Back to: Fifth Session of the Ad Hoc Committee
Summaries of the Fifth Session
Daily summary of discussion at the fifth session
2 February 2005
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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summaries
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Volume 6, #8
February 2, 2005
ARTICLE 14: RESPECT FOR PRIVACY, THE HOME AND THE FAMILY (cont)
The Coordinator stated that the meeting would go into formal session in the afternoon of the next day to allow Disabled People’s Organizations (DPO’s) to comment on the proceedings. He then invited general comments on Article 14 and specific comments on 1. He reminded the delegates that the previous day and at a previous reading of the convention there had been a proposal to split Article 14 by having Article 14 cover health, and creating a new Article 14 bis to cover home and family. The Coordinator also invited comments on this idea.
Australia supported the proposal to split Article 14, and stated that it had submitted a proposal to this effect some time ago.
The Coordinator asked if any delegations objected to splitting Article 14, and seeing no objection, suggested proceeding on the basis of the Australian proposal. He stated that Costa Rica had also submitted a proposal to split Article 14.
Costa Rica stated that its proposal to split Article 14 was similar to Australia ’s , and agreed to begin discussion on the latter.
The Coordinator agreed to begin by using the Australian text as the basis for discussion.
Luxembourg on behalf of the EU (hereinafter EU) preferred to work from the WG text, and proposed to modify the first sentence of 14.1 by deleting the words “living in institutions” and replacing them with “regardless of their place of residence or living arrangements,” because the right to privacy and the principle of protecting individual freedoms must follow a person wherever she or he may be. The word “choice” should be replaced with “freedom of choice” in 14.1 to make clear States Parties’ obligation to protect PWD’s freedom of choice to take decisions on personal matters.
Yemen agreed to split Article 14 by placing all mention of home and family into a new Article 14 bis, and to work on the basis of the WG text. The words “arbitrary” and “unlawful” should be retained because this would strengthen the text. It also proposed replacing the term “correspondence” with the word “communications” because the latter is broader. It asked that if mention of institutions is deleted, then text should be added to Article 11 to make clear that people with disabilities (hereinafter PWD) should not be placed in any institution except as a matter of choice, because Article 11 is not clear on that point.
supported splitting Article 14, the EU’s change of text to “regardless
of place of residence,” and replacing “correspondence:”
with “other types of communication.” It added that medical
records could be discussed in an article on health.
The Coordinator said “Correspondence” can be broadened to include communications, as Mexico suggested. The WG identified that as an issue in Footnote 45. There is a lot of support for splitting Article 14 into two parts, which would only affect structure rather than form. The Australian text offers a more streamlined approach than the WG text. He then asked if there was objection to replacing the words “living in institutions” with “regardless of place of residence.”
Yemen supported replacing “correspondence” with “communication”.
The Coordinator noted that s everal delegations supported broadening the term correspondence to include other forms of communication.
Serbia and Montenegro endorsed a) splitting Article 14, b) using the words “regardless of place of residence,” c) using the words “freedom of choice” in the second sentence, d) replacing “correspondence” with “communication,” and e) that medical records be addressed in a separate article on health. Privacy should cover not only medical records, but all types of records pertaining to PWD—so it would be better to use a more encompassing phrase such as “all records”.
The Coordinator said the issue of medical records privacy is currently covered by Article 21.
Canada supported splitting Article 14, and agreed to delete “including those living in institutions” and replacing it with the EU’s suggested wording so it would extend the protection to all persons regardless of residence. It agrees that privacy of medical records is better addressed in Article 21. It is flexible on using “communications” instead of “correspondence.”
Australia supported using language that would protect people regardless of place of residence, but Article 14 should not extend beyond Article 17 of the International Covenant on Civil and Political Rights (hereinafter ICCPR). Privacy protection for PWD should be on equal basis as that provided to others. Medical records privacy could be addressed in Article 14, but is better addressed elsewhere. PWD should have the right to choose their positions on personal matters, but that issue should not be included in Article 14 because it addresses the administration of personal matters—not privacy. The administration of personal records is discussed in other articles, this isn’t the place for it.
TheCoordinator noted that Australia ’stext also refers to attacks on the reputation of PWD. That’s a sentiment everyone here would support, but the question is whether we deal with that in an article on privacy.
Australia responded that the concept was included in the consolidation of other proposals. It may not belong in an article solely on privacy, so Australia is flexible about its retention.
The Coordinator recommended
this concept be dealt with elsewhere. When the WG wrote its text, it
approached all the articles individually, so the range of each article
reflects issues of highest concern to PWD—especially in light
of what has happened historically.
Australia stated that the reference to unlawful attacks on reputation is also found in Article 17 of the ICCPR.
