I should now like to make some concluding remarks to assess where we are in the negotiating process, and suggest the way forward. My comments are currently being reproduced in hard copy, and will be available at the back of the room (and of course on the Enable website) immediately at the end of this meeting.
When we began this Session, I referred to the specific mandate that the General Assembly had given us in allocating a three week session – that is, to complete a reading of the text prepared by the Chair on the basis of discussion at the previous sessions.
We all knew when we began that this would be a huge task, but we have completed it. I should like to thank all colleagues for the huge amount of work they have done, and for the open minded and constructive way that they have approached it. I should also like to acknowledge the hard work done by the Facilitators, and by those delegations that have consulted informally as I had requested everyone to do to advance our work, and to thank them.
The discussion we have had on the draft articles has made clear that the draft articles – which are the product of the work done at our previous sessions – are very well supported. We have had many proposals to change the language of the draft articles at this Session, some proposals receiving strong support but many of them not, but for the most part these have been of a technical or linguistic nature, amplifying the text rather than reflecting substantive difficulties with it. In fact, there have been only a relatively few areas where colleagues have indicated substantive problems with the text.
I think we can now conclude that our work on the articles is extremely well advanced, and that we are ready to enter the final stage of our work. Turning to the individual articles, most of them can be placed in a category of “no significant issues remaining”, a few of them in the “some issues remaining” category, and very few in the category of “difficult issues remaining”.
As regards those articles in the category of “some issues remaining”, I would note the following:
In the Preamble, I would note that it is clear that there is a high level of support for the text as drafted, and that, as in other areas of the text, issues that arise are mainly concerned with finding acceptable language, including language concerning the “family”.
On Article 2, on definitions, I think colleagues will agree that our discussion at this Session has been fruitful. The definition of “communication” – which, as some noted, is an inclusive listing rather than a definition in the strict sense – has been further improved. We have also progressed in our discussions on the definitions of “discrimination on the basis of disability”, of “language”, of “Reasonable Accommodation”, and of “universal design and inclusive design”. There are however a few aspects of this Article on which I’d like to focus attention for consideration at our August session.
The first concerns the inclusion of a definition of either one or both of “disability” and “persons with disabilities”. Colleagues will recollect from our discussions on this Article that there is a strong feeling by many that some definition is needed in order to specifically identify the persons covered by this Convention. As you will be aware, I have circulated a discussion draft of a possible definition of “disability”, to assist discussion. In crafting this definition, I have attempted to find a middle ground from which to launch our discussions, and I would ask colleagues to come to our August session prepared to comment flexibly on this proposed definition so that we can focus our discussions and reach rapid agreement. Reactions to this draft should help us chart a course towards a definition, of either or both of the possibilities discussed, that might not be “loved”, but that can be “lived with”. I would note too that there was a fair amount of initial support for the definition of “disability” found in the Inter-American Convention, and I would ask colleagues to also give further consideration to that definition in advance of the August session.
On the now-bracketed language on “national laws of general application”, it is clear that we need to arrive at a formula that adequately captures the concept that we’re all trying to reflect. We need to make clear, as said in footnote 3 to the working text, that in this Convention we are not intending to affect the ability of States Parties to determine their own policies and legislation. What we are trying to do is simply oblige States Parties to ensure that where freedoms or restrictions exist, they are applied without discrimination on the basis of disability. This concept needs to be captured in a number of Articles, and perhaps the formulation used in Article 23(1) could be further adapted for these Articles. This will need further reflection by colleagues.
Finally, on a perhaps lesser point, I would note that while we presently define “universal design and inclusive design”, “inclusive design” is not actually referred to anywhere else in our text. I’d thus ask colleagues to consider whether we either need to incorporate “inclusive design” wherever we refer to “universal design”, or whether we can in fact dispense with a definition of “inclusive design”.
On Article 4, there was a lot of discussion in the Committee on paragraphs 1(a) to (c), and most proposals were to make the language more focused. These paragraphs have been revised so that they are now consistent with similar provisions in the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, and I hope that they are now broadly agreeable and should not need further refinement.
