Back to: Seventh
Session of the Ad Hoc Committee
Summaries of the Seventh Session
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Article 14 – Liberty and security of the person
The Chair reflected on the good level of support of the working text for Article 14 shown by the delegations the previous day. He indicated that IDC’s more abbreviated approach for 14(2) would assist in resolving the issues raised by several delegations regarding appropriate insertion “on an equal basis with others.”
Austria, on behalf of EU, agreed that the IDC proposal did address the concern with listings in general and with the one in 14(2) in particular, which enumerates certain safeguards but raises questions as to whether those that are not mentioned apply equally to PWD. It noted that the IDC proposal adds a list of the areas in which reasonable accommodation applies and believed that list could be deleted. It supported the IDC focus of ensuring protection “on an equal basis with others” but noted that international human rights law should be mentioned. On the basis of this analysis, the EU had prepared a revised text (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm), which was being circulated. The delegate noted that Braille versions were not available and therefore read the proposal out loud.
Republic of Korea was comfortable with EU proposal, but suggested adding the concept of prompt access of PWD to legal and other appropriate assistance.
The Chair confirmed the importance of the issue but suggested raising the issue of prompt access in another article.
Serbia and Montenegro was comfortable with proposal with EU proposal. Regarding the concern of Korea regarding “prompt access,” Serbia and Montenegro suggested that 14(2) of the EU text be amended by adding “and very necessary with the prompt provision of accommodation.”
Republic of Korea agreed to that suggestion.
The Chair noted proposals to amend 14(1)(b), however he asserted that the changes were either not substantive or represented issues that had already been thoroughly debated. He believed that the text as written is reasonably balanced and should be retained. This is essentially a non-discrimination provision. The debate has focused on the treatment of PWD on the same basis as others. PWD who represent a legitimate threat to someone else should be treated as any other person would be. The Chair believed that the text achieves this balance and encouraged informal discussion if delegates still had concerns.
ARTICLE 15 – Freedom from torture or cruel, inhuman or degrading punishment
The Chair noted that no proposals had been received from states, but that
there were proposals from civil society. (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc)
Vanuatu strongly supported the IDC proposal to 15(1). It should be read in the context of Article 12 which addresses legal capacity. He noted that the systems in Sweden, Canada, Italy and Germany represented excellent examples for other states to emulate. The delegate then introduced a colleague from civil society to speak on behalf of Vanuatu. The speaker asserted that forced intervention, forced treatment, force electroshock treatment are “quite simply wrong” and they must stop. Many argue that people who live with madness are a danger to society and to themselves, which justifies treating them differently from others and taking measures to protect society. The speaker noted that people who smoke are a danger to themselves and to society but they are not locked up as a result. PWD want equality and to be treated in a “normal fashion”. If a person with a disability commits a crime, he or she should be locked up. But PWD must not be locked up in anticipation that they might commit a crime. People are being caged and force medicated with substances that create serious long-term health problems in the interests of “their own good.” This is torture and abuse. The speaker urged the committee to take seriously its duty and opportunity to change perceptions of PWD and to be the voice for those who had no voice.
Argentina stated that convention should stipulate that PWD should not be subjected to scientific medical experimentation without their consent. Such acts are often carried out by individuals and entities that are not state actors and thus fall outside the scope of the definition of torture in Article 1 of the Convention Against Torture (CAT) Therefore, a provision to address this should be included in Article 15.
Norway supported the Chair’s text. It noted that if a person cannot consent, that should not necessarily exclude them from treatment, including new and experimental treatment. Excluding PWD who cannot consent from these important opportunities would be discrimination. The delegate noted that Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and the General Comment on that article provide for a dynamic interpretation of this issue. Norway also pointed to the Article 15 of the European Convention on Human Rights and Biomedicine (http://conventions.coe.int/Treaty/EN/Treaties/Html/164.htm) as an important resource that addresses this issue.
Mexico, proposed replacing in 15(1) the word “experimentation” with “procedures” and adding “to protect their integrity and human dignity” at the end of the paragraph. This would add precision to the article.
Mexico, proposed replacing in 15(1) the word “experimentation” with “procedures” and to add “to protect their integrity and human dignity” without the free and informed consent provided. “Informed to protect the integrity and human dignity” at the end of the paragraph. This would add precision to the article.
The Chair noted that using “procedures” did not appear to be in accord with the approach of other delegations concerned specifically with experimentation.
Austria, on behalf of the European Union, noted that Article 15 reflects the last EU position. The delegate stated that the issues in Article 15 and Article 17 must be kept separate, as is the case in other international human rights instruments. The EU accepted the Chair’s text, as it the wording is nearly identical to that of ICCPR Article 7 and to that of Article 2(1) of the Convention Against Torture (CAT). This will be a helpful formula with respect to interpretation questions.
Yemen supported the Chair’s text but stated that the issue of medical or scientific experimentation required further comment. Yemen asserted that even if a PWD consents to such experimentation, it would not be totally appropriate. The delegate suggested that “informed consent” may not be sufficient and suggested changing that phrase to “enlightened consent.” This would allow people with disabilities, such as hearing or sight impairments, who could fully understand the nature of these experiments to participate in experimental medicine but would protect people with “mental disabilities” who would not be able to make enlightened decisions without support. Yemen supported Mexico’s proposal to amend “experimentation” with “procedures.”
