Back to: Fourth Session of the Ad Hoc Committee
Summaries of the Fourth Session
Daily summary of discussion at the fourth session
25 August 2004
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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summary
A service made possible by Disabled Peoples’ International (DPI), Handicap International (HI) and the International Service for Human Rights (ISHR),
with the financial support of the Governments of Mexico and New Zealand.
Volume 5, #3
August 25, 2004
ARTICLE 4: GENERAL OBLIGATIONS (Cont)
Venezuela supported New Zealand’s proposals in 4(2), and India’s proposal to include a reference to “families.” Families share the problems of PWD, are their companions and caretakers, and should be included in the context of implementation.
Republic of Korea supported the EU proposal on in 4(1)(e) deleting the term “private.”
China emphasized the importance of including in 4(3) the issue of international cooperation as proposed by Israel and progressive realization of economic, social and cultural rights
India supported Argentina’s proposal in the chapeau but retaining the term “ensure” over “guarantee.” Concepts of progressive realization and international cooperation are important and therefore it also supports Canada’s proposal reflecting the ICESCR, Article 2(1).
Malaysia supported the Japanese proposal to include the term, “appropriate” in 4(1)(a). The term “rights” should be replaced by the term “principle” in 4(1)(b). The terms “equality and non-discrimination” are more consistent with the terms used by the WG.
New Zealand noted the widespread agreement among States to address economic, social and cultural rights in this Article and stressed the importance of distinguishing between civil and political rights, and economic, social and cultural rights. Language should be consistent with existing treaties wherever possible. Therefore, and in line with the suggestions of the EU and Israel, a new paragraph 4(1) bis to be inserted after current 4(1), would exactly replicate CRC Article 4. In addition, the chapeau of current 4(1) of the WG text should become a stand-alone paragraph, with the qualification “within their jurisdiction” deleted. It proposes a new chapeau to read: “In ensuring the rights of PWD States Parties undertake …” The obligation to “discourage” customs or practices should be strengthened to “modify and abolish,” consistent with CEDAW 2(f). In the interests of avoiding repetition of concepts in the Convention text, New Zealand revisited its AHC3 proposals calling for their one-time inclusion in Article 4. Therefore references related to new technologies found in Articles 13(d), 19(2)(e), 20(c), and 21(f), and to the participation of PWD found in 5(d), 6(c), 18(c), 19(2)(g), 21(m), should be removed. New Zealand no longer supports removing 4(1)(f) believing that it should be addressed separately. A general provision in remedies is not appropriate as there is no international consensus on remedies in relation to economic, social and cultural rights, and no such provision exists in the ICESCR. Any provision made on remedies in relation to civil and political rights would create unnecessary distinctions between civil and political rights and economic, social and cultural rights, and moreover the ICCPR already provides for remedies. References to families and associates in inappropriate in this convention, which is about PWD and their rights.
Serbia Montenegro supported the EU proposal for merging Articles 4, 5, and 7 into a single Article on Nondiscrimination, with the exception of maintaining the language in 4(1)(d), as any act or practice consistent with the convention is broader than non-discrimination. It supports New Zealand’s proposals, on 4(2) on the participation of PWD, and 4(1)bis on progressive realization.
Australia supported a consolidation of overlapping non-discrimination provisions in Articles 4 and 7. The language in 4(1) is acceptable but should be limited to rights and fundamental freedoms recognized under international law. “Discrimination of any kind” must be read in the context of other human rights treaties. Progressive realization should be addressed in 4(1), as proposed by China, and is recognized in Article 2 of ICESCR.
Mexico proposed new language for the chapeau so that the General Obligations was consistent to the Purpose of the Convention: “In order to achieve the purpose of the present convention, States Parties undertake…” A reference to the progressive relation of economic, social and cultural rights here would spare further references to the topic. The Committee on Economic Social and Cultural Rights has addressed the matter of legal recourse in relation to these rights and this should be mentioned in this Article. There should be a reference to universal design and new technologies. India’s additional language on discrimination for 4(1)(e) is more appropriately addressed in Article 7. Mexico supports New Zealand’s proposed language on partnership with PWD and supports incorporating the CRC approach on progressive realization.
Ethiopia noted that Article 4 requires States to nullify, amend or otherwise take action in relation to legislation or practices inconsistent with the convention. Provision should be made to ensure that no further legislation would be enacted that is inconsistent with the convention. PWD do not have access to legal counsel and in many countries the legal process is very long. PWD must have access to timely legal procedures when they face discrimination.
Yemen supported the EU proposal integrating the rights of PWD into national constitutions and legislation, and language integrating PWD in socio-economic programmes.
