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The Chair stated that international monitoring would be discussed Wednesday or Thursday and that he would circulate a number of key questions, primarily political in nature, to focus the committee’s discussion on international monitoring. The Chair expressed deep appreciation to the facilitators on articles on women and children, whose discussions produced a text that would also be discussed on Wednesday or Thursday.
Article 1- Purpose
The Chair noted that Article 1 states the purpose of the convention in general terms and should therefore be short and succinct. He acknowledged proposals from both the EU (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm) and the International Disability Caucus (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc)
Yemen observed that Article 1 was closely linked with the title of the convention, recalling that the Chair had previously stated that if an agreement were reached on the title, Article 1 could possibly be deleted.
The Chair thanked Yemen for raising the question of the necessity of a purpose article. As there were several proposals submitted regarding Article 1, he had concluded that this indicated support for retaining the article. He acknowledged that, if included, it should be brief and to the point.
Serbia and Montenegro supported a purpose article and stated that it could live with the proposed text, although it preferred the more succinct EU’s proposal.
Canada was skeptical of the need for a purpose article but flexible on the point. It raised the question of the article’s placement and suggested the possibility of combining the statement of purpose and general principles, as both provisions serve similar purposes. Canada questioned whether the Chair’s proposed text on purpose could serve as chapeau for Article 3 to consolidate the text without losing content.
Austria, on behalf of EU, viewed the purpose as connected to the convention’s title; if the title is shortened, it preferred to retain an article on purpose. It reviewed its written proposal.
Sudan agreed with Yemen that the title is sufficient for stating the objective of the convention. It pointed out that other treaties and conventions “refer in their articles to an article on purpose.” It further asserted that conventions usually begin with a definition, and that the title usually mentions its purpose, and suggested that perhaps the title could mention specific items of the convention. Sudan stated that although it is flexible on the point, it does not believe that a separate article on purpose is necessary.
Syrian Arab Republic supported the retention of Article 1, and agreed with Yemen that the article could be debated when the committee debates the title of the convention.
Japan supported the Chair’s proposed text. Regarding the EU proposal, it did not agree with usage of “shall” in Article 1.
Mexico was inclined to retain the title given the link between the preamble and the title. To remove a part of the title would weaken the ultimate goal of the convention in addition to its approach and scope as reflected in the text thus far. It could be more flexible regarding Article 1 if the title were retained.
The Chair invited discussion of the title as well, given the links between the title and Article 1.
The Russian Federation agreed that retaining Article 1 would depend on the title of the convention, which it could support despite the fact that it could be shortened. It pointed out that the goals and purpose of the convention are revealed not only in the title of the convention but also in the preamble, the main purpose of which is to clarify the convention’s objective and purpose. Noting the point in the Chair’s letter that other conventions do not include a purpose article, the Russian Federation preferred that the purpose be reflected in a balanced title for the convention and in the text of the preamble.
The Chair asked the Russian Federation to clarify whether it preferred to retain the preamble in its current form.
Russian Federation stated that the preamble was satisfactory in its current form, though it was interested in the view of other on this matter. It emphasized that the most important point is that the ideas connected with purpose should be reflected in the preamble, acknowledging that small changes to the existing text could be necessary.
China was flexible regarding including an article on purpose or merging it with the article on general principles. However, any language referring to the convention’s purpose should be in conformity with the convention’s title. The current title referred to the rights and dignity of PWD, which is different from human rights. In stating the purpose of the convention, the emphasis on both human rights and social development should be emphasized.
Lichtenstein stated that title should be mainly a point of reference and not a comprehensive and complete description of the content of the convention. It must be as short as possible while still being correct. If a title longer than six or seven words is established, an abbreviation or short version will likely emerge (such as “the Disability Convention”), which could be less desirable. It supported “International Convention on the Rights of Persons with Disabilities” as suggested by the IDC. If delegations are concerned that this more concise title eliminates important substantive elements (such as “comprehensive,” “integral” and “dignity”), Lichtenstein suggested that these elements be incorporated into an article on purpose. Lichtenstein noted, however, that the purpose of the convention ultimately comes from its content and that it could therefore be flexible regarding how and where it is reflected (i.e., in a separate article, in the general principles or in the preamble). The important point was that the convention have a short, manageable title that would not be altered for ease of reference and Lichtenstein cited the Convention on the Rights of the Child (CRC) as an appropriate and succinct title.
The Chair agreed that the current title was wordy and that a shorter title should be considered, consistent with other conventions.
Ethiopia supported a short title and suggested “International Disability Rights Convention.” It favored retaining the article on purpose.
Algeria stated that Article 1 should correspond to the general orientation of the convention, and that if the title of the convention is adopted as currently written, the purpose article could be eliminated as it is reflected in the title. Algeria was flexible regarding the Chair’s proposed title. If the title is shortened, it favored reinforcing Article 1 with respect to both human rights and social development.
Syrian Arabic Republic supported a shorter title, suggesting “International Convention on Persons with Disabilities.” Because the articles are sufficiently thorough, there is no need to focus on one or two elements in the title; doing so would undermine the provisions not mentioned in title. It expressed a concern that the inclusion of “comprehensive and integral” might make it difficult to add other rights later on.
Korea supported Lichtenstein, agreeing that the title is too long and that the purpose provision and the concepts of the title are closely linked. It supported maintaining the purpose article while shortening the title, suggesting “International Convention on the Rights and Dignity of Persons with Disabilities.”
South Africa supported Article 1 as written and agreed with Mexico on the need for proactive measures, believing that this could be defined through the purpose of the Convention. Acknowledging that other conventions do not contain purpose articles, it was nonetheless comfortable having this convention be the first to do so. It supported retaining the title as written, fearing that it may lose certain elements if shortened.
Israel supported Chair’s text regarding purpose. Regarding the title, it agreed on the need for it to be as short as possible, believing that when language is brief it prevents the exclusion of certain elements. It supported the adoption of “International Convention on the Rights and Dignity of Persons with Disabilities,” noting the importance of including the concept of dignity.
El Salvador had no objections to title and considered it important to retain the references to social development, as social development is only approached as a part of human rights. However, it would accept “International Convention on the Rights and Dignity of Persons with Disabilities,” stressing the importance of including “dignity.”
Austria (on behalf of the EU) suggested the title “International Convention on the Human Rights and Dignity of Persons with Disabilities.”
Australia fully supported the proposed title “International Convention on the Rights of Persons with Disabilities,” as proposed by IDC and supported by others. Regarding the purpose, it was flexible but supported the retention of purpose as in the Chair’s text.
Brazil preferred a shorter title focusing on rights and supported the title proposed by the IDC. Although it was flexible on the issue of a purpose article, it believed the purpose to be self-evident from the rest of the convention text.
Norway supported the title proposed by the EU. It preferred retaining an article on purpose and supported EU’s written proposal. However it would support the Chair’s text as written. It was flexible regarding whether the purpose provision should be included in Article 3 or as its own article.
Serbia and Montenegro supported the title “International Convention on the Human Rights and Dignity of Persons with Disabilities.”
Morocco supported shortening the title to “International Convention on the Rights of Persons with Disabilities” and incorporating the elements eliminated from the current title into the purpose article.
