be
moved to Article 3. Because 7.4 is similar to 4.1(a), general obligations, it
should be moved there.
China supported keeping 7.3 and if necessary merging 7.3 and 7.5 into one
paragraph. The term “disproportionate burden” is not clear; it prefers
using “unreasonable difficulties.”
Argentina pointed out that Articles 7 through 18 and Article 24 of the WG
draft are re-writes of other treaties which are ratified. It proposed
adopting general principles and State obligations as was done in CEDAW.
Specifically in 7.2, this is the language in CEDAW which could be used: “For
the purpose of the present Convention the term discrimination against PWD
shall mean any distinction, exclusion, or restriction made on the basis of
disability which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by PWD on a basis of equality of human
rights and fundamental freedoms in the political economic, social, cultural
civil or any other field.”
Yemen opposed linking Article 4 (general obligations) and Article 7 (measures
to protect PWD from discrimination). No distinction should be made between
direct and indirect discrimination because there are too many interpretations
of these terms. Footnote 26 could be placed as a final paragraph in Article
7. In 7.4, add the term “commitment.” The last part of 7.5 should be deleted.
Costa Rica agreed with Canada and Argentina. It suggested adding to
Argentina’s “fields,” public, private, and family. It supported deleting 7.3.
Reasonable accommodation corresponds to individuals and the term “adequate”
should be added to “appropriate.” Disproportionate burden should not be added
because this would add an economic element which may be counter to the rights
of PWD. It supported the EU proposal which replaces 7.1 if,
after “discrimination” was added “in every field including multiple
discrimination.” If RA is linked to economic considerations, this may nullify
protections from discrimination.
NGOs were then heard regarding Article 7.
EDF / WBU / WNUSP spoke about the difference between equality and non-
discrimination. Non-discrimination is a means to equality. The AHC needs to
decide if one or two Articles are needed. A failure of RA is discrimination
as in the ECSR (comment 5). RA needs a clear definition. It cannot be imposed
on PWD, it is individualized, and must be effective in its purpose.
Disproportionate burden is a difficult concept because it could be used to
discriminate; therefore RA needs to be qualified by type of entity, size of
entity, financial capacity and the cost of the RA. This Convention needs to
limit the exceptions to RA.
The issue of exceptions to direct and indirect discrimination becomes
complicated due to the two proposals on the table. The EU's definition is
workable for some countries, but not for all. The compromise in WG was to
mention, but not define these terms. Defining direct/indirect discrimination
could cause more problems. The burden of proof must be on the public entity
to prove that it has not discriminated. A separate paragraph is needed about
who is covered by anti-discrimination; this should include people perceived
as having a disability, people associated with PWD, people with a past
history of disability, and those who are genetically predisposed to
disability. Special measures may need to be dealt with differently for people
with disabilities than for other groups. While some positive action measures,
such as quotas, may be short term, there are many measures which are not
temporary. For example assistive technology and respite care are not
temporary, and do lead to equality.
Rehabilitation International supported the WG draft's original title for
Article 7, “Equality and non-discrimination.” Non-discrimination is a tool
for equal enjoyment of rights. RI does not support the EU's alternative. The
language in 7.2(a) will bring this document in line with CEDAW. Additions
should be made to 7.2(b) to extend non-discrimination to those with a record
of disability, and to those associated with PWD. The concept of indirect
discrimination may not translate to other areas. The addition of the
term “legitimate aim” is too broad to be useful; 7.2(a) is better worded.
If “legitimate aim” is used, Japan’s qualifications should be included.
Disproportionate burden should be tied to state aid. The term "positive
action" is preferable to “special measures.” Paragraph 7.3 should be deleted.
LSN supported the title in the WG's draft. Equality and non-discrimination is
consistent with other treaties. The term “indirect discrimination” should be
defined clearly in the Convention. The EU language in the new Article 3.2(b)
should be adopted. Paragraph 7.3 should be deleted because it is not in any
other Convention and review standards can be created by the monitoring body.
If 7.3 is left in the Convention, the Convention should also incorporate the
language changes proposed by Canada, Japan, Yemen and EDF. LSN supported
Canada’s language change in 7.2(a), because it would remove the words "on an
equal footing" which amputees and other PWD find inappropriate.
