National Human Rights Institutions
Comments, proposals and amendments submitted electronically
We recommend that an item should be added following item (d), in the following terms:
( ) Valuing the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in 2001 in South Africa, an important landmark which led to General Assembly resolution 56/168, which calls for the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach to the work done in the fields of social development, human rights and non-discrimination.
We recommend that item (f) should include the concept of abandonment. The text would then read as follows:
Further recognizing that discrimination and violence against any person on the basis of disability, or the abandonment of such a person, constitute a violation of the inherent dignity of the human person..
We recommend that the proposed item (g) should be modified to include the concept of "potential". The text would then read as follows:
(g) Recognizing further the diiverse nature of disabilities and therefore the wide range of abilities, skills, potential and functional competencies of persons with disabilities,
Note: This item should not include any mention of "needs", because to do so might distort the desired proactive meaning.
We consider the proposal made by Argentina, the European Union and the Syrian Arab Republic in item i) to be appropriate; the phrase "in its various forms" should be added and the text would then read as follows:
(i) Recognizing the importance of international cooperation in its various forms for improving the living conditions of persons with disabilities in all countries, in particular in the developing countries.”
We propose that a reference to "and of the international community as a whole" should be added to item (j). The text would then read as follows:
(j) Emphasizing also the existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in significant advances in the human, social and economic development of their societies and of the international community as a whole in the eradication of poverty.
We propose that item (o) should be replaced by the following:
Note: In any case, the ideal location of this proposal would be before item (j) (indicated in the previous item).
o) Noting that poverty contributes to increasing disability indices in States and that also has a negative effect on the quality of life of persons, and that there is often a close connection between disability and poverty, efforts must continue to promote and implement the Millennium Development Goals in terms of eradicating poverty, in order to mitigate and where possible eliminate the marked negative effects of poverty on the disabled population worldwide.
We recommend replacing item (q) with the following:
q) Recognizing the importance of accessibility to the physical, political, social, economic and cultural environment, and of proper access to justice for persons with disabilities, and emphasizing that access to information and communication constitutes an essential means to the achievement of those objectives, as well as the use of accessible technology in its various forms, which enables persons with disabilities to fully enjoy their human rights and fundamental freedoms;
We recommend modifying item (r) as follows:
Convinced that a Convention dealing specifically to the human rights of persons with disabilities will contribute significantly to improving the Human Development Index of this group and of the world population in general, and to redressing the profound social disadvantages of persons with disabilities, promoting their participation with equal opportunities in the civil, political, economic, social and cultural spheres in both developing and developed countries;
We agree with the proposal made by Kenya in order to include an item referring to the rights of the child. After that item, we recommend that an item to the following effect should be added:
Noting the worldwide trend towards gradual ageing of the population in a process of demographic transition, recognized by the Madrid International Plan of Action on Ageing, 2002, which affects the increase in the population of older persons and therefore the appearance of disability in that age group.
Interventions made at the 4th session :
Mr Chairman, Thank you for your opening statement, we assure you of our cooperation.
My delegation has some comments to make regarding the preamble.
-In para (d), the sentence should begin with “recalling” rather than reaffirming Also in this para, we propose the deletion of the reference to the convention on Migrant Workers and Members of their families.
In para(f), We would like to replace the word ‘violation’ by ‘affront’.
In para(h),we would like to add “and discrimination” after “continues to face barriers”.
In para (k), we would like to see the para ending with “to the extent possible”
In para (l), we would like to introduce “and their families, where appropriate should be continued “after “persons with disabilities.
In para (o), we would like to reiterate our earlier position that “mindful that conditions of poverty exacerbates the incidence and situations of persons with disabilities.
In para (p), my delegation would like to include “and natural disasters” after “armed conflict”
In para (r), we would like to substitute “promote” with “facilitate”.
Thank you Mr Chairman and I apologize for taking a long time.
REPUBLIC OF KOREA
• Para (d): supports deletion of reference to “the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families”
• Para (l): proposes the addition at the end of para: “and the views and concerns of families and care-givers of persons with disabilities should be duly considered in such decision-making process.”
