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Article 23 - Respect for the Home and the Family (continued)
The Chair provided a summary of the prior day’s discussions on Article 23. There was good support for the article as drafted with much common ground particularly in the areas of family laws, marriage, and number and spacing of children. These are issues typically in the realm of States and it is not the intention of the convention to change that, but rather ensure that PWDs are placed on an equal basis with others. The formula “in accordance with national laws, customs and traditions of general application” did not appear to have commanded widespread support, and it will be necessary to draft a formulation that ensures that national laws, traditions and customs are respected, and does not unduly open the door for discriminatory practices. This is not so much a question of substance, but rather a matter of drafting. Some delegates had referenced the title, but no decision has yet been taken whether the titles will be retained.
Regarding 23(1)(a), there was a lot of support for the Canadian proposal to recast it in more positive language to say that PWDs “have the equal opportunity” rather than are “not denied the equal opportunity.” There was also support for the more comprehensive proposal from El Salvador, but given that many delegates wanted to retain elements of 23(1)(a), it may be preferable to utilize the Canadian proposal and retain the rest of (a) as is. Regarding the bracketed language “experience their sexuality,” there was a lot of support both for and against it. The balance of the room is to remove it, but whether to remove it at this stage or not is another issue.
In 23(1)(b) there was strong support for “persons with disabilities” rather than “men and women” with disabilities. If “persons with disabilities” is used then there is a lack of consistency with the ICCPR, but if “men and women” is used then there would be a lack of consistency within this convention. The balance of debate was in favor of using “persons with disabilities,” but with the clear understanding that the intention is not to create a new right or go beyond the right articulated in the ICCPR. With regard to the bracketed language in 23(1)(b) “and that spouses should be equal partners,” although there was support for the language, there were also concerns that this phrasing was inconsistent with the ICCPR and was not disability-specific. To retain the language would require additional explanation, and the simplest approach is to delete the remainder of the paragraph after “intending spouses is recognized.”
In 23(1)(c) there was quite a lot of support for the US proposal regarding the bracketed language and the need for “age appropriate” information and parental responsibility for minor children. This proposal also helped to balance the text in terms of the family, which was considered important by many delegations. There was some support for changing the wording “retain their fertility” to a reference prohibiting compulsory sterilization, but the balance of support was to retain the positive formula currently found in the text.
Regarding 23(2), there was a proposal to reframe the language as a non-discrimination provision, but the balance of support was to retain the existing text. There was a proposal to change the word “and” between trusteeship and adoption to “or,” but either word could be used in English and the formulation in CEDAW Article 16(1)(f) is “and.” The reference to “disabled persons” in the 2nd sentence is a typo and should be “persons with disabilities.” There were several queries regarding the meaning of the second sentence and the burden it might impose on States, but clearly this would be read as one of the economic, social, and cultural obligations subject to progressive implementation and qualified by the word “appropriate.”
A number of delegations noted that 23(3) needed to be reformulated because of its inconsistency with CRC Article 9. There were no objections to the US proposal to insert at the beginning of the paragraph “recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State,” which is language found in UDHR Article 16 and ICCPR Article 23. However, there is a question of placement, given that the language appears in other instruments in the context of provisions on marriage rights, and does not appear in CRC Article 9(1) regarding the separation of children from parents.
There was support for the creation of a new paragraph 23(4), which would utilize the language of (4)(b) of the IDC proposal, to read “where the immediate family is unable to care for a child with disabilities, to make every effort to provide alternative care within the wider family, and failing that, within the community.”
Article 24 - Education
The Chair noted that proposals had been submitted in advance by the EU, Kenya, Israel, Canada, and the IDC. He appealed for focused comments and an avoidance of extensive changes, given that the “perfect is the enemy of the good” and the issues for this article are mostly technical rather than political in nature.
The United States strongly supported the concepts in the article affirming non-discrimination and equal opportunity in education for PWDs.
Canada made four proposed amendments. It proposed changing “achieving” to “realizing” in the Chapeau. In 24(2)(b) it proposed replacing “to the extent possible” with “on an equal basis with others.” It replaced the last sentence of 24(2)(d) with “in order to meet adequately the individual support needs of persons with disabilities, States Parties shall ensure that effective individualized support measures are provided in environments which maximize academic and social development, consistent with the goal of full inclusion.” This proposal is intended ensure that PWD’s are always educated within the general education system, and utilizes language in greater harmony with that found later in the article regarding maximum academic and social development. At the end of 24(5), it supported the EU suggestion to delete the words “render appropriate support to persons with disabilities” and to replace with “ensure that reasonable accommodation is provided.”
Jamaica supported the article because it would be meaningless for a human rights convention to neglected the development needs of the constituents of the convention. It supported the concepts of inclusion, focusing on the developmental needs of PWD. It strongly supported that all professionals engaged in the education system receive some minimum training in catering to the needs of PWDs.
The Chair noted that the issue of training addressed in 24(2)(e), but may need to be reviewed to ensure adequate coverage given that Jamaica had raised the issue more broadly. Training is something that the convention needs to be mindful of, given that it is such an important element in what are trying to achieve.
Mexico proposed replacing the word “lenguaje” in the Spanish translation of 24(3)(b) and 24(4) with “lengua” for great consistency. It proposed replacing “linguistic identity” in 24(3)(b) with “cultural identity” as this is broader and better reflects the concept. It shared Jamaica’s’ concerns regarding the need to better reflect the need for training. It supported inclusive education, and that training should not only be available for teachers but there should also be continuing education for the family and other members of the environment in which PWDs live. PWDs should also be instructed in the techniques and methods of learning which allow them to develop their human potential, and to have full participation with equal opportunity. It offered to provide draft language at a later time.
Norway strongly supported the article, and in particular the concept of inclusive education in the general education system, regardless of type of disability. Regarding the Chapeau it supported replacing “realizing” with “achieving,” because this would apply an immediate obligation on States Parties to ensure non-discrimination. In 24(2)(b) it supported the proposal to delete “to the extent possible,” as retention of this language could reduce the obligation for the access to inclusive and quality free education. Regarding 24(2)(d), the proposal by Canada was acceptable but it is flexible on the issue. In 24(5) supported a change in the last sentence and supported the proposal in this regard from the EU.
Trinidad and Tobago generally supported this article’s substance and intent. In 24(2)(b) and 24(4) it proposed to delete the word “quality,” because it is unclear what “quality” means for education or who defines “quality education.” It supported Canada’s proposed formulation in 24(2)(d) and will examine it further.
Serbia and Montenegro felt that a right to education for PWDs on the basis of equality and without discrimination is crucial, and the delegate personally noted that without having had access to a mainstream school he would probably not be participating in the negotiations now. However, it was mindful that education is primarily an economic, social, and cultural right that is to be realized progressively. Therefore it supported the “more realistic” proposal of the EU at a previous session to include the phrase “goal of achieving inclusive education.” It proposed the following redrafting of the Chapeau, to read “States Parties recognize the right of persons with disabilities to education without discrimination and on the basis of equality with others. With a view to achieving the goal of inclusive education system at all levels and life long learning for persons with disabilities, States Parties shall take effective and appropriate measures directed to:” It welcomed Canada’s proposal to 24(2)(d) and would look into it further. It welcomed the IDC’s proposal for 24(2)(e) bis and (3) and will look further into it. It also supported the EU proposal for 24(5), since when talking about non-discrimination reasonable accommodation is a very useful concept to include.
Jordan proposed that 24(1)(c) (referring to “enabling persons with disabilities to participate effectively in a free society”) be deleted, because it is general in nature and already achieved through several other articles in the convention. It proposed that sub-paragraphs 24(2) and (3) be reversed, so that the article would state the right to be achieved before addressing the means through which the right will be achieved. Along with Jamaica it supported the proposal to ensure quality education for PWDs by having proper education for staff and professionals. It proposed that 24(2)(e) become a paragraph by itself, because it is more general in nature, and 24(4) a subparagraph of (e), because it deals specifically with students with sensory disabilities. It proposed deletion of 24(5), because it is already implied in the Chapeau and therefore redundant.
Yemen supported the article as characterized most of the amendments thus far as word-smithing rather than changes to the content per se. It objected to references in 24(3)(b) and by some delegates to deaf culture, as it is convinced that deaf people do not have their own culture but rather express the culture of their society through sign language. It also objected to references to Braille “language,” as Braille is not a language but rather a system of writing. It proposed including reference to “education centers” somewhere in the article, because vocational as well as scholastic education should be available for PWDs. The article should also ensure that curricula and educational materials are provided in a manner appropriate and accessible for PWDs.