South Africa stated that Article 14 should focus on privacy as an inherent right which relates to all privacy issues—not just home/family. The WG text should be used, but only on issues regarding privacy. Australia proposes adopting 14.1 without including the listing of home records. These matters should be referred to other articles as proposed by others. Some aspects on family and home should be moved to Article 15 as part of community life and living independently. South Africa is also flexible on moving these issues to Article 14 bis.
United Arab Emirates supported splitting Article 14. However, if language regarding people living in institutions is deleted, how can the state monitor the rules in residences—such as rules regarding visiting hours? The language should be flexible so it doesn’t conflict with institutional rules. It should just say that there shouldn’t be any violation of privacy, which is a right of PWD in these residences.
Japan also supports splitting Article 14. ICCPR Article 17 is equivalent. The Australian formulation for Article 14 is the exact wording drawn from Article 17 of the ICCPR, so it won’t lead to misinterpretation or confusion. It’s better to use “correspondence” rather than “communication” because the latter is used in the ICCPR and should be retained here so its meaning is consistent throughout human rights treaties. If the meaning is broadened to include all communications, then this convention should state that protection should be extended to others on an equal basis. The text should not be limited to persons living in institutions, so the wording suggested by the EU should be used.
The Coordinator noted that he had heard no objections to replacing “living in institutions”. As for replacing the term “correspondence,” the ICCPR was adopted in 1966, and pre-dated communication through the internet.
Russian Federation stated that 14.1 should address both family and privacy—these are so closely related they should not be separated in this context. This was the reasoning behind Article 17 of the ICCPR and Article 16 of the CRC, so “family” should not be excluded from Article 14. It supports the EU proposal to add “irrespective of place of residence” and Australia ’s proposal banning unlawful or illegal encroachment upon the honor of PWD. An integral part of the text is the concept of the right to family privacy, as those are defined in the ICCPR and the CRC, so that concept should be included. In line with the Coordinator’s comments regarding the word “correspondence” Russia proposes the following language: “correspondence and other types of communications.” In this way the Convention wouldn’t stray from the ICCPR language. However to specify various types of communication or interaction goes beyond the scope of this article. The meaning and purpose of the phrase “personal matters at the end of 14.1 of the WG text is unclear and should be moved elsewhere. This phrase is ensuring independence of will, not protection from encroachment of the right to privacy. It has broader implications in the social context. Medical documentation of PWD would be better considered in Article 21 but Russia is flexible on this point.
The Coordinator said that the WG text diverted from the text used in the ICCPR and the CRC, and that was proving problematic for some delegations. Hence the solution might be to use the ICCPR text. The provision would then read “no PWD, regardless of their place of residence, shall be subjected to arbitrary or unlawful interference with the privacy of their home or correspondence, nor with unlawful attacks on reputation.” This language incorporates the “regardless of place of residence,” concept, which was important for colleagues with disabilities when that discussion took place. Mexico ’s proposed language would also need to be incorporated adding “or other types of communication” after “correspondence”. That would simply update the ICCPR text. The second sentence would read: “every person with a disability has the right to the protection of the law against such interference or attacks.”
Liechtenstein stated that this was a wise proposal. Words don’t have to be split, just concepts. Those concepts can use the same words. The ICCPR’s Article 17 addresses the right to be free from interference with family privacy and Article 23 on marriage and founding of families. There’s no need to reinvent the wheel—PWD should be treated like everyone else. So its appropriate to use the ICCPR text to cover these issues. It is also appropriate to use “regardless of place of residence,” and to replace “correspondence” with “communication.” The ICCPR and even the CRC were written before there was widespread use of email. The EU Charter on fundamental rights used the word “communication” instead of “correspondence.” In the European convention on human rights, it says correspondence is communication—so it doesn’t differentiate between the two terms. This Convention’s language should simply update an outdated term.
New Zealand supported the Coordinator’ssuggestion. The term “communications” would suffice. An earlier statement was made that the concept of protecting honor and reputation doesn’t fit within this article. That problem will be solved if titles are no longer used. The WG text on this Article no longer contains the language on personal matters. It is important to keep in mind what the WG was trying to achieve. The convention text shouldn’t lose the idea even if it doesn’t fit in this article. PWD considered this an important issue, especially as it relates to the home and those small daily decisions that they don’t get to make for themselves, especially if they live in institutions. The WG was trying to address this problem.
The Coordinator said that the Convention on the Rights of Migrants was adopted in 1990, and uses the phrase in Article 14 “correspondence or other communications” so that is the most recent way of wording this. There is a precedent for broadening the term “correspondence.”
Thailand stated that it supported the WG text, but was flexible. The words “regardless of place of residence” should be used, and the word “correspondence” should be replaced with “communication.”
The United States supported the Coordinator’s suggestion. Using the ICCPR text is an excellent idea.
Morocco supported splitting the article into Article 14 and Article 14 bis, and also supported changing the title from “privacy” to “private life.”