Mexican Proposal - Preamble
(e) Recognizing the importance of the World Programme of Action Concerning Disabled Persons adopted by the United Nations General Assembly resolution 52/82 and of the principles and policy guidelines contained in the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities,
(e) bis Recalling the International Labour Organization Convention No. 159 concerning Vocational Rehabilitation of Employment of Disabled Persons,
(e) ter Bearing in mind the recommendation made to the General Assembly by the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, to consider the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, including special measures to combat discriminatory practices affecting them,
(o) Mindful of the need to alleviate the negative impact of poverty on the conditions that have a negative impact on of persons with disabilities,
(s) Recognizing that disabled children should enjoy a full and decent life, in conditions which ensure dignity, promote self reliance and facilitate the child’s active participation in the community, (amendment to the EU proposal)
National Human Rights Institutions
MEETING CONVENED BY THE OFFICE OF THE SWEDISH DISABILITY OMBUDSMAN
Observations Regarding the Draft Preamble
1. wish the Preamble of the Convention to reflect an understanding of impairment as a potentially universal facet of human diversity. Disability in turn is to be understood as the consequence of the interaction between the person and the environment, and not as a necessary consequence of impairment.
2. wish the Preamble to stress respect for human diversity as the fundamental premise of the shift from a medical approach to a human rights approach to disability. In line with this, the participants propose the following wording of Paragraph h) of the Draft Preamble:
“Concerned that there has been a failure to recognize fully the need for society to respect diversity in the context of functionality, which has resulted in persons with disabilities continuing to face barriers in their participation as equal members of society and violations to their human rights in all parts of the world.”
3. propose that a reference to the principles and policy guidelines contained in the World Programme of Action concerning Disabled Persons is added to the reference to the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (the Standard Rules) in Paragraph e) of the Draft Preamble.
4. recommend the inclusion in the Preamble of a reference to the guidelines contained in the Principles Relating to the Status of National Institutions (the Paris Principles) regarding the establishment of a framework for the implementation and monitoring of the Convention.
5. put forward the Preamble as the appropriate place for a reference to the importance of international cooperation as a means for implementing the rights in the Convention. The participants feel that it is important that international cooperation is understood as benefiting persons with disabilities in all States.
6. wish the Preamble to underscore that the nature and severity of human rights violations for which the individual with disabilities is at risk always depend on the interplay between disability and the outcome of society’s responses to many different forms of status, such as sex, age or ethnicity. The participants suggest that the Preamble contain a detailed list (with the understanding that this list is non-exhaustive) of such forms of status and that the Preamble emphasise that all the provisions of the Convention are to be interpreted, implemented and monitored with full consciousness of the above observation. The Preamble should also note that the existence of particular provisions dealing with a certain status such as age or sex does not take away from, but rather reinforces, this general obligation.
7. support Paragraphs n bis) and n ter) as proposed by the European Union (the EU) recognising explicitly the situation of women and girls with disabilities.
8. support the amended wording of Paragraph o) as proposed by the EU and Brazil recognising explicitly the disproportionality of the large number of persons with disabilities living in conditions of poverty.
9. advise against the inclusion of references to specific diseases, such as that to HIV/AIDS in Paragraph s) proposed by Kenya.
INTERNATIONAL SAVE THE CHILDREN ALLIANCE
(k) Recognising the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices, taking into account, for children, Article 5 of the Convention on the Rights of the Child relating to the evolving capacities of the child
(s) Recognising the particular circumstances of the child with disabilities and that the child with disabilities should enjoy the right to a full and inclusive life in conditions that ensure dignity, promote self reliance and autonomy and facilitate their active participation in the community – (new para proposed by the EU)
1 The proposed amendment to paragraph (k) seeks to address the fact that children, whether disabled or non-disabled, do not have the right to autonomy in respect of decisions affecting their lives. Depending on the prevailing legislative framework in any given country, children’s rights to independent decision-making will be restricted in order to provide protection in accordance with their relative youth and immaturity. Parents are granted rights and responsibilities to make decisions on children’s behalf until such time as those children are capable of taking decisions for themselves. Article 5 of the Convention on the Rights of the Child makes clear that any direction and guidance provided by parents must be appropriate, be directed toward the exercise by the child of their rights and be consistent with the evolving capacities of the child. In other words, the rights of parents to exercise control over their child’s decision-making only exist for as long as that child lacks the competence to exercise choice for him or herself. Furthermore, it is important to recognise that the experience of active participation within decision-making is a central part of the process of developing the capacity for making informed choices.
One of the difficulties faced by many disabled children is that parents find it difficult to allow them to take increasing responsibility for their own lives. However, disabled children must be accorded equal rights with non-disabled children, both to develop their evolving capacities, and to respect for those capacities. The proposed amendment to paragraph (k) re-affirms the principle embodied in Article 5 of the Convention on the Rights of the Child, that although children lack equal status with adults in respect of full autonomy, appropriate recognition must be afforded to their evolving capacities to exercise responsibility for decision-making in their own lives.
