Daily Summary related to Draft Article 3
Volume 3, #7
The Coordinator noted that the previous decision to leave the definitions to the end was based on the prediction that many of the questions related to definitions would be addressed and resolved during discussion of the substantive articles, which, in fact, had been the case. For example, the definition of accessibility is largely dealt with on the article on accessibility and will be further clarified during the small group meeting at lunchtime. The next definition is “associate”. The Coordinator suggested that this is a definition that could be referred to the Ad Hoc Committee (AHC), especially since this term does not appear in many places in the text.
Venezuela noted that the term “persons with disabilities” does not appear in the Chair’s text and suggested that the following definition of this term (from Article 2 of the draft document Venezuela had submitted – p. 35 of the Compendium) be added to the text: “Persons with disabilities” means persons with any form of physical, intellectual or sensory impairment, whether structural, functional or both, which constitutes permanent or temporary limitation, restriction, obstruction or dysfunction in respect of human beings’ relationship to their environment that may be caused or aggravated by the economic and social environments.”
The Coordinator noted that the Chair’s text offers a definition of “disability” as do several other texts while others put forth definitions of “persons with disabilities”.
Inclusion International stated that dealing only with “persons with disabilities” would be too limited and that the Chair’s draft also refers to “associate[s]” and elaborates on the other people who are affected by disability as well as includes associates under the non-discrimination section.
Ireland drew attention to the EU comments on this subject (p. 28 of the Compendium) which assert that for the purpose of the convention it not necessary to define disability. The first reason is that numerous attempts have been made, which are all complex and not necessarily compatible. Secondly, an attempt to define disability may either lead to a very restrictive interpretation of the convention as a whole or else be so vague that it will be virtually impossible to implement on the part of governments.. In addition, in terms of implementation, different approaches to the concepts of disability may be necessary. In Ireland, a broad definition is appropriately and necessarily used in its legislation on equality. On the other hand, when dealing with assistance and entitlements, a more specific definition is essential. For all these reasons, refraining from defining disability in the convention seems the wise course.
World Network of Users and Survivors of Psychiatry stated that the most important thing is that the text ensure that people with all different types of disabilities, including people with psycho-social disabilities, are understood to enjoy the rights and be protected by all of the articles in the convention. The Venezuelan definition does not mention psycho-social disabilities, which are not the same as intellectual disabilities. The Standard Rules does cover people with psycho-social disabilities, although it does so under the term “people with mental illness” instead of the preferred “psycho-social disabilities”. It would not be acceptable for this convention to contain less than the Standard Rules in this regard. WNUSP cautioned against defining disability using language that refers to “limitations on the ability to perform essential activities of daily life.” This has been done in domestic disability law in the United States and has led to excessive litigation to determine whether or not a person is sufficiently disabled to actually benefit from the anti-discrimination legislation. This litigation has resulted in narrow interpretations of who is covered by this law and people with disabilities are being denied the protections to which they are entitled. This potential for poor or narrow interpretation must be avoided at all costs in the convention. Finally, if a definition is included, a social and human rights model of disability must be promoted instead the medical model.
Sierra Leone noted that it would be impossible to reach consensus on a definition of disability. Many forms of disability are already covered and explained in the various articles. The definition from the Chair’s draft should be included in the text the Working Group (WG) submit to the Ad Hoc Committee (AHC), with a note urging the AHC to consider all types of disability in deciding on a definition.
The Coordinator supported that suggestion, especially in light of the fact that the AHC will undoubtedly make many changes to the text submitted by the WG. Therefore, striving to get the wording exactly right is a use of time that may be in vain and the WG might better dedicate its discussion to ensuring that the many critical issues related to definitions (including whether or not the convention should contain a definition of disability) are fully and clearly identified in the document that it submits to the AHC.
Columbia drew the attention of the WG to the World Health Organization’s recently revised and adopted International Classification of Functioning of Disability and Health (ICF). Revised after extensive international research and analysis, the ICF contains several domains that describe body functions and structures, activities and participation and incorporates social and environmental factors. The ICF was used in the development of the definition of disability in the Bangkok text. The WG could place the definition of disability within the context, or the purview, of the WHO or simply mention that the definition of disability should be focused on this international instrument.