NACLC/People with Disabilities Australia Incorporated/Australian Federation
of Disability Organizations stated that equality must have a central position
in this Convention. It supported the removal of equality from Article 7 only
if equality is placed as a general obligation in Article 4 or as separate
Article. The organization of the Article could be improved. It suggests
beginning the Article by prohibiting discrimination, then requiring RA in
State and non-State entities and clearly stating the failure to provide RA is
discrimination. Only narrow exceptions, such as for public order, should be
allowed, and only with the understanding that all other human rights
instruments and non-discrimination provisions apply to PWD. These exceptions
should be subject to the least restrictive alternative and active measures by
PWD are voluntary. Direct and indirect discrimination, RA, and active special
measures should be defined. Systemic discrimination is subsumed under
indirect discrimination, but indirect discrimination must be defined. The
Bangkok draft's definition would serve. Discrimination includes suspected,
imputed, assumed, possible disability, association with PWD, past disability
or effects of past disability and characteristics of a disability.
DPI noted that RA is more fully developed in footnote 27. As expressed in the
EDF’s statement, DPI is concerned that there is no clear identified position
that the denial of RA constitutes discrimination. It asks the AHC to clarify
RA because unmet accommodation needs lead to exclusion and the inability to
participate in all areas of life. The ESCR’s General Comment 5 may be
helpful.
World Federation of the Deaf supported EDF and others. Even though
discrimination on other bases such as race and gender are covered by other
Conventions, these often do not help PWD, and multiple discrimination
continues. WFD supported the existing language in 7.1 and notes that a list
of prohibited forms of discrimination, such as in the Convention on the
Rights of the Child, could be included.. For example, language discrimination
is prohibited in other Conventions; however, deaf children are punished for
using sign language. Disabled girls are discriminated doubly and some
disability groups are discriminated more than others. WFD supported Canada’s
addition of the term “ethnic.”
Inclusion International supported the EU and the concepts of RA and undue
hardship. Children need to be highlighted in this section because
discrimination against children is a concern.
National Human Rights Institutions supported the deletion of 7.3 because it
allows for too much discretion by States and it does not appear in any other
Convention. It suggested deleting “disproportionate burden” so that States
will not renege on their obligations.
ARTICLE 8: RIGHT TO LIFE
Yemen agrees completely with Article 8. It recommended a second
paragraph: "States Parties shall, in accordance to their obligations in the
context of international law and the Universal Declaration of human rights
and international treaties and conventions for the protection of civilians
from armed conflicts, take all necessary measures to guarantee the protection
and care for persons with disabilities that are affected by armed conflicts
or are refugees or are internally displaced persons."
China stated that the right to life by PWD is protected and respected which
means those who have been born and living on this earth. In order to control
its population and relieve burdens on its society, China practices family
planning. This policy protects PWD. China questioned the necessity of
including this Article in the Convention.
Ireland stated that the EU supported Article 8 after a very difficult
discussion. The EU does not support any additions.
South Africa stated that right to life was needed for the Convention to be
comprehensive. However, right to life is in other instruments. It does not
support any additions to this article.
Columbia supported keeping this article with no changes.
Argentina stated that right to life is dealt with in other instruments. If it
is necessary to include it, the CRC language may be helpful: “States Parties
recognize that any disabled person has an inherent right to life.”
Norway agrees that this is a difficult issue and supported the original
Article 8 with no changes.
Costa Rica endorsed Argentina's recently stated view, that the right to life
is inherent to everyone and if a specific mention is included in this
Convention, it may open a Pandora’s Box. Given the Committee’s general
support for this inclusion Costa Rica suggested alternative language as
follows: “States Parties reaffirm the inherent right to life of all persons
and shall take all necessary measures to ensure its effective enjoyment by
persons with disabilities.” The existing draft article may create a
distinction that is not there; everyone has same rights and obligations, not
just PWD. In addition Costa Rica calls for an additional Article
for “Populations in Special Risk” such as in situations of armed conflict,
natural disasters and extreme poverty. Draft language for this article will
be distributed later.
