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Daily summary of discussions related to Article 2

GENERAL PRINCIPLES

UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #2
August 24, 2004

AFTERNOON SESSION

PRINCIPLES: ARTICLE 2

Chile was in agreement with Article 2(a)’s references to dignity, personal autonomy and freedom to make one’s own decisions, but suggested the usefulness of the term “self determination” instead. It supported the Costa Rican proposal to reference “an independent life” and “personal development” in all phases of life in Article 2(a). Article 2(d)’s reference to the acceptance of disability could be better formulated as the acceptance of diversity as part of the human condition, reflecting the principle of inclusion. The Mexican proposal on international cooperation should be incorporated, as should their proposal to reference equality between men and women. Corrective measures or socially minded approaches to medical care are not founding principles, but could be placed elsewhere in the convention. A principle that standardizes and informs this article is acknowledgement of the diverse rights that PWD have and that are made effective through this convention.

Japan enquired whether principles are legally binding or merely guiding principles. It referenced its submission from the previous session, of language derived from Article 4 of the Climate Change Convention.

Mexico submitted (at www.un.org/esa/socdev/enable/rights/ahc4mexico.htm) an alternative text to the Secretariat. The Principles will guide the interpretation of the convention in line with the Vienna Convention on the Law of Treaties in the future as well. Concepts such as progressive realization must be addressed in other articles.

Costa Rica reiterated linguistic problems in the draft texts in Spanish and requested that problems of translation be resolved. This article should reflect the issues that will guide the remainder of the text. In Article 2(d) a period must appear after human diversity. Disability is part of human diversity and must be understood as such. As called for by Canada and others there should be a reference to equality between men and women, and as called for by Mexico there should be a reference to the gender perspective as a general principle.

The Netherlands (EU) supported a short article on general principles. Many additions were proposed in the Third Session and it now looks more like a shopping list or index. Many proposals are not principles, but measures regarding implementation or topics which may be important but do not have a place in Article 2. Most proposals made do not need to be included, but the EU does support an additional reference to gender equality.

New Zealand called for a more timeless, succinct and powerful expression of principles. The convention should not go out of date or be stuck in the era of the International Covenants, yet some of the terms currently in use may well become old fashioned. Furthermore many ideas put forward in this and the Third Session do not seem to be principles. For example, the progressive realization of economic, social and cultural rights belongs in Article 4 and international cooperation is a means to implementation. The second principle should be equality of opportunity, including non-discrimination, reasonable accommodation and a barrier-free environment. New Zealand agreed with the EU on referencing gender equality.

The Republic of Korea proposed referencing the need for close consultation and involvement of PWD and their self-representation, as this issue is reflected throughout the convention.

Eritrea called for the concept of prevention to be included so that the article also covers situations that cause disability, such as landmines.

Thailand supported the WG text for Article 2 provided it also included the re-insertion of the term “self determination” or “individual self-determination”, and the Korean proposal regarding self-representation.

Canada supported the WG draft language with an addition referencing equality between men and women. Other proposed additions are already and more appropriately addressed elsewhere, or are measures rather than principles. Para (c) should be reformulated as per the EU proposal, and in para (e) “substantive equality” should be added after “equality of opportunity” because equality of opportunity should not be interpreted as sameness of treatment. The concept of substantive equality has been developed in a number of domestic systems including Canada’s, which recognizes that PWD may require different treatment, namely accommodation of their needs and circumstances and thus positive action by States in order to enjoy the same opportunities as others. Canada supports the EU proposal on 2(bis), but with language more faithful to Article 2 of ICCPR, and more appropriately placed under Article 4 (General Obligations).

India supported Mali, Sudan, Eritrea and Jordan on the inclusion of international cooperation, as well as Canada, Costa Rica and Norway on the inclusion of gender equity, and Mexico on the inclusion of references to a barrier-free environment.

The US supported the thrust of the EU, New Zealand and Canadian proposals, towards a set of succinct and compelling principles that should underlie UN human rights instruments, such as non-discrimination, equality under the law, equal opportunity and equal access. The US supports the WG text’s five basic principles, as well as the proposal for para (c) made originally by the EU, supported by Mexico and Costa Rica and additionally supported at this session by Canada.