The International Disability Caucus called for specific references to development cooperation in 4(1)(c) and a new 4(1) referencing public monies to support accessibility and other issues of importance to PWD. The Caucus opposes a general reference to progressive realization that would relate to all rights but supports a reference applicable to economic, social and cultural rights, for which language is provided. The Committee on ESCR has often discussed the appropriateness of remedies – judicial and otherwise – in relation to economic, social and cultural rights, and there should be a specific paragraph on this topic. Additional paragraphs, on free legal assistance including sign language and communication assistance and on the particular situation of PWD facing multiple forms of discrimination are needed. The Caucus supports the reference to the principle of partnership with PWD.
Landmine Survivors Network called for a specific paragraph on remedies covering its specific application to civil and political, as well as economic, social and cultural rights.
International Labour Organisation favored references in 4(1)(c) to mainstreaming disability issues into social development programmes but cautioned this may not lead to expected progress due to inadequate planning and resources. For this reason, Article 4(1)(c) should include the terms “adequately planned and resourced.” Article 4(2) must stress key stakeholders, including employers and trade unions, as well as community associations and PWD and their representative organizations.
National Human Rights Institutions noted developments in the last few years on remedies and progressive realization and pointed out that a notion that a breach of economic, social and cultural rights does not give rise to remedies does not take into account the latest jurisprudence. It supports the India proposal or the reformulated version by the International Disability Caucus on the progressive realization of rights.
ARTICLE 5: PROMOTION OF POSITIVE ATTITUDES
Chile supported Mexico’s proposed new title for this article “Creation of a culture of respect and inclusion” and Uganda’s proposal for 5(1)(a) to add “needs, potential and contribution to society.” The phrase “practices that are incompatible with the objective” should be incorporated into 5(1)(b). It proposes alternative texts, for 5(1)(c): “to promote a culture with respect to disabled persons as an object of law and compatible with the objectives of the convention” removing the reference to “image”; and for 5(2)(a): “Nurture public awareness campaigns and policies to promote attitudes that are receptive and positive towards the rights of PWD.” It supports the Costa Rican proposal to incorporate the phase “in their population” in 2(b), and the addition of the term “families” in 5(2)(d).
Cameroon (on behalf of the Africa Group) recommended the following alternative title for Article 5: “Promotion of Positive Attitudes Towards Persons with Disabilities, Creation and Raising of Awareness.” The term “appropriate” should be substituted for “immediate” in 5(1). 5(1)(a) should be amended to read: “Raise awareness throughout society regarding disability in various forms and persons with disabilities and their needs, potential and contributions to society and foster a culture of respect for PWD and their human rights.” The African Group recommends more detailed wording in 5(1)(b) to read, following “prejudices,” “and practices whether cultural, or other which discriminate against persons with disabilities,” in line with the Kenya proposal. 5(1)(c) should begin with the term “Portray”, include the Thai proposed language “irrespective of type, severity and complexity of their disabilities” and the Philippines proposal to add “and responsibilities” after “rights and freedoms.” 5(2)(a) should begin: “Initiating, promoting and maintaining an effective public social awareness campaign designed to nurture respect and protect the rights of persons with disabilities…” 5(2)(b) should begin: “Developing and maintaining programmes of awareness in their population…” The term “portray PWD in a manner” should substitute for “project an image of PWD” in 5(2)(c). The term “families” should be included in 5(2)(d).
Costa Rica supports the Africa Group’s proposed new title. It does not support the reference to “negative” stereotypes in 5(1)(b). The language in 5(1)(c) should be retained incorporating proposals of New Zealand, Canada and the Philippines and without the amendments proposed by Thailand. 5(2)(a) and (b) should be merged. A new sub-paragraph should be added, addressing the obligation of States to make the public aware of the Convention and its contents, and the intention to eradicate stereotypes of disability and PWD.
New Zealand highlighted the barriers posed by society’s knowledge, attitudes and related behaviors and the need to address these issues in a separate provision. Like Mexico, Costa Rica and the EU, New Zealand calls for a reference in 5(1)(a) to fostering respect for PWD. It supports in principle the Thailand position on 5(1)(b) referring to “irrespective of type of disability”, though will suggest alternative language. So as to encompass areas in which PWD face barriers, the phrase “in all areas of life” should be added to 5(1)(b). As noted by Canada 5(2) is too prescriptive and should be simplified. A public awareness campaign is only one of many actions States could take, therefore this reference in 5(2)(a) should be substituted with the phrase: “nurturing awareness of and respect for the rights of PWD.” Article 5(2)(d) on working in partnership with PWD does not align with the chapeau and should be shifted to Article 4.
Japan strongly supports the WG text, and would oppose any weakening of it such as changing the language in the chapeau in 5(1) from “immediate and effective” to “appropriate,” and inserting “negative” before “stereotypes” in 5(1)(b).
Jamaica supported adding the qualifications “negative” before “stereotypes” and “positive” before “image” in 5(1)(b). The term ”receptiveness to” in 5(2)(a) should be replaced with “respect for the rights of PWD.”
