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Back to: Seventh Session of the Ad Hoc Committee
Summaries of the Seventh Session

Daily summary of discussion at the seventh session
17 January 2006

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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summaries

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Volume 8, #2
January 17, 2006

 

 

 

MORNING SESSION

ARTICLE 9: Accessibility

The Chair informed the committee that proposals had been provided in advance by the European Union (EU) (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm), Israel (http://www.un.org/esa/socdev/enable/rights/ahc7israel.htm) and the International Disability Caucus (IDC) (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc). Those delegations were asked to explain the changes they were proposing to the working text.

Israel endorsed the IDC proposal. The text should reflect that it is entities serving the public that must provide accessibility. Regardless of whether an entity is publicly or privately owned, if its building or service is intended for public use, it must be made accessible. Emphasis is placed on new and existing buildings that are open to the public, not just renovation. Particular reference should be made to the obligation to legally codify non-compliance as discrimination. Accessibility requirements must include making information in useable formats for all persons with disabilities (PWD).

The IDC stressed that Article 9 should reflect the progressive realization of rights and confirmed Israel’s position that accessibility should apply to facilities and services provided to the public, including, transportation, information and communication. It supported Chile’s proposal to expand “publicly owned work places” to “all work places” and Israel’s proposed text for 9(3). The IDC suggested several sub-paragraphs to reflect the need for PWD to access information and communication technologies and proposed that any reference to “assistive technologies” include “information and communication technologies.” References to “assistive technologies,” which appear in several articles, should use consistent language. Regarding “Universal Design” or “Inclusive Design” or “Design for All,” the following generic language can be used: “Products, environments and services which are usable by all people, to the greatest extent possible, without the need for adaptation or specialized design,” consistent with the International Organization for Standardization Guide 71 (http://www.iso.org/iso/en/CatalogueDetailPage.CatalogueDetail?CSNUMBER=33987). The IDC also supported the addition of the right to access to emergency assistance and references to rural and urban areas

The World Blind Union (WBU) stated that information and access to information services is an integral part of accessibility. For instance, a PWD cannot access community services without the information regarding what those services are and how to find them. Regarding the issue of copyright, the reference to intellectual property in Article 30 (Participation in cultural life, recreation, leisure and sport) is particularly helpful but could be strengthened and should be moved to Article 9, as it relates not only to culture, but to the entire range of published and other materials. Because the term “intellectual property” includes elements such as patents and trademarks, it should be changed to “copyrights” in this text, since that is the principal concern of PWD. References to international law should be deleted because such laws relating to copyright often create barriers around information. The IDC proposed text reflects these concepts. PWD must have access to free postal services with regard to Braille materials and the bulky equipment that blind and partially-sighted people need to access materials. Such items are often only available through the post and if PWD must pay for their shipping, it becomes a financial burden that ultimately represents a barrier to access. WBU noted that the IDC proposal regarding free postal services for people with vision impairment should be expanded to include people with other types of disabilities.

Austria, on behalf of EU, supported the IDC efforts to strengthen standards reflected in the 9(2)(c) of the Chair’s text, though some work on the placement and language might still be needed. Paragraphs 1(b), (c), and (d) are too detailed and should be streamlined. With regard to 9(2)(a), Austria was concerned that it may be too strong to define noncompliance as discrimination. The concept of Universal Design, as reflected in IDC’s proposal for 9(3) could be combined with 9(2) on standards. Israel preferred its proposal language addressing assistive technology to the longer text found in the IDC proposal. The EU endorsed the IDC proposal to move copyright from Article 30 to 9(5), but needed more time to study the language. IDC’s proposed 9(6) is too long and 9(7) contains extremely strong language and furthermore may be more appropriately placed in Article 5 on Equality and Non-Discrimination.

Israel offered an alternative to its original proposal to the chapeau to paragraph 1. The first sentence would read, “States Parties to this Convention shall take appropriate measures, including by way of legislation, non-compliance of which will be considered discrimination,…”. Israel then reiterated the remaining proposals to Paragraph 1 as outlined in its written proposal.

The Chair asked delegates to respond to the main points that had been raised thus far. It had been proposed that all entities open to, or providing service to, the public should be covered by the article, even if the entity is privately owned. New and existing buildings should be subject to accessibility requirements, and not only with regard to renovation. There was a question as to whether non-compliance should amount to discrimination. Access to information should be added to the article. To begin, the Chair invited comments on 9(1).

Austria, on behalf of the EU stressed the importance of referring to buildings and services intended public use, regardless of ownership. The focus must be on the people for whom the entity’s use in intended. With respect to privately owned workplaces, some concessions need to be made for small entities for which this might create undue burden. Language should be developed to reflect that. The text should be carefully constructed to ensure that accessibility requirements do not apply to all public environments, because many of these are natural environments that could not practically be made accessible. It is man-made environments that are the subject of this article.