The EU opposed the proposal to separate the idea of the first sentence of Article 14, which largely reproduces Article 17 of the ICCPR, from the idea in the second sentence which addresses the protection of family privacy. The logical link between the principle of protecting family privacy and the idea of the states taking measures to protect privacy should be maintained. The state must act in reference to principles which have been affirmed. Measures to be taken on the basis of principles should be linked in the text. Also, the phrase “place of residence” should be appended with the phrase “or living arrangements”. The word “privacy” should not be replaced with “private life” “Privacy” is more comprehensive and used in more human rights texts.
The Coordinator stated adding the words “or living arrangements” wouldn't raise difficulties. No decisions have been taken with respect to retaining titles. Other human rights documents don’t have titles but they are useful for now.
Jordan supported using text from the ICCPR, because doing so avoids introducing new concepts. The phrase “regardless of their living arrangement” would be more concise. Finally, the text needs to explain the term “privacy.”
Russia stated that the idea of the protection of honor and reputation is an integral part of Article 12 of the Universal Declaration of Human Rights, as well as Article 17 of the ICCPR and Article 16 of the CRC. Also, the word “privacy” should be used instead of “private life.” “Privacy” is used widely in Russian legislation on human rights and is also widely used by many other states. Finally, the convention should use the words “regardless of living arrangements.”
Lichtenstein stated that “private life” are words used in regional instruments, like the EU Charter of Fundamental Rights. “Private life” could be broader than “privacy”, especially because if it includes the free choice to take decisions on personal matters. That’s a part of one’s private life. If “privacy” is understood to be very broad, maybe there’s not much difference between the two terms.
The Coordinator clarified that the term “private life” had been proposed for the title of the text, not the text itself. He noted that Morocco was in agreement. Regarding Jordan’sproposal to shorten the phrase proposed by the EU to read “regardless of living arrangements” – doing so would weaken the intent of PWD to ensure that the WG text protects people living in institutions, where interference with privacy is most manifest. If the text is limited to just “regardless of living arrangements” it would have moved too far from “living in institutions.”
India supported separating the text into Article 14 and Article 14 bis. In 14.1, there is no need to specify either living arrangements or place of residence, because mentioning neither means the text refers to all possibilities, including migrants as well as people with residences.
responded that although the ICCPR had been enforced for years, PWD have
nonetheless been subjected to interference with their privacy. The WG
wanted to make clear the ICCPR protections included everyone including
people living in institutions.
The EU explained the rationale behind its proposal - to protect the privacy of a person wherever she or he may be—be it in a home, in a camping trailer, or within a family—not just in an institution. Adding the words “or living arrangements” would cover everything.
Yemen stated that adding “regardless of place of residence” was sufficient, and adding the phrase “or living arrangements” was redundant.
The Coordinator summed up the general view that Article 14 be split into two, with a new Article 14 (bis) covering home and family. There was quite a degree of support for using ICCPR and CRC language, with the modification that the terms “no one” or “no child” would be changed to “no PWD”. He recommended using elements of the EUlanguage for the moment as no one has opposed the concept, just the length. The new text would read “no PWD regardless of place of residence or living arrangements shall be subjected to arbitrary or unlawful interference with privacy of family, home, or correspondence or other type of communications.” This is the language used in the Migrant Workers Convention, which includes the phrase “nor to unlawful attacks on honor or reputation.” The current text therefore has the ICCPR language with the EU text, and an updated reference to “correspondence” as well as “communication.” In 14.1 all PWD are protected against attacks on these rights. The CRC text is adapted to PWD, with the broader concept of communication.
The Coordinator invited comments on 14.2 of the WG text which would form the new Article 14 (bis) on home and family, and specifically the chapeau to 2(a) and (b). Article titles will be retained for now to help delegates find their way around the text.
Thailand proposed using the phrase “on the basis of disability.”
The Coordinator said that phrase would be inserted after “denied,” so the text would read ”that PWD are not denied, on the basis of their disability, the equal opportunity to experience their sexuality,” etc. Delegates should consider the footnotes to the WG text. Footnote 46 relates to the chapeau, and delegates may want to consider whether marriage and family relations might be too limited. Also, the footnote to (c), (d), and (e) makes clear that this article does not address issues such as states’ policies on family size, but instead intends that PWD not be treated differently from others, which picks up the point just made by Thailand.
Jordan stated that the convention text should not introduce topics, principles or behavior which are controversial or in conflict with religions or values. Paragraph (a) should be deleted. Paragraph (b) should be modified to make husband and wife equal partners. Finally, (f) should be deleted because it is redundant with an earlier article which covers changing attitudes toward PWD.
The Coordinator stated that the intent of the WG was not to pronounce or change the policies or views of any country, but rather to ensure that PWD are treated on equal basis with others.
Australia suggested addressing this concern by including at the end of (a) “in accordance with law”. This would serve to emphasize equality without requiring a change in domestic law. The chapeau should include “on an equal basis with others”.
