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Draft Article 19 (continued)
The Chair opened the session to continue discussion on Article 19, noting the previous discussion had included interventions from Israel, Yemen, Syrian Arab Republic, Austria (on behalf of the European Union), and Kenya. There was particular concern that the reference to “living independently” should not be used negatively as a basis for preventing PWD who cannot live independently from living in the community.
Japan strongly supported retaining the term “living independently” in order to guarantee the dignity and autonomy of PWD. Japan noted that 19(b) and (c) indicate that PWD in need of support may still live independently with the assistances listed therein, and that Article 4 also provides for assistance to PWD who need it to live independently.
Costa Rica was surprised by the suggestion to delete the term “living independently,” noting that the term did not imply that PWD must live absolutely independently without any assistance. Costa Rica disagreed with Israel’s proposal to explicitly affirm the right to live in the community, voicing doubt that such right already exists. Israel’s proposal does not provide adequate assurance that conditions can be provided for full enjoyment of the right to freedom of movement and to choose a residence. Regarding the term “living independently,” PWD have equal rights to choose how they live in the community and thus they should be able to choose to live with family members if so desired.
Venezuela proposed that, in the spirit of greater inclusion, the word “community” be replaced by “society” in the chapeau, the title and in 19(b).
New Zealand fully supported Israel’s proposal for the chapeau, indicating that the proposal would not be creating new rights, but rather clarifying existing rights as they apply to PWD. Though the right to live in the community is implicit in Articles 9 and 12 of the International Covenant on Civil and Political Rights (ICCPR), this extension of the right to liberty for PWD needs to be more clearly articulated. The wording of Israel’s proposal also solves other problems discussed, including the encapsulation of the idea that the choices of PWD are equal to those of others.
South Africa supported Article 19 as is, but noted that the article must clearly indicate the intention to enhance and protect the dignity and integrity of PWD and that home-based care facilities and trained personnel are available to enhance ability of PWD to live independently.
Serbia and Montenegro clarified the difference between the choice of “independent living” (PWD make decisions about their own lives) and “living independently” (PWD can do things on their own). Freedom of choice and living in the community should be the main thrust of the article. Serbia and Montenegro therefore joined in the concern regarding the creation of new rights, which might result from the proposals from Israel and the International Disability Caucus (IDC). It suggested that deleting the term “living independently” in chapeau and title might alleviate some of the concerns expressed. The rights in this article are primarily economic and social, and therefore subject to progressive realization. This is complicated by the centrality of freedom of choice in the article, which has more immediate implementation implications. Countries in transition may have difficulty guaranteeing the right to freedom of choice in the context of personal assistance. Serbia and Montenegro then posed the question of how personal assistance service can be developed so that freedom of choice is more easily guaranteed.
The Chair noted that most of the elements of Article 19 are economic, social and cultural rights. The measures needed to incorporate such elements will need to be both appropriate and progressively implemented.
Canada accepted Israel’s proposal for the chapeau but expressed two concerns regarding 19(b). As per the IDC’s proposal, there should be a specific reference to providing information about community services, but suggested adding the word “accessible” to modify community services. In addition, this article should include “disability-related supports” in 19(b) as a separate element from support services.
The Chair asked Canada how it viewed Israel’s proposal with respect to the recognition of a right in this context.
Canada agreed with New Zealand and considered Israel’s proposal as an elaboration of existing rights.
China agreed that the word “independently” should be deleted from the title, since it implies “independently of others” in Chinese. The word “fully” should be inserted before “included” in the title. In addition, the chapeau should be amended to read: “…full enjoyment by persons with disabilities to living and being fully included in the community, including by ensuring, to the extent possible, that:” At the end of 19(a), the words “solely on the basis of their disability” should be inserted in order to avoid discrimination against PWD with respect to living arrangements. The words “unlawful and arbitrary” should be added after the word “prevent” in 19(b) in order to allow states to reserve the right to quarantine individuals who have a condition deemed to be a security threat (e.g., sequestration of people with SARS or avian flu).
Chile had no objection to explicitly articulating the right of PWD to live in a community, because sometimes PWD are not included in community life. The terms “freedom of choice” or “living independently” should not be deleted, as this article must protect the ability to live autonomously. The latter term would not be confused with any form of isolation and segregation, since this article relates precisely to preventing or avoiding such segregation. In addition, notions of dignity, autonomy and freedom of PWD are protected in Article 3. Furthermore, in the chapeau or in 19(a), there should be an enunciation of one’s own plans in accordance with the convictions and beliefs of the individual. Chile stressed that the purpose of supports in 19(b) is not just to facilitate the activity of PWD, but also to increase the level of autonomy. In 19(c), it is important to highlight the norms, but further analysis of the wording is needed to better emphasize and make effective the principle of normalization.
Brazil agreed with Chile that the concept of “living independently” relates closely to self-determination and freedom of choice to live within the community; PWD should not live apart from community or be segregated. Civil society movements in Brazil have embraced this concept since the 1980’s, acknowledging the significance especially for persons with severe disabilities. Brazil has worked closely with civil society organizations identified with this movement, which organizations have been instrumental in helping to implement legislation in this regard. In addition, Brazil supported the IDC’s proposal for 19(b), stressing the importance of acknowledging “assistive technologies” and “peer support,” for PWD.
