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Proposals to the draft text - European Union

Statements by the delegation of the Netherlands on behalf of the EU delivered to the fourth session of the AHC Disabilities on Structure, Definitions (art. 3) and title of the Convention.

1. Structure

Study of the existing major UN human rights conventions shows that their primary structures are broadly similar. They usually consist of:

• Preamble
• General provisions
• Standards
• Monitoring
• Final provisions.

The EU recognizes this primary structure in the proposal of the Working Group and is generally satisfied with it.

As far as the substantive part of the Convention is concerned, I should first of all state that the EU will not insist on its earlier proposal to merge Articles 4, 5 and 7. Secondly, the EU proposes a few specific changes:

• Replacement of Article 5 on promotion of positive attitudes to persons with disabilities to become new Article 24bis.
• Replacement of the contents of Article 6 on statistics and data collection to Article 25 on monitoring.
• Replacement of Article 7 on non-discrimination to become new Article 3.

As far as the other substantive Articles are concerned, the EU is open to discuss the best way to structure them.

Definitions

The EU is of the opinion that it is not necessary to include a separate Article on definitions in the convention. Where definitions are needed, they were better to be included at the appropriate place in the convention. In particular, the EU supports the inclusion of a specific definition of the term “reasonable accommodation” in an Article on non-discrimination, as this concept is on the one hand a key element of the convention, and is on the other hand not yet sufficiently defined in international law.

The European Union also favours a strong definition of the term “discrimination on the grounds of disability”. This definition should cover both direct and indirect discrimination. The European Union has submitted specific proposals at the Third Session of the Ad Hoc Committee to be included in the article on non-discrimination.

The EU takes a different view with regard to a definition of “disability” or “persons with disabilities. We are of the opinion that these should not be defined in the convention, as such definitions would risk becoming exclusive rather than inclusive. What matters are the results of the convention: full enjoyment on an equal footing of all human rights and fundamental freedoms by persons with disabilities. Whenever a state party would deny certain rights to inhabitants who, according to plain common sense, should be considered to be persons with disabilities, it is the shared responsibility of all states parties to remind that state party of its obligations under the convention, to which any monitoring mechanism should be instrumental.

Title

Mr. Chairperson,

At the Third Session of the Ad Hoc Committee, the European Union has proposed the following title of the convention: “International Convention on the Full and Equal Enjoyment of all Human Rights and Fundamental Freedoms by Persons with Disabilities”.

Our proposal for the title is in line with our proposal for Article 1 of the Convention also made at the previous session.

Persons with disabilities have the same rights and fundamental freedoms as everybody else. The problem is that the enjoyment of human rights and fundamental freedoms by PWD is often impaired or nullified. The focus of the Convention should therefore not be to create a different, separate set of rights for Persons with Disabilities. On the contrary, the convention should be to bring about a situation where persons with disabilities can enjoy all human rights and fundamental freedoms without discrimination.

An inclusive and non-discriminatory approach must underlie the whole convention. Any other approach, we fear, might easily create the impression that the full range of human rights and fundamental freedoms does not automatically apply to persons with disabilities or, alternatively, that some rights exclusively apply to persons with disabilities and not to others. For these reasons, Mr Chairperson, the European Union does not support a title that refers to the protection and promotion of rights rather than the enjoyment of rights.

New York, 26 August 2004

DRAFT COMPREHENSIVE AND INTEGRAL INTERNATIONAL
CONVENTION ON THE PROTECTION AND PROMOTION OF
THE RIGHTS AND DIGNITY OF PERSONS WITH DISABILITIES¹

EU proposal: “International Convention on the Full and Equal Enjoyment of all Human Rights and Fundamental Freedoms by Persons with Disabilities”

The States Parties to this Convention,

a) Recalling the principles proclaimed in the Charter of the United Nations which recognise the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world,

b) Recognising that the United Nations have, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind,

c) Reaffirming the universality, indivisibility and interdependence of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination,

EU proposal: EU suggests c) should read: “Reaffirming the universality, indivisibility and interdependence of all human rights and fundamental freedoms and that persons with disabilities are guaranteed their full enjoyment without discrimination,”

d) Reaffirming the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,²

EU Proposal: EU proposes deletion of reference to the Migrant Workers’ Convention

e) Recognising the importance of the principles and policy guidelines contained in the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities in influencing the promotion, formulation, and evaluation of the policies, plans, programs and actions at the national, regional and international levels to further equalise opportunities for persons with disabilities,

f) Recognising that discrimination against any person on the basis of disability is a violation of the inherent dignity of the human person,

EU proposal: Replace the word “violation of” with “affront to”.

