AD HOC COMMITTEE ON
AN INTERNATIONAL CONVENTION

I. PROPOSAL FOR A POSSIBLE CONVENTION

A.  Objectives of the convention

1. The prevention and elimination of all forms of discrimination and civil, political, economic, social and cultural barriers against persons with disabilities;
2. To guarantee their full participation and integration into society, especially through the establishment and implementation of community based services, health and sustainable development initiatives formulated with the full participation of persons with disabilities;
3. To state the existing general human rights and humanitarian law instruments which are applicable to persons with disabilities due to their inherent condition of human beings as well as the specific standards of protection embodied in international human rights and humanitarian law;
4. To establish the specific rights and fundamental freedoms which  persons with disabilities are entitled to due to their recognition as a vulnerable group by the international community;
5. To establish the State obligations with regard to the promotion and protection of the aforementioned rights and freedoms;
6. To guide States parties to the Convention on the formulation and/or amendment of national policies, plans or legislation on disability;
7. To guide States Parties to the convention, civil society and organizations of persons with disabilities on the formulation and implementation of domestic monitoring mechanisms to enforce the above mentioned rights and freedoms; and
8. To establish and implement an effective international monitoring mechanism to promote and protect the above mentioned rights and freedoms.

B.  Principles to be embodied in the Convention

1. Non-discrimination;
2. Self-determination;
3. Equalization of opportunities;
4. Due process of law;
5. Suspension and interpretation of guarantees according to existing international human rights and humanitarian law instruments;
6. Medical care in the least restrictive environment;
7. Medical treatments and experimental treatments according to existing international human rights instruments;
8. Rehabilitation and life in the community;
9. Independent living; and
10. Full participation of persons with disabilities in any negotiation with regard to the formulation/amendment of policies, plans or legislation; in the rehabilitation process or in any other procedure.

C. Scope of the Convention

 “Persons with disabilities” shall be able to exercise all the human rights and fundamental freedoms embodied in international human rights and humanitarian law on an equal footing with others.  In the above mentioned instrument, “persons with disabilities” shall be understood to include persons with physical, mental, intellectual and sensory impairments; who live in the community with their family members or in a domestic unit or who have been admitted permanently or temporarily in any of the following settings:  in a private or public community based program, in a private or in a State institution or in private or State residential programs.   The Convention also should apply to persons with disabilities serving sentences of imprisonment or who are detained in the course of criminal proceedings.

D.  Definitions

1. General human rights provisions
2. Humanitarian law provisions
3. Special standards of protection
4. Disability
5. Rehabilitation
6. Accessibility
7. Inclusion/exclusion
8. Integration
9. Participation
10. Functioning
11. Appropriate technology
12. Equal opportunities
13. Counsel
14. Independent authority
15. Medical treatment
16. Personal representative
17. Discrimination
18. Consent
19. Capacity
20. Ombudsman
21. Mental and physical disability review bodies
22. Public institution
23. Private institution
24. Community based programs
25. Independent living
26. Residential programs
27. Disability policy
28. Disability plan  
29. Disability law
30. Consumer organizations

E. Elements of the Convention

1. State obligations
2. General human rights and fundamental freedoms
   1. Civil and political rights
   2. Economic, social and cultural rights
3. Specific rights of persons with disabilities
   1. Accessibility
   2. Health services
   3. Education
   4. Transportation, communication and information
   5. Employment
   6. Conditions at the work-place
   7. Housing
   8. Participation in the decision making process
4. Specific rights, fundamental freedoms and living conditions in psychiatric and disability institutions at large
   1. Admission procedures
   2. Mental and physical disability review process
5. Treatment, standards of care and rehabilitation programs
6. Consent to treatment
7. Procedural safeguards
8. Suspension of guarantees
9. Monitoring mechanisms and remedies
   1. Guidelines to implement domestic mechanisms, measures and remedies
   2. International mechanisms of protection
10. Transitory Provisions

F. Monitoring and Evaluation mechanism

The Convention should establish a specific body or organ which will have competence with respect to the fulfillment of the commitments made by the States Parties.  The above mentioned body would primarily promote and protect the rights of persons with disabilities through the following mechanisms:

1. Presentation of individual complaints;
2. precautionary measures;
3. on-site investigations;
4. preparation of country reports;
5. hearings;
6. formulation of international human rights instruments; and
7. technical support to States, national networks, consumer organizations and civil society at large on the formulation/amendment/implementation of disability policies, plans, legislation and public education.