El Salvador supported the views of Costa Rica, and would accept Venezuela’s proposal to change the word “community” to “society.”
Qatar supported the views of Yemen and the Syrian Arab Republic regarding the importance of the concept of family in Arab societies, but could accept this article as written if the chapeau included the phrase “in accordance with the cultural norms of each country.”
The Chair clarified that the intent is not to change national cultural practices, but rather to prevent discrimination against PWD. Qatar’s proposal may have the unintended consequence of protecting cultural norms that are discriminatory. Accordingly, the convention should protect the norms that apply to society as a whole, and not national norms that discriminate against PWD. The Chair forecasted that this issue would arise again during the discussion of Article 23 (Respect for the Home and the Family).
Austria, on behalf of the EU, suggested replacing the word “opportunity” with “right” in 19(a).
The Chair clarified that in the EU’s proposal, “right” applies only to 19(a), and not a right to all of the elements in the chapeau. The Chair further clarified three views expressed on this matter of rights: (1) there is no right created in this article, (2) the elements in the chapeau as a whole are a right, and thus the word “right” should be in the chapeau, and (3) that the right is only in relation to 19(a).
The Republic of Korea noted the importance of the term “independent living” for PWD, however it agreed with Chile, Japan and Brazil to retain the term “living independently.”
Jamaica supported the content of Article 19, and the proposals of Israel and China. Jamaica also supported the broad principles of full inclusion and freedom of choice, noting that a marked transition in the communities for PWD requires integration. Regarding Venezuela’s proposal, “community” should not be changed to “society” because the latter implies a wider audience. This article refers to the specific living arrangements of PWD who live in communities, and the article should retain usage of the word “community.”
The Russian Federation fully supported the text for Article 19 and would study the other proposals.
The Libyan Arab Jamahiriya supported Qatar’s proposal for the chapeau, because the concepts of living independently and inclusion in the community relate to the religious and cultural norms of all peoples.
Trinidad and Tobago supported retaining the reference to “community services,” because the term connotes a more direct form of participation, and the community is critical to the functioning of PWD, especially in developing countries.
The Chair commented on the drafting problem in the chapeau of the English version, stating that it was inelegant and structurally awkward, leading to the confusion regarding the framing of the concept “living independently.” In English, the “full enjoyment” of “living independently” does not make sense. Ultimately, the intent is to express the right to live independently, which is clearly a right that everyone has, despite the limitations on that freedom that might result from disability, practical, economic and cultural constraints, etc.
Mexico stressed its preference for the word “community,” as it covers effectively all the different ways that people live in a society.
The Chair acknowledged a strong level of support for the word “community” over “society.”
The Syrian Arab Republic disagreed that there was a problem with the wording of “living independently,” commenting that PWD have the right to live independently, even if that includes support. The problem is with the word “choice.” This must be a comprehensive convention that includes PWD in all countries. PWD have the right to live within their communities, where there are laws. This convention should take into account national laws so that they can be effectively applied.
Morocco agreed with Qatar with respect to the importance of the concept of family and sensitivity to cultural diversity.
Thailand supported the term “living independently,” and the concepts of full inclusion and freedom of choice.”
Yemen clarified that the terms “living independently” and “freedom of choice” are already covered in laws that have been enacted. Yemen agreed with the proposal of Qatar, but suggested that delegates consider replacing “cultural norms” in that proposal with “laws that have been enacted.” Laws are extremely specific and influence the cultural side of life and the rights of people subject to such laws. With such additional language, issues of “living independently” and “freedom of choice” would pose no problem.
The Chair stated that it is necessary to find language that is both sufficiently loose and sufficiently tight in order to protect existing cultural practices of society without providing a loophole for discrimination. In other parts of the text, the term “on an equal basis with others” has been used to mean that if a community has particular cultural practices, PWD would be treated in accordance with those practices, provided that they are non-discriminatory. These issues are further crystallized in Article 23.
Sudan stressed the importance of this article’s content. Despite supporting the text as written, Sudan acknowledged Qatar’s and Yemen’s desire to preserve cultural norms. Sudan asserted that it is important to cover both cultural norms and the laws that organize societies. The article requires precise clarification to take into account all the different aspects, including the laws and traditions in every society. This could be done in Article 19 or, alternatively, the concept of “living independently” could be moved to Article 23.
The Chair agreed that the language should be changed, and referred to CEDAW Article 15(4) as an example of draft language on equal treatment. Laws and cultural practices should accord PWD the same rights as others.
Qatar suggested that the wording “in accordance with cultural norms of states,” could be replaced by “national laws of each state,” as was done in the proposed text of Article 23.
The Chair noted that whatever formula is ultimately decided upon would be useful in other provisions as well.
An IDC representative from Zambia related his story in order to illustrate that PWD can live in the community, but doing so requires the availability of aid to families who support PWD. The story reflected the need for support for PWD to live in communities and with people of their choice.
