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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions

Daily summary of discussions related to Article 9

UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #3
May 26, 2004

Commenced: 10:27 am
Recessed: 12:54 pm

India proposed deleting from 9(b) of “as others, including in financial matters”, and inserting instead “except as provided by law.” In 9(c), the clause “endeavor to” should be inserted prior to “ensure”. Under 9(c)(i), “to the extent feasible” should be inserted between “assistance is” and “proportional.” In 9(d), the words “endeavor to ensure” should again be inserted; and the words “as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses" should be deleted. It would be “imprudent and unfair to leave unprotected a large number of people with multiple disabilities in circumstances of abandonment, destitution, or extreme poverty and whose families desperately require assistance.” India proposed inserting this new paragraph: “The state must protect the interests of PWD who cannot exercise their legal capacity in reduced /temporarily reduced situations. In exceptional circumstances where legal safeguards are necessary, the appointment of third parties as legal guardian/surrogate may be made in the best interests of PWD.”

Japan proposed a new subparagraph after 9(f): ”Take appropriate and effective measures to eliminate physical and communication barriers and to reduce understanding difficulty of PWD in order to exercise all the rights in judicial procedure which are provided in the International Covenant on Civil and Political Rights.” They reasoned that in interrogations and tribunals, PWD -- especially people with mental, hearing and visual disabilities -- are often victims of so-called normal procedures. Due to their inability to understand what judges and interrogators are saying, PWD should be given extra protections to avoid being wrongly judged.

Syria suggested adding at the end of 9(e) the words, “bearing in mind the quality and degree of disability,” arguing that this would make the Article more realistic, applicable, and efficient.

Canada called Article 8 an important Article, and stated that it welcomes the opportunity to hear all views. They stated that the current Article has some difficulties, as reflected in the footnotes to the WG text, alluded to by other delegations including India. The main difference is a lack of consensus around what is meant by legal capacity. Canada proposed replacing the current WG draft text with the following:

“1. States Parties shall recognize that, in civil matters, adults with disabilities have a legal capacity identical to that of other adults and shall accord them equal opportunities to exercise that capacity. In particular, they shall recognize that adults with disabilities have equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

"2. States Parties shall ensure that where adults with disabilities need support to exercise their legal capacity, including assistance to understand information and to express their decisions, choices and wishes, the assistance is proportional to the degree of support required and tailored to the adult’s individual circumstances.

"3. Only a competent, independent and impartial authority, under a standard and procedure established by law, can find an adult not to have legal capacity. States Parties shall provide by law for a procedure with appropriate safeguards for the appointment of a personal representative to exercise legal capacity on the adult’s behalf. Such an appointment should be guided by principles consistent with this Convention and international human rights law, including:

"(a) ensuring that the appointment is proportional to the adult’s degree of legal incapacity and tailored to the adult’s individual circumstances; and,

"(b) ensuring that personal representatives take into account, to the maximum extent possible, the adult’s decisions, choices and wishes.”

This new language would address the lack of clarity regarding the definition of “legal capacity” by referring to CEDAW, Article 15.2. There would be no need to include 9(a), 9(b), and 9(c) equality provisions since equality would be fully covered by Article 7.

The proposed text for 9.2 comes from WG draft 9(c)(i),(ii) with important concepts of proportionality and the tailoring of support to the individual circumstances of PWD. 9.3 is included to clearly address India and other delegates’ concerns regarding what would happen when a PWD is found to have diminished or no legal capacity. Language addressing these issues is necessary for inclusion in the Article, so that critical safeguards regarding appointment of a personal representative or substitute decisionmaker for that adult are in place. Canada’s two Article revision imperatives are to incorporate proportionality, and adult choices and wishes.

China proposed to make 9(a) more concise by adding the word “equal” before “rights” and deleting the phrase “equal to all other persons.” The content of 9(b), regarding PWD having the same rights under the law, is already reflected in 9(a). Paragraph 9(e) should be deleted. The Convention should not be too detailed, but should focus on principles. Since 9(b), 9(c) and 9(d) have similar content concerning assistance to disabled, and Article 13 has specific provisions on providing information to PWD, 9(c) and 9(d) should be merged into the following text: “States Parties shall endeavor to provide assistance to PWD who experience difficulties in exercising their rights.”