The Coordinator noted that the Bangkok draft offers three options for a definition of disability, which highlights the complexity of the topic and the difficulty the WG faces in arriving at a definition at this meeting.
World Federation of the Deaf supported the EU recommendation that no definition be included in the convention. Focusing on the limitations and deficiencies of the disabled person is in conflict with the purpose of the convention since the convention should address and attempt to rectify the social and environmental factors that inhibit persons with disabilities from claiming their rights in society. In discussing a definition, the ICF approach is a good one because it concentrates not on the disabled person himself or herself but on the environment and how to make it accessible. However, it is hundreds of pages and is very complex and it is difficult to see how it would be useful to the convention except as a reference. In conclusion, the articles of the convention cover the relevant issues and including a definition is not necessary and may, in fact, create problems in the convention.
World Federation of the DeafBlind supported the proposal that no definition be included in the convention but that the ICF be referenced.
Japan urged caution in developing a definition, believing that the Chair’s draft may be too wide in scope. For instance, how is “temporary” to be interpreted with respect to disability? Japan noted, however, that it is not opposed in principle to including a definition in the convention.
Jamaica expressed that it had a different view from previous speakers and believed that the convention needs a baseline definition to serve as a guide for the document. Certainly, it should be made clear to States that the definition cited is not restrictive. When drafting legislation, States can refer to definitions of other States or those developed by organizations. However, it would be very difficult to rationalize drafting a convention without any kind of baseline definition.
The Coordinator noted the wide range of views and the need to develop draft language for the report that reflects the different options for addressing the definition of disability and the arguments behind them. This language will be circulated to ensure it addresses everyone’s concerns.
The Coordinator referred back to the question of the word “associate”, which has come up several times in discussion and which Inclusion International has indicated should not be ignored. This concept does not appear to be addressed in the draft language on Equality and Non-Discrimination, but perhaps should be included in that.
Thailand supported keeping “associates” in the definition of discrimination itself, even if this term does not otherwise appear in the body of the convention. “Associates” could be applied to people who are related in one way or another to persons with disabilities, and such an inclusive term could help avoid elaborating a long list of people. It is also a neutral term that does not have custodial or demeaning connotations.
Uganda noted that the reason to define a term in this kind of document is to avoid having to reiterate its meaning it every time it is used. Therefore, defining it or not depends on how often it is used in the text.
The Coordinator suggested that Inclusion International’s point regarding this issue was less about the definitional or technical drafting point and more related to the substantive issue of addressing potential discrimination against associates of people with disabilities. The Coordinator recommended including a footnote on this in the text on Equality and Non-Discrimination indicating that this point needs to be addressed subsequently.
Inclusion International indicated support for this suggestion.
Disabled People’s International suggested extending substantive point regarding associates to include parents of children with disabilities. The Coordinator said that he understood “associate” to include parents and intended that the AHC take up the issue of associates in the broadest sense.
Morocco asserted that the convention should include both a definition of “disability” and a definition of “persons with disabilities” in the convention and offered to submit suggestions for each in writing to the Secretariat.
World Federation of the DeafBlind noted semantic inconsistencies among the various options for defining disability as a clear indication that much more work is needed on this issue.
Ireland commented that the convention should focus firmly persons with disabilities. Others who may help or otherwise be related to persons with disabilities may be mentioned but we need to be very careful about extending the scope of the convention too far. The definition of communication also is somewhat unclear in terms of referring to the act of communicating or modes of communication.
China stated that general issues that appear repeatedly should be defined in the convention but certain technical issues could be left aside.
Noted that, regarding Ireland’s point on communication, we should focus on modes or means of communication, since communication itself undoubtedly has a well-established and accepted definition. In the detailed list of modes of communication, tactile sign language should be added as it is important for deafblind people.
The Coordinator observed that communication is also covered in the substantive articles in the Text Proposed by the Coordinator on Freedom of Opinion and Expression and Access to Information (found in CRP3/Add 5) but not defined in them. He recommended that the discussion on the definition of communication be deferred until the second reading of CRP3/Add5 in the early afternoon.
The Coordinator noted many terms in the definitions section are addressed
and clarified in various revised articles contained in Texts Proposed
by the Coordinator and that the discussion on definitions could be concluding,
understanding that there notes on certain issues would be included in
the documents submitted to the AHC.