g) Recognising the diversity of persons with disabilities,

h) Concerned that, despite the efforts and actions undertaken by Governments, bodies and relevant organisations, persons with disabilities continue to face barriers in their participation as equal members of society and violations to their human rights in all parts of the world,

EU Proposal: Suggest replacing (h) with the following wording: “Concerned that despite these various instruments and undertakings persons with disabilities continue to face barriers to the effective enjoyment of human rights and fundamental freedoms”.

i) Emphasising the importance of international cooperation to promote the full enjoyment of human rights and fundamental freedoms of persons with disabilities,

EU Proposal: EU proposes language in Footnote 4 as follows: “Recognising the importance of international cooperation for improving the living conditions of persons with disabilities in every country, in particular in the developing countries”.

j) Emphasising the existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in significant advances in the human, social and economic development of their societies and the eradication of poverty,

EU proposal: The EU suggests removing “and the eradication of poverty”.

k) Recognising the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices,

l) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programs, especially those directly concerning them,

m) Concerned about the difficult conditions faced by persons with severe or multiple disabilities and of persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

EU Proposal: EU proposes the deletion of the words “forms of”. EU proposes the inclusion of “sexual orientation”after “birth”.

n) Emphasising the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities,

EU proposal: EU suggests insering a specific reference to the need to promote the full enjoyment of human rights and fundamental freedoms of women and girls with disabilities. New paragraph n bis.: “Recognising that women and girls with disabilities are often subject to multiple discrimination and therefore suffer particular disadvantages.

EU proposal: EU suggests including an additional paragraph n ter. on freedom from violence and abuse: “Recognising that persons with disabilities, in particular women and girls, are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse”.

o) Mindful of the need to alleviate the negative impact of poverty on the conditions of persons with disabilities,

EU Proposal: EU suggests reformulation of (o) as follows: “Recognising that a disproportionately large number of persons with disabilities live in conditions of poverty and mindful of the need to alleviate the negative impact of poverty on persons with disability”.

p) Concerned that situations of armed conflict have especially devastating consequences for the human rights of persons with disabilities

q) Recognising the importance of accessibility to the physical, social and economic environment and to information and communication, including information and communications technologies, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms,

r) Convinced that a convention dealing specifically with the human rights of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economical, social and cultural spheres with equal opportunities, in both developing and developed countries,

EU proposal: EU suggests replacing “the human rights of” with “the enjoyment of human rights by” on the first line, and suggests deleting the word “social” on the third line.

EU proposal: the EU proposes the inclusion of the following paragraph:

s) Recognising the particular circumstances of the child with disabilities and that the child with disabilities should enjoy the right to a full and inclusive life in conditions that ensure dignity, promote self reliance and autonomy and facilitate their active participation in the community

Hereby agree as follows:

Draft Article 1
PURPOSE

The purpose of this Convention shall be to ensure the full, effective and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.

EU proposal: “The purpose of the Convention shall be to ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.”

Draft Article 2
GENERAL PRINCIPLES

The fundamental principles of this Convention shall be:

(a) dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

(b) non-discrimination;

(c) full inclusion of persons with disabilities as equal citizens and participants in all aspects of life,

EU proposal: Redraft c) as follows: “c) full and effective participation and inclusion in society on an equal basis for persons with disabilities,”

(d) respect for difference and acceptance of disability as part of human diversity and humanity;

(e) equality of opportunity.

EU proposal: EU supports inserting the principle of gender equality.

Draft Article 4
GENERAL OBLIGATIONS

EU position: EU can accept a separate article on General Obligations.

1. States Parties undertake to ensure the full realisation of all rights and fundamental freedoms for all individuals within their jurisdiction without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

(a) to adopt legislative, administrative and other measures to give effect to this Convention, and to amend, repeal or nullify any laws and regulations and to discourage customs or practices that are inconsistent with this convention;

EU Proposal: EU suggests following rewording: “to take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws or regulations which have the effect or purpose of creating or perpetuating such discrimination wherever it exists; “

(b) to embody the rights of equality and non discrimination on the ground of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realisation of these rights;

EU Proposal: EU suggests replacing “rights” with “principles” on the first line and the last line, and suggests the addition of “of opportunity” after “equality”on the first line.

(c) to mainstream disability issues into all economic and social development policies and programmes;

EU proposal: “to ensure that the needs and concerns of persons with disabilities are incorporated into economic and social development plans and policies”

(d) to refrain from engaging in any act or practice that is inconsistent with this convention and to ensure that public authorities and institutions act in conformity with this Convention;

EU proposal: EU suggests replacing “that is inconsistent with this convention” with “of discrimination against persons with disabilities”, and replacing the word “Convention” with “obligation”.

