Back to: Fifth Session of the Ad Hoc Committee
Summaries of the Fifth Session
Daily summary of discussion at the fifth session
3 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, #9
February 3, 2005
ARTICLE 14 (bis): THE HOME AND THE FAMILY (continued)
El Salvador supported Colombia ’s proposal to add “in accordance with national legislation” to (c). It also supported the bar on removal of a child from its parents on the basis of the disability of the child or one or both parents, and stated that the best interest of the child must be respected.
Australia referred to Article 10 on deprivation of liberty to comment on 14.2(d). It proposed that children should not be separated from their families arbitrarily, the interest of the child must be paramount, any such removal must be in accordance with the law, and in no case should the existence of a disability justify removal of a child from its family. This wording will resolve confusion over whether the disability at issue is the child’s or the parent’s, and the wording from Article 10 is apt here.
Luxembourg on behalf of the European Union (hereinafter the EU) stated that it wished to make three points that arose from the previous day’s discussion. First, it opposes inserting the word “sterilization” in 14.2. Second, it opposes insertion of “responsibilities” in the convention, because this is a human rights convention, and therefore pertains to rights, not obligations. Third, the best interest of the child should be paramount regardless of whether the context is adoption, guardianship, or trusteeship, because what matters is protecting the child.
The Coordinator asked whether the EU opposed the concept that PWD have the right to retain their fertility, or if it objected to its inclusion in 14 bis.
The EU responded that it supported the wording of the WG, that PWD should have the same right as others to decide on the number and spacing of their children. It is also important that PWD have access to information on family planning, and ways and means to exercise these rights. But for now it cannot accept any specific language that has been proposed.
The Coordinator thanked the EU for clarifying that it opposed the concept of forced sterilization, but preferred to use the WG text regarding this topic.
Uganda proposed barring forced sterilization, abortion, and removal of organs. PWD have had forced abortions and involuntary removal of their organs, and this issue should be addressed in the convention.
The Coordinator agreed that this was an important topic that belonged in the convention. It might have fit in 11.2, or in a new article 11 bis on forced interventions. This subject should be flagged in the report so it is not forgotten. There was a high level of support for barring forced sterilization, abortion, and removal of organs of PWD on the basis that they have disabilities. No one objected to that principle; the question is where it best fits in the convention. Organ removal does not fit in this article, but it would fit well in Article 12 (bis) on free and informed consent.
The Coordinator summarized the discussion on 14.2(b), (c), and (d). There was a structural proposal from the EU to make (d) and (e) separate paragraphs. No one objected, so there appears to be general agreement. There were several proposals to clarify that (c) was not intended to alter or prejudice government policies of general application on family planning, abortion, or similar matters. This can be resolved by inserting at the end of (c) “to the extent that these are permitted by national legislation of general application.” Text on this topic will be bracketed so delegates can reflect on the exact wording, but there were no objections to the concept. There were also no objections to the Russian Federation ’s proposal to insert “to” before “the means” in (c), which would make this clause consistent with the first part of (c).
There were no objections and much support for inserting that “the best interest of the child shall be paramount” in (e), and also for deleting “either directly or indirectly” at the end of that paragraph. There are structural issues with (e), and perhaps the 2 nd sentence should go at the beginning. There was general agreement that the best interest of the child should be paramount, and that children should not be separated from parents on the basis of disability. On the latter point, there was general agreement to modify (e) to read that “no child shall be separated from its parents on the basis of the disability of the child, or one or both of the parents.”
Another issue concerns the reference in (d) to adoption, guardianship, and similar institutions, because some countries don’t allow them. The discussion made clear that there was no intent to prejudice the countries that do not recognize these institutions. Concerned delegations should meet with the facilitator for this article to decide on appropriate wording. Finally, the issue of forced sterilization, abortion, and organ removal is of great concern and will need to be addressed in this article or elsewhere, such as 12 (bis.)
Uganda stated that the Coordinator’s summation had not covered the issue that judicial review in (e) should be broadened to include other types of review, such as administrative review. His summation had also omitted Jamaica ’s proposal that governments provide appropriate assistance to avoid the need to separate children from parents.
The Coordinator agreed that these issues had been raised, as well as proposals to add judicial review to (d) to cover removal of children from biological parents, and the provision of support for parents in (d) and (e). At least one delegation had raised the concern that states may not be able to guarantee resources to aid parents, as noted in footnote 49 of the WG text.
Yemen supported the United States ’ proposed text for 14 bis, because it provided useful language for preserving the family and the right of PWD to have families.
The Coordinator agreed that several delegations had supported the U.S. language, and it would be included in the draft report as a way to approach 14 bis.
Australia stated that consistent wording should be used throughout the convention. Therefore the text should state that a child should not be removed from its parents due to the existence of a disability, rather than “on the basis of a disability.”
The Coordinator noted that other parts of the convention had used “on the basis of disability,” but that the question of which language to use could be flagged for now.
China repeated its proposal from the previous day to add the word “responsibilities” after the word “rights” in (d), which would make (d) consistent with CEDAW Article 16. This addition was important to protect the rights of the child, which should be the paramount consideration, and there had been no objections to China ’s proposal.