Differing views on children’s capacities
A day centre in Romania catering for physically impaired children, developed a questionnaire and gave it to both parents and children in order to get their views on the children’s levels of competence. The children’s answers consistently indicated that they felt themselves to have a higher level of competence and confidence to undertake decisions and tasks than they were allowed by their parents. The parents were surprised by the children’s answers and how widely they diverged from their own. It forced them to reflect on the assumptions they made about their children’s capacities.
2 We endorse the EU proposal for an additional paragraph (s). This paragraph is of critical importance because children with disabilities are rendered largely invisible in many societies in the world. They are excluded from school, from play, from social and cultural activities, from friendships. They are also widely excluded from legislative, policy and administrative measures targeted at strengthening the rights of children. This invisibility arises often not through deliberate intent but rather, through a failure to understand or introduce the measures that are needed to protect their rights. Neither measures targeted exclusively at adults with disabilities, nor measures targeted at non-disabled children will necessarily address the situation of children with disabilities. For example, measures introduced to ensure the right of children to engage in leisure and recreational activities will exclude disabled children unless they address, from the outset, the potential social, cultural, physical and transport barriers they are likely to face. Measures to ensure the rights of persons with disability to leisure and recreation will exclude play facilities, unless explicit acknowledgement is made that persons with disabilities includes children. It is imperative therefore, that they are explicitly recognised, and rendered visible within the text of this Convention.
LANDMINE SURVIVORS NETWORK
SYNTHESIS OF PROPOSALS
The States Parties to this Convention,
(a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity, worth, and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world,
(b) Recognising that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind,
(c) Reaffirming the universality, indivisibility, inalienability and interdependence of all human rights and fundamental freedoms and reiterating that persons with disabilities are entitled to their full enjoyment without any form of discrimination,
(d) Reaffirming the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
(d bis) Applauding the efforts of governments at the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in South Africa in 2001, which gave impetus to the resolution promoting the work of the United Nations in the elaboration of an International Convention on the rights of persons with disabilities,
(e) Emphasising the importance of the World Programme of Action and the principles and policy guidelines developed and contained in the United Nations Standard Rules on the Equalization of Opportunities for Persons with disabilities in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities,
(f) Recognising that discrimination and violence against any person on the basis of disability is an affront to the inherent dignity of the human person,
(g) Recognising further the diversity of persons with disabilities,
(h) Realising that, despite these various instruments and undertakings persons with disabilities continue to face barriers in their equitable participation as equal members of society and violations to their human rights in all parts of the world,
(i) Emphasising the importance of international cooperation for improving the living conditions and promoting the full enjoyment of human rights and fundamental freedoms of persons with disabilities,
(j) Emphasising also the existing and potential contributions of persons with disabilities to the overall well-being and diversity of the society and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in significant advances in the human, social and economic development of the society,
(k) Recognising the importance of individual autonomy and independence, including the freedom to make their own choices,
(l) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes directly concerning them,
(m) Emphasising the difficult conditions faced by persons with disabilities and in particular those who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, and the kind, degree and multiplicity of disability, age, religion, political or other opinion, ethnic, national or social origin, property, birth, sexual orientation, or because of their status as refugees or internally displaced, older persons, people living in rural areas, informal settlements, scattered populations, and indigenous persons or other status,
(m bis) Noting with concern that there exists, in various parts of the world, harmful cultural practices and beliefs that have negative impact on the rights of persons with disabilities,
(n) Emphasising the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities,
(n bis) Recognising that women and children with disabilities are often subject to multiple discrimination, are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, and therefore suffer particular disadvantages,
(n ter) Recognising the particular circumstances of the child with disabilities and that the child with disabilities should enjoy the right to a full and inclusive life in conditions that ensure dignity, promote self reliance and autonomy and facilitate their active participation in the community,
(o) Recognising that a disproportionately large number of persons with disabilities live in conditions of poverty and mindful of the need to eradicate the negative impact of poverty on the quality of life of persons with disabilities,
(p) Emphasising that armed conflict and foreign occupation have devastating consequences for the human rights of persons with disabilities,
(p bis) Recognising the negative impact of HIV/AIDS on persons with disabilities in all spheres of life, (q) Recognising the necessity of accessibility to the physical, political, social, economic and cultural environment and to information and communication technologies, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms, and
(r) Convinced that a Convention dealing specifically with full enjoyment of the human rights and equal opportunities by persons with disabilities will make a significant contribution to redressing the profound disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres,
Have agreed as follows:
The function of the Preamble in a human rights treaty is multifaceted. The language in the Preamble should reflect precedent in international human rights documents, as well as contain language expressing the shift in the perception of disability from one focusing on the individual impairment, to one focusing on the barriers associated with any form of impairment which result in the deprivation of human rights of people with disabilities.