(e) to take all appropriate measures to eliminate discrimination on the ground of disability by any person, organisation or private enterprise;

EU proposal: EU suggests deleting “private” before “enterprise”.

(f) to promote the development, availability and use of universally designed goods, services, equipment and facilities. Such goods, services, equipment and facilities should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities.

EU proposal: Move (f) to Article 19.

2. In the development and implementation of policies and legislation to implement this Convention, States Parties shall do so in close consultation with, and include the active involvement of, persons with disabilities and their representative organisations.

EU proposal: Move paragraph 2 to Article 25 and reword.
EU proposes the insertion of a new article 4(2):

“States Parties shall undertake all appropriate legislative, administrative and other measures for the implememtation of the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation” ( based on Article 4 of CRC).

Draft Article 5
PROMOTION OF POSITIVE ATTITUDES TO PERSONS WITH DISABILITIES

EU Position : Article should be repositioned preferably as Art. 24 bis.

1. States Parties undertake to adopt immediate and effective measures to:

(a) Raise awareness throughout society regarding disability and persons with disabilities;

EU Proposal: Add “and foster respect for the rights of persons with disabilities”

(b) Combat stereotypes and prejudices about persons with disabilities

(c) Promote an image of persons with disabilities as capable and contributing members of society sharing the same rights and freedoms as all others and in a manner consistent with the overall purpose of this Convention.

EU Proposal: Move 2(c) to here as new (d):

(d) Encourage all organs of the media to project an image of persons with disabilities consistent with the purpose of this Convention;

EU Proposal: Delete Paragraph 2 (2d is covered by Article 25)

2. These measures shall include, among others:

(a) initiating and maintaining an effective public awareness campaign designed to nurture receptiveness to the rights of persons with disabilities;

(b) promoting awareness, including in all children from an early age and at all levels of the education system, to foster an attitude of respect for the rights of persons with disabilities;

(c) encouraging all organs of the media to project an image of persons with disabilities consistent with the purpose of this Convention;

(d) working in partnership with persons with disabilities and their representative organisations in all measures taken to give effect to the obligations contained in this article.

Draft Article 6
STATISTICS AND DATA COLLECTION

EU Proposal: Replace the contents of this Article by the following, and move it to Article 25:

“Where necessary, States Parties shall collect appropriate information to enable them to formulate and implement policies to give effect to this Convention. The process of collecting and maintaining this information should:

(a) comply with legally established safeguards to ensure confidentiality and respect for the privacy of persons with disabilities, including legislation on data protection;

(b) comply with internationally accepted norms to protect human rights and fundamental freedoms;

(c) where appropriate, be undertaken in collaboration with and following consultation of organisations of persons with disabilities.”

In order to formulate and implement appropriate policies to protect and promote the rights of persons with disabilities, States Parties should encourage the collection, analysis, and codification of statistics and information on disabilities and on the effective enjoyment of human rights by persons with disabilities. The process of collecting and maintaining this information should:

(a) respect the right to privacy, the dignity and the rights of persons with disabilities, and the information collected from persons with disabilities should be on a voluntary basis;

(b) be kept only in a statistical format without identifying individuals and should be kept secure to prevent unauthorised access or misuse of information;

(c) ensure that the design and implementation of data collection is done in partnership with persons with disabilities, their representative organisations and all other relevant stakeholders;

(d) be disaggregated according to the purpose of the collection of information and should include age, sex and type of disability;

(e) include detailed information on their access to public services, rehabilitation programs, education, housing and employment;

(f) adhere to established ethics regarding respect for anonymity and confidentiality in the collection of statistics and data.

Draft Article 7
EQUALITY AND NON-DISCRIMINATION

EU Position : Accept a separate article 7 and replace to become Article 3.

1. States Parties recognise that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. States Parties shall prohibit any discrimination on the basis of disability, and guarantee to all persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to all persons with disabilities equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, source or type of disability, age, or any other status.

EU Proposal: The EU proposes that references to multiple forms of discrimination should be moved to the Preamble. Therefore, the EU proposes the deletion of the last sentence in Paragraph 1.

2.

(a) Discrimination shall mean any distinction, exclusion or restriction which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by persons with disabilities, on an equal footing, of all human rights and fundamental freedoms.

(b) Discrimination shall include all forms of discrimination, including direct, indirect and systemic, and shall also include discrimination based on an actual or perceived disability.