A second IDC representative stressed the critical importance of this article. In accordance with Israel’s views, there should be an explicit recognition of the right to live in the community, and the term “living independently” should be deleted because it could be used as an eligibility criteria for PWD in order for them to be allowed to live in the community. That term should be replaced by the concept of choice on an equal basis with others. As stated by New Zealand and Canada, Article 12 of the ICCPR already recognizes the right to live in the community. The choice to live in a community is the natural result of the right to choose one’s residence. The ideas expressed by many delegates on the term “independent living” align closely with the IDC’s idea of choice based on autonomy and self-determination. IDC was concerned that the current text does not provide specifically for the needs of children, who are often are at an elevated risk for institutionalization. It should also state explicitly that mainstream services for children must be fully adapted, equally accessible and available to children with disabilities. The convention should follow the example of Article 23 of the CRC, which emphasizes the need for special provisions for children with disabilities.
With regard to the issue of support, the IDC welcomed Canada’s proposal, in particular the inclusion of disability-related supports. It supported Brazil’s position that “assistive technologies” and “peer support” be included, noting that such supports should be delivered in a manner that respects autonomy, individuality and dignity. There should be a specific reference to preventing isolation from and within the community, and to public programs in 19(c). The IDC reviewed the changes reflected in its written proposal.
Israel Human Rights Center for People with Disabilities fully supported Israel’s proposal, and highlighted points mentioned by Chile, Canada, New Zealand and others. Though freedom of choice was emphasized by delegations, more consideration is needed to ensure the right to live in the community for those who cannot express their choices but for whom choices are made by others. It asserted that the right to live in the community cannot be assumed for PWD and must be expressly provided for.
Disabled Peoples International (DPI) supported the IDC’s intervention and stressed its support for the fact that the article gives explicit expression to the principle of autonomy. DPI asserted that the text should address the means by which persons living in institutions could be supported in order to transition to community living. To that end, DPI suggested adding the following new language be added: “Transitional plans are developed by States Parties, in consultation with persons with disabilities and their representative organizations, in order to effect the full inclusion of persons with disabilities in the community.”
Mental Disability Rights International (MDRI) strongly supported Israel’s proposal, as the right to live in a community is a right and all rights should be recognized in the chapeau of every article, given that the convention deals with the rights of PWD. As New Zealand noted, the right to live in the community is a straightforward reformulation of the widely-recognized “right to freedom to choose one’s residence.” Just as a state may not restrict a person’s options to reside in any particular section of a country, city or town on the basis of religious or racial grounds, neither may it limit the options of a person to live in the community on account of his or her disability. The right to freedom of residence—or non-exclusionary choice of living arrangement—is guaranteed by various international and regional human rights instruments. Other international law instruments adopted by the United Nations recognize the right to live in a community. Unfortunately, the existing human rights treaties are not sufficient and need to be supplemented and clarified by this convention. One potential option is to combine the proposals of the EU and Israel by moving 19(a) and replacing the word “right” with the word “opportunity” in the first paragraph. Israel’s proposal for paragraph 1 proposal would then become paragraph 2, preceded by the words “to ensure this right.” Then 19(b) and (c) would become 19(a) and (b). This would be a good compromise, especially if some other proposals were adopted, such as Canada’s important addition of the term “disability-related supports” and Brazil’s addition of the term “peer support,” as well as the various proposals of the IDC.
The Chair summarized the discussion of Article 19 as follows:
• There was strong support for the text, although several important issues had been raised.
• An approach must be found that protects the freedom of choice of PWD while ensuring that existing cultural/religious practices and, in some cases, national laws are acknowledged and not undermined, as long as they are not discriminatory against PWD.
• Despite the support for Israel’s proposal, which resolves some issues in the chapeau, retaining the concept of “living independently” was important to many delegations. This phrase has been extensively discussed in the past and its presence in the text has been supported. Thus language should be found to retain this concept without allowing for its misuse such that PWD who cannot live independently are prevented from living in the community.
• There was a wide variety of views regarding the articulation of a specific “right,” with a strong view in favor of doing so, and there should be informal meetings to discuss this issue.
Article 20 - Personal Mobility
The Chair stated that proposal had been received from the EU (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm), Kenya (http://www.un.org/esa/socdev/enable/rights/ahc7kenya.htm) and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm).
Trinidad and Tobago stated that the term “personal mobility” should replace the term “liberty of movement” in the chapeau, as the latter is already addressed in Article 18. Article 20 is, essentially, a means to give effect to Article 18.
The Chair noted that Article 20 was drafted before the decision was taken to include a separate article on liberty of movement. As such, it does not take into account that Article 18 addresses that issue.
Kenya agreed with Trinidad and Tobago to change the term “liberty of movement” to the term “personal mobility,” as reflected in Kenya’s written proposal. The word “high” should be deleted in 20(b), because countries may not be able to meet the expectations implied by the word “high quality.”
Serbia and Montenegro supported the proposals of the EU and Kenya for the chapeau, and would reflect on Kenya’s suggestion regarding “high quality.” Additionally, the IDC’s proposal for a paragraph publicizing assistive equipment and facilities for safe and effective mobility should be followed.
Mexico supported replacing “liberty of movement” with the term “personal mobility” and made two comments for the chapeau: (i) after the word “independence,” the words “and autonomy” should be added, because the latter term relates more to the issue of “personal mobility,” and (ii) a phrase that requires urban and rural areas to be taken into consideration may be added, in light of great disparity in accessibility between urban and rural spaces. With respect to assistive technologies, measures should not only take into account, but also to promote, encourage or foster all aspects of mobility for PWD.