The Coordinator responded that he had not included China’s proposal in his summation because there had been no support for it the previous day, and also because the EU had objected to this phrase this morning as inappropriate to include in a human rights convention. He asked China to meet with the EU to resolve this issue. He noted that the Convention on the Rights of the Child (hereinafter CRC) at Articles 5 and 18 contains language on the rights and responsibilities of parents with regard to children.
China agreed to resolve this issue informally so as not to delay the proceedings.
New Zealand asked if Jamaica’s and Uganda’s concern that states provide assistance to natural parents (in addition to adoptive parents, guardians, etc) might have been addressed by the EU’s proposal for 2(d), which under the EU’s proposal would be a new paragraph 3. The EU had proposed to delete “for the purpose of guaranteeing these rights” so the sentence would read “states parties shall render appropriate assistance to PWD in their child rearing responsibilities.”
The Coordinator responded that he had heard no opposition to the EU’s proposal. However, the proposal did not resolve the concern that states might find it difficult to guarantee resources for this purpose, as noted by one delegation and footnote 49.
The Russian Federation supported the U.S. proposal for a compact 14 bis. It also supports China ’s proposal to add the word “responsibilities” to (d), as most of (d) addresses obligations. CEDAW 16.1(f) is very relevant to this discussion.
The Coordinator expressed hope for a quick resolution on whether to add “responsibilities” to (d), and stated that his report would note support for the U.S. proposal for 14 (bis).
The United Arab Emirates proposed that the language in (d), that requires states to provide assistance help parents with disabilities care for their children, be expanded to cover persons who acquire children through adoption, guardianship, and similar institutions, by adding the phrase “and persons like them” after “parents.” Text regarding forced abortion, organ removal, and sterilization should be placed in Article 21, which addresses health and rehabilitation.
The Coordinator asked delegates not to re-open discussion on (c), (d), and (e).
Uganda noted that “appropriate assistance” in (d) meant that governments which cannot afford to render assistance to help PWD discharge their parental responsibilities need not do so. This convention recognizes that economic responsibilities are progressive, not immediate. Regarding China ’s proposal, it is generally recognized that parenthood comes with responsibilities. In many cases PWD are considered unable to be parents, and perhaps delegates should consider (d) from that perspective rather than just a rights perspective.
The Coordinator asked Uganda to consult with Costa Rica to see if the phrase “appropriate assistance” resolved Costa Rica ’s concern regarding resources.
The United States stated that it might propose ending (c) earlier in the paragraph, but had not yet decided on that.
Thailand supported New Zealand ’s proposal on how states could assist parents with disabilities, which should resolve the concern about resources.
Japan asked the Coordinator to clarify his proposal to insert at the end of (c) “to the extent permitted by national legislation of general application” to address the concerns of Arab nations which did not permit adoption. However, adoption appears in (d) rather than (c). Also, Japan had previously proposed that adoption, guardianship and similar institutions be linked to legal capacity, which is addressed in Article 9.
The Coordinator responded that he had proposed adding “consistent with national legislation of general application” to (c) to address the concern of countries whose national legislation did not permit various sorts of family planning, such as abortion. The issue in (d) is a separate one, and Japan can join other concerned delegates meeting with the facilitator to discuss (d).
India supported adding “responsibilities” in (d). Yesterday it had proposed adding to (c) the concept of counseling on family obligations, and now has specific language to offer on this issue.
The Coordinator asked India to join with the other delegations meeting separately to discuss whether to add “responsibilities” to (d). He noted that Zambia had opposed adding compulsory counseling to (c), and suggested that India meet with Zambia to resolve this issue. The Coordinator reminded delegates that his summary and report did not summarize the debate, but rather only included elements where there was general support, to narrow future discussion. He relies on delegates to work out differences bilaterally. He reminded delegates they would have an opportunity to revisit this article, as well as others. He then asked for comments on (f), which addresses perceptions and stereotypes about PWD. He asked if there were any objections to addressing the issues raised in (f) when the delegates return to Article 5, which requires states to promote positive attitudes toward PWD.
Australia believed (f) was relevant to Article 14 bis, and should be retained here or in guidelines that support the convention.
The Coordinator asked for comments on keeping (f) in 14 bis, and warned that it was dangerous to leave important elements to the convention guidelines.
The Russian Federation said it preferred keeping (f) in 14 bis, but was flexible about moving it to Article 5.
Chile supported keeping (f) in 14 bis, because society must be aware of the right of PWD to have families before PWD will be able to freely exercise that right.
The Coordinator noted that three delegations favored keeping (f) in 14 bis, and asked if anyone objected.
Costa Rica proposed moving (f) to Article 5, which addresses stereotypes, and noted that this was the approach the Coordinator had proposed with regard to other articles. However, it would not oppose keeping (f) in 14 bis.
The Coordinator proposed discussing the substance of (f) now, and deciding on its placement later.
Japan said it was not logical to address the issue of stereotypes in every article, and that although it was flexible about where to place (f), it strongly preferred addressing cross-cutting subjects in one place.
The Coordinator agreed that addressing cross-cutting issues in one place had been the approach taken to date. However, he asked delegates to limit their comments to substance rather than placement for now.
Jordan expressed support for changing all negative stereotypes about PWD, including stereotypes about the matters addressed in Article 14 bis.
