This position paper describes the Government of Japan's views and standpoint as of December 2003. The submission of this paper does not exclude the possibility for the Government to further comment on items which are not included in this paper in the future.
1. General Comments
The Government of Japan recognizes that the protection and promotion of rights and dignity of persons with disabilities is one of the most important issues in the current international community, and from this viewpoint, Japan will actively participate in the elaboration of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities (hereafter "The Convention"). Japan's determination was shown, for example, in the Statement by H.E. Ms. Yoriko Kawaguchi, Minister for Foreign Affairs of Japan, at the 58th Session of the General Assembly of the United Nations in September 2003. In her statement, Ms. Kawaguchi declared Japan's intention to actively participate in the process of drafting the Convention.
Japan also welcomes that the second session of the Ad Hoc Committee on the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities adopted, by consensus on 27 June 2003, the resolution on "Establishing a Working Group with the aim of preparing and presenting a draft text which would be the basis for negotiation by Member States and observers at the third session of the Ad Hoc Committee."
Since then, discussions with a view to contributing to this process have been conducted at various places in the world. For instance, experts of the Asia and Pacific region freely and actively discussed at a series of meetings under the auspices of the United Nations Economic and Social Commission for Asia and the Pacific (UN ESCAP), and developed the "Bangkok Draft: Proposed Elements of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities." Japan welcomes and takes note of the efforts of various organizations that contributed to the process of elaborating the convention.
In order to protect and promote the rights of persons with disabilities in the international community, the Government of Japan considers that the Convention, whose content is to be discussed at this Working Group and hereafter, should be based on the right-based approach and, at the same time, it should have universal value and work effectively. For this purpose, it is important for the Convention to have well-balanced contents, thus making it possible to obtain the broadest possible support of the international community. The Convention also should be consistent with existing international human rights instruments, such as the principal United Nations human rights instruments, as well as implementations with current practices to ensure compliance with these instruments. Moreover, with regard to the promotion and protection of the economic, social and cultural rights contained in the Convention, the Government of Japan considers that in order for the Convention to obtain the widespread support of the international community and to work worldwide, there should be a certain amount of flexibility when taking into consideration each country's different economic and social circumstances and policies, as long as they are from the viewpoint of promoting and protecting the rights and dignity of persons with disabilities.
2. Comments on Specific Items
(1) Objectives of the Convention
The Government of Japan's basic policies for persons with disabilities are based on the principle of "normalization." The principle is not geared toward giving special treatment to persons with disabilities, but rather aims at providing the conditions and environments under which persons with disabilities can live as ordinary citizens in communities together with those without disabilities. Based on this principle, the Government of Japan proposes that the keynote objectives of the Convention should promote the self-sustained lifestyle of persons with disabilities and their full participation in social, economic, cultural and other areas of activities.
(2) Principles to be embodied in the Convention
- The Convention should aim at creating a society in which every citizen, regardless of living with or without disabilities, mutually respects and supports each other's personality and individuality.
- Persons with disabilities should be fully respected for their human rights as equal constituents of society. They should be able to fully participate in the activities in communities by their own free will and, at the same time, share responsibilities as full members of society.
- In order to make the social participation of persons with disabilities viable and substantial, it is necessary to eliminate the factors which limit or restrict their participation in social activities. Positive measures should be taken to support persons with disabilities in exercising their capacities in full and in fully accomplishing their personal value.
- Possible measures should be taken to promote a barrier-free society, with regard to both "software" and "hardware" so that every citizen, with or without disabilities, can enjoy a safe livelihood while fully exercising his/her capacity.
- While ensuring consistency with existing international human rights instruments, in particular, the "without distinction" principle prescribed in Article 2 of the International Covenant on Civil and Political Rights (ICCPR) and "without discrimination before the law" principle prescribed in Article 26 of the ICCPR, the Convention should specify the rights which are of particular relevance to persons with disabilities but are not clearly provided within the existing international human rights instruments.