Kenya supported the IDC text.
United States of America supported the emerging consensus on a shorter title. It agreed with the importance of preserving the concept of dignity, as the inherent dignity and worth of persons with disabilities is a central concept of the convention. It supported the EU proposal for Article 1.
Yemen previously indicated that if title is to be shortened, it would support keeping Article 1, as otherwise some elements will be excluded that were previously incorporated. Regarding title, it supported “International Convention on Rights of Persons with Disabilities.” It also noted its support for the Moroccan draft, because its translation into Arabic would be more appropriate.
Sudan agreed with the need for a shorter title, noting four main components that must be present in the title. It must reflect that it is an agreement or convention, that it is international, that it deals with rights, and that it pertains to persons with disabilities. Sudan supported the IDC proposed title. It noted some important linguistic concerns with the Arabic draft, which it stated was not properly edited. Sudan agreed that there was a close relationship between the title and purpose, and proposed that if the title is shortened, an article on purpose would be necessary to discuss dignity and the comprehensive nature of the convention.
Colombia supported the title “International Convention on the Rights and Dignity of Persons with Disabilities.” It supported an article on purpose, but stated that it would be flexible on the matter if the majority opposed its retention.
Costa Rica was flexible but supported a briefer title. It stressed the importance of referring to dignity and emphasized the need to clarify the goal of enjoyment of human rights and not the granting of any special rights, noting that “Rights of Persons with Disabilities” might imply special or different rights. It supported retaining an article on purpose, given its preference for a less comprehensive title. Costa Rica favored the Chair’ text but without “fulfill,” as it believed the guarantee of “fulfillment’ is beyond the scope of a legal text. It suggested that if the Chair’s text on purpose is retained, it should be amended to refer to “Human Rights and Fundamental Freedoms of Persons with Disabilities,” consistent with the proposal of the EU. Costa Rica suggested verifying the specific language of the CRC regarding respecting and ensuring rights.
Lichtenstein was very conscious of importance of dignity, while stressing the need for caution regarding how it is applied. It noted that the most important difference between rights and dignity is that governments can confer rights but not dignity, which is inherent to everyone and must not be framed as something that must be promoted or conferred. For this reason, Lichtenstein did not support including the term “dignity” in the title and in conjunction with the word “rights,” but stated that it should be elaborated upon in the text defining the purpose of the convention. It feared that the language “promote dignity” implies that dignity is not already there, and was interested to hear from NGOs on the issue.
China, referring to the title of the CRC, suggested that the convention title should be “International Convention on the Rights of Persons with Disabilities.” China asserted that the number of signatories to the CRC, which is more than 192, is linked to brevity of title. If many delegations supported adding content to the title, China could also agree that “and dignity” be added to “rights.” It stated that if “rights” is changed to “human rights,” the words “and full development” should be added. This would indicate that this convention reflects both rights and social development. If a brief title is agreed upon, then China supported the retention of an article on purpose, but held that the content of a purpose must be compatible with the title – namely that it must reflect the fact that the convention concerns human rights and full development of persons with disabilities. It had no objection to a reference to dignity in Article 1, and was flexible as to whether the purpose provision be in a separate article or integrated.
Japan preferred shortening the title and supported “International Convention in the Rights of Persons with Disabilities.” With regard to the addition of “human” before “rights,” Japan noted that the Convention on the Rights of the Child, does not include the language “human rights” in its title” and preferred to be consistent in this regard. Japan expressed flexibility on the issue of including the term “dignity.”
Uganda supported the proposed title “International Convention in the Rights of Persons with Disabilities.” It favored retaining the concept of dignity but was flexible as to whether it should be included in the convention’s title or a purpose article.
Islamic Republic of Iran asked for clarification of the criteria to be observed with regard to the title. In its view, the title should be as short as possible, indicative of the thrust and tone of the Convention, and covering its main elements. It stated that it must be compared to the titles of other human rights instruments so as not to make a significant distinction. For this reason, Iran supported “International Convention in the Rights of Persons with Disabilities.” While it supported incorporating the concept of dignity, it should not be in the title, given that it is not found in the title of other human rights instruments, but should be incorporated in Article 1.
Libyan Arab Jamahiriya, though flexible, agreed with the necessity of a brief title, specifically stating support for the Morocco drafting. As to the question of dignity, it supported Lichtenstein, as dignity must be guaranteed for every individual and should not be discussed in any framework. It expressed the view that if dignity is incorporated, it should be put in Article 1.
Jordan also supported “International Convention in the Rights of Persons with Disabilities” as precise and concise. It also supported the Arabic formulation as suggested by Sudan, Yemen and Morocco. It agreed that the word “fulfill” could be somewhat problematic, and concurred with Lichtenstein that “dignity” should be treated carefully, as dignity is present in all humans, and is greater than rights. It believed that dignity was not appropriate for title, and that if it is retained, it should be put after fundamental freedoms in the purpose provision.
India supported “International Convention on the Rights and Dignity of Persons with Disabilities.” It believed there should be an article on purpose clearly outlining out the convention’s objectives and supported the Chair’s text. If delegations believed that “dignity” unsuitable in the title, it could be included in Article 1.
Mexico clarified that it agreed with a brief title, and that a purpose article would include any elements excluded from current longer title. It believed that the best title would be the briefest, but that it should include “dignity.” Regarding the article on purpose, it suggested adding “and promoting” after “ensuring” to reflect the concept of promotion of rights, which would not be present in the shortened title.
Bosnia and Herzegovina also preferred a shorter title that does not reference dignity, supporting Lichtenstein’s proposal to include dignity in Article 1. It suggested the language “respect for dignity” to avoid implying that dignity is somehow not inherent. Regarding the proposed deletion of “fulfill,” it drew attention to General Comment 15 of the ICESCR, which mentions that any human rights implies three obligations of States Parties: to respect, protect, and fulfill those rights.
South Africa stated that if the title is changed, it would propose a shorter version with the retention of word “comprehensive,” so that it would read “Comprehensive International Convention on the Rights of Persons with Disabilities.”
Chile expressed flexibility but favored a briefer title and the transfer of elements in the current title to the article on purpose, It suggested that Article 1 read “to promote and protect the human rights and dignity of persons with disabilities on the basis of equality and non-discrimination.” It perceived dignity, equality and non-discrimination to be the foundations of human rights. Chile asserted that this convention must be the catalyst behind the process of change required in all societies to achieve full respect for human rights.
Republic of Korea reiterated the importance of dignity and believed that it merited retention in the title. It stated that although governments must be the first to implement the convention, members of civil society and other organizations must also implement the convention.
Nigeria favored the retention of Article 1 on purpose as well as a briefer title, and supported the reasoning given by the IDC regarding the retention of Article 1.
Mauritius supported retaining “dignity” in Article 1. It acknowledged that dignity comes before rights, but believed that the enhancement of dignity can only be manifested by the expression of rights. On this basis, Mauritius also favored a short title including both rights and dignity.
