Back to: Fourth Session of the Ad Hoc Committee
Summaries of the Fourth Session
Daily summary of discussion at the fourth session
27 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, #5
August 27, 2004
The Morning session was delayed because of a scheduled fire drill. The Chair also announced that delegations should prepare to begin the informal consultations with Ambassador Mackay of New Zealand as soon as this stage of discussions had concluded. Informal consultations would commence with Article 4.
ARTICLE 13: FREEDOM OF EXPRESSION AND OPINION, AND ACCESS TO INFORMATION (Contd.)
The Disability Caucus urged States to take appropriate actions to ensure to all PWD the same entitlements to freedom of expression and opinion as others, including through the use of sign language, Braille, plain language, tactile forms of communication, and other methods of communication of the individual’s choice. It presented a revised draft of Article 13, available at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc.
World Federation of the Deaf thanked those delegations supporting the need to distinguish sign language from other modes or means of communication. The draft text does not adequately recognize sign language as a natural language, or the need to recognize sign language in national legislation. International law prohibits discrimination on the basis of language, and this should also be addressed here. Development and use of means of communication, such as Braille and subtitling, are equally important and should be fostered in parallel with sign language. It is important to ensure that PWD enjoy the equal right to both understand and be understood.
ARTICLE 14: RESPECT FOR PRIVACY, THE HOME AND THE FAMILY
Bahrain reiterated its proposal from AHC3 to delete “adoption” in 14(2)(d), and supported the proposal of Syria and Qatar to instead use “guardianship,” which would better correspond with its national legislation.
Costa Rica reiterated its proposal from AHC3 that Article 14 be divided into two articles: 14 entitled “Respect for Privacy” as proposed by South Africa, and 14 bis entitled “Respect for Home, the Family and Intimate Relations.” Article 14 would, as proposed by the EU, address “private life” rather than “privacy,” and also “communication, information and documents,” as proposed by Costa Rica. Article 14 bis would address family and intimate relations, which require more attention. Given Costa Rican legislation, it is essential to refer to marriage. It must also be understood that issues of sexual and reproductive health do not include abortion, as life begins at conception in Costa Rican law. It supports Argentina’s proposal to refer to “appropriate measures” in 14(2) as well as the Israeli proposal including “in accordance with national legislation” in 14(2)(a). It supports Canada’s replacement of “full” with “informed” consent in 14(b). Costa Rica repeats its request for both “fatherhood” and “motherhood” to be used in the Spanish text where “parenthood” is used in the English. New Zealand’s proposals to include the best interests of the child are important, though it is unsure of also including references to the best interests of the woman. Cost Rica welcomes the EU proposals, though provision of State assistance to parents with disabilities to help them carry out their obligations as parents could be considered discriminatory, and something that should be provided to all parents and not just PWD. To facilitate discussions Costa Rica would be prepared to withdraw its proposed 14 (b) bis.
Chile supported the Qatar proposal to add a reference in 14(1) to “unlawful attacks on his or her honor and reputation.” In 14(2)(d) it supports New Zealand in stating “in all cases the interests of the child shall be paramount.” In 14(2)(e) it supports Jordan, Morocco, Thailand and Saudi Arabia, in ensuring the decision to separate a child from its parents be subject to periodic review. The proposal of Qatar at the end of 14(2)(a) addressing the situation of women and girls should be incorporated into 14(2)(f). Wherever “parenthood” is used in the English text, “motherhood” as well as “fatherhood” should be used in the Spanish.
Canada supported inclusion of issues of sexuality, marriage and parenthood. Proposed amendments addressing stereotypes and negative attitudes should be moved to Article 5. In 14(1) references to those living in institutions should be deleted as 14 applies to all PWD. References to medical records may be better placed in the article on health. Canada would prefer removal of programmatic detail in 14(2), but would not support the Holy See’s proposal to delete 14(2)(a), (b) and (c) and replace these with a short paragraph focused on marriage. Canada also opposes the proposals of Syria, Qatar, Libya, Saudi Arabia, Yemen and others seeking to “roll back” language on sexuality through references to “legitimate marriage” or “religious and social conventions.” Canada’s focus is to retain language consistent with the Cairo outcome document of 1994. In 14(2)(b) Canada thanks Costa Rica for its support of “informed” consent, and supports the Chinese proposal to replace “men and women” with “persons,” which is more consistent with paragraph 7(3) of the Cairo outcome document which refers to “couples and individuals.” It supports the EU’s re-drafted 14(2)(d) and (e), save for the last sentence on stereotyping which should be moved to Article 5. Canada supports the initiatives of the EU and New Zealand to introduce the concept of the best interests of the child.
Venezuela supported Argentina’s proposal adding “appropriate measures” in 14(2). In 14(2)(b) it supports the proposals of China to refer to “persons with disabilities” and to use “on an equal footing.” It also supports Costa Rica in developing intimate relationships “including marriage,” and India’s reference to “appropriate laws.” In 14(2)(c) it supports Mexico’s ban on forced sterilization, and Yemen’s reference to “reproductive sex.” Costa Rica supports the deletion of “solely” on the basis of disability in 14(2)(e), and Uganda’s proposal for provision of assistance to parents with disabilities. It supports the EU proposal for 14(2)(f), but would like to see a sentence addressing the need to counter negative stereotypes that challenge the right of PWD to adopt.