Uganda supported the original Article 8 and supported the added paragraph
about armed conflict. Its suggested language is as follows: “In accordance
with their obligations under international humanitarian law to protect
civilian population in armed conflicts and risk situations, States Parties
shall take all feasible measures to ensure the protection and care of all
persons with disabilities who are affected by armed conflicts."
The Holy See attaches great importance to this article and its role in this
Convention. Although the Right to Life is recognized in other instruments,
PWD are a specific group with specific issues. The voices of PWD should be
heard in this, because of their lived experiences related to the denial of
this right.
Mexico stated its preference for Article 8 in the original WG, but may
support adding a second paragraph.
Nicaragua supported Article 8 as drafted and favors second paragraph
regarding armed conflict.
Japan supported the original text. Regarding the addition addressing armed
conflict, it may support it, but inclusion may change the intent of the
Article. It may be better under another Article.
India supported the addition of a right to survival, as follows: AStates
Parties shall ensure to the maximum extent possible the survival and
development of PWD.@
Kenya supported this Article as written. It also supported an armed conflict
and natural disaster addition. This is important to developing countries
faced with civil strife.
Jordan supported the Article as it is and suggested adding at the end of the
sentence “in particular in situations of armed conflicts and natural
disasters, in accordance with international law, human rights, refugee, and
international humanitarian law.”
Lebanon believes a separate article is needed so that Article 8 will not be
diluted.
Eritrea supported the addition of a new paragraph regarding armed conflict
since PWD are under much greater risk.
NACLC/People with Disabilities Australia Incorporated/Australian Federation
of Disability Organizations supported retaining the content of the existing
draft article with an additional statement elaborating on rights related to
the specific circumstances of PWD. “These measures shall include enacting
measures to discourage the elimination of unborn children on the basis of
their actual, suspected, imputed, assumed or possible future disability by
providing pre-natal information and post-natal support to parents of children
with disability, prohibiting state and non-state actors from limiting or
abusing social assistance on equal terms with others on the basis of a
parental decision to bear a child with a disability, the provision of life
sustaining and life enhancing medical and social interventions that will
ensure survival of PWD, enacting protections against violence, abuse and
neglect of PWD, eliminating policies and practices that result in segregation
and isolation of PWD.” In addition, genetic engineering presents a
fundamental eugenic threat to many impairment groups.
Inclusion International expressed its concern over the role of genetic
engineering, noting that PWD are a part of human diversity and bring unique
contributions through their disability. “Don’t prevent us, include us.”
World Federation of the DeafBlind recommended changing the title to the Right
to Life, Survival and Development” with the following additional
language: “States parties shall take all necessary measures to ensure its
effective enjoyment by women, men, girls and boys in all stages of life.”
Supporting the Indian position there should be a second paragraph: “The right
to life includes the right to survive”. The additional third paragraph would
state: “Disability must not become a justification for determination of life.”
-------------------------------------
The Ad Hoc Committee Daily Summaries are published by the Landmine Survivors
Network, a US based international organization with amputee support networks
in 6 mine affected / developing countries. They cover the proceedings of the
UN Ad Hoc Committee elaborating a Convention on the human rights of people
with disabilities.
The Summaries will posted on line by 10 am the following day at
www.worldenable.net,
http://www.un.org/esa/socdev/enable/rights/ahc3summary.htm.
They will be translated into Spanish (Disabled Peoples’ International at
http://www.dpi.org/sp/resources/topics/convencion/boletines04.htm),
French (Handicap International), and Japanese (DINF - [log in to unmask]).
For questions, write to [log in to unmask] Reporters for the
Third Session are Margaret Holt, Robin Stephens, Julia White; Editors are
Zahabia Adamaly and Laura Hershey, Anny Gaul is the Production Assistant.
The Landmine Survivors Network extends its gratitude to the Missions of New
Zealand, Mexico and Thailand for supporting the production of the Daily
Summaries at the 3rd AHC. We continue to seek additional financial or in-kind
contributions; for more information please contact
[log in to unmask]
--
Connexus Internet Service
http://www.connexus.net.au
Toll-Free: 1300 133 888
________________End of message______________________
Archives and tools for the Disability-Research Discussion List
are now located at:
www.jiscmail.ac.uk/lists/disability-research.html
You can JOIN or LEAVE the list from this web page.
|
