UN Convention on the Rights of People with Disabilities
Working Group Daily Summary
A service made possible by Landmine Survivors Network
Volume 3, #1
January 5, 2004
Morning Session
Commenced: 10:35am
Recessed: 1pm
PROCEDURAL MATTERS
Don Mackay, the representative from New Zealand, was proposed by the
Chair of the Ad Hoc Committee (AHC), Ambassador Gallegos, to serve as
Coordinator of the Working Group. Before ceding the floor to Mr. Mackay,
the Chair called for the discourse to be conducted with an awareness of
its "moral and ethical obligations" and the responsibility for NGOs to
guide this process.
The Coordinator reiterated the points raised in his presentation to
delegations on December 23, 2003. This included the proposal to defer
three sections of the Programme of Work, which he added would need to be
approached with great flexibility. The Preamble was better left to the
end as it would need to reflect the substance that was to follow. For
the same reason discussing the definitions at this point were likely to
be time consuming. The final clauses could be dealt with at a later date
as this was a technical legal area that would not require the valuable
time of experts on disabilities. He stressed that the mandate of the
Working Group (WG) was not to negotiate a final text, but to present
several options narrowed down from the wealth of material before them,
that would then be the basis for negotiation by the AHC. He added that
there were no quorum requirements for the Working Group. The mission of
New Zealand would undertake to compile the proposals of the day and have
them ready for dissemination the next day. The Agenda was adopted after
an amendment to replace "recommendations" with "conclusions" in Item 5,
as the latter sounded less formal and a more accurate reflection of what
would be the outcome of the WG.
Ireland suggested a focus on "core matters" that elicit general
agreement to be followed by the issues that have less consensus. It
cautioned against getting into a detailed discussion about specific
rights given that these are already set out in the Covenants and UDHR
and there is a need to avoid redrafting or creating new rights that do
not exist elsewhere.
Regarding the Coordinator's decision to defer discussion of the Final
Clauses, Thailand expressed its concern that its proposal to translate
the text into accessible formats would be included in this section and
was important to people with disabilities. The Coordinator ensured that
this issue would be addressed in this meeting.
The World Network Users and Survivors of Psychiatry (WNUSP) noted that
NGOs come with experience in specific disability issues that may or may
not represent the concerns of all PWD, and for this reason all of their
expertise needs to be heard. The World Blind Union (WBU) highlighted the
difficulties people with sensory disabilities face with following the
proceedings given the continuing shifts from comments to draft language
in the documentation.
OBJECTIVES AND GENERAL PRINCIPLES
The Coordinator introduced the Compilation, underlining that all texts,
including those not included in it, have equal status.
Ireland referred to page 24 and 26 for its suggested text on general
principles. PWD have the same rights as any other person and the
exercise of these rights by them should be the purpose of the
convention. It expressed its concern that other proposals in this
section refer to the enjoyment of rights "set out in this Convention" or
to the "rights of PWD". However in both cases this might imply that PWD
have fewer rights. Ireland was pleased to see that there is
"considerable agreement" on principles such as non-discrimination,
equality of opportunity, autonomy, participation and inclusion, and
hoped that these will be reflected in the text to be presented in the
next day's meetings.
WNUSP noted that the principles set out in the Bangkok and Chair's draft
went beyond naming a list of them to defining them. The representative
called for diversity and the right to be different to be reflected here
as well, as this is "core" to the rights of PWD, represents their lived
experience, and they would like to see this vision reflected in the
final text.
Japan affirmed the principles of non-discrimination, autonomy, equality
of opportunity and participation as providing a good basis for
discussion. "The ultimate purpose of this Convention is the concept of
normalization... we need to create an environment where PWD can live a
normal life." With this in mind the Convention should promote a
"self-sustained lifestyle" and full participation in economic, social
and cultural life. In addition, special measures for affirmative action
should not be regarded as discrimination.
Serbia Montenegro emphasized that PWD should and do enjoy all human
rights, and also have all responsibilities as other citizens. Morocco
stated its support for 2 objectives of the Convention - the equal
enjoyment of rights and the elimination of all forms of discrimination
against PWD. In addition the proposed text should include "the very
important point" of promoting existing and new forms of international
cooperation, to support national efforts, to the benefit of PWD.
Landmine Survivors Network proposed that the title of the Convention be
simplified to "the Convention on the Rights of PWD". The Bangkok
document provides a solid basis for work that can be further developed.
Principles should be binding and linked to obligations making it
possible to develop the Convention in the future. The principle of
international cooperation as articulated in the New Zealand and Mexico
documents as well as in environmental treaties should be included.
Columbia proposed that principles of equality and equal opportunity
through sustainable development programs and inclusivity be included in
the Convention. It stressed the necessity of preventive measures to
reduce and eliminate conditions that cause disabilities.
Thailand reaffirmed its support for the Bangkok (BKK) and Chair's draft
with the addition of one more objective and principle - that of
"survival" and "living in dignity". Thailand believes that
self-determination and autonomy can only be realized with people who
have already had self-determination. PWD "who cannot express their own
self-determination" are still entitled to live in dignity. This should
be an "add on principle" to the BKK draft.
China noted that all proposals on the table should be taken into account
including those by Mexico, Venezuela, EU as well as China. We cannot
make the final judgment so the focus at this stage should be an in-depth
discussion of the "main elements" in this section of the treaty and the
role that it would play in relation to the rest of the treaty.
