Back to: Fifth Session of the Ad Hoc Committee
Summaries of the Fifth Session
Daily summary of discussion at the fifth session
31 January 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, #6
January 31, 2005
ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE (continued)
The Coordinator continued with a discussion of 12.2 of the facilitator’s text: “States Parties shall also take all appropriate measures to prevent violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their caregivers, including through the provision of information and education on how to avoid, recognize and report instances of (violence and abuse) above.” He noted that this text builds in the WG text as well as proposals from consultations of states.
Luxembourg, on behalf of the European Union (EU) requested that its proposed redrafting of 12.2 (http://www.un.org/esa/socdev/enable/rights/ahc5eu.htm) be considered.
The Coordinator suggested dealing with the EU proposal, along with those of Mexico and NZ, after the discussion of Article 12. At that time it will be necessary to consider the overlap between Articles 10, 11 and 12.
The EU agreed on this approach as long as its proposal is submitted to the AHC.
The Coordinator concluded the discussion of 12.2 noting that its language is generally agreed upon apart from the issue of family and caregivers, which will be identified in the report as requiring further discussion. Paragraph 12.3 includes generic language covering issues that have already been identified elsewhere, and on which some formal consultation has already taken place. The Coordinator invited comments on 12.4 of the Facilitators text: “States Parties shall ensure that all facilities and programs, both public and private, where persons with disabilities are placed together, separate from others, live or access services, are effectively monitored in coordination with civil society by independent authorities, which include persons with disabilities and which make monitoring reports available to the public in order to prevent the occurrence of violence or abuse.” This language is similar to 12.4 of the WG text.
New Zealand recommended that the sentence “where PWD are placed together separate from others, live and access services” should be replaced with “where PWD live or access services separate from the general population, these facilities and programs are effectively monitored”. This para would then more clearly apply to the situation of PWD living separately from the general population and accessing services that are not mainstream services. It is in such situations that abuse of PWD is most likely, when they are out of sight from the rest of the population. Also the proposed new language makes clear that this is not just about segregated situations, but about how and where people live, accessing services in the same way the rest of the population would, but out of sight from others.
Canada recommended a broader approach towards monitoring, so that it covers situations where PWD receive and access services as well, in anticipation of Article 15 (Living Independently). In this regard it proposed as an alternative International Disability Caucus language for this Article, which in paragraph (f) will “ensure that facilities and programs, both public and private, where PWD live or receive services, are effectively monitored.” http://www.un.org/esa/socdev/enable/rights/ahc5docs/ahc5idcaucus.doc
The Coordinator recapitulated the two proposals from NZ and Canada to change 12.4.
Morocco stressed the importance of regularity in monitoring and proposed inserting the term “regularly” before “effectively monitored”.
The EU noted that 12.4 also deals with prevention, and therefore the two other forms of violence, namely “abduction” and “harassment”, in 12.4 of the WG text, should also be added to the list in the Facilitator text.
The Coordinator reminded the EU that the general proposition in 12.1 preventing the various types of violence and abuse would apply to subsequent paragraphs dealing with specific situations as in 12.4.
Uganda pointed out that the formulation of 12.4 reinforces institutionalization and segregation, when in fact such language should be avoided. Services given to PWD must be monitored wherever they may be. The expression “placed together, separate from others” should be removed and the following language should be used: ”states parties shall ensure that facilities and programs, both public and private, where PWD live or access services, are effectively monitored.”
The Coordinator pointed out that this proposal is very similar to Canada’s, covering all situations where PWD live or access services, not just situations where they access services separate from the general population. He asked for comments on the scope of coverage which is a key element of 12.4.
Serbia and Montenegro supported Canada and its proposal that all cases of services provided to PWD should be monitored. The regularity of monitoring, as proposed by Morocco, is a good element. With regard to the EU language, it would be appropriate to say “above mentioned” or “all forms” of violence and abuse instead of going into a list that cannot be exhaustive.
Costa Rica noted that the right to human development is relevant. Two proposals were put forward:  to take out “separate from others” from the text as it is superfluous,  to add that PWD should be involved in programs at those places to their maximum benefit and development.
The Coordinator noted that this is another proposal to delete the “separate from others” element from the facilitator text. The development issue might be addressed later when in reference to education. Morocco has also raised the point to have “regular” as well as “effective” monitoring. There has been a lot of support for broadening the scope of 12.4 so that it covers all situations where PWD live and receive services, not only situations where they receive and access services separate from others.
Jordan supported the Canadian proposal to broaden the terms in 12.4 and to keep the mechanics of monitoring to Article 25 on monitoring. It noted that monitoring implies regularity.
Thailand supported the Canadian proposal to broaden the scope. Violence and abuse can occur to PWD in separate or integrated settings of services, and although the historical evidence shows that separate services are more at risk of violence and abuse, there is no guarantee that violence could not occur in other settings. In order to be effectively monitored, there is a need to look into all types of settings and services.
New Zealand pointed out that monitoring of support services is more appropriately covered elsewhere, though it did not object to its inclusion here. It highlighted that this article is about violence and abuse, and this focus should not be lost. It recalled that the WG thought it important to focus on abuse in those places where it is more likely to happen, which tends to be the more institutional-style services. 12.6 of the WG and facilitator’s text deals with identification and reporting of instances of violence and abuse in all situations. What the WG was particularly trying to address in 12.4, however, was those situations where members of the general population were often not able to observe or experience the services themselves. It is in such situations that, historically, a lot of the abuse in service system has occurred. With regard to 12.4 and the Canadian wording, therefore, it is necessary to define the limits of the places where PWD live together. The Canadian delegation obviously does not mean for this language to apply to situations where, for example, a PWD goes to a bank and utilizes its services. It is obvious that the wording of 12.4 goes beyond its intent. If the wording is broadened as Canada proposed, there is a need to make a particular reference to more institutional settings where PWD live and access services separately from others.
The Coordinator pointed out the qualifying language of 12.4 which says “State Parties shall ensure that all facilities and programs”. This language only applies to facilities and programs, and it probably is not unlimited in its scope.
Liechtenstein questioned, in light of NZ’s comments, its own position in support of previous speakers to delete the elements of “are placed together and separate from others”. However, as NZ just mentioned, it raises the question of where the limits of monitoring are, and specifically of monitoring in coordination with civil society. It is questionable “whether monitoring would be appropriate in schools where PWD may attend classes together with non-disabled students.” It should be first qualified what monitoring means.
Thailand suggested keeping the Canadian proposal with the additional language ”especially those in separate settings from the general public”, or: “paying particular attention to those separate from the general public”. This would address the valid concerns expressed by New Zealand while also drawing attention to the fact that PWD face violence and abuse where they live or access services with the general public.
Yemen supported references to the civil society involvement in monitoring, which should be done in both separate and/or integrated settings. It supported Morocco’s proposal to insert “regularly.”