New Zealand accepted the Chair’s text. There has been a growing awareness throughout the negotiation of this treaty that there are many and serious abuses regarding forced institutionalizion and forced interventions for PWD. Despite concerted efforts to ensure that these issues are adequately defined and addressed in the convention, an accepted solution remains elusive. Current legislation and practices in many states, in effect, sanction these abuses. These must be covered by the convention. The delegate noted, however, that stripping of legal rights based on lack of capacity is addressed in Article 12. Article 14 covers abuses resulting from detention. Article 15 and 16 include strong statements against any actions tantamount to abuse, violence, or torture, it is important to remain strong on those points. Given the debate, this may be as far as we will be able to go and will, in fact, be enough to promote a progressive approach for states to take. The current text of Article 15, closely resembles Article 7 of ICCPR and must be retained with as little change as possible.
Russian Federation fully supported inclusion of this article and the working text, noting the importance of keeping distinct the issues in Article 15 and Article 17. The delegate asserted that replacing “experiment” with “procedure.” would change the substance and leave certain issues unaddressed. It noted that there are complex issues that will emerge in the implementation of Article 15 and will have to be resolved as part of the implementation process.
The United States agreed that the language in the text is in line with other international human rights instruments and asserted that it would be dangerous to change wording that is embedded in bedrock human rights texts. The U.S. was not unsympathetic to the concerns raised but nonetheless supported the text as drafted.
Costa Rica supported the proposal made by Argentina. Experimental procedures that are scientific or medical need to be governed to ensure that they do not constitute torture. It is not clear that Article 15 accomplishes this. It is not necessary to replace the word “experimentation” with “procedures.” What is important is that states prohibit these procedures from being conducted without free and informed consent. This article could be clarified or moved to Article 17, which addresses exploitation, violence and abuse.
Serbia and Montenegro agreed with the EU, Norway, the U.S., the Russian Federation and New Zealand and stated that the text should kept as it is.
Mexico noted the discussion and stated that it was now prepared to be flexible on the wording “experimentation” and “procedures,” because the existing text is consistent with other international instruments. Mexico also agreed that it is important not to mix these issues with the content of Article 17.
Jordan supported the current text but suggested deletion of the words “and informed,” with regard to consent, in order to make the language identical to Article 7 of ICCPR.
The Chair noted the clear desire from past discussions to qualify “consent” with “free and informed,” which also relates to the question of accessibility. He noted that “free and informed consent” is a term of art in the English language, recognizing that the phraseology may differ in other languages. As Yemen had pointed out, information needs to be provided in a format in which it can be understood. The Chair supported keeping the language as it is written.
Uruguay noted that, to be consistent with the ICCPR, “No person with disabilities” should be changed to “No one” in the first line. It also supported Argentina’s intervention.
Morocco supported the Chairs text, with the addition of “health” after “judicial” in the list of measures States Parties are obliged to take.
The Chair noted that Morocco’s comments raised a generic issue regarding formulation when referring to measures that must be taken. A decision should be made regarding that formulation, and it should then be used consistently throughout the text.
Chile supported Costa Rica’s arguments that the sentence relating to medical and scientific experiments should be moved to another article, preferably Article 17. No free and informed consent is sufficient to justify practices that amount to torture or inhuman or degrading treatment and some countries do not have sufficient domestic legislation to regulate this.
The Chair opened the formal meeting to hear from civil society.
The IDC stated that un-consented interventions affect a wide range of people with disabilities, including people with HIV/AIDS, physical disabilities and sensory impairments. However, IDC would address primarily psychiatric interventions, since that is the area where laws explicitly permit interventions against a person’s will – in violation of their human rights. The IDC proposal to add in 15(1) “and interventions aimed at correcting, improving or alleviating any actual or perceived impairment” after “medical or scientific experimentation” is an important application of the norm prohibiting torture and other cruel, inhuman or degrading treatment or punishment in the disability context.
The IDC noted that the Human Rights Committee stated in General Comment No.
20 that there is no clear line between torture and the other forms of ill-treatment
prohibited under ICCPR article 7. Regional courts have also begun to recognize
that this is a fuzzy distinction. Therefore the question of whether some, or
all, forced interventions related to an impairment rise to the level of torture
is not an impediment to including this prohibition in Article 15. It should
be clear that such interventions, which violate the autonomy, dignity, integrity
and identity of people with disabilities, are in all cases inhuman and degrading.
The language currently proposed by IDC puts such interventions on a par with
medical and scientific experimentation, which is appropriate given their common
history in relation to people with disabilities. The representative referred
delegates to the reference of the first UN Special Rapporteur on Torture to “administration
of drugs, in detention or psychiatric institutions” including “neuroleptics,
that cause trembling, shivering and contractions, but mainly make the subject
apathetic and dull his intelligence” as a form of physical torture. (1985/33
E/CN.4/1986/15, 19 Feb. 1986, para. 119, http://ap.ohchr.org/documents/dpage_e.aspx?m=103
The IDC informed the committee that, this year, a major human rights organization called for the immediate release of a political prisoner detained in a psychiatric institution who had received forcible injections of the neuroleptic drugs thorazine, trifluoperazine and cyclodol - drugs that cause extreme suffering. Yet these human rights champions passed by the other inmates who were receiving the same treatment but were presumed to be mad rather than sane. For them, this was considered a therapeutic treatment, even a necessity. Its certification as therapy by medical professionals disqualifies it as ill-treatment in most people’s perception. This position naturalizes social prejudice as a medical judgment and madness as a disease, not a disability. In the absence of other options, some people with psychosocial disabilities do choose these medications. And while the consenting use of such drugs would not be torture or other ill-treatment, administration without consent causes abject terror and actual changes to the experience of selfhood, with lasting harmful and traumatic consequences, and must be prohibited as an implication of the norm against torture and other ill-treatment.
