ARTICLE 1 – PURPOSE:
This article should state the two structural aims of the Convention, namely to promote and protect rights and to combat discrimination. We therefore propose the following language, using simple terms and avoiding any elements which will be stated in the rest of the text:
“The purpose of the present Convention shall be to promote and protect the full enjoyment by persons with disabilities of their human rights and fundamental freedoms, and to prevent any form of discrimination”.
Draft Article 1 – PURPOSE:
The purpose of this Convention shall
be to ensure the full, effective and equal enjoyment of all human rights and
fundamental freedoms by persons with disabilities.
EU proposal: “The purpose of the Convention shall be to ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.”
Draft Article 1 – PURPOSE:
The purpose of the present convention is to promote the full and equal enjoyment of all human rights and fundamental freedoms and the dignity of persons with disabilities.
National Human Rights Institutions
Observations Regarding Draft
Article 1 on Purpose
1. The participants propose that the wording of Draft Article 1 not be subjected to any of the proposed amendments.
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The purpose of this Convention shall be to [ensure, protect and promote] (promote, protect and fulfill) the full, effective and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.
Draft Article 2 - GENERAL
SYNTHESIS OF PROPOSALS
The purpose of this Convention shall be to respect and ensure the full, effective and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.
Inclusion of an article explicitly articulating the purpose of the treaty ensures that there is no ambiguity as to the objectives of the Convention and what, in essence, States Parties have undertaken to achieve. Even where the purpose of the Convention is implied in a preamble, it is not (as suggested by Japan) redundant to include an article such as this, for unlike the preamble this article is housed in the operative/legally binding section of the Convention. Indeed, prevailing international law practice in treaty drafting is to more explicitly articulate treaty objectives in a separate article, and so the inclusion of Draft Article 1 is in keeping with that practice. (Cf. Framework Convention on Climate Change, Article 2)
The draft language proposed here retains the formulation of the Working Group Draft Text (as supported by Russian Federation, EU and Jordan) with the addition of the word “respect,” as opposed to the formulation in FN 8 of the Working Group Draft Text (supported in large part by Argentina, South Africa, Mexico, China, Japan, El Salvador, Thailand, Mali, Eritrea, Uganda). FN 8 calls for the use of “protect and promote,” rather than “respect and ensure.” The obligation to “respect” has been interpreted as the duty of States to “refrain from restricting the exercise of these rights where such is not expressly allowed.” (Cf. “UN Covenant on Civil and Political Rights: CCPR Commentary,” Manfred Nowak, p. 36) The obligation to “ensure” has been interpreted as “a positive duty … [meaning that] States Parties are obligated to take positive steps to give effect to the rights.” (Cf. “UN Covenant on Civil and Political Rights: CCPR Commentary,” Manfred Nowak, p. 36-37) Thus, “respect and ensure” requires States not to violate or restrict the rights, as well as take positive steps to give effect to the rights. An examination of the seven core human rights instruments reveals that “respect and ensure” is the term utilized with regard to state obligations as opposed to “protect and promote,” and it is thus appropriate that Draft Article 1 retain consistency with such precedent.
The word “effective” has also been retained from the Working Group Draft Text (contrary to the suggestion of the EU). As articulated (by the Asia Pacific Forum) during the third Ad Hoc Committee meeting, the use of the term “effective” further reinforces the need for creation of conditions for actual enjoyment of human rights, rather than mere recognition of those rights.
Several proposals (India, Morocco and Sierra Leone) called for the inclusion of references to combating discrimination as a purpose or means of achieving the purposes of the Convention. Such references would be appropriate in the context of a non-discrimination Convention (such as the CEDAW, or CERD), but should not be included here. Although fighting discrimination against people with disabilities is a necessary and intrinsic component of this Convention, the scope of this Convention is broad and comprehensive, and such references to discrimination in the purpose could misleadingly imply that the Convention is limited in scope to a non-discrimination framework.
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We strongly support the Expert Working
Group’s formulation of this article. However, we urge the incorporation of
the additional concept of ‘dignity’ into the article. Rights and dignity are
independent concepts, and recognition of rights alone will not necessarily
ensure persons with disability will be treated with dignity. Apart from its
potential mention in the title of the convention, the concept of dignity will
not otherwise appear in this convention, unless it is included in this article
or under Article 2: General Principles.
The article might therefore read:
The purpose of this Convention shall be to ensure the dignity and the full, effective and equal enjoyment of all human rights and fundamental freedoms by persons with disability
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After: The purpose of this Convention shall be to ensure” to add: by States Parties guarantees and opportunities for equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.