The Chair asked for a clarification on where text on urban or rural spaces would appear.
Mexico replied that the proposed text (“taking into account differences between urban and rural spaces”) could be inserted in the chapeau after “with the greatest possible independence for PWD.”
Austria, on behalf of the EU, supported replacing “liberty of movement” in the chapeau and “freedom of movement” in 20(a), however it preferred the term “mobility” over “personal mobility,” as the former is less restrictive. In addition, in order not to confuse Article 20 with Article 18, Article 20 should be placed closer to Article 9.
The Chair asked whether the term “personal mobility” was a term of art. He assumed that it was a technical term with a particular meaning referring to mobility of the individual.
The IDC replied that one needs to be careful when using the term “mobility,” to avoid confusion. For example, the term “upward mobility” means socially mobile. “Personal mobility” is a technical term to imply movement of the individual, and should be qualified as such in order not to create confusion with other kinds of mobility.
Chile stressed the importance of using the term “personal mobility” to refer to the autonomy of the individual. Article 18 relates to the more general issue of civil and political rights when it talks about liberty of freedom of movement. Here the text refers to the intrinsic ability of the individual to be mobile and relates to autonomy. Though flexible on this matter, Chile suggested consideration of merging the articles on “liberty of movement” and “personal mobility,” while being very clear that the two concepts signify very different approaches and notions. Chile also proposed that in 20(d) should read “urging private entities” instead of “encouraging.”
Jamaica supported replacing “liberty of movement” with the term “personal mobility.” The qualifier “personal” provides an important specific focus for the objective of the article. Jamaica requested clarification on the term “live assistance” and suggested changing the term to “human assistance”.
The Chair explained that term “live assistance” has been used for some time and intended to cover both human assistance and assistance by animals.
The Republic of Korea affirmed the importance of this article, commenting that mobility is distinct from accessibility. It stated that 20(b) should be framed in terms of PWD having the right to access the listed devices, not only to states’ obligation to facilitate access to them. The Republic of Korea also suggested inserting the term “including assistant dogs and other animals” after either “mobility aids” or after the term “intermediary” and to delete the phrase “including by making them available” in 20(b).
Sudan asserted that the concept of “liberty of movement” is encapsulated in Article 18, and Article 20 should focus on facilitating the exercise of that right. Therefore, “liberty of movement” should be replaced by “facilitating and easing mobility” in the chapeau. Returning to Article 18, Sudan suggested that the title of the article be changed to “The Right and Liberty of Movement.” and the chapeau amended to include liberty of movement in all forms. Sudan supported the EU proposal to place Article 20 closer to Article 9, as it is linked to accessibility. Sudan supported Kenya’s view to delete “high” before “quality” to allow for variations in the level of development in various countries.
Yemen agreed with Sudan that Article 18 articulates a substantive right to movement while Articles 9 and 20 address the means of exercising the right of mobility. Accordingly, Article 20 could be merged with Article 9, and Article 18 kept separate. Yemen stressed its flexibility on this point. The Arabic text needs to make a clearer distinction between mobility and the concept of movement from one country to another. Also, if the articles remain as structured, then the EU proposal to delete the word “personal” would be preferable, because the term “personal mobility” would imply exclusion of accompaniment by another person. The language should be made more precise to enable the understanding of the layman reader. There is also no need to specify “assistant dogs,” which is already covered by broader term “live assistance.” Yemen suggested that “high quality” be deleted from 20(b) and the phrase “including by making them available at affordable cost” should be replaced with “free of cost whenever possible or to be made available at an affordable cost.”
The Chair underscored Yemen’s suggestion to provide assistance, aid and technology free of cost whenever possible, and at least at an affordable cost.
Brazil supported replacing the phrases “liberty of movement” and “freedom of movement” with “personal mobility.” The phrase “with the greatest possible independence” should be deleted from the chapeau, and the words “safe and effective” should replace the words “high quality” to modify the mobility aids in 20(b). Brazil supported the Republic of Korea’s proposal to add the phrase “assistant dogs and other animals.”
India generally approved of the text of Article 20, but supported “personal mobility” over of the term “liberty of movement.” The qualifier “personal” is important because of this article’s focus on the mobility of the individual. Articles 9, 18 and 20 should remain separate despite slight overlap, though some minimal drafting changes may be helpful. Articles 9 focuses on tailoring the environment to enable personal mobility, and Article 20 focuses on the mobility of the individual.
Norway supported keeping Articles 20 and 9 distinct and using the term “personal mobility in the chapeau and 20(a).” The terms “mobility aids” and “guide dogs” should not be included, because they are covered by “assistive technologies” or “live assistance.”
South Africa affirmed that the concept of “personal mobility” is very important. It commented that the elements in 20(b) also appear in 9(2)(b) and the issue of training in 20(c) also appears in 9(2)(e). Article 20 should therefore be moved closer to Article 9, while retaining the language of both.
The Chair concurred that the articles’ placement would have to be considered further.
Bosnia and Herzegovina supported retaining Article 20 as a separate article and agreed with India that the term “personal mobility” differs from the term “accessibility.” The term “personal mobility” should substituted in the chapeau and 20(a).
The Chair stated that the term “live assistance” includes both human assistance (e.g., guides and readers) and animal assistance (e.g., guide dogs), as reflected in the footnotes in the previous text developed by the working group.