The Chair noted that in the English text the phrase “Braille language” is not found, so there may be a question of linguistic concordance. Both Yemen and Costa Rica had suggested the possibility of referring to the “Braille system,” and colleagues with an interest were invited to consult and come up with an agreeable technical phrase for use throughout the text. He also noted that in 24(3)(c) there is a typo, and “deaf/blind” should instead be “deafblind.”
Uganda supported the article not only for children with disabilities, but also for adults in areas such as functional adult literacy. It supported the Mexican proposal that training should be for the family as well, so that the family can provide the necessary support to PWDs in their life long learning. It supported the IDC proposal for the chapeau of 24(1), to replace “inclusive education” with “inclusive system.” In 24(2)(b), it proposed deletion of “to the extent possible” because the implementation of this article is automatically subject to progressive realization, and we should avoid language that may negate the obligation of States to provide what they should for PWD. Ultimately the individualized support for each PWD where necessary is what all States should aim for and it therefore supported Canada’s proposal for 24(2)(d). In 24(3)(a) it supported the IDC proposal to add “augmentative and alternative communication modes and means, techniques and strategies.” In 24(3)(c) it noted the IDC proposal to add “sign language” to “appropriate languages,” and proposed adding a reference to “tactile” in 24(3)(c) and 24(4) to address the needs of deafblind people. There is a tendency to leave out tactile and confuse it with sign language, yet they are different modes of communication.
Japan noted that the right to education for all children was very important, and emphasized that it guarantees the right to all children, with or without disability. However, it could not accept any wording that obliges States Parties to ensure inclusive education in all cases, regardless of the situation of children with disabilities. The use of general or special schools should be decided according to the best interests of the child. In the third line of the chapeau of 24(1), it proposed including “to the maximum extent possible” after “ensure,” in order to address the concern that inclusive education be accessed within the community. In 24(2)(a) it proposed deletion of “general” from “general education,” because in 24(2)(d) it states that there are cases where the general education system may not directly meet the needs of children with disabilities, and the two paragraphs should be consistent. In 24(2)(b) Japan made three points. Firstly, conventions rarely use the word “can,” as is done in that sub-paragraph. Secondly, it needed to be clear that inclusive education is not always adequate for children with disabilities. Thirdly, it proposed the formulation “free and compulsory primary education” to replace “free primary education,” in order to be consistent with 24(2)(a). 24(2)(b) would therefore read “Access by persons with disabilities, to the maximum extent possible, to inclusive quality free and compulsory primary and secondary education in the communities in which they live.” Like Trinidad and Tobago it was unsure of the meaning of the word “quality” when referring to “quality education” in 24(2)(b) and 24(4) and sought clarity on its meaning. In 24(2)(c) it proposed to mirror the wording of 24(5) so that 24(2)(c) would read “that they take all appropriate steps to provide reasonable accommodation of the individual’s requirements.” In 24(2)(d) it was unsure what kind of alternative support States Parties are supposed to provide and proposed to delete the reference to “exceptional” at the beginning of the third line. It noted Canada’s proposal for 24(2)(d) but could not accept use of the term “the goal of full inclusion,” because of the reasoning previously provided. It proposed streamlining the structure of the entire article, because 24(2) refers to primary and secondary education, and 24(5) uses the wording tertiary and life long education. It proposed limiting the scope of training in 24(2)(e) to primary and secondary education, so that (e) would read “who work at all levels of free and compulsory primary and secondary education.” It supported the IDC proposal to refer to “deafblind” rather than “deaf/blind” in 24(3)(c). In 24(4) it proposed after “sensory disabilities” the phrasing “through such measures as employment of teachers who are fluent in sign language or Braille,” because there should be more appropriate measures consistent with the conditions of the child.
Brazil supported inclusion of all PWD in the general educational system. Children with disabilities should be able to go to the same school as their siblings, because this reaffirms and strengthens the family. It also noted that changes in education will need to be made incrementally, based on capacity building, but in the long run such changes support the paradigm shift sought here, and will ensure the change in culture and the way that PWDs are perceived in general. In the chapeau it was more appropriate to refer to “inclusive educational system” and supported Serbia and Montenegro’s proposal in this regard because it was clearer. In 24(2)(b) it deleted “to the extent possible” as unnecessary. In 24(2)(d) it proposed deletion of the words starting with “in exceptional circumstances” through “are provided” retaining only “consistent with the goal of full inclusion” which would be added to the end of the first sentence. The focus should be on support and not on exceptional situations. The question of alternative education is a “false dilemma,” as resources should be channeled into the general education system where the benefit for PWDs is all the greater. Alternative education should not be prohibited per se, but it should not be stimulated either. In 24(3)(a) and 24(3)(b) “ensure” would be a stronger verb than “facilitate.” In 24(3)(a) it supported the IDC proposal regarding augmentative and alternative commutation modes. In 24(3(c) it proposed deletion of “in environments which maximize academic and social development,” because this could lead to misunderstandings. The environment that maximizes academic and social development is the general environment, but as currently worded 24(3)(c) could be interpreted to mean that there is another alternative environment which would be more advantageous.
South Africa supported the article. It noted that the development of human potential and life long learning had been adequately covered in 24(1). In 24(2)(b) it supported deletion of “to the extent possible.” It felt 24(2)(d) as drafted did not adequately cover the types of support that should be offered to PWDs within the education system, such as resource centers. Regarding training, it supported the position of Jamaica that 24(2)(e) needed to be strengthened to adequately cover training across the board. It proposed amending the last sentence 24(5) to read “to that end States Parties shall render appropriate support services to persons with disabilities.”
Kenya noted that its comments were influenced by three elements. Firstly it noted the need to address all PWDs equally, and not give certain groups of PWDs particular emphasis. Secondly, the models selected, such as inclusive education, are conclusively the best option to guarantee equal access and quality of education. Thirdly, it did not want to become too politically correct to the extent that may exclude certain things that have been successful within education for PWDs. In the chapeau, it supported the IDC position on inclusive systems, but was unclear as to the exact definition of “inclusive systems.” If the word “inclusive” is not clarified then it should be deleted from the phrase, to read “States Parties will ensure education at all levels and life long learning” with “in the least restrictive environment” added at the end. In 24(2)(b) it supported the proposal to delete “to the fullest extent possible.” In 24(2)(d) it supported the Canadian proposal, but could not accept inclusion of the phrase at the end “with the goal of full inclusion.” It agreed with the deletion of “with the goal of full inclusion,” because the article currently lacked language to express that PWDs may require special school, units and other services in education. It would therefore be asking a redraft in recognition of that fact. In 24(2)(e) it supported the inclusion of “curriculum” after “education techniques and materials.” In the chapeau of 24(3) it supported the IDC proposal to replace “life and social development skills” with “daily life skills and habilitation.” It supported 24(3)(a) as drafted, because it recognizes that support and mentoring belong in the same cluster. It recognized that 24(3)(b) addressed linguistics and language, and proposed to say “facilitate promotion of linguistic identity of the deaf community, sign language, augmentative and alternative communications modes and means,” further supporting Uganda by adding “tactile communication.” In 24(3)(c) it supported replacement of “who are blind deaf and deaf/blind” with “ensure that the education of children with disabilities is determined by nature of disability and need, and is delivered in the most appropriate languages … ” and at the end replacement of “development” with “skill.” In 24(4) it proposed to replace “fluent in sign language or Braille” with “employment of teachers who are proficient in teaching strategies, methodologies, techniques and communication modes and means.”