The EU accepted a separate Article but recommended it be moved to 24bis. It maintains 5(2) is unnecessarily detailed, with the exception of 5(2)(c) which could be moved to 5(1).
Mexico affirmed its support for the language in 5(1) and opposition to any weakening of the text, which is in line with other conventions such as CEDAW. Measures must be immediate and effective. The various forms of disability do not need to be mentioned. Practices that may be prejudicial to PWD do not need to be specified as this would result in leaving some out; the Chilean proposal to reference adverse practices may be a good solution. The type or gravity of disability does not need to be mentioned in 5(1)(c). Language in 5(2) should not be prescriptive and the detail in 5(2)(d) may be unnecessary. However it is necessary to provide some references, such as to public awareness campaigns and stereotypes.
Canada supported New Zealand’s proposed amendments to 5(2).
Unidentified speaker [Portion of tape missing] recommended amending the title to read “Inculcation and Promotion of Positive Attitudes Towards PWD.” The term “modify” should replace “combat” in 1(b), and “inculcate” should be added before “nurture” in 5(2)(a). It supports Uganda’s proposal in 5(2)(d) to insert the word “families.”
Thailand opposed adding “negative” before “stereotypes” in 5(1)(b). It affirmed its position in 5(1)(c) to reference “type, severity and complexity” of disability, as this language is sensitive to the need to cover all disabilities without creating any hierarchy.
Ethiopia proposed referencing artistic works and publications that may offend the dignity of PWD given that writers, authors and composers present PWD in a negative way.
India supported the Australian proposal to amend the chapeau to “appropriate and effective measures.” The term “create awareness” is preferred in 5(1)(a) over “raise awareness.” The term “promote” should replace “foster” in 5(1)(b), and the proposal of Trinidad and Tobago to combat “negative” stereotypes should be retained. Public awareness campaigns in 5(2)(a) should be “comprehensive” rather than “effective” and be designed to “foster” rather than “nurture”; 5(2)(b) repeats this point and should be deleted. India support Uganda’s proposal to add “families” to 5(2)(d).
China highlighted the absence of goals of achieving self-reliance and self-respect, and recommended that assisting PWD in achieving these goals should be added to 5(1)(a). In addition 5(2)(c)bis should read: “Encouraging and assisting PWD to have self-esteem.”
The Republic of Korea cautioned against paternalistic language like “help” or “assist”, and like Japan and Thailand opposed the term “negative” to qualify “stereotypes” in 5(1)(b). Article 5 should be placed later in the convention.
Bahrain recommended adding a stand-alone paragraph that emphasizes the need for training and awareness-raising in order to resist negative stereotypes. Training should be continuous and oriented towards a variety of stakeholders such as medical staff, journalists, teachers, and activists working in the field of disability.
Lebanon agreed with the Bahrain proposal on training and affirmed its support for the WG text which it found clear and sufficient.
Yemen agreed with the Bahrain proposal on training. It also highlighted the need to take moral considerations into account in the collection of data and statistics.
The Chair indicated that he understood the intervention regarding data and statistics made by Yemen was in relation to Article 6.
Yemen stated that its intervention was in relation to Article 5.
Norway called for better placement of Article 5, and in line with the EU proposal agreed that 5(2) is both repetitive and too prescriptive and should be streamlined. The concept of fostering respect for the rights of PWD should be incorporated into 5(1)(a).
Cameroon (on behalf of the African Group) proposed a new sub-paragraph in 5(1): ”Combat patronizing, bullying, and neglect on the basis of perceived incapacity of children and adults in public service and society as a whole.”
EDF (on behalf of the International Disability Caucus) highlighted the danger inherent in drafting this article and the need to avoid patronizing language. In this regard it supports the proposals of EU and others to reference the fostering of respect for PWD. It supports retaining the language in 1(b) and avoiding the use of the term “negative” stereotypes because positive stereotypes must also be avoided (i.e. blind people have perfect memory, deaf people have high levels of concentration, people with Downs syndrome are nice). In 5(1)(c) it opposes the proposed wording by Thailand for 5(1)(c), but sees merit in that of the Philippines’. It rejects the proposal to reference “families” in 5(2)(d), while noting that families are a target group for awareness raising campaigns.
DPI emphasized the importance of awareness-raising as a pre-condition for the equalization of opportunities for PWD, appearing at the beginning of the UN Standard Rules, and of working in partnership with PWD in awareness raising as stated in 5(2)(d). The concepts of partnership and participation do merit mention in this Article though they appear elsewhere in the convention text. If there are to be any principles that can and should appear in specific contexts throughout the convention, it is these.
ARTICLE 6: DATA AND STATISTICS
The vast majority of States supported retaining this as a separate Article.
The Chair noted that some delegations had opposed inclusion of this article in the text and others had suggested its placement in another part of the convention.