Mexico expressed support for the substance of (f). However, it prefers to address prejudice and elimination of stereotypes in Article 5 rather than in every article.
The EU expressed support for asking states to take appropriate measures to change negative perceptions about PWD, but noted that states cannot ensure that attitudes would change. Therefore, it proposed that (f) be changed to read “States shall take appropriate measures to change negative perceptions and social prejudices towards sexuality, marriage and parenthood of PWD.” Although it is flexible on the placement of (f), it prefers keeping it in 14 bis.
The Coordinator noted that CEDAW requires states to take “all appropriate measures”.
Trinidad and Tobago stated that it was flexible on where (f) was placed, so long as it appears somewhere in the convention. Although Article 5 has general language about positive attitudes toward PWD, (f) is aimed directly at the family, which is the basic fabric or starting point of society, and for that reason (f) should not be discarded.
that the substance of (f) should be maintained, because it addresses
promotion of awareness and provision of information to change negative
perceptions. The word “accessible” should be added before
The Facilitator noted that (f) addresses the provision of information to the general public. He asked Namibia if it was concerned that such information be accessible to PWD or to the general public.
Namibia responded that some PWD have a negative self-image, so information should be accessible to them and as well as to the general population.
Serbia and Montenegro supported Costa Rica , Mexico , and Japan ’s position that the convention should be consistent and streamlined. However, as this is a significant issue, it is flexible as to the placement of (f). Regarding the substance of (f), it prefers the EU’s proposed language, with the Coordinator’s amendment of inserting “all” before “measures.”
Colombia supported Mexico ’s position to transfer (f) to Article 5, which should be broadened to address the elimination of prejudice in all areas covered by the convention. If this issue is addressed in both Articles 5 and 14 bis, the result might be inconsistent language.
Brazil supported the substance of (f), but preferred to place it in Article 5.
stated that the substance of (f) was critical. It noted that the language
in the chapeau of 14 bis refers to “all family relations,”
and proposed to change (f) accordingly. That way (f) would cover all
the topics addressed in 14 bis rather than be limited to sexuality,
marriage and parenthood.
The Coordinator asked whether Singapore still wanted to change the language of (f) if it was placed in Article 5.
Singapore responded that if (f) was moved to Article 5 that would obviate the need to change its language, but if it stayed in 14 bis it should cover all of that article’s topics, and therefore should use language from the chapeau.
Thailand supported Singapore ’s proposal on (f), and also agreed with Namibia that all references to provision of information should be amended to refer to accessible information, regardless of whether the information was targeted to the general population or to PWD.
The Holy See proposed adding the word “all” in 5.1(b) so it would read “combat all stereotypes and prejudices against PWD.” This would accomplish the same goal as (f), which could then be deleted. This would resolve yesterday’s concerns with the term “sexuality” and the need to respect national norms.
The Coordinator asked if the Holy See would be satisfied if (f) borrowed the phrase from the chapeau, “in all matters relating to marriage and family relations.”
The Holy See responded that it likely would be satisfied, but wanted more time to think about it.
expressed flexibility about the placement of (f). However, it opposed
the position taken by the Holy See to delete the reference in (f) to
sexuality. The word “sexuality” is broader than just sexual
intercourse, and including it in (f) would promote the view that PWD
are full human beings and members of the community. This concept should
be maintained in (f).
South Africa noted that the issues of public awareness and the provision of information to change negative perceptions against PWD were already covered in Article 5. Therefore it prefers to place (f) in Article 5, but is flexible about keeping it in 14 bis. The substance of (f) is important and should be maintained in the convention. Paragraph (f) should be amended to add the concept of public education. It had not finalized the specific language for that proposal, but its current version reads, “States shall take effective and appropriate measures to educate, promote awareness, and provide in accessible formats information aimed at changing negative perceptions, etc.”
The Coordinator stated that South Africa ’s proposal would introduce the concept of educating the public, and would include the idea of providing accessible information, because such information would be directed at both the general population and PWD, to reinforce the positive self-image of PWD.
Yemen stated that although it had previously proposed to delete (f), the language proposed by the Holy See might cause it to reconsider. The important thing is to express issues about family relations and the family in a way that is acceptable to all societies, and if that can be accomplished, Yemen would be flexible about keeping (f).
The United Arab Emirates supported Yemen and the Holy See. Paragraph (f) should be deleted, because prejudice is not limited to parenthood, but extends to education, work, and other areas. If (f) is kept in 14 bis, the convention would need to include a similar paragraph in each article. Article 5 addresses the need to change negative perceptions generally, it covers all aspects of life.
Liechtenstein stated that cross-cutting issues should be addressed in a cross-cutting article. Doing otherwise risks inconsistent language. In the previous AHC session, there had been a proposal to add “in all areas of life” at the end of 5.1(b). Now some delegates are saying that eliminating stereotypes and prejudice is especially important in this area, but that’s also true in other areas. Therefore all areas should be addressed in Article 5, and it can contain elaboration on specific areas that merit special attention such as parenthood and work.
The Coordinator summarized the discussion on 14 bis. He noted that PWD have faced great discrimination despite the existence of international conventions such as the ICCPR, CRC, and the Universal Declaration of Human Rights—all of which apply to PWD as well as everyone else. In negotiating the WG text, colleagues with disabilities wanted to reinforce that there should not be discrimination in areas where they had directly experienced it. There is no country, including New Zealand, where such prejudice and discrimination has not taken place.