Even though the Preamble is not an operative part of the treaty, it provides a useful historical context and the rationale for introducing a new instrument into the body of international law. The draft text as presented here was not proposed at the third Ad Hoc Committee meeting, but is drawn in part from components of the Working Group Draft Text, as well as specific proposals from several Ad Hoc Committee members. Throughout the Preamble, the provisions are intended to promote the goal of the Convention, namely, the achievement of full and equal enjoyment of human rights by people with disabilities.
Draft Preamble paragraphs (a), (b), (c) and (d) represent standard language used in human rights Conventions, and fulfill one of the functions of the Preamble, namely, to reaffirm the relationship between the Convention and prior developments in international law. The addition of the word “worth” to the Working Group Draft Text in paragraph (a) (Holy See) is consistent with language in other preceding international human rights documents. (Cf. Charter of the United Nations, UDHR, CRC, CEDAW, Vienna Declaration) A proposal by Pakistan during the Ad Hoc Committee Meeting argued for deletion of the reference to the International Covenants on Human Rights.
However, they are
a part of the Bill of Human Rights and their reference in the preamble is
appropriate and necessary. (Cf. OHCHR web site at http://www.ohchr.org/english/bodies/index1.htm,
The reference in Draft Preamble paragraph (c) is to the language of the Vienna Declaration (1993), Paragraph 5: “all human rights are universal, indivisible, and interdependent and interrelated.” The paragraph is similar to the Working Group Draft Text. The original language “the need for” was replaced with “reiterating that,” which reflects the view (EU)
that people with disabilities are already entitled to the full enjoyment of human rights under other Conventions.
Draft Preamble paragraph (d) is consistent with the principal human rights Conventions in force. (Cf. Vienna Declaration, preamble (1993); UNSR, preamble) Some governments (EU, Israel, Canada, Costa Rica) suggested deletion of the reference to the International Convention on the Protection of the Rights of All Migrant Workers and their Families. However, since it is one of the seven core human rights treaties, its reference here is appropriate. (Cf. Office of the High Commissioner for Human Rights, available at: http://www.ohchr.org/english/bodies/index1.htm)
Draft Preamble paragraphs (d) and (e) reference the events and documents leading up to the development of the Convention. As an addition to the Working Group Draft Text, the suggested (Chile) reference to the World Conference against Racism has been included, since it was an important catalyst for the development of the Convention.
Draft Preamble paragraph (f) in this text is in large part the same as the Working Group text, with the suggested addition of the word “violence” (Costa Rica) and change of the word “violation” to “affront.” (EU)
In order to prevent limited application of the Convention, Draft Preamble paragraph (g) of the Working Group Draft Text is retained in its entirety. A proposal (India) during the Ad Hoc Committee Meeting suggested specifying that the word “diversity” refers to the type of impairment, but since the focus of the Convention is on the environmental barriers to full integration of people with disabilities in the society, this was not included. “Diversity” should encompass different social, economic and cultural situations that people with disabilities encounter.
Draft Preamble paragraph (h) uses the word “realising” instead of the original “concerned,” since the former is consistent with other human rights Conventions. A further change is the use of “these various instruments and undertakings,” (EU) as well as the addition of “equitable” participation (South Africa).
Draft Preamble paragraph (i) is especially important, because it affirms the principle of international cooperation. The language retained is largely the same as that in the Working Group Draft Text, and was supported by the South African delegation. The alternative language as proposed by some governments (EU, Syria, Argentina) was not included, as it is important to emphasize the comprehensive nature of international cooperation necessary for the implementation of the Convention. Reference to global cooperation is sufficient for the purposes of this Convention. (Cf. Vienna Declaration, paras. 20 and 25) The operative word “emphasising” was retained, as opposed to “recognising” as suggested by some (India, Namibia) in order to highlight the importance of this concept. The inclusion of this paragraph in the preamble does not preclude the inclusion of a separate Article on international cooperation, since as Pakistan suggested during the Ad Hoc Committee meeting, international cooperation is necessary for the implementation of this Convention.