Mexico asserted that the principles of discrimination, autonomy,
participation and others mentioned during the discussion must be spelled
out as objectives of the convention rather than as general principles,
as the goal of this convention is to bring about participation of PWD
and the elimination of discrimination. The Mexican, Venezuelan and China
proposals reflect this point, whereas others tend towards a briefer
statement of objectives and longer general principles.
Rehabilitation International affirmed that although PWD are at least
notionally protected under international law, PWD do not essentially
effectively enjoy these rights. RI put forward that the core purpose of
the convention is to secure full and equal "effective" enjoyment of the
full range of human rights on the basis of certain principles. The
representative of RI noted that most of these principles are contained
in the drafts on the table and that there is ample space for common
ground between them on the basis of dignity, autonomy and
self-determination, which for RI includes the right to independent
living, as well as on the basis of basis of participation, inclusion,
equality and non-discrimination. RI further observed that there is
"ample common ground to express this."
Sweden underlined its view, which is well-reflected in the EU draft,
that PWD should be able to fully enjoy all human rights. Sweden
specified that this does not to imply that PWD have fewer rights or that
PWD have any more rights than other persons. The EU proposal, Sweden
noted, does not contain a long enumeration of human rights, but rather
concentrates on providing guidance to states regarding the measures to
be taken to ensure that PWD do enjoy their human rights. Sweden conceded
that this is due, in part, to its view that interpreting existing rights
is dangerous as the result may be substandard rights for PWD. Sweden
observed that several delegations had expressed support for adding the
idea of discrimination to that of the full enjoyment all human rights.
However, Sweden's view is that "discrimination" is already included in
the idea of full enjoyment of human rights. Sweden asserted that the
discrimination issue at hand, along the lines of conventions such as
CEDAW and CERD, is that there should be no discrimination in terms of
enjoyment of human rights. Sweden noted the close linkage between the
idea of discrimination and the full enjoyment of human rights. In
addition, Sweden pointed to direct references by Working Group members
to the right to be different as well as references to the Bangkok draft,
and asserted that such a human right does not exist. Sweden pointed to
the EU draft proposal's treatment of the issue of diversity among PWD
and noted that this diversity should be taken into account when applying
different measures. Regarding the issue of preventive measures, Sweden
underlined that its delegation, as well as the EU as a whole, believes
that this Convention should not deal with all issues related PWD as
there are numerous other human rights foras where these issues are dealt
with. In Sweden's view the convention should address the relationship
between PWD and their respective governments and should therefore deal
with rights of people who are already disabled and not with potential
PWD.
Regarding objectives and general principles section of the convention,
Canada advocated for a succinct and clear message, utilizing concepts
for which there is general agreement. Canada underlined that the EU
proposal illustrates this objective. Canada explored the possibility of
referencing existing human rights instruments as a way to accommodate
and reinforce the important principle that PWD are entitled to those
rights, without enumerating in a list what rights those are for fear of
excluding some right. In addition Canada cautioned against states using
concepts that they were not necessarily familiar with and noted that
"self-determination has a special meaning in international law and
therefore it is sufficient to refer to "autonomy." Regarding the right
to be different, Canada noted that the principle of diversity is a
concept that is perhaps more wieldy in the discussion.
The Republic of Korea asserted that PWD are fully entitled to all
rights, as with non-disabled persons, and should enjoy all the rights
guaranteed in the international conventions on equal and
non-discriminatory terms. Korea offered that ultimate realization of
those rights is for the disabled community to "be able fully realize
their potential" and based upon this realization of potential be able to
fully participate in all aspects of society. Korea determined, after
having studied the existing proposals, that there was ample basis of
commonality in order to work towards a convention that will serve those
purposes. Korea noted that there are common elements running through all
the texts and expressed the need for the Working Group to weed through
the proposals on the table and find the commonalities. Korea underscored
RI's point that there was already ample basis for the group to work
towards those commonalities.
India expressed its agreement with the objects of the Chair's draft
proposal, but also drew attention to its own proposal. "Recognizing the
difference in the level of development and resources available it
appears that international cooperation and sharing of resources will be
vital for the success of the convention." India proposed that this idea
be included in the objects of the convention, particularly the need to
respect "intra-country" and "inter-country" resource variations. India
noted that this would allow for progressive realization of rights with
reasonable accommodation for PWD.
The World Blind Union reiterated the difficult nature of the working
method of the group for people with sensory disabilities. She suggested
the group first address topics around which there was much agreement,
which might facilitate later discussions on more difficult topics. She
raised the issue of whether the principle of prevention should be in the
convention. The WBU noted that there are rights in many other
conventions that should cover PWD, although there are rights that may
have another interpretation or slightly different meaning for PWD. The
representative of WBU underlined the link between the threat to the
lives of PWD in many countries and the right to life. WBU called for
this right to be included in the document. Pointing to the right to
rehabilitation, which appears in the CRC, this right could be applied to
all PWD. There was agreement with Sweden that the Working Group needs to
focus on government actions in relation to PWD and noted that this focus
might be able to ring in the discussion.
The Coordinator noted that there was much overlap between these issues
and emphasized that the issues not in the general principles may be
taken up in the preamble.