Uganda suggested redrafting 9(a) to read “States Parties shall organize and ensure that PWD are individuals with equal right before the law as other persons." Under 9(b) “accept” should be replaced by “ensure." In order to provide wider areas of equality for PWD, the end of 9(b) should read: “Ensure that PWD have full legal capacity on an equal basis as others including in political, civil, social, cultural and economic matters.” In 9(c)(i) the word “interfere” should be replaced with “undermine.”

Argentina stated that this is a very important Article, and offered comments about the risk of rewriting definitions already embodied elsewhere; and also about a lack of clarity in describing how to empower PWD who need assistance. To simplify matters, Argentina supported the proposal introduced by Canada as more general, avoiding listings that may falsely imply exclusion of other types of assistance.

Thailand supported the retention of WG Article 9, but are willing to support any proposed amendment seeking to clarify confusing language. It is not necessary to replace the term "persons with disabilities" with the word "adults," as the article should address adults who have legal capacity; children normally have other legal safeguards.

Ireland stated that the EU shares many of the concerns about this Article being too detailed in certain areas and insufficient in others. The EU supported the Canadian proposal, except that there is a need at the outset of the Article for a strong statement of equality to set the framework for subsequent discussion of legal capacity. For that reason, like China and others, the EU supported rephrasing 9(a) and 9(b) to read along the lines of, “Recognize PWD as individuals with equal rights before the law, and guarantee equality before the law without discrimination against PWD” There is a difference between recognition of equal rights and guaranteed equality, and both should feature in this Article. It is necessary to return to an exploration of recognition of legal capacity by persons who need assistance, and therefore the EU supported 9(c)(i). The words after “tailored to their circumstances" should be deleted because they are unclear. The idea in 9(c)(ii) is central. Any decision in relation to legal capacity needs to be taken by independent and impartial authority, Canada's proposal in this regard deserves a close look. Paragraphs 9(d) and 9(e) are too detailed and lack clarity. As an odd mixture of ideas in these paragraphs, they should be deleted initially, and their concepts should be considered later. The issue of property is worthy of special mention, and can be resolved by keeping 9(f), but the EU remains open to further proposals in that regard.

Kenya proposed working with the WG draft text on this Article. Amendments should be made to 9(e), as follows: “Take all appropriate and effective measures to ensure the equal rights of PWD to own, inherit, use, or otherwise dispose of property.” In Africa PWD often are not allowed to own or use property. Kenya supports CEDAW language vis-à-vis property rights.

Qatar stated that this was an important Article, but difficult without a definition of disability to go along with relevant subparagraphs. Qatar would be ready to look at any relevant proposals along these lines.

Costa Rica agreed with the EU proposal to revamp 9(a) noting this Article represents a major step forward in establishing and recognising equality of PWD under the law. Costa Rica supported the Canadian proposal, especially 9.3, which deals with the problem of PWD who don’t have a chance to get representation. The reference to financial matters in 9(b) should be deleted. 9(c)(ii) requires additional language recognising the need for periodic review and revision of the decisions in question, relating to individuals that assist or may represent PWD. A subparagraph should be added, based on language found in other international instruments, as follows: ”Take necessary measures to ensure everyone whose rights and freedoms as recognized in this Convention are violated should have an effective remedy before a national authority, notwithstanding that the violation has been commited in an official capacity.” Costa Rica reaffirmed backing for proposals made by India, Canada, Ireland, and Japan.

Kuwait stressed the importance of this Article. It also affirmed the need for a juridical, legal definition of equal recognition, but adding greater detail to the text might spawn controversy and undermine prospects for the Convention. Canada’s approach in 9(a) and 9(b) might be a proper beginning of the process of amending the Article.

