Back to: Fourth Session of the Ad Hoc Committee
Summaries of the Fourth Session
Daily summary of discussion at the fourth session
26 August 2004
Language versions: French |
Original MS Word version
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, #4
August 26, 2004
Uruguay reaffirmed the importance of Article 9 and issues of legal capacity.
After “preferences” in 9(d) it should say, ”to comply with binding agreements and treaties and any other public or private document by signature to act freely and to act as witnesses.” In 9(e), it proposes adding “to administer and manage their own affairs.”
Canada reintroduced its proposal made at AHC3, with some amendments, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm. The WG text was based in part on Article 16 ICCPR and also dealt with legal capacity and issues relating to property management. Canada proposed language based on Article 15(2) CEDAW. In response to feedback, “adults” has been changed to “persons” in 9(1) of the Canadian proposal, on the basis that PWD are to have legal capacity on an equal basis. The proposal addresses the continuum of support necessary to enable PWD to exercise their capacity, and this support should be the least restrictive possible and tailored to the individual. In (3) of the Canadian proposal, appropriately safeguarded substituted decision-making is necessary in some cases, even with supported decision-making, because some people cannot exercise capacity and will be therefore at risk of abuse or neglect. Amendments to the proposal reflect these points. Canada amended its proposal to reference provision for review in cases deciding there is an inability to exercise legal capacity, and added review as well in cases of appointment of a legal representative. Canada queries whether 9(a) of the WG text is necessary, given the coverage of equality before the law in Article 7. It recognizes the importance of 9(e) and (f), but considers its own proposal sufficient regarding property issues.
Costa Rica supported Canada’s proposal and withdrew its own. Article 9 refers to two issues: legal capacity and access to justice. Canada’s proposal refers to legal capacity, but leaves aside the question of access to justice. Proposals by the EU, China, Japan and Costa Rica address access to justice. Accordingly, Costa Rica proposes a new article on Access to Justice: “States Parties to this convention shall recognize that the full and effective enjoyment by persons with disabilities of equality before the law shall require the modification, adjustment and flexible application of legal procedures, practice and rules, including rules of evidence. The States Parties call take immediate and effective measures to provide such accommodation which shall include: 1) provision of information in plain language and other formats accessible to persons with disabilities; 2) provision of personal assistance to understand legal procedures, practices and rules; 3) recognizing and facilitating access to alternative modes of communication and communication technology, including sign language and Braille; 4) take all necessary measures to ensure everyone whose rights and freedoms as recognized in this convention are violated shall have an effective remedy before a national authority, notwithstanding that the violation has been committed in an official capacity.
Serbia and Montenegro reaffirmed that Article 9 addresses both legal capacity and access to justice. It submitted a new proposal based on proposals from the EU and Canada. Paragraphs (a) and (b) of the EU proposal should comprise paragraph 1 of the article as amended to include reference to obligations of PWD before the law as suggested by Mexico. The revised Canadian proposal should comprise paragraphs 2, 3 and 4 of the article.
The Netherlands (EU) supports a concise 9(1), in line with its proposal. The EU accepts the Canadian proposal for 9(2) and (3), but prefers to separate into two paragraphs (3) and (4), given that they address two issues, namely, decisions of denial of legal capacity and appointment of a personal representative. It supports retaining 9(f) as paragraph 5.
Japan noted the new Canadian and Costa Rican proposals, which it will study. Japan reiterated its proposal from AHC3 for a new paragraph (g), amended from AHC3 to make explicit reference to Article 14 ICCPR. The proposal is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm.
Chile supports an amended title for Article 9: “Legal Capacity.” All persons have legal capacity, and therefore in 9(a), the language “accept that PWD have full legal capacity” is inappropriate and should be amended to read “recognize.” Chile supports 9(c) of the WG text, but emphasizes the safeguards necessary to protect PWD. Where, in exceptional situations, PWD cannot exercise legal capacity, the decision should be a judicial one with a range of due process guarantees. There should be periodic monitoring or reporting to the relevant authorities with regard to the provision of assistance and consistent with human rights. Chile supports Kenya’s proposal for (e). There is no reference to access to justice in Article 9, or the convention text more generally. There should be a separate article on access to justice. Chile’s amendments to Article 9 are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm.
India noted that Article 9 presents competing claims. On the one hand PWD are asserting their legal capacity, and on the other caretakers and families are advocating for substituted decision-making. It is necessary to balance these claims within a model of substituted decision-making. India will study the Canadian and EU proposals in this regard. India is sympathetic to the principle of full legal capacity. However, circumstances on the ground may not allow for this. This issue should be cast in a more aspirational mode to achieve a balanced position. Articles 10 and 11 must also be examined from this perspective.
Australia thanked Canada for its proposal. Article 9(d) should be addressed elsewhere in the convention. Australia would like to ensure that the article addresses the situation where an individual who at the time is able to exercise their capacity, makes a decision as to what should happen when they are unable to exercise their capacity.
Venezuela noted the Canadian proposal and welcomed the Costa Rican proposal on access to justice.
Eritrea (on behalf of the African Group) submitted a proposal available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm. Amongst other amendments, the proposal incorporates proposals of China in 9(a), India in 9(d), the EU and Costa Rica in 9(c)(ii).