Chile supported the Ugandan proposal so that protection is substantively reflected in the title. It supports the proposals of Costa Rica, Mexico and Jordan for 6(c) and further proposes adding “and their families.” It proposes adding a reference to public transportation as well as “subsidizing of medication” in 6(e). It supports the more detailed proposals of Mexico for 6(f). It supports the Lebanon proposal to add a new 6(2) to reference the use of disability indicators in assessing a country’s development, thereby acknowledging the close link between poverty and development, with additions to read: “States Parties shall include amongst the indicators for evaluating the development of a country figures reflecting the close linkage between poverty and disability affecting a cross-cutting analysis of statistics for holistic consideration in legislation and public policy.”
New Zealand supported the inclusion of a separate Article 6 but considered its content to be an operational matter. The text should not be overly prescriptive except insofar as it relates to ensuring privacy, dignity and rights. It supports the EU proposal to shift the article to the section on national monitoring, research and evaluation. It further proposes using the EU text as a basis for further discussion, with two deletions: the initial phrase “where necessary”, and 6(c) on consultation with PWD which is better covered in Article 4.
Eritrea noted the importance of statistical data especially qualitative data in protecting the rights of PWD. The title should be changed to ”Research and Information” to reflect the use of both quantitative and qualitative data, and a reference to the collection of “qualitative and quantitative data ” should be added in the chapeau. The language in 6(a) should cite “existing internationally accepted human rights norms and standards and ethical principles of statistics in order to maintain confidentiality of records and to avoid undue intrusion.” The Article could be shifted to the section on monitoring.
Venezuela supported Mexico’s proposals for (a), (c) and (f). In 6(e), it is important to include access to communication because this is denied to many PWD, especially deaf people.
Australia queried the appropriateness of including detailed provisions on administrative requirements in the convention, though if they are to be included, they may be better referenced as guidelines.
Mexico reiterated its AHC3 amendments to 6(1) and submitted a redrafted 6(2) providing detailed guidance on information collection to help States formulate and implement policies to give effect to the convention.
The EU supported a short and concise separate article provided it is moved near the article on monitoring (Article 25), as its content relates to monitoring and implementation, and reflects the streamlined language proposed by the EU at AHC3.
Canada recommended grouping this Article with Article 25 on monitoring and supported the EU’s reformulated language. The need to protect privacy and confidentiality through legislative standards should be specified in the WG text’s 6(a) or (b). Disability-related information mentioned in 6(a) should be provided on a voluntary basis. To ensure that 6(e) is not read exhaustively, the current text should be replaced with “include full inclusion indicators such as access to public policy.” The chapeau must be consistent with the purpose of the convention and thus it may be necessary to add the language “ensure to promote and protect.”
Guatemala asserted the usefulness of this Article both for monitoring purposes as well as for providing data for the design of policies and programs. It recommends language on the need to protect confidentiality of such data.
Japan was flexible as to whether the article should be placed elsewhere in the convention or remain where it is. The text in 6(d) and (e) is overly prescriptive.
Serbia Montenegro supported the EU proposal, as amended by New Zealand.
Republic of Korea recommended moving this article to the monitoring section and noted, in terms of its drafting, that “less is more.”
Jamaica noted the proposal of Canada and indicated its flexibility regarding the placement of this Article. It supports amending 6(e) to read “access to public services and facilities” and suggested revisiting whether the scope of 6(e) should be widened to include private services and facilities as well.
Kenya supported the Ugandan amendment for the title (Collection and Protection of…) as well as the proposals of Canada, the EU and New Zealand. It called for the inclusion of ethical standards to ensure anonymity, protection of privacy and confidentiality, and human rights standards. The chapeau should be stronger, as indicated by the EU.
Thailand supported moving Article 6 to the monitoring section. It supports maintaining privacy and confidentiality in data circulation. Data and statistics should be made accessible to PWD, consistent with access to information in Article 13.
The Philippines supported a stand-alone article given the crucial role of statistics in giving effect to the convention. It supports Mexico’s proposal in 1(f) with an amendment to include a reference to non-discrimination in the use of statistics.
Costa Rica supported the placement of Article 6 in the monitoring section. It will submit a proposal describing the idea of monitoring with indicators.
Lebanon pointed out that data collection is not an end in itself, but a means to implementation. It supports moving the article to the section on monitoring.
South Africa emphasized the importance of the protection of data and the need to ensure that data collection only serves to enhance the quality of life of PWD and their rights. It supports the proposals of Uganda and Colombia in this regard.
Yemen requested that its proposals made in relation to Article 5 be applied to the discussions for Article 6 and apologized for the misunderstanding.
The Chair thanked Yemen for the clarification.
