National Human Rights Institutions *

(Comments made at the third session and submitted to the UN Secretariat are posted below. For more information please contact enable@un.org)

Interventions by National Human Rights Institutions on Articles 1-24 of the working group draft

Mr. Chair, thank you for the opportunity.

The National Human Rights Institutions would like to support the formulation put forward by the European Union.

We believe that the EU formulation provides more legal safeguards in relation to privacy and confidentiality.

We would however, like to make two slight amendments:

1. Firstly, we believe the words “where necessary” in the chapeau are redundant and suggestive of a degree of discretion and therefore would suggest their deletion
2. Secondly, we would like to submit an amendment to (c) – which would read as follows:

Ensure that the collection of information is done in partnership with persons with disabilities, their respective organizations and all other relevant stakeholders.

Article 1

Thank you Mr. Chair, the National Institutions would like to thank the working group for the draft text before us.

The National Institutions would like to support the current formulation of Article 2. We believe that the word “effective” should be retained.

Its removal we observe would weaken the purpose of the convention and may run the risk of it being theoretical.

The inclusion of the word “effective”, seeks to ensure that substantive equality is in fact enjoyed by people with disabilities.

Furthermore, we would seek the insertion of the word “ALL” before persons with disabilities.

Article 2

In relation to Article 2, National Human Rights Institutions propose the following amendments:

a). Insert the words “respect for human” before the word dignity
b). Add “non – sexism” after “non-discrimination”
c). Add “participation” after the word “full”
e). Add “affirmative action” after “Equality of opportunities”
f). Add “Accessibility”. We also propose that the article should include the principle of reasonable accommodation, and the principle of indivisibility and interdependence of human rights

See the EU proposals that seek to delete Article 4 (1).

Article 4

Thank you Chair; there have been a few interventions this afternoon that seek to delete Art. 4(1) particularly, the chapeau containing the phrase “within their jurisdiction”

The National Institutions submit, Chair, that this deletion could potentially discriminate against people with disabilities who may for instance be asylum seekers or those who are not citizens.

Chair, while this may not be its intention, the removal of this chapeau could result negatively in that not all people with disabilities would enjoy all their human rights and fundamental freedoms.

Further to that, we believe that its removal would substantially narrow the scope of this convention to one that focuses almost exclusively on non-discrimination and thus moving away from a comprehensive international legal instrument.

We would therefore support the retention of Art. 4(1)

Asia Pacific Forum of National Human Rights Institutions

Article 4
Obligations with respect to economic, social and cultural rights

Proposal: amend proposal by Israel to read as follows:
3. In relation to [economic, social and cultural rights/the rights set forth in articles *** of this Convention], States Parties undertake:
(a) to give immediate effect to the aspects of those rights which are capable of immediate implementation (including, but not limited to obligations of non-discrimination in the enjoyment of those rights); and
(b) in relation to other aspects of those rights, to take steps to the maximum of their available resources, when needed within the framework of international cooperation, with a view to achieving progressively the full realization of those rights by all appropriate means.

Remedies
Proposal: include in article 4 the following paragraphs:

4. Each State Party to this Convention undertakes: (a) To ensure that any person or class of persons whose rights or freedoms recognized in the Convention are violated shall have an effective and appropriate remedy (including as the right to just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination), whether the violation has been committed by persons or entities acting in an official capacity or by private persons or entities;
(b) To ensure that any person claiming such a remedy shall have his or her right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State,; and
(c) To ensure that the competent authorities shall enforce such remedies when granted.

5. States Parties recognize that access to effective remedies may require the provision of free legal assistance to persons with disabilities and the modification or flexible application of existing laws and practice regulating matters of procedure and evidence.

25 May 2004

Article 4 (summary)

APF on behalf of National Human Rights Institutions:

We would like to address two issues. The first is the absence of an explicit provision on remedies. In a convention, the purpose of which is to ensure the effective and practical enjoyment of rights, we consider that a provision on remedies is important. The Bangkok draft and Chair’s draft text for the Working Group contained such a provision.

Concern about the inclusion of a provision on remedies reflects a view that it would be inappropriate to include such a provision in a convention, which guarantees economic, social and cultural rights. However, this fails to reflect the developments of the past 20 years within the UN system – in particular the work of the Committee on Economic, Social and Cultural Rights (CESCR) – which make clear that some aspects of economic, social and cultural rights are justiciable – these include guarantees of non-discrimination but are not confined to those aspects.

The second point is a related one. The proposals so far made in relation to economic, social and cultural rights emphasize the progressive realization of these rights, without regard to the developments of the last 20 years, which recognize that many aspects of economic, social and cultural rights are capable of immediate implementation.

We believe the convention should reflect these developments and note that the Bangkok and Chair’s draft text contained a provision of this sort.