Serbian and Montenegro supported the EU’s proposal to 9(1). However, the delegate urged caution in the formulation of the concept that noncompliance equals discrimination, as this might create a burden.

Japan supported the concept of applying accessibility requirements to buildings intended for public use. It suggested amending “appropriate measures” to “progressive measures,” as accessibility is a social right.

The Chair noted that Article 4(2) defines clearly the progressive realization of economic, social and cultural rights. It was included in the article on General Obligations specifically so that it would be understood to apply to the entire convention. If “progressive” is added to Article 9, decisions regarding where else it should appear throughout the text would have to be made. The Chair noted that a combination of political and social rights appeared in most of the articles of the convention.

Canada supported the EU with respect to streamlining 9(1). The importance to linking accessibility to equality and reasonable accommodation was noted. Canada welcomed the concept of applying accessibility requirements to buildings intended for public use. The question of new and existing buildings would also be captured under this requirement. The question of whether noncompliance constitutes discrimination should be addressed.

Costa Rica supported the intervention by Canada. The question of accessibility of natural environments is not a new question but it is a complicated one that will require creative thinking to resolve. Costa Rica did not support the proposed reference to private housing, as this creates serious legal complications. The delegate noted that Article 4 addresses access to information and encouraged caution regarding redundancy. Accessibility should be linked to the concept of equality and, as such, the question of new and existing buildings becomes clear: PWD should have equal access. The delegate urged caution with respect to the renovation of historical sites for the purpose of accessibility.

Liechtenstein supported Israel’s proposal as tightly focused and clear. This article has a progressive dimension so we can afford to be ambitious, knowing that implementation will not be required immediately. It is not necessary to refer to legislation, as implementation of substantive standards is covered in Article 4 on General Obligations. Liechtenstein supported the reference to “built and open environment.” It suggested introducing the term “on equal footing with others,” since equality is the goal. This might also address the discrimination question, promoting a positive message and avoiding the harsh idea that any noncompliance equals discrimination. It also supported the concept of applying accessibility requirements to buildings intended for public use.

Chile was flexible regarding noncompliance constituting discrimination, however it did believe that lack of accessibility is a form of discrimination. It suggested incorporating the concept of sanctions, oversight or control according to national law as a potential compromise. Chile supported the concept of applying accessibility requirements to buildings intended for public use and to referring to private workplaces in order to integrate PWD into the employment sphere. The delegate asserted that progressive implementation applies and provides States with some flexibility to adopt a manageable approach to ensuring accessibility of private workplaces. Regarding cultural or heritage landmark buildings, these should be open to PWD as their historic importance is important to everyone in society.

Argentina noted that 9(1) should identify more clearly the purpose of the article. It noted that both the built environment and open spaces should be accessible to PWD on an equal basis with others.

Russian Federation agreed with the EU’s comments on 9(1). 9(1)(a) should refer not only to construction and renovation of public buildings, but also to the equipment used in these buildings. It supported Liechtenstein’s comment regarding the flexibility created by the fact that this article is subject to progressive implementation. The delegate expressed concern regarding addressing how violations of law would be addressed by states, as it is impossible to envision all circumstances related to failure to comply.

The Chair noted that the Russian Federation’s intervention highlighted the dichotomy between the application of progressive realization to accessibility and the notion that noncompliance constitutes discrimination. Anti-discrimination measures require immediate implementation. There appears to be consensus that accessibility is subject to progressive realization and it would therefore create a contradiction within the text to indicate that failure to provide accessibility equals discrimination.

New Zealand stated that this article is subject to progressive realization and thus equating noncompliance with discrimination is not necessary. The delegate supported the suggestions made by Israel, but expressed concern about to the requirements related to private workplaces. Many economies are driven by small businesses and these must be protected from undue burden. With respect to private housing, New Zealand law contains three components: 1) approachability: there is a right for everyone to enter a private property through the front of the building; 2) accessibility itself; and 3) usability. These elements are well covered in Israel’s proposal. New Zealand supported the EU concept of equality of access and increased accessibility through reasonable accommodation.

Australia supported the concept of applying accessibility requirements to buildings intended for public use. It encouraged the incorporation of the concept of eliminating barriers in 9(1). The delegate reiterated the necessity of providing flexibility for states in terms of how to meet their obligations and thus supported the term “appropriate measures” as a way to qualify implementation efforts. Regarding access to the “open environment,” it is very difficult on a practical level to guarantee this as described by some delegations. However, Australia’s interpretation of access to the open environment is that the facilities that enable people to enjoy spectacular views or visit historic sites, for example, should be equally accessible to PWD. This is addressed very well in the EU text, which refers to the construction of “public buildings” and “indoor and outdoor facilities.” Australia did not support Israel’s suggestion to specify legislation and the implications of noncompliance or a link to reasonable accommodation in the chapeau to 9(1). The delegate clarified that reasonable accommodation is a fundamental mechanism by which discrimination is overcome. Article 5 on Equality and Non discrimination includes reasonable accommodation and applies to all articles in this convention. It should not be used to qualify obligations that are considered too onerous: that devalues this critical concept as a concession or a compromise. Furthermore, including express mention of reasonable accommodation in some places undermines its implicit application to all circumstances.