Botswana endorsed South Africa’s proposed title, “Respect for Privacy.” It supports use of “communication” instead of “correspondance” in 14(1), and the proposal of the Holy See in 14(2)(c). Given that concepts of marriage and family differ between cultures, and thus should be defined in Article 3.
Eritrea noted the challenges faced by PWD, particularly women with disabilities, in enjoying the right to form families. Eritrea supports 14(1) as amended by Kenya and Japan, and 14(2) as amended by Qatar. It supports 14(2)(a) and (b), without disregarding some cultural sensitivities on these matters. 14(2)(d) should retain “adoption.” It supports 14(2)(e) as amended by Uganda to include assistance for parents, and 14(2)(f) as drafted by the Working Group.
Australia supported proposals to split the article in two, as the right to privacy is distinct from other rights referenced in Article 14. Australia’s proposal is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da14.htm 14(2)(f) should be placed in Article 5 and so is not included in the Australian proposal. Where decision-making about children occurs, the best interests of the child standard must be used.
New Zealand supported retention of the Working Group text, with minor amendments such as use of “communication” and “private life” in 14(1). It supports the structural amendment of the EU to make sub-paragraphs 14(2)(d) and (e) new paragraphs (3) and (4), retaining the New Zealand addition of “and in all cases the interests of the child shall be paramount” in new (3) – an addition incorrectly reflected in 14(2)(a) of the Compilation document. It does not support adding “in accordance with national legislation,” as this phrase would negate the utility of an international instrument. New Zealand does not support addition of qualifications on the right to marriage, as this would lead to PWD have lesser rights than others. 14(2)(f) should be deleted as it is covered in Article 5. References to sexuality, sexual and other intimate relationships must be maintained. Such references are not found in other human rights conventions, as enjoyment of the opportunity to have such relationships has not been denied to other groups, but it has been systematically denied to PWD. A “guarantee for this very basic element of human existence is very essential in this text.”
Mexico supported retention of the text with minor amendments. It is flexible on the title, as long as it is broad and consistent with the contents of the article. In 14(1) there is need for breadth and reference to “different kinds of communication.” 14(2) should be broadened to refer to “their private life including” marriage etc. Mexico has concerns about proposals qualifying marriage in 14(2)(a), as the provisions should be consistent with established rights and the Cairo outcome document. Similarly 14(2)(b) should not include qualifications on the right to found a family, and Mexico proposes, “the right of persons with disabilities to establish intimate relations, including marriage, to develop them fully and to found a family on an equal footing with other persons.” In 14(2)(c) references to forced sterilization, determination of number and spacing of children, and family planning, must be retained. It endorses the proposals of the EU and New Zealand in 14(2)(d). References to elimination of prejudice and stereotypes should be retained but moved to Article 5. Mexico withdraws its proposal to submit a new paragraph at the end of 14.
Japan expressed continuing support for “correspondence” in 14(1) as being most consistent with Article 17 of ICCPR, and inclusion of “equally with other persons” to clarify that the article does not create new rights. 14(2)(a) could be simplified to “Sexuality of PWD should be respected on an equal basis with other persons,” to avoid controversy but still address this important issue. It supports the text as drafted in 14(2)(c), (d) and (e), and deletion of 14(2)(f).
Thailand supported the statements of Canada and New Zealand regarding 14(2)(a) and (b), as some of the proposals would create undue restrictions on PWD. To address concerns of some delegations Thailand proposes in 14(2)(a) to delete “equal” and add “on an equal basis with others” at the end of 14(2)(a) and (b). It supports the Mexican proposal for 14(2)(c), with retention of “retain their fertility” proposed by Thailand at AHC3. In 14(2)(d) there is no need to put emphasis on the best interests of the child, as that is sufficiently addressed in other conventions, and concerns could be addressed by including “on an equal basis with others.” It supports Uganda’s assistance for parents in 14(2)(e), and the deletion of 14(2)(f).
Holy See [no intervention taped]
China reiterated its proposal for 14(2)(b) to use “persons with disabilities” and to add “on an equal basis with other persons.” References to “intimate relationships” should be deleted in view of potential controversy surrounding their inclusion, “particularly for Islamic countries.” It supports 14(2)(c) as drafted, and especially the retention of “on an equal basis with other persons.”
United States supported the deletion of 14(2)(a) and (b) and replacement with language submitted by the Holy See at AHC3. However, 14(2)(c) must be retained, as it provides important protections of equality for PWD regarding parenthood and access to information and education on family planning.
Kenya supported New Zealand’s proposal for including “retain their fertility” in 14(2)(c), which represents a positive approach to the issue of forced sterilization. It supports South Africa’s proposals for the chapeau, and Australia’s proposal to split the article.