Mexico expressed concerns about the differences among the legal systems of various countries, some based on Roman/Continental law and some on Common/Anglo Saxon law. Under these two approaches, either a PWD is considered to have full capacity or is prohibited from certain things; there is no intermediary position. Mexico stated that its first goal was to stipulate safeguards necessary for preventing abuse; its second goal was to propose measures so that each country can adopt legislation that fits its own circumstances; and its third goal was to leave the door open, so that the Convention would not serve as a “straitjacket for more favorable laws.” Mexico further suggested that the title of the Article be changed to “Equality under the law,” and recommended that the text of 9(a) be changed to: “Recognize PWD as subjects of rights and obligations before the law, in equal conditions to those of persons without disabilities.”
Mexico considered 9(b) to be redundant since 9(a) is so broad. It considered 9(c) to be well constructed and general enough to establish the principle regarding assistance PWD may require to fully exercise their legal capacities. In this regard 9.3 of the Canadian proposal is excessively detailed. This only needs to ensure an established process under the law for applying necessary legal safeguards. Mexico expressed concern that in some countries it may not be the judiciary per se that handles these matters, but some other entity, such as in the case of tutelage over minors. Moreover, the Canadian proposal introduces a series of difficult subjective elements, such as guardians to make decisions for PWD. In Mexico, the delegate explained, a judge can decide on these situations on an ad hoc basis, and the status of legal incapacity is not irreversible. Mexico suggested that 9(d) be maintained as it is, but it stated that although a person may be fully legally capable, he or she might need juridical backing to understand certain things. Mexico considered 9(e) to be excessively detailed and thought that certain elements of it could be worked into 9(d), although Mexico agreed with the EU on deleting 9(e) from the text. Mexico also suggested that the end of Convention should contain an Article as a safeguard clause, based on those in other human rights instruments, stipulating that no provision in this Convention shall undermine the provisions of any domestic law more favorable to the rights of PWD. Finally, Mexico welcomed Japan’s proposal, but felt that it could be covered by a general provision, as it would otherwise need to be infused into all the Articles of the Convention.

Viet Nam suggested adding “if the PWD are in need” after “their own financial affairs.”

India expressed its support of the Canadian proposal.

Sierra Leone noted that PWD gave significant contributions to this Article and asserted that it is important to review the footnotes for this article when considering it. It stated that the Article could end after 9(c)(i), as it recognizes PWD as individuals, and agrees with Uganda’s proposals in this regard. There must be established legal procedures within the jurisdiction of each state to ensure the rights of PWD. It cautioned that the Committee should avoid legal commentary in reviewing this Article. The Convention cannot include everything; the Committee should work within the WG draft.

New Zealand stated that the Canadian proposal seemed to capture more clearly some of the ideas already contained in Article 9, but does not contain ideas expressed in 9(e) and 9(f). While further clarity can be brought to the Article, the Committee should recall why 9(e) and 9(f) were included in the draft in the first place. New Zealand then recalled Articles 13 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was an effort to correct the historical presumption that women were not capable of owning property or exercising legal capacity; there is a similar presumption facing PWD which should be corrected with a similar level of detail. New Zealand stated that while specific issues of loans, mortgage, and credit could be incorporated into Article 15, it would like to see other important concepts retained in the text of this Article. New Zealand then pointed out that the Canadian proposal is the only one explicitly stating the important safeguard that only a court can deem a PWD to have reduced or no legal capacity, though the WG's draft hints at it. India’s proposal mentions guardians or surrogates, which leaves out the possibility that a person can be appointed to exercise legal capacity for a PWD only for a limited time or in a limited function.

Liechtenstein did not agree with the placement of the Article and suggested that it would be more appropriately placed after Article 7, and remarked that the ordering of Articles seemed to be a problem throughout the draft. It also agreed with the Canadian proposal, especially surrounding the issues of equal legal capacity in general and the provisions and safeguards for those who need assistance. The WG draft did not address personal representatives or guardians. The AHC should work with the Canadian proposal, but should not forget other ideas that were contained in the WG draft or suggested later, such as the right to have and dispose of property.

Serbia and Montenegro suggested working with the EU draft of 9(a) and accepted Canada’s proposal from 9(b) on; and suggested adding to 9.3 of Canada’s proposal “and with the application of relevant safeguards, including provisions for review.” PWD should enjoy equal rights to property without discrimination. Serbia and Montenegro agreed with New Zealand that this might not be the right placement of the Article, and proposed that the Article retain the last subparagraph.

Jordan called this a very important Article that needs serious revision and supported the Canadian proposal, especially point 3; and Jordan proposed the addition of subparagraph 9(c) to the Canadian text, “ensuring regular review of the findings of legal incapacity.”