EU Proposal: EU proposes replacing paragraph 2 (a) and (b) with the following:

“For the purpose of the present Convention, the term "discrimination on the grounds of disability" shall mean any distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise on an equal footing by persons with disabilities of all human rights and fundamental freedoms.”

a. Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the grounds of disability;

b. Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put a person having a disability at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary or unless measures are taken to eliminate that disadvantage

3. Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and the means of achieving that aim are reasonable and necessary.

EU Proposal: Delete Paragraph 3

4. In order to secure the right to equality for persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to provide reasonable accommodation, defined as necessary and appropriate modification and adjustments to guarantee to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.

EU Proposal: EU suggests the following rewording of Paragraph 4

4. In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to ensure that reasonable accommodation is provided; reasonable accommodation to be defined as necessary and appropriate modification and adjustments, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.

5. Special measures aimed at accelerating de facto equality of persons with disabilities shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; those measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved;

Draft Article 8
RIGHT TO LIFE³⁴

States Parties reaffirm the inherent right to life of all persons with disabilities, and shall take all necessary measures to ensure its effective enjoyment by them.³⁵

Draft Article 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW

States Parties shall:

(a) Recognise persons with disabilities as individuals with rights before the law equal to all other persons;

(b) Accept that persons with disabilities have full legal capacity on an equal basis as others,³⁶ including in financial matters;

EU Proposal: EU suggests replacing (a) and (b) with the following paragraph:“Recognise persons with disabilities as individuals with equal rights before the law and guarantee equality before the law, without discrimination against persons with disabilities;”.

(c) ensure that where assistance is necessary to exercise that legal capacity:

(i) the assistance is proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not interfere with the legal capacity, rights and freedoms of the person;

(ii)relevant decisions are taken by a competent, independent and impartical authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;³⁷

EU Proposal: replace paragraph (c) with Canadian language:

“2. States Parties shall ensure that where adults persons 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 persons individual circumstances.

3. Relevant decisions, inter alia on the loss or restriction of legal capacity, are taken by a competent, independent and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;

4. 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 person'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 person's degree of legal incapacity and tailored to the adult's person's individual circumstances; and

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

(d) ensure that persons with disabilities who experience 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 decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses; EU proposal: Delete 9(d)

(e) take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit;

EU proposal: Delete 9(e)

(f) ensure that persons with disabilities are not arbitrarily deprived of their property.

EU proposal: renumber 9(f) into 9(5)

Draft Article 10
LIBERTY AND SECURITY OF THE PERSON

1. States Parties shall ensure that persons with disabilities:

(a) enjoy the right to liberty and security of the person, without discrimination on the basis of disability;

(b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty shall be in conformity with the law, and in no case shall be based on disability.

EU proposal: insert “, including any involuntary institutionalisation,” between “liberty” and “shall”, and insert “exclusively” after “be based”.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty, they are:

(a) treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs they have because of their disabilities;

EU proposal: insert new (b) and renumber as follows: “(b) entitled to the following minimum guarantees:”;

(b) provided with adequate information in accessible formats as to the reasons for their deprivation of liberty;

EU proposal: renumber current (b) as (i) and refrase as follows: ”(i) to be provided with adequate information in accessible formats as to their legal rights and the reasons for the deprivation of their liberty”.

(c) provided with prompt access to legal and other appropriate assistance to;

EU proposal: renumber current (c) as (ii) and insert “to be” before “provided”; finish sentence after “assistance”.

(i) challenge the lawfulness of the deprivation of their liberty before a court or other competent, independent and impartial authority (in which case, they shall be provided with a prompt decision on any such action);

EU proposal: renumber current (i) as (iii) and replace by ”to obtain a prompt ruling by a competent, independent and impartial court or tribunal established by law on the lawfulness of the deprivation of liberty” .

(ii) seek regular review of the deprivation of their liberty;

EU proposal: renumber current (ii) as (iv) and insert new paragraph (v) “to receive a fair hearing and be provided with a prompt decision on the lawfulness of the deprivation of liberty mentioned in subparagraphs (iii) and (iv) above.

(d) provided with compensation in the case of unlawful deprivation of liberty, or deprivation of liberty based on disability, contrary to this Convention.

EU Proposal: renumber current (d) as (c ) and refrase as follows:
“compensated following determination by an appropriate authority that the deprivation of liberty has been unlawful.”

EU Proposal for Article 10 would thus read as follows:

“1. States Parties shall ensure that persons with disabilities:

(a) enjoy the right to liberty and security of the person, without discrimination on the basis of disability;

(b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty, including any involuntary institutionalisation, shall be in conformity with the law, and in no case shall be based exclusively on disability.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty, they are: