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UN Programme on Disability   Working for full participation and equality

 

Article 19 - Living independently and being included in the community

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Seventh Session

 

Comments, proposals and amendments submitted electronically




Governments

China

European Union

Israel

Kenya

 

Non-governmental organizations


International Disability Caucus

Japan Disability Forum

Mental Disability Rights International

People with Disability Australia Bizchut

 





Governments

CHINA

Amendment to Article 19: Living independently and being fully included in the community
States Parties shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of their freedom of choice, living independently and full inclusion and participation being fully included in the community, including by ensuring to the extent possible that:

(Comment: Regarding the proposal to recognize the right to live in the community, China shares the views of some delegations that we should not create new rights in this convention although we support the efforts to meet the demands of persons with disabilities to live and be fully included in the community.)

(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement solely on the basis of their disability;

(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent unlawful and arbitrary isolation or segregation from the community;

(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

 

 

EUROPEAN UNION

Article 19

EU Proposal: The EU can accept the text of this article.

States Parties to this Convention shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of their freedom of choice, living independently and full inclusion and participation in the community, including by ensuring that:

(a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b) persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c) community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

 

ISRAEL

Article 19

LIVING (Israel's proposal: DELETE: INDEPENDENTLY) AND BEING INCLUDED IN THE COMMUNITY
States Parties to this Convention (Israel's proposal: ADD: recognize the right of all persons with disabilities to live in the community, with choices equal to those of others and) shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of (Israel's proposal: ADD: this right) (Israel's proposal: DELETE: their freedom of choice, living independently and ADD: and their) full inclusion and participation in the community), including by ensuring that:
(In accordance with Israel's proposal, the Chapeau would read as follows:

States Parties to this Convention recognize the right of all persons with disabilities to live in the community, with choices equal to those of others and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that):

JUSTIFICATION:

As the Chair stated in his report concluding the Sixth Session "the key to this draft article … [is] the right of every person with disabilities to live in the community". Given the high number of persons with disabilities still living in institutions, it is not sufficient for the right to live in the community to be implicit. On the contrary, it is essential to affirm this right, explicitly.

We also propose to delete the word “independently” both from the caption and the text of Article 19 as this term is capable of being misinterpreted as applying primarily to those persons with disabilities who are capable of living in the community independently without support and assistance.

(a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b) persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c) community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

 

KENYA

Article 19

States Parties to this Convention shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of their freedom of choice, living independently and full inclusion and participation in the community, including by ensuring that:

(a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b) persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c) community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

 

 

 

Non-governmental organizations

INTERNATIONAL DISABILITY CAUCUS (IDC)

Chairman’s text as amended by the IDC

Article 19
LIVING (DELETE: “INDEPENDENTLY”) AND BEING INCLUDED IN THE COMMUNITY (ADD: “WITH CHOICES EQUAL TO THOSE OF OTHERS”)

States Parties to this Convention (ADD: “recognize the right of all persons with disabilities to live in the community with choices equal to those of others and”) shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of their freedom of choice (REPLACE “living independently and full inclusion and participation” BY “including to choose their residence, to live, be fully included and participate”) in the community, including by ensuring that:

(JUSTIFICATION: The chapeau does not clearly affirm that all persons with disabilities have a right to live in the community. Non-recognition of this right accounts for the high number of persons with disabilities still living in institutions. Indeed, the Chair stated in his report from the end of the Sixth Session, that “the key to this draft article… [is] the right of every person with disabilities to live in the community”.
The chapeau is also too ambiguous in the use of Freedom of Choice. In addition, the focus on independence could negatively impact on those who require support to live in the community)

(a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement. (ADD: “In no case shall a child with a disability be institutionalised on the basis of his or her disability;”)

(JUSTIFICATION: It is important to add an additional paragraph here stressing that children shall not be institutionalised on the basis of their disability. The current paragraph (a) provides that people with disabilities are not obliged to live in a particular living arrangement, but the situation for children is more complex. Children, generally, lack the right to any control over where they live. It is imperative to challenge the presumption by both professionals and parents that institutional care is the most appropriate accommodation for children with disabilities.)

(b) persons with disabilities have access to (ADD: “and information about community services, including support services and that”) a range of in-home, residential and other community support services, including personal assistance (ADD: “assistive technologies and peer support”) necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community (ADD: “are provided by States Parties in a manner that respects the autonomy, individuality and dignity of persons with disabilities”);

(JUSTIFICATION: The current text does not require States to provide supports and services or information about them and does not recognize the right of the person to control these supports and services.)