Mentally Disability International disagreed that Articles 15 and 17 must be maintained as separate articles to be consistent with other instruments, such as the ICCPR. It also challenged the idea that separation will facilitate questions of interpretation. First, international law does not tend to separate into separate articles or ideas the prohibition on torture and cruel, inhuman or degrading treatment, on the one hand, and the right to physical, mental and moral integrity, on the other. The American Convention on Human Rights includes both sets of guarantees in Article 5. (http://www.oas.org/juridico/english/Treaties/b-32.htm). Although both the ICCPR in Article 7 and the European Convention on Human Rights in Article 3 (http://conventions.coe.int/treaty/en/Treaties/Html/005.htm) guarantee expressly only against torture and cruel, inhuman and degrading treatment, neither one contains a separate article on the right to personal integrity. Rather, the monitoring bodies for both instruments have tended to interpret cruel, inhuman and degrading treatment as a type of severe abuse of the right to physical, moral and mental integrity. Furthermore, the U.N. General Assembly has declared that “cruel, inhuman, or degrading treatment or punishment” should be interpreted to provide the broadest possible protection against both physical and mental abuse. The Inter-American Court of Human Rights has found that certain acts that put an individual “in a particularly vulnerable position” can be considered cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and in violation of article 5 of the American Convention on Human Rights.
Separating cruel, inhuman and degrading treatment from the right to personal
integrity (physical, mental and moral) does not aid interpretation. Both “rights” fall
along a spectrum of personal-integrity abuses. Once a violation of personal
integrity is established, a fact-finder must look at the particular circumstances
of a given case before him or her to determine whether it constitutes a violation
of the right to personal integrity or whether it rises to the level of cruel,
inhuman or degrading treatment or even to torture. Forced sterilization—a
type of forced intervention affecting a person’s integrity—has
at times been found to violate the right to integrity of a person and at other
times (depending on the precise circumstances) been found to constitute cruel,
inhuman or degrading treatment. In this context, it does not make sense either
to truncate one end of the spectrum (only prohibiting some unjustified abuses
of integrity) or to separate the two ends at some arbitrary point in between
and force a fact-finder to straddle two separate articles and hence two separate
sets of allegations.
MDRI encouraged the Committee to return to these issues in its discussion of Article 17, the first paragraph of which should be merged with Article 15, in line with the IDC proposal.
The Chair summarized the discussion as follows:
• There was a good level of support for working text.
• There was a proposal to restructure 15(1) by moving the second sentence, perhaps to Article 17. There was some opposition to that, with some delegations noting the importance of being consistent with the ICCPR. The Chair noted that Article 7 of ICCPR does contain the elements found in both sentences of 15(1). This is a structural issue that may be revisited,
• Mexico’s proposal to replace “experimentation” with “procedures” had garnered some support but had been withdrawn by Mexico in light of the debate.
Article 16 – Freedom from exploitation, violence and abuse
The Chair noted there were proposals from Austria, on behalf of the EU, (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm) and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcart17.doc).
Canada generally supported the Chair’s text. It recommended adding “from all forms including sexual and gender based forms of exploitation violence and abuse” at the end of 16(1). Also in 16(1), Canada suggested adding “to provide equal protections for persons with disabilities and” after “measures.”
Brazil supported the draft text, however, it proposed adding the words “including of image” after “exploitation,” noting concern regarding negative exploitation of the image of PWD, often by “charity” organizations. This change would be needed in 16(1), (3), (4) and (5).
Yemen supported the text of Article 16. It was satisfied with the general phrase “all forms of exploitation, violence, and abuse.” This wording keeps the text well streamlined. Within the article, the role of the family should be emphasized, due to its vital role for PWD. In 16(5) the words “where appropriate” should be deleted. Yemen suggested that States Parties be required to put in place punitive measures for those who violate the provisions of the article.
Venezuela was not clear about the meaning of “independent authorities” in 16(3). It suggested replacing “to monitor” with “to supervise,” which is a more positive term.
China reiterated Venezuela’s point that “independent authorities” is vague and unclear. China asked for clarification in 16(5) of the word “identified,” in particular, how it differs from “investigated.” If it refers to monitoring, as in 16(3), the word “monitoring” should be used.
The Chair noted that previous discussions had clearly indicated that monitoring of facilities and programs should be done from by a source exterior to those programs and facilities. Many instances of exploitation, violence and abuse occur in programs designed to serve them, thus the need for monitoring. If the monitoring is done by those running the facility or program, the impartiality necessary for an honest assessment is missing. The concept of independence and impartiality must be included in monitoring. In response to China’s request for clarification of “identify” in 16(5), the Chair indicated that the major challenge to monitoring is often in establishing that there is a problem. Identifying problems is a distinct element of monitoring. The system must ensure that violence and abuse are brought to the attention of authorities, then they can be investigated. He noted that the issue may be partly a linguistic one with respect to the Chinese language. He proceeded to review the proposed changes that had yet to be resolved.
Austria, on behalf of the EU, explained that its amendments were not major and that it generally supported the Chair’s text. Because “family and caregivers” only appears in Article 16, in a provision dealing with abuse, it casts them in a very negative light. Austria noted the potential for violence and abuse by family and caregivers but asserted that, for the most part, the role that they play is positive and important in the lives of many PWD. Therefore, it suggested deleting “and their families and caregivers” in 16(2). It also suggested that the link to prevention is too strong in 16(2) and proposed introducing the prevention aspect in 16(1) in conjunction with the concept of protection. It could then be eliminated from 16(2).