South Africa, on behalf the African Group, stated that accessibility extends to services, resources and opportunities. The concept of elimination of barriers in addition to obstacles should be incorporated in 9(1). It supported the working text with regard to the issue of public buildings, noting that it would address the question of private buildings in the discussion of 9(2). The element of equal access is a central theme in the EU text and reasonable accommodation becomes important in this regard.

Yemen expressed its confidence that PWD have the right to access and to enjoy all that is needed for a full and dignified life - in any sphere, including public and private workplaces, old and new buildings and historical spaces, the natural environment, etc. Yemen agreed that access is not exclusive to physical entities but also includes information and supported a progressive approach to implementation. In 9(1)(a), Yemen suggested including “public and private buildings” when they relate to employment, or, alternatively, to simply use “workplaces” and omit “public and private buildings.” Yemen supported stronger language than “promotion and encouragement” in referring to states’ obligations in the area of accessibility.

China stated that 9(1) was somewhat confusing and suggested referring back to the facilitator’s text for clarity.

The Chair summarized the discussion on 9(1) as follows:

• Regarding the EU’s restructuring of the chapeau, no objections were noted and the Chair suggested adopting the proposal.
• The Chair noted the need to ensure that the mention of reasonable accommodation does not create a loophole regarding accessibility in the broader sense.
• There was clear agreement that this article is subject to progressive implementation and that buildings, facilities and services include those intended for public use, regardless of ownership.
• There was agreement that that 9(1) should apply to new and existing buildings, although the question of private housing would have to be revisited.
• Further reflection was also required about the application of standards to private workplaces.
• There was consensus that PWD should have access to the “open environment,” within the practical limitations of nature.
• There was both support and concern regarding the equating of noncompliance with discrimination, thus this subject would require further discussion.
• The proposal to include “barriers” would be easily accommodated.

In moving to 9(2) the Chair noted the additional paragraph proposed for this article in the IDC text. The EU proposal included the replacement of 9(2)(b) with 9(2)(b)(bis). The EU also proposed deletion of 9(2)(f)(g)(h) of the working text, although flexibility was noted. The EU also supported some of the IDC’s new paragraphs but expressed concern about others.

Israel reviewed its proposal to move 9(2)(a) up to the previous paragraph as a new 9(1)(c), clarifying that it is not only States Parties to that were obliged to provide accessible signage but private enterprises serving the public as well.

The Chair noted that that requirement was generally supported, but that the text in 9(2)(a) may not clearly reflect that.

Venezuela asked the Chair to not close discussion on 9(1) as it had not had the opportunity to comment on the paragraph.

The Chair reiterated the importance of maintaining the time frame established at the beginning of the meeting in order to complete a review of the entire text within the three week meeting, as mandated by the General Assembly. Therefore, the Chair suggested proceeding to 9(2), however he noted the importance of providing delegations the opportunity to speak.

Venezuela requested that it be permitted to speak briefly to 9(1). With the Chair’s agreement, Venezuela continued by noting the importance the article, which is critical to Venezuela’s national policy of social inclusion. Accessibility extends beyond the physical realm and the inclusion of access to information is therefore welcomed. However because accessibility goes further than that and relates to the rights of PWD to a full and dignified life, Venezuela proposed the addition in 9(1), after “a persons with disabilities” of “through equal conditions in areas such as education, health, employment, sports and culture,”.

India, also speaking to 9(1), urged the use of the Chair’s text as a basis for discussion because the first sentence of that text is clearly centered on accessibility, while the EU proposal focuses on the right to live independently. India also did not support introducing reasonable accommodation in 9(1) and suggested maintaining the Chair’s text in its entirety.

Brazil proposed that the concept of buildings intended for public use be reflected in 9(2)(a) as well. Brazil disagreed that making historical buildings accessible might conflict with the preservation of cultural heritage. Brazilian legislation has successfully protected the characteristics of historical building while also providing for their accessibility. Brazil supported the EU proposal for 9(2)(b)(bis), with the deletion of the word “relevant,” as relevance is too difficult to define given the range of disabilities that must be catered for. The delegate noted the complications associated with the equating noncompliance with discrimination given the progressive implementation question. However, it is important to include a reference to monitoring the implementation of these standards and possibly the idea of sanctions, although this is better placed in 9(1).

Jamaica supported Israel’s comments on 9(2) regarding buildings intended for public use. It suggested that “to provide” be replaced with “to ensure,” which would create the obligation for states to put in place whatever measures are necessary.