(c) community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

(d) (NEW (d) “resources required to realize this right are allocated, based on the individual’s choice, in a fair and equitable manner”

(e) (NEW (e): “provision of mainstream services provided for children, including child protection services, are fully adapted, and equally accessible and available to children with disabilities.”)

(JUSTIFICATION: There should be an obligation to ensure that all mainstream services for children are adapted, and equally accessible to children with disabilities in order to ensure their optimum social inclusion within their communities. In other words, instead of the emphasis in Article 23 of the CRC to the need for special provision for children with disabilities, the emphasis is on the importance of rendering mainstream services to be more inclusive. Inclusion in the community relies on the provision of inclusive services to which children with disabilities have access. Services should focus on the realisation of human rights of children rather than on the child’s impairment and responding to the ‘special needs’ that must be catered for to enable the child to adapt more effectively. This article could be strengthened through a provision, which places emphasis on the fundamental importance of promoting the development of inclusive environments, which are accessible and available to all children including those with disabilities. It is consistent with the entire philosophy of this Convention, but seeks to ensure that in services, which apply exclusively to children, the same principles apply.)

IDC response to the facilitator’s proposal on children

JAN 22TH 2006

Article 19
Living independently and being included in the community

The IDC wishes to introduce an additional provision to Article 19.
(It could alternatively be addressed in Article 7, Children with disabilities)

IDC Proposed text
In para (a) add
“In no case shall a child with a disability be institutionalised on the basis of his or her disability’.

Rationale
This amendment seeks to strengthen obligations to prevent children being placed in institutions simply on the basis of their disability. In many countries, there is an explicit presumption or policy encouraging parents whose child is born with a disability to place the child in an institution. This practice results in the denial of many of their rights - for example, not to be separated from their family, to freedom of association, to the right to express their views and have them taken seriously, and to the right to optimum development. In some instances it also leads to the denial of the right to life, to healthcare, to education and to play.

Neither Article 19, nor Article 17, with its provision on protection from forced institutionalisation, nor Article 23, on forced separation of children from families, sufficiently protect children from such policies. Article 19 states that persons with disabilities shall not be obliged to live in a particular living arrangement. This provision implies choice. Children with disabilities do not have choice – these matters are decided on their behalf – by parents, professionals, administrators or the courts. The concept of obligation or imposition would not apply. Similarly, the concept of ‘forced institutionalisation’ implies that consent is being over-ridden. In the case of children, the consent is being provided by the parents. And in these cases, children are not being separated from parents against the will of the parents: the parents are giving consent.

 

 

JAPAN DISABILITY FORUM (JDF)

Article 19 LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY

Revisions:
Add a new paragraph (d), which provides as follows:
“[ensuring] to prepare designed infrastructure so that effective services can be provided, depending upon the needs of people with disabilities, and to increase and allocate the necessary social resources, so that people with disabilities can live in local communities.”

Comments:
We support this provision in general. However, with regard to domestic legislation, it is required to set up a numerical target under research for needs and to secure financial resources effectively, when municipalities (prefectures, cities, towns and villages) set up and enforce “the welfare plan for people with disabilities,” under Law for Supporting Independence of People with Disabilities.

 

 

MENTAL DISABILITY RIGHTS INTERNATIONAL (MDRI)

Intervention on Draft Article 19

(Living in and being included in the community)

Thank you, Mr. Chairman.

Mental Disability Rights International strongly supports Israel’s proposed changes to the working text of Article 19, which significantly strengthen it. MDRI particularly welcomes the framing of the right to live in the community as a right, and the support of this critical reformulation by Israel, Kenya, Canada, New Zealand, Chile, Brazil and the EU, although all rights, as rights, should be recognized in the chapeau or first paragraph of all Articles. It urges the Committee to make similar clarifications with respect to all of the draft articles in the Convention, in light of the fact that the Committee is drafting a convention on the rights of persons with disabilities.

In this regard, a concern has been expressed by several delegations that framing the right to live in the community as a right might exceed the accepted mandate of the Committee by creating a new right that does not currently exist in other human rights instruments. This concern should be put to rest.

Indeed, the “right to live in the community” is simply a straightforward reformulation of the widely-recognized “right to freedom to choose one’s residence,” as recognized by New Zealand this morning. That is, just as a State may not restrict a person’s options to reside in any particular section of a country, city or town (for example, on racial, religious, or political grounds), neither may it limit the options of a person to live in the community on account of his or her disability—by, for example, restricting their residential options to an institution or other particular living arrangement. Both examples equally restrict a person’s freedom of residence or right to live in the community. The two are flip-sides of the same coin.