Botswana supported the suggestions made by Japan, with the addition of “social” after “physical” to address negative attitudes toward PWD.

Oman agreed that this is an important Article and affirmed that PWD are equal before the law and have full legal capacity on an equal basis with others, but questioned how this is exercised. It is crucial that PWD have the ability to participate in the legal process; 9(d) deals with the provision of tools that enable PWD to participate and to ensure that the legal process itself is accessible, and 9(d) must be formed sufficiently broadly to make all legal processes exercisable. The Committee should consider degree and quality of disability when providing assistance for the exercise, not the limits, of rights.

Yemen questioned the title, asking, “before the law – what law? Of what nation?” Yemen asserted that laws differ from one country to the next and cautioned that a text must be crafted that is mindful of this. Legal capacity of PWD differs depending on the type of disability – e.g., with disabilities of movement or vision “we can find a way of dealing with it but certain disabilities do not lend themselves to recognition under the law as to legal capacity.” Therefore, Yemen supported Qatar, in that there is not a precise definition of disability in defining legal capacity.

Ireland, speaking on behalf of the EU, suggested a change to 9(c)(ii), deleting “only” and, after the word “taken,” adding the words “by a competent, independent and impartial authority”; and appending “including provisions for review.”

Lebanon expressed interest in the Canadian proposal, especially paragraph 3; suggested keeping all elements of the WG draft; and agreed with the amendments proposed by the EU.

Norway remarked that the EU proposal, more than the Canadian one, emphasized not only equal rights, but also equality before the law. Norway agreed with Costa Rica's proposal to include a review mechanism in 9(c)(ii) as a safeguard.

Thailand reiterated its support for the content as put forth by the WG. Any attempt to move away from it should only be for the purpose of clarity. Some countries may not think 9(d), 9(e), and 9(f) are important, but in some developing countries, PWD are at risk of being deprived of these rights. However, Thailand would support their placement, in their entirety, in a different Article.

Colombia expressed concern that the Canadian proposal focused only on adults and addressed only civil matters, not criminal or other areas of law. Colombia suggested keeping 9(a) and 9(b), and agreed with Mexico that there should be equality vis-à-vis persons without disabilities, by establishing affirmative measures to help persons with disabilities. Colombia suggested deleting 9(d), as it lacks clarity with regards to managing personal affairs, control over moneys, and access to credit.

Mexico stated that Canada’s proposal might have a restrictive impact by limiting the scope of the Article to the civil arena only.

The floor was opened to comments from NGOs.

International Labor Organization suggested the preparation of detailed guidelines for implementation, not only for this Article but also for other Articles, a procedure which the ILO itself has found effective. The Article should provide for an effective dispute, prevention, and settlement system, as well as for legal aid.

The Chair noted that this practice already exists under international law.

World Network of Users and Survivors of Psychiatry stated that the Canadian proposal left out essential elements of the text, specifically 9(b) and 9(c)(i) that would be necessary to support the achievement of full equal rights by PWD. If assistance is provided, the rights and freedoms of legal capacity is not interfered with. WNUSP agreed with Uganda that “undermine” should be replaced with “interfere” in order to make it harder to impose guardianship, because it is in effect a “social and legal death” and a violation of human rights and dignity for a person not to exist before the law. People may need support in decisions and some people may need a high level of support, but that does not mean a person may be excluded. It is possible to provide assistance without taking away or limiting a person’s rights. Autonomy must be respected; a support person should facilitate self- determination in the decision-making of the person being supported. WNUSP also discussed interdependence and relationships of trust, and the need for procedural safeguards to assure that support people act on the wishes of PWD and do not abuse their position by imposing their own wishes on the PWD. When capacity is assessed, it begins a process of discrimination, especially in cases involving people with intellectual or psychiatric disabilities. Even where this is not a legal presumption, it is a social presumption and lawmakers and judges retain that social presumption. WNUSP suggested that the Committee review their model on supported decision-making and issues of providing assistance without limiting rights.