As of now there is no agreement on the placement, substance, or deletion of (f). Some delegates have supported keeping (f) in 14 bis, and some have emphasized the need to keep its existing wording because these are areas where PWD have suffered prejudice, as Australia pointed out. Some have wanted (f) deleted, or else moved to Article 5 and reformulated. Clearly, some of the language in (f), particularly the word “sexuality,” causes difficulty. Singapore suggested using language from the chapeau because it is broader and less explicit, but some delegations thought it important to keep the word “sexuality.” Some delegations asked that information aimed at changing negative perceptions be provided in accessible formats, so that public attitudes could be changed, and PWD could simultaneously be assisted in developing positive self-awareness. There were also proposals to include public education.
The EU had proposed changing the introductory language of (f), but this can’t be decided until the placement of (f) is resolved. Liechtenstein wanted consistent language in all provisions on combating stereotypes and prejudice if this matter is addressed in several articles, rather than just kept to Article 5. The discussion on (f) has opened up a number of issues encountered in (a), as well as broader issues of placement, and how to deal with cross-cutting issues. Given the range of comments, all issues regarding (f) remain open at this stage. It might prove helpful to replace “sexuality” with “physicality,” which embraces many elements.
ARTICLE 15: LIVING
INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY
The Coordinator invited general comments on Article 15 noting that in previous discussions there was widespread support for the concept that PWD should be able to choose how, where, and with whom they live. In previous sessions there was a lot of discussion about what was meant by the phrase “to live independently.” Most disability experts said it should be read literally, as the ability to make independent choices and participate in the community rather than living in institutions. There was agreement that the phrase does not mean endorsement of the independent living movement.
Thailand supported the concept embodied in Article 15, so long as the reference to living independently is understood in a general sense, rather than as endorsement of a specific movement. Thailand understands the phrase to mean that a person is able to make his or her own decisions without interference. Independence should mean self-determination, rather than separation or isolation.
New Zealand agreed that Article 15 was intended to ensure that PWD had the right to live where they chose in a community setting. Therefore, Article 15 should begin with an affirmation of the civil and political right outlined in ICCPR 12.1, which was a response to segregation on the basis of race. Protecting PWD from segregation is equally relevant. New Zealand’s proposals on pages 86-87 of the compilation of proposals (which appear at http://www.un.org/esa/socdev/enable/rights/ahc4nz.htm) begin with this affirmation, followed by two paragraphs on civil and political rights, and then three final paragraphs on rights which can be progressively achieved. New Zealand also proposed moving various provisions from other articles in Article 15, in particular one from Article 9 on equal access to opportunities for economic development, and financial independence. New Zealand will discuss these specific proposals as they arise in the upcoming discussion.
The Republic of Korea expressed flexibility about use of the terms “independent living,” “living independently” or “be included in community.” Given the history of institutionalization of PWD, it prefers to keep the WG text and proposes to change it slightly to read “enjoy independent living and inclusion in the community,” which is less awkward than the WG text.
Japan supported New Zealand’s proposal, because Article 15 includes two types of rights already contained in the ICCPR and the ICESCR. Paragraphs 15.1(a) and (b) should be implemented immediately. Paragraphs 15.1(c), (d), and (e) should be separate and require a distinct chapeau.
The Philippines supported using either “living independently” or “independent living,” and noted that many countries use this language.
Yemen asserted this article should address two questions: the right to live independently, and inclusion in society. Civil and political rights are addressed in Article 18 and need not be included here.
Australia supported the WG text for the chapeau of Article 15. It expressed concern that New Zealand’s proposal for a new paragraph 1 overstates the right in Article 12 of the ICCPR, which refers to liberty of movement within a state, subject to national law.
Serbia and Montenegro stated that it is flexible on the wording of Article 15 as long as it is clear that PWD have the right to their choices and responsibility for them. It supports the Republic of Korea’s proposal to use “enjoyment of independent living and being fully included in the community.” It joins New Zealand and Japan in pointing out that some paragraphs in Article 15 address political, civil, and cultural rights, but takes no position on New Zealand’s proposal. It supports the position that 15.1(a) and (b) should be implemented immediately, and that the remaining subparagraphs can be implemented progressively as resources allow.
The EU expressed support for the WG text, including the emphasis in Article 15 on independent living and inclusion in the community. It will propose alternative language at a later time for the chapeau and for (c).
The Coordinator announced that the afternoon proceedings would be in a formal plenary of the Ad Hoc Committee so that delegates could hear comments from non-governmental organizations. Once those comments are completed, proceedings will continue as informal discussions.
The Chair Ambassador Luis Gallegos opened the afternoon session as formal plenary so that delegates could hear from national institutions and non-governmental organizations.
United Families International stated that no new human rights should be created by the convention. The convention should only promote and protect existing human rights of PWD on an equal basis with others. Sexual immorality should not be declared a human right, and thus 14(a) should be deleted. Subparagraph 14.2(b) should be reformulated as Jordan suggested, so it would read: “the right of all men and women with disabilities of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses, and that husband and wife shall be equal partners, shall be recognized.” It supports the Doha Declaration of November, 2004, which was a consensus document. The Doha Declaration states that “marriage shall be entered into only with the free and full consent of the intending spouses, and that the right of men and women of marriageable age to marry, and to found a family, shall be recognized, and that husband and wife shall be equal partners.”