Serbia and Montenegro supported the EU’s proposal to merge 9(2)(f), (g) and (h) but urged caution that no substantive points be lost. The delegate supported the proposal for 9(2)(b)(bis) but noted the drafting issue of not overlapping with Article 20. The IDC reference to new and existing facility is a good one. Equating noncompliance with discrimination does not make sense given progressive realization, however there should be something added about sanctions. The IDC text in 9(2)(b), (c) and (d) it is too detailed and may serve better as an action plan. Universal design is important but may be better placed in Article 4 on General Obligations. Addressing copyright is important but would be better in another article. Costa Rica’s suggestion to add access to emergency services was strongly supported.

New Zealand suggested that “public buildings, facilities and services” be replaced by “buildings, facilities and services that are provided for use by the public.” This new language should also replace “public buildings and facilities” in 9(2)(b).

The Session was adjourned

 

AFTERNOON SESSION

Article 9 - Accessibility (continued)

Trinidad and Tobago recommended including language regarding providing access to emergency services in 9(2)(c). It supported Serbia and Montenegro’s recommendation to include some form of sanctions for noncompliance.

The Chair noted a high level of support for language related to emergency services.

Canada noted that in many cases the IDC’s proposed changes are addressed in the EU’s text and the utility in streamlining the text. It further proposed to change “minimal national standards” to “minimal standards” or just “standards” in 9(2)(c). Canada also proposed deleting the word “all” in the reference to stakeholders in 9(2)(e) as it may create scope issues. It did not object to the IDC proposal of adding 9(5), which refers to copyright protection laws not posing a discriminatory barrier, but noted that the provision required a reference to international obligations, a precedent set in other conventions.

China suggested adding the word “subtitles” after the reference to sign language and interpreters in 9(2)(b). It recommended deleting the word “minimum” before “national standards” in 9(2)(c). To broaden the scope of 9(2)(c), China recommended replacing the text after the word “guideline” with “concerning accessibility” China also noted that the EU proposal for 2(b)(bis) would be a replication of Article 20 and is not necessary. China did not support the recommendation of deleting 2(f), (g) and (h).

Japan supported the Chair’s text but could accept EU’s proposal of adding 9(2)(b)(bis) and wished to retain 9(2)(f), (g) and (h). Regarding 9(2)(b), Japan supported China’s proposal to add the word “subtitles” but wondered if “speech to text interpreter” should be added to cover persons who assist PWD. Japan noted that states could not force all private entities to adhere to the provision and suggested changing the word “ensure” to “encourage” in 9(3)(d). It indicated a need to consult internally regarding IDC’s proposal to move other articles to 9 but noted that the provision on intellectual property rights required a reference to international law regardless of its placement. Japan accepted changing the term “intellectual property rights” to “copyright.” Japan could not accept the IDC’s proposal of referring to noncompliance as discrimination in 9(2)(a).

Costa Rica asked if the provision in 9(2)(b) includes assistance for visually impaired persons with guide dogs, which was not clear in the Spanish text. It should be added if it is not included or is not clear.

The Chair conveyed his interpretation that Article 9 deals with accessibility issues in general, such as accessibility to buildings and facilities, while guide dogs are a personal form of assistance generally not made available to the public.

Venezuela proposed adding a subparagraph 9(2)(i) which would read “to guarantee, respect, and the enjoyment and right to work, education, health, culture, and sport for persons with disabilities.” It also suggested using a stronger adjective in the second line of 9(2)(c) in the Spanish translation when referring to national rules and standards.

The Chair stated that the areas in Venezuela’s proposed subparagraph are found in other articles and delegates should consider whether it is necessary to repeat them. Regarding proposals to shift provisions from other articles to 9, the Chair noted that there have been extensive discussions on the placement of articles in previous meetings and, furthermore, moving provisions may create gaps or omissions. He also stated that the current placement reflects a logical sequence.

South Africa, on behalf of the African Group, supported 9(2) as it stands. It emphasized 9(2)(f) which refers to information communication technologies. South Africa agreed with the language in 9(2)(g) regarding the design, development and production of accessible information but proposed changing “affordable cost” to “minimum cost” in 9(2)(g). 9(2)(h) should reference information in accessible formats.

Mexico stated that sign language is mentioned in 9(2)(b) as well as Article 24. It indicated its preference for the Spanish term for sign language.

Republic of Korea noted the importance of guide dogs as a means of accessibility but supported the Chair’s proposal to discuss guide dogs when discussing mobility.

The Chair opened the formal meeting to hear from civil society.

The IDC stated that 9(2)(a) could be further elaborated to include reference to accessible, usable formats. IDC supported the reference to sign language interpreters in 9(2)(b), noting this is the only article mentioning this fundamental accessibility mechanism. It suggested adding “professional” to “sign language interpreters” as this important job requires significant training not only in signing but also provide interpretation service without infringing upon the autonomy of the person with a disability. IDC stated that in addition to referring to facilitating access to assistive technology, 9(2)(b)(bis) should emphasize the need to build an environment suitable for everyone from the beginning. Cell phones are a good example of technology that is widely accessible, as deaf persons can use the instant messaging function to communicate. The IDC endorsed retaining 9(2)(f) ,(g) and (h) as those distinct subjects are all very important. Alternatively, the substance of those provisions could be incorporated in Article 4 on General Obligations.