The Chair did not agree that the image of family and caregivers is negative in 16(2). The reference is in terms of providing assistance and support to recognize and prevent abuse. Family and caregivers are referred to because they require information to know how to recognize abuse occurring outside the family.
Japan agreed with the EU perception of 16(2) and supported its proposal. The focus should be on PWD themselves. Regarding 16(5), efforts to prevent exploitation and abuse should not be limited to legal measures. Japan proposed replacing “investigated” with “intervened.” and deleting “and where appropriate, prosecuted.” This would broaden the interpretation beyond legal measures.
The Chair noted that “intervened” does not work on a linguist level and suggested that “pursued” might achieve Japan’s goal.
Mexico suggested adding in 16(1) a non-exhaustive list of examples of exploitation, violence and abuse. This language would read “such as physical violence; mental, violence, damage or abuse; negligence; mistreatment; and exploitation, including sexual abuse and economic abandonment and harassment.” Mexico noted that the term “exploitation, violence and abuse” appears in several parts of the article and that this additional list would not necessarily be attached to it in every case.
Russian Federation stated its flexibility regarding the EU proposal. It did not support adding examples exploitation, violence, and abuse. Regarding Japan’s proposal for 16(5), the Russian Federation recalled that previous discussions had concluded that some instances of exploitation and abuse should be subject to criminal law. The language in 16(5) should therefore be retained. It did not support Yemen’s proposal to delete “where appropriate.”
Syrian Arab Republic fully supported Article 16, however it supported Yemen’s suggestion to delete “where appropriate.”
Qatar noted that 16(3) charges State Parties with establishing independent authorities in all facilities that provide services to PWD. It also noted that the measures in 16(1) sometimes will take place in the homes of PWD. Special attention should be paid to the entities charged with such enforcement. Qatar stated that “independent authorities” should be understood to be national entities that are free from any foreign intervention. It noted that the inclusion of 16(3) represents a repetition to Articles 33 and 34, which address international monitoring.
The Chair clarified that “independent authorities” referred to national monitoring of facilities and programs.
Serbia and Montenegro supported the EU proposal. It noted the importance of mainstreaming gender and children’s issues and stated that it would study Canada’s proposal on women and children and IDC’s proposal to add a paragraph protecting children.
Venezuela clarified that the objective of its proposal was not to delete “independent authorities” but to specify who they would be, such as “national and professional” authorities. The delegate supported Mexico’s proposal to add a non-exhaustive list in 16(1), but suggested adding “lack of care” to that list.
Senegal supported the Chair’s text of Article 16, noting the need to be brief and avoid repeating the points already made.
Kenya generally supported the Chair’s draft. It opposed the EU proposal to delete “and their families and caregivers” in 16(2) and supported the Canada’s proposal regarding. women and children with disabilities.
The IDC representative provided personal testimony of violence and abuse from his own childhood experience. He stated that many PWD are restrained and sterilized against their will. Some PWD are at in increased risk for abuse, due to their gender or the type of disability. Some systems and services perpetuate the cycle of violence, and abuse toward PWD can become an accepted response. The speaker noted that at times he had been too afraid to report abuse, or had not been believed. Ignoring incidents of violence and abuse is also a form of abuse. This abuse has a lasting effect on the lives of PWD and it is necessary to look at the reasons for the violence to help stop the cycle of violence. PWD need to feel safe to disclose their abuse, and procedures and safeguards put in place to protect them from reprisal. There must be adequate supports for people with disabilities so their allegations can be properly investigated. Standards and training must be provided for professionals and families to understand violence and abuse and to provide supports to help PWD recover
Another representative of the IDC continued by stating that the IDC largely accepts the Chair’s text. It is important to include in the idea of the threat of violence. Additionally, regarding the provision of information to identify and address violence and abuse, this information should be delivered in a way that is empowers PWD and respects their independence from families and caregivers. Specific reference should be made to protection from reprisal.
The IDC’s representative from the IDC Women’s and Children’s Caucus thanked delegations for encouraging a gender component. Women and Children are at increased risk of sexual violence. What is considered violence in the context of non-disabled persons may not be considered violence again persons with disabilities. Rape, for instance, is sometimes considered a “sexual service” to women with disabilities, rather than a criminal act. IDC proposed adding 16(1bis) that will recognize the increased risk women and girls face with respect to violence. Private or public settings are important to refer to in this article. Violence is not limited to the family and other private spheres, but also in places such as the workplace. Finally, violence also includes sterilization, forced abortion and female genital mutilation.
A fourth spokesperson for IDC stressed the importance of the availability of child protection procedures for children of disabilities. Awareness-raising campaigns and tools for reporting abuse are often not accessible. Children with significant care needs are particularly vulnerable a result of their reliance on caregivers who may be abusive. Protection for children with disabilities must be mainstreamed within the same systems as protection for all children.
The session was adjourned.
Draft Article 16 – Freedom from exploitation, violence and abuse (cont)
The Chair summarized the discussion on Article 16 as follows:
• There was general support for the working group text.
• There was a wide range of proposals to expand “all forms of exploitation, violence and abuse” in 16(1) to include, inter alia, economic abuse, abandonment, harassment, physical violence and exploitation of image.
• Many strongly supported maintaining the WG text’s broad wording due to the difficulty of capturing everything relevant in a detailed list.