Canada saw merit in consolidating Articles 9 and 20, but was flexible on this point. Canada was also comfortable with the text if “personal mobility” is substituted in the chapeau and 20(a). The term “live assistance” is the broadest formulation of that concept and should be retained.
Japan supported replacing “liberty of movement” with “personal mobility,” and retaining the word “personal.” As suggested by Brazil, the phrase “with the greatest possible independence” should be removed from the chapeau.
The Chair asked for further comment on issue of deleting the phrase “with the greatest possible independence” from the chapeau.
The Russian Federation supported the term “personal mobility” in light of its relevance to this article, and was flexible with regard to deleting the phrase “with the greatest possible independence” in 20(a). It suggested that “high quality” could be replaced with “safe and effective,” and affirmed that “live assistance” includes humans and animals. In 20(d), the term “public and private entities” should be used. Very often states provide certain assistance (e.g., tax advantages) to both private and public entities.
The Chair noted the link between 20(d) and the Article 4 on the provision of goods, services and equipment to meet the needs of PWD. There was previous agreement to move a number of the paragraphs to Article 4, and the Chair suggested 20(d) could be incorporated in that article as well. The Chair, acknowledging the point of the Russian Federation, questioned the limitation of 20(d) to private entities.
Australia supported Article 20 and the retention of the phrase “with the greatest possible independence” in the chapeau, which implies decision-making by PWD with respect to their mobility. The term “personal mobility” should be used to preserve the focus on facilitation of mobility rather than whether or not a person is allowed to move. The term “live assistance” in 20(b) encompasses both human beings and animals. Australia also did not support the Republic of Korea’s suggestion to specify “assistant dogs,” since the type of animal should not be limited. Australia suggested that 20(d) specifically refers to private entities because of the relevance of market forces in the development of assistive technologies, although consideration should be given to include public entities. 20(d) should be kept in this article and not as a general obligation.
Sudan supported Yemen’s proposal for 20(b). Though Sudan also supported the consolidation of Articles 20 and 9, it would be flexible on keeping them separate.
The Chair concluded the morning session.
Article 20 on Personal Mobility (continued)
Republic of Korea did not oppose retaining the term “live assistance” if there is a note clarifying its meaning, as was done in the working group text. It also supported “service animal” to ensure that such assistance would not be restricted to dogs.
Syrian Arab Republic confirmed its support for the article but suggested that it be split into two paragraphs. It supported Yemen’s proposal to delete “high quality” in 20(b). It preferred the term “live assistance” as it is a general term.
New Zealand supported the retention of Article 20 as a separate article and replacing “liberty of movement” with “personal mobility” in the chapeau. It supported retaining “with the greatest possible independence” in the chapeau and agreed that “high quality” could be a slippery concept and should be replaced with “safe and effective.”
Ethiopia supported keeping Articles 9, 18 and 20 separate. It supported using the term “personal mobility” in the chapeau and 20(a). In 20(b), “live assistance” should be changed to “other assistance,” which might accommodate other aspects that are not specified in the paragraph.
China noted the relationship between Article 20 and Article 9 on Accessibility, but supported retaining it as a separate article. It supported using the term “personal mobility” in the chapeau and 20(a) and deleting “with the greatest possible independence” from the chapeau. The latter change would help to preserve the balance between independence and assistance. China proposed changing “assistive technologies” to “assistive devices and technologies” in 20(b).
The IDC supported Kenya’s separation between Articles 18 and 20. It supported using the term “personal mobility” in the chapeau and 20(a), noting the importance of the qualifier “personal.” Regarding the Republic of Korea’s suggestion that 20(b) be framed as a right, the IDC noted that its own proposal would frame the entire article as a right by amending the chapeau to reflect this. Article 23(3) of CRC framed assistance in some cases as a right and may be a useful precedent. “Live assistance” should be expressed in the broadest terms possible and thus the IDC did not support adding a “shopping list” to that part of the text. It did not support changing “encouraging” to “urging” in 20(d). It agreed with New Zealand’s solution to the issue of “high quality.” IDC supported Yemen’s proposal to stipulate that assistance should be made available free of cost, and again referred to the CRC for precedent language. It did not agree that 20(b) is a repetition of Article 9(2)(b), as the latter does not address mobility aids and devices and is qualified by language limiting the provision’s purpose to access to public buildings and facilities. It supported the Russian Federation’s proposal to expand 20(d) to public as well as private entities, but did not support moving this concept to the Article on General Obligations.
A second IDC speaker reviewed the IDC’s proposal for a new 20(e). There are three elements essential to personal mobility: training of PWD in personal mobility skills by persons with appropriate skills; access to the necessary assistive components (technological aids, live assistance, etc.); and a society in which all persons are aware of and understand issues of mobility and the facilities that are necessary to exercise those skills and make use of equipment. It is the third element in this list that is missing from the text and thus IDC proposed adding the paragraph contained in its written proposal.
The Chair summarized the discussion as follows:
• There was strong support for having a separate article on personal mobility, despite some proposals for amalgamation.
• There was a proposal to restructure the article to reflect two elements (the right to personal mobility and the means to achieve it) which deserves further reflection informally.