Australia supported the article but suggested it could be improved with some reorganization. It noted that its approach to education is the entitlement to inclusive education. Specifically, PWDs are entitled to be educated in an inclusive, mainstream education setting. The way to achieve this inclusive education is essentially through a right to non-discrimination. This right addresses several fundamental difficulties that other delegations have addressed. It noted that while education is an economic, social and cultural right and therefore subject to progressive realization, the right to non-discrimination is immediately realizable. However, that immediate right is subject to reasonable accommodation, up to unjustifiable hardship or undue burden, and this would answer the concerns of some delegations that States would have to expend more resources than available. PWDs are be entitled to access the general education system as part of non-discrimination, and States are required to provide reasonable accommodation as an element of non-discrimination. That means that a student’s special needs or particular requirements have to be addressed by the State to the maximum of that State’s capacity, up to the point of unjustifiable hardship. Therefore, a State is not required to do more than it can, and a student’s access to education is not impeded by phrases such as “to the extent possible.” In terms of achieving that in the draft, it proposed moving the reference to inclusive education out of the chapeau, so that 24(1) would be a strong statement that States Parties recognize the right of PWD to education directed to the full development of human potential. 24(1)(a), (b) and (c) would remain unchanged. The reference to inclusive education would be placed in the chapeau of 24(2), to read “In realizing this right, States Parties shall take measures directed to achieving an inclusive education system at all levels and life long learning without discrimination and on the basis of equality of opportunity. In particular, States Parties shall take measures directed to:” It is important that inclusive education be stated as a right, because unless there is a proper resource commitment to inclusive education there is no real choice. The concepts addressed in 24(2)(c) and (d) are key to achieving nondiscrimination. There is no need to build in exceptions, but rather what is needed is a clear a statement that PWDs receive the support required to facilitate their education within the general education system and the communities in which they live. However, to address the resource impact question, reasonable accommodation means that it is necessary to cater to the needs of the PWD, and accepting that there are some who cannot be educated at the present time in the general education system, attempts need to be made to include all students in the general education system. It would not use the phrases such as “cannot adequately meet the support needs” or “exceptional circumstances” but instead say “Where the education system cannot reasonably accommodate the needs of persons with disabilities, States Parties shall ensure that effective alternative support measures are provided in environments which maximize academic and social development, consistent with the goal of full inclusion.” It did not support adding an express reference to reasonable accommodation to the end. Reasonable accommodation is the “key” that provides an immediate right to enter into general education, but also answers the resource concern in that States are responsible up to point of unjustifiable hardship. This does not impose undue obligations in the context of education, which is important because States have an obligation to all people to provide education, and not just an obligation to a certain sector. Regarding training, it considered this important, and proposed that it be included in a new sub-paragraph 24(2)(b). It noted that references regarding Braille and other communication modes in 24(3) should remain. However, it proposed to amend the chapeau of 24(3), replacing “to this end state parties shall…” with “this shall include facilitations of the learning of Braille.” While Braille and the position of deaf, blind, and deafblind persons is critical, it does not need to be exclusive, as there are other PWDs for whom references to education and language will also be important. It was flexible as to specific drafting, but suggested that if Australia’s proposed structure is followed, sub-paragraphs 24(4) and (5) could be deleted, as those obligations would already be covered. It reiterated its support for the article with some reorganization changes, and its position that viewing the issue as a nondiscrimination right could resolve a lot of the issues noted by other delegations.
New Zealand supported the article and the concept of PWD’s ability to participate in the general education system with appropriate supports. It also indicated its hesitancy to engage in discussions, as the relatively minor outstanding issues do not warrant substantial changes to the text. In 24(1) it supported the EU and Canada proposals to replace “achieving” with “realizing,” and proposed to add “system” to read “inclusive education system.” This would be consistent with the text further down in the article and deals better with issues of terminology related to inclusive education. In 24(2)(b) it supported Canada’s proposal, and deletion of “to the extent possible.” It strongly supported the Canadian proposal for 24(2)(d). It noted in 24(3) that, due to the desire to ensure the needs of persons with sensory disabilities are met, there was much debate about the issue of inclusive education versus special schools. This requires some specific environments where people have an opportunity to mix with their peers. However, there are many different ways to achieve this and whilst the article should not be too prescriptive, because these things are evolving, the article should point to a shift away from purely segregated education. Presenting the issues in terms of goals as opposed to how the goals should be achieved, results in a good balance in 24(3), though some minor changes would improve the sub-paragraph further. In the chapeau of 24(3), it proposed to use “assisting” instead of “enabling” so that the article would not seem patronizing and would address the concerns of the EU and the IDC. It also proposed to turn the first sentence around so that it speaks first to facilitating full and equal participation and then of assisting people. It supported the Australian proposal for the chapeau to change the last sentence to, “to this end States Parties shall take appropriate steps including …” because this would be inclusive of all people. It also noted the need to change “facilitate” and “ensure” to “facilitating” and “ensuring.” Regarding the Chairs’ comments on the duplication between 24(3)(b) and Article 30(4) (Participation in cultural life, recreation, leisure and sport), it supported the retention of 24(3)(b), as the specific training of people in sign language and related cultural and education settings is quite a separate concept from supporting it in a wider cultural context. It did not object to mentioning “cultural” rather than “linguistic” identity. In 24(5) it supported the EU proposal. It also supported the Australian intervention related to resource concerns and implementation. Regarding the structural changes proposed by Australia, on initial examination it felt the proposal helpful, but wished to study it further and reiterated its hesitancy to reopen the entire debate and potentially upset the balance of the article.
Morocco supported the text and supported Mexico and Jordan’s proposals related to the training of teachers.
Iran called for draft proposals to be placed on the screen, to better enable delegates to respond. It strongly supported the principles expressed in the article, and noted that the treatment of PWD in an equal and nondiscriminatory manner in education, with respect to fundamental freedoms and dignity, and ability to participate in society, was very important. However, enabling activities with regard to PWDs should be comprehensive, and not just touch upon one aspect of this issue. Regarding the objective in 24(1)(c) to enable PWDs to participate effectively in a free society, it is unsure of the meaning of “free society.” Does “free society” relate to freedom, or to participate effectively and freely in society? Through education, PWDs should be prepared and enabled to engage in business-related activities in society, and if this aspect were also observed in this article in the context of enabling activities, then Iran would support the issue. It noted several concerns regarding use of the words “ensure” and “to the extent possible,” because it is necessary to take into account the level of commitment that a government is expected to make. The addition of “ensure” and deletion of “to the extent possible” in 24(2)(b) would increase the level of commitment and may prevent governments from joining the convention, not because governments do not want to raise the level of education, but because they may not be able to meet the commitments. An alternative solution to enable governments to make the commitment and implement this provision would be to use “ensure” and delete “to the extent possible,” and then somewhere else, for example in Article 32 (International Cooperation), be “more generous and strengthen the wording regarding international cooperation and assistance.” An additional concern was that there are some cases singled out in 24(3)(a), (b), (c), and 24(4), which occur in “normal situations,” but the article does not address the specific types of disabilities witnessed in societies emerging from war. [Tape blank here.] With regard to awareness-raising, many societies do not have the problem of respect or disrespect, but rather people do not know how to respect or treat PWDs. This concept may be beyond awareness-raising and may instead fall into the category of education. Regarding the term “quality education” in 24(4), it was doubtful that the word “quality” is appropriate here. It welcomed the proposals regarding employment of qualified teachers, noting that this reference is important to the question of the education of PWDs.
The Chair noted that the reference to “free society” is the same as found in ICESCR Art 13(1), where it states that “States parties agree that education shall enable all persons to participate effectively in a free society.” Regarding the burden of States, the article comes within the rubric of economic, social, and cultural rights so it provides for progressive implementation as long as the practice of states is not discriminatory. He noted that the balancing of the economic, social, and cultural rights component is found in Article 4 (General obligations).
The Russian Federation supported the article and, generally speaking, the Chair’s Text. With regard to 24(1), it expressed concern at the reference to “inclusive education” in the chapeau. Inclusive education is “general education, universal education and the inclusive universality is a characteristic of the education system as a whole.” If colleagues speak of some special system of inclusive education as being an independent system, that would mean a different approach to this question. It would mean that “inclusive” would not be a quality of education, but rather a structural aspect of the system, and therefore clarity is needed regarding this phrase. It suggested introducing a basic description of what is meant by inclusive education, in order to remove all possible differences of interpretation. It proposed to include “and in all forms” after “education at all levels,” which would take into account the individual possibilities of the PWD and would be useful in the interest of children. The need for this addition was due to the fact that in addition to the levels of education stated in 24(5), there are also other forms of education that are quite different and numerous, including special home education and home schooling and it is desirable to reflect this in the text. If the individual possibilities and abilities of children are ignored then no education is possible, so taking into account the abilities and possibilities of PWDs is one of the fundamental conditions to ensure effective education. The wording proposed will make it possible to better attain the objective of including PWDs in education to the maximum extent possible. With regard to 24(1)(a) it would be better to use the terminology of other instruments, because it is taking into consideration not just comprehensive development but also the maximum realization of this potential. It proposed rewording 24(1)(a) to state “comprehensive development and maximum realization of the human potential and sense of dignity …” It also proposed “develop respect for human rights” instead of “strengthening of respect for human rights” in order to be clearer. In 24(1)(a) and (b) the content and meaning is quite close, and proposed to merge the two in order to avoid too much detail. In 24(2)(b) it supported the Chair’s Text, because there is a question of principle raised here. If “to the extent possible” was removed, the convention would be giving up the important right for PWDs to be educated in close proximity to their families, and this is very important to “children with limited abilities.” In 24(3)(b) it supported the suggestion to limit this paragraph to facilitate the learning of sign language, because the second part of the paragraph referring to promotion of linguistic identity of the deaf community goes beyond the framework of the problems of education. Promotion of linguistic identity should instead be considered in the overall concept of culture in Article 30. At the same time, 24(3)(b) could be complemented by an indication that it is necessary to train specialists, because this would facilitate the learning of sign language and training of appropriate specialists.