Article 7

Thank you, Madam Chair.

The National Human Rights Institutions would like to suggest the deletion of Article 7(3) from the current Working Group draft.

Primarily because it allows for too much discretion to the State.

Also Chair, we note that this paragraph as referred to in footnote 26 does not appear in any of the core international human rights treaties and therefore see no justification for its retention.

In Article 7(4) the thrust of the provision is to secure the right to equality for people with disabilities and makes reference to the taking of appropriate steps. However, the wording “Unless such measures would impose a disproportionate burden” would substantially allow States to renege on the obligation to secure equality, which we argue should not be qualified.

Article 9

National Human Rights Institutions consider Article 9 as very important and should remain as strong as possible. The present text of the Working Group provides more elaborate statement on the principle of equality before the law for people with disabilities as well as legal safeguards against possible abuse. We therefore propose that any amendments for strengthening the article should be done within the text. In keeping with this, we recommend that Article 9 (c) (i) should be strengthened by adding the following at the end of that paragraph:

“and provided that such assistance is in the best interest of the person concerned”

Article 10

National Human Rights Institutions would like to support the European Union’s proposal to include another paragraph in Article 10 as a new paragraph 3 which would provide legal safeguards against arbitrary institutionalization which we believe is a deprivation of the right to liberty and therefore illegal. However, in the event that a restriction of liberty is necessary, procedures established by law and legal safeguards must be applied. The Convention should require a review of domestic legislation or the passage of legislation to ensure that all procedures and legal safeguards ensure the best interests of the person with disability in accordance with the spirit of this convention.

Intervention on Article 12

Thank you, Mr. Chair; National Human Rights Institutions feel very strongly that Articles 11 and 12 should remain as separate Articles and not merged as proposed by some delegations. The focus of Article 12 is on abuse and violence, an occurrence which remains all too often in the lives of people with disabilities.

We would particularly like to support the proposal made yesterday and this morning by Morocco that suggested the importance of monitoring by independent bodies.

We believe that national monitoring mechanisms, such as National Human Rights Institutions, or similar structures, could contribute immensely to the monitoring of violations in many national institutions, this function would already fall within their mandates.

Chair, as national institutions, we will be making a more detailed intervention on monitoring under Article 25

Article 13

Thank you, Chair; I speak on behalf of the Asia-Pacific Forum of National Human Rights Institutions and on behalf of National Human Rights Institutions generally.

We suggest separating freedom of expression and opinion from freedom of access to information. This is because the enjoyment of each of these freedoms may have different implications and require different means, both with regard to obligations of the State and the elements of the programmes by which persons with disabilities could be guaranteed effective enjoyment of these freedoms. Furthermore, for persons with disabilities, access to information has serious implications for the enjoyment of all of other rights and therefore needs to be tailored to reflect the diversity of persons with disabilities and their circumstances.

We appreciate concerns expressed by several delegations regarding the application and monitoring of various provisions of draft article 13 as regards private entities and the financial obligations the provisions may entail. With a view to overcoming such apprehensions, we propose additional text for inclusion in Article 13, which takes into account the government’s regulatory role. The proposal reads as follows:

“To guarantee equal access to information by persons with disabilities, States Parties shall undertake review, amendment and modification of regulations and by-laws established to regulate production and distribution of information, telecommunications, media and broadcast services”.

We also encourage States to take advantage of the accessibility standards established by the World-Wide Web Consortium, the International Telecommunications Union, I.S.O. and similar standard-setting bodies. This would not only reduce the financial burden of creating accessible information products and services but would also efficiently address the systemic inadequacies that handicap persons with disabilities in the equal enjoyment of their freedom of access to information. Above all, such a provision would ensure equal participation of private entities in fulfilling their obligations towards persons with disabilities.

Article 14

Thank you, Chair. We would like to support the New Zealand addition of the words “retain their fertility” in the first sentence of 2 (c).

This not only provides protection against forced sterilization but also forced permanent contraception of disabled persons.

Chair, we would also like to amend paragraph 2 by inserting the words “including reform of family laws containing discriminatory provisions” after the words “family relations”

We propose that the first line of 2 (b) be amended to read “persons” and the words “men and women” be deleted to be consistent with 2 (a)

In paragraph 2 (d) add “where necessary” at the beginning of States parties shall render appropriate assistance… add to the end of that sentence “and ensure equal access to mainstream services supporting parents”

Article 15

National Human Rights Institutions strongly support the provisions of Article 15 and does not want it weakened. We support the proposals of New Zealand on this Article as it makes the Article much clearer and stronger in protecting the principles of living independently within the community.
Article 16

Mr. Chair, Thank you for the opportunity. The National Human Rights Institutions would like to highlight the importance of having a strong Article that promotes and protects the rights of all children with disabilities. We would also like to see the concepts of nurturing, protecting and empowering families and or care-givers more prominent.