International Disability Caucus recommended moving Article 6 to Monitoring with amendments taking into account the importance of: safeguarding the rights of PWD in line with ethical standards on data collection; detailing information on access to public services and programs relevant for PWD as well as barriers faced by PWD in exercising their rights; gender, age, indigenous status and other factors. States Parties must promote international cooperation in collecting and gathering statistics.
Save the Children Alliance highlighted several points from the previous Caucus intervention from the perspective of a child rights organization. Collection of data in 6(a) should clearly be on a voluntary basis. 6(e) should reference detailed information on the realization of the rights of PWD. A new paragraph (h) should provide for the collection of data from PWD who are victims of crimes, including disabled children who are disproportionately impacted by violence. Articles 3 & 5 of CRC should guide the rights of children in the context of data collection and statistics.
Qatar noted that some statistics are not used for program or policy design, so there is a need for definitions relating to statistics that should be used. Statistics and data should be used in the development of policies and programs.
Uganda noted that the collection and protection of data may qualify as a sort of monitoring mechanism in and of itself, as in this case it is a method of safeguarding the rights of PWD. It opposes merging Article 6 with Article 25 as the latter deals with monitoring the convention as a whole, and a merger could weaken it.
The Chair adjourned the meeting.
ARTICLE 6: DATA AND STATISTICS - (Cont)
DPI stressed the importance of data collection, as evidenced by the practice of human rights treaty bodies and Rule 13 of the UN Standard Rules, while ensuring that the rights of the subjects of statistical inquiry are respected.
ILO emphasized the need for data gathering, both for monitoring as well as planning and programming purposes, and to show demographic changes of societies over time. In many countries PWD are invisible in national censuses, labor force and other surveys. Information on PWD should be gathered in the same way as for all people in a population. It called for a separate article in the convention.
UN Statistics Division informed the Committee of international standards on statistics, (http://unstats.un.org/unsd/methods/statorg/FP-English.htm) including the UN Fundamental Principles of Official Statistics, which seek to ensure that rights of people are respected in the course of statistical inquiry.
ARTICLE 7: EQUALITY AND NON-DISCRIMINATION
There was general support for proposals to replace the term “on an equal footing” with the phrase: “on a basis of equality with others” in 7(2).
Mexico reiterated its AHC3 observations distinguishing between equality and non-discrimination and suggested addressing these two concepts in separate articles. Article 7 would address equality before the law and non-discrimination and a new article would address equality of opportunities, specifically, positive measures to prevent and fight against discrimination. The content of Article 7 depends on the final formulation of Articles 4 and 9. The Committee’s review of Articles 4, 7 and 9 could be facilitated if they could be grouped together.
Chile supported Mexico’s suggestions as well as the comments of Canada, the African Group and Kenya to include in 7(1) “other aspects of vulnerability and age as well,” to which Chile proposes to add a reference to people living with HIV/AIDS. There needs to be a definition of discrimination, and Chile suggests incorporating the Inter-American Convention’s definition, including the concept of preventing cancellation of rights as well as removing barriers to the enjoyment of rights. It proposes adding a new paragraph addressing sanctions to be applied against those discriminating against PWD. It also proposes new language addressing acts not intended to be covered by the prohibition against discrimination in 7(3). This language would read: “The concept of discrimination does not include the provisions, practices, or criteria objectively and demonstrably justified by the State Party by a legitimate aim, and where the means of achieving that aim are reasonable and necessary and consistent with international human rights law.”
Ghana (on behalf of the African Group) supported the Canadian proposals in 7(1) specifying “persons are equal before and under the law” having the “equal protection and benefit of the law.” It supports the WG formulation in 7(1) referencing “any discrimination” and opposes the Japanese proposal to amend this to “all forms of discrimination.” Despite the hesitation of States to list grounds of discrimination, it supports retaining the list, with the additions proposed by Canada (“ethnic”) and the African Group (health, marital status, belief, culture). In 7(2) it supports the New Zealand proposal to add a reference to “additional obligations or burden” and to the articulation of discriminatory barriers that impede the enjoyment of rights by PWD, as reflected in the proposal by Israel, adding “condition, act or policy.” In 2(b) the African Group supports the Yemeni proposal to reference both direct and indirect disability. It supports the retention of 7(3). In 7(4) it agrees with the proposed amendments from Israel providing guidance on determining when a burden is disproportionate, and from China referencing “unreasonable difficulties.” In supports the Canadian proposal to replace “special measures” with “positive measures” in 7(5), and recommends deleting the second half of the paragraph after the word “Convention” as it is redundant. It supports 7(bis) as proposed by Colombia, with the replacement of the term “affirmative action” with “positive measures.” The African Group supports incorporating in Article 7 elements of the EU’s proposal for Article 3 bis (5)(c) and (d).
The EU declared that it was now prepared to accept a separate article on equality and non-discrimination, moving it to Article 3 and deleting current Article 3 on Definitions. It maintains its AHC3 recommendations to move the text in 7(1) on multiple forms of discrimination to the Preamble. Its alternative texts for 7(2) and (3) provide clearer definitions of direct and indirect discrimination. Its suggested rewording of 7(4) on reasonable accommodation stresses this is an individualized concept, hence the need for the qualification “where needed.”
Venezuela stressed the need to incorporate the concept of duty or obligation before the law. The Committee should discuss the placement of the definition of discrimination when it considers Article 3 (Definitions).
Canada favored retaining language on the prohibited grounds of discrimination in Article 7 and opposed its placement in the Preamble. PWD may experience discrimination on multiple and intersecting grounds, and recognizing that the list is non-exhaustive it recommends adding “sexual orientation” as a prohibited ground, as proposed by the EU and Brazil in the Preambular paragraph (m). The New Zealand proposal to add “additional obligations or burdens” in 7(2)(a) strengthens the definition of discrimination. It opposes the proposal of Australia to reference “or by association with a person with a disability” in 7(2)(b) as it may detract from the ultimate focus of the convention which is PWD and not families or support persons. With a minor amendment it supports the Australian proposal to amend “disproportionate burden” to read “undue hardship.” Canada opposes the creation of different State obligations for direct and indirect discrimination. The difficulty of distinguishing between the two can lead to undue focus on whether an act constitutes direct or indirect discrimination.
Australia supported combining Articles 4, 5 and 7 into Article 3bis, in line with the EU proposal. The reference to equality before the law in 7(1) is addressed in Article 9, so this should instead reference equality of opportunity. The definition of discrimination should be moved to a section on definitions, as this would apply throughout the convention. It supports references to discrimination against associates of PWD in 7(2)(b), notwithstanding concerns expressed. 7(3) should be deleted. Reasonable accommodation should be included in the convention as a broad term that should be used broadly and in relation to individuals. It accordingly supports the text in 7(4). It supports the deletion of 7(5) subject to other changes in the Article that might warrant its inclusion.
Mexico clarified that it did not propose merging Articles 7, 9 and 4, rather, the analysis around those articles should take place at the same time.
New Zealand noted that 7(1) is repetitive and supported efforts to streamline the text. It queried the necessity of listing the grounds of discrimination, noting that any such language should be consistent with ICCPR without attempting to create an exhaustive list. Should there be additional grounds, however, sexual orientation should be added. In 7(2)(a), the term “recognition” should be deleted as it makes no sense in English. A simple formulation in 7(2)(b) can avoid problems with direct and indirect discrimination and differentiation between grounds for discrimination: “discrimination shall include all forms of discrimination.” With regard to the differences of opinion on 7(3), New Zealand notes that no other anti-discrimination convention contains such a provision and suggests referencing General Comment 18 of the Human Rights Committee. It supports the retention of 7(5) as drafted by the WG.
Norway questioned whether a listing of the prohibited grounds of discrimination should be included in 7(1). It supports the EU proposal for 7(1), though reserves the right to comment further. There should be a reference to indirect discrimination as this is often the type of discrimination that PWD frequently confront.
Serbia Montenegro supported the EU proposal to merge 4, 5 and 7 into 3bis with some minor qualifications. It supports the Canadian proposal to use to term “positive measures” in place of “special measures” in 7(5). It stresses the importance of linking the concept of reasonable accommodation to discrimination – a failure to provide reasonable accommodation should be seen to constitute discrimination.
Japan noted that there is no precedent for language in 7(3) in other conventions, and it if this is to be maintained the qualifying phrase “consistent with human rights law” should be added. It opposes the final phrase on the discontinuation of measures when objectives of equal opportunity are achieved in 7(5).
China reiterated its AHC3 recommendations, to delete the following: the definition of discrimination as this is covered in Article 3 and repetition should be avoided; the listing the prohibited grounds of discrimination; the references to direct and indirect discrimination in 7(2)(b) as in many countries it is not possible to distinguish between them; the concept of “perceived disability” in 7(2)(b); para 7(3) as suggested by Japan and the African Group. It supports in 7(1) the addition by Canada of the term “under” and the concept of “unreasonable difficulties” in 7(4). It opposes the EU’s Article 3bis.
The US noted that equality and non-discrimination are “overarching principles of human rights law” and, in line with the EU position, the article should be placed early in the convention. The US endorses in principle the WG text. In 7(2)(b), “a record of disability” should be added as this may broaden the basis of protection in the text. Direct and indirect discrimination is important and the WG text in 7(2)(b) sufficiently captures the points that both direct and indirect discrimination should be unlawful. However, it does not support the EU proposal to ascribe different legal criteria or consequences based on a distinction that, in some jurisdictions, does not exist.
The Holy See noted the difficulties inherent in including lists in treaties, and was gravely concerned with the Canadian proposal to introduce “sexual orientation” in 7(1). This is inconsistent with any juridical instrument in international law and cannot be supported.