Chile agreed with the principle of non-discrimination as a right to inclusive education. It supported the Canadian proposal in 24(2)(b) and deletion of “to the extent possible.” Regarding the term “quality” education, it noted that in a global world there are various parameters to measure what is quality and it will be subject to a test of reason. This also depends on the place where it is implemented and subject to the individual that the quality of education is being measured against. It reaffirmed the Chair’s Text regarding quality education, and noted it is important to stress quality of education because historically there has not been good quality education for PWDs. In 24(2)(b), while it agreed with Canada, it would also like to include the aspect of progress or access to progress in this type of inclusive education, because in Chile inclusive education is a matter of access as well as progress and quality. In 24(2)(d) it supported the Canadian proposal because the proposal singled out in a positive way what the paradigm was - the granting of support services gradually as required by PWDs - and the proposal was appropriate to the special education needs of some students. In 24(4) it supported the reference to sensory disabilities, but noted it was essential to also include other methods of communication. It noted that if only sign language and Braille are included in this article, this leaves out other methods, such as tactile communication and methods relevant to PWDs such as those who are deafblind. In this regard it noted its flexibility towards the IDC proposal and which disabilities should be mentioned in the article, and felt it important also to mention the recruitment of teachers who make their experiences available to students as PWDs. Regarding 24(4), there could be wording added to include access and progress in this type of education, aimed at persons with sensory disabilities. In 24(5) it was important to maintain the element of access to higher education. Higher education is the most vulnerable education level in terms of regulations and norms in various countries. Regardless of the reorganization of the drafting, it is important to emphasize elements related to access and progress in higher education. It was flexible as to the terms of the Australian proposal on vocational education, but noted that it was important to refer to “development” in the vocational education of PWDs. Also it agreed with changing the Spanish translation of “lenguaje” to “lengua” in reference to sign language.
Costa Rica supported the Chair’s text. It agreed with Yemen on the correct classification of the Braille system and was certain that this can be resolved easily. It expressed concern regarding the possible infantilization of education in 24(3)(c). 24(3)(c) refers to the fact that children with disabilities should be provided with education that has certain characteristics, but it is not clear if this should only apply to “children.” Both children and adults who are blind, deaf or deafblind should have appropriate education. If it was of interest to highlight children in this article then it would not object to using a phrase such as “in particular children.” The most important point was that since this process started there has been a consensus on the fact that the medical model of disability, which looks at disability as a defect or a disease that needs to be cured through medical intervention, has been completely left behind. The model that now prevails is the social model, in which the problem is defined as interaction between the setting in which the person with impairment lives and the person. However, this article is limited to guaranteeing access to PWDs to education, and it is forgetting that if we do not change the paradigm of education for everyone else, then little will be achieved in terms of applying this convention and ensuring the rights of PWD. It is essential to educate all persons concerning disability as a human rights issue, and this is not considered in this article. It has been noted in great detail how PWDs can be guaranteed a benefit from education, but it has not been noted how to educate society to bring about this change. Fernando Sabater said that education is the only way to liberate men from their destiny. Education is the vehicle that guarantees that all prejudices in society against PWDs should be overcome. For this reason it proposed an additional paragraph which would refer to this concern in particular. It would later provide the text in English, but in essence there would be a final paragraph recognizing that education is the way to change society, and that States Parties should incorporate in the curriculum of all universities the topic of human rights and disabilities. This would become part of their training and this would also address the concern of Jamaica.
Israel strongly supported the article and noted that it was one of the axioms of this work on the convention. It expressed concern that the present language in 24(2)(a) goes too far and is not sufficiently balanced. The principle in 24(2)(a) was that PWDs not be excluded from the general education system on the basis of their disability, and this is only somewhat qualified by reference in 24(2)(d) to “exceptional circumstances where the general education system cannot adequately meet the support needs of persons with disabilities.” It did not believe that this qualification went far enough, and whilst the convention has to emphasize overall the rights of PWDs to inclusive general education, the right to choose should also be considered, as there are many cases where parents, having considered all relevant considerations, opt for special schools. Such situations need to be emphasized in order to ensure that all the needs of a PWD are catered for. This is not a question of the resources of States Parties, as that is adequately addressed in Article 4 (General Obligations). Rather, there are situations in which special schools can meet the needs of PWD more adequately than the general education system. 24(2)(a) is an almost absolute, and thus goes too far. It proposed to move the latter half of 24(2)(a) to the chapeau of 24(2), and state that children with disabilities are not excluded from free and compulsory primary and secondary education. It also proposed to take what is at present 24(2)(a) and qualify the statement that PWDs are not excluded from the general education system on the basis of disability, and add “except where the needs of the person with disabilities, after the support required for that person has been given, cannot be adequately met by the general education system.” The proposal would continue with the latter half of 24(2)(d) which addresses what happens when the general education system cannot provide the appropriate response. It reiterated its concern that the present wording of 24(2)(a) will not fit the reality of a number of situations and without losing the vision of the convention and this article in particular, there is nevertheless a reality here which needs to be addressed. It supported the need to include all relevant disabilities in 24(3), but agreed with the IDC proposal that language relating to life and social development skills be deleted, as it is offensive and could be misinterpreted as implying that PWDs lack these skills because of their disabilities. In order to encompass persons with all relevant disabilities, it is suggested in 24(3)(a) to add “augmentative and alternative communication modes and means techniques and strategies.” It also proposed to add a new 24(3)(d), which would read “to ensure that children with communication needs and in need of special teaching methods and means receive education which maximizes academic and social development.” To ensure that the article in this convention encompasses all relevant disabilities, it suggested a proposal similar to the IDC proposal regarding teachers, and to add a 24(4)bis stating “States Parties shall take appropriate measures to ensure quality education to students with cognitive, psychosocial or physical disabilities through the employment of teachers who are adequately trained in adaptive education techniques and technologies and assistive and augmentative technologies.” It noted the need to focus on the mode of employment of teachers as a way of ensuring quality education to students with disabilities. It agreed with the proposed amendments in 24(1) to change “realizing” to “achieving” and referencing inclusive education “system” in the chapeau.
Senegal supported the text, though it was also favorable to the suggestions put forward by Canada and Yemen, at the same time not excluding the relevance of provisions and proposals made by other delegations. It wanted to see the concepts of “linguistic identity” and “quality education” retained. It also wanted to see specialized education be retained for people who have sensory disabilities. Centers and institutes for the blind and the deaf should be retained in order to ensure at least primary education where the Braille method would be applied. Also in order to help the deaf, it supported the proposal regarding the training of teachers in specialized education.
Jamaica reiterated its previous intervention. The provision for professionals in the education system was absolutely necessary. The article mentions this in 24(2)(e) and (4), though references could be streamlined to strengthen the text, as inclusion of this concept is absolutely important if there is to be a radical change in education of PWDs. It supported Jordan’s proposal that 24(2)(e) be incorporated as a separate paragraph, and noted that it has developed a formulation for the joining of 24(2)(e) and 24(4) to become a separate paragraph. It proposed to amend 24(2)(e) to begin “States Parties shall take effective measures to promote the development of initial and continuing training,” and would continue to the end of current 24(2)(e) where it talks about all levels of education. At that point it would begin a new sentence to join current 24(4), which would read “this shall include taking appropriate measures to ensure quality education to students with sensory and intellectual disabilities through the employment of teachers who are fluent in sign language or Braille or any other competencies, including teachers with disabilities.” This would strengthen the issue of professional training for the education system to the benefit of PWDs.
The Republic of Korea supported the deletion of “to the extent possible,” given that Article 4 (General Obligations) already discusses progressive realization of economic, social and cultural rights. For similar reasons it did not support the proposal by Japan to add “to the maximum extent possible.” It sought to emphasize the importance of identification of disability and response to the onset of disability within the general education system. Many education systems do not prepare to identify the onset of disabilities, and consequently persons who become disabled exhaust resources which are not efficient or appropriate at all. It proposed to address this concept in 24(2)(e), proposing “the development of initial and continuing training which incorporates disability awareness, identification of disability,” with the rest of the sentence remaining the same, though it was flexible as to the wording.
