Comments on the draft text
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The Commission would support the view, as set out in footnote 20 to this draft Article, that there should be a general obligation to include the rights of non-citizens with disabilities who otherwise enjoy some degree of legal status within the State. For example, it has been reported to the Commission that persons with disabilities who are visitors to Ontario are ineligible to access para-transit vehicles in some regions because of the lack of reciprocal agreements or waivers.
The Commission supports this provision. In Canada, all provincial and federal jurisdictions have legislated the rights of equality and non-discrimination on the ground of disability, set out in federal, provincial and territorial human rights codes as well as being entrenched in the Charter of Rights and Freedoms under Canada’s Constitution Act. In addition, Ontario has legislated barrier-removal planning and reporting requirements for government and para-public sectors under its Ontarians with Disabilities Act (2001).
In Ontario and other provincial and territorial jurisdictions in Canada, the protection in human rights codes providing that persons with disabilities be free from discrimination in employment, services, housing, contracts and trade unions, extends beyond government and the public sector to include private enterprise.
The initial paragraph should state, as in the ICCPR, that States “shall respect and ensure the full realisation of all human rights and fundamental freedoms.”
Paragraph a) should also include by-laws, rules and we suggest to replace the word “discourage customs” by “counter customs”.
EDF proposes to add to paragraph c) a reference to international cooperation, which would oblige both the donor and the recipient of development cooperation funds to take into account persons with disabilities.
EDF also considers it very important that a paragraph on remedies is included in this article.
EDF also suggests to add a reference to positive action measures to paragraph e) of this article.
EDF suggests a reference to the use of public procurement and public funds in paragraph f) as a way of promoting Universal Design in goods, services, equipment and facilities.
When implementing the General State Obligations, special attention should be given to those disabled people more in danger of exclusion and discrimination, including women with disabilities, disabled people from ethnic minorities, disabled people living in rural and remote areas.
Paragraph 2 of this article is considered of vital importance. It could be strengthened through a reference to the concept of partnership and to the provision of measures which would strengthen the role and capacity of representative organisations of persons with disabilities to play an active role in the implementation of the Convention.
In this article, the expression “all individuals” should be substituted with “men, women, boys and girls with disabilities” to clearly incorporate gender prospective in the general obligations. The modified article would thus read as “States Parties undertake to ensure the full realisation of all human rights and fundamental freedoms for all “men, women, boys and girls with disabilities” within their jurisdiction without discrimination of any kind on the basis of disability.
By including a provision expressly obliging states to give effect to the rights contained in the convention, the Working Group text is reflective of the principle that implementation of international human rights is essentially a domestic issue. In addition, Draft Article 4 also includes the important prohibition against discrimination in giving effect to the rights.
Footnote 18 highlights the concern of some Working Group members over the inclusion of a paragraph on remedies because the draft text includes coverage of civil and political rights as well as economic, social and cultural rights. Although the International Covenant on Economic, Social and Cultural Rights does not include a specific provision on remedies, the Committee on Economic, Social and Cultural Rights has stated that the provision of judicial remedies is “among the measures which might be considered appropriate, in addition to legislation,” and that “the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies.” (Cf. Committee on Economic, Social and Cultural Rights, General Comment 3, para. 5) Therefore, the absence of an explicit provision on remedies in the International Covenant on Economic, Social and Cultural Rights does not preclude the Ad Hoc Committee from including such a provision in this convention, and the exclusion of such a provision re. civil and political rights would depart from human rights law. (Cf. International Covenant on Civil and Political Rights, Article 2(3))
Footnote 19 questions how the progressive realization of economic, social and cultural rights should be addressed in the treaty. As Footnote 19 highlights, the Convention on the Rights of the Child (Article 4) provides language that may be helpful, as it clearly indicates which rights in the Convention would be subject to progressive realization. It should also be noted that Article 4 of that convention also references the utility of international cooperation in implementing rights.
Footnote 20 raises the question of whether the phrase “within their jurisdiction” may be too broad and inclusive? The Ad Hoc Committee may wish to consider the alternative phrasing “within its territory and subject to its jurisdiction.” (Cf. International Covenant on Civil and Political Rights, Article 2(1))
Draft Article 4(1)(a) addresses the types of actions to be undertaken by states to “give effect to this Convention” as well as those that should be changed or discouraged because they are “inconsistent with this convention.” In order to avoid ambiguity, or an overly limiting interpretation that could discourage flexibility in implementation of the convention, the Ad Hoc Committee might consider the alternative phrasing “inconsistent with the object and purpose of this convention.” (Cf. Vienna Convention on the Law of Treaties, Article 18) This alternative phrasing may also be usefully incorporated in Draft Article 4(1)(d), which references acts or practices “inconsistent with this convention.”
Draft Article 4(1)(c) addresses the mainstreaming of “disability issues.” Reference may be made to the UN Standard Rules usage of the term “disability aspects,” which is a broader and more inclusive formulation. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 14)
Draft Article 4(1)(e) is consistent with international human rights law in its coverage of private actors. (Cf. Convention on the Elimination of All Forms of Discrimination Against Women, Article 2(e); Convention on the Rights of the Child, Article 3(1)) Such coverage is particularly important given increasing privatization in the provision of goods and services once provided by public entities.
Draft Article 4(1)(f) addresses important issues of accessibility that, as indicated in Footnote 22, may perhaps be better elaborated in Draft Article 19 (Accessibility).
Draft Article 4(2) requires development of implementation measures “in close consultation with, and include the active involvement of, persons with disabilities and their representative organizations.” This important concept could be further developed through incorporation of the principle of “partnership with disabled people,” (Cf. New Zealand’s View of a Convention on the Rights of Disabled People, para. 28) as well as measures to ensure that people with disabilities understand their rights under the convention and are able to participate in this partnership process. (Cf. Convention on the Rights of the Child, Article 42)
The Ad Hoc Committee may also wish to consider the suggestion made in the Working Group that Draft Article 4 include a paragraph addressing national-level monitoring of the implementation of the convention. Such a provision would reinforce the principle that domestic implementation is a State obligation.
The text should not diminish PWD:s rights compared to the rights given in the CCPR, the “Convention on the Civil and Political Rights”.
”… ensure the full realisation of all human rights and fundamental freedoms for all individuals within their jurisdiction without discrimination…”. It can be interpreted as the rights cover PWD who are non-citizens, but not other non-citizens.
It should be noted that paragraph 2 does not replicate article 18 paragraph
c, and that they are complementary. Provisions requiring the involvement
of people with disabilities in policymaking and programmatic action are
also included in specific issue areas, in article 5(2)(d), article 6(c),
and article 21(m). The Ad Hoc Committee may wish to consider whether any
other issue areas require particular emphasis on the obligation to consult
with people with disabilities and their representative organizations.