Japan asserted that it would like to include the principle of "full
participation" of PWD in the text as this should be the basis of their
activity. Japan noted that this language is included in the Indian and
EU texts. Japan offered the notion that the convention should achieve a
"barrier-free society" and noted that this phrase appears in the Indian
text. Japan then cited the issue of the role of the convention in
relation to existing human rights instruments stating that the human
rights mentioned there should also be enjoyed by PWD, and that this
position should be articulated in the preamble. Japan further asserted
that, in order to avoid duplication with existing human rights
instruments, those rights directly related to PWD should be in the
substantive portion of the Convention.
The World Federation of the Deaf asserted that one reason for a
convention is to ensure that the human rights of PWD be carried out in
practice. At the moment governments do not ensure that the human rights
of PWD are carried out on equal basis. PWD have varied experiences in
their disabilities and in their needs, and therefore there are many
possible solutions. WFP asserted that this convention must be such that
governments will modify the environment in order that PWD will be able
to enjoy their human rights and be full citizens. WFD observed that this
convention will probably have a section on specific rights containing
guidance to governments on how to carry out the human rights of
different disability groups-people of differing ages and also taking
into account the gender aspect. WFD then questioned the affirmation that
the right to difference is not a right and expressed its hope that this
convention somehow recognize differences in PWD. WFD supported the
comments on prevention made by the WBU, and noted that in it's view the
disability issue and prevention are linked.
The World Network of Users and Survivors of Psychiatry stated that every
human being is entitled to self-determination and emphasized that choice
is a fundamental human activity. The WNUSP asserted that autonomy and
self-determination, in the sense of the right to make our own decisions,
has to be both a principle and a right recognized in this convention.
Regarding the way in which the rights in the convention relate to
existing human rights law, the WNUSP reiterated that PWD benefit in
theory from all human rights and that the problem originates from the
exclusion of PWD from these rights through legal, societal and
attitudinal barriers as well as physical and informational barriers. The
WNUSP lent its support to the phrase "barrier free society" adding that
that attitudes and laws can constitute barriers. The WNUSP affirmed that
the convention should not be below existing norms and asserted the need
to recognize that human rights disability law is in a state of flux and
that certain emerging laws need to be supported in this convention.
WNUSP specified that the convention should be "informed by our
leadership and our direction." The WNUSP went on to stress the need to
look at possible reinterpretation and application of human rights law,
especially where the law has not incorporated a real non-discriminatory
and inclusive PWD perspective. Regarding the principles portion of the
convention, WNUSP asserted that self-determination, in whatever form,
needs to be included. The representative emphasized that the principle
of diversity and the right to be different also needs to be included,
and asserted that PWD need to be able to say that " we have the right to
be who we are and not be excluded." WNUSP offered its support for the
principle of international cooperation as way guarantee that PWD in all
parts of world fully enjoy all human rights.
Ireland looked forward to India's draft as it needed to be taken into
account. Regarding comments by India and others on the need to take into
account international cooperation, Ireland noted that the EU text did
not include this term. The representative underlined that this was an
express decision. Ireland stressed the importance of keeping in mind the
goal of the treaty, which is the full and equal enjoyment by PWD of all
their human rights. Ireland would therefore be concerned about adding an
"additionality" or "conditionality," for example Ireland did not believe
that non-discrimination or autonomy should be contingent on the receipt
or otherwise of national cooperation. In Ireland's view, international
cooperation is dealt with in ICESCR as one of the means of achieving
these rights. Ireland asserted the convention should deal with people
with existing disabilities and not delve into the issue of prevention.
Ireland agreed with Canada that self-determination has a special meaning
and it would be confusing to use the word in another context.
Sierra Leone asserted that the section on principles should be separated
from the objectives. Sierra Leone suggested that the general principles
be succinct and refer not just to all rights but to "specific rights."
Sierra Leone recommended that among the objectives should be some
reference to international cooperation and development as one cannot
enjoy rights if there are no means to make this possible. In addition,
Sierra Leone specified that if international cooperation is not in the
general principles it should be in the objectives, which is why Sierra
Leone suggested that the principles and the objectives be two separate
sections.
Germany observed a general consensus in the Working Group on various
principles. These included the right of PWD to the full enjoyment of
human rights on equal footing, the principle of autonomy and
non-discrimination, participation and inclusion, and the principle of
equality. Germany asserted that the Working Group needs to go beyond
what the UN has done on human rights for PWD, such as the World
Programme of Action and the Standard Rules. Germany specified that the
issue of prevention would be included in a convention on disability and
that this convention is not on disability but on PWD. Germany
underscored the difficult issue of the right to be different and
conceded that it was not a human right when looking at the core human
rights treaties but indicated that it is mentioned in the UNESCO
declaration on racism. Germany affirmed that since this text sees
disability as not only a medical issue but also a social construct, like
race or gender, the Working Group might consider including this right.
Germany proposed, noting that as the mandate of the Working Group is not
to negotiate but to "collect good ideas", that the right to be different
appear in draft text for the AHC to decide whether or not it should be
in the objectives.
Rehabilitation International concurred with Germany on why the concept
of prevention should not be included, yet underscored that this does not
mean that rehabilitation should not be included as a tool for freedom
and independent living. RI expressed concern over the mention of
progressive achievement within the principles section, as if included in
this section the concept might be seen to apply to civil and political
rights, thereby weakening existing norms. RI believes that "progressive
achievement" should be included in the section on programmatic rights of
a social and economic character, but not in the general section on
principles.