Panama noted that in the course of the debate it had heard many views which it supported. It stressed that Article 24 should uphold the principle that States Parties will ensure a general system of inclusive education. In 24(2)(b) it opposed retention of the phrase “to the extent possible,” since it would offer an excuse for a paucity of resources. This is a forward-looking document, and if appropriate measures had been taken in the past there would be no need for this convention. It supported Chile’s proposal for 24(2)(b) referencing “access” and “progress.” It also supported Brazil’s proposal in 24(2)(d) to delete the reference to “exceptional circumstances” in which the general education system cannot adequately meet the support needs of PWDs, and it proposed to skip from “to facilitate the reflective education” and after deleting “alternative” it would continue with “States Parties shall ensure that effective support measures …” It supported Costa Rica’s proposal for 24(2)(3), referencing inclusion in the university curriculum of human rights and disability as a topic, and noted that if these subjects had been included in the past in basic careers such as architecture, then there would not be the problem today of inaccessibility worldwide. It supported Uganda regarding the need to mention other systems of communication as well as Braille and sign language, and inclusion of a reference to “tactile.” However, the proposal should be left open to other systems that might emerge or be developed in the future, as this is a convention that should look to the future and to any improvements that may be developed by humanity.
Argentina supported the proposed text in general. It supported proposals of Mexico and Brazil, and Costa Rica’s reference to education as a means of changing perceptions and social paradigms. In 24(3)(b) it supported Mexico’s proposal to replace the concept of linguistic identity with that of cultural identity. It was concerned that the bilingual nature of the deaf community and their sign language is not accepted even in specialized areas, so it was interested in making the necessary adaptations in the public area. Whatever adaptations necessary to recognize sign language as the natural language of the deaf community, should be created. Thus, this community should be recognized as bilingual with all the rights and responsibilities of any population having its own language. It supported the EU proposal for the chapeau, and shared the concerns of the EU regarding 24(3) and (4). It considered with interest the proposals of Canada and Israel for this article.
Syria supported this article with a few amendments. In 24(1)(c) it supported Jordan and Iran in their concerns about this paragraph. Although the language was taken from a prior treaty it contains a lot of generalities that could be misinterpreted or misused. It preferred to focus on the other paragraphs, because they contain details that cannot be misinterpreted or misunderstood. In 24(2)(b), regarding quality education as an adjective for primary and secondary education, it proposed to add a phrase that refers to the training of teachers in the use of various kinds of communication technologies. This would guarantee that quality be consistent with the special needs of PWDs. It supported the proposal for 24(2)(e) to be an independent paragraph which should focus on the specialized training of teachers and others. In 24(3)(b) it supported Yemen’s proposal to leave the paragraph as is, because it facilitates the learning of sign language and the promotion of linguistic identity. There should be no reference to cultural identity, only linguistic identity.
Article 24 - Education (continued)
Colombia supported deletion of “to the extent possible” in 24(2)(b). It proposed amending 24(2)(b) to say “that persons with disabilities can choose freely access to inclusive, quality…” to include the concept of free choice with reference to participation in inclusive education or development of a particular language. It supported Canada’s proposal regarding 24(2)(d) but without “individualized.” It also supported deletion of “alternative” in 24(2)(d). It suggested amending the text of 24(3)(b) in the Spanish translation, replacing “lenguaje” with “lengua.” It proposed amending 24(5) to delete references to specific types of education and use broader language, such as “States Parties shall ensure that persons with disabilities may access and promote or advance in inclusive education, beginning with the preschool level and up to the higher levels.” It supported retaining the reference to “persons” instead of “children” only, as education is important to adults as well as children. It noted interest in the Israeli proposal for 24(4) regarding benefits for persons with sensory disabilities, but it expressed concern at the use of “employment of teachers” in the Chair’s Text, as well as in Israel’s proposed 24(4)(bis). It proposed using more general language so that the provision includes not just teachers in the regular employ, but also those who may be resorted to for support.
Austria, on behalf of the EU, supported proposals to replace “achieving” with “realizing” in the chapeau of 24(1) to make the principle of nondiscrimination, a concept that does not need progressive implementation, immediately applicable. It proposed amending the last sentence of 24(5) to “to that end, States Parties shall ensure that reasonable accommodation is provided.” It expressed concern with 24(3) and 24(4) because the specificity of the language could lead to exclusion of impairment groups that are not expressly mentioned in the provisions. Moreover, the subject matter in these provisions is addressed elsewhere in the convention, specifically Articles 21 (Freedom of expression and opinion and access to information) and 30(4) (Participation in cultural life, recreation, leisure and sport). It would consider other proposals, specifically those of Kenya, New Zealand, and Jamaica, while consulting with civil society.
Thailand strongly supported deletion of “to the extent possible” from 24(2)(b).
China proposed focusing solely on the development of dignity, self worth, and respect for human rights and fundamental freedoms in 24(1)(a), limiting the reference to development of human potential to 24(1)(b) and amending it to read “the full development by persons with disabilities of their potential, personality, talents and creativity, as well as their mental and physical abilities.” It expressed confusion as to whether “human diversity” referred to cultural diversity or biodiversity, and called for use of an alternative term that would be clearer, or deletion of the term “human diversity.” It noted that insofar as the enumerated list in 24(5) could fall under the “alternative support measures” mentioned in 24(2)(d), it is important to retain the specific descriptions in 24(5) to ensure adequate alternatives to general education such as vocational training and lifelong learning. It also noted support for the Canadian proposal.
The Chair noted that “human diversity” refers to the variety of shapes, sizes, abilities and disabilities found in the human population and that the language was a product of extensive deliberation within the AHC, not just the independent decision of the Chair. The Chair stated that the language is a reinforcement of the earlier article on changing attitudes.
The International Disability Caucus (IDC) supported deletion of “to the extent possible” in 24(2)(b). It suggested deletion in 24(2)(d) of “in exceptional circumstances where the general education system cannot adequately meet the support needs…” because it could be used as an excuse for States Parties to avoid their obligations under this provision. It supported using language in 24(2)(e) similar to that used in Article 21, and supported Kenya’s proposal to include references to “alternative and/or augmentatives modes, means and formats” in this provision, noting that this language would cover present as well as future means of communication. It emphasized the need to include a gender-sensitive approach to this provision to ensure that all children have the right to education. It suggested including in 24(2)(e) “training of professionals and teachers” and asked delegations to look at the proposed IDC text, which was more inclusive than the Chair’s Text. It proposed replacing in 24(3) “mentoring” with “peer support,” noting that it could support the inclusion of both but it was important to include at least “peer support.” It noted the need to replace “deaf/blind” in 24(3)(c) with the correct term “deafblind.” It suggested narrowing the scope of 24(3)(c) by including “learning” before “environment.” It proposed replacing “sensory disabilities” with “language and/or communication methods of their own” to advance the objective of moving away from the medical perspective of disability towards a more social context; this could also apply to “blind,” “deaf” and “deafblind,” which would eliminate some concerns regarding singling out particular impairment groups. IDC strongly opposed the proposals, such as that from Kenya, which could allow States Parties to place children with disabilities in institutions in the name of education. It also opposed any language that would suggest the need to treat all persons with disabilities in the same manner, as there is diversity within the population of persons with disabilities that would require some differentiation in treatment. It supported the Chair’s Text in 24(5), specifically “render appropriate support,” rather than the proposals from Canada and the EU to replace it with “reasonable accommodation”; it was of the opinion that “reasonable accommodation” could weaken the article and provide an excuse for States Parties to avoid their obligations to provide support to children with disabilities in the context of education. It emphasized that Braille is not a language; it is a script. It noted that this must be kept in mind during the process of translating the convention into different languages. It supported Canada’s proposal to delete 24(2)(b) and 24(2)(d) and is flexible regarding the new text proposed by Canada. It supported the need to provide for training of teachers and professionals in the article, as proposed by Mexico. It noted concerns about language referring to “alternative education,” as a primary objective of the article is to ensure the mainstreaming of education of persons with disabilities into the same curriculum provided for other citizens. It noted hesitation regarding Australia’s proposal for 24(2)(a). It expressed concern with the EU statements that 24(3) and 24(4) were too detailed, that by mentioning certain specific impairment groups the provisions could be interpreted to exclude application to other impairment groups. The IDC noted that, while it is willing to continue the discussion on this issue, it did not accept the idea that either every group should be mentioned or none should be mentioned at all, especially given the differing needs related to different impairments. The IDC stated that deletion of these provisions would harm persons with disabilities, especially those that need particular support in school.
The IDC supported the Canadian proposal insofar as it emphasizes full inclusion as a goal. In this context, it noted that special education services are part of the process to achieve the goal, and that to some persons with disabilities these programs are inclusive rather than exclusive. It advocated incorporating special education programs as part of the general education system with the safeguards recognized by Rule 6 of the UN Standard Rules, so that special education programs meet the same standards as applied to general education systems. Thus, special education programs should have comparable facilities and curricula, commensurate with the general education system. It suggested that the article should give persons with disabilities a choice as to whether they want special education or general education, as this convention has been consistent in giving choices in other aspects of life. Finally, it endorsed the concept of accessibility of the general education system, as included in the Chair’s Text.