Republic of Korea understood the purpose of the Canadian proposal, to broaden 12.4 to all areas where violence and abuse can occur. However the purpose of 12.4 is to focus on situations where PWD have historically been subject to the most violence and abuse. Therefore it supported maintaining the WG text with the amendment to 12.4 proposed by Thailand.
Canada shared NZ concern about the need to define the limits of those places and services, and recalled the particular emphasis of the WG to find appropriate wording to ensure that this paragraph does not cover banks and such facilities.
The EU supported NZ idea of limiting monitoring to situations where PWD are particularly exposed to the threat of violence.
The Coordinator concluded that there was clear support for a specific requirement for monitoring in situations where PWD are at particular risk. There was also support for effective and regular monitoring. The only issue is the scope of 12.4. There was a Canadian proposal to broaden the scope to “all situations where PWD are living or accessing services”. There were also some reservations about the broadening given by the discussion that had taken place at the WG, and also the need to ensure that this paragraph does not cover situations where PWD are accessing facilities that are open to the general public, such as banks. It should be possible to find language that covers this aspect and those interested in this issue were invited to meet with the facilitator. Attention was also drawn to the fact that 12.4 starting with the language: “States Parties shall ensure that all facilities and programs, both public and private, where PWD live or access services”, as proposed by Canada, does not mean that wherever PWD live or access services, monitoring shall be required. It may be agreed that the inclusion “all facilities and programs, both public and private”, is of itself sufficient qualification to resolve a part of the discussion.
Honduras agreed that monitoring should be regular and effective by independent authorities in coordination with civil society.
The Coordinator invited comments on Article 12.5 on rehabilitation of PWD following the unfortunate situation where they may have been victims of violence or abuse. The facilitator’s text, and particularly the second sentence, is more comprehensive in its coverage: “Where persons with disabilities are victims of any form of violence or abuse, States Parties shall take all appropriate measures to promote their physical and psychological recovery, rehabilitation and social reintegration including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, self respect, dignity and autonomy of the person.”
Philippines proposed rephrasing 12.5. to read: “States Parties shall take all appropriate measures to promote physical and psychological recovery, rehabilitation and social integration of PWD who are victims of any form of violence and abuse. Such recovery and reintegration shall take place in an environment that fosters the health, self respect, worth, dignity and autonomy of the person.”
The Coordinator clarified that there was no substantive change only a reordering of the first sentence, and inserting the word “worth” after dignity.
Israel suggested adding “cognitive” before physical and psychological recovery, and “welfare” before “self respect” to the second sentence.
The Coordinator read out 12.5 with changes from Israel and the Philippines: “Such recovery and reintegration shall take place in an environment that fosters the health and welfare, self respect, dignity, worth and autonomy of the person.” Since this language was acceptable, he invited comments on 12.6 of the facilitator’s text, requiring “states parties to put in place effective policies and legislation to ensure that instances of violence and abuse against PWD are identified, investigated and, where appropriate, prosecuted and that protection services are available in such cases.” The WG text has different wording, although the overall thrust is similar.
The EU supported the facilitator’s text as it stands.
Honduras expressed concern that states should legislate first and then put in place effective policies, so the order should be inversed.
The Coordinator pointed out that there might be situations where states already have legislation in place.
Trinidad and Tobago supported the facilitator’s text, but said a provision on “follow up” must be included to guarantee that the persons affected are not left alone.
Jordan suggested inserting a notion about “prevention” to make 12.6 more dynamic, although prevention is already mentioned in 12.2.
The Coordinator noted that 12.2 also deals with prevention, and monitoring in 12.4 is also related to prevention.
Yemen called for a reference to legislation even if it is assumed that some states have existing legislation. The Convention should obligate states to draft such legislation to ensure identification, investigation and prosecution. It supports Jordan ’s proposal to insert “prevention”.
Israel supported inserting “prevented” so that it reads: “against PWD are prevented, identified and investigated.”
The Coordinator drew attention to the structure of Article 12, which follows the WG text. 12.1 is a general obligation to “take the appropriate … measures” The subsequent articles include specific examples and provisions: 12.2 is a prevention provision; 12.4 deals with situations where PWD are at particular risk when accessing services in facilities and programs; 12.5 says that if there in fact is violence or abuse, measures need to be taken to help with recovery; 12.6 requires states to prosecute persons who committed violence and abuse against PWD. There is a cascade and overall structure from general to specific provisions. Thus, it may be considered inappropriate to reintroduce the element of prevention in 12.6.
Kenya suggested broadening the text to include redress and remedies. The text is currently limited only to prosecution. The term “judicial involvement” in 12.6 of the WG text, is wider.
The Coordinator proposed to add “and, as appropriate, judicial involvement.” after “protection services are available in such cases”, as found in the WG text.
Russian Federation supported 12.6 as it stands and opposed adding “prevention” because this is already covered in 12.1 and 12. It contains a complete process of investigation and prosecution of persons who are involved in instances of violence and abuse against PWD. As for the Kenyan proposal, the word “prosecute” already implies that the case will be brought to trial.
Yemen reiterated the importance of legislation as 12.6 refers to judicial measures that require judicial bodies and States Parties to ensure appropriate follow up. “Prevention” should precede identification, investigation and prosecution and follow up.
The Coordinator noted an overall support for having 12.6 in the text. There were proposals for a logical reordering so that “legislation” precedes “effective policies”. There is also a Kenyan proposal to insert the words found at the end of the WG text on judicial involvement. Three delegations spoke in support for including “prevention”, one spoke against, and they were requested to confer. The question of “follow up” is probably already covered in 12.6 and is also generally in the Article on monitoring.
Discussion was then opened on 12.1(bis) – 12.1(quin) of the Facilitator text, to address the proposals raised by the EU on forced / medical interventions. The Coordinatorrecalled the discussion on 11.2. It was agreed then that forced interventions or institutionalization aimed at correcting, improving or alleviating any impairment shall be prohibited. The EU and NZ were invited to elaborate on their proposals.
The EU said there must be a provision within this Convention on special interventions for PWD unable to express their consent. There must also be a means for such individuals to express informed and free consent, such as a third party supporting and representing the interests of the disabled person. However, there is a possible risk of abuse, and therefore it is necessary to insert applicable legal guarantees, like an independently designated authority and a provision ensuring best interests of PWD. In the cases of imminent danger to the life or health of PWD, PWD must be given a chance – even when they are unable to express consent themselves - to access immediate intervention in the interests of their health or personal integrity. Any decision taken in such cases must be circumscribed by legal guarantees to protect the individual.
The Coordinator clarified with the EU that its proposal deals only with forced interventions and not institutionalization. He also enquired whether the EU’s proposed text is reflected in the current facilitator text for 12.1(bis) through 12.1(quin):
“12.1(bis) In particular, States Parties shall protect persons with disabilities from all forms of medical or related interventions, (inter alia sterilization or abortion) carried out without the free and informed consent of the person concerned. All such interventions shall be illegal, except as provided for in subparagraphs (1ter) to (1quat) below.