Yemen reiterated its proposals from AHC3, stressing the need in 14(2)(a) to reference customs and traditions. It supports protections against forced sterilization suggested by Kenya, Costa Rica, Mexico, Thailand, Serbia and Montenegro. PWD must have the right to decide freely on the number and spacing of their children. It supports Bahrain in the addition of “guardianship” in 14(2)(d). In 14(2)(e) it supports the right of disabled parents to raise their children and the provision of support proposed by Argentina and Uganda. It also supports the Qatar proposal to delete 14(2)(f).
Qatar supported the proposal of Bahrain and Yemen to change “adoption” in 14(2)(d) to “guardianship.”
Serbia and Montenegro echoed Canada, New Zealand and Mexico on need to retain the text as drafted, and ensure consistency of language with existing human rights treaties. In 14(1) it supports the EU and Argentina on use of “private life,” and Mexico on “different kinds of communication.” It supports Mexico on inclusion of private life in 14(2)(a), and New Zealand and Thai proposals regarding retention of fertility in 14(2)(c). In 14(2)(d) and (e) it supports the EU proposal available at: http://www.un.org/esa/socdev/enable/rights/ahc4da14.htm with use of “persons with disabilities” rather than “disabled persons” which may be a typo. 14(2)(f) should be deleted or moved to Article 5, though it is flexible if other delegations feel it should be retained.
Malaysia supported the amendments in 14(2)(a) by Libya and Saudi Arabia to add “within the framework of legitimate marriage,” and Yemen’s proposal to mention religious and social conventions and traditions.
Namibia addressed concerns of those who oppose inclusion of concepts such as intimate relationships on the grounds that they do not appear in other conventions. Many issues of importance to PWD are not addressed in other human rights conventions and so must be included in this treaty. Namibia supports inclusion of “all forms” of family relations proposed by South Africa in 14(2). Issues of discrimination against women with disabilities during pregnancy should be included in 14(2)(a). It supports Uganda’s proposal on assistance for parents in 14(2)(e)
Russian Federation wanted to correct the language of their proposal for 14(2)(d) contained in the Compilation document. “Exclusive” and “specifically” should be deleted, and it should read “national legislation” not “national legislations.”
Lebanon stressed the importance of including clear references to the principle of equality. Lebanon proposes to add in 14(2)(d), “that all decisions concerning adoption and other forms of guardianships, while necessarily preserving the best interests of the child, should be always taken on an equal basis with others.”
Nicaragua supported the inclusion of provisions elaborating the right of PWD to establish a family. It is important to have a paragraph that clearly reflects the right of PWD to marry.
The Chair opened the floor to NGOs.
The Disability Caucus noted that the WG draft text provides a good basis. It has prepared a revised draft of Article 14 available at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc. This draft includes a new paragraph ensuring the right of PWD to select and control personal assistants who may be needed in their homes. Caregivers should not be allowed to restrict the rights of PWD. The Caucus also proposes a new paragraph addressing adult PWD who live with family members, ensuring provision of adequate support to achieve the full inclusion and protection of rights of those PWD. Although the Caucus appreciates the motivation for singling out people living in institutions in 14(1), doing so necessarily implies the existence of institutions in the future. It is preferable to use wording that ensures application of the article to all PWD, regardless of the individual’s circumstances. The Caucus appreciates the EU’s deletion of “solely” on the basis of disability from its AHC3 proposal. In 14(2)(e) the best interests of the child language may be too extensive. One issue not addressed in any draft is the situation where non-disabled parents are given preferential custody over children following divorce from a spouse with disabilities. PWD should not be discriminated against in this manner.
ARTICLE 15: LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY
Korea noted that Article 15 attempts to take into account various cultures and models of disability, and as a result the title sounds awkward. Korea proposes instead “Independent living and community inclusion,” with independent living referring to a principle rather than a model of disability. In accordance with this title the end of the chapeau should be amended to read “enjoy independent living and full inclusion in the community, including by ensuring that: “
New Zealand noted that the WG draft presents a positive alternative to the policy of institutionalization that has historically led to many human rights abuses against PWD. Many proposed amendments seem to reflect a lack of understanding of the article’s purpose, which is to ensure that PWD have choices equal to others, to live where and as they wish in a community setting. This right is based on Article 12 of ICCPR. New Zealand proposes a revised article, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm. The revision is intended to reflect the connection between the right and steps States must take to ensure exercise of the right by PWD. The draft incorporates aspects of the EU proposals addressing avoidance of institutionalization and retaining liberty. It also includes provisions from other articles, including Article 23(1)(d) addressing housing programmes, 20(a) regarding mobility aids and assistance, and a provision from Article 9 related to equal access to opportunities for economic development and financial independence. There is also an emphasis on the need to avoid an institutional approach to support provision.
Mexico noted that the article addresses two issues: independent life for PWD, and participation and inclusion in the community. The article should require States to take measures for PWD to decide upon a form of independent life, be able to choose their place and type of residence, and a way to become integrated into the community and their families. The article must emphasize the importance of choice and PWD having the freedom to choose.