International Right to Life Federation stated that this convention is meant to promote existing rights of PWD, not create new human rights. Article 14 could be read to create new rights. It supports splitting Article 14 into two articles, one on privacy, and the other on family life. The right to privacy has been used in the past to allow abortion. Paragraphs 14.2(a) and (c) should be deleted, and replaced by that just endorsed by United Families International. Alternately, the second half of (c), which addresses the right to information about family planning, should be deleted, as it provides new rights, such as the right to abortion.
National Right to Life stated the ban on forced intervention in 12.1 bis should have an exception allowing forced intervention to save a life. Its current reading could be interpreted to ban intervention to stop suicide. It would codify living wills and advance directives, which are illegal in most countries. The real danger is forced non-intervention. Due to problems of suicide and euthanasia, 12.1 bis, ter, quat, and quin should be deleted. The subject of medical interventions belongs in Article 21, which covers health.
World Federation of the Deaf stated that five speakers from the International Disability Caucus (hereinafter IDC) would now speak. The previous three speakers were not part of the IDC, and the IDC does not agree with their views. Regarding Article 13, the chapeau text is excellent. Language is a system of symbols with its own grammar and syntax, which people carry in their minds. Language can be expressed through speaking, writing, or signing. People can speak, write, sign, or use tactile sign—all of these are “means.” But “means” is not “language.” Communication is a process. “Mode” means methods, such as cued speech, or augmentative modes of communication. Article 13(h) includes “to recognize, promote and develop sign languages.” This is important for deaf people. Deaf people need interpreter services to have equal opportunity to access education and services, and to participate in society. Interpreter services in turn require interpreter training, dictionaries of sign languages, and research on languages. Recognition of sign languages covers all of these issues, which enable deaf people to have human rights. If the convention didn’t recognize sign languages, it would have to mention them in many articles. For example, deaf people need sign language to gain equal treatment before the law. It is important to recognize each nation’s sign language, or risk the danger of linguistic colonialization. Recognition of sign languages also protects the children of deaf people from having to be their parents’ interpreters.
The World Blind Union urged delegates to extend the obligation to provide information in accessible formats to the private sector. Increasingly, public services are delivered by the private sector. Without ensuring equal access to information in both the public and private sectors, the convention would codify discrimination. For example, without covering the private sector, PWD would be unable to access drug labels to learn whether their medication should be kept from children. PWD are part of the public and deserve equal access to information.
The World Federation of the Deaf Blind urged delegates not to delete 8.2, which states that the right to life includes the right to survive and develop. Too often, PWD are deprived of education, care, and other types of development because people assume their quality of life is deficient. In situations regarding food distribution or clean water, PWD are always last in line. When PWD want to end their lives, in many cases it is not because of the disability, but rather because of society, which prizes able-bodied, young, rich white men. Thus the IDC supports the strong statement in Article 8.3 which reads “disability is not a justification for the termination of life.” Finally, delegates must ensure that PWD are treated equally in wars, foreign occupations, and similar circumstances. PWD should have the right to the same protective measures as others.
The World Network of Users and Survivors of Psychiatry stated that the convention must not inadvertently limit the rights of PWD. It must give PWD the tools to protect and expand their rights. Article 9, on legal capacity, will limit the rights of PWD unless it is amended to enable PWD to make their own decisions by deleting references to substitute decision-making and legal representatives, and instead embracing the concept of supported decision-making. The latter allows PWD to request support to make their own decisions, and ensures that the result reflects the wishes of the person with the disability. Non-disabled people take for granted their right to make bad decisions. PWD deserve the same right. The IDC also recognizes the need to protect against potential abuse of supported decision-making, and has provided proposed text to address that problem. The IDC prefers the WG text for Article 10, which states that deprivation of liberty shall in no case be based on disability. That language is simple and clear, and treats disability as a social category comparable to gender and race, which is the position that PWD have asserted throughout the convention process. The phrase “existence of disability” has a medical model tone. The WG text should be used, even if it means that governments may have to grapple with their laws. That is preferable to using language that makes the obligation less certain. The IDC believes that interventions meant to treat or alleviate disability meet the definition of torture when done without the consent of PWD. The IDC believes that interventions not based on disability should be covered in Article 21 on health, and such interventions must require informed consent, just as is required for persons without disabilities. That includes the right to receive information in accessible ways, and that information must be fully disclosed, because PWD are often treated paternalistically, and information is withheld from them in the belief that they cannot handle the full truth. PWD need the same rights to full information and consent, as covered in Article 9 on legal capacity and decision making. The IDC does not support a separate article on interventions not based on disability. The prohibition of forced sterilization and abortion should be in Article 14, because these acts deprive PWD of their reproductive rights and sexuality. The IDC expects to continue working with the article facilitators and the AHC as a whole toward a convention that will be useful to PWD, both now and during the intersession.
Support Coalition International noted that with forced treatment, there is no ability to refuse any type of treatment. No matter how strong legal safeguards are, forced treatment is still torture. This convention must not simply codify existing mental health laws and practices. This issue cannot simply be folded into a new article on informed consent. This convention must promote the dignity and human rights of all PWD, including those considered to have psycho-social disabilities.