12.1(ter) Where a person lacks the capacity to give or withhold informed consent, an intervention may only be carried out where the consent of his or her legal representative or a competent court or authority has been obtained prior to the intervention.
12.1(quat) This shall not prejudice any such intervention necessary to prevent an imminent danger to the life or health of the person concerned or to the life or safety of others.
12.1(quin) All such interventions shall be carried out in the best interest of the person concerned, in accordance with the procedures established by law and with the application of appropriate legal safeguards.”
The EU noted that the facilitator text is not a word for word reproduction of its text. Sterilization and abortion were not, for example, in the EU text. It preferred if its own text could be considered. (at http://www.un.org/esa/socdev/enable/rights/ahc5eu.htm)
The Coordinator enquired as to the EU’s suggested placement of its language - whether it would be part of Article 12 or in a separate article. He noted that forced interventions is now dealt with in 11.2, when it was considered, and in 12.2.
The EU wanted to deal with these issues in a separate paragraph under Article 11 that deals with torture.
New Zealand explained that its proposed language on Article 12 was based on the need to deal with medical and related intervention requiring consent in a separate article. (http://www.un.org/esa/socdev/enable/rights/ahc5newzealand.htm). With regards to the EU’s proposed language for Article 12, it would support 12.1(bis) with the addition of “corrective surgery and all forms of experimentation” as is found in the NZ proposal and in the WG text of Article 11. The other subparagraphs should also be placed in a separate article. This is because these issues keep coming up in other articles as well and what ties them all together is the central issue of consent and non-consent. In this regard perhaps it is more appropriate to refer to “nonconsensual” treatment, replacing various other terms that have been used so far, like “involuntary” and “forced.” It pointed out that the safeguards in the EU’s proposed text are missing some important concepts:  things need to be done in the “least restrictive environment”;  a recognition and acknowledgement that “treating someone against their will does do damage,” therefore should be minimized, and alternatives should be sought. NZ reflected on the EU’s rationale for its proposed text, which in NZ’s understanding was dealing with situations where the PWD would “wish to benefit” from certain interventions, but would be unable to express that wish, and therefore 3 rd parties might be needed in order to express that wish. However this is a different situation from the much wider problem of PWD who do not wish to benefit from an intervention, in fact do not see medical interventions as a benefit, and it is these situations that have been the subject of discussions so far.
The Coordinator recalled Article 11.2 of the WG text, and delegations’ general agreement to its language that “States Parties shall protect PWD from forced interventions aimed at correcting, improving or alleviating any actual or perceived impairment.” There are two different scenarios:  when intervention is aimed at correcting disability, as in the language in 11.2;  when a PWD has a medical condition not related to the disability, and the intervention is aimed at the medical condition and not the disability. In that situation it may occur that because of the disability, the person may not be able to consent to that intervention. It is necessary to keep these distinctions in mind as the latter scenario is not what is at issue at here. It is important for delegations to keep these differences in mind.
The EU corrected its previous position and clarified that it does not want to deal with medical interventions in Article 11 on torture, but in a separate article. Article 11 should not be weakened. In response to NZ’s intervention, the EU believes that any PWD that is to be the subject of an intervention must be informed and must be given a chance, to the maximum extent possible, to express their consent. Violence and abuse arises when PWD are unable to express their consent, not even partially.
Serbia and Montenegro agreed with the EU and NZ that forced interventions and informed consent should be in a separate article. Forced institutionalization would be best placed in Article 10 since that deals with deprivation of liberty. So as to avoid overlap with other articles, Article 11 should only retain its 1 st para. Paras 1 and 2 of NZ’s proposed Article 12(bis) on informed consent should be combined with paras 1(bis) through (quin) of the Facilitator’s text of Article 12. The concept of “least restrictive environment” from the NZ text needs to be incorporated into the facilitator’s text.
Australia supported a separate article. The concepts of torture or cruel or degrading punishment have their own meaning and jurisprudence. The possible redrafting as proposed by Serbia and Montenegro would be also relevant. Regarding consent and forced interventions, there seems to be an assumption in the previous discussion that the person has not consented at all or would not consent, and this assumption is unsafe. It seems the core of the issue and discussion is not forced, but arbitrary intervention that is done simply on the basis that the person has a disability. Then it allows us to distinguish whether what is done during the intervention is appropriate for the person and whether it is in their best interests.
Costa Rica pointed out the difference between medical interventions that relate directly to the disability, and interventions related to medical practice in general. The discussed issue refers to the latter, and relates also to the right to health.
Thailand remained committed to keep 11.2 as such, as “forced interventions and institutionalization aimed at..” should not be tolerated. However, the issue brought up here has nothing to do with forced intervention. It deals with the right to health and should appear in Article 21. If a person is in need of medical intervention and wishes to express his or her consent, it has nothing to do with forced intervention, and should not be included in Articles 11 or 12.
Liechtenstein recommended dealing with interventions in a separate article. It may be appropriate to look at this issue in terms of equality and the right to physical integrity of the person, which is a right that every other person enjoys as well. Everybody also enjoys the right that there should not be any intervention without the free and informed consent. It is necessary to ensure this right to PWD. However, the question arises how PWD can express their consent, which leads back to the issue legal capacity and assistance in exercising that right, and there must be a coherence between these articles. If a PWD is not able to express his or her wish, being in a coma or where in an imminent danger, national legislations usually would allow for interventions in such cases. It may be more effective to focus on the issue of consent and how to express it than on forced interventions.
Japan addressed the placement of the treatment. In some cases forced interventions and institutionalization may constitute torture, as Thailand pointed out. However, given the OHCHR statement, if there is no involvement of an agent of state, it is not interpreted as torture in international human rights law. The proposal for a separate article or separate paragraph on informed consent was supported. With regard to the EU’s formulation on free and informed consent, there might be some differences among states. In Japan , the system of free and informed consent requires the doctor to endeavor to the maximum extent possible to get the free and informed consent. It takes into account that in some cases like terminal cancer, the information provided for the patient may discourage the person to live longer, and discretion of the doctor is preferable. It is necessary to ensure equal treatment of all persons and to list particular examples for general illustration.
The Coordinator pointed out that the last point raised by Thailand goes back to the equality point addressed by Liechtenstein , that persons with and without disability should not be treated differently in situations of medical decisions when patients are not fully informed.
New Zealand repeated that there are two different medical interventions, as it was pointed out by the Coordinator. First, the interventions aimed at correcting an impairment. Second, the general medical interventions that should be based on the same rules that apply to others. The current discussion is on how PWD can express consent, as addressed by Article 9 on recognition before the law and legal capacity. However, there is a third issue, that the WG was trying to cover in Articles 11 and 12, concerning the forced institutionalization, treatment of people with mental illness or sterilization of PWD. These are medical procedures that do not ordinarily happen to people without disability. As Liechtenstein has pointed out, there is a risk of diluting this third issue, by covering it up with language about ordinary medical procedures. From NZ point of view, this is about whether consent has been gained, and therefore this issue should be dealt with separately.