• The Chair recommended keeping the draft language, but encouraged informal discussion to create an expanded formula and further suggested a definitional element in case this issue arises again with respect to other articles.
• There was a proposal to restructure slightly 16(2) and to remove “families and caregivers.” Several delegations strongly opposed the deletion, noting that the reference should not be viewed in a negative light. 16(2) is the only place where “family and caregivers” appears in the text, though other references to “family” appear in other areas (e.g., Articles 17 and 28) in a different context.
• Several sought to clarify “independent authorities” at the end of 16(3), with one suggestion to indicate that the term includes national and professional authorities. The Chair suggested that a reference to national authorities might raise a problem for countries with federal systems that rely on state or local authorities.
• With respect to the last phrase of 16(5), there was even split between those who wanted to impose an absolute requirement to prosecute in such instances and those who wanted to provide for alternative approaches. The former group wanted to delete “appropriate” and the latter wanted to delete “identified, investigated and, where appropriate, prosecuted.” The Chair believed that the text as written strikes a good balance, noting its strong predisposition towards prosecution while allowing alternative approaches when appropriate.
Draft Art 17 – Protecting the integrity of the person
The Chair noted that there were no proposals from member states submitted in advance, but there was a proposal from IDC. (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc)
Canada took very seriously the issues in Article 17, but suggested deleting
it, arguing that the issues are mainstreamed throughout provisions in other
articles. Maintaining the separate article might suggest that certain interventions
are not torture, not contrary to the liberty of a person and/or not a form
of abuse. As the substance of Article 17 is covered by other articles, there
is no need for a separate article.
Japan suggested adding “exclusively” or “solely” between “aimed” and “at” in 17(2) for reasons previously expressed.
Kenya noted that the convention should retain the protection of integrity as in 17(1), but that 17(2) (forced intervention) may be covered in the article on torture. Kenya was flexible, noting that not all medical interventions amount to torture. It approved of the contents of 17(3) but questioned its placement in Article 17. It suggested the deletion of 17(4), which it viewed as a step backward on rights granted elsewhere.
China noted the importance of Article 17, but requested clarification of the meaning of “institutionalization” and suggested deletion of “aimed at” after “institutionalization” in 17(2). China did not agree that the provision should cover any “perceived impairment,” arguing that other conventions protect the rights of people who are not disabled. China agreed with Kenya that 17(3) could be kept as is, but was flexible as to its placement. China approved of 17(4).
Yemen noted the importance of the contents of Article 17, but expressed concern about the broad freedom expressed therein. Yemen agreed with the freedom of PWD, particularly when it comes to issues such as treatment without consent. However, Yemen suggested that 17(4)(c) specifically ensure that PWD are treated on equal footing with others to receive treatment, especially with respect to receiving life-saving treatment when unconscious.
Australia supported the Article 17 as written and was concerned that amending or deleting it would be a step backwards. Australia was not convinced that the other articles adequately cover the issues dealt with in Article 17, since not every non-consensual treatment would amount to torture or cruel or degrading treatment. Without Article 17, abuses that fall short of torture would not be regulated by this convention. The safeguards in 17(4) are important because states will, in reality, continue these practices. Australia would support requiring compulsory assistance to comply with international law and standards (e.g., the Montreal Declaration - (http://www.declarationmontreal.com/english/declaration.htm).
Austria, on behalf of the EU, supported Article 17. There is a similar provision to Article 17 in the Charter on Fundamental Rights of the European Union (http://www.europarl.eu.int/charter/default_en.htm). The EU had not reached a consensus on 17(4): if 17(1) and 17(2), or a combination thereof, clearly state the principle of nondiscrimination, then 17(4) could be deleted. 17(3) could be moved to Article 25 on the Right to Health.
New Zealand agreed with Canada’s proposal to delete Article 17, but supported maintaining some elements, such as the language on integrity and ensuring that the existence of disability does not result in involuntary institutionalization. It supported moving the 17(3) to Article 25 on health. 17(1) could be amended to end with the following language from the Article 14 on Liberty and Security of the Person: “States Parties shall protect the integrity of PWD on a basis of equality with others and ensure that in no case shall the existence of a disability justify an involuntary intervention or institutionalization.” 17(2) and 17(3) would then be deleted. If retained, 17(4) should be modified to begin with the clause “Where free and informed consent cannot be obtained for treatment and such treatment is necessary for the life or the health of the person concerned, States Parties shall ensure that such treatment is:,” In 17(4)(c), “best interest of the person” should be replaced with language ensuring that that treatment is only undertaken after the views and the interest of the person concerned are sought and fully considered.
Costa Rica opposed deleting Article 17. Protecting of the integrity of PWD prohibits medical treatment or experimental treatment without free and informed consent. Costa Rica argued against linking Article 15 and the subject of forced intervention with the Convention Against Torture (CAT). Doing so would leave PWD unprotected from actions by individuals, as CAT provides protection only from actions by state entities. Costa Rica suggested moving 17(3) but was flexible on this point. 17(4) could be interpreted as protecting PWD from forced interventions with the specific purpose “correcting behavior”, while leaving the door open to other forced interventions which might have different purposes or objectives. Costa Rica requested clarification on 17(4) before it would support deleting or rewording it.
Mexico generally supported the text of Article 17. It suggested deleting in 17(3) “issues of risk to,” which is covered by the concept of medical emergency and public health. The brackets should be removed from 17(4). Mexico also suggested merging 17(4)(a) and (b) with the chapeau of that paragraph. Mexico stated that was working on a written proposal.