Paragraph (h) is a new paragraph, based on the many calls throughout this Session, and previously, for a general provision on training. It should also cover the many specific proposals for language on training in individual articles, so the issue can be consolidated here, rather than sprinkled throughout. It should be possible, therefore, to delete paragraph 2 of Article 26. Paragraph (h), however, has not been through the same number of readings as the rest of the text, so delegations may want to consider it further.
On the issue of women with disabilities and children with disabilities, there is now a common view that the Convention needs to have both some general provisions, and gender and age specific references in specific articles where relevant. Views are still split, however, on whether the general provisions should be in the form of separate articles or whether they should be part of Article 4. There is broad agreement on the content of those provisions, so it should be possible for delegations to quickly decide in August on where those provisions are best placed. As I noted in my summing up, this is an issue of structure, not of substance, and I would urge colleagues to come to the August session with flexible instructions on this.
I also noted in my summing up that the trend in the room seemed to be moving towards including the general provisions on women and children as separate articles, so they are currently reflected that way in the text. They are not square bracketed. We will however proceed on the understanding that the question of their placement remains open.
On Article 6, paragraph 2 has been reformulated to mirror the language used in Article 3 of CEDAW, as suggested by some delegations. The Ad Hoc Committee may wish to consider whether paragraphs 1 and 2 could not be merged into one shorter paragraph, given the overlap between them.
On Article 7, as I said in my summing up of the discussion, there was quite a bit of discomfort with paragraph 4 of the Facilitator’s text.
Many delegations suggested that it duplicated other provisions of the convention. The first part of paragraph 4 deals with the provision of protection, assistance and care towards the child by the family and the State. Delegations may consider that this point is covered not only by the Convention on the Rights of the Child, but also by the new paragraph 2 in Article 18, and paragraphs 3, 4 and 5 of Article 23. The second half of paragraph 4 provides that the state shall provide protection and assistance to children with disabilities in the absence of their families. Delegations may consider that this point is covered by paragraph 5 of Article 23.
Given this possible duplication, and the feeling of many of the states that spoke, paragraph 4 of the facilitator’s text has not been included in the text at this stage. I did also note in my summing up, however, that if there were any issues in paragraph 4 that are not adequately covered elsewhere in the Convention, they should be merged into the rest of the Article. If any delegation strongly feels that anything has been lost from the text by not including paragraph 4, they could raise that point at the August session for re-inclusion.
Turning to Article 11, colleagues will need to consider whether or not this Article should be expanded to refer specifically to particular situations of risk. The same issue was raised by several colleagues regarding the Preamble, and I’d urge colleagues to come to the August session with the kind of flexibility that has been a hallmark of this Session.
On Article 21 on freedom of expression, I noted in my summing up that although the list of forms of communication in the chapeau seemed generally acceptable, delegations might want to reconsider whether it is necessary once the definition of communication is agreed in Article 2. Article 21 should otherwise not need to be subject to any further detailed discussion.
I would include Article 23 on the family in this category of articles on which there are only some issues remaining because I do not believe that, with the exception of the phrase in square brackets, views are very divergent. Although the issues covered are sensitive ones for most States, there was agreement in the Committee that the Article should be narrowly focused on non-discrimination only. The current wording of the article, therefore, clearly will not require States to alter their general laws and customs on matters relating to marriage and the family, so long as those laws and customs do not discriminate on the basis of disability. The Article preserves the ability of States to determine their own policies and legislation on marriage and the family.
The report of this Session includes a note reflecting that understanding. The report will become a part of the travaux preparatoire of the Convention, and it is a well-established principle of international law that the travaux preparatoire are a source of guidance when interpreting treaties. Delegations will need to be prepared to discuss in August how best to cover their concerns. I hope that delegations may be reassured that the very clear statement in the footnote will guide subsequent interpretation of the treaty.