The IDC reiterated its proposed title “International Convention on the Rights of Persons with Disabilities” as it is short and descriptive and will avoid the problems of a longer title outlined by Lichtenstein. With regard to Article 1, the IDC proposed replacing “fulfil” with “ensure.” It noted that governments must themselves refrain from interfering with the rights of persons with disabilities, prevent third parties from doing so, and take proactive measures to protect those rights, and that the language of the article must reflect this. It argued that “ensure” and perhaps “respect” might be useful to reflect this intention. It also suggested the addition of the word “all” to “persons with disabilities,” such that the article would read “The purpose of this Convention is to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms of all persons with disabilities.” It expressed flexibility on the substitution “of” with “by” before persons with disabilities. The IDC returned to the issue of dignity, informing the committee that after much discussion within IDC regarding its inclusion in the title and the purpose article, IDC had decided to recommend that it be addressed in the scope of Article 3 on general principles, which already included language on dignity. IDC stressed the inherent nature of dignity in every person and the need to avoid implying that the dignity of persons with disabilities requires promotion. For this reason it suggested referring to “respect for dignity.”
Senegal supported a brief title and suggested keeping “dignity.”
The Chair summarized as follows:
Based on the discussion, the Chair suggested that the title of the convention be “International Convention on the Rights of Persons with Disabilities.” He proposed that Article 1 be amended to read:
“The Purpose of this Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their dignity.”
Article 3 – General Principles
The Chair noted no proposals submitted from government delegations but that the IDC had submitted a proposal regarding Article 3 (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc)
Austria on behalf of the EU supported Article 3 as proposed in the Chair’s text, but could be flexible regarding some of the proposed changes. Regarding 3(a) it supported the proposal to add “respect for” before “dignity” in 3(a) It supported replacing “self-determination” with “autonomy,” which it perceived to be less political. It supported the addition of “respect for evolving capacity of children with disabilities,” as a new paragraph 3(h).
Serbia and Montenegro agreed with the EU and supported the EU’s proposed new 3(h). It was pleased to see the inclusion of accessibility and gender equality in the text.
China expressed its understanding of “individual autonomy” in 3(a) as referring to a person’s own affairs and, noting some possible linguistic inconsistencies in the text regarding this concept (i.e., autonomy versus individual autonomy), suggested that “individual autonomy” be the term used throughout the convention. In 3(c), it suggested deleting “on an equal basis with others,” as 3(b) already addresses non-discrimination. China supported 3(g) and the proposed 3(h). It suggested that the committee consider adding a provision on women and children in the general principles if there will be separate articles on these issues later on.
The Chair reminded the committee that the issues of women and children would be taken up specifically later in the week and that decisions on these issues could be made then. He also clarified that other conventions refer to “respect for inherent dignity,” whereas the text before the committee uses the phrase “respect for dignity.” He suggested that being consistent with these other conventions would solve some of the concerns about the nature of dignity, especially the fact that the convention should not be seen as intending to confer dignity. This would be in line with the views of Lichtenstein and the EU and seemed to have general support.
Jordan agreed with the proposal on “inherent dignity.” It preferred not to address women and children, or any subpopulation, in the general principles, as these should remain general and abstract in nature. It also noted the importance of the issues of empowerment, equality and justice, and called for proactive terminology.
Canada supported the language “inherent dignity” in 3(a). It preferred “autonomy” over “self-determination,” as self-determination has other connotations in international law and autonomy is more concerned with the individual. Noting the conceptual linkage between 3(b), (c) and (e), it suggested they be consolidated into a new 3(b) which would read “Full and effective participation and inclusion in society on basis of equality and non-discrimination for persons with disabilities.” Canada was comfortable with the reference to children but questioned whether it might be more appropriate to include it in Article 4 on general obligations rather than in the article on general principles.
Australia supported Canada regarding the consolidation of 3(b), (c) and (e). It also stated that 3(a) was problematic and should be amended, as there is no existing unfettered right of autonomy under international or domestic law, and the principles of autonomy, independence and freedom of choice are already more appropriately covered in paragraph (k) of the preamble. It proposed a new proposed 3(h) to read “recognition of and respect for the ability and contribution of people with disabilities to society.”
The Chair clarified the new proposals as follows:
Brazil supported the language “inherent dignity” in 3(a), the proposed 3(g) on equality between men and women, and the proposed 3(h) on the evolving capacities of children with disabilities, as proposed by the IDC and edited by the EU.
Costa Rica supported the inclusion of “inherent dignity” and proposed adding “in all stages of life” in 3(a), which it believed to be consistent and congruent with the EU’s proposal regarding the proposed 3(h). It proposed adding “and gender perspective” at the end of 3(g), in order to strengthen the paragraph beyond the one-dimensional notion of equality between men and women. It noted that Article 3 discusses “general principles” while the chapeau mentions “fundamental principles,” citing this as inconsistent.
The Chair noted this and said that language in other human rights conventions would be verified, but noted that there was no consistent practice on many matters.
Indonesia supported the Chair’s text. It proposed incorporating “equality of opportunity” and “equality between men and women” into one subparagraph. It supported the Canadian position on the consolidation of 3(b), (c) and (e). Indonesia also welcomed the inclusion of the proposed subparagraph 3(h) on evolving capacities of children and suggested inclusion of the concept of the best interests of the child, consistent with the Convention on the Rights of the Child, such that the paragraph would read “respect for the evolving capacity of children with disabilities in accordance with their best interests.”
Russian Federation stated that the Chair’s text was a good basis for work and covered all basic elements. It noted that the references to “fundamental principles” and the subsequent broad list of important principles could create the impression that principles not explicitly mentioned are of lesser value. It suggested removing the language “fundamental principles” but remained flexible on the issue. It firmly supported the Chair’s proposal regarding respect for “inherent dignity” in 3(a). It noted that the terms “independence” and “individual autonomy” are translated into the same term in Russian, and questioned how to give nuance to these terms in translation. It supported the Canadian proposal to consolidate 3(c) and (e), and was ready to support the inclusion of 3(h) in the form proposed by the coordinator on women and children, though it preferred the briefer wording proposed by the EU and would consider the wording proposed by Australia.
The Chair noting the issues arising from the use of the word “fundamental” before “principles,” suggested that since no other treaties refer to “fundamental principles,” the best approach would be to delete it.
Sudan stated that Article 3 was important as it sets the framework for definitions and principles governing the drafting of the convention. It asserted that Article 3 should address as a matter of priority global cultural, social and economic diversity, and proposed a new subparagraph addressing these issues. It suggested reorganizing the articles according to priority and strengthening the language, citing as an example that “non-discrimination” could be strengthened in 3(b) and could possibly be merged with 3(g) on equality between men and women.
United States recognized the importance of this article and supported the principles listed therein. In 3(a) it supported the addition of “inherent.” It preferred the use of “individual autonomy” over “self-determination.” It supported Costa Rica’s addition of “in all stages of life.” It welcomed the Canadian proposal to consolidate 3(b), (c), and (e) observing that it results in the strengthening of the provisions of non-discrimination and equality. The United States preferred to frame the proposed 3(h) in terms of the best interests of children with disabilities as opposed to their evolving capacities,” stating that the concept of capacity has legal connotations while the concept of children’s best interests are more in line with an article on general principles. It endorsed the Australian proposal for a new paragraph recognizing and respecting the contributions of persons with disabilities.