The Coordinator noted a general support for dealing with this issue in a separate paragraph. However, this will not resolve its underlying substantive and philosophical aspects.
Yemen supported NZ intervention. PWD can be sterilized because of the disability but with the person’s consent. However they must be entitled to have a family and private life.
Russian Federation proposed resolving this matter by relocating 12.1(bis), (ter), (quat) and (quin) into a separate article. It reiterated this issue should be considered separately from Article 11, which contains different references to torture. The idea underlying these paragraphs is on the right track and should be the basis for discussion for a separate article.
Serbia and Montenegro stressed two points that should be included:  arbitrary interventions as mentioned by Australia , and  reaffirming the right to integrity of PWD, as pointed out by Liechtenstein.
Norway reiterated its support for separate article and Liechtenstein ’s position that this issue is about the right to physical integrity not different from any other person. However, there are times when consent cannot be expressed, and there must an opening for such situations, coupled with strong regulation on the national level.
Canada agreed on a separate article and echoed points made by Liechtenstein , particularly on equal access to health care when dealing with medical intervention. It was underlined that the EU and NZ texts deal with very different issues: The EU addresses the support required to exercise capacity, which was dealt with in Article 9. It also addresses a very important issue of equal access to health care and making sure PWD are not deprived of access to necessary medical intervention because they are not able to consent in the same way as other persons. The NZ draft text deals with situations when PWD are directly opposing a treatment, a forced medical intervention against their will. Regarding the NZ proposal of 12.5, (http://www.un.org/esa/socdev/enable/rights/ahc5newzealand.htm) any involuntary treatment against PWD should be done for a therapeutic purpose. NZ has used the term “best interests of the person”, however, “a therapeutic purpose” would be more specific.
Trinidad and Tobago noted that d elegations from different legal backgrounds are trying to come up with a general provision on forced institutionalization and intervention. Since the Convention against torture already makes clear this is a form of torture, perhaps this can be left out.
The Coordinator drew attention to Article 21 Right to Health and Rehabilitation. 21(j) deals with free and informed consent to health and rehabilitation services, and 21(k) refers to unwanted medical and related interventions and corrective surgeries imposed on PWD.
The Holy See supported the EU language, specifically 12.1(bis), (ter) and (quat). 12.1(quat) that reaffirms the importance of medical interventions aimed at preserving the life and health of PWD. However it cannot endorse, and sought further explanation of, the EU language of 12.1(quin) of the “best interest of the person”. Further, the language of 12.1(quat) should be inserted whenever the subject of interventions and free and informed consent is discussed, such as in 11.2, 21 (j) and 21(k).
Thailand recalled that this is a matter of equality and should be dealt with in Article 21 on health. The matter of forced interventions aimed at correcting an impairment is not related to the issue of medical interventions needed by persons with or without disability, and thus should be placed in Article 21.
Israel explained that forced intervention should not only be circumscribed at the medical level, but also be prohibited on the social and family level, like moving children from families with disabilities because of the disability or not allowing PWD to adopt children, which are also forms of forced interventions. There should be a separate article on forced interventions covering the social sphere as well.
The Coordinator summed up the general view that the issue of forced interventions should be covered in this convention, and that it should be dealt with in a separate article. There are sub elements to this issue, like equality, but that does not resolve the issue of prohibiting interventions aimed solely at disability. Two proposals have been put forward, from the EU and NZ, and NZ has indicated its flexibility about using the text proposed by the EU, with the additional element of corrective surgery, which was missing from the EU text.
New Zealand clarified that it was basing its comments on the facilitator’s text. If the EU text is used in this discussion then a reference to “sterilization” should also be added. In addition it suggested dealing with issues around lack of capacity in Article 9, and issues around general medical procedures that would apply to all persons in Article 21 on health. The matter of corrective surgery aimed at disability should be included in 12.1(bis).
The Coordinator suggested using the facilitator’s text for further reworking since it is very close to the EU text and includes sterilization and abortion, as proposed by NZ. He invited comments on 12.1(bis): “In particular, States Parties shall protect persons with disabilities from all forms of medical or related interventions, (including inter alia sterilization or abortion) carried out without the free and informed consent of the person concerned. All such interventions shall be illegal, except as provided for in subparagraphs (1ter) to (1quat) below”
Serbia and Montenegro proposed inserting Liechtenstein ’s opening: “States Parties reaffirm the integrity of PWD” into this paragraph.
The Coordinator asked whether the second sentence of 12.1(bis) should still be included once the opening principle that will be drafted by Liechtenstein is inserted.
Costa Rica would need to further consider its position regarding the bracketed text on abortion and sterilization, because abortion in Costa Rica is prohibited.
Japan proposed changing wording on “without the free and informed consent” to “consistent with the law including provisions of free and informed consent “. This would accommodate general situations.
China agreed with Costa Rica and proposed deleting “including inter alia sterilization and abortion.”
Uganda agreed with the Coordinator to delete the second sentence of 12.1(bis) and go straight to 12.1(ter) to say ” provided where the person lacks the capacity to give…..” It proposed adding “removal of organs” to the phrase “including, inter alia sterilization and abortion.” PWD need to be protected against involuntary removal of organs.
New Zealand reiterated that 12.1(ter) is a restatement of issues covered in Article 9.
Argentina preferred to have no examples in 12.1(bis) which should read “all forms of medical or related interventions carried out without the free and informed consent of the person concerned” to avoid a long list.
China supported the view of Argentina that there is no need to create a list in 12.1(bis).
Yemen supported keeping sterilization in this paragraph given that this is a widespread problem. Second, 12.1(bis) should end with “the person concerned”; the rest, concerning illegality of such involuntary interventions, is redundant.
The Coordinator emphasized that this Convention does not intend to address general situations on issues like sterilization, abortion or number of children of a family. Its purpose is to ensure that PWD are not treated differently from the general population. If a society does not allow abortion then PWD would not be subject to abortion. If countries do allow abortion, than PWD should not be subjected to abortion without their free and informed consent. As a way of moving forward the Coordinator recommended deleting these references in 12.1(bis), for reconsideration further down [remainder not recorded].
The session was adjourned.
ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE (cont)
The Coordinator summarized the status of negotiations on medical interventions that had taken place in the morning session based on the facilitator’s text for Article 12 drawing on the EU (http://www.un.org/esa/socdev/enable/rights/ahc5eu.htm) and New Zealand (http://www.un.org/esa/socdev/enable/rights/ahc5newzealand.htm) proposed texts. Article 12.1(bis) in the Facilitator text now reads: “In particular, States Parties shall protect persons with disabilities from all forms of medical or related interventions, (including inter alia sterilization or abortion) carried out without the free and informed consent of the person concerned. All such interventions shall be illegal, except as provided for in subparagraphs (1ter) to (1quat) below”. Proposed new amendments adding “sterilization” and “abortion” is opposed by some delegations because they raise issues that extend beyond the scope of this convention. These issues should be examined in a generic manner without prejudicing the stance of some delegations. There is a degree of support for deleting the second sentence. Following consultation with other delegations Liechtenstein has proposed inserting more generic language, dealing with the integrity of a person, which is also a general principle.
Liechtenstein explained the phrase “integrity of a person” is a tricky issue so perhaps it should be referred to as “right to integrity,“ a concept implicit to many human rights conventions, however not explicit in UN conventions. There are regional instruments citing this right, such as most recently found in the Human Rights Charter of the European Union. It proposed the following additional language to the beginning of 12.1(bis) “States Parties shall take all appropriate measures to protect the integrity of PWD, on a basis of equality with others, and shall in particular protect them from all forms of medical or related interventions…..”.
The Coordinator sought clarification from Liechtenstein whether its proposed text to “protect the integrity of PWD” reflects the language of the Charter or whether that language specifies the type of integrity.
Liechtenstein explained that Human Rights Charter of the European Union refers to “mental and physical integrity”. Both elements could be retained in this Article keeping in mind that the concept of mental integrity could lead to debate. Lichtenstein remains flexible on the exact phrasing of this concept of integrity.
The Coordinator referred delegations to the Charter for comparable language. However language on mental integrity may entail a right to intervene - though the EU Human Rights Charter does understand integrity this way - and therefore such language should be approached with caution. Its inclusion should not undermine the aims of this convention.
Liechtenstein clarified that the instrument it was citing was not the European Convention of Human Rights at the Council of Europe but the Charter of Fundamental Rights of the European Union adopted in 2000.
The Coordinator proceeded with consideration of 12.1(bis), including Liechtenstein’s proposal. He recommended that bracketed language on “abortion” and “sterilization” be moved to subsequent paragraphs for further consideration, and the second sentence, “All such interventions shall be illegal, except...” be removed.
Luxembourg,on behalf of the European Union (EU) agreed on deleting these terms noting the need to avoid an exhaustive listing of all situations to which PWD might be subject. The EU would like to further consider Liechtenstein‘s proposed language on integrity.
Chile agreed on the need to delete the bracketed additional language on “abortion” and “sterilization” in 12.1(1bis) so as to avoid too much detail. The reference in the second sentence that “involuntary interventions shall be illegal” should be retained. The rest of the sentence should be deleted so as to avoid any confusing assumptions that exceptions are permitted. When considering informed consent, there should always be an expression of the will of the PWD, even if expressed by a 3 rd party.
The Coordinator further modified 12.1(1bis) to account for Japan’s concern that the right to consent does not apply to PWD if it does not apply to people without disabilities. So it now refers to States taking “all appropriate measures to protect the integrity of PWD on a basis of equality with others”.
Uganda expressed concern about the terms “sterilization” and “abortion” being left out. These are medical interventions that PWD have been forced to undergo. Uganda is flexible on whether this issue is moved elsewhere in the Convention but believes there must be this recognition of reproductive rights.
The Coordinator agreed with Uganda and recommended that perhaps these references be moved elsewhere. Sterilization and abortion will be addressed later in the convention.
Colombia asked Coordinator to explain the word integrity to them, as in Spanish it might mean something that is not intended to mean here. The word might entail a reference to integration as well as integrity. The Coordinator noted that the terms “mental” and “physical” may help if inserted as qualifiers on the term integrity, although it may raise new issues, and forwarded this issue to the translators.
Liechtenstein cited Article 3 of the EU charter of Fundamental Rights, which is titled “Right to Integrity of The Person” without qualifying integrity. The text of this article describes every person has the right to mental and physical integrity without qualification. To clarify, the word in contention in Spanish deals with integrity, not integration.
The Coordinator explained thatintegrity entails the right to be free from being invaded or intruded upon. Expanding on this definition or reading of the word may be problematic. Maybe using the language “states parties shall take all appropriate measures to protect the right to integrity of the person, of persons with disabilities” would help clarify. It’s wordier than the original text but using the title from EU charter helps convey the desired understanding of integrity. This is a conceptual issue that will be dealt with in more detail later in the meeting.
Yemen objected to including a reference to integrity as this concept has a wide meaning, applicable to all articles, and can be abstract in fields such as in medicine.
Serbia and Montenegro agreed with the EU’s proposed language, specifically the addition of the concept of integrity, but remains flexible regarding its inclusion. It recommends that the second sentence in is most current formulation: “All such interventions should be illegal” be deleted as it causes interpretation problems. If this sentence, stating a broad rule, is retained, then there is no logical case for the subsequent paragraphs stating the exceptions. Otherwise the sentence should revert to its original formulation in the Facilitator’s text: “All such interventions shall be illegal except as provided for in subparagraphs (1ter) to (1quat) below”.
Cuba preferred using the phrase “take all appropriate measures to protect the integrity of PWD” and to avoid qualifications which can hinder clarity. The language should get to the heart of the matter and refer to the protection of the integrity of PWD. The EU convention’s reference to protecting rights of these persons is too rhetorical, so simply “protecting integrity” is better.
Russian Federationagreed with Serbia and Montenegro with regard to the second sentence of 12.1(1bis). The phrase “integrity of the person” may lead to linguistic problems in the Russian text which uses the same word to denote “security“ in Article 10, and “integrity” in Article 12. These are two distinct concepts. Security is referred to in the International Covenant on Civil and Political Rights (ICCPR).
The Coordinator noted that translators will have to clarify this matter which should not be confused.
Canada agreed with the introductory sentence of the EU formulation but agreed with Serbia and Montenegro with regard to the “right to integrity to PWD” and “person” being used twice. Medical interventions, such as references to abortions, sterilization, should not be listed. It agreed with Serbia and Montenegro’s position regarding the second sentence of 12.1(1bis).
New Zealand supported the way the language in the chapeau and (1bis) was developing. It suggested several additional drafting changes to 12.1: to delete 12.1(1ter) of the facilitator text; to retain 12.1(1quat) as it improves on the NZ text; and to utilize NZ text for 12.1(1quin) because it offers more safeguards.
The Coordinator noted opposition to the reference to a “right to integrity” and to repeating “person” twice as was in his original formulation. He suggested a reformulation: “States Parties shall take all appropriate measures to protect the integrity of PWD on a basis of equality with others, and shall in particular…” The second sentence of 12.1(1bis): should be deleted entirely from the facilitator text. To simply keep the second sentence as “All such interventions shall be illegal” was causing interpretation problems given the content of the subsequent paragraphs, covering exceptions. With only the first sentence in 1bis a statement of the general rule still exists followed by the paragraphs outlining exceptions. He invited comments on 12.1(1ter).