Chile supported Mexico’s proposal for the proper Spanish term for sign language. Chile believed that intellectual property was covered appropriately in Article 30, but if it is moved to Article 9 as suggested by the IDC, it should be done in clearer terms and refer to access to information, not just culture.

India endorsed the retaining the word “provide” instead of changing it to “ensure” in 9(2)(e) and supported the EU’s proposal to for 9(2)(b)(bis).

Yemen supported many of the proposed changes to 9(2), particularly regarding sign language. It also noted that Braille can be costly for visually impaired person and suggested adding language that would make documents in Braille free of charge.

Mental Disability Rights International (MDRI) began by stating its support for the IDC proposals. It was concerned by the lack of emphasis on effective and equal programmatic access to services, which are key to people with mental disabilities, for whom lack of access does not result from obstacles in the built environment. MDRI noted that in 9(1) seeks to guarantee access in a variety of context, however the term “services” only appears at the very end and in such a way that its purpose appears to be to modify the preceding items. MDRI proposed a direct reference “programs and services” in 9(1) to ensure that people with mental disabilities have access to the programs and services that are often inaccessible to them in practice. MDRI was alarmed that accessibility is framed only as an obligation and not as a right to accessible environments and services on an equal basis with others. It is the specification of rights that is necessary to empower PWD and facilitate enforcement of this obligation by individuals. MDRI reminded the committee that accessibility is the only provision not framed as a right, which is reinforced by its placement in Part I of the convention. Comments by the EU, Chile, Brazil, Canada and others reflect their understanding of accessibility as a right. MDRI supported the IDC text, which frames accessibility as a right, but noted that the Chair’s text could be easily amended to reflect accessibility as a right by amending the 9(1) to read “States Parties recognize the right of all persons with disabilities to full and effective access, on an equal basis with others, to the built environment, to transportation, to programs and services and to information and communications, including information and communications technologies. To ensure this right, States Parties shall take all appropriate measures to identify and eliminate obstacles and barriers to such access that hinder the capacity of persons with disabilities to live independently and to participate fully in all aspects of life. These measures shall apply to, inter alia:” This formulation is a strong rights-protective provision that also addresses resource constraints through the qualifier that only “appropriate” measures must be taken. Regarding the structure, MDRI proposed including Article 9 and Article 5 in Part II of the convention, limiting Part I to general provisions that apply to all the protected rights recognized in the Convention. MDRI noted that most conventions have two non-discrimination/equality clauses—one framed as an obligation in Part I of the Convention, the other as a right in Part II. The right to reasonable accommodation is a right and should not be limited to a general obligation. In this way, non-discrimination and equal protection are guaranteed with regard to all rights and freedoms—both in and out of the Convention. This also addresses Australia’s valid concern that the concept of reasonable accommodation could be reduced to a “let-out” provision allowing States to escape their obligations with respect to substantive rights.

The Chair noted that structure of the convention should be discussed at a later time and said that the intention of placing articles in the beginning was to highlight them. He summarized the discussion of 9(2) as follows:
• There was a strong level of support for the working text with a few linguistic proposals.
• There was some resistance to Israel’s proposal of shifting the substance of 9(2)(a) to 9(1)(c).
• Delegates should reflect on whether 9 (2)(f) ,(g) and (h) could be replaced by the EU’s proposed 9(2)(b)(bis) – possibly with some expansion - without losing substance.
• The proposal to include emergency services and measures had good support but requires further discussion.
• The IDC’s proposal to shift various elements into Article 9 from other articles received a measure of support, but was not wholeheartedly supported. The Chair noted that the language in certain provisions may create issues if shifted to other parts of the convention. For example, copyright and intellectual property rights are mentioned in Article 30 in the context of culture and would have a broader context if moved to Article 9. Also if universal design, currently under Article 4 on General Obligations, is moved to a specific rights article, such as Article 9, then it has to be restated in all other relevant articles.
• The IDC proposal of qualifying sign language interpreters as “professionals” received support but requires further reflection.
• Some delegations voiced concerns over using the word “minimum” and “national” to qualify “standards” in 9(2)(c) and warranted further discussion.
• The proposal to change “ensure” to “encourage” in 9(d) was not endorsed by other delegations and might be an issue to return to later.
• The Africa Group suggested using “minimum cost” rather than “affordable cost” in 9(g) and Yemen endorsed language that would refer to providing assistance and technologies free of charge. Thus the cost issue remains a question.