• There was strong support for substituting “personal mobility” for “liberty of movement” in the chapeau and “freedom of movement” in 20(a).
• There was not strong support for deleting “with the greatest possible independence” in the chapeau.
• There was discussion and some desire to recast the article in terms of a right but that was not strongly supported.
• There was strong support for deleting the word “high” before “quality” in 20(b) to avoid creating an onerous burden in developing countries and also to avoid a negative inference elsewhere in the text where “high quality” is not used. The suggestions to delete the reference to quality altogether and/or to replace the concept of quality with “safe and effective” generated some support however the Chair suggested that the simplest solution would be to simply delete the word “high.” He noted, however, that the issue may arise again in relation to other articles and thus a generic solution that would work throughout the text might need to be found.
• There was some support for simplifying “assistive technologies and forms of live assistance and intermediaries” in 20(b) to include only “assistive devices and technologies.” However, the language original language does appear in other parts of the text and was supported by many delegations. The Chair encouraged informal consultation on the matter.
• The term “live assistance” generated a good deal of discussion, however it seemed clear that the group supported the meaning of the term as reflected in footnote 70 of the working group text. The Chair stated the importance of ensuring that this meaning is not lost in the text and promised that something would be done in that regard.
• There was a question regarding specifying only “private” entities in 20(d) and support was expressed for expanding the term to include public entities as well. There was not support for the Chair’s suggestion to move this concept to Article 4 on General Obligations.
Article 21 – Freedom of Expression and opinion and access to information
The Chair noted that proposals had been received from the EU (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm), Kenya (http://www.un.org/esa/socdev/enable/rights/ahc7kenya.htm), New Zealand (http://www.un.org/esa/socdev/enable/rights/ahc7nz.htm) and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm).
Austria, on behalf of the EU was concerned about language in the chapeau regarding the obligation of states parties to ensure that PWD receive information by “all other accessible means, modes and formats of communication of their choice,” which it believed might be a create an unreasonable burden for some states and also might create a new right for non-disabled citizens who may not be able to access information in their preferred language. The concept of reasonableness found in other articles should be applied to Article 21 as well. Therefore it proposed deleting “of their choice” at the end of the chapeau. In 21(d), the EU proposed replacing “urging” with “encouraging,” although it supported retaining “urging” in 21(c). With regard to 21(e), the EU did not believe that it is the role of the state to “develop” sign language and was also concerned with the term “national sign language.” It proposed that the 21(e) be amended to read “Recognizing and promoting the use of sign language.”
Japan suggested that “including sign language and Braille” be deleted from the chapeau as they may be viewed as restrictive. Alternatively, “any other means” could be added. In 21(a) it proposed replacing “Providing” with “Taking appropriate steps to provide” to account for resource constraints. It supported replacing “Urging” with “Encouraging” in both 21(c) and (d). It supported the EU proposal for 21(e).
Trinidad and Tobago supported retaining the reference to developing a national sign language and the elimination of the square brackets in 20(e). A reference to international standards should be added to that paragraph as well to promote a common international sign language as well.
The Chair noted that the issue of a common sign language has been raised before and noted that there is no common sign language internationally.
Serbia and Montenegro supported the EU proposal but also suggested recognition of sign languages in the plural to account for situations in which there may be more than one in a particular country.
The Chair noted that “sign language” might already include the plural.
New Zealand supported the text as containing all of the essential ideas and outlined the minor changes in written proposal.
Chile noted that 21(a) refers to public information and that public information campaigns should be fully accessible to PWD. If there is an adequate definition of communication in Article 2, then Article 21 is fine. If not, then more detail is needed. It suggested that “urging” be changed to “inviting” in 21(c) and (d). It supported the EU proposal to 21(e).
Canada supported maintaining “of their choice” in the chapeau. It suggested that 21(e) read “Recognizing and Promoting Braille, sign languages and display of text.” It noted that reflecting sign languages in the plural is important. It proposed the deletion of 21(c) and (d), stating that they are covered under 9(2)(d) and (f) respectively.
The Chair noted that, in relation to Canada’s proposal to 21(e), sign language is a distinct language on par with French or Arabic, for example. Braille, on the other hand, is a script or a means of communicating a language and not a separate language. “Display of text” is also something different. It may not be appropriate to require “recognizing” either of these in the same way as languages (such as sign language) are recognized.
Canada agreed that these concepts might not need to be subject to recognition but should be promoted.
Russian Federation supported the text as reflecting the necessary key elements. It agreed that Braille and sign language are included in accessible communication but would be flexible as to their retention in the text. It supported deleting “of their choice” from the chapeau and changing “urging” to “inviting” in 21(d). In 20(e), the Russian Federation asked for clarification regarding the meaning of “recognizing” and the consequences of its application regarding national sign languages.
The Chair noted a range in the strength of language proposed with regard to 21(c) and(d), from the existing “urging” to Chile’s proposed “inviting,” which the Chair noted may have different connotations in Spanish.
Yemen noted that the delegate’s personal observation, as a linguist, was that sign language was not actually a language. However the delegate conceded that he was forced to accept the term since it had broad consensus. Yemen agreed with the EU that the state is not responsible for developing sign language only if “state” refers to the government and not to the variety of elements that make up a society. Nonetheless, the government can participate in the development of sign language as had been done recently when participants from Arab states, including governments, had met in Qatar to develop the sign language dictionary. Yemen asserted that Braille is not a language but a method of communicating language. Yemen supported the deletion of “national” in reference to “sign language,” since there is only one official national language in most Arab states and this would imply that sign language is another national language. The delegate reiterated his opinion that sign language is not exactly a language.