On Article 24, on education, we have some bracketed language in Article 24(2)(d). Colleagues will recall that while a number supported the language in the first set of brackets, several others felt strongly that there was a need to retain relevant language along the lines of the Chair’s Text issued in October. This clearly requires further reflection for the August session. As an Article that very much captures the “paradigm shift” that we have often talked about at this Session, it is clear that colleagues are in agreement as to the fundamental premise of this Article – an inclusive education for persons with disabilities. The question however is how best and most realistically to reflect the means of achieving this.
On Article 26, I suggest that there is now no need to have paragraph 2, given that there is now a separate paragraph on training in Article 4 that applies across the whole draft Convention. The Article is otherwise now refined to the stage that it should be acceptable to delegations.
On Article 28, there was a divergence in the Committee on the use of the term “social protection” as opposed to “social security”. Most of those delegations that preferred “social security”, however, did so because they viewed it as a wider concept than “social protection”. There seemed to be general agreement that we should use the widest term. Included in the revised text is a note that cites a general understanding reached in the UN context that “social protection” is actually the broader term. On that understanding there should not be a need to revisit this issue.
Paragraph (e) of this article has been placed in square brackets because it was raised late in the discussion and many delegations may not have had the time to reflect on it. There did appear to be good support for it in the room, however, and I would encourage delegations not to return to the debate on it unless it raises significant problems.
As I noted during our discussion of Article 32, it does seem clear to me that colleagues are in general substantive agreement, and that remaining issues are generally a matter of finding the right language to reflect that agreement. I would urge colleagues to think further about this before our August session.
Now, in the third category of “difficult issues”, I would note the following:
On Article 12, there was general agreement on a need to signal a paradigm shift towards a support model where everyone is entitled to exercise legal capacity. It was also agreed that some measures are required in the Article to safeguard this support. However, there was a range of views on what degree of prescription should be provided on these measures. In particular, there was no consensus on whether to include some reference to personal representatives.
On Article 17, despite long debates on the subject at this and previous sessions, we have not yet found language that satisfies the issues raised at this meeting. A wide spectrum of positions has been put forward. It appears to me that the middle ground we are searching for must point clearly to a paradigm shift but we do not yet have consensus about how to best provide restrictions and protections around the use of involuntary treatment in the Convention. Part of the difficulty in addressing these issues is that the ground covered overlaps in part with measures already contained in the Convention relating to legal capacity, freedom from torture, liberty and security, the right to live in the community and health care services.
On both Articles 12 and 17, delegations will need to come to the August session having further considered the various perspectives and positions and with some flexibility about a best way forward.
Turning to Article 25 on health, the reference to sexual and reproductive health services continues to be difficult for many delegations, although it is strongly supported by others. As I noted in my summing up of the discussions on that Article, however, there was agreement in the room that the paragraph has a narrow focus on non-discrimination, and that neither it nor the term “health services” would create any new rights or obligations at international law. Given the common ground on that point, it seems to me that the problem is not so much the phrase “health services” per se, but its potential for misinterpretation.
A note to this effect is included at the end of the working text. A note from this Session, agreed as part of the report, would provide clear guidance on subsequent interpretation of the article as part of the travaux preparatoire. Delegations may wish to reflect on whether the note and the clear wish of the Committee not to create any new rights will assist in dealing with this issue.
The question then, is what do we do next? We have our next session scheduled for August, as you know. What should our goal be for that session?
In reality, I see very little point in having yet another detailed reading of all of the revised draft articles. Based on our experience this time, I also doubt that it could be completed in a two-week session. The reality is that we would have a repeat of our discussion at this Session, with more detailed drafting and textual proposals, which will not in the end add a great deal of value to the text. We are at a point of rapidly diminishing returns from such further discussion.
Instead, I propose that we should focus at the August session on the substantive issues which remain, most of which are indicated in the square brackets in the revised text. We will also need to work on the international monitoring articles, about which I will say more in a moment.