Norway thanked Canada and the EU for their proposals for 9(b). It supports the EU’s proposed 9(1), as it is of wider scope than the Canadian proposal. Norway supports the Canada’s proposed 9(2). It supports dividing the Canadian proposal (3) into two separate sub-paragraphs.
Thailand welcomed the proposals of Canada and the EU, and will study further the concept of supported decision-making circulated by the NGOs.
Jordan thanked the Canadian delegation for its proposal. Jordan proposed amending that proposal in (3) to reference “periodic” before “review”.
El Salvador welcomed proposals on Article 9 by Chile, and especially supports Chile’s proposed use of the term “recognize.” It welcomes the Canadian proposal.
New Zealand strongly supports the Canadian proposal that presumes legal capacity for PWD and recognizes that it may need to be exercised with support. It insists on a proper procedure under law before someone can be found unable to exercise their legal capacity on their own or with support. It also proposes safeguards where support is deemed necessary. New Zealand encourages other delegations to indicate whether they accept the Canadian proposal or another. The Canadian proposal should be strengthened with the following language at the end of (2) “respect the will and preferences of the person receiving support, is free from conflicting interests, and does not involve undue influence” which derives from the International Disability Caucus position. Where PWD exercise their capacity with support, steps must be taken to recognize this supported decision-making, as noted by the Caucus. Protection of property rights must be respected, but the Canadian proposal in paragraph one adequately covers this issue. Consistent with Australia, New Zealand will also consider whether the Canadian proposal adequately addresses the situation where power of attorney has been given to a third party. Costa Rica’s proposal for a separate article on access to justice may have merit.
China stressed that everyone is equal before the law. PWD must have the protection of the law on the basis of equality. It supports the Mexican revision in 9(a). The issue of legal capacity is controversial and derives from differences in legal system. In Continental systems there is no general statement as to whether people have legal capacity or not, or whether it is limited. The UN Principles for the Protection of Persons with Mental Illness, 1(6), approaches the issue of legal capacity differently. At AHC3, many delegations proposed deletion of portions of the WG text. China supports (2) and (3) of the Canadian proposal.
Trinidad and Tobago supports the Canadian proposal as a basis for further discussion. It supports Serbia’s proposal to use the EU proposal (a) in a first paragraph, followed by the Canadian text.
Mexico stated that the focus of Article 9 is legal recognition issues, and supported addressing access to justice in another article. It supports the Canadian proposal, though with some additions. It is important to recognize that PWD have rights and obligations before the law, as reflected in the Mexican proposal for 9(a) at AHC3. Assistance to PWD should not interfere with the full enjoyment of human rights and should be retained in (c)(i). The concept of supported decision-making should be recognized in this article and not surrogate decision-making. There should be an adequate and periodic review mechanism.
Lebanon supports the presumption of legal capacity in Canada’s proposal. But the wording in (3) still seems to accept legal incapacity. The need for support should be recognized, and not substitutions of decision-making by another. A section on access to procedures should be added.
Jamaica noted that PWD have legal capacity on the same basis as others, yet there is the need to introduce and safeguard the interests of those who in some circumstances may have reduced capacity. Jamaica supports India’s proposal for 9(g).
International Disability Caucus supported the interventions by Mexico and Lebanon that rejected a system of surrogate decision-making. The Caucus has a proposed draft for Article 9, available at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc. It takes into account the evolving legal capacity of children. Four goals must be achieved in ]Article 9: 1) the right to make and carry out decisions and life choices according to one’s own will; 2) the right to take legally effective actions ; 3) the right to represent oneself; and 4) elimination of the barriers to the exercise of such rights which may require positive measures. The new Caucus draft is modeled on a supported decision-making model and away from a substituted decision-making model.
DPI underlined the need to ensure accessibility of legal and other procedures where PWD exercise their legal capacity.
National Human Rights Institutions supported the Canadian proposal, and the proposal by Costa Rica and Mexico to split the article into an article on legal capacity and one on access to justice. It supports the Canadian proposal for the article on legal capacity.
ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON
Venezuela agreed in principle with Article 10 as drafted, with minor changes. In 10(2)(b), the term “technical information” should be added. In 10(2)(c) “in Braille and in sign language” should also be added.
Mexico withdrew its proposal to delete language in 10(2). Mexico supports the inclusion of Colombia’s proposal in 1(e). It withdraws its proposals for 2(d) and 4.
Canada supported inclusion of Article 10. Canada does not support the Korean proposal for 10(2)(a). It supports the Chinese and New Zealand proposals for 10(2)(b), and supports replacing “legal” with “counsel” which is common terminology in human rights law. Canada supports including a subparagraph on compensation and encourages delegations to consider the Canadian proposal in this regard. Canada seeks clarification of the Mexican proposal for a new paragraph 10(4).
Mexico, in response to the Chair’s request, reiterated its proposal for 10(4)bis and indicated that it would consult with Canada to clarify its meaning.
Japan noted that it proposed deleting 10(2)(c)(ii) at AHC3 and clarified that it did so on the basis that it does not differentiate between deprivation of liberty based on criminal conduct, in which case there is no need for additional review, or for other reasons.