Canada asserted that 12.1(1ter) is redundant as it is already addressed in Article 9 on the capacity to consent including with the need for assistance of another person. It is
also addressed in 12.5(a) of the NZ proposal on legal safeguards before a procedure. http://www.un.org/esa/socdev/enable/rights/ahc5newzealand.htm
The Coordinator noted that Article 9 allows, in limited circumstances, for assistance to be provided to so that PWD can exercise their legal capacity. It enquired whether Canada believed that a personal representative could assist in making such decisions.
Canada explained that the current draft of Article 9 contemplates a continuum of support from the least required to exercise capacity to very much support required or needed. For some delegations, the “very much” end of the continuum of support is called substitute decision making. Therefore the issue of a personal representative in 12.1(1ter) is already articulated elsewhere in the convention.
Thailand was of the opinion that 12.1(1ter) is already covered in Article 9, and should be deleted.
The Coordinator asked if there is any delegation that wishes to retain 12.1(1ter).
Singapore preferred to retain 12.1(1ter) because it is a distinct issue relevant to special situations such as medical interventions. If a special rule is established then special exceptions such as in 12.1(1ter) need to be explained.
The Coordinator asked Singapore to explain how the concept is not included in Article 9 and that Article’s reference to the need for assistance to act.
Singapore would study this difference in greater detail but felt more comfortable with an explicit rule for specific situations.
The Coordinator noted the rule in Article 9 specifying legal representation might be needed to offer support to PWD to make decisions, such as decisions dealing with medical interventions. He enquired whether delegations saw a need to provide for this again in 1(1ter).
EU recommended this paragraph be retained for further review given the importance of the medical interventions issue and the Canadian proposal to delete it.
Mexico agreed with the Canadian delegation that the provisions in Article 9 fully cover these actions, specifically that the will of the person could be expressed by a 3 rd party.
Trinidad and Tobago agreed that these issues have been covered in Article 9.
Norway highlighted that the provisions in Article 9 recognize issues in criminal and civil terms, whereas in 12.1(1ter) there is sole recognition of civil terms with specific mention of the need for consent and protection. Keeping (1ter) also provides a useful reminder of the protection and consent that is needed.
China proposed retaining the paragraphs because they require careful studying.
Costa Rica agreed with many delegations that 12.1(1ter) should be deleted because its issues are covered in Article 9; however it is flexible on this point if other delegations feel strongly about its retention. In order to avoid the same lengthy debates as in Article 9 on the issue of PWD needing assistance to exercise their rights, perhaps the word “ability” rather than “capacity” in 12.1(1ter) should be used.
Russian Federation preferred to retain 12.1(1ter) as it is useful in this context, regardless of whether it is covered in Article 9.
Yemen sought coordinator assistance for an explanation of the text of 12.1(ter).
Kenya asked that “we should not reinvent the wheel,” as many hours have already been spent discussing the term “capacity to act” in Article 9. Delegations don’t seem to be disagreeing on principles, so 12.1(1ter) should be deleted they are covered in Article 9.
The Coordinator explained the discussion on legal capacity in Article 9 centered on an agreement that PWD have legal capacity but could lack the capacity to act, for example when in a coma. The rules which apply in Article 9 would apply here as well with regard to the need for assistance during medical interventions when capacity to act is lacking. Repeating this point is duplicative and perhaps contrary to the paradigm shift sought with this convention. By continually reinforcing the need for assistance the idea that PWD lack capacity is also reinforced. There is no argument regarding the substance of exercising consent. There is no disagreement on the issue of consent in situations where, for example, a person in a coma needs an appendectomy, and cannot himself render consent. The Coordinators Report will reflect the division of ideologies among delegations, as it is unlikely that an agreement will be reached at this stage.
New Zealand concurred with Kenya stating “we do not want to reinvent wheel, but we also don’t want to invent a different sized wheel.” Dealing with the capacity to act in two places with sufficiently different wording may lead to confusion. This issue should be dealt with in Article 9.
Colombia recommended deleting 12.1(1ter) because it is fully covered in Article 9 and explained in 21(j) and 21(k). The heading for each article may also be causing confusion because some issues appear as though they could be covered in various places.
The Coordinator stated that the difference in views concerning the retention of 12.1(ter) will be reflected in the Coordinator Report. The Committee will revisit this issue when there is a sense of the Convention as a whole. The WG took a minimalist approach on this issue. Reiterating on different occasions a “right to intervene or force things on PWD” may be inconsistent with that desired approach.
Cuba agreed with Colombia, Costa Rica, and Mexico regarding 12.1(1ter), that capacity to act has already been covered in Articles 9 and 21. If delegations agree that reiteration is needed then it would be permissible.
The Coordinator invited comments on 12.1(1quat): “this shall not prejudice any such interventions necessary to prevent an imminent danger to the life or health of the person concerned or to the life or safety of others.” The Coordinator noted it is unclear how the latter situation could arise.
Thailand commented on 12.1(1ter) relating to 12.1(1quat). The underlying approach in this convention is:  To strengthen the idea of equality of rights, capacity, and dignity of PWD. This idea therefore bears repeating, and its duplication is a positive asset.  To ensure that, in those exceptional cases where PWD do not have the capacity to act, disability is not the sole basis for the exception. The inability to act could happen to anyone. Thailand noted that by reiterating exceptions to the capacity to act, a link is established between disability and inability to express one’s free and informed consent. This contradicts the focus of this convention; instead the rights, capacity and dignity of PWD should be reinforced.
Liechtenstein questioned the value of this paragraph. It seems to focus on situations when consent cannot be offered because of imminent danger. If action must be taken to save a life, there is no particular difference between PWD and other people, so one wonders why this specific reference is needed. The standard asserted here is not the same as other countries legal systems.
The Coordinator cautioned that the prevention of imminent risk to the life of others (for example, the rights of an unborn child perhaps) is a broad issue and could raise a whole other set of issues. There is no general rule, applicable to all persons, including person without disabilities, preventing interventions. Therefore there is no need for exceptions to be spelled out to such rules. Agreeing with Liechtenstein, the Coordinator noted that PWD are subject to the same rules dealing with imminent danger as are all other people. Costa Rica agreed that 12.1(1quat) was more difficult to understand than defend.
Singapore proposed an alternative explanation of 12.1(1quat) from that suggested by the Coordinator. In certain public health situations, when action must be taken, those actions should not have anything to do with a person’s disability. PWD should not be distinguished from other members of society. To be consistent with this point there should be a mention of life, health, or safety of others.
Jamaica opposed inclusion of 12.1(1quat). Systems and procedures are already in place to protect public health, eg in situations of infectious diseases. Exceptions need to be addressed, but there are other places in this draft convention where they have been addressed. When dealing with exceptions, it must be done with caution so as not to keep adding examples of interventions that would permitted without consent.