- The Convention should allow contracting Parties to take progressive measures to realize the economic, social and cultural rights of persons with disabilities, so that many countries adhere to Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides that "Each State Party ??? undertakes to take steps ???, to the maximum of its available resources,???" and which would be a good basis for elaborating concrete wording.
- Special measures taken in order to realize the rights of persons with disabilities shall not be considered as discrimination against such persons. An explicit provision to this effect should be included in the Convention. (Reference: Article 1, paragraph 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 4, paragraph 1 of the Convention on the Elimination of All Forms against Women (CEDAW).)
(3) Scope of the Convention
In order to realize the abovementioned concept of "normalization" and taking into account each county's different economic and social circumstances, the Convention should provide international guidelines or goals for the measures to be taken to ? enable persons with disabilities to overcome the constraints inherent to their disabilities and to ? eliminate the social barriers surrounding them, both "software" and "hardware" aspects, which impede the realization of each right of persons with disabilities in their social life.
In order that the protection and promotion of the rights of persons with disabilities be addressed with a higher profile in the international community, the Convention should clearly declare, in its preamble part for example, that all the rights enshrined in existing international human rights instruments should be equally enjoyed by every person with disabilities. Japan also basically supports the approach to elaborate upon not only civil and political rights but also economic, social and cultural rights.
As the protection and promotion of the rights and dignity of persons with disabilities involves almost every sector of society, the relevance of this Convention to a wide array of existing international instruments in addition to human rights instruments in its narrow sense as well as to national legal systems in each country should be examined carefully. It would also be necessary to consider in which areas the rights of persons with disabilities are well protected up to the same level that the persons without disabilities would enjoy, and in which areas the rights of the former are yet to be promoted for its full realization.
In principle, specific/substantive stipulations of the Convention should be discussed first, and definitions should be discussed at the later stage when the contents are somehow fixed. However, Japan's initial comments on definitions are as follows.
- The current definitions of "persons with disabilities" vary as they reflect each country's circumstances and different legal systems. Furthermore, each country does not necessarily have unified definitions on persons with disabilities because objectives and measures to implement policies for them also vary. Therefore, if the Convention will include the definition of persons with disabilities, it should allow flexibility based on each country's situation and legal systems, while still ensuring that the objective of the Convention is the protection and promotion of the rights of persons with disabilities.
- Similar to a definition of persons with disabilities, various "definitions of discrimination" exist because they reflect each country's political, economic and cultural situations and different legal systems. Since measures duly accommodating such differences are conducive to effectively eliminating discrimination, it is necessary to allow flexibility, taking into account each country's circumstances and legal systems. Definitions should be formulated so that many States can accept, or, they should give room for each country's interpretation. Japan considers that discussions of a definition of discrimination should proceed, with reference to CERD and CEDAW, and take into consideration the differences from those, as well as the various situations and legal systems among States.
(5) Elements of the Convention
Substantive elements and modalities to be included in the Convention (civil and political rights as well as economic, social and cultural rights) will be discussed and agreed upon later, making reference to the existing resolutions and guidelines formed at the United Nations and the state of implementation by each country. Regarding the welfare service for persons with disabilities, however, governmental responsibility does not cover all aspects. The welfare service for persons with disabilities should also be secured by social welfare as a whole based upon social solidarity such as regional community and private health workers. Therefore, the Convention should set up a framework of international standards, objectives and obligations of States. It is presupposed though, with regard to specific measures of their realization, the State Parties will secure the human rights of persons with disabilities under their responsibilities and on the basis of their principles of social welfare.
Japan would like to propose the following structure and elements for inclusion in the Convention.
- Structure of the Convention
- Objectives and general principles
- General obligations of State Parties to respect and ensure the rights guaranteed in the Convention
- Guarantee of equality and non-discrimination (generally and in the enjoyment of the rights guaranteed in the Convention, gender equality)
- Guarantee of special rights (compatible with the Universal Declaration of Human Rights, the ICCPR, the ICESCR and other existing international human rights instruments)
- Other State obligations
- Monitoring mechanisms
- Miscellaneous provisions
- Civil and Political Rights
- The State Parties shall ensure freedom and security of persons with disabilities and take appropriate measures to prevent cruel, inhuman or degrading treatment(i.e.the rights of freedom from forced intervention and institutionalization except for legally proper measures. When necessary, a person with disabilities who was taken this measure will be protected through "competent national tribunals and other public institutions.").