Costa Rica reiterated the importance of the Article to ensure that PWD are guaranteed their right to freedom and not deprived of their due process rights. Costa Rica supports the proposal of Mexico in 10(2) and 10(2)(d) and new paragraph (4) ,and the proposal of China and New Zealand in 10(2)(b). It expresses concern for the Korean proposal for 2(a) as it may be too broad in scope. There is no distinction as to who will be the subject of periodic review in 2(c)(ii).
Chile reaffirmed the WG text for 10(1)(b) but amended to include language ensuring due process. It supports the Ugandan proposal in 1(c)bis, but it should be moved to (2). It supports the inclusion of a paragraph covering the confinement of PWD in line with the EU proposal for 2(d).
China supports the WG article in general terms. In 10(1)(b) it supports the Canadian proposal to add the term “solely.” In 2(b), China reiterates its proposal from AHC3 to add “applicable law,” and supports the New Zealand proposal for 2(b). It supports the statements of several delegations to delete 2(ii), and supports the EU proposal for an additional sub-paragraph 2(d).
New Zealand noted additional text around the issue of civil commitment, but this can be addressed elsewhere in Articles 11 and 12. It supports the Canadian amendment to add “solely” in 10(1)(b). In 10(2)(d), the following text should be added: “unless the deprivation of liberty is a result of criminal conviction in which case review will be subject to States Parties legislation” to ensure that disabled prisoners do not enjoy additional rights from others. The right to compensation should be included, so long as it is consistent with 9(5) ICCPR. New Zealand maintains its proposal in relation to 2(b).
The Netherlands (EU) withdrew the earlier EU proposal for a new Article 3 concerning forced institutionalization, and introduced a new proposal including a detailed reworking of 10(2)(b), available at: http://www.un.org/esa/socdev/enable/rights/ahc4da10.htm.
South Africa supported the inclusion of Article 10, and is generally satisfied with the WG draft. In 10(1)(a), the definition of discrimination in Article 3 should be included and made relevant under Article 10. It rejects the proposal of some delegations to include the term “solely” in 10(1)(b), as it implies that other types of discrimination may be tolerated. It supports the proposal of Uganda in 1(c), but the definition of rehabilitation must in that case be included in Article 3. South Africa does not support the use of “applicable law” in 10(2)(b) or elsewhere. It supports the Colombia proposal for 10(2)(e). It cannot support the EU language on forced institutionalization without inclusion of qualifying language which it will provide to the Secretariat. South Africa supports in its entirety the proposal of Mexico for a new paragraph 10(4).
Republic of Korea clarified its proposal regarding 10(2)(a). The purpose is to make clear that people with disabilities may or may not need assistance. The first part of the proposal should be maintained, at a minimum.
Thailand welcomed the proposal of the EU on forced institutionalization as new 10(1)(b), but with removal of the term “exclusively.” The Japanese proposal to delete 10(2)(c)(ii) is unnecessary as it is connected to access to assistance.
Serbia and Montenegro supported the EU proposal for 10(1)(b). It also supports the deletion of (d) and its insertion as a separate paragraph (3), in line with proposals by Canada and Lebanon, though with some possible changes, and the New Zealand proposal for 10(2)(b). It supports the inclusion of language relating to conditions of confinement of PWD.
Ethiopia stressed the importance of ensuring that criminal administrative processes must be assessed from a disability perspective. Disability cannot be an obstacle for a speedy trial in any criminal process.
Namibia supported the insertion of 10(1)(c) as proposed by Uganda, but placed under 10(2). It supports Korea in relation to 10(2)(a). It supports the Mexican proposals for 10(2)(d) and 10(4), but ending with the term “freedoms.”
The Disability Caucus supported the separation of Article 10 into two parts. The prohibition against arbitrary or discriminatory detention is about deprivation of liberty based on disability and is a single issue requiring its own treatment. The Caucus proposal is available at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc.
It supports the requirements of compensation as it is reflected in the ICCPR. The Caucus proposes a new Article 10bis which addresses in detail the situation of PWD who are under arrest and detention and other access to justice issues. The Caucus is strongly opposed to the use of the term “solely” in 1(b).
DPI supported the Caucus proposals and stressed two points from the consumer perspective. DPI supports the proposal of New Zealand at AHC3 regarding the need to ensure that PWD have the right to be informed of their rights and reasons for any deprivation of liberty. Second, it is necessary that humane treatment must be accorded to PWD who are under arrest and detention. The convention text must explicitly address these issues.
The Chair concluded discussions on Article 10 and introduced Ambassador MacKay of New Zealand to review the process to be followed during the remainder of the 4th session.
Ambassador MacKay expressed his appreciation for being invited to assume a coordinating role. He reviewed the process by which the WG had operated and noted his understanding that the Committee wanted to maintain this type of operating procedure. He noted that there are some substantive issues that may be problematic with some of the articles, but that others would be capable of easier resolution. He also noted the valuable drafting proposals that could be resolved quickly in the main informals. There would be informal plenary sessions, without parallel sessions. He also noted that facilitators are assigned to the articles under consideration in the second reading. All meetings would be open-ended, and no meeting would be closed. He noted the WG experience where it was helpful to have recourse to smaller groups guided by facilitators, and that not all delegations would feel the need to attend, though those with particular issues on an article should, where possible, attend the smaller informals. All delegations are free to raise issues with the draft at any point, though they are encouraged to make use of bilateral consultations as well as smaller meetings with facilitators where they have an issue with a particular article. He reminded the Committee that “the perfect is the enemy of the good” and that “nothing is agreed until everything is agreed.”