Eritrea stressed the importance of ensuring the equal opportunity of PWD to choose how, where, and with whom they live. It supports the WG chapeau, and 15(1)(a) as amended by India to reference respect for cultural practices. It also supports Morocco’s proposed new paragraph addressing the need to provide support to families taking care of PWD, to ensure inclusion of PWD in society.
Thailand stressed the need to use “self-determination” in place of “autonomy.” It is very important for full inclusion to be balanced with self-determination. Although some have expressed concern that “self-determination” has a different connotation in other instruments, it is well defined and interpreted in the disability context and should not lead to confusion of used here. References to independent living should be understood as a lifestyle, rather than a movement.
Japan reiterated its proposal from AHC3 that the sub-paragraphs of Article 15 be re-ordered and grouped according to type of right. Japan believes that 15(1)(a), (b) and (e) reflect civil and political rights, and (c) and (d) reflect economic, social and cultural rights that are subject to progressive realization.
Chile supported Mexico’s proposed title, which captures the substance of the article as well as the preamble and principles of the convention. 15(1)(a) addresses a more general principle which may be described as the opportunity to plan one’s own lifestyle. This sub-paragraph could more simply state that PWD have the right to decide their own lifestyle, and then elaborate ways to do this, eg through choosing place of residence. Chile proposes a reference to access to information in 15(1)(a) to read, “Persons with disabilities shall have access to information on support services that are available.” Chile supports the Philippines proposal for 15(1)(d), but would place in a separate sub-paragraph and amend to read, “Persons with disabilities may be members and active participants in community organizations. There will be policies and ways and means to assist persons with disabilities to meet the requirements for membership and to be able to participate.” Chile supports the EU’s proposed paragraph 15(2).
Bahrain proposed a new chapeau to read “States Parties will acknowledge the rights of PWD to live independently and to social integration. They are duty bound to take effective and appropriate measures to enable PWD to achieve that.” There is also a need in Article 15 to address access to services, and the need to attend to families and personnel involved in community rehabilitation and training.
Lebanon noted the importance of this article and welcomed language detailing means by which PWD may choose how, where and with whom they live. It supports New Zealand’s proposal for 15(1)(a). Provision of live assistance where needed is of great importance and in this regard Lebanon supports Canada’s proposed new paragraph 15(1)(f).
Mali questioned whether anyone living in a community can be truly independent, given the necessary interdependence between members of the community. As the emphasis of Article 15 is on autonomy and lifestyle, the title should be “Autonomy and integration in the community.”
Israel noted that many programmes and services for PWD are based upon functional dependency, and the concept of “independence” in this article may be interpreted by many professionals in a manner contradictory to the spirit of the convention and the idea of living in the community. The title should refer generally to the right of living in the community as a basic unconditional principle, and the article emphasize the principle that the right to live in the community and to take part in all its activities belongs to every person, along with the right to equality, regardless of the level of physical or psycho-social independence. An inherent part of the right to live in the community is freedom of choice, including freedom to define what “community” means. There are various ways of living and PWD are the only ones who can make their own choices and decisions. Israel’s proposals in these regards are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm.
Costa Rica joined those supporting the Mexican proposed title. It endorses the statements of Thailand regarding independent living as a lifestyle and not referring to the “Independent Living” movement. Costa Rica endorses the EU proposed 15(2) as a means of ensuring that the principles in 15(1) become a reality. Korea’s proposed 15 bis addressing women with disabilities should be carefully considered, as there is a danger that in disaggregating the groups of PWD we may weaken the protections that exist in other bodies of international law.
The Netherlands (EU) stated that it had no new proposals to add to those it made at AHC3, and noted that its proposed 15(2) would replace language currently in 15(1)(c). It will study the proposals of New Zealand and others with interest. The EU’s proposals for Article 15 are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm.
Canada expressed its hope that the delegations of New Zealand and the EU might work to synthesize their proposals for 15, as they seem compatible. Canada has concerns about the use of “life assistance” in its proposed 15(2) to replace 15(1)(c), as this may suggest a medical context, and is distinct from “live assistance.” 15(1)(c) could be shortened and made less programmatic through use of “disability supports,” which is a more flexible phrase and can be defined further in the appropriate section. The wording of 15(1)(d) should be rearranged to read “community services for the general population are available to p}sons with disabilities on an equal basis with others and are responsive to their needs.” Canada reiterates its proposals from AHC3 that 15(1)(b) be deleted, and a new paragraph 15(1)(f) be added.
China noted that, owing to limitations in economic development, many countries would not be able to fully realize their commitments in Article 15, and so the article should be amended accordingly. China supports the EU proposal, as it addresses many of China’s concerns regarding 15. China supports the Indian proposals for 15(1)(a). It does not oppose the proposals of several delegations to delete 15(1)(b). It supports the Moroccan proposal for a new 15(1)(f), which would guarantee inclusion in the community for PWD in a more comprehensive way.
Jamaica opposed the view that 15(1)(b) is redundant in light of 15(1)(a). History shows that PWD are often forced to live in institutional or other settings not of their choosing, and 15(1)(b) emphasizes that this must not occur.