Syria supported Jordan’s suggestion. The convention should avoid controversial issues. The WG text should be amended to read “through a legal marriage” and “in accordance with different customs and traditions”. This applies both to people with and without disabilities, so there would be no discrimination between the two groups.
Yemen suggested deleting the concept of sexual relations everywhere in the convention, or clarifying that it applies only within the framework of legal marriage. A third option is to leave it up to countries to decide this issue according to their own laws, customs and traditions.
The Coordinator agreed that the delegates did not intend to force cultures, countries or religions into any particular position, but rather to ensure that PWD are not treated differently in this respect. This may be the first time sexual relationships are addressed in a U.N. convention. The Standard Rules, adopted by consensus in 1993 by Resolution 48-96, may be the best approach to use here. Rule 9 says that states should promote full participation of PWD in family life, protect their right to personal integrity, and ensure laws don’t discriminate against them with respect to sexual relationships, marriage and parenthood. http://www.un.org/esa/socdev/enable/rights/wgrefa14.htm Alternatively t he convention could state that PWD should be treated equally with respect to sexual relationships, marriage and parenthood.
Serbia and Montenegro supported “on a basis of equality with others” in the chapeau of 14.2. In addition, Japan ’s proposal made at AHC4 for 14.2(a) is the least controversial: "That sexuality of persons with disabilities should be respected on an equal basis with others."
China noted that the chapeau of the new 14 bis is derived from Article16 of CEDAW. The words “on an equal basis with others” should be added to the end of this chapeau. That will make clear that PWD should enjoy the same rights as others in family relations and marriage.
The Coordinator noted that there were now several delegations that supported adding “on an equal basis with others” to the chapeau.
Colombia supported adding “on an equal basis with others” at end of the chapeau. It’s important to make clear that PWD should not be deprived of equal opportunity under the law to experience sexuality and parenthood. The Spanish text should refer to parenthood by men and by women by using the Spanish words “paternidad’ and “maternidad.”
The Coordinator noted that the text should cover parenthood for both sexes.
New Zealand proposed inserting “in all matters relating to their private life, including” before “marriage and family relations” in 14.2. This chapaeau does not give PWD extra rights and should not be weakened. The wording the Coordinatorsuggested from the Standard Rules is fine—although delegates may want to pick up some of those points in the subparas, not just in the chapeau. Paragraph (a) is not talking about a right to sexuality, to sexual relationships and parenthood—there’s no such right. It just refers to the right to be free from discrimination. This wording around nondiscrimination is very important as it applies to all countries regardless of their social, cultural and religious norms and laws, and whether they do or don’t allow relations outside marriage. PWD should not be burdened with more conservative morals than others. During AHC3 and AHC4 some delegations suggested a prohibition on forced sterilization. The phrase “to retain their fertility” should be added in 2(a) before the words “and experience parenthood”. This is very important to PWD. Discrimination occurs in this area, and the convention should explicitly protect against that.
Libyan Arab Jamahiriya proposed deleting (a). The concept it contains has not been agreed to by nations before now. If (a) is kept, it should be amended to read “legitimate marriage relations” and the word “sexuality” should be deleted. In addition, (f) should be deleted.
The EU supported the WG text for the chapeau of 2 and (a). The text should state that PWD should not be denied experiencing their sexuality and having sexual relationships with any other person. Referring to nondiscrimination and equal treatment would meet the concerns expressed by other countries on this subject. The EU proposed language based on Articles 23.2 and 23.3 of the ICCPR for 2(b), and rewording the text to read “that women with disabilities who are of marriageable age to marry, and to found a family on the basis of full and free consent of the intending spouses, shall be recognized.”
Qatar proposed to delete (a) and amend (b) as Jordan expressed.
Norway proposed deleting “experience parenthood” in (a) because that was better covered under (c), or in the alternative following Australia ’s proposal.
Canada stated that this article, and (a) in particular, was not meant to change policies and laws within states, but instead to ensure equality of opportunity for PWD to experience parenthood, intimate relations and sexuality. Therefore “on an equal basis” should be added to the chapeau, which would cover all the subparagraphs in this article, and ease concerns about morals. Also, the WG text on (a) should be retained. The word “sexuality” should not be deleted or confined only to marriage. The text of Rule 9 of the Standard Rules would resolve the issues regarding (a). Paragraph (b) should be harmonized with Article 23 of the ICCPR. Finally, the concept of combating stereotypes about marriage and parenthood is contained in Article 5, and therefore (f) can be deleted.
The United States supported protecting the rights of PWD and promoting respect for families. Article 14 should be split, and should include just two subparagraphs: “The right of men and women with disabilities of marriageable age to marry shall be recognized and no marriage entered into without full and free consent of the intended spouses,” and next, PWD shall have “the right to decide on the number and spacing of children on equal basis as others, and to have access to family planning information and the means necessary to enable them to exercise their rights.”