The Chair thanked Ambassador MacKay and opened the floor for discussion of Article 11.
ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Chile supported 11(1) in terms of the reference to medical and scientific experiments as well as Thailand’s proposal in 11(2). Forced institutionalization is addressed in Article 12 and should therefore be addressed in that Article.
Mexico supported the WG text in 11(1). In 11(2), Mexico supports the deletion of the second part of the WG text. Monitoring conditions in facilities is important and Mexico proposes a modification to its new sub-paragraph 3, submitted at AHC3.
South Africa stressed the importance of ensuring the elimination of inhumane and degrading treatment of PWD. It rejected the formulation offered by Algeria, which is qualifying language that weakens existing international law. South Africa noted that the Indian proposal to insert the terms “violence and abuse” is not necessary as there is a separate article on the topic. It supports Thailand’s proposal which widens the scope of scientific experimentation covered. India’s proposal for 11(2) is “strongly supported.”. It does not support the reference to the Optional Protocol to CAT, and supports the placement of the reference to monitoring in the section on monitoring.
China does not support referencing forced institutionalization or forced interventions in 10(2). It is difficult for China to accept the Mexican proposal concerning monitoring facilities in new subparagraph (3). The reference to the Optional Protocol to CAT is problematic.
Venezuela supports the merger of Articles 11 and 12. It supports moving the Mexican proposal on monitoring to Article 25. It supports the proposal of Thailand in 10(2) and India in (2), but amended to delete the reference to third party interests.
Yemen proposed the following language for 11(2): “States Parties shall prohibit scientific or medical experimentation in toto with regard to PWD.” It will submit additional proposals to the Secretariat.
The Secretariat announced a fire drill scheduled for August 27. Because of the difficulties in having members of the Ad Hoc Committee participate in the drill, as well as the need to close the building, the morning session for August 27 would begin at 11:15.
ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (Contd)
India reiterated its position on 11(2). It endorsed China’s view that 11(3) be deleted.
Guatemala supported the original wording for 11(1) and 11(2), and supported Mexico’s proposed wording for 11(3).
Thailand proposed deleting the latter half of 11(2), completing 11(2) with “the free and informed consent of persons concerned.” The idea of forced intervention or institutionalization has already been addressed in 10(1)(b), and need not be repeated here. 11(3) does not need to be here and could be deleted.
New Zealand noted that institutional and involuntary care of PWD has historically violated many rights, and it is not surprising to find clauses prohibiting or limiting institutionalization or involuntary care throughout the text. However, the approach is often repetitive and confusing. The right to refuse treatment and scientific experimentation is a major issue warranting creation of a separate article. Clauses 11(2), 12(2) and 12(j) and (k), should be brought together in a revised 11 addressing the right to free and informed consent to any intervention, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da11.htm.
Aspects of 11 related to torture or cruel or inhumane treatment should be moved to Article 12. Acknowledging that some NGOs believe mention of involuntary treatment, even in relation to safeguards, could diminish PWDs rights, New Zealand supports the EU that forced institutionalization should be considered illegal save in exceptional circumstances. These exceptional circumstances should only apply to involuntary treatment, which is a sub-set of forced institutionalization, and must be prescribed by law, not be based solely on disability, and there must be legal safeguards. States should ensure that involuntary treatment is minimized through provision of better care, encouraging voluntary treatment, and also through the promotion of alternatives, such as advance directives. All compulsory treatment should be provided in the least restrictive settings possible.
Canada reiterated support for proposals by China and the EU to delete references to forced intervention and forced institutionalization in 11(2). These issues are better addressed in Articles 10 and 12. Regarding Mexico’s proposal for 11(3), the reference to the Optional Protocol of the Convention Against Torture could be problematic, as that instrument is not yet in force. On a preliminary basis, Mexico’s revised language is acceptable. New Zealand’s proposal is also interesting.
Malaysia supported deletion of 11(3), and proposals of China and the EU to delete references to forced intervention and forced institutionalization in 11(2).
Qatar supported Article 11 as it appears. Its formulation is consistent with humanitarian and religious law, and appropriately establishes the minimum rights for PWD.
Lebanon indicated it would delay commenting on Article 11 until it had had sufficient opportunity to examine the recent proposals from New Zealand and Mexico.
The Netherlands (EU) stood by its earlier proposal to delete the last part of 11(2), and would study the new proposals from New Zealand and Mexico with interest.
The Chair opened the floor for NGOs
The Disability Caucus began by identifying its members as those disabled people’s organizations and allied NGOs attending the Ad Hoc Committee meeting.
The Caucus supported the Mexican proposal to refer to other human rights instruments to assist in monitoring obligations under this article. Acts that would be considered torture in other contexts should not be permitted against PWD because they are carried out by medical personnel or others claiming that the interventions are for the benefit of the person concerned. Delegates should consider the use of mind altering drugs or similar procedures to “correct” a disability against a person’s will as torture. Forced institutionalization falls within the category of torture and other cruel, inhuman or degrading treatment or punishment, because “it is essentially the putting into concentration camps of people based on who they are rather than anything that the people have done or any legitimate reason for States to deprive people of their liberty.”
ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE
New Zealand stated that there are no valid exceptions to the right to be free from violence and abuse. These provisions should be retained in a separate article, in order to prevent confusion with the right to free and informed consent, where some States consider that there may be some exceptions regarding involuntary treatment. If the New Zealand proposal for Article 11 is accepted, 12(2) should be deleted and a clause from 11 regarding torture and cruel, inhuman and degrading treatment or punishment should be added. New Zealand reaffirmed its proposals from AHC3, and also supported the EU in moving the first sentence of 12(1) to the Preamble, and deleting 12(3) which is repetitive of 12(1).
Palestine supported the Kenyan proposal on armed conflict, but the first sentence should be amended to read “including foreign occupation” after “armed conflict.” Foreign occupation is an outgrowth of armed conflict and often includes the same elements of abuse, violence, mistreatment and hardships, especially for PWD.
Chile supported the Korean addition of “abandonment” in 12(1) as one of the gravest manifestations of violence and abuse. It supports New Zealand in the addition of “economic abuse,” because many PWD do not enjoy equal salaries as non-PWD. It also supports Kenya’s proposal on armed conflict. The language in 12(3) should mirror that used in the second part of 12(1), and begin “The States Parties shall take all appropriate measures, legislative, administrative, social, and educational and other kinds to protect them,” with the rest of 12(3) unchanged. Chile supports New Zealand regarding the need for those working with PWD to recognize and prevent cases of abuse or violence, as well as the need for independent supervision. It supports the EU proposed 12(3)(bis), recognizing that forced interventions are unlawful, as well as Mexico’s proposal for the end of the article.
The Netherlands (EU) reiterated its proposal to delete the first sentence of 12(1), as it merely states a fact and not a rule. The wording should be placed in the Preamble. It also provided a new proposal for 12(2), to replace its proposal from AHC3. Four new paragraphs would replace current 12(2) and are available at: http://www.un.org/esa/socdev/enable/rights/ahc4eu.htm The current subsequent paragraphs 12(4), (5) and (6) would become 12(6) (7) and (8). The EU proposes “abduction” and “harassment” be included in the list of forbidden behaviors in 12(1) and (4) and (5). To better account for the situations where prosecution is left to the discretion of the prosecutor, 12(6) should read, “States Parties shall put in place effective polices and legislation to ensure that instances of violence and abuse against PWD are identified, investigated and, where appropriate, prosecuted, and that protection services are available in such cases.”
South Africa supported the proposals of Sierra Leone and the EU for 12(1). It opposed the proposals of China and Argentina eliminating the terms “sexual exploitation” and “abuse,” as these are daily forms of dehumanizing abuse for many PWD. It does not support Jordan’s proposal to include “and their families,” as this would widen the scope of coverage to other family members who may not have a disability. It supports the Canadian proposal for 12(2), but not the EU proposal which only addresses medical issues. The Kenyan proposal on armed conflict is good but misplaced in 12.
South Africa supports the EU amendments to 12(3) to delete repetition of 12(1). Regarding the EU’s 12(3) bis, it has the same substance as Canada’s proposal for 12(2). It supported Uganda’s proposal for 12(4), as well as New Zealand’s addressing independent monitoring of institutions. PWD must be part of monitoring and the results of such monitoring made public. South Africa supports the Philippines proposal in 12(5) introducing the concept of rehabilitation, as well as New Zealand’s inclusion of economic exploitation and abuse. India’s proposal to replace “ensure” with “endeavour” in 12(6) weakens the text. A better proposal is Canada’s “encourage,” as encouraging people to report instances of violence and abuse is a more realistic State obligation.
Mexico supported moving the first sentence of 12(1) to the Preamble. The Chile and New Zealand proposals including physical, mental and economic abuse are important to reflect the wide variety of abuses against PWD. Mexico supports Canada’s proposal in 12(2), but it should be considered in light of more recent proposals. Kidnapping should not be included in 12(2), as this is a crime committed by individuals. Mexico supports the Kenyan proposal on armed conflict, but it should be placed elsewhere. In 12(3) it is important to reference the role of education and training. Mexico supports New Zealand’s proposal in 12(4) reflecting the need for supervision of institutions and programmes. Measures to prevent psychological and physical abuse in 12(5) should be retained. Mexico favors a paragraph in 12 dealing with “judiciary resources.”
Norway supported the EU proposals to move the first part of 12(1) to the Preamble, and to include “harassment” and “abduction” in the second half. The EU re-draft of 12(2) is good, but it is questionable whether involuntary interventions and free and informed consent should be dealt with here. The New Zealand proposal should be considered.
Venezuela supported Korea’s proposal to include “abandonment” in 12(1), and Mexico’s proposal to include economic references. The first part of 12(1) should be placed in the Preamble, and 12(3) should become 12(1). Venezuela supports the New Zealand proposal, except that reference to families should be retained and expanded to include those associated with PWD. The first sentence of 12(3) should read, “The States Parties shall also adopt all those measures relevant to preventing violence, physical, mental or economic abuse, neglect, abandonment or negligent treatment, maltreatment or sexual exploitation, lending support to persons with disabilities, their families and their associates, including those that provide information and education to them as to how to avoid, to recognize and denounce such instances.” It supports India’s proposal for 12(3), but “into society” should replace “into communities.” 12(4) is important, but issues of monitoring should be addressed in Article 25. 12(5) should include economic abuse, and also insert “neglect” after “abandonment.” Venezuela supports New Zealand’s proposal for 12(5). It also supports Uganda’s proposal, although it should be placed in the Preamble. References to sterilization or forced abortions of PWD should not appear in 12(5). It is important for PWD to be able to make choices about their bodies and States should be vigilant about this, but this issue should be addressed in 25.