The British Council of Disabled People, speaking on behalf of the IDC, emphasized that fully inclusive education within the general education system is the objective of this article, given the fact that denial of access to mainstream education or to any education has left millions of persons with disabilities with inadequate education, in rich and in poor countries alike. While the specific sensory impairment groups (blind, deaf, deafblind) would like to be given a choice of schools, the majority of persons with disabilities would like access to mainstream education to ensure future access to employment, training and even family life. It therefore endorsed Canada’s proposals for 24(2)(d), which would change the capacity of the mainstream education system to include a much broader range of persons with disabilities than ever before. Much of the special education system was developed without consultation with persons with disabilities, and it thus reflects the medical model approach, which should now shift to a social model approach. It supported Australia’s proposal, but objected to the concept of “undue burden.” States Parties will have to meet the challenge of restructuring the education system to meet the obligations of the article, but these objectives will be achieved through progressive realization by utilizing the tools developed by UNESCO and others to facilitate implementation of inclusive education.
Two speakers, Heidi of Panama and Mia of Lebanon, spoke prior to Dianne Richler of Inclusion International, on behalf of the IDC. Heidi noted her experiences with the general education system and later, when she was sent to a special school, with a separate education facility. She described the difficulties she had relating to her childhood friends from her neighborhood after she was sent to a separate school, and that today she lacks some of the skills, such as the ability to use a computer, that her neighborhood friends in Panama learned in the general education system. She emphasized the need to develop fully inclusive education to allow children with disabilities to acquire the skills necessary to relate to friends, neighbors and colleagues and to function successfully in the real world where new experiences are faced on a daily basis.
Mia from Lebanon noted that though she was not able to stay in the school that taught Arabic, and was forced to go to a separate school to be taught in English and French, she still learnt to speak Arabic.
Inclusion International, on behalf of the IDC supported Canada’s proposal and Panama’s related proposal, both of which address the possibly inadvertent language in the Chair’s Text that would allow for separate schools under “exceptional circumstances” where the general education system cannot meet the needs of a person with disabilities. It noted concern that in many countries, it is not the Ministry of Education, but a Ministry such as Social Development that has responsibility for the education of persons with disabilities; in these cases, there is often a completely different curriculum, no opportunity to obtain credentials necessary to pursue higher education, and little opportunity to interact with non-disabled peers. It emphasized the importance of fully inclusive education within a single school system, capable of providing any necessary individualized support measures and supervised by a single ministry, to giving students with disabilities a sense of belonging to the community and a future basis for inclusion. It proposed the deletion from Canada’s proposed 24(2)(d) of “in environments which maximize academic and social development,” so that the proposal would read, “That persons with disabilities receive the support required within the general education system to facilitate their effective education. States Parties shall ensure that effective individualized support measures are provided, consistent with the goal of full inclusion.” It explained its concern that by including “environment” the focus would be on placement of the student rather than on the provision of support.
The IDC Women’s Caucus, emphasized the need to include specific reference to women and girls with disabilities within this article, given the fact that 70% of the 130 million children out of school are girls, and that this figure is even higher in the case of girls with disabilities. It also noted that the education levels and literacy rates of women with disabilities are significantly lower than men with disabilities. It still advocated the twin-track approach for the convention as a whole, but strongly supported the inclusion of a specific provision within Article 24 addressing women and girls with disabilities, their rights to education, and the need for a gender-sensitive curriculum. It proposed including in the chapeau “gender-sensitive” after “inclusive.” It also proposed adding “that do not perpetuate social and cultural patterns of conduct of men and women” or “and eliminate any stereotyped concept of the roles of men and women” after “life-long learning” to ensure that historical gender stereotype roles are not carried forward. It noted that the language in the latter alternative is from CEDAW 5(a) and 10(c). It proposed the addition of “ensuring women and girls with disabilities the right to access and enjoy education on an equal basis in a violence-free environment” to 24(1)(c). It also proposed adding “and their sex” after “on the basis of disability” and “especially girls with disabilities” after “children with disabilities” in 24(2)(a).
The IDC noted that there is not one solution that could cover all the concerns of the community. It emphasized the need to ensure appropriate training for teachers and education professionals, to ensure that teachers are fluent in sign language or Braille skills, and to ensure total inclusive education of the same quality available to persons without disabilities that will maximize the academic and social skills of the pupil. It supported the addition of “and ensure” to 24(3)(b), after “facilitate,” as a means of strengthening the article, consistent with CRC article 30 regarding the rights of children to receive education in their own language and in a manner that is culturally appropriate. It stated, with respect to the concerns expressed by the EU that the article might be too detailed, that Israel’s proposals in 24(3)(d) and 24(4)(bis) should address these concerns and ensure the article will encompass all persons with disabilities.
The Centre for Studies on Inclusive Education (CSIE) noted that inclusive education should be the thrust of this article, ie. education in mainstream schools with a full range of support and accommodations necessary to facilitate effective education for all students with disabilities, including those who are blind, deaf and deafblind. It suggested strengthening the language even more to emphasize inclusiveness, to move away from segregated schools and/or exclusion, and to place clear obligations on States Parties to provide support and accommodations in mainstream education without exception. In this context, it strongly supported deletion of “ensuring alternative support measures in circumstances where general education systems cannot adequately meet the support needs of persons with disabilities” so that the language cannot be used as a justification for not fulfilling obligations under this article. It also proposed the inclusion of language expressly prohibiting segregation in education on the basis of disability, but it noted that it would be achieved through progressive realization, not by overnight closures or by swamping teachers with impossible demands. It suggested requiring a plan of action, with end goals and a timetable, which could be achieved in part through international cooperation. It noted support for the proposals from Brazil, Costa Rica, New Zealand, Panama, Australia, Canada, and South Africa, stating that these proposals come closer to the inclusive education system at the heart of the article. It reiterated that language allowing for segregated special schools should not be included.
Mental Disability Rights International (MDRI) stated that, pursuant to various international instruments including ICESCR Article 13, education is a right not a goal, and that any reference in this convention to education as a goal should be rejected as enshrining a lower standard for persons with disabilities than exists for other persons under international law. It supported the retention of “quality” in 24(2)(b) and 24(4), despite concerns expressed by some delegations that the term is ambiguous, because it is part of the definition of the right to education as included by the Committee on Economic, Social and Cultural Rights (CESCR) in its general comments on ICESCR Article 13. The CESCR stated that the right to education must encompass elements of availability, accessibility, acceptability and adaptability. The CESCR further defined acceptability as including elements of quality with respect to curriculum and teaching methods. Thus, the CESCR has included quality as an essential element of the right to education as defined by ICESCR Article 13. In light of this and Chile’s recognition that all rights within the convention are to be interpreted in line with the principle of reasonableness, MDRI emphasized that “quality” should be retained in this article. It proposed moving 24(5), beginning with “that persons with disabilities may access,” to a new paragraph 24(2)(b)(bis), stating that the separation of the provision dealing with general tertiary education, vocational training, adult education and lifelong learning from the provision providing for non-discrimination in primary and secondary education suggests that it is not part of the right to education or is so to a lesser extent than primary and secondary education. It stated that including all these concepts under a single nondiscrimination provision would emphasize that all are fundamental aspects of the right to education.
It noted the need to remember in 24(2)(a) that not all states recognize compulsory secondary education, nor do other human rights instruments of universal application. Thus, secondary education should not be compulsory but should still be available, accessible, acceptable and adaptable. It also supported repeating “general education system” in the second clause of 24(2)(a) to emphasize that different standards do not apply to children with disabilities than to persons with disabilities and to ensure full inclusion in mainstream education. It therefore proposed the second clause of 24(2)(a) be amended to “and that children with disabilities are not excluded from free and compulsory primary education and free secondary education in the general education system on the basis of disability.” It noted in response to Israel’s concern that parents may sometimes wish their children to attend a separate school that the convention does not prevent the parents from removing a child from the general education system, a concept further reflect in ICESCR Article 13(3) which mandates respect for the liberty of parents and guardians to choose their children’s schools, so long as the alternative education system meets the minimum standards set by international and national law. The language of the convention merely prevents state-initiated segregation in education. It referred to its statement from session six on the Enable website regarding persons with particular cultural identities. It supported the deletion of “to the extent possible” from 24(2)(b) and the deletion of language referring to alternative support measures where the “general education system cannot meet the support needs of persons with disabilities” from 24(2)(d) to maintain the focus on ensuring support within the general education system. It supported New Zealand’s proposal to replace “facilitate” in 24(3) with less paternalistic language that emphasizes assistance and access to means to learn life and development skills. It also supported New Zealand’s proposal to switch the order of the two clauses in 24(3) to further emphasize the purpose of the article.