Draft Preamble paragraph (j) references the ongoing efforts and contributions of people with disabilities to their societies, as well as links the promotion of human rights of people with disabilities with other objectives, notably development. (Cf. CEDAW, Vienna Declaration) Since the reference is to efforts in the past, as well as the future, the word “of” instead of “made by” was included, as suggested by Namibia. The reference to the eradication of poverty was deleted as suggested by the EU, since Draft Paragraph (o) deals specifically with this issue.
One of the functions of the preamble is to preliminarily identify principles and objectives of the Convention. Draft Preamble paragraph (k) fulfills that function by referring to “individual autonomy” and “independence” of people with disabilities. Draft Preamble paragraph is retained in its entirety, and the only modification from the Working Group Draft Text is the operative word “recognising” which replaces the resolution-style word “concerned.”
References to “families” (India, Pakistan) and “care-givers” (Pakistan), proposed by some governments were not included in Draft Preamble paragraph (l). In many countries the families and/or care givers of people with disabilities are the primary abusers and violators of their human rights, and thus, it is essential that the participation be primarily ensured for people with disabilities.
It is important to note that this is still a weaker formulation than that used in the Vienna Declaration, which uses the word “essential.”
The language in Draft Preamble paragraph (m) is very important, as it recognizes the existence of aggravated discrimination facing these groups in society. The purpose of this draft paragraph is to emphasize the aggravated discrimination that people with disabilities face in certain environments. Thus, the draft text of this paragraph has been retained without the reference to “severe” or “aggravated” disabilities, because of the difficulties associated with defining the terms, as suggested by some (Argentina, Canada, Yemen, Cuba, Namibia, Lebanon). Even though it was not suggested during the Ad Hoc Committee meeting, the operative word in this paragraph has been changed from “concerned” to “emphasising,” in order to avoid resolution-style language. Pakistan suggested not listing different bases for discrimination, for there is a danger that it cannot be exhaustive. The inclusion of the phrase “or other status” eliminates that danger.
Draft Preamble paragraph (n) invokes a gender perspective. This is a very important reference to women and is consistent with the resolutions of the Commission on Human Rights. Draft Preamble paragraph (n bis) is a consolidation of the paragraphs (n bis) and (n ter) suggested by the EU. It is essential to address the particular problems women and children with disabilities face.
Draft Preamble paragraph (n ter) is the proposed text of Draft Preamble paragraph (s), as suggested by the EU. The language was retained, as an important reference to the specific conditions affecting the life of children with disabilities. (Cf. CRC, Article 23)
Draft Preamble paragraph (o) deals with poverty. The proposal (India): “poverty can exacerbate the incidence and situations of persons with disabilities” was not included, since these are not the only examples of the negative impact of poverty on people with disabilities. Also, the language referring to the need to eradicate poverty because it causes disabilities was not retained. The text currently includes the Working Group Draft Text and adds language proposed by the EU addressing the fact that people with disabilities are over-represented among the poorest people in the world. They have been largely overlooked, but the recent poverty reduction strategies development is a chance to refocus the agenda. One of the Millennium Development Goals is the eradication of extreme poverty and hunger. This is a goal that cannot be achieved without taking into account people with disabilities, as a group that is disproportionately represented among the world’s poorest people. (Cf. Millennium Development Goals; Poverty and Disability) The word “eradicate” was used, rather than the weaker proposal (EU), “alleviate.”
The operative word in Draft Preamble paragraph (p) was amended to conform to the language in other Conventions. The reference to armed conflict in this draft paragraph includes the proposal by Syria to add “foreign occupation,” because it reflects the current global situation.
Draft Preamble paragraph (p bis) is added as suggested by Kenya during the third session of the Ad Hoc Committee. It emphasizes the detrimental effects of HIV/AIDS for people with disabilities, especially in developing countries.
Draft Preamble paragraph (q) reflects the major target areas for equal participation set forth in the UNSR, Rules 5-12. Even though it was not proposed during the Ad Hoc Committee Meeting, the text includes the word “necessity” instead of “importance,” because the concept of accessibility is one of the fundamental principles of the paradigmatic shift in the perception of disability in society. The proposals to include “political” (Yemen, South Africa, Costa Rica) and “cultural” (Costa Rica, Yemen) environment was retained, as it captures the language of the ICCPR and ICESCR.
Draft Preamble paragraph (r) fulfills another important function of the Preamble, namely, providing a rationale for introducing a new Convention, as well as the rationale for choosing a comprehensive approach to the Convention.