The Chair noted a minor editing issue regarding Mexico’s proposal to 17(3)”
Republic of Korea supported 17(4) as necessary to protect the integrity of PWD.
Norway supported retaining Article 17 and suggested removing “forced” and adding “without free and informed consent” at the end of 17(2). 17(4) should be retained and the brackets removed.
Sudan supported Article 17 as written but could agree to move 17(3) to Article 25. Sudan supported retaining 17(4) which is core of the article. It noted that medical procedures conducted without consent are not in the interests of PWD, even if performed for purposes such as research.
Serbia and Montenegro supported the text of Article 17, but would consider Norway’s proposal regarding 17(2). It supported the substance of 17(3) but was flexible regarding its placement. Serbia and Montenegro strongly favored the retention of 17(4) and supported the statements of Australia and others.
Brazil supported the majority of Article 17, but recommended deleting 17(4), asserting that it is a derogation of the right to free and informed consent.
India supported the central idea of Article 17 and the retention of 17(4), noting the importance of safeguards. In 17(2) India suggested replacing “forced institutionalization with “forced intervention of any kind.” Alternatively, it would support New Zealand’s proposal for 17(1) - with the same replacement it had suggested for 17(2) – which would include the subsequent deletion of 17(2). India also supported removing “or perceived.”
Morocco supported the text, particularly 17(4), but was flexible on the suggestion by others to reformulate 17(4)(a), (b) and (c) to avoid repetition.
The Russian Federation supported the draft text, but supported moving 17(3) to Article 25 on health. In principle, the essence of 17(4) is not problematic, however it would be better placed in Article 25. The Russian Federation supported Norway’s opposition to the term “forced intervention.”
China preferred to be flexible, and was open to moving 17(3) to Article 25 and to New Zealand’s proposal for 17(1) and 17(2). China was flexible regarding the retention of 17(4), noting others’ points that the ideas therein are already reflected in 17(3).
Canada noted that, as a result of the discussion, it could be flexible regarding its proposal to delete Article 17, but hoped to remove inconsistent language and discuss drafting, particularly regarding 17(4)
The IDC was struck by the differenc e between the discussions on Article 17 and Article 15, noting the confusion in the article and its failure to address the relevant issues in Article 17. In Article 17, there is an attempt to justify involuntary mental health interventions with safeguards that would supposedly protect the dignity and rights of PWD. The IDC stressed that the right to respect for the integrity of the person is an absolute right that is intimately linked with the prohibition against torture, inhuman or degrading treatment. It cannot be safeguarded by procedures and standards, a concept that is universally accepted with right to be free from torture. The IDC preferred to merge Articles 15 and 17 to show the linkage between the norm prohibiting torture and inhuman and degrading treatment and this fundamental right to respect the integrity of the person. The resulting article must contain the entirety of Article 15 and the substance of Article 17(1) and 17(2), though IDC was flexible how it might be structured. The language of 17(1) should be strengthened to conform to similar human rights instruments, such as the Charter on Fundamental Rights of the European Union (http://www.europarl.eu.int/charter/pdf/text_en.pdf) and the American Convention on Human Rights (http://www.oas.org/juridico/english/Treaties/b-32.htm). The issue should be framed as an inviolable right for PWD to have their physical, mental and moral integrity respected. The substance of 17(2) can be more easily dealt with by inserting “and interventions aimed at correcting, improving or alleviating any actual or perceived impairment” in Article 15(1), putting such interventions on the same level as medical and scientific experimentation not to be performed without free and informed consent. The IDC was flexible on the precise wording, especially Mexico’s proposal in Article 15 to use the word “procedures” which would include both medical intervention and experimentation and would concisely deal with those two issues together. The concept of free and informed consent is linked with legal capacity, so concerns regarding the need for support in exercising free and informed consent will be addressed in Article 12. Para 4 should be deleted, because it represents a lower standard for PWD with respect to free and informed consent. The IDC strongly supported the deletion of 17(3), which is not about the rights of PWD, but the authorization of involuntary interventions in general in the context of medical emergencies and risk to public health. This is very different from situations of unconsciousness in which life-saving treatment is required. In such cases, PWD should be treated as everyone else with respect to free and informed consent and legal capacity. The problem is that disability is often wrongly characterized as a medical emergency. An episode of madness or psychosis is not a medical emergency, it is a disability that requires a solution arrived at in consultation with the person. The IDC did not agree that states’ authority to perform involuntary interventions for public health reasons in should be addressed in such a general way in a convention of the rights of PWD, where the scope of such authority cannot be fully debated. Such authority is not addressed in such detail in any other human rights convention and it would be a mistake to include that here with respect to PWD. In addition, social prejudice often leads to the incorrect characterization of disability as a threat to public health. The IDC was open to different ways of addressing the right to respect for integrity of the person, noting New Zealand’s proposal to reframe the issue on the basis of equality, but was not prepared to say more without the seeing specific language.
People with Disabilities Australia and the Australian National Association of Community Legal Centres noted the conceptual difference between Article 17, on the one hand, and Article 12, which deals in part with consent and decision-making, and Article 15 on torture and cruel and inhuman and degrading treatment, the latter of which is limited to treatment that is appropriately characterized as cruel, inhuman and degrading treatment and to activities carried out by state actors. The representative stressed that there are very limited circumstances in which compulsory assistance is necessary for the realization of human rights for PWD, which his organization accepted. However, even if this proposition is not accepted, it must be recognized states will continue to have legislation and programs that involve compulsory assistance. Therefore, 17(4) must be retained in order to keep the much-needed safeguards. Furthermore, a new paragraph should be added as 17(4)(e) to ensure that compulsory assistance be provided in a manner that complies with international law and standards.