Kenya expressed a preference for usage of broader terminology as opposed to independent living movement terms of art, which may apply only to certain places or regions. It proposes a revised 15(1)(c), with “independently” after “living” to encompass those who may be living with their families and ensure that they can made decisions independently.
South Africa supported Kenya’s remarks distinguishing independent living concepts from the independent living movement. In 15(1)(a) it supports the India and New Zealand proposals allowing for promotion of choice. It supports the inclusion of 15(1)(b) bis, as well as the EU’s proposed 15(2), though “life assistance” should be clarified. South Africa also supports Morocco and Canada’s proposals for 15(1)(f).
United States echoed the position of other delegations that the concept of “self-determination” be included in the treaty, but using a different term to avoid confusion in international jurisprudence. An alternative term for the concept could be “individual autonomy.”
The Chair opened the floor to NGOs.
The Disability Caucus noted that the right to live within the community touches upon the basic right to a home, and denial of this right is also a denial of the right to equality. The right has two sides: prohibition of forced institutionalization, and ensuring the necessary conditions to make living in the community a real choice for PWD. The prohibition against forced institutionalization should be stronger in 15(1)(b), stating “compulsory institutionalization is prohibited.” In 15(1)(a) it should explicitly state that PWD have the right to choose where and with whom they live. 15(1)(c) should also state that PWD have the freedom to choose whether to accept support, and if so how such support will be provided and by whom. Regarding people with communication disabilities, the Caucus supports Chile’s proposal ensuring that necessary augmentative communications devices are provided. In 15(1)(e) it is not enough that PWD be informed about support services, and the text should state that PWD “be provided with information about the community services and their right to access all such services.” The Caucus supports New Zealand on the need to ensure family living for children with disabilities. For PWD denied government funded supports and services, there must be access to fair appeals processes.
Bizchut – Israeli Human Right Center for People with Disabilities expressed concern that in many societies institutionalization is the default choice for PWD, even where institutionalization is not made compulsory. Life in an institution, even if not under duress, contradicts basic principles of equality and dignity by denying life in normative living frameworks in the community, and constitutes one of the most severe human rights violations. The chapeau of Article 15 should be amended to read, “States Parties recognize the right of all persons with disabilities to live within the community in a living setting which reflects the general norm in a given society. In accordance with this principle, States Parties shall take effective and appropriate measures to enable PWD to live independently and be fully included in the community.”
Inclusion International strongly supported inclusion of an article on living in the community, as a means of ensuring enjoyment of this right by PWD. People who have not committed crimes should not be locked away, and families should not be encouraged to give up their children with disabilities. Segregation of PWD in institutions encourages society to view PWD as different and sub-human, and provides opportunities for denial of medical care and many other forms of abuse. Institutionalization is often regimental and counter-productive to teaching people the skills they need to live in the community. The AHC should look to positive examples of programmes of de-institutionalization, such as that practiced in New Zealand, for guidance on how to make community living a reality. PWD must be part of the design and implementation of efforts to move PWD out of institutions and into community living settings.
Disabled Peoples’ International supported the inclusion of Article 15, which gives explicit expression to the principle of autonomy and responds to the situation of many PWD around the world who are isolated and segregated from their societies and could be living in their communities. DPI supports the proposal for inclusion of a specific reference to support services to facilitate independent living for PWD. The concepts of independent living and community inclusion are not contradictory and have relevance in all cultures. Whether a PWD lives with their family, on their own, or in another living arrangement the essential component is that their right to freely choose be respected and honored.
World Network of Users and Survivors of Psychiatry highlighted the contrast between discussions of Article 15 that largely centered on issues of autonomy, self-determination and choice, and discussions of Articles 10 and 11 where many delegations wish to perpetuate forced institutionalization in various contexts. Institutionalization is degrading and dehumanizing, and unless forced institutionalization is addressed in Article 15 there will be two classes of PWD created: those who will be covered by the autonomy provisions of 15, and those who will be subject to forced institutionalization under Articles 10 and 11. Community living should not be just an experiment, but should be understood as a right. Societies need to commit to providing support to everyone in the community, and fundamentally changing how PWD are included rather than segregated.
League for Assistance for Disabled People introduced itself as a regional organization based in Moscow. It supports the provision of economic support to promote the physical, spiritual and social well-being of PWD. Article 15 will lead to multiple programs that will need monetary support, and corporate social responsibility must play a role in this effort. Article 4 on general obligations should include a provision the indicates the importance of government participation in social issues and appreciation of the importance of corporate social responsibility. Delegates should keep in mind the problem of population growth, and should consider expanding the convention to address the needs of the elderly. Addressing the collection and use of data and statistics is also important. The League has produced draft convention text that has been delivered to the Secretariat.