Venezuela urged that the group clarify elements of the first article on
the nature of the convention. Venezuela noted its proposal is very
similar to the Chinese draft except that it does not use the five
domains that the Venezuelan proposal does. Venezuela asked the Chinese
delegation whether it would be possible to include in its proposal the
different spheres that Venezuela listed when referring to social life,
non-discrimination and full participation.
DPI affirmed that the time has come for a thematic convention to protect
the rights of PWD. DPI stressed the need for a disability-specific
convention, as the monitoring process of the seven human rights
conventions have greatly marginalized PWD. In addition, DPI noted that
many UN human rights instruments, such as the Millennium Goals, don't
specifically mention disability. DPI recalled that at its 6th World
Assembly in Japan in 2002 those assembled declared the need for a
convention with the full range of civil, political, economic, cultural
and social rights. DPI also stressed the need for a strong monitoring
mechanism. DPI raised the difficulty of deciding not only what rights
apply but how they should apply. DPI asserted that a disabilities
convention must use plain structure and language to assure understanding
especially by PWD. DPI asserted that the convention must be clear in
"equality, dignity and access."
Inclusion International (II) spoke for people often labeled with
intellectual disabilities. Inclusion International affirmed that nobody,
irrespective of his/her disability should be excluded from human rights.
II asserted that citizenship should be for everybody and this should
mentioned in the preamble. II also noted that persons with intellectual
disabilities often belong to the poorest of poor, therefore II concluded
that international cooperation should be cited and that the "poverty
problem" should not be excluded. In addition II noted that in some
countries prevention has bioethical dimensions, which should be
discussed
Disability Australia Limited made the observation that more than 50% of
NGOs and member states interventions favored a treaty of a holistic
nature-meaning a treaty that elaborates the full range of rights
including economic social and cultural rights. One of the clear purposes
of the discussion, DAL noted, has already been elaborated on by the
member states and other stakeholders. DAL affirmed that the convention
should provide authoritative interpretation of the rights of PWD.
Regarding the danger of elaborating certain rights and leaving out
others, DAL noted that the risk of undermining certain rights is worth
taking because people will not achieve their rights if they are not
elaborated. DAL further asserted that the objective should be more
elaborate than a mere statement that PWD should have equal and effective
enjoyment of rights and fundamental freedoms.
Slovenia reiterated its support for a human rights oriented text and
noted that during the discussion many areas of common agreements had
already been identified. Slovenia asserted that some concepts, such as
international cooperation, are elaborated in existing international
instruments. Slovenia proposed a short and concise statement for this
principles/objectives part of the convention with a safeguard clause,
such as that for Art 3 of the Chair's draft on p. 27 of the compilation,
to ensure that interpretation of rights of PWD should not be less
generous.
Russia stated its position that this convention must focus on the
rights of PWD and focus on the particularities of those rights. Russia
asserted that it must not duplicate existing instruments. Russia urged
group members not to forget that PWD are expecting a realistic document
and that the effectiveness of the convention will depend on how specific
it is. Russia offered as elements for the major principles and
objectives -defining at national level liability with respect to action
or inaction -establishing realistic conditions for rehabilitation of PW
D -Support for socio-economic activities of PWD to encourage them to
work -deepening society's understanding of PWD.
Inter-American Institute on Disability noted progression in the
discussion in the agreement on distinguishing the principles and
objectives. The Institute observed that there is agreement on the
importance of emphasizing full and total participation which must be in
the principles. The relationship between poverty and disability was
highlighted as one causes the other and that PWD in poor countries
continue to be excluded from development in the context of public policy
and government programs. Historically, international bodies have not
taken this exclusion into account. The Institute stated the importance
of including this international cooperation in the objectives portion.
World Federation of the Deaf stressed that the name of the convention
must reflect its content and stated that the suggestion of "Convention
on rights of PWD" was an acceptable title. WFD stated its hope that the
process of the Working Group not be too long. Noting the agreement of
the Working Group not to make "recommendations," the WFD indicated that
this might mean that the convention process will be prolonged. Referring
to comments made by II, WFD pointed out that while in some countries
legislation is behind the technical advances, some of these advances
infringe on the rights of PWD.
Thailand raised the issue of the to right to be different. Thailand
asserted that the right to be different is specific to disability issues
and further noted that diversity as such is nothing if not strengthened
by the right to be different.
Lebanon stated that the Working Group risked spending much time on
discussion of the principles without reaching a final agreement and
suggested coming back to this discussion after addressing specific
rights.
China noted that in its draft proposal, it prescribes eliminating all
forms of discrimination of PWD. As this language is similar to that of
CEDAW, China affirmed that the group does not need make a list thereby
running the risk of leaving something out. Regarding the question of
international cooperation, raised by India and other delegations, China
noted that PWD have specific circumstances--social and other. China
reiterated the relationship poverty and disability and concluded that
strengthening international cooperation would have positive significance
for the goals of convention.
Landmine Survivors Network expressed agreement with China that the
Working Group was not in a negotiating posture. LSN noted that
international cooperation is not a new principle and should be included
as a principle in this convention. LSN suggested putting the concept in
the objectives portion and the obligation for international cooperation
be in a general framework related to specific obligations.