People with Disabilities Australia, the National Association of Community Legal Centers, and Australian Federation of Disability Organizations stated that there are four key rights underpinning Article 9: 1) the right to recognition everywhere as persons before the law, found in Article 16 of the ICCPR and in 9(a) of this draft Convention; 2) the right to be presumed to have full legal capacity to make decisions in all areas of life, found in Article 15 of CEDAW, in the common law of various states and jurisdictions, and in 9(c) and 9(d) of this Convention; 3) the right to the full and equal enjoyment before and under the law as all other people, recognized in Articles 14, 15, and 26 of the ICCPR and 9(a) of this Convention; and the right to own and administer property, as recognized in Article 17 of the UDHR, Articles 13 and 15 of CEDAW, and 9(d) to 9(f) of this Convention. PDA asserted that these rights represent the necessary preconditions to the effective exercise of all other rights of PWD and recommended they be addressed in separate articles, rather than together in Article 9, which is neither clear nor far-reaching enough, and which “conflates and confuses the four quite separate rights.” PDA agreed with the wording of 9(d), but recommended substantial redrafting of 9(c)(i) to elaborate procedures and safeguards necessary to support the full range of assisted and substituted decision making from the most informal, culturally appropriate, and least restrictive to the more formal options of limited and plenary guardianship. PDA supported ILO in that legal aid must be provided for PWD to challenge deprivations of their liberty.

Inclusion International supported the position of the World Network of Users and Survivors of Psychiatry in that people with psychosocial and intellectual disabilities are most vulnerable in attempts to propose substituted decision-making. While II endorsed the idea of seeking legal means to develop supported decision making options before the law, they hoped that the Committee would adopt recommendations by Jordan and others that substitute decision-making be granted only as a last resort and only on a time limited basis. II stated that Japan raised an important issue, touching upon the spirit of the Convention, related to people with significant communication challenges who need to be assisted in having their needs understood and expressed.

Save the Children supported the statements of the World Network of Users and Survivors of Psychiatry and Inclusion International. It suggested appending to 9(a) the words “and respect the rights of children with disabilities to exercise legal capacity in accordance with their evolving capacities” and replacing "persons" with “children and adults.” In 9(d) the words “difficulty in asserting their rights, in understanding information and in communicating have access to assistance to understand information presented to them and to express their decision, choices” should be replaced with the words “difficulty in communication, accessing and handling information needed to address their rights, can acquire non-partial assistance.”

Disabled Peoples’ International stated that the failure to recognize the fundamental right to make decisions with support has resulted in institutionalization, forced sterilization and countless human rights infractions for PWD all over the world. Paragraph 9(c) is a key element, but additional wording is needed. DPI directed the Committee’s attention to footnote 33, which articulates that where assistance is necessary, the underlying assumption is still for full legal capacity; DPI felt that this principle was not made explicit in the draft text. Similarly, DPI stated that 9(c) does not outline procedural safeguards, such as when and how assistance should be provided, who will make these determinations, or avenues for review and appeal. DPI supported Japan on the need to take effective measures to eliminate physical and communication barriers and to ensure the exercise of rights in judicial procedures according to the ICCPR.

World Blind Union stated that these rights should be equal to other persons, and should be detailed and specific. WBU considered that 9(d), 9(e), and 9(f) were of the highest importance and should remain in the text, as blind persons are often denied the right to own property, to marry, to inherit, to sign contracts, to hold bank accounts, to sign documents, or even to vote in public elections. WBU also pointed out that in footnote 33 the term “disabled person” is used, and urged "person first" language in all cases.

The UN Economic and Social Commission for the Asia and the Pacific (ESCAP) stated that the draft does not have specific provisions for remedies, and suggested adding text from the Bangkok draft, as follows: “States Parties recognize that access to effective remedies may require the provision of free legal assistance to PWD and the modification or flexible application of existing laws and practice regulating matters of procedure and evidence.”

World Federation of the Deaf stated that assistance alone is not enough. Often in court or police situations sign language interpreters are ordered to leave the room. WFD suggests adding “interpreter services” to both 9(d) of the WG draft and to 9.2 of Canada's draft. WFD remarked on the importance of a property clause, and on the interconnectedness of legal capacity and property.

The Special Rapporteur stated that 9(f) is not sufficient to protect the rights of PWD.

Mexico supported the ILO in calling for the development of guidelines or even a model law which could direct the preparation of domestic law.

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