National Human Rights Institutions stated that this convention creates an opportunity to raise the bar on human rights and justice. It supports retention of 11.2 in Article 11, which covers torture. Care given to PWD in institutions is often degrading and inhuman, and now will appropriately be defined as torture. Viewed under Darwinian theory, PWD are inferior, and this may be the motivation of those who oppose retention of 11.2. Delegates should refuse to honor the Darwinian theory, and instead view these issues through the lens of human rights. The NHRI asked the Office of the High Commissioner to comment on the meaning of the term torture, and whether it covers treatment forced upon PWD.
The Chair asked a representative of the High Commissioners Office to respond.
The Office of theHigh Commissioner for Human Rights stated that human rights treaties don’t offer a simple definition of torture. Jurisprudence of the Human Rights Committee, in General Comments 20 and 21 on Articles 7 and 10 of ICCPR make very clear the relevance of these articles to the situation of persons deprived of their liberty because of their placement in medical or teaching institutions. There is no blanket definition of torture, each case has to be examined independently, and the nature and severity of treatment must be considered. When the Convention Against Torture was adopted, it clearly defined torture, in Article 1, to include acts made to further discrimination of any type. A definition is also clear from the jurisprudence of all the treaty bodies. For example, the Committee on Economic, Social and Culture Rights, in Article 14 on the right to health, considers nonconsensual medical treatment to be a human rights violation.
NHRI noted that General Comment 20 states that torture can be psychological as well as physical. The issue of emergency medical interventions in situations where it is impossible to obtain consent, now in Article 12, should be moved to Article 21 on health. If the general agreement is to retain this topic in Article 12, then Paragraph 1 bis and 1 ter can be retained, but not the paragraphs that follow. Paragraphs 1 quat and 1 quin should be deleted. Although NHRI supports the concept in Article 14 bis (e) that the best interest of the child should be the paramount concern, the intention of this article is to recognize the right of PWD to be parents. It supports the proposal from Australia that separation of children should never occur on the basis of disability. However, the article allows tampering with the standards used to remove children. If such removal is not based on disability, there is no need to mention it in this article. It proposes replacing the phrase “in accordance with the laws” with “in accordance with the norms.” Support to parents with disabilities may be interpreted as additional support above that given by states to all families. Delegates should note that CCPR 18, CESCR 10.1, and CRC 21 already create an obligation for the state to afford support to families, because families care and educate dependent children. If this is justified for all families, it should simply apply equally to parents with disabilities. All such support must be made available to women with disabilities during pregnancy and motherhood. If such support is given, there would be no need to tie disability to the concept of the best interest of the child, because the disability would not pose a problem if the parent received adequate support.
NHRI further noted that the convention should require serious commitments from states to make changes in their laws and practices. Language in some articles, such as 14 bis, that modify obligations with the phrase “in accordance with national law” or “subject to traditions, customs, and religions” limit such obligations. This language can be used to enshrine laws that discriminate against PWD. This convention should instead make explicit that where such references are made, the national laws must be consistent with international human rights guarantees, and the principles of this convention. This can be accomplished with a general provision to this effect at the beginning of the convention, or by adding to the individual articles containing these references words such as “and consistent with the principles of this convention and generally accepted international human rights norms.” Regarding Article 13, PWD must be able to access goods and opportunities in all areas of life, and this requires that information provided by the private sector be accessible to PWD. Even services specifically for PWD are increasingly being provided by the private sector. In general comment 5, which interprets the obligation under the ICESCR, to which 151 states are parties, the committee has drawn attention to the extent to which the provision of public services is increasingly being privatized. In the context of disability specifically, the committee has concluded that it is essential that private employers, private supplies of goods and services, and other nonpublic entities be subject to both nondiscrimination and equality norms. The Human Rights Committee established under the ICCPR, to which 154 states are parties, has also made it clear in its general comments and case law that states parties are obliged under the covenant to take all necessary steps to protect persons against violations of their civil and political rights by private entities. This is not a new concept. Examples include CEDAW 2(e), (f) and Article 13, CRC Article 3, International Labor Organization Conventions 111 and 159, and the UNESCO Convention on Discrimination in Education. These treaties oblige states to ensure that private entities do not violate human rights. This convention should do no less. These international regulations have their counterpart in the many national examples of legislation and regulation of the action of private entities, including workplace rights, occupational health and safety regulations, protection of children, anti-discrimination legislation, and disability access provisions. Many of these examples reflect the implementation of obligations assumed under international treaties. Article 4 should be strengthened to cover not only the nondiscrimination aspect of each right, but also substantive violations of these rights. While this general obligation applies throughout the convention, it should also be included in critical articles, such as 13, by adding an obligation that states “take all appropriate measures to ensure that private entities respect and give effect to those rights, by providing access to information.” Any lesser obligation, such as urging or encouraging private entities to respect the rights of PWD, would seriously undermine the impact of the convention.
The Chair noted that the interventions from the Non-Governmental Organizations and NHRI were of high caliber. He then shifted the proceedings back to informal consultations.
The Coordinator Ambassador Mackay invited comments on Article 15 of the WG text.