Syria supported Kenya’s proposal on armed conflict, as well as Palestine’s amendment to refer to foreign occupation. Syria is flexible as to placement of the proposal.
Lebanon stated that although the first part of 12(1) is preambular in nature, the text is strengthened by retention of this language. In 12(3), “including economic, sexual exploitation and abuse” should be inserted after “maltreatment or exploitation.” Economic exploitation such as forced labor must be recognized in the convention.
Kenya supported Uganda’s proposal on forced sterilization and abortion in 12(5). Uganda’s proposal should be amended to “shall ensure” rather than “reaffirm.”
Canada welcomed suggestions to streamline 12 and remove repetition. Canada supports proposals to delete the first sentence of 12(1) or move it to the Preamble. The EU’s revised proposal for 12(2) is something Canada could support at this stage. Suggestions to reference and provide support to family members, e.g. in 12(3) are of concern, as they detract from the proper focus of the convention which is PWD themselves. Canada supports South Africa’s proposal that a reference to armed conflict be placed elsewhere, perhaps in the Preamble. Canada reiterates its proposal that “ensure” in 12(6) be replaced with “encourage,” for reasons provided by South Africa.
China noted that Article 12 needs to be streamlined. The first sentence of 12(1) should be deleted as it repeats 12(3). Regarding 12(6), the Working Group text is a good basis. China does not support the two paragraphs proposed to follow 12(6), as they are not helpful in strengthening the focus of the article and could lead to controversies.
Republic of Korea noted that PWD and their representative organizations must be utilized in effectively preventing, identifying and combating violence and abuse. For this reason, “education of persons with disabilities and support to persons with disabilities and their representative organizations to effectively monitor and combat violence and abuse” should be added at the end of 12(3).
Japan supported the removal of 12(1) to the Preamble. Caution should be taken in drafting to not stereotype PWD as vulnerable and necessarily targets of abuse. The monitoring provisions in 12(4) are of particular importance, because institutions should be “safe havens” for PWD. Japan will study the EU proposal carefully.
Serbia & Montenegro welcomed proposals from the EU and New Zealand, which hopefully can be merged, as well as the Canadian proposal. It supports the removal of the first sentence of 12(1) to the Preamble, and in the second sentence addition of “abandonment” by Korea, “mental and physical abuse” by Mexico, and “economic exploitation” by New Zealand. The Kenyan proposal on armed conflict is welcome, but should be placed elsewhere. Coverage of armed conflict should not unnecessarily duplicate the Geneva Conventions or other humanitarian law.
Costa Rica supported removal of 12(1) to the Preamble. It supports the proposals made by New Zealand, especially for 12(4). It must be studied further, but in principal Costa Rica supports the EU proposal from AHC3. Both armed conflict and natural disasters should be addressed, and it supports the proposals of Kenya and Palestine, though has concerns regarding placement. Article 8 (right to life) is not the place for that provision, and ideally armed conflict should appear in a separate article or be retained in 12. It supports the Ugandan proposal for 12(6).
Bahrain supported the deletion of 12(1), and its removal to Article 4 on general obligations. Paragraphs 12(2), (3) and (4) should be moved to Article 11, and the title amended to read, “The right not to be subjected to torture, cruel, inhuman or degrading punishment.”
United States opposed inclusion of a sentence on armed conflict, which already appears in Preamble (p).
Israel stressed PWD are very vulnerable to violence. Inaccessible investigative and legal processes deny PWD the opportunity to be heard and to provide full statements and evidence. Offenders anticipate they will not be successfully prosecuted, leading to more abuse of PWD. Article 12 should include provisions making investigative and judicial procedures accessible to PWD, and States should ensure the accessibility of legal proceedings. Israel’s proposal for 12(6) to address these concerns is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da12.htm
Sierra Leone noted it is important to distinguish between those disabled as a result of armed conflict, and PWD who find themselves in need of assistance during situations of armed conflict and natural disasters. The treaty should address how to help this second group and not just in the Preamble.
Jordan supported the position of Sierra Leone that reference to armed conflict be included in the Preamble as well as elsewhere in the convention.
The Chair opened the floor for NGOs.
The Disability Caucus expressed concern that discussions of Articles 11 and 12 included proposals permitting institutionalization and forced interventions for PWD. The treaty should protect, promote and ensure the rights of PWD and not legitimize violations of rights. The Caucus introduced a revised proposal for 12, available at: http://www.un.org/esa/socdev/enable/rights/ahc4idupdate.doc
Disabled Peoples’ International supported proposals on training and information to prevent incidences of violence and abuse. It supports New Zealand’s proposal for 12(5), as “it is of paramount importance that any support offered in this context promotes and respects the inherent dignity and autonomy of the person.”