Afternoon Session
Commenced: 3:08 PM
Adjourned: 6:08 PM
OBJECTIVES AND GENERAL PRINCIPLES (cont)
South Africa asked for closer scrutiny of comments made at the African
regional consultations that were held in South Africa in 2003 with
regard to the aim of the WG being to ensure an inclusive document that
includes the principles of equality and non-discrimination. It
emphasized the primary importance of regional and international
cooperation.
New Zealand qualified its previous statement and said that the opening
statement should be simple and to the point so that no one can overlook
the objective of the Convention, such as is presented in Article I of
the EU Draft. The Convention should reinforce rights of PWD as ones that
all humans have. He said that prevention issues should not be mentioned
because it could send conflicting messages, that is, that disability is
something that is not wanted, and that PWD themselves are not valued.
The body of the Convention should then address how to ensure that
existing human rights have an effect on PWD.
Canada offered some alternatives to some of the considerations already
put forth on the concepts of self-determination and the right to be
different. The concept of self-determination should be addressed as PWD
having autonomy and the right to independent living, which includes the
right to make decisions. The delegate expressed concern that including
a right to be different would be creating a new right and that inclusion
of the principle about international cooperation in this part of the
draft could change objective of convention and narrow the possibility of
states being party to this Convention and suggested it be addressed in
the Preamble. He concurred with other delegations who said that
prevention should not be an element in this part of the draft as its
focus is those who have a disability. He asked for attention to Article
III New Zealand text of the Universal Declaration, which would be
appropriate for the Preamble.
The Coordinator cautioned against becoming embroiled in discussions on
right to life and proposed the WG find way around it instead of
resolving it.
The World Blind Union addressed the need for issues of discrimination
and right to life to be discussed in depth because they are issues of
concern to PWD. She referenced CEDAW's approach to discrimination and
indicated that this could be an option. Existing rights could be
reworded but that it might not be possible in all cases. She indicated
that this section should address discrimination using positive and
progressive language. There is also a need, she said, to find
appropriate wording to address full participation, dignity, and
diversity. She also highlighted that in some parts of the world, PWD do
not have the right to full citizenship; this right should go to all and
not some. She concurred with Landmine Survivors Network and the World
Federation of the Deaf regarding the name of the Convention, which could
be abbreviated more easily, and suggested that the current title could
be used as the opening sentence of the Preamble.
Serbia and Montenegro stated that the objective of Convention should be
the enjoyment of rights for PWD and allow for their participation in
society in full and equal way. He called for word choice regarding
self-determination to be examined further and suggested that the concept
of international cooperation be included in the Preamble or opening
lines instead of this section. Inclusion of prevention should be
avoided, he said because this is a medical approach to disability and
not a social one and the Convention is a HR approach to disability
issues.
The Coordinator highlighted the wide range of agreement amongst those
who had spoken with regard to the object and purpose of the Convention,
that is, that PWD should enjoy full range of fundamental rights and
freedoms, irrespective of nature or cause of disability. He also
highlighted where there was disagreement with regard to the separation
of principles and objectives, whether to include international
cooperation and prevention, as well as inclusion of the right to
self-determination, right to life, and the right to be different. He
proposed that small open-ended group referenced earlier come up with
language and come back tomorrow with a draft, that is not overly
elaborate for further discussion. The WG did not object so he indicated
that the WG would move on to a focused discussion on the obligations of
state parties (page 44-58 of the Compendium).
GENERAL OBLIGATIONS
Ireland asked for guidance on how to look at some of the draft proposals
under the general obligations heading due to the differing structures of
each draft, particularly the EU version, and suggested that proposals
dealing with issues such as monitoring should be considered in a much
later stage.
The Coordinator concurred with the Ireland's point on overlap and
differing structures of the proposals and asked for flexibility in
approaching this area. He said that discussion of domestic monitoring
fit in at this point but discussion of international monitoring should
come at a later stage.
Disability Australia Limited suggested that the small drafting group
compress the EU and Bangkok drafts so that the WG could proceed faster,
as both offered interesting views on discrimination.
Mexico drew attention to Article 3 of Mexican draft for text on the
general obligations of states and indicated that Article 18 should be in
a separate part of the text entitled "International Cooperation in the
Convention." Mexico indicated that the Mexican (Article IV) and EU
texts coincide with regard to positive action/ compensatory measures and
asked it this article should go in this part of the draft or in another
part.
Japan supported the structure of the convention as proposed by the
Coordinator in the program of work. He listed two elements of the
obligations of the states in the Convention: condemning discrimination
against PWD, and agreeing to a policy to pursue the elimination of
discrimination. He proposed that the WG draw language on discrimination
from Article 2 of the CEDAW convention in this regard. Japan also
called for the inclusion of an article that would discuss the guaranteed
legal and administrative measures available to PWD if in fact their HR
were infringed upon or violated.
Sweden suggested that the whole Convention is a statement of state
obligations and intervened that it did not agree with Japan's statement
on condemnation as the Convention should "concentrate on actual action"
and not address the issue in a negative way. It concurred with Ireland
on the relevance of discussing monitoring at a national level and
pointed out that the UN monitoring mechanisms are limited. It surmised
that collection of statistics and data on PWD was not a right and
expressed hesitancy on whether the inclusion of this element fit in the
Convention, as history has shown the danger of "registering" race etc.
in central databases.