Article 10 – Right to life

The Chair noted that only IDC had proposed changes to Article10, including the addition of “and shall recognize” and “in all stages of life” so that the provision would read “States Parties reaffirm and shall recognize that every human being in all stages of life has the inherent right to life . . .” IDC also proposed adding an additional line, “Disability is not a justification to terminate life.” Regarding the first phrase, “and shall recognize,” the Chair stressed the importance of keeping convention text consistent, specifically in terms of the level of obligation contained in the introduction of each article. The Chair asked delegates to refer to Article 6(1) of International Covenant on Civil and Political Rights (ICCPR), Article 6(1) in the Convention of the Rights of the Child (CRC) and Article 9 in the Convention on Migratory Workers, which relate to this issue.

Austria, on behalf of the EU, supported the Chair’s text of Article 10, which it noted was drawn from Article 6 of ICCPR.

Ecuador noted an important linguistic issue in the Spanish translation regarding the right to life.

India assumed that the IDC’s proposed line regarding terminating life referred to life as a fetus, which would open up a protracted debate. India suggested accepting the Chair’s text as it is.

Japan stated that if “all stages of life” included the life of an unborn child, it would be difficult to accept the proposal.

Costa Rica believed that this issue had been extensively discussed and the matter closed, and it was surprised that the debate was being re-opened based on an NGO proposal. Costa Rica’s understanding was that the committee would be base its discussion on proposals by member states, and keep in mind NGO proposals. The delegate asked for a clarification of the procedures of the session from the Chair. It noted its strong support for the substance of the IDC’s addition of “all stages of life” but if the objective was to reach a quick consensus, then it would support the Chair’s text to avoid an impossible debate.

The Chair noted that all articles need to be opened for discussion, even if the article is close to being settled or/or has not been the subject of proposals submitted in advance. Delegations may still have changes to propose. The Chair noted that he had followed the same procedures for Article 10 as he had for Articles 5, 8 and 9, drawing attention to proposed changes submitted in advance. In the case of Article 10, the only submitted change was that of the IDC. The Chair stated that is was clear that there would not be a consensus in favor of change to the text. The Chair asked if delegates would be willing to close the debate, which he himself would support, noting that he would nonetheless follow procedure and offer civil society the opportunity to comment.

El Salvador stated its support for the Chair’s text.

United States stated that it was ready to support the phrase proposed by IDC “in all stages of life” but did not think it was necessary since it was implied in the language, “inherent right to life.”

Chile noted that at an earlier session it had raised the issue regarding “all stages of life” but had withdrawn its proposal to be flexible. It now repeated its support for including the phrase.

Syrian Arab Republic stated its support for the IDC proposals, since the convention deals with all rights of PWD.

Yemen stated that the words “inherent right to life” would include all stages of life and supported the Chair’s text.

Holy See stated that the Chair’s text does protect the rights of PWD, but agreed with Costa Rica that IDC’s proposal would enhance the text.

The Chair opened the formal meeting and gave the floor to the IDC.

IDC stated that it had proposed its changes to Article 10 to highlight the reality of certain situations. Regarding the first change, the IDC had debated whether “recognize” was stronger than “reaffirm” and decided to include both as consensus could not be reached. The IDC had added the phrase “all stages of life” to address not only children but older people with disabilities whom society often regard as lacking quality of life and creating a financial burden on society. IDC did not wish to start a debate on when life begins and ends, but did want to cover all parts of life. Regarding its further proposal to add the sentence “Disability is not a justification to terminate life.” IDC’s objective was to highlight the fact that PWD are often are isolated, starved and neglected because some regard terminating life a better alternative than living with the disability. IDC stated that, after hearing the comments from delegates, it would withdraw its proposals, but that the debate had been necessary to draw attention to these terrible realities. It did not have a problem with the Chair’s text but noted that this debate would never, in reality, be concluded.

The Chair recognized the extreme importance of the issues raised by the IDC and the difficulty was achieving consensus. He noted that the language in the Chair’s text was consistent with other conventions with regard to this issue. However, with respect to the strength of language in relation to affirmation and legal obligation, there is not always consistency among conventions. In terms of this convention, there is currently a lack of consistency within the text in and the Chair asserted the need to examine the language at the beginning of each article.

Article 11 – Situations of risk

The Chair noted the square brackets surrounding this article because there had been no clear agreement for inclusion of such an article or for the terms of its inclusion. The Chair noted that the matter was discussed among regional groups but no obvious outcome was reached. The Chair opened the floor for further discussion.

Palestine reasserted its desire to include language regarding the rights of PWD living in situations of armed conflict and the protection afforded to them by international law. Simply making general references to situations of risk is not clear. Palestine strongly recommended specifically mentioning armed conflict, foreign occupation and, based on comments from other delegations, natural disaster.

The Chair noted that the Security Council is currently examining these particular situations.

Australia supported the Chair’s text, noting that “situations of risk” is a broad term, which is its strength. The broad text gives states guidance on planning for emergency situations and responding to persons with disabilities without specifying how they should do so.

Austria, on behalf of the EU, noted that, although in the past it had been against a separate article relating to situations of risk, it is now willing to accept it and supported the Chair’s text, which is based on Article 38(4) of the CRC.