Liechtenstein called for guiding principles that will apply to all the substantive provisions in the Convention. It can agree with a reference to the essence of human rights as proposed by Mexico in para (a), as well as non-discrimination, equality of opportunity, full inclusion, and gender equality. This Article should not include notions that are really purposes or ways and means of achieving certain goals.

Serbia Montenegro generally supported the WG text and specifically also supported the proposal of the EU, Mexico and Costa Rica for (c), the proposal of New Zealand in (b) that non-discrimination be added to the principles of equality of opportunity and reasonable accommodation, and the proposal of Canada, Costa Rica and Norway to include gender equality. Other proposed additions from the Third Session, of the concept of a barrier-free environment as proposed by Japan or accessibility as proposed by South Africa and Thailand are acceptable provided there is consensus. Para 2(bis) as proposed by India, Mexico and Thailand, while important is more appropriately placed in Article 4.

South Africa likewise supported Article 2(bis) provided that this is moved to Article 4, and also supported the inclusion of concepts of international cooperation and gender equality. Without having fully read the new Mexican proposal yet, it seems that it captures South Africa’s views; however it lacks some elements found in the WG text, and therefore the two formulations should reintegrated.

Sierra Leone stressed the need for looking at the convention as a whole to ensure that the principles are reflected in it. In Article 5, there is a reference to respect and inclusion, which is related to dignity. Article 7 references equality and non-discrimination, Article 9 references equality under the law, Article 10 references liberty and security of the person, Article 14 references respect for difference, Article 15 references independence and autonomy, or self determination, Article 18 references participation, Articles 19 and 20 references accessibility and personal mobility. These are all principles that should be reflected in Article 2. Gender equality, if included in Article 2, must be reflected in the convention. International cooperation should be in Article 2 because consensus is emerging for its coverage in the convention, especially in implementation. The Mexican proposal in 2(a) referencing the universality, indivisibility and interdependence of all human rights, should be the first general principle. The other principles to be included are those that are reflected in the convention as a whole.

China noted that general principles are to be relied upon in implementing the convention, and they should be more abstract rather than concrete. Mexico’s proposed additions to the WG text, on gender equality and international cooperation, should be incorporated with some minor changes. Para (b) is specific and so should follow paras (c) and (d). Language in 2(bis) should be retained, but is more appropriate in Article 4.

Yemen supported the addition of “respect” before “dignity.” International cooperation does not belong in Article 2 as it is an implementation measure. Gender equality should be included, as some delegations proposed. More attention should be paid to all types of disabilities, to each disability individually, and not only those with serious disabilities, as this discriminates among different types of disability. Accessibility should not be included as a general principle, but rather in the appropriate articles.

Cuba supported para (a) of the Mexican proposal and suggested amendments to it as follows: para (h) should reference equality or equity between men and women and para (i) should refer to “the general principle of international cooperation.”

Morocco was satisfied with the Mexican proposal in particular para (a), as the proposal takes into account both the WG text and comments made in AHC3. It proposed the following amendments to the WG text: para (c) should be amended in line with the EU proposal; and gender equality and international cooperation should be included.

Australia called for a statement of principles that is clear and succinct. The WG text is a good starting point, and can be amended to incorporate the EU proposal for para (c); the New Zealand proposal to combine the overlapping concepts of equality of opportunity and non-discrimination; and the shifting of 2(bis) to Article 4.

Venezuela welcomed the Mexican proposal and called for inclusion of international cooperation and gender equality.
Namibia associated itself with the Mexican proposal, called for the inclusion if international cooperation, and proposed to add, in line with the Korean proposal, the concept of self-representation.

Thailand reaffirmed its earlier proposal to include “accessibility” as a general principle. Accessibility is fundamental, disability-specific, is not in any other human rights instrument, and should be embraced as such. The concept of universal design could however be incorporated in other articles. The term “disability-inclusive international cooperation” also should be recognized. Thailand agrees with Mexico, Norway, Canada, and Costa Rica on gender equality.