- The State Parties shall take appropriate measures to prevent persons with disabilities from being discriminated against in relation to nationality or immigration status.
- The State Parties shall take appropriate measures to ensure the rights to freedom of association, freedom of expression, and freedom of political participation and shall ensure the full representation of persons with disabilities in decision-making.
- The State Parties shall take appropriate measures to guarantee the judicial procedure of persons with disabilities.
- Economic, Social and Cultural Rights
- The State Parties shall take appropriate measures to ensure independent living in their community for persons with disabilities.
- The State Parties shall take appropriate measures to ensure access to the physical environment for persons with disabilities.
- The State Parties shall take appropriate measures to ensure access to information and communication for persons with disabilities.
- Right to Education
State Parties shall take appropriate measures to guarantee full opportunities for compulsory education for children with disabilities, regardless of the nature or severity of their disabilities.
- Right to Work
Regarding employment and occupations of persons with disabilities, which will be included as one of the substantive provisions, Japan and some other States have been adopting the "Employment quota system for persons with disabilities," and Japan considers that the system has been effectively functioning for employment promotion of persons with disabilities. Such a positive measure is a matter of each country's policy-related options and should be clearly written within the Convention that it shall not be regarded as discrimination against persons with disabilities.
- State Parties shall take appropriate measures to ensure the health and rehabilitation of persons with disabilities.
- Obligations of State Parties (Internal measures for implementation)
- Obligation for elimination of discrimination against persons with disabilities (cf. Article 2 of the CEDAW)
State Parties condemn discrimination against persons with disabilities with all forms, and agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against persons with disabilities.
- Other State Obligation
In case one of the rights of persons with disabilities is infringed upon, legal and administrative remedy procedures will be guaranteed.
- Special measures which are not considered discrimination
Adoption by State Parties of special measures aimed at accelerating de facto equality between persons with and without disabilities and special measures aimed at protecting persons with disabilities shall not be considered discrimination.
(6) Monitoring and Evaluation Mechanism
Japan has no objection to the importance of a monitoring mechanism of international human rights instruments, but it should be treated after the discussions on the contents of substantial provisions, its nature and form of the Convention will be sufficiently deepened. For example, the so-called individual communications procedure is not at the stage of being accepted by every country. Therefore, in order to secure the universality of the Convention, a possible individual communication procedure should be provided as an optional protocol. In case this procedure is included within the Convention, the provision should be an opt-in clause.
(7) Other Comments
- Avoiding Duplication and Ensuring Consistency with Existing Human Rights Instruments
The Convention, regardless of its forms, should be completely consistent with the existing international human rights instruments systems including the core covenants such as the ICCPR and the ICESCR. Therefore, the main idea of the Convention should be to overcome the difficulty faced by persons with disabilities in realizing those human rights prescribed in the existing human rights instruments and to further promote those rights.
- Relevance to the Discussion on the Reform of Human Rights Treaty Bodies
It has been continuously discussed that State Parties to existing human rights instruments are already under obligation to engage in huge amounts of work including making governmental reports and preparation of being examined the reports, resulting in duplicating and the delay of the work. Such monitoring mechanisms play a significant role to promote and protect international human rights, but if new conventional obligations are to be added to the present structure in an actual manner, these will reach beyond a reasonable limit. We are standing at a turning point to drastically reform the treaty bodies.
Under such recognition, Japan considers that it is necessary for the monitoring mechanisms of the Convention for persons with disabilities to be rationalized, at the same time pacing the trends of simplifying and streamlining the work under other human rights instruments, while it should be tailored without degrading its function of monitoring and evaluating in order to promote and protect the rights of persons with disabilities.
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