Volume 3, #10
The Coordinator referred members to the text facilitated by Mexico on definitions (A/AC.265/2004/WG/CRP.3/Add.25) for this discussion.
Venezuela proposed that the Convention include a definition of “PWD” because they are the subject of the Convention. Footnote 5 states that some members opposed a definition on disability within this term, but the delegate “did not recall hearing views that there was no need to have a definition.” If this is the case, the second part of the footnote should be deleted.
The Coordinator commented that a number of delegations thought it best not to define this term while others held the view expressed by Venezuela. Unless this has changed, the footnote needs to reflect all positions on the issue.
The Coordinator reminded members that the elements in this article will depend on the substance of the rest of the articles. Because the WG had not ultimately decided on what will go into all articles, which is the job of the AHC, it can only discuss this article in light of what we will put forth to the AHC.
Venezuela clarified that it did not propose the inclusion of a definition of “disability” in its previous intervention. Footnote 5 refers to disability but is linked to the term “PWD”. While it is true that some members did not want to see disability defined, it did not recall any opposition to seeing disability defined within the term “persons with disabilities”. Venezuela proposed the inclusion of a definition of PWD.
The Coordinator asked if it was possible to define is it possible to define PWD without defining disability.
Venezuela said that it was possible if you defined disability in general terms that would be acceptable to all languages and cultures. It is easier to define PWD than to try to define disability. The WHO was not able to generate one definition of disability, but there can be a universal understanding of PWD. They are the subject of the Convention and so it is necessary to define who they are.
The Coordinator noted that a definition would be useful if they were able to come up with one that would reach general agreement.
Venezuela referred to their draft text for a definition of PWD (page 35 of the compilation). The definition is not the sole definition but might be an appropriate basis for trying to define the term.
Ireland commented that defining PWD was not different than defining disability because it just adds “persons with.” A definition of disability should not be included, but if it is included, a definition of PWD is not needed. It would be difficult to define what a person is. Also, what is the purpose of including a definition of language? The article should define words that are not understood in the Convention. The definition of language is limiting and unnecessary; there was not disagreement on whether or not to include the definition.
The Coordinator said the definition reflected the discussion on the distinction between Braille and sign language. Sign language is a language while Braille is not.
WFDB noted that “communication” and “language” were not definitions and that the reference to “finger Braille” should be changed to “tactile communication.”
China supported inclusion of a definition of PWD because the Convention is about the protection of the rights of persons, specifically PWD.
The Coordinator noted that the AHC will thoroughly discuss definitions of disability and PWD.
Jamaica supported a definition on disability. If disability is defined, it would only be necessary to state “a person with disability is regarded as”….before the definition. There is a growing consensus that a definition of one of these terms is needed though there seems to be more support for a definition of disability.
Asia Pacific Disability Forum (formerly Disability Australia Ltd) noted that the merits and demerits of defining disability. The title of the Convention specifies the subject of the Convention. If the article elaborates on the term further, there would be two risks. It would either limit or widen the scope of the term. This question of inclusion is better left to the AHC. Another option is to have States come up with criteria for definitions or use existing ones, which would be a more flexible approach.
The World Federation of the Deaf (WFD) asked for clarification on the term “oral-aural” in the language definition. There are languages that are only spoken, while there are others that are just in written format today, such as Latin. A definition of sign language can also be provided because linguists have studied this issue. It will be difficult to define disability. For example, there are many types of deaf people. Some have intellectual disabilities or Cerebral Palsy as well. Some lose their hearing later in life while others are born deaf. It is a complex issue and the inclusion of a definition of the term will make the Convention too complicated.
South Africa suggested that it was sufficient to define terms in the chapeau of the article which discusses that term. This will guard against repetition. The article on definitions should contain definitions of terms that do not have separate articles covering that topic, such as communication, language, sign language, and disability and/or PWD.
Lebanon suggested the replacement of “health” for “classifications” in footnote 4, because the sentence refers to the WHO’s ICF. Definitions and classifications are two different concepts and should not be mixed.
Morocco commented that it was hard to understand how one could negotiate, discuss, and prepare this Convention without defining PWD or disability.
The Coordinator concluded that members had a good discussion on this
issue which would be discussed further in the AHC.