National Human Rights Institutions (NHRIs) supported Jamaica’s proposal to emphasize the importance of training for teachers by separating the concept from 24(2)(e) into a freestanding paragraph which would reinforce the central message without altering content. It noted that teacher training is essential to eliminating negative attitudes in the classroom towards persons with disabilities, citing to Rule 19 of the UN Standard Rules, which deals with this issue. It supported Canada’s and Australia’s proposals relating to 24(2)(d) as appropriately person-centered and practical, better anchoring full inclusiveness and non-discrimination and placing a much clearer onus on States Parties to ensure full inclusion in mainstream education. It noted the proposals are better aligned with existing international law and policy, citing specifically to general comments 5 and 13 of the CESCR, UN Standard Rule 6, and Article 2.2 of the UNESCO convention against discrimination in education. It also noted support for the EU’s statement that drafting efforts should avoid the impression that the non-discrimination norm is subject to an overall limitation of progressive achievement.
The Chair noted that Article 24 reflects the “paradigm shift” represented in the convention and noted the general support for the draft article. He noted the elements of non-discrimination and progressive realization included in the article, stating that the concept of progressive implementation is also included in Article 4 (General obligations). He noted general support on balance for the chapeau of the article but also noted broad support given to proposals to replace “achieving” with “realizing” and to insert “system” after “education.” He noted general support for draft provisions 24(1)(a) and 24(1)(b) as they stand. He stated, with respect to China’s previous question on “human diversity,” that the language comes from Article 5(2) of the 1978 UNESCO Declaration on Race and Racial Prejudice. He referred to some concerns related to the language “free society” in 24(1)(c), noting that the language comes from the ICESCR and that the issue did not seem to be a big problem overall. He noted with respect to the reference to “quality” education in 24(2)(b) that the element of quality has been recognized by the HRC and also in the present convention in Article 20(b) (Personal Mobility). The phrase “to the extent possible” should be deleted from the text given support for that proposal, but emphasized that this deletion should be accompanied by the insertion of “on an equal basis with others” in the provision, to avoid creating a higher standard in this provision than in the ICESCR and the CRC, which do not require access to free secondary education in the communities in which a person with disabilities lives. He reiterated that the intent of the convention is not to create new rights but to ensure equal opportunity to exercise existing rights.
The Chair noted that most delegates supported Canada’s proposal and its reference to the goal of full inclusion, but that delegates should reflect further on whether this language moves away from the realism-based approach advocated by many delegates. There was a strong level of support for a reformulated second sentence. With regard to 24(2)(e), many delegates supported strengthening the language referencing training and even creating a separate paragraph highlighting the importance of training and including the elements found in 24(4). The Chair noted the concerns of some delegates that the language of 23(3) tips the balance too heavily towards those with sensory disabilities, but suggested that incorporating language such as “States Parties shall take measures including…” may address those concerns. He also noted that many delegates expressed the belief that the specific categories of persons with disabilities mentioned in 23(3) need specific reference to highlight their situation, and that this approach was taken at previous sessions of the AHC. He suggested further consideration of proposals to include references in 24(3)(a) to other systems of communication, including tactile. He noted with regard to 24(3)(b) that despite proposals to replace “linguistic” with “cultural” the balance seemed to favor the retention of “linguistic.” He proposed further discussion regarding 24(3)(c) to ensure that, while focusing on children, it is not exclusive to children and suggested language such as “persons who are blind, deaf, and deafblind, in particular children…” He noted that linguistics issues raised in the context of 24(4) were not broadly supported, but he suggested further discussion of proposals to include other methods of communication, including tactile. He noted strong support to include the concept of reasonable accommodation in 24(5), and suggested further reflection on, and discussion of, inclusion, language, and placement of the proposed new 24(6) (proposed by Costa Rica), especially in the context of “awareness-raising.” Though references to gender were not taken up at this stage, gender matters overall are still being considered by the facilitator’s group, which would meet shortly to discuss these issues. He noted that although some of the proposals during the discussion of Article 24 called for more substantial restructuring or rewording, they were not taken up by other delegations.
Article 25 - Health
The Chair noted that the new draft text reflects the general agreement to split former Article 25 into two separate articles, Article 25 dealing with health and Article 26 dealing with habilitation and rehabilitation. He noted that advanced proposals had been received from Kenya, the United States and the IDC.
The United States strongly supported the rights of persons with disabilities to the enjoyment of progressive realization of the highest attainable standard of physical and mental health. It noted the need to ensure health and wellness for persons with disabilities, a concept that has not always been acknowledged as a public health issue and in public policy and programs, funding, and training. It emphasized the importance of access to appropriately integrated, culturally sensitive, and respectful health care, provided by professionals who, contrary to the most frequent approach used to date, focus on the needs of the whole person and not just the disability alone. It noted the importance of personal freedom in decision-making and the need to raise awareness of health care providers to respect the dignity and rights of persons with disabilities. It also highlighted the need for continuing research scientific and technological advances to protect the dignity and rights of persons with disabilities. It proposed a new paragraph 25(e), drawn from language in the UNESCO International Declaration on Human Genetic Data Article 8(a), to address the issue of collection, processing, use and storage of genetic data obtained from persons with disabilities: “require that prior free, informed and express consent be obtained for the collection of genetic data from persons with disabilities or their legal representative, and that such consent also be obtained for subsequent processing, use and storage of genetic samples, whether carried out by public or private institutions, except as provided for in specific procedures for waiver of consent as set forth in domestic law, regulation or policy, in regional conventions, and always consistent with the principles of this convention.” Its rationale for the proposal was that because of rapid advancement in the field of genetics, the potential for abuse of genetic data has also significantly increased, but that this issue must be addressed in balance with the importance of continuing the progress and use of genetic data. It suggested that its proposal addresses both issues adequately. It noted that the global scientific community has developed methods, such as the non-invasive use of de-identified genetic data, to ensure adequate protection so that the narrow exception to the broad principle of prior free and informed consent would not jeopardize protections against the abuse of genetic data. It also proposed a new 25(g), “States Parties shall encourage research and development, dissemination, and application of new knowledge and technologies that benefit persons with disabilities that are compatible with the respect for human rights and the protection of human life,” to ensure that medical research is done with the intent of improving the lives of persons with disabilities. It supported the IDC’s proposal regarding access to medical records. It proposed the addition of “parents’ involvement in health decisions regarding their minor children” to 25(d) to include the importance of parents in the pursuit of health and wellness for their children with disabilities. It supported deleting “range” and adding “quality” in 25(a), and replacing “where necessary” with “inter alia” in 25(d). It supported deletion of “including sexual and reproductive health services” from 25(a) and replacing “services” with “care” to encourage a more holistic approach that considers the needs of the whole person. It noted that its rationale for these changes stemmed in part from the human rights abuses that resulted from historic programmes of forced sterilization in the U.S. It proposed including a specific reference to progressive realization in the chapeau, despite the inclusion of a reference to the concept in Article 4 already, to expressly underscore the idea in the context of health. It also proposed including in the chapeau the IDC concept that health services should be provided in an accessible environment on an equal basis with others, thus highlighting the fundamental concepts of accessibility and non-discrimination in the context of health.
The Chair noted prior general agreement to include the reference to progressive realization of economic, social and cultural rights in Article 4 only, thereby avoiding lengthy debate in articles that may combine these rights with civil or political rights as well. He also stated that, with respect to U.S. proposed 25(g), there has already been agreement to consolidate scattered references to new knowledge and technology into a single general provision as reflected in Article 4(f) (General Obligations). He implored delegates to keep their interventions short in order to accommodate the twenty plus delegations that were on the speakers list.
Chile observed that Article 25 is too weak, and that it should broaden the approaches mentioned by WHO and the Pan-American Health Organization. It stated that health is broader than just medical issues, and supported specific mention of the objectives of individual autonomy, dignity, and the enjoyment of human rights in the context of health. It proposed moving the language in 25(d) regarding the training of health care professionals to the chapeau, where it would be more of a primary concern. It proposed including in 25(a) language that would ensure access to mental health care for persons with disabilities who request it. It noted that, especially in the situations of blind, deaf, and deafblind persons who may require psychological assistance, and that there are often no trained professionals in the field who are geared for caring for persons with disabilities. In 25(b) it noted the need to replace in the Spanish translation “enciendos” with “adultos majores” or “persones majores” when referring to the elderly. The element of community participation is not adequately reflected in the language of 25(c) relating to implementation of services in the community. It proposed including in 25(d) language mentioning multidisciplinary teams of health care professionals, given the notion that health care relates to more than just medicine. It supported deletion of “where necessary, raising awareness of human rights, dignity, autonomy, and the needs of persons with disabilities through training…and private health care” because multidisciplinary teams of health care professionals should be at all times trained in these matters, and the reference to the specific concepts only weakens the article. The word in the Spanish translation for “awareness” is also incorrect; it should be “conscienciations.” It proposed deletion from 25(e) of “where permitted by national law” to avoid the weakening of this article by existing national laws that protect discrimination in the areas of health and life insurance.