The World Network of Users and Survivors of Psychiatry pointed out that
the Chair and Bangkok drafts took a more legal obligations approach
while the Mexican and Chinese drafts included more programmatic elements
for governments to adopt to promote the rights of PWD, such as census
taking. It also emphasized the importance of a strong obligation,
reinforcing, respecting, recognizing legal equality, and full
participation of PWD in international monitoring and national disability
decisions, like Venezuela pointed out in their document. She said that
the Bangkok and Chair drafts had good national implementation
discussion, particularly with regard to participation of PWD. She asked
for the Coordinator to point out where the elimination of stereotyping
in the EU Draft is located in the compilation text.
The Coordinator said that the EU relevant provisions were found on page
61 and said that it was inevitable to have these difficulties when
working with more than one text. He also indicated that he was informed
prior to the meeting that it was unlikely that there would be agreement
on one text.
Colombia agreed on the importance of states to have legal, judicial, and
administrative obligations and the need to include principles of
equality and non- discrimination in national law and courts. It said
states should be obligated to ensure autonomy and independence, and full
participation and integration in social, political, economic life for
PWD, and should promote the role of organizations of PWD in evaluating
the establishment of programs and policies. It concurred with previous
statements on the need to gather data on disability in the census,
especially with regard to heath and education.
Morocco said that the majority of the proposals could be integrated into
one text.
Serbia and Montenegro said it was encouraged by some common denominators
in the proposals on non-discrimination and called for the inclusion of
the concept of concrete actions to deal with the issue by states, such
as a provision for legal remedies for those who are discriminated
against.
China called for a paragraph on the general obligation of states and
said that three major groups of elements on this are reflected in
existing proposals: Obligation of legislation; obligation to take
specific actions and administrative measures, and obligation to
undertake judicial measures. The delegate pointed out that these
obligations could be found in Article 3 of the Chinese text and should
be put into the draft text.
Rehabilitation International highlighted the six common denominators in
the text: 1-3 being juridical; 4 and 5 being policy-oriented; and 6
being the educational responsibility of states. He called for the
mainstreaming of disability in policy decisions, and the inclusion of
PWD in its conception, implementation, design, and review. He indicated
the obligation of states to nurture public opinion on disability,
including with regard to stereotypes.
The Republic of Korea indicated that the compilation of disability data
could help in improving quality of life, but could conflict with the
privacy of PWD. it surmised that the collection may be useful a few
decades from now and there should be a right to amend this element later
with regard to refusal of collection of data by PWD.
Lebanon concurred with Ireland's statements and pointed out the
obligation of states to prepare their budgets to allow for disability
policy.
Ireland highlighted the wide agreement among members on many elements to
be included under general obligations of states. He called for Article
5A of the EU proposal (page 61 of the compilation) to be reflected in
final draft. It asked for attention to the Bangkok draft's Article 5, on
remedies for violations.
Canada expressed contentment with the content of the Chair and Bangkok
drafts because it set out means to implement obligations. It suggested
a provision of special measures, such as in Article 4 of the EU draft
and highlighted the need to include the progressive realization of
rights, as recognized in the Covenant on Economic, Social, and Cultural
Rights (Article 2).
The World Federation of the Deaf highlighted the need for both general
obligations and specific measures regarding state obligations. It
affirmed the EU Draft Article 4 because 80% of PWD live in developing
countries and we need to see their needs are met and formulate a way so
that the governments can undertake responsibility in this regard.
Inclusion International wanted a statement that the government will
allow a PWD to live a full life and pointed out that there is a need to
allow for everyone to understand the text so they can exercise this
right, which is an important part for PWD. it called for a HR
infrastructure to allow the intellectually disabled to exercise this.
Disability Australia repeated Canada's view and highlighted the sixth
element that India stated (progressive realization of economic, social,
cultural rights) which is outlined in Article 4 of Bangkok draft.
LSN emphasised the participation of PWD as both an important principle
and objective in the Convention. The delegate noted that participation
should not end when states move to implement provisions at the national
level. LSN supported paragraph 28 of the New Zealand draft as it
explicitly recognizes those general obligations provisions calling for
the participation PWD in the process of developing the legislative,
administrative and other measures needed to implement the Convention at
the national level.
India highlighted the legislative obligations of affirmative action of
states with regard to employment, social security, and education and
called for a legal remedy provision that would provide for compensation
in case of violations. It highlighted the specific rights of those with
severe and/or multiple disabilities in this regard.
DPI said it would like to see removal of barriers and stumbling blocks
for full participation in society. It highlighted the New Zealand
document with regard to participation of PWD in administrative and
legislative processes, and national decisions. It called for states to
be responsive to the needs and experiences of PWD.
The South Africa Human Rights Commission called for the inclusion of
human dignity, and equal opportunity principles and said that monitoring
is an obligation of state, and should therefore be in that section. It
concurred with Sweden on replacing the word condemn with "eliminate",
which is a more positive word. It emphasized the obligation of states to
a barrier free society. It asked for clarification on public
authorities provision in 2c of the Chair Draft text.