Chair, as National Human Rights Institutions, we are collectively of the view that Article 23 in the Convention on the Rights of the Child (CRC) has not effectively addressed the rights of children with disabilities and neither has the broader text of the CRC.

We therefore seek an Article that will address the shortcomings of the CRC in this respect and ensure that children with disabilities access their rights.

Chair, we are mindful of the fact that it is not desirable to have a mini-CRC in this convention but there are specific issues we think pertain to children with disabilities and should be articulated in this Article.

Chair, with your indulgence, we make these few comments:

- The current formulation of this Article is quite negative and projects children with disabilities as liabilities and not as children with rights. We therefore would propose a more positive thrust to this Article.

- This Article is full of qualifiers, which weaken the rights of children with disability. We believe that the “escape clauses” such as subject to available resources and introducing eligibility criteria should be deleted.

More particularly, we suggest the following:

Article 16

We would delete the words:

- Paragraph 1 – “without discrimination of any kind on the basis of disability”

- Paragraph 2 – seek the deletion of the word “should enjoy” and propose replacement with the words “have the right”

- Paragraph 3

(a) We would like to insert the word “identification and” after the word “early”
(b) We offer the following text:

“the provision to the child and those responsible for their care, of assistance for which application is made and which is appropriate to the child’s condition to the circumstances of the parents or caregivers”.

We also offer the following:

- Paragraph 4 - All children with disabilities are guaranteed the right to free basic services that are designed to ensure the child achieves the fullest possible social integration and individual development, including his/her cultural and spiritual development including inter alia: education, training, health-care services, nutrition, comprehensive (re) habilitation services and recreation opportunities.

- Paragraph 5 - We propose the deletion of the words “other persons caring for” and replace it with “care-givers”. And then, deletion of the word “referrals” (which surely would be covered by the words “appropriate information”).

Similarly as suggested by Uganda, we would like to introduce paragraph 6:

“A child’s best interests are of paramount importance in every matter related to the child”

Finally, we would like to support the inclusion of paragraph 7 of the Save the Children Fund proposal.

Chair, we would like to see introduced, an additional paragraph similar to Article 12 of the CRC that addresses children’s participation.

Such an article will assist in monitoring.

Article 17

On behalf of National Human Rights Institutions and more particularly on behalf of the Asia Pacific Forum of National Human Rights Institutions, I would like to express our concern in 4 specific areas that are vital to the enjoyment of the right to education without any discrimination and on the basis of equality by all persons with disabilities.

1) We would recommend careful use of the concept of progressive realization in relation to the right to education, as majority of the states are committed to free and compulsory education for all, though limited to elementary education. In view of this we recommend shifting article 17 (2)(c) to article 17(1).

2) We would encourage minimizing any bias in the treaty for a particular approach to education. We therefore recommend that the text of article 17(3) should be placed after article 17(2)(a). This would indicate respect of and freedom of choice and autonomy for persons with disabilities as far as the selection of educational options is concerned.

3) The National Human Rights Institutions attach great importance to linguistic rights and appreciates the recognition of this right in the context of education. Therefore, we would support retention of the text as it appears in article 17(4). While we greatly appreciate the EU’s effort and skillful crafting of an alternative Article 17(4), we consider the working group text is clearer and recognizes in explicit terms the importance of transacting education in the language and script most conducive to the needs of the persons with certain disabilities.

4) And lastly, we are satisfied to note the support extended by several member states in recognizing the importance of access by people with disabilities to various forms of education.

Article 19

Thank you chair, for the opportunity. On behalf of National Human Rights Institutions, I would like to offer a few comments.

National Human Rights Institutions recognize the importance of Article 19. We see this article as fundamental in ensuring that people with disabilities are able to effectively participate in society and necessary for achieving equality.

We therefore believe that this article cannot and should not be ambiguous or vague.

More particular, in relation to
- 1 (2), we propose the deletion of the word “public” and replace it with the word “all”. We seek the deletion of the words “for public use”
- We would like the word “road” to be moved after the word “including”.

Lastly in this subsection, we would like to see the deletion of the words “publicly owned” before the word “workplaces”.

Chair, private buildings should not be exempt from ensuring accessibility just as they are not for example, exempt from complying with fire safety requirements or need for emergency exits in buildings.

These are standard requirements articulated in domestic regulations and should be expanded to include accessibility for persons with disability as a standard requirement.

Chair, in this vein, we would like this article to make provision for the development of regulations on accessibility at a national level.

In regards to article 2 (c), we would like to delete the word “public” appearing before the word “facilities” and include at the end of that section the words – “and infrastructure”.