The Chair noted that “where permitted by national law” is included to cover situations where life insurance is not actually permitted by law; the phrase qualifies life insurance, though he acknowledged that it could be a problem with some particular texts/translations.
Uganda supported specific mention of the provision of health services in the article, emphasizing the importance of accessibility. It also noted the need to include access to information relating to available health services in this article, as information is the key to access and informed consent; it therefore proposed the insertion of “health information” after “including” in the chapeau. It supported the U.S. proposal to replace “range” with “quality” and the proposal to add “accessible” after “affordable” in 25(a). It did not support the U.S. proposal to replace “services” with “care” because it believed “services” to be a broader term encompassing a wider range of interventions. It supported the IDC proposal to retain the bracketed text “including sexual and reproductive health services” in 25(a) because it addresses the stereotype of PWDs as being asexual. It proposed adding “and related information” after “health services,” and it did not object to the IDC proposal to add “in an accessible environment” to 25(a), bearing in mind the need to avoid perpetuation of the segregation and separation of persons with disabilities. It proposed adding “and information in accessible formats” after “health services” in 25(b) and 25(c). It proposed addition of “relevant information and” after “to provide” in 25(d), and it supported the IDC proposal to replace “where necessary” with “inter alia” to remove ambiguity and to add elements of possible additional action. It did not object to the inclusion of gender, life cycle and age requirements as proposed by the IDC. It noted its flexibility on wording and placement of the above proposals but emphasized the importance of their inclusion because of the crucial nature of information to the accessibility of quality health services.
Qatar supported the U.S. statement. It supported deletion of “including sexual and reproductive health services” in 25(a), as the phrase “health care” already encompasses this specific aspect of health services and deletion of the phrase does not eliminate the rights of persons with disabilities to marry and to reproduce. It reiterated its proposal from the previous session to add two additional paragraphs to Article 25, one focusing on the rights of persons with disabilities to acquire food aid when necessary to survival, and the other focusing on the rights of persons with disabilities to not be deprived of necessary treatment or deprived in a manner that would lead to death. These proposals emphasize the need to prevent euthanasia of persons with disabilities. Qatar noted that no objections were made to these proposals and that many delegates supported them; it consequently called for the inclusion of these proposals in the draft article.
Croatia supported inclusion in 25(a) of the bracketed text “including sexual and reproductive health services” because it challenges the asexual stereotype associated with persons with disabilities and because all aspects of health services must be included in the article if it is to provide for the highest standard of health care without discrimination.
India fully supported the Chair’s Text of Article 25. It supported the U.S. proposal to insert “progressive realization of” before “the highest attainable standard” in the chapeau. It expressed concern with the language “where permitted by national law” in 25(e) which could allow for discrimination in insurance premiums. It also noted concern with the U.S. proposed new 25(e) because it does not spell out lawful exceptions to the rule, such as in situations involving genetic evidence in law enforcement cases.
Nigeria supported deletion of the brackets in 25(a). It supported the addition of references to informed consent in any medical service situation, as well as reference to gender as included in Kenya’s proposal. It supported Qatar’s proposed new paragraphs 25(f) and (g) regarding the right to nutrition and the right to life.
The Chair noted the existing reference to free and informed consent in 25(d).
Nicaragua supported the U.S. proposals for Article 25 and sought clarification of the term “population based public health” in 25(a).
New Zealand supported the Chair’s Text as drafted and the retention of the bracketed language. It supported the IDC proposed 25(d)(quat) regarding access to personal and medical health records. It supported in principle the concept of the U.S. proposal encouraging research and development but wanted to consider further the wording, particularly in relation to Article 4. It expressed skepticism regarding the level of detail included in the U.S. proposed 25(e), stating that matters of genetic data are not specifically an issue relating to persons with disabilities and perhaps therefore could be addressed elsewhere.
Israel supported the addition of “in accordance with the individual’s informed consent” after “as close as possible to people’s own communities” in 25(c) to ensure freedom of choice with respect to location of health services. It also supported the addition of gender-specific elements as proposed by the IDC, noting flexibility as to placement in this article or in a general article.
Jamaica supported the general principles of the draft article but called for the deletion of the bracketed language, as proposed by the U.S. It strongly supported 25(e) regarding life and health insurance, noting that preventing the denial of life and health insurance to persons with disabilities will require international cooperation.
Iran proposed replacing “services” with “care” and supported deletion of the bracketed language in 25(a), noting that this issue has arisen numerous times in the past. It proposed deletion of “prohibit discrimination against persons with disabilities” from 25(e), suggesting that States Parties should ensure the provision of health insurance to persons with disabilities regardless of whether or not it is provided nationwide. However, it indicated flexibility on this issue, stating that it could accept the existing wording. It supported the addition of “progressive realization of” before “the highest attainable standard” in the chapeau. It did not support the addition of “quality” to 25(a) because “standard” already encompasses both quality and quantity. It supported addition of “and parents’ involvement in health decisions regarding their minor children” after “free and informed consent” in 25(d) and the replacement of “where necessary” with “inter alia.” It did not object to the proposed new paragraph 25(e). It noted that with respect to proposed new paragraph 25(g), the question of knowledge and technology as related to research and development is broader than just a health issue and thus would be more appropriate in Article 4 (General Obligations). It supported the wording of the proposal if amended to read “compatible with the provisions of this convention” at the end.
The Holy See supported the U.S. proposal involving the chapeau of Article 25 and the concept of incremental achievement. It supported deletion of the bracketed language in 25(a) because of ambiguity that may not ensure the adequate protection of persons with disabilities in the context of sexual and reproductive health care. It suggested that the amendment proposed by the U.S. involving 25(a) would encompass all important health care issues, including sexual and reproductive health. It supported inclusion of language regarding parents’ involvement in health decisions with respect to their children. It supported generally the concept, found in the U.S. proposed 25(g), of research and development of technologies benefiting persons with disabilities, as long as it is clear that this is only permitted while fully respecting the rights of all persons and protecting all life. It also supported Qatar’s proposals involving right to nutrition and right to life.
Mexico proposed eliminating the reference to “health-related rehabilitation” from the chapeau and moving it to the end of 25(b). It supported deletion of the bracketed text from 25(a) to be consistent with the broad approach of the provision, which encompasses all forms of health and health services. It proposed deleting the reference in 25(b) to “services designed to minimize and prevent further disabilities, including among children and the elderly” and creating a separate paragraph (proposed new paragraph 25(c)) with this language, noting that the reference to children and the elderly is subject to future decisions regarding inclusion of references to specific groups of persons with disabilities. It proposed amending the Chair’s 25(c) to “provide and guarantee health services to minimize and prevent further disabilities…” New 25(d) (old 25(c)) would now read “provide and guarantee health services as close as possible to people’s own communities, including in rural areas.” It proposed dividing the Chair’s 25(d) into three separate paragraphs to improve understanding: 25(d), regarding care of the same quality on the basis of free and informed consent; 25(d)(bis), regarding provision of training to health professionals in order to raise awareness of human rights, dignity, autonomy and needs of persons with disabilities; and 25(d)(ter), regarding the promulgation of ethical standards for public and private health care of persons with disabilities in the public and private sectors. It proposed amending the Chair’s 25(e) to “prohibit discrimination against persons with disabilities in the provision of health insurance and life insurance under the terms of national legislation which shall be provided for in a fair and reasonable manner.”
Colombia supported the WHO proposal in 25(h) referring to technical aids, prostheses, and other medical equipment necessary for persons with disabilities. It’s proposal to that effect was available from the Secretariat.
China supported the Chair’s Text without major amendment. It recalled the discussion of Article 17 (Protecting the integrity of the person) and the issues of involuntary intervention and involuntary treatment in 17(3) and 17(4), respectively. It supported retention of the Chair’s Text, as is, in 17(3), instead of moving the language to Article 25 as proposed by some delegations. It noted that the issue of involuntary intervention encompasses more than just health issues; that movement of 17(3) to Article 25 would unbalance Article 17, especially in the context of 17(4); and that inclusion in Article 17 rather than Article 25 would better protect the particular rights at issue for persons with disabilities.
The Chair called for further reflection on the points raised by China.
The session was adjourned, and a screening of the documentary “39 Pounds of Love” followed.
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