Thailand noted that parts of Article 7, including (2), (3) and parts of (5) describe what discrimination means as opposed to describing what States must do to combat discrimination and promote equality. Thailand supports 7(1) and 7(4), but if there is to be an article on definitions, then (2), (3), and (5) should appear in that article.
India supported the deletion of the list in 7(1), as proposed by some delegations. It supports references to both direct and indirect discrimination, however, it will reflect further on the New Zealand proposal to simplify the text with the following: “discrimination shall include all forms of discrimination.” India is concerned with the concept of perceived disability in 7(2)(b), as it is hard to define, evaluate and operationalize, as noted by China.
National Human Rights Institutions stressed that a general article on equality and non-discrimination is “crucial.” It supports a definition of discrimination that is broad enough to encompass all forms of treatment that would impair the full enjoyment of rights and freedoms. In 7(2)(a), the reference to “distinction, exclusion, or restriction” focuses on the different treatment of PWD and the discrimination that may result, but does not address the equally important dimension of discrimination that identical treatment of PWD often involves. Therefore, it proposes the addition of the following language after “restriction”: ”any act, criterion, provision, practice, policy, rule, arrangement or other treatment.” The definition of discrimination should appear in the article on definitions as the concept of discrimination appears in many articles of the convention text. The convention must clearly state that the right to equality and non-discrimination creates State obligations in the public and private spheres. Positive measures as a means to achieve substantive equality for PWD must be included.
International Disability Caucus welcomed the EU decision not to insist on merging Articles 4, 5 and 7, agreed with it that Article 7 should be moved towards the beginning of the Convention and called on the Committee to determine its full scope. The Caucus has proposed language to make clear that the failure to provide reasonable accommodation constitutes discrimination, consistent with General Comment 5 of the Committee on ESCR. Reasonable accommodation is an individualized concept and requires a clear definition. It is also a new concept to many States. The relationship between reasonable accommodation and accessibility more generally also needs clarification. Discrimination should include both direct and indirect discrimination, and while this reference should be made in the text, no further attempt should be made to define them. Discrimination on the ground of disability should cover actual, perceived, past, imputed or future disability as well as discrimination based on association with PWD. Article 7 should refer to multiple forms of discrimination and sexual orientation should be included, as proposed by Canada and the EU. The Caucus would support a separate paragraph on preferential measures as long as it is understood that measures for preferential treatment do not mean separate or unequal standards and they would not be imposed on PWD. If the article is to cover substantive equality, then other measures relating to PWD should be covered such as crisis hostels for those with psycho-social disabilities, assistive devices, for example. These are not preferential treatment measures or affirmative action measures and no sunset clause should be imposed on such measures. It supports a reversal of the burden of proof in relation to non-discrimination, consistent with EU policy.
DPI supported the Caucus recommendations including the need for the Convention to address the rights of PWD subject to multiple forms of discrimination, and protect people with prior imputed or perceived disabilities as well as people associated with PWD.
ARTICLE 8: RIGHT TO LIFE
New Zealand noted that the first part of this article replicates language used in previous instruments, but the second part, “shall take all necessary measures,” is new and could imply preferential treatment. New Zealand therefore supports an amendment to add “on an equal basis with others” which should resolve this problem. It does not support the introduction of language attempting to cover issues such as the status of unborn children as this “could open a Pandora’s box.” The article should not cover prevention of disability. Though it notes the risks posed to PWD living in certain situations (poverty, armed conflict) it does not support specific reference to such situations.
Chile called for including references to the various stages in the life of a PWD. It supports the Jordanian proposal to mention armed conflict and natural disasters and proposes language encompassing all of these issues: “States Parties reaffirm the inherent right to life of all PWD in the various stages of their life and shall take all necessary measures to ensure its effective enjoyment by them in particular in situations of armed conflict and natural disasters in accordance with international law, human rights, refugee and international humanitarian law.”
Costa Rica reaffirmed its proposal in the 3rd session to reaffirm the right to life of “all” which would avoid the problem highlighted by New Zealand; however it is also open to supporting the alternative proposal by New Zealand.
Kenya agreed with Argentina that the term “recognize” should replace the term “reaffirm.” PWD should enjoy quality of life and disability is not a justification for the termination of life and it supports the language in this regard. It also proposes additional language: “States Parties shall prohibit medical, biological and other experiments reducing the quality of life of PWD or seeking to remedy a disability against the will of a PWD.” Kenya further supports language referencing the situation of PWD in armed conflict or natural disasters as follows: “In case of humanitarian or natural disasters, States Parties shall secure the safety of PWD on an equal basis with other persons taking into account each individual’s needs.”
The Chair noted that there was reference to medical experimentation in Article 11.
Japan expressed concerned that adding references to armed conflict and natural disasters could change the whole concept of the original WG text, which it supported. Japan is not opposed to addressing such situations but this should be done elsewhere.