The right to freedom of residence—or non-exclusionary choice of living arrangement—is guaranteed in:

• Article 12, International Covenant on Civil and Political Rights (“Everyone lawfully within the territory of a State shall, within that territory, have the right to . . . freedom to choose his residence.”)

• Article 2, Fourth Protocol to the European Convention on Human Rights and Fundamental Freedoms (“Everyone lawfully within the territory of a State shall, within that territory, have the right to . . . freedom to choose his residence.”)

• Article 12, African Charter on Human and Peoples’ Rights (“Every individual shall have the right to freedom of . . . residence within the borders of a State. . . .”)

• Article 22, American Convention on Human Rights (“Every person lawfully in the territory of a State Party has the right to move about it, and reside in it . . . .”)

States should not, therefore, fear that Article 19 creates any new right that is not already firmly established in international human rights treaty law. Again, it is just the equal-protection dimension of the right to freedom to choose one’s residence. As with all of the draft Convention rights, it is what is necessary to ensure the right to freedom of residence, on the basis of equality, for persons with disabilities.

It is pertinent to note that the right to live in the community has also been recognized in a variety of other international law instruments adopted by the United Nations. The U.N. Committee on Economic, Social and Cultural Rights, for example, has derived this right from the non-discrimination principle in the ICESCR—expressing this in its General Comment No. 5 on Disability. Again, the U.N. Committee has stressed that this is a fundamental equal protection provision. The U.N. Principles for the Protection of Persons with Mental Illness (the “MI Principles”) also expressly recognizes, in principle 3, the right to live and work in the community, as a right. I mention this despite the fact that this document provides lower international law standards in many respects for PWD and is thus disputed by many in the disability community. The right has also been recognized in a series of EU documents.

In this regard, it is imperative that Committee members do not tie their hands—and weaken the Convention—by believing that they must always use precisely the same language found in other major human rights treaties, particularly the ICCPR. We must always keep in mind that the Committee is drafting a treaty on the rights of persons with disabilities precisely because extant treaties do not provide sufficient protection for persons with disabilities. That is, the language of the ICCPR is not sufficient to protect the right of persons with disabilities to freedom of residence and to non-discrimination. We must change it, give it nuance and contextual meaning, so that States understand what that right means in practice for persons with disabilities and what States’ concrete obligations are with respect to that right to ensure it, on an equal basis with others, for persons with disabilities. This is what Article 19, as reformulated by Israel, currently does.

Thus, while important to recognize that Article 19 derives directly from Article 12 of the ICCPR, it is equally important to recognize that the language used in Article 19 should not—indeed, must not—directly mirror that in ICCPR article 12. A significant segment of the Committee has unfortunately fallen into this trap with respect to Article 15 on torture and cruel, inhuman and degrading treatment—believing that it must precisely mirror Article 7 of the ICCPR, without contextual changes that give it practical meaning for the day-to-day lives of persons with disabilities and the types of abuses that they suffer because of their disabilities that prevent their equal enjoyment of the fundamental human rights enjoyed by others. This is the great danger that arises in articles that hew too closely to ICCPR text.

In sum, let us use this Convention not to repeat verbatim the words of the ICCPR, but rather to change them where appropriate and thus give that instrument and other core human rights treaties real, practical meaning in the lives of persons with disabilities.

In this regard, a potential option or way forward may be to combine the EU and Israel proposals—moving current subparagraph a)—with the EU replacement of “opportunity” for the word “right”—to paragraph 1. This would be followed by Israel’s paragraph 1 proposal which would become paragraph 2, preceded by the words “To ensure this right”. Subparagraphs b) and c) would then become subparagraphs a) and b).

1. Persons with disabilities have the right to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.

2. To ensure this right, States Parties recognize the right of all persons with disabilities to live in the community, with choices equal to those of others and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

(a) persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance, disability-related supports and peer supports necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(b) community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

This may be a good compromise position, especially if some other delegate proposals are incorporated, such as Canada’s important addition of “disability-related supports” and Brazil’s addition of “peer support,” as well as the various IDC proposals.

Thank you, Mr. Chair.

 

 

PEOPLE WITH DISABILITY AUSTRALIA (PWDA)

Report on National Consultations

Article 19

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.

 

 

 

 


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