ARTICLE 15: LIVING
INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY (cont)
Jordan noted that institutions are a negative environment, and PWD should be able to live in the community as full participants, able to support themselves and contribute to their community like anyone else. States should promote services to enable PWD and their families to meet their responsibilities and live in the community with dignity.
Costa Rica expressed concern that some states may lack the resources to provide the support services mentioned in (c). There should be gradual and progressive implementation of (c). Costa Rica has already submitted its proposal for (c) that PWD should have access to a range of in-home services provided by the state to the extent of its resources. The issue of deprivation of liberty and forced institutionalization has already been examined, so (b) should move to an earlier article.
The Coordinator agreed that the convention requires immediate implementation for some obligations, and progressive implementation for others. Economic, social, and cultural obligations may only be possible to provide progressively, as resources allow. Once the convention has been completed, delegates might want to identify the articles to be implemented immediately, versus those meant for progressive implementation.
New Zealand responded to Australia ’s concern that New Zealand ’s proposal for Article 15 (http://www.un.org/esa/socdev/enable/rights/ahc4nz.htm) exceeded the right contained in ICCPR Article 12. There are parts of the current convention where rights have been reaffirmed without restating the entire text from which the right is derived, so long as the purpose of the right at issue is consistent. ICCPR Article12.1 and the Universal Declaration of Human Rights Article13 are reflected in New Zealand ’s proposal for Article 15. ICCPR 12.1 was conceived in response to the segregation policies that led to the ghettos and labor camps of the 1930’s and 1940’s, which are similar to the institutionalization policies designed to segregate PWD from society. The latter require PWD to live in a particular residence in a particular area, because that is the only area in which support services exist. The ICCPR and other instruments are designed to continue to be relevant over time, and to be interpreted in ways that are useful to current readers. This convention is doing exactly that.
Israel noted that the key concept in Article 15 is that PWD should have the right to choose where and with whom they live. Therefore this article should emphasize the right to choose and make decisions, and not just focus on living conditions. States should provide a variety of living options, and support the individual with a disability and the family assisting the individual, because research indicates that families have a big impact on a family member with a disability’s participation in the community. States should also help PWD be self-supporting. The issue is not living in or out of an institution, but rather the right to choose and make decisions.
Thailand stated that progressive implementation of provisions which require resources is covered in Article 4 on general obligations, and need not be restated in specific articles. Only points of great interest and benefit to PWD should be restated if they have already been covered in a general provision. Thailand prefers to use stronger language in (e), and proposes “information about support services shall be made accessible to PWD.”
The Coordinator noted strong support for Article 15, and no objections to it. Several delegations, such as Israel , suggested that the essence of this article is freedom of choice. Some delegates did not want “living independently” to be read as an endorsement of the independent living movement. The Republic of Korea suggested substituting the phrase “enjoy independent living in the community,” and others proposed substituting “enjoy independent living and be fully included in the community.” Australia was concerned that New Zealand ’s proposal drew from, but did not use, the precise language from the ICCPR. Costa Rica suggested that (b) should be moved to an article that addresses forced institutionalization and deprivation of liberty. The Coordinator asked for comments on the chapeau, (a), and (b).
Yemen asserted that the article was not yet strong enough to bind states to pay serious attention to rights. The chapeau should begin with “State parties should commit themselves to taking measures.” Paragraph (b) should be reworded to ensure that PWD determine their living arrangements by adding “that they do not accept” at the end.
The Republic of Korea proposed to resolve the concern that “independent living” conflicts with some cultural norms by changing the chapeau to read “enjoy independent living and inclusion in the community on an equal basis with others.”
The EU proposed rewriting the chapeau to read “States shall take appropriate measures to facilitate PWD to live independently and be fully included as members of the community, including measures aimed at ensuring that:…” In 15.1(b), the wording should be changed to read “PWD are not obliged to live in an institution or any particular living arrangement, save as provided in Article 10.” This would ensure that any deprivation of liberty shall be subject to the legal guarantees in Article 10.
Thailand proposed to retain the WG text, which is neutral and preserves the concept of freedom of choice for PWD. Thailand also supports the Republic of Korea ’s proposal to add “on an equal basis with others.”
The Coordinator noted that earlier Thailand had supported using the phrase “enjoy independent living” rather than “live independently.”
Thailand responded that it did not see the need to change the term, simply because it might suggest a specific meaning.
Serbia and Montenegro
supported the EU’s proposal for the chapeau, but remained flexible
on using “effective measures.” It supports the WG text for
(a). It supports Costa Rica ’s position that the issue of forced
institutionalization in (b) has been addressed elsewhere. However, if
disabled peoples organizations want it kept here, delegates should not
contradict them, and in that case it supports the EU’s proposal
to add “save as provided in Article 10.”
the WG text, with the addition of the Republic of Korea ’s “on
an equal basis with others.” It also supports Costa Rica’s
proposal to delete (b), which has been covered in Article 10, and is
also partly covered by (a). Mexico agrees with Israel that the most
important thing is for PWD to have freedom of choice.
Canada supported the EU’s proposal for the chapeau, with minor amendments. It prefers “enjoy independent living” to “independent living,” because most people don’t live alone. Also, rather than “be fully included in the community,” it prefers “enjoy full inclusion,” which is a broader concept and describes being fully immersed in community life. It supports New Zealand ’s proposal for (a) and (b), which is more positive than the WG text. Canada prefers New Zealand ’s proposal for (b), which addresses states taking appropriate measures to promote services necessary to have PWD live in the community on an equal basis with others.