People with Disability Australia Inc. / Australian Association of Legal Centers / Australian Federation of Disability Organizations issued a joint intervention in support of the WG formulation. The ability to live independently in the community with support services is fundamental to the realization of many human rights. Continued institutionalization of PWD remains “one of the greatest abuses of the human race.” The convention must place unequivocal obligation on state and non-state actors to cease institutionalizing PWD in disability-specific settings, as well as age-care facilities and other institutional settings. In this respect it is important for (b) to be strengthened to require states to eliminate institutional care, rather than merely not oblige PWD to live in institutions. If institutional care is the only form of residential housing available then PWD will have no choice but to live there. This article should require States to develop and implement plans to relocate PWD who are currently institutionalized into the community, along with the supports they require for successful community living. It is also important that (c) be particularized to the circumstances of families with children with disabilities. Children must be enabled, wherever possible, to grow up in the context of family, preferably their birth family, but if this is not possible then a substitute family, with provision of any support services necessary for this to occur.
ARTICLE 24 bis: INTERNATIONAL COOPERATION
Morocco reminded delegates that international cooperation need not necessarily be north-south, but can also be south-south and south-north. It addressed the draft article submitted by Mexico at AHC3 (available at: http://www.un.org/esa/socdev/enable/rights/ahc3intlcoop.htm#mexico ), and presented an amended text agreed upon by the African Group, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da24bis.htm.
Chile expressed appreciation for the Mexican proposal, as it puts in a specific article aspects of the preamble, as well as principles proposed to be included in convention. The proposal gives details as a way to orient states in implementing international cooperation. This is particularly important for developing countries. In general terms Chile supports the Mexican draft, but would like the beginning of 24(3)(c) to read “Supporting capacity building within civil society, particularly for PWD, to engage more effectively and constructively with States Parties … ” Chile would also appreciate an explanation for the rationale of the Israeli proposal for this article (available at: http://www.un.org/esa/socdev/enable/rights/ahc3intlcoop.htm#israel), which calls for international and regional cards for PWD.
Costa Rica thanked Mexico, China and Vietnam for their proposals, and Morocco for its comments on the nature of international cooperation. South-north international cooperation is a reality and should be utilized. Costa Rica supports the Mexican proposal with some minor amendments. In the second sentence of the chapeau, Costa Rica proposes insertion of “among States” after “experience and international cooperation,” as international cooperation occurs first and foremost among States. Although other paragraphs in the Mexican proposal are important, they may be too detailed when the chapeau along may suffice. The Chinese proposal to mainstream disability in programmes on cooperation available at: http://www.un.org/esa/socdev/enable/rights/ahc3intlcoop.htm#china. should be added to the Mexican chapeau. This will provide a way to implement commitments that are entered into by states within context of this convention. Costa Rica would like more information on the rationale for the Israeli proposal in (f) regarding cards for PWD.
Japan supported the Mexican proposal, which is very comprehensive. Japan is supportive of the Mexican proposal in principle, and the elements of that proposal, though it does seem disproportionately long and should be streamlined. Regarding the Israeli proposal for 24 bis 2(e) and the establishment of research and development funds, Japan believes that existing mechanisms should be more fully utilized before establishing any new ones.
China noted that international cooperation is very important, and should be included as a core element of this treaty as indeed it should be included in every international convention. International cooperation should be addressed in a separate article, as well as in the article on general principles. Given the current numbering, it could be in a new article 26. China appreciates support for its proposal, available at: http://www.un.org/esa/socdev/enable/rights/ahc3intlcoop.htm#china , though notes Vietnam and Mexico have made similar proposals. As the Chinese proposal includes only the most important elements, the best approach may be to merge it with other proposals.
The Netherlands (EU) reiterated its position that implementation of the convention will be the responsibility of States Parties, and such implementation must not be conditional on receipt of international aid or assistance. The EU is open to considering a provision regarding international sharing of information, exchange of experience and best practice, in order to assist implementation. In this regard the EU has made proposal related to international cooperation for both the Preamble and Article 4, based on Article 4, CRC. The EU is grateful to Mexico, China and Vietnam for their proposals, but is not convinced of the need for a specific article on international cooperation. Having studied those proposals it sees merit in the approach of the Chinese proposal, though has “serious questions” about the language in that proposal. The Vietnam proposal raises important issues, but these are dealt with in other parts of treaty. The Mexican proposal is very detailed but could not serve as a basis for discussions on this topic. It is conceptually unclear, unclear as to the obligations on States Parties, and also creates obligations for non-States Parties such as the UN. The language used in that proposal is more appropriate to a resolution rather than a treaty. The EU stand read to continue discussions on the necessity of including international cooperation and how to include it.
Thailand supported inclusion of the concept of international cooperation. Thailand is grateful for the proposals of Mexico, China and Vietnam, and is willing to discuss how the article can be formulated. It reiterates its proposal from AHC3 for 24 bis (1)(c), that the concept of disability inclusiveness be addressed in any existing or future international cooperation programs and agreements. This will “cause no harm to anyone,” whether it is part of a separate article or addressed within Article 4 on general obligations. Thailand is supportive of the sharing of knowledge and information, a practice it supports at both international and regional levels.