IDC strongly urged that 17(4) be deleted. This provision does not contain safeguards, but rather the principles used to legitimize abuse in forced treatment in many countries in the area of psychiatry.
Chile supported Article 17, especially 17(1) and 17(2) and emphasized that the Article should make clear its main focus, the guarantee of informed consent. Therefore, forced intervention should be mentioned, as well as the prohibition on experimental procedures without free and informed consent. Chile viewed the IDC position on the deletion of 17(4) as consistent with the convention’s goal of a paradigm shift, though further consideration is needed regarding how to then address the guarantees therein. It should be clear that medical experimentation or procedures without free and informed consent is a form of cruel and inhuman treatment and should be prohibited. Furthermore, with regard to the placement of this article within the convention, any other articles for which it sets precedent with regard to integrity should follow it in a logical order.
Sudan agreed with the Chair that “risk” is inherent in 17(3) and the word could be deleted.
The Chair summarized the discussion as follows:
• There was a clear preference to retain Article 17, despite some proposals to delete it.
• Most were also in favor of retaining 17(4), although a number of delegations regarded 17(4) as undermining other stronger provisions and strongly urged its deletion. The Chair encouraged further informal discussion.
• There was a good level of support for 17(3) although some linguistic issues had been raised. However, many supported moving it to Article 25 on health, in which take on a more positive nuance.
• There were some linguistic issues with 17(2), for instance, the term “perceived impairment.” Retaining this term would ensure these protections in situations in which the impairment is a matter of opinion rather than fact.
• In 17(2), there was a suggestion to replace “forced interventions” and “forced institutionalization” with “without free and informed consent.” Colleagues were urged to consult informally on this issue.
Draft Article 18 – Liberty of Movement
The Chair noted that, as explained in his cover letter, it
was agreed in the 6th session that an article on liberty of movement should
be included, because it was seen as an area in which PWD are often disadvantaged.
Since the decision to include this text came rather late, there was no working
group text, nor had there been discussion on the bracketed text. The text of
Article 18 is an abbreviated form of a proposal from Kenya, the first to raise
the issue. The issue of the right to birth registration was also raised at
the 6th session. Though there is a reference in Article 18 to the right of
PWD to acquire a nationality, other more specific issues, such as birth documentation,
had been identified. Canada (http://www.un.org/esa/socdev/enable/rights/ahc7canada.htm)
and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc)
had submitted proposals to Article 18.
Kenya supported Article 18 with the brackets removed.
Canada outlined the changes in its proposal, noting that the intention was to ensure that there is an understanding of the relationship between the liberty of movement and right to a nationality.
The Chair noted that Canada’s proposal would create an overlap between 18(2) and 18(4), as both refer to utilizing relevant processes such as immigration proceedings.
Japan requested confirmation that the “right to acquire a nationality” in 18(a) does not require governments to force a person to acquire a nationality without their consent. Japan also requested confirmation that a passport and copy of family register, which is the documentation used in Japan confirm nationality, is sufficient as “documentation of nationality” set forth in sub 18(b). Japan also requested confirmation that 18(b)is compatible with the International Covenant on Civil and Political Rights (ICCPR) Article 12(3), which subjects the liberty of movement to certain limitations, including, inter alia, restrictions in law to protect national security.
The Chair noted that the phrase “right to acquire a nationality” is the right to acquire one’s own nationality, or the nationality of birth, pursuant to ICCPR Article 24(3) and the Convention on the Rights of the Child (CRC) Article 7, which states that every child has the right to acquire a nationality. The Chair recognized the varying state practices with respect to documentation of nationality, and stressed that the provision would not create a new right or require states to produce new forms of documentation. The text of 18(b) is not new language, as it closely resembles Article 29(1) of the Convention on Migrant Workers. In addition, though ICCPR Article 12(3) includes an additional qualification limiting movement in some cases, others do not. The important point, made in the chapeau of Article 18, is that PWD have the right of liberty of movement “on an equal basis with others.” Thus, the qualifications of ICCPR Article12 would also apply under this Article 18.
The Russian Federation supported Article 18’s inclusion, but was concerned with the wording. Consistent with Article 12 of the ICCPR, “and to choose their residence” should be inserted after “liberty of movement” in the chapeau. The Chair pointed that Article 19 includes the freedom to choose one’s residence. The Russian Federation stated that both Articles could contain this language. Upon the Chair’s request, the Russian Federation confirmed that it wanted the prohibition against arbitrary deprivation of nationality in 18(a) to be a separate article. Consistent with Article 5(2) of the Universal Declaration of Human Rights, there should be a prohibition on the denial of the right to change one’s nationality in 18(a). Russian Federation made a series of suggestions to restructure the article and incorporate other elements of Articles 12 and 14 of the ICCPR .
New Zealand supported the draft text as well as Canada’s proposals. It proposed that “Take effective measures” should be replaced by “recognize” in the chapeau, in order to emphasize the right rather than the state conduct. In 18(b) “obtain” should be inserted before “possess,” since there must be a right to obtain, in order to possess, such documentation. If Canada’s proposal is adopted, these changes should nonetheless be incorporated in the corresponding parts of the text. New Zealand approved of the Russian Federation’s proposal to align the text with Article 12 of the ICCPR to prohibit deprivation arbitrarily, or on the basis of disability, of the right to enter one’s own country.