Norway incorporated proposals from the Republic of Korea and the EU into one proposal to amend the chapeau to read that states “shall take appropriate measures to facilitate the ability of PWD to enjoy independent living and participate on an equal basis as members of the community.” Norway agrees with Costa Rica that the words “they do not accept” should be added to (b). It also agrees with New Zealand ’s proposed text for 15.3
the WG text, with the inclusion of “on an equal basis with others,”
and “leading an independent life,” instead of “living
independently.” Brazil agrees with Costa Rica that (b) should
The Coordinator noted
that the Republic of Korea had proposed replacing “live independently”
with “enjoy independent living. Canada proposed to replace “be
fully included in the community,” with “to enjoy full inclusion
in the community.” He asked if these amendments are more inclusive
and accurately reflect what delegates want.
Thailand stated that it could accept retaining “independent living,” but only if the text stated there was no endorsement of any particular movement.
The Coordinator agreed that if delegates agreed to use this term, a footnote would be included to explain that delegates were not discussing any particular disability rehabilitation model. Given that, he asked if any objections remained.
The EU stated that it would have to consult with its member states before taking a position on Canada ’s proposals for the chapeau, and New Zealand ’s proposal for 15(b).
The Coordinator noted
that the Republic of Korea had proposed adding “on an equal basis
with others” to the chapeau to accommodate the tradition of extended
families that exists in some nations. The EU proposed “shall take
appropriate measures to facilitate PWD to enjoy independent living and
full inclusion in the community on an equal basis with others, including
measures aimed at ensuring” (a) and (b). Norway had come up with
a formula that included the Republic of Korea ’s language, and
merged the EU and Canadian proposals.
Norway stated that its proposal was slightly different. It requires states to use “appropriate measures to facilitate PWD to enjoy independent living and participate on an equal basis as members of the community.”
The Coordinator noted that Norway ’s proposal was essentially the same.
Norway responded that it was flexible as to exact wording, but preferred its own formulation because it conveys active participation by PWD, rather than stating that PWD would be included.
The Coordinator noted that Canada was satisfied with Norway ’s proposed wording.
Mexico stated that it preferred retaining the words “enable” and “effective measures” from the WG text.
The Coordinator noted that the WG text reads “states shall take effective and appropriate measures to enable PWD to enjoy independent living and to participate in the community on an equal basis with others, including by ensuring that.”
noted that the major difference between the EU and WG text is that the
former reads “aimed at ensuring that” while the WG text
simply states “by ensuring that.” The EU proposal allows
progressive implementation. Delegates should consider noting explicitly
which subparagraphs can be immediately realized, versus those that need
The Coordinator asked delegates to return the discussion to the chapeau.
The Russian Federation stated that it had difficulty with the chapeau wording “enable PWD to live independently,” because the word “enable” is too strong and it would be difficult for states to meet this obligation, because it is not clear what this phrase means. The EU’s proposal to use the word “facilitate” means that states will provide assistance to PWD to the extent that they can. In many countries the local authorities responsible for addressing the problems of PWD are not part of the state structure and operate autonomously, and this needs to be taken into account. Wording that includes the concepts proposed by the EU and by Canada would solve this problem in the chapeau. The Russian Federation is flexible about keeping (a), but it believes that the concept embodied in the phrase “to choose their place of residence” corresponds to the ICCPR and should be a separate article. The concept of free choice of living arrangements should be in Article 15. Paragraph (b) should be considered within the context of Article 9, as Costa Rica and others suggested. The Russian Federation is flexible about the wording of (c). The issue of available resources would be solved by adopting Costa Rica ’s proposal. It asked for clarification of whether the term “community” is equivalent to the term “society.”
The Coordinator responded that “community” could be interpreted as “society.”
Israel proposed using “nations shall take appropriate measures to facilitate freedom of choice in independent living.” Also, (a) and (b) could be combined to read “PWD have the right to choose and decide their living arrangements as equal members of the community.”
Thailand proposed using “full participation” rather than “full inclusion” because it has a more active meaning. “Independent living” should be described explicitly as not endorsing the independent living movement.
The Coordinator noted that this concept was also supported by Norway .
Yemen stated that it remained satisfied with the WG text for the chapeau, and supported the Republic of Korea ’s proposal to add “on an equal basis with others.” Including this language in the chapeau would make it unnecessary to repeat it in (a).
The EU stated that “on an equal basis with others” weakens the text because in this context the convention is addressing the needs that PWD may have to be able to live independently. It therefore prefers using “on the same basis with others.”
Costa Rica stated that it was inconsistent for the chapeau to mention living independently and also being included. It therefore supports “living independently and full participation in the community.”
The Coordinator stated that the delegates were close to resolving the chapeau text, and that he would propose wording the next morning to see if general consensus could be achieved. He noted that some delegates proposed moving (b) to Article 10, which addresses liberty and security of the person. He asked if any delegates objected, and noted that none did. There was no objection to maintaining (a) as written.
he session was adjourned.
The Fifth Ad Hoc Committee
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