The Coordinator noted that 12.1(1quat) raised complex issues, creating more problems than solutions for some delegations. By stating the general rule that PWD would not be subject to forced interventions and then stating all the exceptions to that rule may cause problems for PWD.
Japan cautioned that elaborating on 12.1(bis) should not lead to the creation of a separate standard for PWD. If 12.1(quat) is deleted “there would be no general setting for general rules that permit exceptions”. Such a general rule exists in 12.1(bis), in relation to interventions carried out without the free and informed consent of persons. The legal impact of the relationship between paragraphs 12.1(1bis) and 12.1(1quat) need to be considered they need to be extensively re-worded. Japan agrees with Lichtenstein that “imminence of danger to the life or health…” is a concept that should be interpreted as a general standard that applies to all people.
The Coordinator noted these are difficult philosophical and legal concepts. The Coordinator’s Report will reflect these unresolved issues to be revisited later. He invited comments on 12.1(1quin) starting with New Zealand, which had proposed alternative language.
New Zealand recommended inclusion of paragraphs 4 and 5 of its proposed new Article12(bis) into 12.1(1quin), referring to “active promotion of alternatives rather than involuntary treatment.”
Thailand asserted that the link between 12.1(1quin) and the second half of 12.1(1bis) should be highlighted. Language in 12.1(1bis) that “all such involuntary interventions shall be illegal, except …” should be followed by language from 12.1(quin) “…which are carried for the best interest of the person concerned.” The exact drafting is not clear, but this concept should be added to 12.1(bis).
The Coordinator informed Thailand that this language in the second sentence of 12.1(1bis) has now been deleted.
Canada suggested an alternative wording for 12.1(1quin): “all such interventions shall only be carried out for therapeutic interest in accordance with procedures established by law with appropriate legal safeguards.” The “best interest” concept in the current wording of the 12.1(1quin) has historically entailed decisions being made on behalf of a PWD as an objective test of actions done to PWD, whereas therapeutic interest entails the personal self-assessment of PWD.
The Coordinator suggested a combination of the “therapeutic” and “best interest” concepts could be incorporated.
Jamaica proposed replacing 12.1(1ter), (1quat), and (1quin) with the wording: “cases where medical emergencies or public health issues involve PWD, they should be treated on equal basis with others.” PWD should not be singled out.
The Coordinator enquired if the Jamaican proposal’s encapsulation of the equality concept offers a solution. As this convention is attempting to facilitate equality for PWD, they should be treated on a basis of equality with persons without disabilities.
New Zealand was open to rewording portions of its proposed text in Article 12(bis) dealing with “best interest” (http://www.un.org/esa/socdev/enable/rights/ahc5newzealand.htm) in order to address delegations’ concerns that the phrase was paternalistic.
Thailand believed Jamaica’s proposal speaks to the substance of its own approach.
The Coordinator invited Jamaica to draft suggestions for facilitator and suggested the NZ proposal be further examined. Issues of sterilization, abortion, and organ removal have been of particular concern for PWD because it has been a practice in some instances. Delegations seeking specific language on these issues should do so in a way that does not prejudice the position of those countries where such actions are prohibited. One way to do this would be on the basis of equality where national law permits.
Chile asserted that a reference to sterilization and abortion should be treated as an integral part to Article 14, as it deals with PWD’s right to have families.
The Coordinator noted that the Chilean approach addresses this right in a positive manner rather than negatively, prohibiting abortion and sterilization. He enquired whether delegations would support this position. The issue of the forcible removal of organs remains. This issue may already be covered under the existing provisions on forced interventions. Delegations could reflect further on that.
If medical interventions are going to be dealt with in a separate article, and Article11.2 dealing with medical interventions is therefore to be deleted, then there is a need to ensure that all of the elements that have now been agreed to in 11.2 should not be lost. Perhaps this provision: “shall prohibit and protect PWD from medical or scientific experimentation without the free and informed consent of the person concerned and shall protect PWD from forced interventions aimed at correcting, improving, or alleviating any actual or perceived impairment” could be moved entirely to the new article on forced interventions. The Coordinator noted general agreement to this suggestion. The Coordinator then concluded this discussion on what could constitute Article 12(bis) on medical interventions.
Syrian Arab Republic enquired when the remaining paragraphs of the Facilitators text for this Article - 12.3, 12.4, 12.5, and 12.6 - will be discussed.
The Coordinator clarified that they were all discussed in considerable detail in the morning session except for 12.3. Its provisions on “the vulnerability of PWD in situations of emergency, inter alia during armed conflicts or foreign occupation” have arisen earlier in the Convention text, does not only apply just to Article 12, and accordingly the approach towards this provision would need to be a generic one. Consultations among interested delegates about how to solve this particular issue continue.
Syrian Arab Republic requested that until an agreement has been reached, this paragraph should remain in the facilitator’s text in brackets.
The Coordinator acknowledged the importance of this issue to several delegations, noting that it had arisen previously in the context of Article 8 on the right to life, at which point an additional sentence was included to cover this issue. The Coordinator assured Syria that this issue will be clearly identified in the Report as one needing further negotiation in the context of Article 12 as well.
Yemen emphasized that sterilization on the basis of disability should be prohibited. This is a denial of a disabled person’s right to a family. Perhaps this issue is best suited for Article 14. Sterilization is linked to both the right to health and the right to family. Abortion is related to religious, moral and ethical issues. In Islam for example, abortion is only permissible before the fetus is considered to be alive, following that time it is considered murder. It also requires clear and informed consent from both parents.
The Coordinator recalled that Chile had also suggested these issues be dealt with in the context of Article 14 on the right to family.
Russian Federation asked for clarification on the proposal to delete 11. 2 move it to the article on forced intervention.
The Coordinator explained there is a proposal to deal with forced intervention in a new Article 12(bis).
Russian Federation reserved its position on the content of 11.2 and Article 12 (bis) in the interests of moving the process forward.
The Coordinator noted that Article 12(bis) is a fluid proposal and most open to negotiation. Delegations will need to reflect considerably on it during the intersessional period between AHC 5 and AHC 6. Delegations should be aware that this is an unformed Article and may reserve their positions on this accordingly. Only the concepts simply need to be articulated there.
ARTICLE 13: FREEDOM OF EXPRESSION AND OPINION AND ACCESS TO INFORMATION
The Coordinator noted that a number of amendments have been proposed to restructure Article 13 in the WG text. Many delegations have called for a stronger affirmation in the chapeau of the general right before getting into detail of what the right entails. There are issues regarding language - like the reference to official or public information, and the absolute obligation of government to ensure that this information would be provided - that need to be resolved. This should be one of the least complex, least problematic articles, though it is detailed.
The Facilitator’s formulation of the chapeau reads: “States Parties shall take appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion and to seek, receive and impart information on an equal basis with others and through appropriate modes of communication of their choice, including sign languages and augmentative and alternative means of communication, including by:”
(a) “taking appropriate steps to provide official public info to PWD, in a timely manner and without additional cost and in accessible formats and technologies appropriate to different kinds of disabilities.”
