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Article 3 - General principles
Background Documents | Article 3 Background
Seventh Session | Fourth
Session | Third Session
Working Group
Canada
European Union
Kenya
South Africa
Russian Federation
International Disability Caucus
International Disability Convention Solidarity in Korea (IDCSK)
Japan Disability Forum
National Association of Community Legal Centres (NACLC)
People with Disability Australia
Canada proposes the following modification to Article 3:
(b) FULL AND EFFECTIVE PARTICIPATION AND INCLUSION IN SOCIETY ON A BASIS OF EQUALITY AND non-discrimination FOR PERSONS WITH DISABILITIES
(c) Delete
(e) Delete
EU Comment: EU welcomes the insertion of a new para on gender equality and can agree to the text of Article 3 as it stands.
The fundamental principles of this Convention shall be:
(a) Dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society on an equal basis with others for persons with disabilities;
(d) Respect for difference and acceptance of disability as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women.
EU Position on “Women” and “Children” in response to the joint facilitator’s proposal, 31 January 2006
h) respect for the evolving capacities of the child with disability;
Article 3
The fundamental principles of this Convention shall be:
(a) Dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society on an equal basis with others for persons with disabilities;
(d) Respect for difference and acceptance of disability as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women.
Article 3
Response to the facilitator’s text on children
We do not think that the reference to preservation of identity is necessary in (h) as this is already covered in the CRC and is redundant. We however agree with the inclusion of the text: respect for the evolving capacities of every child with disabilities.
Article 3
Rights of Children with Disabilities
“h) Full and harmonious development of every child with disability and respect of his or her identity and evolving capacities;”
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS (IDC)
Article 3
The fundamental principles of this Convention shall be:
(a) (ADD: “Respect for”) dignity, individual (REPLACE “autonomy” BY “self determination”) including the freedom to make one’s own choices, and independence of persons;
(JUSTIFICATION: The IDC would prefer to say “Respect for dignity” instead of “dignity” because one is already born with dignity but it is a matter of ensuring that our dignity is respected. The IDC would prefer the wording self determination instead of autonomy. The reason for this is that autonomy is an attribute that adult human-beings are assumed to possess. It is therefore passive and does not acknowledge the struggle to move away from a situation of deprivation and subordination which is better reflected by the term “self determination”.)
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society on an equal basis with others for persons with disabilities;
(d) Respect for difference and acceptance of disability as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women.
(NEW (h) Respect for the evolving capacities of children with disabilities and the right to express their views freely on all matters of concern to them and to have them given due weight in accordance with age and maturity. )
(JUSTIFICATION: It is important to ensure equal respect for children with disabilities with all other children, in respect of their evolving capacities and the right to express views. Without such an addition, the principles, by default, exclude children completely, because they, unlike adults, do not have legal capacity or autonomy. By including a reference here to respect for the evolving capacities of children, it will establish the principle, which can be applied throughout the Convention, for example, in relation to medical consent.)
The IDC wishes to introduce an additional principle to Article 3.
An alternative location for this proposal could be Article 7, Children with disabilities
IDC proposed text
Add new para (h)
'Respect for the evolving capacities of children with disabilities’
Rationale
Para (a) of Article 3 addresses the right of PWD to autonomy and independent decision making - and in so doing asserts their equal rights with others. It demands respect for legal capacity and the capacity to act. However, children, both non-disabled children and those with disabilities, have a different legal status. They lack autonomy in the exercise of their rights. These rights are granted to their parents who have responsibilities for decision-making in respect of their children. Only gradually, as they acquire capacity, do these rights transfer to them. The principle that children should acquire the right to take responsibility for the exercise of their rights is embodied in Article 5 of the CRC. However for children with disabilities, this process of gradual transfer of decision-making responsibility is widely denied. There is too little recognition or willingness to allow them to exercise their rights for themselves. Children and young people with disabilities argue strongly for greater respect for their capacities and the right to independent decision-making.
Accordingly, it is necessary to include an additional para in this article which stresses the right of children with disabilities to respect for their evolving capacities. The fact that this right exists in the CRC is not sufficient to ensure that they are consistently applied in the implementation of this Convention. It needs to be reiterated here in order that the principle informs the interpretation of this Convention, in the same way that all the principles in this Article are repeated from other treaties. Without it, the general principles will, de facto, exclude children with disabilities.
IDC Response on children
Facilitator’s text
(h) respect for the evolving capacities of every child with disability and respect for the right of every child with disability to preserve his or her identity
IDC response
The IDC welcomes the inclusion of a principle on respect for the evolving capacities of every child with a disability. We have no objections to the proposal on identity although are unclear about the necessity for its inclusion
Rationale
Para (a) of Article 3 addresses the right of PWD to autonomy and independent decision making - and in so doing asserts their equal rights with others. It demands respect for legal capacity and the capacity to act. However, children, both non-disabled children and those with disabilities, have a different legal status. They lack autonomy in the exercise of their rights. These rights are granted to their parents who have responsibilities for decision-making in respect of their children. Only gradually, as they acquire capacity, do these rights transfer to them. The principle that children should acquire the right to take responsibility for the exercise of their rights is embodied in Article 5 of the CRC. However for children with disabilities, this process of gradual transfer of decision-making responsibility is widely denied. There is too little recognition or willingness to allow them to exercise their rights for themselves. Children and young people with disabilities argue strongly for greater respect for their capacities and the right to independent decision-making.