New Zealand agreed international cooperation is a very important issue, especially in this context, and is open to some mention of it. The Mexican proposal is too detailed, with language more appropriate to a resolution addressing implementation than a legally binding document itself. New Zealand thanks Mexico for its inclusion for a list of sources used in preparation of the proposal, though notes that many are themselves detailed programmatic documents, or treaties that are scientific rather than rights-based documents. New Zealand looks forward to further discussions on this topic and hopes such discussions will occur in a less detailed context. The Chinese proposal is a good basis, as it includes only the most essential and important elements. New Zealand supports China’s inclusion of mainstreaming disability in international development program frameworks. It would prefer further discussion be based on such a succinct concept and provision, rather than a very detailed / resolution-style proposal.
Canada fully supported the remarks of the EU, and to a large extent New Zealand’s comments. International cooperation is a very important principle, but it should not be a condition for implementation. The primary responsibility for implementation rests with States. Canada appreciates the Mexican proposal, but it is too prescriptive and programmatic, though it would be an excellent basis for a resolution on implementation of the treaty. Canada appreciates the streamlined proposals of China and Vietnam, but these also” take the convention away from the principled approach into the realm of programmatic action.” Canada concedes international cooperation will need to be addressed by the treaty, and supports the EU approach of addressing the issue in the Preamble. Any language on the issue should be based on existing human rights instruments, such as Article 4 of CRC, and Articles 22 and 23 of ICESCR. Canada is aware of discussions to include NGOs in any international cooperative framework, and as a core funder of Disabled Peoples’ International is supportive of discussions on such capacity building. Canada also supports suggestions of the EU to include references to information exchange and sharing of best practices.
Norway supported the remarks of the EU, and New Zealand in particular. Norway welcomes the issue of international cooperation in the treaty, as it is an important aspect that should be reflected upon. However, Norway is not yet convinced of the need for a separate article. It could be addressed in other ways, such as in the Preamble as suggested by Canada. Norway is willing to be flexible, but if discussions move towards a separate article, the basis for discussions should be a short and succinct proposal such as that submitted by China. The Mexican proposal is too long, detailed, and prescriptive for a convention.
Cuba identified a number of challenges for developing countries seeking to promote the human rights of PWD, including shortage of resources, poverty, foreign debt, “imposition of neo-liberal policies,” globalization, and a “prevailing unjust world order.” International cooperation is “essential” to “establish a just and democratic international economic environment which would be the only genuine way to move forward to promote and protect the human rights of PWD.” Financial flows towards developing countries should be promoted through compliance with commitments in official development aid. Mexico’s proposal, although lengthy, sufficiently covers the aspects of international cooperation within the framework of this convention. It supports Costa Rica regarding sharing of knowledge and experience “between States” and “between States and” the various organizations in the chapeau. Cuba also supports the Moroccan proposal to address progress and challenges in 24 bis (1)(b). 24 bis (1)(e) should be replaced with (c) from the Chinese proposal, referencing technical and economic assistance for developing countries, including technology transfer. Cuba would like more information regarding the Israeli proposal for 24 bis (1)(f). In (2) of the Mexican proposal, Cuba supports the Israeli proposal to include “including the establishment of bilateral, regional and international research and development funds,” which would assist with technology transfer for developing countries. Cuba also supports the Israeli proposal for (3)(a) of the Mexican proposal, “including partnerships and cooperation agreements between local and municipal authorities,” where national institutions could also be referenced.
Mali supported the proposal of Morocco and the African Group, and thanked Mexico and China for their attempts to give meaning to international cooperation from the standpoint of developing countries. There is much interdependency in the world, and while there is interest in establishing international cooperation between north and south, and east and west, this interest ultimately stems from human dignity, which is an interest of all civilizations.
Philippines stated that international cooperation should be an integral and necessary part of the treaty, and thanked Mexico, China and Vietnam for their proposals. Although national implementation should not be contingent upon international cooperation, it remains a critical aspect of the “equation.” The treaty should not be just an enumeration of rights for PWD, but should also contain a realistic and achievable set of measures for implementation, among which is international cooperation. Inclusion of an article on international cooperation would be a testament to the sincerity of the international community to “uplift the lives of PWD.”
Jamaica reiterated its full support for inclusion of an article on international cooperation. Responsibility lies at the national level but many countries face limitations, and there is a need for partnerships in the international context. In response to the EU, New Zealand and Canada’s comments that there is no precedent for inclusion of this article, in articulating this convention “there are new grounds which should be broken and this should be one such new ground.” Jamaica is flexible and willing to make the article more acceptable to all, but believes 24 bis has a place in the treaty and in realizing the “noble objectives” of the convention. It supports Costa Rica’s proposal that the chapeau reference “among States,” as bilateral cooperation is also envisaged. Jamaica supports Canada’s position that organizations of PWD should be included in international cooperation programs. In 24 bis (3)(c), it supports the Chilean proposal to add “for persons with disabilities” after “supporting capacity building.”
Vietnam stated that international cooperation is an important principle for implementation of the convention. It agrees with Thailand and the EU on the need to share experiences and best practices related to implementation. It supports the proposals of Mexica, China and others, and hopes that discussions will produce the best article on international cooperation for the treaty.