ARTICLE 13: FREEDOM OF EXPRESSION AND OPINION, AND ACCESS TO INFORMATION
Venezuela supported the title proposed by Costa Rica. In the chapeau “guarantee” should replace “ensure.” 13(a) should refer to “Braille, sign language and other means of communication.” Venezuela supports Argentina’s proposal and after “technologies” adds “methods appropriate to different disabilities.” It supports both the New Zealand and Mexico proposals for 13(b). In 13(e) Venezuela supports Uganda and Costa Rica’s proposals, but replaces “care givers” with “associates,” and after “interpreters” would say “sign language interpreters.” It supports Uganda’s proposal for 13(1)(h) and Lebanon’s proposed 13(2).
Mexico proposed a new chapeau: “States parties shall ensure enjoyment of the right to information, expression and opinion, as well as communication to persons with disabilities, using means of communication of their choice including, when appropriate, Braille and sign language, so that persons with disabilities may request, receive and share information on an equal footing.” In 13(a) Mexico supports the EU proposal to change “public” to “official.” Regarding specific formats the original wording should be retained, as it is simpler and avoids omitting formats and limiting the article’s scope. 13(b) should include “and promoting” at the beginning. In 13(c) Mexico proposes: “offering education, training to non-disabled persons wishing to communicate with persons with disabilities, their families and the general public, to use alternative communication modes.” Mexico supports 13(e) as drafted.
Republic of Korea noted there is no reference in Articles 13 or 18 to access to political or electoral information, and Korea proposes to add a paragraph available at: http://www.un.org/esa/socdev/enable/rights/ahc4da13.htm In 13(b) “accepting” should be replaced with “recognizing.”
South Africa opposed Israel’s proposed title, as it would limit the scope of the article. It supports Costa Rica’s proposed chapeau, as well as Liechtenstein’s replacement of “alternate” with “appropriate.” It supports the proposals of Japan in 13(a) as provision of public information should be left to the States, whilst retaining “without additional cost.” South Africa supports the New Zealand proposal in 13(b), but would refer to “a variety of suitable modes of communication.” In 13(f), proposals seeking to force private entities to provide particular services are not appropriate, and the original language should be retained. South Africa supports Lebanon’s proposal in 13(2), amending to say “to ensure that these technologies are developed, provided and also made available to persons with disabilities at the earliest stage possible.”
Japan stated that Article 13 is of great importance the rights therein lie at the core of civil and political rights. However, as drafted 13 touches upon both public and private spheres, and it may be difficult for States to implement. 13(a) should begin, “Taking appropriate steps to provide..." or, "provide...to the maximum of its available resources," as in Article 2 of the International Covenant of Economic, Social and Cultural Rights.
Chile supported Liechtenstein in using “appropriate” in the chapeau, but “alternative” should also be retained. Where possible, generic terms for modes of communication should be used, to ensure breadth and relevancy over time. In 13(b), “incorporating” should replace “accepting,” as this is more binding. In 13(c) Chile supports the proposals to address the training of non-disabled persons. In 13(f) and (g) it supports Jordan’s proposal to replace “encouraging” with the stronger “requiring.” Not all private entities would be affected by 13(f), only those providing services to the public. Chile also supports Trinidad and Tobago in ensuring public entities are also obligated by (f).
Qatar spoke in support of those who stressed the need to refer to Braille, “since it is one of the modes of communication that has been omitted.”
Jamaica expressed concern about any title omitting the concept of freedom of expression. An alternate shorter title could be, “Freedom of Expression and Access to Information.” It questions the EU proposal to replace “public” with “official,” given that “public” would include services and information that are not official but that are available to the public. 13(a) and (f) address similar concepts and could be merged.
Thailand reiterated its position that “public” be retained in 13(a). It also supports use of “recognize” rather than “accept” in 13(b). Articles 13(d) and 4(1)(f) could be merged. Requiring private entities to provide accessible information to the public is of great importance, as failure to do so would limit access to information by PWD. It supports Uganda’s proposal for 13(h), but would amend to say “recognize and/or develop,” as many sign languages already exist but have not yet been recognized. The Disability Caucus draft has many useful provisions to add to 13, especially regarding freedom of expression that is not yet fully developed in 13. Thailand supports Korea in addressing access to political information and systems, which could be placed here or in Article 18.
Canada expressed concern that 13 is reflective of a problem throughout the treaty, “namely that on occasions it becomes very much a prescriptive, action-plan oriented document, rather than the principled instrument that we had hoped it would become.” There is overlap with Articles 17, 19 and 20, and some merging would be appropriate. It supports Thailand in the need for more on freedom of expression and opinion, with sub-paragraphs (a), (b), (e) and (f) coming closest to addressing that right. In 13(a) Canada supports the EU, but shares concerns regarding the replacement of “public” with “official.” It does not support the Moroccan proposal regarding taxation, as that is a matter of state sovereignty. In 13(b) Canada supports the amendments of Mexico and New Zealand. The texts of 13(e) and (f) are fine as drafted, though Canada is flexible regarding the level of obligation “in the prompt” of (f).
Yemen reiterated its proposal for 13(c), made during AHC3.