Jordan reiterated its position on maintaining the references to international cooperation, self-determination and empowerment of PWD. and also called for inclusion of gender equality.

Bangladesh shared the view of many delegations of the need to reference international cooperation and equality between men and women. As equality applies to men and women, boys and girls, and older men and women with disabilities, the term “equality between PWD in respect of gender” should be utilized to ensure that all PWD of all age groups are taken into account.

Lebanon stressed the purpose of Article 2 is to outline general principles and mechanisms that will help in the application of the provisions contained in other articles, such as international cooperation. Further additions to the WG draft are unnecessary.

Norway highlighted a lack of clarity in the elaboration of general principles. These are meant to be goals, like gender equality, and not the means to achieve them, as several proposals from AHC3 like international cooperation, indicated. International cooperation may be included in other articles, but is not appropriate in Article 2. Article 2bis should be retained but placed elsewhere.

Kenya suggested that the reference to “gender equality” be changed to “gender equity” as this latter term better reflected the notion of fairness.

Canada preferred the reference to “autonomy”, the compromise found by the WG, over “self-determination” which has a specific meaning and would lead to confusion and mis-understanding. It appreciates the strong support for the Canadian proposal to add gender equality, and opposes the suggestion by Kenya that “gender equity” be substituted instead, as this would role back achievement in human rights.

Trinidad and Tobago supported many of the general principles in the WG text as well as the addition of international cooperation and gender equality.

Republic of Korea expressed concern at the proposed amendments noting that this article should contain crosscutting ideas with which States can review the achievements of the convention. International cooperation is an implementation measure and should therefore be in another article and a reference to gender equality should be included.

Chile suggested that the term “self-determination” could be clarified if understood to mean “personal self-determination.”
Jamaica revisited the consensus of the WG on the purpose of Article 2 - to contain the fundamental principles that should guide the development of the convention. In its formulation, a distinction should be drawn between mechanisms for achieving the goals of the Convention and the goals themselves.

Tanzania supported all delegations calling for the inclusion of international cooperation.

Non-Governmental Organizations

South Africa Human Rights Commission (for National Human Rights Institutions) proposed the insertion of “respect for human” before the term “dignity” in para (a). In para (c), the formulation in the Mexican proposal’s para (d) is preferred as a more active expression of the principle of participation and inclusion. Para (d) should be amended to read “respect for human diversity” which is more universal than “respect for difference” and the reference to “acceptance of disability” should be amended to read “recognition of disability.” Para (e) should be moved up in the hierarchy of principles, and the principles of reasonable accommodation and gender equality should be added.

Special Rapporteur on Disability proposed, given differing views on international cooperation, that “the principle of international responsibility” be substituted instead in Article 2.

EDF (on behalf of International Disability Caucus) generally supported the WG text on Article 2. It supports the addition of gender equality. Though noting the concerns of Canada, the concept self-determination is preferred over autonomy. It supports the proposal of the National Human Rights Institutions to substitute “respect for human dignity” in Article 2(a). The Korean proposal to include the concept of self-representation is interesting and should be explored further. The proposals addinga barrier-free environment, reasonable accommodation and accessibility are good ideas that should also be explored further. The Caucus welcomes the replacement of para (c) with the Mexican proposal’s para (d). The strengthening of the principle of equality of opportunity will be explored further. The Caucus is not inclined to support the inclusion of international cooperation in Article 2 preferring its inclusion in a separate article and a reference in the Preamble.

DPI supported the principles as formulated in the WG text, as they respect the spirit and philosophy of the convention. It also supports the EU proposal to use the term “participation” in para (c), as this will enshrine in the convention the motto of the international disability movement, “nothing about us without us.”

Save the Children Alliance as a child rights organization expressed appreciation for the WG text. It underscored the importance of positive action and extending the concept of gender equality into “diversity equality.”

The Chair expressed his intention to work on the proposals for Article 2 for resubmission to the Committee tomorrow. As Article 3 on Definitions has already been discussed, on August 23, the floor was opened for consideration of Article 4.