Germany reiterated the obligation of states in legislative, judicial,
policy, and legal measures. It called for states to take measures to
combat discrimination by working with the media. It concurred with
Canada that it should not limit other conventions. It said that
progressive realization of rights should apply to economic, social, and
cultural rights, and not civil or political rights.
The Coordinator said that the issue of application to public authorities
vs. the private sector is a drafting issue in the Chair text and needs
to be looked at.
Sweden called for a distinction between public authority/ state actions
and what can be required by the private sector or individual. It
highlighted the issue of whether there should be reference to
progressive implementation of economic, social, and cultural rights and
endorsed the EU Draft in this regard because it made clear that the
basis is existing conventions. It should, in this regard, endorse
principles in the Covenant on Economic, Social, and Cultural Rights and
not undermine other rights.
Ireland expressed concerns about inclusion of the title "General
Obligations of State Parties" because that in effect covers the whole
Convention.
Venezuela called for state obligations in data collection because of the
importance of knowing the condition of PWD with regard to work, health,
recreation, legal time, but cautioned against any violation of privacy.
The World Network of Users and Survivors of Psychiatry referred to
general principles outlined in the Covenant on Economic, Social, and
Cultural Rights in relation to the prohibition on discrimination. It
argued for PWD participation and the mainstreaming of this perspective
in all areas of national policy, including with regard to poverty,
because of the high incidence of poverty among PWD. It highlighted the
obligations of states with regard to non-discrimination and policy
making on a national level, not just with regard to international human
rights.
Japan discussed the need to address violations of non-discrimination in
the private sector (i.e. Access to a private apartment for PWD) and
agreed with Sweden's previous statement. It referred the members to
Article 4 paragraph 2d of Chair text. Similar mention is made in EU
text.
Disability Australia Limited recognized that a lot of discrimination
already addressed has not been by state authorities and referred to
issues of accessibility and transportation in the EU Draft. It
referenced how CEDAW too, has addressed violence against women in the
home by individuals and surmised that the elimination of discrimination
by private entities has already been addressed regionally and in
programmatic measures. It called for building on existing standards and
not undermining them and the inclusion of clearly stated provisions that
appropriately address private entities.
The Coordinator clarified that there was no assertion being made that
private discrimination should not be addressed in this convention.
Rehabilitation International made three observations. As per Article 12
of the European Convention, it is not unheard of for a human rights
treaty to detach the issue of non-discrimination. Also, the state has
the responsibility to delegate to the private sector with regard to this
issue. It also expressed concern that the WG not cross contaminate civil
and political rights with economic and social rights and highlighted the
need to take positive note of progressive achievement.
The European Disability Forum (EDF) said that a basic obligation of the
state is the right of partnership in formulating processes and policy
with PWD. In this regard, there needs to be strong involvement of
organizations of PWD in the implementation of the Convention. The state
has a fundamental obligation to fully support those organizations in
doing this work. The EDF said that both the private and public sector
should be covered with regard to non-discrimination and that the state
has an obligation to ensure the non-violation of rights.
Slovenia supported the Coordinator's statement on non-discrimination and
surmised that Article 6 of CERD might be helpful in this regard. It
indicated support for the principle of partnership as an obligation for
states with regard organizations of PWD and indicated support for the EU
paper on the issue of combating prejudice, promoting awareness, and
progressive and positive action.
GUARANTEE OF EQUALITY AND NONDISCRIMINATION
Ireland pointed out that its elements paper, which was handed out at the
last Ad-Hoc Committee meeting, highlights the need for a definition of
direct and indirect discrimination, which is referred to on page 61 of
compilation text in Article 3 of the EU Proposal and based on the EU
Directive on Equality in Employment.
The World Network of Users and Survivors of Psychiatry called for
attention to how direct and indirect discrimination are distinguished
from each other and questioned the need to separate them from each
other. She pointed out the problem in Chair and Bangkok drafts because
these texts allow for the possibility of indirect forms of
discrimination if the aim is justified and creates a loophole for
allowing discrimination. This concern of pretextual language is of
particular concern to those with mental or psychiatric disabilities.
The Coordinator asks for further comment on this issue and pointed out
the language is quite narrow on page 32, paragraph 21 of the compilation
text. He asked the previous speaker to identify the problem in the
Bangkok draft (page 8, Article 2 of that draft).
The World Blind Union indicated the need to be clear on what is meant by
indirect discrimination. She highlighted this WG, and the need to use
documents not previously seen and two headsets as indirect
discrimination against those with visual disabilities.
In response, the Coordinator points out that unless members can reach
agreement on one text, they were condemned to be proceeding in this wat
and that he suspected everyone was being discriminated against, though
some more than others.
The World federation of the Deaf indicated that in some HR conventions,
they say that non-discrimination is forbidden and that in the
compilation text, there is no mention of discrimination of PWD on basis
of language, which is a form of direct discrimination. This was
highlighted in the Bangkok draft and called for language discrimination
to be forbidden in the text, or all deaf people would be discriminated
against.
Ireland pointed out that their proposal recognized indirect and direct
discrimination and said that indirect discrimination would be forbidden
unless there was a valid reason to justify its use, which would only be
a limited exception. It pointed out that all the proposals eliminate
all forms of discrimination.