Canada asserted that there is no comparable provision in other conventions such as the Convention on the Elimination of all Racial Discrimination (CERD), the Convention on the Elimination of all Discrimination Against Women (CEDAW) or the CRC. This is not a problem, however the provision should include language indicating that this obligation is on the basis of equality with others and the delegate suggested sample language to achieve this.

The Chair perceived general agreement to include situations of risk as a separate article and thus proposed focusing on the content of the text. He noted that the Article 38(4) of CRC does address armed conflict, but does not go beyond that situation to the others raised in discussion.

Yemen referred to a proposal it made in the third session, which provided language to protect PWD affected by armed conflict and who live under foreign occupation, as well as refugees and displaced persons.” Yemen supported Palestine in raising this extremely important issue.

Syrian Arab Republic stated its support for Yemen’s and Palestine’s positions and noted that the term “situations of risk” was too generic. It endorsed a more detailed text to provide guidelines for states for translating the abstract concepts into concrete measures.

Russian Federation supported the Chair’s text.

Qatar supported comments made by Yemen, the Syrian Arab Republic and Palestine. Qatar noted that paragraph (p) of the Preamble mentions armed conflict but does not reference the Geneva Conventions of 1949. Qatar suggested that international law should be mentioned in Article 11, as it is in Article 30(3) regarding intellectual property.

The Chair thanked Qatar for drawing attention to the fact that Preamble (p) deals with armed conflicts, which have especially devastating affects on PWD.

Israel stated its support for the Chair’s text.

El Salvador suggested that using general language rather than listing the situations may be preferable. If a list is included, El Salvador would feel obliged to mention the risk situation created for PWD facing HIV/AIDS, who may face double discrimination and accessibility of information issues. Taking a broad social development/humanitarian law approach inherently inclusive of all situations of risk would be less complicated than addressing each specific situation.

United States reiterated the Chair’s point that these issues are already under consideration by other bodies including the Security Council and asserted that this convention is not the forum to discuss them. The U.S. supported the Chair’s text, as the IDC’s proposed changes create the risk of becoming mired in complicated international law issues.

New Zealand stated its support for the Chair’s text and leaving situations of risk in general terms.

Japan stated its support for the Chair’s text.

The Chair opened the formal meeting to hear from civil society.

The IDC noted that some delegations supported mentioning specific disasters while others did not. IDC had chosen not to list situations of risk but it did have problem with the term “vulnerable” in the article. The IDC recognized the importance and appropriateness of the use of the word in Article 48(4) of the CRC, but asserted that it is not appropriate with respect to adults with disabilities. All people are vulnerable in situations of risk and PWD are often in no greater position of vulnerability than everyone else. The IDC noted that it did not have an alternative term to propose. The IDC strongly recommended stating in the text that international humanitarian law protects PWD on an equal basis with others and noted an ongoing internal debate regarding these issues.

The Chair informed the committee that the Office of High Commissioner for Human Rights has an increasing tendency to change the term “vulnerable groups” to “groups in vulnerable circumstances.” This indicates that vulnerability is acknowledged as inherent to the situation and not to the members of the group. The Chair encouraged delegates to reflect on this possibility, noting that this is an important matter of nuance that does affect the underlying theme of the convention.

The Inter-American Institute of Disability, on behalf of IDC, stated that there are many other situations besides armed conflict, such fire, floods, and accidents that require preventive action and rescue and emergency services to safeguard the safety of PWD. Measures and action should take into account the special conditions which exist in urban and rural areas.

Libyan Arab Jamahiriya stated its support for Yemen’s proposal.

Islamic Republic of Iran supported the Chair’s text but noted that the language should take into account Preamble (p) to present a more balanced and completed text.

The Chair summarized the discussion as follows:
• There was general agreement to include a separate article on situations of risk.
• There was a strong level of support for the language found in the working text.
• Some delegations expressed the need to include reference to civilian populations in armed conflict, which is also dealt with in the preamble, and to specify situations such as natural disasters and refugees. Other delegations voiced concern that listing specific situations of risk would be a controversial process.
• The Chair’s proposal of using the term “groups in vulnerable circumstances” should be considered.
• Delegates should reflect on whether to introduce the element of protecting PWD on the basis of equality with others in these situations. This is complicated because PWD may in fact have additional needs that would not be a factor for people without disabilities.

Article 12 – Equal recognition as a person before the law

The Chair noted written proposals by the EU (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm) and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc).

Chile recommended deleting the square brackets around “legal capacity” in 12(2) and not revisiting past discussions on the various kinds of capacity, recognizing that legal capacity is an established concept in all legal systems. Chile also pointed that in 12(2)(a) the term “where appropriate” limits the level of support and should be deleted. It proposed adding the term “in accordance with due process” in 12(2)(b), which deals with appointment of a personal representative as a matter of last resort Chile stressed that not including this concept could undermine the legal capacity of persons with disabilities.