Qatar clarified that the right to a nationality as set forth in 18(a) refers to the original nationality, and not any acquired nationality. The Chair confirmed that understanding.
Kenya cautioned against the Russian Federation’s proposal to separate the two ideas expressed in Article 18, because the two ideas are closely linked. When one is not provided with documentation for travel, one’s movement is limited.
Yemen supported Kenya intervention and the Chair’s text. Disability should not be a basis for deprivation of the right to nationality, but 18(1) should clearly indicate whether such deprivation refers to the original or acquired nationality. There are many situations regarding acquired nationality and dual nationality that would not be clear given the current text. Both 18(a) and 18(b) should clearly indicate that the rights apply PWD on equal footing with others. For example, 18(a) should exclude the situation in which laws deprive a person of their original nationality as a result of acquiring the nationality of another country. The Chair confirmed that there is no intent to restrict the application of domestic laws with respect to the deprivation of nationality generally.
Argentina was flexible about the proposal to separate the issues of liberty of movement and personal mobility into two different articles. Argentina saw the merit of the Russian Federation’s point to incorporate language of ICCPR Article 12.
Sudan supported Article 18, noting that the right to nationality is an element of freedom of movement. With respect to Qatar’s concerns regarding 18(a), Sudan supported the Chair’s understanding of the intent of the language in the text.
The Syrian Arab Republic stressed that 18(a) should be modified to indicate that the right to nationality includes the right to change or acquire a different nationality.
Mexico supported the Russian Federation’s proposal to incorporate language
from ICCPR Article 12. Mexico also suggested that the right in 18(c) should
include the right to freedom of movement within one’s own country.
The IDC expressed its enthusiasm about separating Article 18 from the article on personal mobility. The IDC proposal included “recognize the right of PWD to liberty of movement and” after “Convention” in the first line of the chapeau, to show that this right is well grounded in international law. The IDC also supported Canada’s text, but wanted to see the written proposal. The IDC proposal to 18(a) included language indicating the right to change one’s nationality but IDC noted its flexibility if the “right to acquire a nationality” includes the right to change nationality as well. The IDC’s proposed 18(d) covers an important area in which PWD often experience discrimination, and IDC recognized that Canada’s proposal might address this, although the language may need to be strengthened. The right to registration of birth is covered in IDC’s proposed draft Article 12(5). The IDC noted the point that ICCPR Article 12(1) does refer to the freedom to choose residence, but the IDC was concerned that this might confuse the issues addressed in IDC’s proposal on Article 19. Article 12(1) has a lot of jurisprudence related to the right to choose one’s residence that is very different from what IDC was trying to address in Article 19, IDC would not be opposed to the inclusion of the ICCPR language in Article 18 as long as it does not affect what it is trying to achieve in Article 19. IDC supported New Zealand’s proposal to clarify the right to “obtain” documentation.
The Chair noted that the draft Article 18 has not been through the refinement process, and stated that he would redraft the article for consideration later during the seventh session.
Article 19: Living and being included in the community
The Chair stated that Article 19 is fundamental towards the goal of a paradigm shift. Traditionally, many countries place PWD in institutions and exclude them from the community. The premise should be that PWD have the right to live in the community and to live independently. Both Israel (http://www.un.org/esa/socdev/enable/rights/ahc7israel.htm) and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcart19.doc) submitted written proposals in advance.
Israel outlined its written proposal.
Kenya fully supported Israel’s proposal, indicating that stronger language is needed in the chapeau to affirm the right of PWD to live in the community. Without such changes, the focus is on the right of states, not PWD. Kenya also supported deleting language that suggested that PWD can be forced to live outside the community if they need assistance.
Austria, on behalf of the EU, expressed its support for the text, but remained flexible. Austria noted the importance that civil society attached to adding “living independently,” however the EU was concerned that the term could be used negatively. It noted that the right to mobility is not a right that exists in other conventions, and the EU might not support this language. The EU also noted that the draft articles do not employ the word “recognize” very often, and the EU will look more closely at drafting issues.
The Chair recognized that the term “living independently” had been discussed often, and there were concerns that the term might be viewed as endorsing the independent living movement. However, that problem seemed to have been resolved and consensus reached for using the term “living independently, with the understanding that it was intended to reinforce the concept of “community living.” Israel’s point that the language can be used against PWD will need to be looked at quite closely, as it had not been raised previously.
Yemen expressed its sensitivity to the critical issues of Article 19, but recommended deleting the concept of choice of residence. In Yemen, the concept of family is sacrosanct under its religion and is not limited by age. For example, at 18, a person would not generally separate from the family. If a person does so, it would be legal and in compliance with familial obligations. In these cases, the head of the family would be maintained. The concept of choice could cause difficulty unless defined in very clear terms. There must be a balance the right to choice and the right as dictated by religious norms. 19(a) also creates difficulty, because there are institutions that a person might choose voluntarily. Yemen could not accept a choice to live in an institution over remaining with the family. Yemen would therefore require deletion of “choice” from chapeau, deletion of the whole paragraph or its revision to address this basic concern.
The Syrian Arab Republic echoed Yemen’s statements, and suggested that “living independently” and “choice” be deleted from the chapeau. It also stressed that PWD should have the right to choose their residence and living arrangements on equal basis with others according to different social and legal systems, and thus suggested that 18(a) include “on equal basis with others.”
The Chair indicated that discussions on Article 19 would continue the following
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