China proposed adding “subtitling and writing” in the lists of communications methods in the chapeau and 21(b). If New Zealand’s proposal to eliminate the lists is accepted, “all ways and means of communication” should be substituted and “of their choice” should be deleted in both paragraphs. In 21(a) China proposed adding “possible” between “timely” and “manner.” It noted that “in official interactions” in 21(b) has been translated as “in government affairs” in the Chinese text and asked for clarification of the meaning of the term. It supported retaining “urging” in 21(c) and (d) as long as the text refers to private entities providing public services. China supported the EU proposal to 21(e).
The Chair clarified his understanding of “in official interactions” referred to communications with persons acting in an official capacity for the state. He noted that “in government affairs” has a slightly different meaning.
Costa Rica affirmed sign language as the natural language of deaf persons and supported deleting the square brackets in 21(e). Sign language is essential to exercising the right to freedom of expression. It stated that Braille is a written form of expression and should be referred to as the Braille “system” in the chapeau and in 21(b).
Brazil noted the close relationship between freedom of expression and opinion, and access to information. It supported retaining “of their choice” in the chapeau. In 21(a) it supported retaining “in a timely manner and without additional cost.” It noted that since mass media organizations “operate upon government concessions”, it is appropriate for the government to urge the mass media to provide accessible information. Brazil supported retaining “urging” in both 21(c) and (d). 21(e) should retain “recognizing” and “promoting.” It noted that the element of training is missing from the article and it supported IDC’s proposal to remedy this through a new 21(g).
Mexico affirmed the importance of sign language and supported retaining “of their choice” in the chapeau. It supported merging 21(c) and (d) into a single paragraph, with the addition of a reference to public entities. It endorsed keeping “recognizing” and “promoting” in 21(e) and supported Brazil’s suggestion to incorporate the element of training, noting that this may also include training of persons without disabilities who interact with PWD, such as sign language training for family members.
Norway supported the EU proposal to the chapeau. It supported New Zealand’s proposal to the definitions and to 21(b). In 21(c) and (d) it supported changing “urging” to “encouraging” and suggested deleting “private” in 21(c). New Zealand was somewhat concerned about the term “national” in relation to sign language and supported the Russian Federation’s request for guidance on this issue.
Qatar supported eliminating references to Braille and sign language and instead using a “means of communication.” Communication has already been defined in Article 2 to include these means. It supported the expression “promoting a national sign language” in 21(e).
Kenya preferred retaining the itemized list in the chapeau to raise awareness of the various elements which might not be well known by governments. It cautioned that the language should be non-exclusionary in this regard. It supported retaining the word “Braille” in the chapeau, as it is a vital means of receiving and imparting information. Kenya suggested that “and” be added between “augmentative” and “alternative” to clarify that there is a distinction between the two and to be more inclusive of all means of communication, including those yet to be developed. In 21(c), Kenya proposed replacing “urging” with “requiring” and retaining the term “private entities,” since such entities provide important public services and often believe they have no responsibility under treaties. The wording in 21(a) would already cover public entities. In 21(d), Kenya proposed changing “urging” to “requiring” and replacing the language after “internet” to read “to take into account in the provision of their services to the public all aspects of accessibility to persons with disabilities.” It proposed expanding 21(e) as reflected in its written proposal, to account for recognition of other languages in addition to sign language.
El Salvador supported “recognizing and promoting a national sign language” in 21(e) and deleting “of their own choice” in the chapeau. It supported the rest of the text as written.
Syrian Arab Republic noted that the article must ensure the rights of PWD as well as to access to information and technologies. The article should promote training of PWD as well as to those who assist PWD and facilitate their communication.
Yemen stated that, in Arabic, “encourage” is simply an invitation but that “urge” is much stronger and implies a responsibility. Furthermore, there may be material incentives by those who do the urging.
The Chair noted that there are many nuances among the different verbs being considered in this article.
The IDC noted that there seemed to be confusion regarding the term “access to information,” in that some delegates were interpreting as relating to accessibility. IDC therefore suggested that the term be changed to “right to information.” The representative then reviewed all of the changes in the IDC’s written proposal. It noted especially the importance of Braille to the literacy of blind persons. IDC did not support deleting the reference to sign language and Braille or the words “of their own choice” in the chapeau. IDC could be flexible regarding Canada’s proposal with some additional clarification.
The Chair asked for clarification as to whether the text should read “augmentative or alternative communication,” as found in the definition in Article 2, or “augmentative and alternative communication,” as proposed by Kenya. He also asked for comment on the term “the Braille system.”
The IDC responded that it preferred “augmentative and alternative communication” and that Braille is a script and is usually not framed in terms of a system. The representative interpreted Costa Rica’s suggestion to refer to “the Braille system” as an effort to help clarify that Braille is not a language in the same way that sign language is.
Costa Rica confirmed that this was its intent.