Japan generally supported Article 3. While recognizing the importance of accessibility, Japan believed that it is a less universal element than others covered in Article 3 and may not be necessary, especially as it is already included in Article 4(f) on general obligations. Japan supported referring to “inherent dignity” and supported “individual autonomy” over “self-determination.” Japan did not believe it was necessary to address children in this article but could support a reference as long as it is brief, such as in the Canadian and US proposals. Noting the purpose of Article 3 is to stipulate the basic concepts to be taken into account when state parties are interpreting and implementing the obligations of the convention, Japan proposed that the chapeau of Article 3 be amended to read “to achieve the objectives of this convention, states parties shall be guided by the following.”
Israel supported this article as centrally important to streamlining the provisions of other articles. It supported the Chair’s text and deleting the word “fundamental” before “principle.” It supported the addition of “inherent dignity” but suggested retaining the word “autonomy” as it appears in 3(a). Despite the need to be concise, Israel was not inclined to support consolidation of the various principles, as recommended by Canada. It suggested replacing 3(g) with “equality on basis of gender and age in relation to all stages of life,” which incorporated the concerns stated by Costa Rica.
Holy See was concerned that 3(d) sets people with disabilities apart from others. It suggested replacing the current text with “respect inherent dignity and worth of persons with disabilities as part of the human family” and moving this paragraph up to become 3(a), as dignity and worth are the most fundamental general principles and should appear at the very beginning of the article. It supported the consolidation of paragraphs suggested by Canada, but called for consistency, noting that the Canadian proposal states ”the basis of equality” while the rest of the convention uses the language “on an equal basis with others.” Finally, it supported Costa Rica’s proposal to add “in all stages of life” at end of 3(a).
Uruguay supported the IDC and EU proposals to begin 3(a) with “respect for” and the Chair’s proposal to add “inherent” before dignity. It would study the Canadian proposal to consolidate 3(b), (c) and (e) to ensure that nothing was omitted before supporting the proposal. It supported the EU proposal for 3(h) regarding children. It also noted the importance of addressing respect for the identity of the child, as in Article 8 of the CRC, and the right to free expression in all areas that affect them, though it was flexible on the placement of these concepts. Regarding the Indonesian proposal, it noted the importance of referring to the best interests of children but was not certain if this was best done in Article 3 or Article 4. It preferred the wording “respect for the evolving capacities of children in accordance with the principle of the best interests of the child.”
Islamic Republic of Iran recognized the importance of the article and favored removing “fundamental” before “principles” in the chapeau. It supported the formulation “respect for dignity” in 3(a). It noted that “autonomy,” “independence” and “self-determination,” all have political connotations, that self-determination is generally applied to nations rather than individuals and that “independence” is stronger than “autonomy.” In light of these observations, it suggested redrafting 3(a) to read “respect for the dignity and the freedom of persons with disabilities to make their own choices.” It supported the Canadian proposal to merge 3(b), (c), and (e). In relation to 3(d), the Islamic Republic of Iran supported the acceptance of disability as part of “humanity” in principle, however it was concerned that “as part of human diversity” may suggest that it is not permissible to prevent or take measures to reduce disability. It noted repeated references throughout the text to the concept of “treatment on an equal basis with others,” and proposed addressing this in Article 3 by adding a subparagraph to read “treatment of persons with disability on equal basis with others and without discrimination.” This would then require deleting “on equal basis with others” from 3(c). It supported the EU and United States’ amendments to the Indonesian proposal in relation to the child, preferring the use of “best interests of children with disabilities,” as it felt “evolving capacities” to be too specific.
Yemen supported the article as drafted. It supported Sudan’s proposal to include the principle of respect for cultural, social and economic diversity in the article, as it will be an important reference during implementation. It suggested using “States parties to the Convention must respect the cultural, social and economic diversity of civilizations.” Though it agreed with Jordan that addressing children in the article might contradict the general nature of the principles, it nevertheless believed it necessary to refer to women and children in the general principles. Yemen expressed flexibility towards the deletion or retention of “fundamental” in 3(a).
Senegal noted a translation problem in 3(a) of the French text.
Morocco supported the text as presented, with the addition of cultural and “civilizational” diversity as part of the general principles.
Chile supported the Chair’s text but commented that “equality of opportunity” is a constantly changing process rather than a principle and that its interpretation also evolves over time. It added that some national legislation includes, as part of principle of equality of opportunity, both non-discrimination and affirmative action measures, and the fact that these principles have not been expressly defined in the article could create problems in interpretation and implementation. It preferred referring to “equality of rights between men and women,” as this is the basis of equality of opportunity. It recommended establishing as a principle “respect for the dignity and inherent equality of all persons” which would include equality of opportunity, of results, equality before the law, gender equality, and equality and non-discrimination regarding children. Chile supported Costa Rica’s proposal to include gender perspective in a separate paragraph. Finally it supported Uruguay’s proposal for a new paragraph dealing with children.
El Salvador noted the importance of Article 3 and stated that “fundamental” should be changed to “general.” It supported “respect for inherent dignity” and the addition of “all stages of life” to the end of 3(a). It would further study the issue of consolidating 3(b), (c) and (e). It agreed with Chile regarding 3(e) and the importance of equality of results and affirmative action measures. It stated that Chile’s argument regarding equality of rights is an important element of equality between men and women and should be reflected. It also supported the inclusion of a separate paragraph on gender perspective. It recognized the need to establish respect for the best interests of children as a general principle. El Salvador welcomed proposals to refer to the treatment of PWD “on an equal footing,” as well as Jordan’s proposal to add a reference to the empowerment of PWD.
Nigeria supported the formulation of Article 3, believing that all necessary elements to be present. It agreed with the inclusion of “inherent dignity” and supported Costa Rica’s proposal to add “all stages of life.” It cited non-discrimination and equality between men and women as one of the reasons it favored retaining the paragraphs as written, noting that there are multiple forms of discrimination. It also wished to support the inclusion of 3(h) with the United States’ modification.
Mexico supported all of the principles as well as solutions suggested by the Chair for the chapeau and 3(a). It recognized the difficulty of discussing individual autonomy while avoiding political connotations and supported the proposed solution that refers to “independence” and “autonomy.” Regarding the proposal to merge 3(b), (c), and (e), it suggested each subparagraph provides a concise message whose elegance may be lost if all three are merged. It supported the inclusion of gender perspective, which it noted as a well-established term within UN discourse, and age perspective along with the best interests of children in the article.
Jamaica highlighted non-discrimination and equality as central to the convention, noting the difference between “equality” and “equality of opportunity.” It was concerned that the Canadian proposal to merge 3(b), (c) and (e) could result in a loss of emphasis. On the issue of equal recognition before the law, equal treatment, etc., it suggested adding “equality and non-discrimination” to 3(b) and modifying 3(c) to read “full and effective participation and inclusion of persons with disabilities in all aspects of society.” This would diminish the emphasis on equality and non-discrimination, and would emphasize full and effective participation in society, which is at the core of the convention.