Thailand pointed out that the facilitator’s language in the chapeau is stronger than the WG text. It enquired why the reference to Braille has been removed.
The Coordinator explained that Braille was deleted from the facilitator text because it augments other languages, whereas Sign is a separate language. Delegations may return this reference to the text given that it is of paramount importance to people who are visually impaired.
New Zealandsupported the WG text’s articulation of this important civil and political right. While its language does not correspond to a specific right in the ICCPR or CRC, those conventions do routinely refer to “all appropriate measures.“ Accordingly, the word “all” should be added to “appropriate measures” in the chapeau. The reference at the beginning of 13(a) on “taking appropriate steps” is therefore unnecessary. It explained that the reason NZ had, in AHC 4, proposed the reference in the chapeau to “including sign languages and alternative and augmentative means of communication” was a reflection of its understanding of the difference between sign languages and augmentative means of communication.
Yemen called for stronger language obligating states. Braille may have been deleted because there are more technologically advanced ways to teach the visually impaired, but for some the pencil and Braille are the only means available to read and write, and therefore should be included.
The Coordinator noted that several delegations have recommended Braille be reinserted.
Honduras suggested that the reference to “choice“ of modes of communication should be replaced with “as required” or “as necessary”, assigning more weight to this right.
Serbia and Montenegro noted that PWD have been deprived of this fundamental right to expression and so stronger language is welcomed in the chapeau of the facilitator text. Braille is a crucial tool for the visually impaired to express ideas and therefore should be mentioned explicitly. As suggested by NZ “all appropriate measures” should be used.
The Coordinator enquired if there was any opposition to the insertion of Braille; there were no objections.
Thailand supported including sign language because it enjoys an equivalent status to spoken language. Braille is a method of communication, like other augmentative or alternative means but has enjoyed higher status because it has been a part of historical and cultural development. It shares a similar semantic and grammatical value as spoken language, and has evolved with “blindness sub-culture.” It should therefore, be retained. Braille is fundamental to promoting literacy and it cannot be replaced by audio technology. Audio technology can be alternative means to receive information but it cannot replace Braille with regards to expression.
EU supported the chapeau of Article 13, specifically its references to concepts of choice, modalities, and alternative means of communication, and to “official public information” 13(a).
Israel supported the inclusion of Braille. There is a need to add or change the last sentence to include a specific reference to assistive technology. Assistive devices offer ways to access computers and are not an augmentative form of communication. The wording in the last sentence of 13(a), referring to “different kinds” of disabilities, should be replaced with “different levels” of disabilities.
Namibia emphasized the importance of retaining 13(a) “…. providing official public information to persons with disabilities, in a timely manner and without additional cost and in accessible formats and technologies appropriate to different kinds of disabilities;” even though there had been a suggestion in AHC 4 that this provision be deleted. It recommended adding the phrase “on request” to this provision. PWD have the right to access to information at the same time as other people. This may not necessarily be in “a timely manner” but it should be contemporaneously and on an equal basis with others. PWD should not receive public information later than everybody else.
Costa Rica proposed to replace “seek to impart” or “share” information in the chapeau with the term “disseminate,” which is a broader concept leading to the right to information. Further examination of the difference between modes or means of communication is needed. Braille should be included. The right to information cannot be guaranteed if this article only deals with official public information rather than all information available to the public.
The Coordinator suggested using the term “impart” instead of “disseminate” because the former follows language in other human rights instruments. Braille will be included. NZ’s proposal to add “all” appropriate measures in the first line of the chapeau, following language in ICCPR and other conventions, will be added. Honduras suggested “appropriate modes of communication as necessary,“ and as there has been no comment to the contrary it will be inserted as well. The Coordinator asked Israel for an explanation for its proposal to add “assistive devices” in this article, when this is referred to in other articles, particularly on Accessibility.
Israel explained that “assistive devices” should be included with provisions that deal with both communication and mobility because they enable PWD to carry out these functions. Without “assistive devices the provision would not include the full range of communication and the necessary support to make communication possible for PWD, eg, devices to access computers.
Thailand pointed out that while assistive devices enjoy general recognition in mobility and communication, the word “device” suggests an architectural environment. The more frequently used term in the area of communication is “technology”, eg, as in ICT – Information and Communication Technology. It remains flexible on its inclusion in the chapeau and suggests placement in other articles, such as Article 19. The substance of 13(a) focuses on means and modes of communication, and “taking appropriate steps” should be deleted because this is provided for in the chapeau. There should be no qualifier on public information, therefore the term “official” should be deleted. PWD should have access to the same information that the general public enjoys access to.
The Coordinator suggested that the recommendation to include assistive technologies be discussed in relation to 13(d), which deals specifically with technology.
EU recommended that the order of terms in the second half of the chapeau describing “… appropriate modes of communication of their choice, including sign languages ….” be reversed. Sign language in some countries is more than “a mode” of communication. The new order of the terms should be: “…. Braille; sign language, and other modes of communication of their choice.” The phrase “as necessary“ after “appropriate modes of communication” should revert to the facilitator’s language because communication should be a matter of free choice among PWD. Assistive devices as a “means of communication” is a loaded concept. Assistive devices have more to do with access and should be dealt with in the Article on Access.
The Coordinator cited precedent in the CRC on the matter of choice, which refers to “the media of the child’s choice” rather than necessity.Regarding the order of terms the EU and other interested parties should consult with the facilitator on what is primarily a drafting rather than substantive issue.
Serbia and Montenegro pointed out that assistive technology should not only be viewed in light of built or physical environments and therefore should be addressed in the article dealing with access. Israel has assured that assistive devices are significant tools to access environments to communication and movement, and Serbia Montenegro has no opposition to including it in this article.
The Coordinator highlighted proposed amendments so far to 13(a). The suggested qualifying opening language, that states should “Take appropriate steps to provide public information…”, should instead say “Take steps…” The qualifier “official” with reference to public information should be deleted, but the question of private entities’ obligation remains. This is a policy issue rather than a substantive one.
Thailand recommended the following order of languages in the chapeau: sign language should come first because of its status as a separate language followed by Braille and others.
Canada supported Thailand’s position on ordering in the latter half of the chapeau, with an additional amendment to reflect Article 19 of the ICCPR and Article13 of the CRC, replacing “and” with “including.” The second part of the chapeau should read: “…..right to freedom of expression and opinion including the freedom to seek, receive and impart …. ” This will ensure that such rights are guaranteed to all, and apply to PWD as well. Namibia’s concerns about including the phrase “timely manner” could be assuaged by adding “on an equal basis with others.”
The Coordinator pointed out that there may be practical issues that must be accounted for as some forms of information may take longer to create and provide for PWD in accessible formats.
The Session was adjourned.
The Fifth Ad Hoc Committee
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