II. MODE OF NEGOTIATION OF THE CONVENTION

It is proposed the formation of a working group which will review all the proposals submitted by the Member States, observer States and bodies and specialized agencies of the UN to the Secretariat.  The working group would be in charge of drafting the above mentioned instrument and would be comprised of: 

1. A group of Member States selected by the “Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities”, comprised of representatives of the  different Regions;
2. Bodies and organizations of the United Nations which have relevant experience, especially on the promotion and protection of the rights of persons with disabilities;
3. Independent technical experts nominated by groups “A” and “B”    (above) and selected by the aforementioned Ad Hoc Committee, who should have relevant experience, especially on disability and/or the promotion and protection of the rights of persons with disabilities; and
4. Persons with disabilities (see section I.C) who will act and participate in the negotiation of the Convention on behalf of Non-Governmental Organizations accredited to the Ad Hoc Committee mentioned above and/or officially accredited to the UN Economic and Social Council.

III. VIEWS ON THE COMPLEMENTARY BETWEEN A NEW INSTRUMENT AND THE EXISTING INTERNATIONAL INSTRUMENT:

A. World Programme of Action concerning Disabled Persons:

The proposed convention would fully include, implement and monitor the measures that have been proposed by the above mentioned programme,  especially the adoption by States of national plans, policies and legislation on disability; the participation of persons with disabilities in the decision making process and the use of international human rights standards for the equalization of opportunities for persons with disabilities at the national level.  In addition to the above, the proposed convention should include a competent body as proposed in section I.F of this document.

B. Standard Rules:

The proposed convention should include a new monitoring mechanism (see section I.F, above) to replace the existing monitoring mechanism created by the Standard Rules.   This new monitoring body should work closely with existing Special Rapporteurs on Disability.  Initially, the work of the existing UN Rapporteur on Disability (especially the set of questions on disability already answered by the States and the country reports) could be used by the new monitoring body as a guideline to support States on the implementation of the new Convention.  The new UN Convention should maintain the relevant rules, rights and measures established in the Standard Rules. 

C. Existing International Legal Instruments:

The proposed monitoring body  (see section I. F of this document) will collaborate very closely with other international human rights bodies, especially with the Committees created under the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the Convention of all Forms of Discrimination against Women,the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention on the Elimination of All Forms of Racial Discrimination.  In addition, the new body should collaborate with Regional organs such as   the European Court of Human Rights; the Inter-American Commission and Court of Human Rights and the Committee established by the Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities, among others.

Following the monitoring mechanisms established by the above mentioned instruments, in addition to the proposed monitoring mechanism (see section I.F above), the new convention should also include: a reporting procedure, public education and training mechanisms and individual complaints procedures.

D. Elements to be incorporated into the convention from the World Programme of Action, the Standard Rules and the existing human rights instruments:

1. Implementation measures and monitoring mechanisms from the Standard Rules (modified as proposed above)
2. State Obligations and Rights protected according to  existing human rights instruments such as the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the American Convention on Human Rights and its Additional Protocol in the area of Economic, Social and Cultural Rights (among others).
3. Means of Protection according to the American Convention on Human Rights (with the pertinent modifications).
4. International humanitarian law provisions and standards that apply to persons with disabilities during and after armed conflicts, especially the Geneva Convention relative to the Protection of Civilian Persons in time of War and its additional protocols, among others.
5. UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, especially with regard to consent to treatment, rights and conditions in mental health facilities, Review body and procedural safeguards.

IV. OTHER RELEVANT PROPOSALS:

The International Classification of Functioning, Disability and Health (ICF), issued by the World Health Organization (WHO), should be used as a reference document in the preparation of the new Convention.

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