The Chair noted that the language proposed by Jamaica has a certain crispness while retaining important elements.
Syria Arabic Republic supported retaining “fundamental” before principles in the chapeau. It agreed with the Holy See’s proposal regarding 3(a). It supported the wording “respect for the inherent dignity” and suggested adding “on equal footing with others without discrimination” in order to avoid religious or political connotations that contradict national legislation. It supported the wording proposed by Jamaica in 3(b). In 3(c), it supported the language “full integration of persons with disabilities into society on an equal basis with others” or “in all aspects of life.” It supported Yemen’s proposal regarding cultural diversity and stated that children should be addressed in a separate article rather than in the context of general principles.
Libyan Arab Jamahiriya supported the amendment of 3(a) to read “respect for the dignity…” It agreed with Jordan regarding independence and the freedom to make one’s own choices. It proposed joining 3(a) and (b), in which case it could support the wording of Jamaica. Regarding 3(f) on accessibility, it stated that because of the importance of other rights, including the right to education, political participation, and social activities, the retention of this paragraph deserves further consideration. It supported Sudan’s emphasis on cultural diversity and the corresponding language proposed by Yemen. It expressed flexibility on the retention or deletion of the word “fundamental” in the chapeau.
The Chair thanked colleagues for a good debate and stated that certain trends were becoming clear.
The morning session was adjourned.
Article 3 – General Principles (continued)
The Chair stated that after the discussion of Article 3, discussion would move to Article 4 on General Obligations, Article 2 on Definitions, and the preamble. He noted that the language proposed by the facilitators on women and children had been posted online, and would also be discussed within the next two days. He also proposed to take up the issue of international cooperation on Wednesday or Thursday. In addition, there were a number of articles with unresolved issues that would be revisited (Articles 12, 17 and 18). He stated that by the end of the week, revised articles on everything in the text will be issued, with the possible exception of international monitoring. He had issued a series of questions about international monitoring to assist in focusing the discussion. He noted that he had refrained from discussing international cooperation thus far because the facilitator’s group on international cooperation was still meeting. He then re-opened the discussion of Article 3 on General Principles from the morning session.
Ethiopia stated that it was comfortable with the Chair’s text with the changes the Chair had made. It supported the deletion of “fundamental” from the chapeau and the inclusion of “inherent” before “dignity” in 3(a). It also supported the consolidation of 3(b), (c) and (d) as proposed by Canada, and the United States’ proposal for a new 3(h) regarding the best interests of children with disabilities.
Costa Rica believed there was general support for the United States’ proposal regarding the best interests of children with disabilities as well as support for retaining the original EU language regarding respect for the evolving capacities of children. However, it did not support the replacement of the reference to “evolving capacities” with language regarding “best interests of the child,” – a formulation which appeared to be an option currently under discussion. Costa Rica viewed these as two separate issues that should each be dealt with. “The best interests of the child” refers to states, families and societies making decisions in favor of the child; “the evolving capacities of children,” is a revolutionary concept for empowering children. It would support including references to both, but believed that the reference to “evolving capacities” was indispensable. It requested clarification on the issue.
The Chair noted the diversity of views on the issue and stated that there was no clear trend in its discussion. Agreeing that the two concepts (“evolving capacities” and “the best interests” of children) were distinct and required careful consideration, he suggested retaining both provisions and joining them with “and,” to avoid making one concept subject to the other.
Austria (on behalf of the EU) stated that although it supported the goal of cultural diversity, it did not support mentioning it in the convention. The convention is about the rights of PWD, not cultural diversity, and it should work horizontally across all countries and cultures. It noted that neither CRC nor CEDAW mention cultural diversity, so referencing it in this convention could create problems with interpretation.
China thanked Canada for its proposal to combine 3(b), (c) and (e). At the same time, it agreed with Jamaica and others that the principle of equality of opportunity for PWD was very important and supported retaining the substance of this principle, though it was flexible as to whether to retain it in the current (e) or incorporate it into a new combined subparagraph.
Islamic Republic of Iran supported the inclusion of respect for the cultural diversity of PWD in the text.
Norway noted a tendency to exclude persons who become disabled later in life in disability policy. It therefore supported Costa Rica’s proposal regarding the language “in all stages of life” in 3(c). It supported the wording “respect for the inherent dignity of PWD” and preferred “general” to “fundamental” principles, and “autonomy” rather than “self-determination.” It was uncertain about Canada’s proposal to combine 3(b), (c) and (e). It agreed with the EU regarding cultural diversity and supported retaining the wording “equality of opportunity.” It stated that it would speak to women and children with disabilities following the facilitator’s reports.
Russian Federation stated that it would reserve its position on the matter of cultural diversity, noting that it would be useful if the delegation that had proposed the inclusion of “cultural diversity” would explain its reasoning based on existing legal documents, as a number of international conventions do touch on the issue. Regarding Costa Rica’s proposal to 3(a), it also reserved its position, noting that different legal systems interpret the beginning of life in different ways, and including this provision could bring into question the scope of the convention.
The Chair opened the floor to civil society.
IDC supported the addition of “respect for” and “inherent” in 3(a). It stated that the current wording of 3(a) did not adequately cover children with disabilities, and would propose specific wording on that subject. Because its proposal to use the language “self-determination” in 3(b) had not received support, it stated flexibility regarding the phrase. It believed that (a) discusses different principles within a single paragraph, and therefore proposed dividing it into two separate subparagraphs: one on “respect for inherent dignity” and another on the related subjects of “individual autonomy,” “freedom to make one’s own choices,” and “independence of persons.” It opposed the proposal to merge 3(b), (c) and (e), but saw merit in Jamaica’s proposal to associate non-discrimination with equality. It agreed with China and Jamaica that the reference “on an equal basis with others” in 3(c) is implicit and therefore not necessary in this article. It strongly supported maintaining the current wording of 3(d), believing that it is one of the most forward-looking parts of the convention that essential to communicating a paradigm shift in how society views PWD. It was flexible on the Australian proposal for 3(h) though had not yet had the opportunity to discuss it, but added that it did not want to see a large list of different principles in the article. It joined the EU in opposing an explicit reference to cultural diversity, noting that elsewhere, the text has used “on an equal basis with others” to indicate that the convention does not aim to change existing cultural practices, only to change those that have a discriminatory impact on PWD.
A second representative from IDC stated that although the issue of children with disabilities would be discussed on Wednesday, it would address the number of proposals regarding children that had been brought up in the discussion of Article 3. It welcomed the EU proposal, as supported by others, to add text in 3(h) regarding the “evolving capacities of children.” It stated that the article’s text asserting autonomy and independent decision making was essential but excluded children with disabilities, and believed that adding the language “in all stages of life” to 3(a) would not adequately address this exclusion. It pointed out that children have a different legal status from adults, which is usually based on the presumption of lack of capacity. However, the CRC recognizes that children’s capacity to exercise rights on their own behalf increases as they grow older. Because children with disabilities suffer disproportionately from a failure to exercise their rights, an explicit reference to “respect for the evolving capacities of children” must be included in Article 3. Without this, the convention will contain no transversal principle recognizing the right of children with disabilities to be involved in decisions that affect them, and the core principles of the convention will effectively exclude children. IDC opposed Indonesia’s proposal to add to this reference a provision regarding the best interests of the child, as this would allow children’s exercise of their rights to be overridden by an adult judgment on this basis and undermine their right as contained in the CRC. It would also limit the obligation to the regard best interests of children to issues relating to their evolving capacities and undermine the best interest principle standard of the CRC. The IDC also had reservations about the U.S. proposal to refer to “best interests of children” in Article 3, preferring the facilitator’s approach to include this reference in Article 7 or in Article 4 on general obligations. It stated that this was a discrete issue relating only to children, separate from autonomy, and that the text must specifically address children, in addition to adults, with respect to decision-making.