Canada agreed with New Zealand on the need to be consistent with human rights law and with its proposed language (“on an equal basis with others”) ensuring that PWD do not enjoy any different standard in relation to the right to life. Canada opposes addressing causes of disability such as armed conflict or issues that touch on bio-ethical debates. There are instruments that deal more appropriately with civilians in armed conflict. It opposes the Chilean proposal to add “at various stages of their life,” and the proposal to replace “reaffirm” with “recognize” as this would severely weaken the text.
China supported the Jordanian proposal to reference armed conflict and natural disasters, as this makes the text more comprehensive. It would not object to the deletion of the latter half the WG text, “and shall take all necessary measures to ensure its effective enjoyment by them.”
Venezuela supported the Costa Rica proposal to delete references to PWD, as the right to life should apply to all people, not only PWD.
The US supports the WG text with the following addition at the end: “…and shall ensure that disability or perceived quality of life shall not serve as a basis for infringement of the right to life.” The US can also support the formulation of the right to life as set forth in the ICCPR. It opposes a reference to armed conflict.
Mexico stated that it would like the Spanish version of the text to refer to the “inherent” right to life, reflecting language in the UN Charter. It called for a more open and general treatment of the article and supports the proposal by Costa Rica. Armed conflict and other exceptional risk situations should be covered elsewhere in the convention.
The Holy See stressed its support for Article 8 and recalled WG NGO interventions that were very powerful. It noted the precedents for including a provision of the right to life in other human rights conventions. It is satisfied on the whole with the WG text, but will carefully consider additional contributions, such as that proposed by Kenya. It supports the intervention by the USA to add language on quality of life. It voiced caution in relation to the New Zealand proposal to add “on an equal basis with others” as this may not fully capture the particular risks posed to PWD in their enjoyment of the right to life.
South Africa supported the WG text and the Costa Rican proposal to refer generally to the right to life of all persons.
India supported the WG text with the addition “on an equal basis with others.” It cautioned against getting into a debate on issues such as the status of the unborn child.
The EU supported the WG text. Armed conflict and natural disasters are important issues but do not belong in this article. The right to life under international law is non-derogable and therefore covers all situations. It opposes the proposal to replace “reaffirm” with “recognize” which would weaken the text.
Syria supports the WG text with the additional language as proposed by Jordan on armed conflict and natural disasters, and as proposed by Palestine on foreign occupation.
Eritrea supported proposals by Argentina (“States Parties recognize that any person with disabilities has the inherent right to life”) and India (adding a second paragraph “to ensure to the maximum extent possible the survival and development of persons with disabilities”). It would support the inclusion of a reference to armed conflict and natural disasters though this could also be addressed elsewhere in the convention as suggested by Mexico.
Thailand supported the WG text with the additional language from New Zealand (“on an equal basis”). Proposals to add other issues may not be advisable but Thailand will study them.
Jordan expressed its appreciation to delegations supporting its proposal on armed conflict and natural disasters, which it put forward as a compromise. It is open to referencing such issues elsewhere in the convention.
Lebanon recognised concerns expressed by some delegations on adding language to the WG text, but underlined its importance. Lebanon is open to placing references to particular situations such as armed conflict elsewhere in the convention.
The Chair drew the Committee’s attention to references to situations such as armed conflict in the Preamble at (p).
Mali supported the WG text with a change in the title to “Right to Live” as this is “much more active.”
International Right to Life Foundation (also on behalf of US National Right to Life, UK Society for the Protection of Unborn Children and United Families International) noted the enhanced risk of PWD to infringements of their right to life who are in greater danger than non-disabled people to be denied medical treatment and or food and water. Their quality of life is not perceived to be “good enough.” It therefore supports language in Article 8 regarding quality of life.
International Disability Caucus submitted its proposed language under the title “Right to Life, Survival and Development.” This right must be recognized at all stages of life, including infants, girls and boys. The right to survival and development has been included in the CRC, so this is not unusual or controversial. Disability is not a justification for the termination of life and this issue impacts the enjoyment of the right to life and should be included. While the Caucus takes no position on the issue of abortion in general, it opposes compulsory abortion based on prenatal diagnosis. Language on experiments does not replicate Article 11, but addresses experiments that reduce the quality of life of PWD. Seeking to remedy a disability against a person’s will is also related to quality of life. Language on armed conflict does not address prevention, but the need to ensure the safety of PWD in armed conflict and emergency situations.
Yemen supports the WG draft with additional wording similar to 6(2) in CRC relating to survival and development. Language relating to refugees, armed conflict and those under foreign occupation should be included in a separate article.
Inclusion International noted that people with intellectual disabilities have been seen as a burden on society. Even those with the greatest support needs must have their right to life respected.
The Chair adjourned the session.
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