Nigeria stated that Australia ’s proposal deserved further study, and that “in accordance with national law, custom and tradition” should be added.
Kenya stated that adding “on equal basis with others” to the chapeau would address the concern of many delegations. The words “in accordance with the laws, customs, and practice of each country” should be added. This will ensure equality rather than be seen to be encouraging rampant sex.
Bahrain supported the deletion of (a) because it was insensitive to cultural and religious differences. If (a) is kept, it should be within the framework of legitimate marriage.
Thailand noted that its original strategy had not worked, and instead proposed to insert “on an equal basis with others” to help cool down concerns. It supported importing the concept as stated in Rule 9 of the Standard Rules, with the minor change that the phrase “PWD are not discriminated against on the basis of their disability” be added. If that’s not enough, delegates can add “in accordance with law and customs.” But the first two steps should suffice.
that the Standard Rules are not agreed upon, so should not be quoted.
Instead, the Rules are meant to provide guidance, which countries may
use or ignore as they see fit.
noted that the Standard rules were adopted by consensus.
Honduras suggested that in 2(a), the text could refer to the right to reproduction or procreation.
Egypt supported the deletion of (a). There are different cultural and legal systems involved, and these have to be taken into consideration so the convention is acceptable to all. Egypt supports Syria ’s position on the Standard Rules.
The Coordinator summed up by stating that the delegates were not going to agree at this stage . No country has proposed that PWD be treated differently than anyone else vis a vis matters in (a) and (b). There has been a long discussion about different cultural approaches. No country suggested that any particular culture or religion should be adopted, but rather that differences should be respected. That’s a clearly accepted fundamental proposition.
There was consensus that PWD should be treated equally within the framework of each country’s culture and religion. That’s important, because the reality is that every country does or has treated PWD differently in these areas. The Coordinator’s report will summarize this discussion and identify that there was general agreement on this point.
The Coordinator then adjourned the morning session.
ARTICLE 14 BIS: THE HOME AND THE FAMILY (continued)
The Coordinator began the afternoon session by inviting comments on the chapeau, (a), and (b) of 14 bis. This article is not meant to pressure countries to change their customs or traditions. There was consensus that there should be no discrimination in this area based on disability.
The Russian Federation stated that the WG chapeau is acceptable. As the EU and other delegations suggested, the wording of (b) should be as close as possible to the Article 23 of the ICCPR.
India supported text that reflected that PWD have the right to marriage and parenthood on an equal basis as others, and in accordance with national laws and customs.
Singapore supported Australia ’s proposal to insert the concept of equal opportunity. The chapeau text should include “in accordance with national law” to demonstrate sensitivity to different national norms.
Yemen supported this addition to the chapeau, especially in light of its proposal to delete (a), which defeats consensus by insinuating that there can be sex outside of marriage.
The Coordinator noted that the addition of “in accordance with national laws” would not resolve (a) because the paragraph’s content was troublesome. Also, making a right subject to national law risks absolving states from the obligation in 14.2 to treat PWD no differently from others.
Japan suggested avoiding prescriptive language in (a), because that approach was divisive. Instead, the text should simply afford PWD the same rights as others. Japan is flexible as to exact wording, but (a) should not be deleted. Or, as China suggested, “on an equal basis with others” should be added to the chapeau.
The Coordinator noted Japan ’s proposal from AHC 4 “that sexuality of PWD should be respected on an equal basis with others.” (Also at http://www.un.org/esa/socdev/enable/rights/ahc4japan.htm)
Iran supported the U.S. proposal on 2(a) and 2(b), and the insertion of “on an equal basis with others” in the chapeau. The real problem in 2(a) and 2(b) is that the text sets standards, instead of simply stating that PWD should be treated equally. To avoid problems, general wording should be used rather than the term “sexuality.”
The Holy See supported splitting 14. It also supports Jordan ’s language for (b) in 14 bis, proposes to delete (a) and (f), and expresses reservations about language in (c). The convention should not create new rights, but rather preserve the rights of PWD on an equal basis with others.
The Coordinator stated that this introduced another approach, which is to state in 14 bis or elsewhere that the convention did not intend to extend rights to PWD which are not of general application in this area, or to alter existing standards with regard to such matters.
stated that the convention was not meant to make moral judgments about
sexuality. Delegates must consider that cultural practices, and sometimes
even religion, are some of the sources of discrimination against PWD.
This convention is meant to address practical problems faced by PWD,
who are denied rights available to others.
Costa Rica stated that the text should guarantee equal rights for PWD in accordance with national legislation.
The EU stated that PWD should not be deprived of experiencing their sexuality on an equal basis with others. Some people, including PWD, experience their sexuality outside marriage, and the rights guaranteed in this convention must extend to them.
New Zealand stated that delegates should consider two recent documents which were agreed to by consensus. The 1995 Beijing platform on the rights of women states that women should have the right to decide freely about their sexuality. The Cairo Program for Action which resulted from the international conference on population in 1994, states in 7.2 that reproductive health requires that people have a satisfying sex life, the capacity to reproduce, and the capability to decide if, when, and how often to do so. That was reaffirmed by the U.N. a year ago by consensus. It also noted that the Doha declaration is a controversial document that was not agreed to by consensus, not all countries were invited to attend, and they did not all take part in its creation.
Syria asserted that the language New Zealand referenced from the Beijing or Beijing Plus Five documents were formulated in the context of commitments to health and extends to three paragraphs. If this language is to be referenced in this Convention all 3 paragraphs should be cited
urged delegates to bear in mind that when suggesting rights should be
granted in accordance with national law, that if there is a conflict
between national and international law, the latter prevails.
Egypt supported the concept that PWD should share the same rights as others. However, some of the delegates’ comments stretched the interpretation of international documents.
Jordan supported Syria ’s point that text from the Beijing documents should be quoted within its context, but that would make the convention very long. It supported the United States ’ text because it is brief.
The Coordinator summed up the discussion by noting that there was general support for Australia ’s proposal to insert “on an equal basis with others” in the chapeau. There was general agreement that there was no intent to comment upon general rules, customs or laws that apply to populations at large, and some delegations proposed adding language to ensure that action taken per 14 bis should be in accordance with national law and culture. Consensus on (a) may be possible by substituting less explicit language, because there was no disagreement with the underlying point. The U.S. proposal to use a more general formula was supported by some delegations. Some wanted to delete (a), but others thought it necessary to include because PWD have faced discrimination in this area.
Some delegations supported Jordan ’s proposal to add to (b) “and that husband and wife shall be equal partners.” Several delegations supported using the language of ICCPR Article 23, to reflect that the right of all men and women with disabilities who are of marriageable age to marry and to found a family shall be recognized, and that no marriage shall be entered into without the full and free consent of the intending spouses.
The EU proposed using “the right of all men and women with disabilities who are of marriageable age to marry and to found a family on the basis of full and free consent of the intending spouses, shall be recognized.”
The Coordinator noted that the EU’s proposal incorporated the elements of the WG text.
Jordan found both the ICCPR and the EU’s language acceptable.
Iran stated that the ICCPR language was good, and that the EU’s proposal improved it.
The Coordinator noted that there was general agreement with the EU’s proposal.
supported the EU’s proposal but suggested clarifying the language
so that discrimination on the basis of the disability of either or both
spouses would be barred.
agreed with Uganda ’s suggestion. He asked for comments on (c),
(d), and (e). Paragraph (c) protects the right of PWD to decide on the
number and spacing of their children, and footnote 48 clarifies that
this right does not challenge national laws that limit the size of families.
Paragraph (d) grants PWD the same right to guardianship as others, and
(e) ensures that a child will not be separated from parents on the basis
India supported all three paragraphs, but suggested adding an element on counseling.
Serbia and Montenegro
supported (c), but suggested that it should protect reproductive rights.
It endorsed the EU’s proposal to make (d) a separate paragraph
3 but suggested that the second to last line should use “PWD”
rather than “disabled people.” It supported the EU’s
proposal to make (e) a separate paragraph 4.
Yemen also supported (c). However, it noted that adoption is not allowed under Islam, and this made the words “adoption” and “trusteeship” problematic in (d). It proposed to resolve this problem by using language from the CRC, which refers to adoption in those countries which have that right. It proposed replacing in (e) “on the basis either directly or indirectly of their disability” with “disability of either parent.”
The Coordinator agreed that some countries don’t recognize adoption and suggested that delegates consider language in CEDAW 16.1(f) to resolve this problem, which discusses wardship, trusteeship, adoption, or similar institutions where these concepts exist in national legislation.
Uganda supported (c) but suggested deletion of “on an equal basis with other persons” since this was already included in the chapeau.
The EU proposed that text regarding the elimination of discrimination against PWD in marriage and family relationships, the number and spacing of children, and access to information on reproduction and family planning should all be in 14.2. The right of PWD to be biological or adoptive parents should be in 14.3 because that addresses the relationship between parents and children. The prohibition on separating children from parents on the basis of disability should be in 14.4. As to substance, (d), which would become 14.3 under this proposal, would begin with “State parties shall ensure that there is no discrimination against PWD,” and then the WG text would continue until the semicolon, after which would be inserted “the best interest of the child shall be the paramount consideration.” In (e), “directly or indirectly” should be deleted.
The Coordinator asked delegates to comment on how (e) would begin if it became a new paragraph 4.
The EU suggested beginning with “State parties shall ensure that a child shall not be separated,” and continuing with the WG text. The second sentence would state that a child shall not be separated from parents with disabilities on the basis of their disability.
The Coordinator repeated the EU’s proposal to make (d) a new paragraph 3, and (e) a new paragraph 4. Also, (d) would be changed to reflect that the best interest of the child shall be the paramount consideration, and “directly or indirectly” would be deleted from (e).
Australia supported the concepts in (c), (d) and (e). It supports the EU’s proposal to add to (e) that the best interest of the child should be the paramount consideration, and this concept should also be added to (d). The language in (e) should be clarified to read “that no child shall be separated from his or her parents on basis of disability of either the child or one or both of the parents, except in accordance with appropriate law and where it is in the best interest of the child.”
supported the EU’s proposal but expressed concern that (c) might
endorse abortion, which Colombia cannot support.
The Coordinator proposed inserting “permitted with national law” to clarify that there was no intent to interfere with generally applicable standards, laws and mores.
Colombia responded it could be flexible if (c) explicitly stated that it must be in accordance with the law.
Brazil supported the WG text for (c), (d), and (e), and placing a special emphasis on the need to have a reference on adoption in (d).
New Zealand supported the WG text on (c). Earlier it had proposed additional language for (a), which might go into (c), which would guarantee the retention of fertility. Alternately text could be borrowed from the Cairo Program for Action, which refers to retaining the capability of fertility. Either way, the concept should not be lost. It supports the EU’s proposal to make (d) and (e) separate paragraphs 3 and 4, and (d) should include that the interest of the child is paramount. In (e), after “applicable laws and procedures” add “and subject to judicial review.” Australia ’s proposal for the last sentence of (e) should be changed slightly to read that a child shall not be separated from its parents on the basis of the disability of either the child or one or both of the parents.
The Coordinator asked New Zealand where in (c) it proposed to insert language about retaining reproductive capability.
New Zealand stated that this language fits best in (a), which addresses reproductive opportunity, rather than (c), which discusses rights. The concept of retaining reproductive capacity should not be lost.
Zambia supported the WG text for (c), (d), and (e). The chapeau should state that PWD shall enjoy rights and opportunities equal to others. It cannot support India ’s proposal that (c) should include the provision of counseling services, and can only accept this addition if the text makes clear that the counseling is strictly voluntary.
The Holy See expressed concern that (c) goes beyond ICCPR language and seems to be creating new rights. It proposes deleting the language that follows “and to have access to.”
Japan supported the content of (c), (d), and (e). It proposes to explicitly link the concept of trusteeship in (d) with legal capacity by adding “according to provisions of Article 9.” It supports the EU’s proposal to delete the words “directly or indirectly” from (e) to make sure that there is no difference among articles in this regard. It is flexible about the structural changes proposed by the EU, and supports inclusion of the concept that the paramount consideration be the best interest of the child.
Canada stated it had no major concerns with (c), (d), and (e). It agrees with using the WG text for (c) because (c) contains important concepts that should be retained as written. It is flexible about turning (d) into a new paragraph. It should include the “best interest of the child” language as proposed by the EU, which comes from CEDAW 16.1(f). It is flexible about making (e) a separate paragraph, and supports the EU’s amendment to remove the reference to a child not being separated “directly or indirectly”. It supports the proposal to clarify that a child shall not be separated from its parents on the basis of the disability of the child or either or both parents. It does not support Australia ’s proposal to add “in accordance with appropriate law” to that language, because that concept is already included in the beginning of (e), which is the appropriate place for it.
Thailand supported (c), (d), and (e) as drafted by the WG, with the clarifying language in (e) about the disability of the child and/or one or both parents. The WG text for (c) is acceptable.
stated that to be acceptable, (c) must contain the two concepts “on
an equal basis with others,” and “in accordance with existing
national legislation.” Footnote 49 of the WG text states that
attention should be paid to the phrase “to provide appropriate
assistance” in (d), because that language had many implications.
That language is not acceptable. Finally, the principle that the best
interest of the child is paramount should apply to the entire article,
and there should be no exceptions permitted.
Jordan supported the Holy See’s suggestion to delete the last two lines of (c). Yemen ’s proposal to resolve the concern regarding adoption by using language from the CRC is good. The convention should use language from footnote 50 of the WG text because it is positive language. The issue of children with disabilities is addressed in Article16, so it can be deleted here. It proposed merging (d) and (e), which both relate to children, into a new paragraph 3.
Kenya supported the WG version of (c). Also, protection against forced sterilization must be included in the convention. It supports New Zealand ’s more positive formulation, retention of fertility. It supports the WG text for (d). In (e), the principle of the best interest of the child has been used in the past to take away children from parents with disabilities. The text must require competent authorities to consider the subjective reality of parents with disabilities when deciding whether to remove children from parents, perhaps by listening to PWD or advocacy groups. Paragraph (e) should be clarified to cover the disability of the child and either or both parents. Language on separation of children from parents should address temporary separation, which should be periodically assessed so children are not removed permanently.