The IDC stated the chapeau eloquently expresses the difference between language and communication and the concept of freedom of expression. It stressed the importance of retaining “in official interactions” in 21(b) to ensure the personal agency of PWD in addressing important issues. IDC appreciated the support of many delegations for the text of 21(e), which protects the right to choose one’s language – a right that is reflected in many international instruments.
People with Disability Australia/Australian National Association of Community Legal Centres strongly recommended strengthening 21(c) by changing “urging” to “ensure,” including a reference to public entities, and adding the words “in accordance with international standards for accessibility” at the end of the paragraph. It encouraged the Committee to recognize that deaf communities across the world have their own strong linguistic and cultural identities. Sign languages are languages in their own right, with their own lexicon and grammar, and give deaf persons a distinct identity that binds them together as a community. It supported the EU’s proposed formulation of 21(e) and noted that in some countries deaf communities use more than one sign language, just as in some countries more than one spoken language is used.
The Chair summarized the discussion as follows:
• There was a proposal to use the formulation “augmentative and alternative communication” in the chapeau and 21(b). That formulation was well supported and would also need to be looked at in relation to Article 2.
• The language in the chapeau and, in an abbreviated form in 21(b), had been extensively discussed and revised in the past. It generated a good amount of debate during the day’s discussion as well. In general, it seemed that the language was well supported. Nonetheless, there were some questions/proposals that should be considered and discussed informally. These include: adding “system” after Braille; whether to expand or reduce the detail in the list; how to handle the issue in relation to what should be included in the definition of communication in Article 2.
• The proposal to delete “of their choice” at the end of the chapeau was supported by some and opposed by others. Noting that the opening language in the chapeau is qualified by the term “appropriate measures,” the Chair suggested retaining the reference to choice in both the chapeau and 21(b).
• There were proposals to delete “private” before “entities,” or to add “and public” after “private.” Some opposed this, arguing that 21(a) already contains a concrete obligation for public entities (the state) in this regard and that private entities should be urged to follow the same course, even though they cannot be obligated in the same way as state entities. The Chair suggested further reflection with a view to keeping the language as written.
• There was discussion surrounding the verb to be used at the beginning of 21(c) and (d), including the existing “urging” and the alternatives “encouraging” and “inviting.” The Chair noted that Article 17 of CRC systematically uses “encourage” in relation to provision of information in appropriate forms, including by the mass media. (The Chair noted the need for consistency between the Arabic text and the working text with respect to the verb to be used.) The Chair stated that the balance of opinion seemed to be to retain “urging” in 21(c) but to use “encouraging” in 21(d).
• There was universal support for eliminating the brackets around 21(e) and retaining the paragraph in some form. There was concern raised regarding the qualifier “national” in relation to “sign language.” On balance, the consensus leaned toward the formula “Recognizing and promoting the use of sign language.” A proposal to add Braille and “display of text” to 21(e) was not supported.
• The concept of training was raised with respect to Article 21. The Chair noted the need to be consistent throughout the text on the subject of training and that there is language on training in Article 3 on General Obligations. That language may require further elaboration, however incorporating the concept of training in Article 21 did not generate much support.
Article 22 – Respect for Privacy
The Chair noted that there were no written proposals submitted in advance on this article.
Russian Federation expressed support for the English text of the article. It noted that the Russian text required substantial editing to ensure consistency with the English text.
Austria, on behalf of the EU, supported the text as written.
The IDC fully endorsed the article as written.
The Chair cheerfully closed the “non-discussion” of Article 22 to the applause of the Committee.
Article 23 – Respect for the home and the family
Due to the short time remaining for the day’s discussion, the Chair asked for comments relating to issues in the text that were not included in square brackets, since those issues represented contentious issues that would require lengthy discussion.
Syrian Arab Republic commented that the language in square brackets 23(1)(a) was problematic. It asserted that it falls within the framework of the family, particularly marital affairs and the drafting should be restricted to that aspect. In 23(2), the Syrian Arab Republic proposed that “in accordance with traditional cultural customs” be added after “trusteeship and adoption of children.” It noted that these issues had been raised before by several delegations but the text had not been changed.
The Chair reiterated his request to address the issues in square brackets at a later point. Regarding trusteeship and adoption, the Chair noted that previous discussions had revealed that adoption is not a concept that is part of the law and culture of some countries. This had been addressed in the text though the qualifying language “or similar institutions where these concepts exist in national legislation.”
Syrian Arab Republic responded that a different sequence of the ideas in the text might help resolve its concerns on this matter.
Japan proposed the addition of “in accordance with national appropriate law” after “ensure” in the first line of 23(2), noting that it is sometimes necessary to impose limits on trusteeships. With respect to 23(3), Japan expressed its understanding that the obligations of states toward children with disabilities are the same as those for any other child, consistent with the CRC.
Qatar supported the comments by the Syrian Arab Republic regarding the language in square brackets in 23(1)(a) and proposed deleting that language.
Yemen noted that adoption in Islamic countries is prohibited by religion and law, as adoption would create complications regarding inheritance rights. However, there is a system to allow for caring for children without adoption. Regarding sexual relationships, Yemen reminded the committee of its previous statement that it would be flexible as to its inclusion in the text as long as the subject was properly dealt with in terms of national law and culture. This issue relates to family relations, which deserves more detailed discussion when time will allow.
The session was adjourned.
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