A third representative from IDC opposed Indonesia’s and the Sudan’s proposals to combine the concepts of non-discrimination and equality between men and women. It noted that objective equality between men and women is recognized in a number of human rights conventions, and that non-discrimination is only one part of the UN concept on fulfilling human rights and fundamental freedoms for women. Other aspects of this concept include a formal affirmation that human rights and fundamental freedoms apply to women as they do to men and the provision of positive measures to achieve equal treatment and opportunities for women. It welcomed Costa Rica’s proposal to include a provision on “gender perspective.” It believed that the objective of equality between men and women can not and should not be mixed with the concept of non-discrimination, but should be either in a separate article (such as Article 6) or mainstreamed in other articles. It supported the current text of Article 3, with 3(b) and 3(g) as separate provisions.
Arab Organization of Disabled People noted that the “Arab Contract for the Disabled” clearly addresses the situation of elderly persons with disabilities, and stated that it was of paramount importance not to ignore the elderly when dealing with children with disabilities. It supported the IDC regarding cultural diversity and stated that cultural diversity should not be enhanced at the expense of PWD; it hoped that all cultures would insist on guaranteeing and respecting the rights of PWD.
The Chair summarized the discussion as follows:
Article 4 - General Obligations
The Chair noted that written proposals from Australia (http://www.un.org/esa/socdev/enable/rights/ahc7australia.htm), Chile (http://www.un.org/esa/socdev/enable/rights/ahc7chile.htm), the EU (http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm), Kenya (http://www.un.org/esa/socdev/enable/rights/ahc7kenya.htm), and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc)
The Chair noted that this article contained a great deal of material that had been moved from other articles of the convention in order to consolidate up front elements perceived to be of a general, generic and cross-cutting nature. The objective of this strategy was to reinforce their overall applicability and reduce the textual overload created by constant repetition of particular points throughout the various articles. Among those concepts incorporated into Article 4 were universally designed goods, services, equipment, and facilities, new technologies, accessible information, the consultation of PWD and their organizations in the implementation and development of policies and legislation relating to this convention and other relevant decision-making processes, as well as language that relates to the progressive realization of economic, social and cultural obligations that are not subject to immediate implementation requirements for resource reasons, provided they do not amount to discrimination.
Israel generally supported the Chair’s text and many of the IDC proposals. It supported the IDC’s amendment to 4(1)(c) though it suggested adding “and legislation” at the end of the new IDC language. It stated that “integration” was a better term than “mainstreaming” and that the proposed IDC amendment appropriately focused more on persons with disabilities than disability issues in general. It supported the IDC proposal to paragraph 4(2), which distinguishes between economic, social and cultural rights capable of immediate implementation, which should be given immediate effect, and those not capable of immediate implementation, which should be subject to progressive implementation. It believed that 4(3) represented important legal language that embodies the principle of “nothing about us without us,” and proposed strengthening the provision by adding “public” before “decision-making” and “particularly those” before “concerning issues relating to PWD,” so as to include not only decision-making processes directly related to PWD but also those which affect PWD indirectly. Regarding remedies and enforcement, Israel supported the IDC proposal for a new 4(3bis), stating that “a right without a remedy is no right at all,” and noting that the ICCPR also includes express provisions on remedies. It believed this section was needed to ensure enforcement of the convention’s provisions.
Senegal, on behalf of the African Group, proposed amending the first paragraph of the chapeau to end “States Parties undertake to” and deleting “to” from the beginning of each following subparagraph. It also proposed adding “and promote” after “ensure” in the first line of the chapeau. It proposed adding “according to their jurisdiction” in the second line of the chapeau but was flexible on the issue. It proposed changing 4(1)(b) to read “to embody the rights of opportunity and non-discrimination,” believing that “opportunity” is more important and stronger than “equality.” It proposed deleting “undertake” from 4(1)(f) as this language is already contained within the chapeau. It proposed moving a number of elements to 4(1)(f) so that it would read “promote the research, development, and availability of, and provide, accessible information to persons with disabilities on the use of” followed by 4(f)(i) and 4(f)(ii), which would incorporate the remainder of the Chair’s text and eliminate 4(g). It proposed amending the end of 4(2) to read “with a view to achieving progressively the full realization of these rights, except where this would result in discrimination on the basis of disability,” to avoid repetition. It supported Israel’s position on 4(3) that the concept of remedy should be reflected in the text. It noted that it had mentioned the problem of HIV/AIDS during the 6th session of the Ad Hoc Committee, and maintained that it should be reflected in the text, although it was flexible as to whether it was reflected here or elsewhere, for example in the article on health.
The Chair asked Senegal to clarify whether the African Group preferred to refer to HIV/AIDS in specific connection to PWD or in some other context.
Senegal clarified that the African Group supported discussing HIV/AIDS in specific connection with PWD, either in Article 4 or in Article 25, and stated that a proposal on the subject had been written and would be circulated. [Subsequently circulated and posted at http://www.un.org/esa/socdev/enable/rights/ahc7african.htm ]
India supported the progressive realization of economic, social and cultural rights in accordance with previous discussion, but noted that in paragraph 4(2) the phrase “except where achieving progressively the full realization of these rights would result in discrimination on the basis of disability” needs some clarification. It pointed out as an example that to make all public buildings in India accessible to PWD would be a huge effort, given India’s large geographical area, and that while immediate implementation might be possible in some areas, it may take longer in others, and that this should not be treated as discrimination.
The Chair noted that he had drawn attention to this matter earlier in the discussion of accessibility. The committee had agreed that elimination of discrimination should not be subject to progressive realization. Therefore, if a broad definition of discrimination is adopted and includes the denial of accessibility as a form of discrimination, the provision of access would not be subject to progressive realization, despite the fact that resource limitations could prevent immediate implementation. As a possible way to resolve the issue, the Chair suggested defining “denial of reasonable accommodation” as a form of discrimination, because reasonable accommodation is subject to resources. He stated that the issues brought up by India would have to be addressed one way or another.