At our August session, clearly I cannot stop delegations from raising matters of substance regarding the majority of articles on which there are “no significant issues remaining”. If they do have matters of substance that they really must raise, then clearly they’re entitled to do so. But we cannot continue with more and more essentially drafting improvements. I have never yet seen an international convention that could not be further improved linguistically, but as I’ve said, we are at the point now of rapidly diminishing returns. Colleagues have by now had plenty of opportunity, over our previous sessions, to raise such proposals, and to gauge how much general support there is for them. We cannot keep taking up such proposals that do not have the wide support of delegations, or which have strong opposition from other delegations. We need to strike a balance between spending more time perfecting this Convention on the one hand, and the need to conclude our discussions on the other, recognizing the urgency with which implementation of this Convention is needed.
Accordingly, at the August session I propose, with the Committee’s agreement, not to entertain further linguistic “improvements” which do not have widespread support negotiated in advance by colleagues. If no one has a substantive difficulty with an article, I propose to move on to the next one.
I would therefore ask colleagues to come to the August session on that clear understanding and basis. Colleagues are really at the stage of having to determine what they can live with, rather than what they would ideally like to have. Otherwise our current process will go on indefinitely, delaying the adoption of an international convention in this vitally important area, and further draining the resources of participants.
Let me make some brief comments on other issues.
Firstly, international monitoring. We have had preliminary discussion of this issue at this Session, but I would ask colleagues to consult informally amongst themselves between now and our August session, for the purpose of advancing the language, particularly in technical areas. Any such consultations would need to be very informal and without any status, and also open-ended, and the progress made could then be brought to our August session to facilitate our work. The issue of international monitoring, including the political issues, would then need to be discussed in full at our August session. I should like to invite the delegation of Mexico to assist us by convening informal consultations with colleagues in this important area. There are also other outstanding matters that would usefully be discussed by colleagues informally during the intersessional period and, as always, would urge that they do so to help advance our work.
Secondly, on the final clauses, colleagues will be aware that I included some draft final clauses in the Chair’s Text issued in October, and that the Office of the High Commissioner for Human Rights has helpfully provided us with a background conference document on final clauses. It is my intention to invite Liechtenstein to assist us by working informally with interested legal experts from delegations, again in an open-ended way, to pull together a set of final clauses that should hopefully provide a basis for consensus at our August session. I should hope that the final clauses would not be controversial, as they are essentially of a technical nature.
If we all approach the August session on the basis I have outlined, in a self-disciplined way, I believe that it should be possible to adopt the draft Convention at the end of that session. If so, it would then need to go to a drafting committee which would deal only with drafting issues to tidy up the text. The drafting committee would not address substantive issues. The Convention could then be adopted at some stage during the 61st Session of the General Assembly.
This is obviously an optimistic scenario, but it is possible if colleagues are willing to work to this objective. If we are not to take such an approach, the question has to be, what is the alternative? Should we be continuously reading and re-reading the text ad infinitum? I’m sure colleagues agree that this is not a viable or constructive alternative.
Finally, I would like to thank again Services for the Visually Impaired and Duxbury Systems for their generous donation of a Braille printer and software as well as thanking those delegations and organizations that provided Braille copies of the Chair’s Text.
I’d also like to thank not only colleagues from delegations, and from civil society, for their huge contributions, but also our colleagues from the Secretariat for their consistent support. Our Secretaries, Mr Sergei Cherniavsky and Ms Tatyana Shestakova and their staff, and the valuable expert advice provided by Jean Pierre Gonnot, Akiko Ito and Mona Pare of the Department of Economic and Social Affairs, and by Mara Bustelo, Simon Walker and Lisa Oldring of the Office of the High Commissioner for Human Rights. I would also like to thank the interpreters and other conference support staff, and the members of the Bureau, Jorge Ballestro, Petra Doláková, Mu’taz Hyassat, and Laoura Lazouras. May I also publicly thank my own colleagues, Andrew Begg and Alexandra Grace, for their support.
The meeting is closed.