Austria on behalf of the EU, recommended leaving the square brackets around “legal capacity” in 12(2). The EU also proposed deleting “to the extent possible” after “ensure” to strengthen the provision. It noted its flexibility regarding the two terms it proposed at the end of 12(2) in the Chair’s text and that it would like to keep the concept of additional safeguards in 12(2)(b), though it noted concerns about the wording. It invited interested parties to meet to discuss this article before the next morning’s session.

Jordan proposed the following language for 12(2): “States Parties shall recognize that persons with disabilities have legal capacity on an equal basis with others in all fields. State Parties shall ensure, to the extent possible, that where support is required to exercise the capacity to act:” Jordan also noted its flexibility about adding the due process language in 12(2)(b).

The Chair confirmed that Jordan’s proposal was breaking 12(2) into two sentences which separate the legal capacity that all people have from the capacity to act, which may vary depending on the circumstances.

Japan proposed replacing the first sentence of the article with the wording proposed in the first working group draft: “States Parties shall recognize persons with disabilities as individuals with rights before the law equal to all other persons” Japan also stated its support for using the term “capacity to act” at the end of 12(2). It suggested defining legal capacity in the article if delegates could not reach consensus on its meaning. Japan also proposed deleting in 12(2)(b), “including regular review of the appointment of and decisions made by the personal representative” since states should have discretion in administering this according to their national system. Japan proposed adding “without prejudice to paragraph 2 of this article” as a qualifier in 12(3) because, if guardianship is included in the concept of “personal representation,” guardians will necessarily be involved in decisions regarding property and financial affairs.

Norway reiterated its concern with the concept of legal capacity, arguing that persons do not have legal capacity if they are not able to exercise it. Previous meetings had heard the assertion that persons do have legal capacity even when they require someone else to exercise it for them. Norway preferred a text that is more honest and clear on this issue. Norway supported 12(1) and the EU’s proposal regarding 12(2). However, if the Chair’s text for 12(2) is selected, Norway required retaining a more clarified version of 12(2)(b).

Mexico asserted the need to distinguish between legal capacity and the capacity to act. It concurred with the EU that 12(2)(b) needs to be reworded and called for further discussion of how to address “intellectual incapacity” such that both rights and protection are adequately ensured.

Serbia and Montenegro stated that the term “legal capacity” in 12(2) was acceptable. However, it proposed for clarity to replace in 12(2) “capacity to act” with “rights and duties.” Serbia and Montenegro echoed its support for EU proposal to delete “to the extent possible” in 12(2). It supported the Chair’s text of 12(2)(a) and stated that deletion of 12(2)(b) would be unacceptable. Serbia and Montenegro noted support for the intent of 12(3), but found it too detailed.

Uruguay stated that, in principle, the Chair’s text was acceptable. It preferred to keep “legal capacity” and add “that capacity” at the end of 12(2), with the justification that the need for a representative does not nullify legal capacity Uruguay supported Chile’s proposals to include the concept of due process in 12(2)(b).

Costa Rica supported the positions of Chile and Uruguay. Costa Rica did not see any value in using the word “everywhere” in 12(1) but was flexible on this issue. It further pointed out that the phrase “to the extent possible” in 12(2) seemed to be eliminating rights. Costa Rica proposed deleting the term “where appropriate” in 12(2)(a) unless there was a reason to keep it. The delegate was prepared to join efforts to revise 12(2)(b), endorsing the basic idea but noting that the text needed work. Costa Rica commented that everyone has legal capacity, but anyone might need support to exercise it.

The Chair noted Costa Rica’s point on the phrase “recognition everywhere” in 12(1), stating the language was borrowed from Article 16 of ICCPR, but that “everywhere” was probably not necessary. The Chair also noted support for retaining the substance of 12(2)(b) but encouraged delegates to consult with one another and produce better wording.

The session was adjourned.

 


The Seventh Ad Hoc Committee Daily Summaries is a public service by Rehabilitation international (RI)*, a global network promoting the Rights, Inclusion and Rehabilitation of people with disabilities. RI extends its sincere gratitude to the Government of Mexico for its generous support as well as to the Government of Liechtenstein for their technical support towards this project. RI also recognizes the significant contribution of the Council for American Students in International Negotiations (CASIN), whose members are serving as reporters for the Seventh Session.

The daily summaries are available online at http://www.riglobal.org/un/index.html in MSWord; http://www.un.org/esa/socdev/enable/rights/ahc7summary.htm; and http://www.ishr.ch

Reporters for Volume 8, #2 were Vasti Cedeno, Aisha Husain and John Sun. The Coordinator/Editor for the Volume 8 series is Joelle Balfe. Please forward any corrections or comments to joelle8summaries@yahoo.com.

Anyone wishing to disseminate the Summaries and/or translate them into additional languages is encouraged to do so, with the request that you please retain the above crediting language.

* The Daily Summaries do not reflect the views of Rehabilitation International.


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United Nations, 2006
Department of Economic and Social Affairs
Division for Social Policy and Development