It is imperative to include in Article 3 the principle of respect for the evolving capacities of children. Without it, there will be no transversal principle recognising the right of children with disabilities to be involved in decisions that affect them. Without it the core principles of this Convention will, effectively exclude children. Children, in light of their different legal status from adults, must be explicitly acknowledged in the principles incorporated in Article 3.
INTERNATIONAL DISABILITY CONVENTION SOLIDARITY IN KOREA (IDCSK)
IDCSK fully supports the proposals made by the IDC except only the below.
Article 3
(NEW (a-bis) Diversity of disability perspective)
(NEW (b-bis) “Empowerment & self-representativeness(or self representation) in policy concerning disability” or “ participation and inclusion of persons with disabilities in policies concerning them”
(JUSTIFICATION : we believe the above proposal of our own can reflect the concept or philosophy of “Nothing About Us Without Us”)
(b) Equality between (REPLACE “men and women” BY “women and men”).
cf) Disabilities are nature
(Disabilities should be considered just one of different natures between people.)
Article 3
Comments: 1. The General Principles (Article 3) set out in the Chairman’s Text includes seven principles. These principles are for the most part appropriate, and are acceptable. 2. The terms “empowerment” and “self-determination” should be explicitly included in Article 3.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 3
Chair’s text
The fundamental principles of this Convention shall be:
(a) Dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society on an equal basis with others for persons with disabilities;
(d) Respect for difference and acceptance of disability as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women.
Participants generally supported Article 3: General Principles, but sought additions to encompass other general principles upon which the convention ought to be based.
With regard to paragraph (g) equality between women and men, please refer to discussion in section 2.7 of this report.
In the 2004 Australian consultation many participants called for explicit recognition of the ability and contribution of people with disability to civil society and to the political, social, economic and cultural diversity and well-being of the community. This was again supported in the 2005 Australian consultation. It was repeatedly suggested that there is often too much emphasis on what people with disability ‘need’ from the community, and not enough emphasis on what they ‘contribute’ to it. Participants therefore felt that there should be a fundamental principle incorporated into the convention that recognised this contribution.
Recommended text
(g) Equality between women and girls and men and boys;
and new paragraph
(h) Recognition and respect for the ability and contribution of people with disability to society and to the political, social, economic and cultural diversity and wellbeing of the community.
NATIONAL ASSOCIATION OF COMMUNITY LEGAL CENTRES (NACLC)
Specific Population Groups
Interpretative Article
The NACLC notes the considerable debate around the issue of inclusion of specific population groups in the Draft Convention. The NACLC is of the opinion that it is essential that the Draft Convention include acknowledgement of the impacts of disability on persons of specific population groups, of which women and children are two examples, ho may experience a compounding disadvantage.
The NACLC endorses the approach recommended in the Report on National Consultations on the Comprehensive and Integral International Convention on the Rights and Dignity of Persons with Disabilities7, that a general interpretative article be included to recognise the intersection of disability with particular personal characteristics or special circumstances including:
• women with disability;
• children and young people with disability;
• Indigenous people with disability;
• elderly persons with disability;
• people with severe and/or multiple disabilities;
• people with disability from racial, ethnic, linguistic and/or religious minority groups;
• sexual orientation;
• people in situations or war or internal conflict; and
• people living in rural, remote and small island communities.
Furthermore, where States Parties are required to report against the substantive provisions in Part II, it should be clear that reference will need to be made as to how any action taken under these articles deals with unique needs of these specific groups.
Recommendation 5
That the Draft Convention include a general interpretive article recognizing the impact that results from the intersection of disability with particular personal characteristics or special circumstances.
Inclusion of separate articles on specific population groups
Should the majority of States parties not accept the interpretative article proposed above, the NACLC recommends the inclusion of separate articles identifying the particular disadvantages experienced by women children with Indigenous people with disabilities and of people with disabilities from racial, religious and ethnic minorities. The articles should specify that they operate to provide an interpretive element to other articles in the Draft Convention. These articles would operate to draw States Parties’ attention to how measures may need to be taken to address the unique needs of these groups in realising the rights that exist within the Convention as a whole.
Furthermore, where States Parties are required to report against the substantive provisions in Part II, it should be clear that reference will need to be made as to how any action taken under these articles deals with the unique needs of these specific groups.
Recommendation 6
That in the alternative to Recommendation 5 that the Draft Convention incorporate specific articles aimed at the particular disadvantage of women, children and Indigenous people with disabilities, and of people with disabilities from racial, ethnic or religious minorities.