Chair, the proposed deletions would render paragraph 2 (d) redundant. And so, we would seek its deletion in its entirety.

Finally, at a conceptual level, we recognize that the concept “Universal design” is well known and understood in the disability sector. However, there may be a danger in the wider international context of it being seen as the lowest common denominator and therefore would seek its deletion.

However, if paragraph (3) includes a definition of universal design, we believe that these concerns would be allayed. We note that the EU has sought to address this.

Lastly, we seek the deletion of paragraph (2) (h) and would like to underscore that accessibility should also cover the recognition of sign language as a language.

Article 20

Chair, National Human Rights Institutions would like to propose that Article 20 be titled “Liberty of Movement” we believe that this introduces an emphasis on a rights-based approach and moves away from the medical model.

We also seek the deletion of the words “with the greatest possible independence” in the chapeau.

In keeping with our previous thinking regarding “Universal design”, we seek the deletion of subsection (6) as well as the deletion of (g) which we believe should be in the general obligations and not repeated in every Article.

Article 21

The National Human Rights Institutions support the splitting of Article 21 into an Article on health and a separate Article on rehabilitation. This would reflect an understanding that rehabilitation is not a concept limited to the area of health. We therefore support the tenor of the Israeli proposal.

Article 22

The National Human Rights Institutions feel this Article while being very important is generally too prescriptive for an International Convention. It uses terminology and concepts, which do not allow for flexibility, and may be fixed at one point in time.

Mr. Chair, we support the chapeau for the simplification of this Article as suggested by New Zealand with one change. We would substitute the word “protect” for “safeguard” in the second sentence. We would also propose to re-word (c) in the New Zealand draft and (d) in the working group draft to read ensure “that employers hire persons with disabilities”, deleting the rest of the sentence.

Article 23

Thank you chair for the opportunity. National Institutions are acutely aware of the importance of the right to an adequate standard of living particularly in the context of disability.

Chair, the thrust of our intervention seeks to highlight as other distinguished delegates have, that the two rights before us:

i. the right to social security
ii. the right to an adequate standard of living are recognized as separate rights under existing international human rights law.

We therefore would like to align ourselves with the suggestion to swap the chapeaus around so that Article 23 (2) becomes Article 23 (1) – invert the order of the chapeaus and support New Zealand’s point on having the title reflect the change.

Chair, the right to an adequate standard of living is broader than the right to social security. The right to social security can be seen as a component or a means to attaining an adequate standard of living.

A few specific comments:

i. in the existing chapeau (1) we suggest the deletion of the word “appropriate” and replace it with the word necessary
ii. and the word “safeguard” with the word “protect” which speaks to the state obligations.

In the current 1 (2) we offer the following formulation:

i. ensure the necessary services, devices and other forms of assistance for persons with disabilities

In (c), we seek the deletion of the words - with severe and multiple disabilities, and in the same article end the sentence after the word respite care.

With respect to (d), we suggest the word “accessible” be inserted before the word governmental housing.

Again here, we would like to see the paragraph end after the word programmes [in short, deleting the words including through earmarking percentages of governmental housing].

In (f), we recognize the complexity of this subsection and would like to see states undertake services and address discrimination.

Chair, we would like to see the access to clean water retained as elaborated in general comment 15 by the committee of the ICESCR. While we recognize the point made yesterday about retaining the language of the convention, we believe that 20 years on the right to water is a basic service.

Finally in relation to (e), we suggest a reformulation of this paragraph. We do not think a blanket tax exemption is desirable. We believe that tax exemption should be linked to disability related expenses. This we believe would go a long way in recognizing that people with disabilities are equal citizens, with rights and responsibilities.

Article 24

The National Human Rights Institutions would see merit in splitting Article 24 into two separate Articles dealing respectively with cultural life on the one hand and recreation, leisure and sport on the other. We consider that the present close association of these separate rights in a single Article does not lay sufficient emphasis on the right to cultural life.

The National Institutions would also emphasize the importance of retaining paragraph 3, recognizing and supporting the specific cultural and linguistic identity of persons who are deaf (or deaf blind)

Intervention on international cooperation

National Human Rights Institutions are of the view that there are many forms of international cooperation that may support national efforts to realize fully the human rights of persons with disabilities. One effective form is cooperation between national human rights institutions, which have been able to share their substantive and technical expertise and other experiences with each other in a number of areas. This has happened on a bilateral basis, as well as through regional fora such as the Asia-Pacific Forum on National Human Rights Institutions, the Secretariat of the African National Institutions, and other fora.

We consider that cooperation of this sort – involving the exchange of information and experience among and between developing and developed countries – could be extremely helpful in the implementation of this convention, and we ask that the role for national institutions be recognized in this context, if a specific article on international cooperation is included in then convention.

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