The Coordinator stated that Kenya had identified the problem in (e): that the second sentence, which bars separation of a child from its parents on the basis of their disability, overrides the first sentence. It currently reads that even if a competent authority deems separation to be in the best interest of the child, the decision can’t be based on disability. The language proposed by Australia appears to permit removal to happen. This should be clarified.
Australia said it had not intended to imply that an authority be permitted to consider disability when determining the best interest of the child. PWD should face the same test as others.
Costa Rica agreed with Australia that the best interest of the child was paramount, but that disability should not be a consideration.
The Russian Federation was flexible about structure. It noted that several delegations have expressed doubt about the last part of (c), which states that PWD shall have the right to have the necessary means to exercise their rights. It is flexible about deleting this language. It is more precise to state that PWD have the right to the means necessary to exercise those rights. It supports the concept that the determination for separation in (e) be subject to judicial review, but noted that administrative review should also be mentioned as an alternative. Language such as “procedures established by law” might be used to include both methods. The ending of (e) could run counter to the main content of (e). The text barring actions taken on the basis of disability is not effective because judges who base decisions on the best interest of the child could consider a person’s inability to function, and it would be important for the court to understand the degree of disability. These rights will be governed by the CRC. In (e), it supports the replacement of “directly or indirectly” with “on the basis of their disability, as such;” however it prefers to delete this part of (e). The convention should repeat the CRC’s important element regarding the best interest of the child. In Russia, a parent with a health problem might be limited in his or her parental right, so disability might be considered when deciding whether to remove a child. To avoid this conflict, the text should make reference to accordance with national legislation. Also, reference to the best interest of the child might be problematic because adoption covers persons who are not necessarily children.
The Coordinator asked the Russian Federation to repeat the language in its proposal for (c).
The Russian Federation proposed changing (c) to read “and to the means necessary to enable them to exercise these rights.”
The Coordinator confirmed the Russian Federation ’s proposal.
Uganda supported (e), but proposed that the principle of prioritizing the best interest of the child be strengthened by inserting from footnote 50 that “States Parties shall render appropriate assistance to parents with disabilities to enable their children to live with them.” Some delegations think this will be expensive, but separating a child may be even more expensive.
Syria supported the amendment for (c) proposed by Colombia , the Holy See, and Costa Rica . It also supports the inclusion of a reference to the best interest of the child in (d), as well as Yemen ’s proposal regarding adoption. Language in (e) needs to be changed to eliminate the contradiction between the first and second part of the paragraph, and (e) should contain the concept that separation should be temporary and regularly reviewed to avoid arbitrary decisions.
The Coordinator noted that the language on adoption is from 16.1(f) of CEDAW: “….adoption of children, or similar institutions….”
Syria said that this language from CEDAW appeared to resolve the issue.
that the convention must protect the rights of PWD but also make clear
that the rights of children are paramount. In (d), the words “and
responsibilities” should be inserted after “rights,”
to bring the text into conformity with CEDAW 16.1(f). The words “directly
or indirectly” should be deleted from (e).
The Coordinator said he did not know why the word “responsibilities” wasn’t reproduced in (e).
Mexico supported New Zealand ’s proposal to include the right to preserve fertility in (c). The words “directly or indirectly” should be eliminated from (e). It supports the concept that a child should only be separated from its parents subsequent to a judicial procedure, and never on the basis of disability.
New Zealand proposed inserting into (a) “and the equal opportunity to retain their fertility.” Paragraph (e) should bar separation of a child from its parents on the basis of disability; the only legitimate reason should be a demonstrated inability to care for the child appropriately. Even in that circumstance, states should help parents care for their children before resorting to removal.
Yemen proposed adding after the words adoption and guardianship “in countries that adopt any of these systems.” The words “directly or indirectly” should be deleted from (e). Disability should not be the only criterion for separating a child from its parents, but it can be part of other reasons.
The Coordinator noted that there was consensus that disability should not be the basis for separation of a child from its parents. Regarding the concern that some countries don’t recognize adoption, Syria ’s proposal to add the words “where these concepts exist in national legislation” may resolve the issue.
Thailand stated that it would not accept separation of children on the basis of disability.
Jamaica proposed that the text be clarified to require states to provide assistance to help parents with disabilities raise biological as well as adopted children. Assistance need not necessarily be financial, it can also take the form of support services. Paragraph (f) should be moved to Article 5, which addresses combating stereotypes. The text in (a) should be reworked to refer to established national norms, as it now gives the impression of supporting unrestricted libido.
The Coordinator stated that there was no consensus on (a), because some considered it too explicit, so it should be worked on during intersession. Work on 14.2(c), (d), and (e) will be concluded tomorrow.
The session was adjourned.
The Fifth Ad Hoc Committee
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