New Zealand opposed Costa Rica’s proposed title, as there is no recognized “right to communication.” It is preferable to use the formulation in Article 19 of the International Covenant on Civil and Political Rights. It supports retention of “encouraging” in 13(f) and (g), as it is not possible to oblige or ensure that private entities make information and services to the public accessible. Placing such obligations on the media “would be contrary to States’ obligations to preserve freedom of expression and opinion for the media.” New Zealand retracts its proposal to use the term “modes of communication” in 13(b) and (c), as it has a particular connotation for some PWD. “Means of communication” should be used instead. It also withdraws its objections to “alternative,” as it is indispensable in this context. Sign language is a first language and should not be included in the text as a sub-set of alternative means of communication. The chapeau should read, “States Parties shall take appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion, and to seek, receive and impart information on a basis of equality with others. This right shall include the freedom to use sign language and alternative means of communication.” In addition, 13(c) should read, “Educating persons with disabilities to use sign language and alternative means of communication as required.” New Zealand supports the proposal of Thailand to move 13(d) to Article 4. New Zealand’s proposal for Article 4 is intended to be a new sub-paragraph and does not replace sub paragraph (f).
Kenya suported Jamaica and Thailand, and Canada and New Zealand in part. The Disability Caucus draft should be considered. The chapeau should read “freedom of expression and thought” to ensure inclusion of these concepts. Kenya opposes the EU’s replacement of “public” with “official” in 13(a). It supports New Zealand’s proposals for 13(b), including the use of “means” instead of “mode.” Kenya strongly supports Yemen’s proposal for 13(c). It supports the EU proposal in 13(d) to encourage research by non-state actors. It supports Uganda in 13(e). In 13(f) and (g) Kenya prefers “ensure” or “require” which are stronger than “encourage.” Kenya proposes the use of “promote” instead of “develop” or “recognize” in 13(h).
The Netherlands (EU) supported New Zealand, and expressed support for the text. 13(a) and (f) address “public” information, but affect different actors and it is confusing as drafted. Its proposal for 13(a) uses “official” to clarify that the obligation of governments is for information for which they are responsible. The EU is interested in hearing why some delegations have opposed the EU’s proposal on this matter.
Norway echoed the concerns of New Zealand, Thailand and Uganda that sign language should be recognized as a language in its own right.
Eritrea supported the proposals of Japan and Argentina for 13(a). It also supports the proposal of Yemen in 13(c). It supports 13(f) as drafted with amendments by Uganda. It also supports the Ugandan proposal regarding sign language in 13(h), and South Africa regarding provision of assistive devices and technologies
China expressed satisfaction with the text. It supports Jamaica’s proposal for the title. “Modes of communication” is mentioned many times in Article 13, and if defined should be defined here rather than in Article 3. China supports the proposals of Costa Rica and Canada for the chapeau, Japan for 13(a), and New Zealand for 13(c).
Korea supported Canada on the tendency of the text to be programmatic rather than principled. This is clear in 13(d) which refers to research but fails to include the important principle of consultation with PWD and their representative organizations.
Serbia & Montenegro supported the New Zealand chapeau proposals. It supports the EU in using “official” in 13(a), in light of distinctions between 13(a) and (f). In 13(b) it supports the New Zealand’s attempt to find the most appropriate way to refer to different means of communication. In 13(c) it supports the New Zealand and Trinidad and Tobago amendments. The New Zealand and Thai proposals to remove 13(d) to Article 4 deserves consideration. 13(e) is fine as drafted, though the EU proposal to create a separate article addressing forms of live assistance for PWD is of interest.
India proposed that 13(d) be moved to a new article on rehabilitation, 21 bis (d), as it suggested at AHC3. India supports the addition of 13(2), with “and distributed at a cost affordable by persons with disabilities” after “produced.”
Namibia supported retention of the title. It also supports use of “public” in 13(2), as this is broader than “official.” It supports the Lebanese proposal in 13(c), but would prefer “persons without disabilities” or “the general public,” rather than “non-disabled persons.” It supports the Ugandan proposal in 13(h) addressing sign language, but would prefer “recognizing and promoting” after “developing,” to take account of the varying stages of sign language usage in different countries. Namibia supports the Mexican proposal in 13(h) addressing information and telecommunication technologies, as well as Lebanon’s proposed 13(2).
Thailand supported the Canadian proposal to move some provisions of 13 to other articles. It supports the New Zealand proposals to refer to “means” of communication, as well as the idea that sign language should not be equated with other alternative means of communication.
Trinidad & Tobago supported the title proposed by Jamaica. It also supported the Ugandan proposal in 13(h) regarding sign language, and the New Zealand proposal recognizing sign language as a first language for deaf people.
Costa Rica supported recognition of sign language as a language and not an alternative means of communication. Its proposed title “Right to Communication and Information” is appropriate, as the right to information encompasses the concepts of freedom of expression and opinion.
The meeting was adjourned.
Reporters and editors of the English language issues for the Fourth Session are Zahabia Adamaly, Katherine Guernsey and Janet Lord.
For questions and feedback regarding the English language issues please write to: email@example.com.
The Summaries are translated into Spanish by the Inter-American Institute on Disability, and into French by HI.
Anyone wishing to disseminate the Summaries and/or translate them into additional languages is encouraged to do so, with the request that you please retain this crediting language - thank you.