Serbia and Montenegro supported all the amendments in the EU proposal with the exception of 4(1)(c), for which it proposed an alternate wording that would read “to take into account protection and promotion of human rights of PWD in all policies and programmes.” Serbia and Montenegro stated that this language would preserve the substance of the EU proposal with a slightly better wording. Alternatively, it could also support the IDC amendment to 4(1)(c); it noted that it preferred either proposal to the Chair’s text. It believed that the last sentence of 4(2) in the EU proposal would be helpful in addressing the concerns brought up by India: “With regard to economic, social, and cultural rights, each States Party undertakes to take measures to the maximum of its available resources and where needed within the framework of international cooperation with the view to achieving progressively the full realization of these rights without prejudice to the immediately applicable obligations emanating from international human rights law.” It stated that the most appropriate way to deal with the issues of women and children would be to address them in a general way in Article 4, and suggested that the general issue of training could also be addressed in the article. Regarding Israel’s proposal on remedy, it did not want to take a definite position but stated that it would reflect carefully on the issue.
Australia proposed that in 4(1)(b), “rights of equality” be replaced with “principles of equality,” as “principles” acknowledges the barriers to equality facing PWD and would be more appropriate in a convention seeking substantive, rather than merely formal, equality as understood in international law. It proposed deleting “and to ensure, through law and other appropriate means, the practical realization of these rights” from 4(1)(b), as this provision is contained within 4(1)(a). It proposed an alternative wording to 4(1)(c) reading “to promote the incorporation of the needs and concerns of PWD into economic and social development policies and programs.” It believed the language “which should require the minimum possible adaptation and least cost to meet the specific needs of PWD” in 4(1)(f)(i) was too detailed for an article on general obligations and proposed its deletion. It proposed moving 4(1)(f)(i) and (ii) to Article 9 on accessibility. It supported the Chair’s text of 4(2), disagreeing with India’s interpretation of that paragraph. It was opposed to the wording of paragraph 4(3), and suggested replacing “shall closely consult with and actively involve” with “shall take appropriate measures to ensure adequate consultation with.” It supported 4(4).
New Zealand supported the IDC’s proposed amendments to 4(1)(c) and 4(2) and emphasized that non-discrimination must be subject to immediate realization, while noting that non-discrimination is subject to reasonableness. It proposed deleting the second sentence of 4(3), as it could not be an exhaustive or priority list. It believed the text should be strengthened regarding the participation of PWD in political or policy matters affecting them, suggesting language such as that contained in the IDC proposal for Article 29(c), which requires that “PWD be consulted and involved on an equal basis with others in all policy making exercises and decision-making processes” and also mentions “due appreciation of the disability dimension in such policies.” It supported the EU’s amendment to 4(1)(f) but would also delete the reference to “specific needs of PWD,” since “universal design” implies products that can be used by everyone. It also believed that the proposal for a new (g) on research in Article 25 could be adopted here, proposing the language “encourage research and the development, dissemination and application of knew knowledge and technologies that benefit PWD that are compatible with internationally accepted norms to protect human rights and fundamental freedoms and ethical principles of research,” borrowing language from both US proposals and the article on statistics. However, it stated that is was flexible on the exact language of the article. Regarding the issue of remedies, as introduced by Israel, it reserved its position but pointed out that although ICCPR has such a provision, no other international convention does; there is, for example, no international consensus on economic and social rights remedies. If the committee wants an explicit mention of remedies, however, it suggested that the article on national implementation might be a more appropriate place for this. It stated that it would address the issue of women and children after the facilitators had spoken.
Brazil was in general agreement with the article and supported the IDC proposal to include 4(3bis) on remedies, as it follows the precedent of ICCPR. It believed 4(1)(f) on universally designed goods should be amended, but stated that it would elaborate on the issue later.
The Chair noted an inconsistency between “universal design” and “inclusive design” as found in Article 2 on definitions and in Article 4(1)(f)(i). He recalled that the definitions of “universal design” and “inclusive design” were developed by a group on reasonable accommodation headed by Gerard Quinn, and asked for clarification on this point.
Gerard Quinn clarified that there was a subgroup on the possible link between reasonable accommodation and non-discrimination during the working group meeting, but that it did not extend into applications on specific rights.
Mexico believed the need for legal remedies should be included in 4(1)(b) and supported the elements of indemnification and remedies as proposed by the IDC. Referring to Paragraph 76 of the Chair’s letter, it noted that because the subject of training is frequently mentioned throughout the convention, it could be included in Article 4. Regarding national legislation, it repeated that it was concerned with the protection of PWD in particular cases, as has arisen in Article 12, and stated that it would circulate a proposal on the subject soon. It stated that 4(4) might be more appropriately placed toward the end of the convention, following the way a similar clause is dealt with in the CRC.
The Chair thanked the Mexican delegation for bringing up Paragraph 76 of the Chair’s letter, which notes that the subject of training, mentioned in 20(c), is also discussed in Articles 8, 9, 24, 25, and 26. He stated that there seemed to be good support to include a generic provision on training in Article 4.
Canada proposed changing the chapeau of 4(1) to read “States Parties undertake to ensure the full and equal realization of the human rights and fundamental freedoms of all persons without discrimination on the basis of disability and to this end undertake,” in order to emphasize equality and anti-discrimination. It supported the EU proposal of alternate wording to “mainstreaming” in 4(1)(c). In order to deal with how non-discrimination intersects with progressive realization, it proposed ending the first sentence of 4(2) with the wording “with a view to achieving progressively the full realization of these rights. Such rights shall be realized without discrimination on the basis of disability.” Regarding consultations, it agreed with New Zealand in supporting the IDC language regarding Article 29, which contains the idea of “consultation on an equal basis with others.” It would add to that a reference to PWD and their representative organizations. It expressed concern about introducing remedies with regard to the rights contained in this convention, as although there is a remedies provision in ICCPR, there is no analogous provision with regard to economic and social rights. It pointed out that to include the concept in the present convention would be a significant departure from legal precedent. It noted that economic and social rights are of a different nature than civil and political rights, and questioned whether they should be implemented through direct remedies, particularly in dualist systems such as that found in Canada.
Costa Rica noted that the first sentence of the chapeau to 4(1) is synonymous with the purpose of the convention itself, and questioned the value of including it here. It proposed a more action-oriented chapeau asking for States Parties to take measures as such, but was flexible if the consensus of the committee disagreed. Regarding the second line of 4(1)(b), which is taken from (2)(a) of CEDAW, it questioned whether it is feasible for the international community to require states to amend their constitutions. It proposed to eliminate the reference to national constitutions. It stated that the language in 4(2) had to be supremely clear in achieving its objective, and was not convinced that the current language was accomplished this. It reminded the committee that, at a previous meeting, it had had made a specific proposal regarding access to justice and legal remedies, and that these concepts were still missing from the current article. It maintained that a provision regarding access to legal remedies should be included in Article 4 and throughout the convention to support the rights therein.
The Chair noted that there had been a number of proposals to amend the language in the chapeau to 4(1) and asked delegates to reflect on Costa Rica’s proposal to delete the bulk of the chapeau.