World Federation of the Deaf and Blind agreed with the previous
statement on language discrimination and asks if it would be possible
for those making interventions to read part of document when referring
to a specific article, as this would make the working method easier.
The World Network of Users and Survivors of Psychiatry referred back to
their previous statements and said she was referring to specific
proposals, not general comments in the draft compilation (which were put
on the screen in the meeting room). It surmised that Article 2 in the
discrimination section of the Bangkok draft and recommendations was
"worse than the EU proposal" with regard to indirect discrimination. It
asked for clarification on CEDAW and CERD and if they were understood to
include indirect discrimination.
The Coordinator said he had difficulty in following the objective of the
previous statement and said that he thought Bangkok Draft was
"preventing that" (indirect discrimination). He then indicated that a
discussion on this issue might best take place "in corridors with
delegates" on an "informal basis" to resolve the issue.
Thailand said that when dealing with discrimination, the members need to
come up with the terms regarding positive or special measures. We need
to find clear way of expressing this or there will be a long debate on
whether the word choice should be considered neutral and/or negative.
He said as a non-English speaker, "discrimination" seemed to be a
negative word and highlighted the need to clarify whether it is meant to
mean/be neutral or negative.
The Coordinator said that if there is no provision for positive
discrimination or affirmative action, it can seem to be discrimination
in other contexts.
Canada asked for clarification of indirect and direct discrimination and
caution against dividing the two, with a caveat only applying to that
which is indirect. It indicated also that Article 3 of the Bangkok
texts was a "high hurdle to overcome for states" because it deals with
attitudinal issues, which are hard for states to guarantee and
highlighted the need for flexibility for states in due to budgets which
might call for prioritization of needs. He agreed with the general
conception of this part.
Sierra Leone referred to the EU draft and asked that drafters make as
simple as possible for PWD and everyone to understand "what we are
trying to do." He referred to China's discrimination definition on page
60 and called it an option for discrimination definition. He emphasized
the need to make the definition general and to use "specific measures to
imply what is meant."
China explained definition for discrimination in their text on page 35
(not page 60, as referred to by the previous speaker). They called for
the definition to be concise because if it is too long, it could lead to
different perspectives. They called the Bangkok draft definition too
long, "as if it is a textbook." They proposed to merge the definition
found in the EU and Bangkok drafts with the one found in the China,
Mexico, and Venezuela drafts.
Disability Australia Limited surmised that the principle of
discrimination and non-discrimination has been emphasized by all
stakeholders and recalled that in the Ad-hoc Committee meeting in June
2003, the majority wanted a holistic treaty, while a small majority
wanted a non- discrimination treaty, modeled on CEDAW and CERD. It
called for a balance in preventive and promotive aspects and the
introduction of positive measures. They cautioned that although a
discussion of this principle of non-discrimination could take more space
in the convention than "some of us would like," this is a central issue.
Rehabilitation International opined that discrimination, in reality, is
rarely overt and direct, but is usually more indirect; this is addressed
in the EU text. He opined that there is no justification for direct
discrimination and asked for a different term for special measures in EU
text, as well as clarification on the issue of reasonable accommodation
from the EU.
Sweden went back to a previous Canadian statement regarding activities
of the government and other actors in the Bangkok and Chair texts, in
that these ask governments to to take all kinds of measures, which
should not be seen as direct HR violations. It defended the EU ``draft
on this point and the expected differences in what can be expected of
governments in terms of policy, legislation, and reasonable
accommodation in this regard. It asked for more time on this issue as
this is the part of the Convention that the WG should spend the most
time on.
Germany asked if Ireland could answer RI's question first before they
intervened.
Ireland said that the question put forth by RI has been discussed at
length in the EU. It stated that reasonable accommodation is a means to
overcome discrimination; that is, it is a means to an end. This is
important in a legally binding instrument.
Germany said that the Convention should not undermine existing HR
instruments, and definitions in this treaty should not be less than
those rights in the Covenant on Economic, Social, and Cultural Rights.
It opined that the notion of reasonable accommodation is captured best
in the EU draft.
Morocco said they would not go into detail regarding discrimination,
because they were interested in the broadest possible concept. They
agreed with Canada that the process to change attitudes is necessary
although lengthy, and must be started, given its importance.
Thailand agreed with the Bangkok draft (Article 9) which has a "positive
and productive attitude toward disability." Changed attitudes, then,
means both positive measures as well as eliminating negativity. The
delegate noted that some target groups are not well addressed enough in
the draft texts, particularly PWD in urban slums minority tribes, and
minority ethnic groups, as well as those with profound and severe
disabilities.
--------------------------------------------------------------------------------------------------
The Disability Negotiations Daily Summaries are published by the
Landmine Survivors Network, a US based international organization with
amputee support networks in six mine affected / developing countries.
They cover the intergovernmental proceedings of the Ad Hoc Committee on
the human rights of people with disabilities. Reporters covering the
Working Group meetings are Elizabeth Kissam, Jennifer Perry and Zahabia
Adamaly (editor). The Summaries are posted on line by noon the
following day at www.worldenable.net. They are also translated into
Japanese (Japanese Society for Rehabilitation of Persons with
Disabilities ([log in to unmask]). If you are interested in translating
and disseminating the Summaries over the course of the Working Group
meetings, and would like your contact information to be distributed, or
have comments / questions, please write to [log in to unmask]
________________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.
|