United States while reserving on some points [not specified], it endorsed “in principle” the interventions of the EU, New Zealand, Canada and Norway.
Mexico expressed thanks for the support and comments on its draft article. Mexico’s intention was to provide a common understanding of what international cooperation would mean in the framework of this convention, “and avoid misunderstandings and confusion.” A general or limited reference to international cooperation, as is found in other human rights treaties, would not make clear what States and other actors should do in relation to this treaty. International cooperation must be a complement to national efforts, and implementation of the treaty should not be contingent upon the level of international cooperation. It should be viewed in a broad context, and include exchange of information and best practices, scientific research, training, awareness, cooperation among disabled people’s organizations, development of technologies, and not simply a transfer of resources or economic assistance. It should be provided at bilateral and regional levels, as well as in multi-lateral fora, including specialized agencies and financial institutions. The nature of this treaty opens the way to providing innovative means for international cooperation involving different actors, so that it meets the specific needs of PWD. This has been done already in the frameworks of other international instruments, involving various organizations and bodies. Mexico is prepared to work constructively to reflect all of the concerns and observations made, to reach an agreeable article.
Serbia and Montenegro thanked delegations that had submitted proposals and explanations, including China and Vietnam, and especially Mexico. Serbia and Montenegro associates itself with statements of the EU, New Zealand, Canada, Norway and the United States. It reiterates its position that international cooperation is significant, and feels that Article 2 bis could provide a good approach, and could be placed in Article 4. However, if others agree on a more detailed text Serbia and Montenegro is prepared to go along, but prefers to keep any article as short as possible.
Colombia joined in support of inclusion of this article, and thanked Mexico for introducing it. International cooperation means active participation of States and civil society towards a common objective. It is not merely assistance or aid, nor should it be seen as a condition overtaking national responsibilities.
Trinidad and Tobago supported Mexico’s initiative to include a separate and specific article on international cooperation, which “raises international cooperation to the normative level.” Mexico’s proposal is comprehensive, clearly establishes the duty of states to cooperate with each other, and envisages an important role for international and regional organizations, as well as civil society and the private sector. International cooperation relates not only to financial flows, but also other areas of cooperation which can help in bringing about full implementation of national level obligations that States freely assume to assist PWD. Inclusion of such a provision in a multi-lateral treaty of this nature is essential. For the text of the article, it may be necessary to place the paragraph proposed by Argentina for Article 4 in another part of convention.
Malaysia joined in thanking Mexico, China and Vietnam for their efforts in introducing 24 bis. An article on international cooperation has a legitimate place in this convention, as it has been proven that no one country, particularly a developing country is able to realize the right to development of its population without support from the international community. Malaysia supports Morocco’s proposal and looks forward to discussing the text in further detail.
El Salvador noted that it struggles to achieve development on a daily basis, and agrees that international cooperation must be included. It thanks countries’ proposals and supports Mexico’s statement. As Colombia noted, international cooperation is not a way of “ducking” national responsibilities, but a means of strengthening and supplementing national efforts. Since the work is national and international in nature, El Salvador supports the detailed and wide-ranging proposal submitted by Mexico.
Venezuela supported the Mexican proposal. Other delegations have solely looked at economic issues, but this goes further. PWD need technical knowledge and assistance. We need “true assistance relating to everything that will help us join in society.”
Lebanon reiterated it position that there is a need for the treaty to reflect a spirit of cooperation, solidarity and interdependence among states. There must be balance between the detailed text of the Mexican proposal and the two brief proposals of Vietnam and China. International cooperation must contain exchange of workshops, training, and incorporation of disability in bilateral and multilateral agreements between states and between states and intergovernmental organizations.
Uruguay joined previous speakers in support of international cooperation. Uruguay considers it of paramount importance to achieve the aims of the convention.
Tanzania thanked Mexico for its introduction of the article, and joined others in supporting inclusion of such an article. International cooperation is an aspect that will go far in assisting implementation of the convention.
The Chair then opened the floor to non-governmental organizations.
The Disability Caucus noted that PWD are the most marginalized in social and economic development and realization of their human rights. Poverty is both a cause and consequence of disability, and this can only be changed when States provide equal opportunities to PWD. International cooperation in all of its forms can and must play an important role in creating conditions which will best support an improved quality of life for PWD. In human rights international cooperation is referenced as a tool to promote compliance in Articles 22,23, and 14 of ICESCR, and Article 4 of CRC. It must be taken up within the context of human rights not as a tool that makes it possible to avoid compliance, but rather as a facilitator to ensure that obligations are abided by. The Caucus has proposed draft language available at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc.
The Chair introduced Ambassador Mackay of New Zealand, who would be Coordinator for informal discussions during the second week of AHC4.
Ambassador Mackay (Coordinator) thanked facilitators who had conducted informal discussions on the articles, and encouraged those informal discussions to continue. During the second week discussions will begin with Article 4 and continue from there, as the Chair has already led discussions on Articles 1 and 2, and Article 3 should be addressed later. Delegations should approach the informals with the greatest amount of flexibility, in order to proceed as quickly as possible through the work.
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