Russian Federation proposed deleting “all” before “economic and social development policies and programmes in 4(1)(c), but was flexible on the point. It believed that for the sake of consistency, 4(1)(f)(ii) should refer to “at affordable cost” rather than “affordably priced,” and noted that in the Russian version, the word “cheap” should not be used. It proposed replacing “to the maximum of its available resources” in 4(2) with “to take appropriate and effective measures.” It noted that ICESCR uses the language “to the maximum of its available resource,” but that the present convention refers not to providing rights for the entire population, but for specific groups, and the same wording might present problems with interpretation. It also supported the deletion of the end of 4(2), beginning with “except where achieving progressively…” or could support the alternate wording proposed by the EU. It agreed with Australia and others that the second part of 4(3) could be eliminated as it is too detailed, and also noted New Zealand’s proposal that cooperation of PWD and their representative organizations should be emphasized. It believed the IDC proposal regarding Article 29(c) could be useful here. It supported Canada’s proposal to refer to “organizations representing the interests of PWD.” It supported the EU’s proposed 4(3bis), which supplements the norms established in 4(4). It noted that there were a number of other elements that should be considered in the context of Article 4, including the concept, as stated in the Universal Declaration of Human Rights, that because an individual has rights, he also has certain obligations to society. It stated that this idea is well established and recognized, and is present in ICCPR, ICESCR and other conventions. It also pointed out that Article 50 of ICCPR states “the provisions of the present covenant shall extend to all parts of federal states without any limitations or exceptions,” which it supported including in Article 4 or the final provisions of the present convention.
Japan proposed deleting the last phrase of (2) beginning with “except where achieving progressively…” It believed, as pointed out by India, that this phrase could imply that economic, social and cultural rights should be implemented immediately, which is not a matter of consensus and is not guaranteed in other human rights instruments. It did not believe that the proposals by the EU or Canada sufficiently addressed this concern. It supported New Zealand and Canada in opposing the inclusion of remedies in the article, though it noted that if the consensus of the committee is to include remedies, it would support the wording proposed by Canada the previous August to read “equal access to a remedy as set out in applicable human rights instruments.” Regarding 4(1)(a), it proposed adding “appropriate” before “legislative” and deleting “administrative,” corresponding to language in CEDAW 2(b). If this proposal was not supported, it proposed replacing “and” with “or” in the first line of 4(1)(a), in line with Article 15(2) of the convention. It also proposed including “maintain” after “adopt,” as states may already have appropriate measures in place and hence have no need to adopt new ones. It proposed replacing “rights” with “principles” throughout 4(1)(b), as the former is not common in other human rights instruments.
Austria, on behalf of the EU, welcomed the Chair’s approach to streamlining. It opposed Costa Rica’s proposal to delete the first sentence of the chapeau to (1), citing a similar statement in CEDAW. It recognized that many delegations supported the IDC proposal regarding 4(1)(c), but it still preferred the wording in its own written proposal. It also referred to its proposal to clarify 4(1)(f). It was flexible on the definition of universal design. It believed careful consideration should be given to the IDC proposal for a new 4(1)(i) regarding states’ responsibilities when public functions are contracted to private entities. It cited prisons as an example, as even when prisons are run by private entities, states still have responsibilities to prisoners. Regarding 4(2), it supported the Chair’s principle of including the subject in Article 4 to avoid a plethora of references to non-discrimination elsewhere, but was concerned that the language was still unclear. It proposed replacing the phrase “except where achieving progressive realization” with “without prejudice to the immediately applicable obligations emanating from international human rights law.” It supported the deletion of the second section of 4(3), believing that a long list can be restrictive and that the first sentence alone would be much stronger. Regarding 4(3bis), it proposed the insertion of a regression clause to ensure that the convention does not ever grant lower rights to PWD than are currently available. It proposed text for 4(3) taken from 5(2) of ICCPR, as reflected in its written proposal. It joined Japan, Canada and New Zealand in opposing the inclusion of remedies in the article.
Indonesia shared India’s concerns about the lack of clarity of 4(2) and supported the deletion of the phrase starting “except where achieving progressively…” It supported the deletion of the second sentence in 4(3) and also opposed including remedies in the article.
Republic of Korea supported the Chair’s text. It agreed with Israel and the IDC regarding 4(1)(c), supporting replacing “mainstream” with “integration” and focusing on rights of PWD rather than disability issues. It noted the potential problems of referring to “all policies and programmes” and suggested either deleting “all” or replacing it with “relevant.” It supported 4(3) but favored the deletion of the second sentence, as proposed by New Zealand.
China proposed strengthening the chapeau by adding “and full development” after “fundamental freedoms.” It was also flexible about the possible deletion of the first part of the chapeau. It supported emphasizing the progressive realization of elements of social and economic rights in 4(2). It also supported the proposals of India and others to delete the phrase beginning “except where achieving progressively…” It believed the question of non-discrimination had been adequately addressed in Article 5(2) and should not be contradicted in Article 4. It was flexible on the question of remedies, noting that in China, a law on remedies was adopted a decade ago and emphasizing that if remedies are included, the wording must be succinct and emphasize that remedies should be carried out both in accordance with national laws and on a basis of equality with others. It noted the Russian proposal that the convention should reflect a balance between rights and responsibilities, stating that this balance could be included in Article 4 and suggesting a possible reference to CRC and ICESCR.
Jordan believed there was a problem with the term “inconsistent” in 4(1)(a), noting that its Arabic equivalent is a much stronger word. It believed “inconsistent” implies inconsistency in shape or form rather than content, and that a stronger word such as “contradict” or “violate” would be more appropriate. It agreed with Costa Rica’s concerns about constitutional amendments in 4(1)(b) and believed that because the provisions are 4(1)(b) are implied in 4(1)(a), 4(1)(b) could be deleted. It believed the term “all” was problematic and proposed deleting all references to “all” throughout the convention. It stated that scientific research should be included in Article 4. It reiterated the Russian and Chinese proposals that the convention should reflect a balance between rights and obligations, noting that the disability community should be an active one, contributing to society.
Yemen supported the New Zealand proposal regarding scientific research, repeating Jordan’s point that no other article could absorb the subject in a balanced way. It believed that the concept of rehabilitation should be restricted to the article about rehabilitation and not included in Article 4. It proposed considering the addition of an obligation to protect PWD from all kinds of danger, a subject mentioned in Article 11. Regarding 4(3), it proposed deleting the reference to PWD so that the article would only refer to PWD as represented by their representative organizations, in order to give those organizations power and authority.
United States supported Canada’s changes to the chapeau of 4(1) and to 4(2).
Syrian Arab Republic supported the text as presented. It supported the inclusion of remedies as proposed by the IDC, stating that remedies should be mainstreamed and integrated with clear legislation and be available to PWD “on an equal basis with others.” It supported retaining the chapeau in 4(1) and supported 4(2), 4(3), and 4(4) as well.
Brazil believed that there was a contradiction between 4(1)(f)(i) and Article 3, and proposed deleting the section from “to meet the specific needs” to “the specific needs of PWD” in the fourth line of 4(1)(f)(i). Regarding 4(3), and the concerns some delegations voiced about the difficulties of consulting PWD on the development and implementation of legislation, Brazil stated that there is an effective mechanism in place for this purpose in Brazil. Its Council on the Rights of PWD meets monthly or bimonthly and draws half its members from civil society and half from government ministries; the Council examines all aspects of legislation and implementation. Brazil also supported deleting the second part of 4(3), as proposed by the EU and others.
The Chair said that the few remaining speakers would be heard the following morning.
The session was adjourned.
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