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Daily summary of discussions related to Article
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #2
August 24, 2004
GENERAL OBLIGATIONS - ARTICLE 4
India sought clarification on the Organization of Work.
During discussion of Article 1 there were two or three proposals submitted
but only one was projected on the screen for viewing. India enquired
whether this procedure will be followed during informals, and whether
alternative proposals that also received support be considered as well.
The Chair explained that the objective was to synthesize
the discussion and that this procedure does not preclude other proposals
and does not in any way limit governmental discussion.
Senegal expressed the intent of the African Group to
submit proposals in relation to Article 4 reflecting the concerns of
African countries. The WG text as currently formulated is not far from
what it would support.
The Russian Federation called for deleting the first
sentence of Article 2bis, as there is no need to include it at this
point in the convention. States will be required to take on obligations
to implement the convention. Measures to harmonize domestic legislation
with the convention are logical and necessary.
Chile proposed new language for a separate paragraph
on the budgetary allocation of resources citing the importance of this
Canada stressed the importance of Article 4 as a guide
for States on the nature and implementation of their legal obligations
and called for a streamlined Article reflecting the WG text. This is
the appropriate place to include reference to the progressive nature
of rights, similar to Article 2(1) of ICESCR. The EU’s Article 2(bis)
should be inserted into 4(3), with one important modification to bring
it into closer alignment with Article 2(1) of ICESCR, an element of
which was included in an earlier Israeli proposal. After the phrase
“available resources” the phrase should be added “with a view to achieving
progressively the full realization of such rights.” Canada no longer
insists on removing the phrase “within their jurisdiction” in 4(1).
The Netherlands (EU) withdrew the EU’s previous proposal to
merge Articles 4, 5 and 7 into a separate Article 3bis but in general
maintains its position on language. The EU accepts separate Article
4. It withdraws its amendment to 4(1)(c) given feedback in particular
from NGOs that the wording “and not treated separately” might create
a false impression that the EU is against specific disability programmes
or policies. The EU welcomes broad support for its proposal for Article
2bis and accepts suggestions that it be incorporated into 4(2) with
the second line changed so that “means” is replaced by “measures” as
proposed by Argentina and in line with CRC. The EU opposes the Russian
Federation proposal to delete the first part of Article 2bis as this
language is used in CRC and should be retained.
Japan reiterated its proposals from AHC3: to add the
phrase “to respect and ensure the rights set forth in the present convention
and to adopt…” in 4(1); to add “appropriate” before “legislative, administrative
and other measures…” in 4(1)(a) because not all legislative or other
measures will need to be adopted to give effect to the Convention; and
to add a new para 4(1)(g) “To provide conditions and environments under
which PWD may live in a self-sustained manner…”
Thailand reiterated its AHC3 proposal for 4(1)(c),
substituting the term “mainstream” with “integrate.” The term “universal
design” should be used in 4(f) instead of “universally designed.” The
provision on remedies omitted from the WG text, as discussed in Footnote
18, should be reinserted in 4(2) along the lines of the Bangkok draft.
Progressive realization needs to be included but does not always apply.
There are many cases where economic, social and cultural rights do not
imply the use of resources that are not available, and these rights
should be implemented immediately. Only in some cases should ESC rights
be subject to progressive realization.
Costa Rica supported the Argentinean proposal on the
progressive realization of economic, social and cultural rights. It
pointed out that its proposed deletion of references to national constitutions
Article 4 is not reflected in the Secretariat’s text. The WG text in
4(1)(d) and (e) should be retained. It supports New Zealand’s proposal
for 4(1)(f) and the Japanese proposal for 4(1)(g).
The Chair adjourned the session.
Volume 5, #3
August 25, 2004
ARTICLE 4: GENERAL OBLIGATIONS (Cont)
Venezuela supported New Zealand’s proposals in 4(2), and India’s
proposal to include a reference to “families.” Families share the problems
of PWD, are their companions and caretakers, and should be included
in the context of implementation.
Republic of Korea supported the EU proposal on in 4(1)(e) deleting the
China emphasized the importance of including in 4(3)
the issue of international cooperation as proposed by Israel and progressive
realization of economic, social and cultural rights
India supported Argentina’s proposal in the chapeau but retaining
the term “ensure” over “guarantee.” Concepts of progressive realization
and international cooperation are important and therefore it also supports
Canada’s proposal reflecting the ICESCR, Article 2(1).
Malaysia supported the Japanese proposal to include
the term, “appropriate” in 4(1)(a). The term “rights” should be replaced
by the term “principle” in 4(1)(b). The terms “equality and non-discrimination”
are more consistent with the terms used by the WG.
New Zealand noted the widespread agreement among States
to address economic, social and cultural rights in this Article and
stressed the importance of distinguishing between civil and political
rights, and economic, social and cultural rights. Language should be
consistent with existing treaties wherever possible. Therefore, and
in line with the suggestions of the EU and Israel, a new paragraph 4(1)
bis to be inserted after current 4(1), would exactly replicate CRC Article
4. In addition, the chapeau of current 4(1) of the WG text should become
a stand-alone paragraph, with the qualification “within their jurisdiction”
deleted. It proposes a new chapeau to read: “In ensuring the rights
of PWD States Parties undertake …” The obligation to “discourage” customs
or practices should be strengthened to “modify and abolish,” consistent
with CEDAW 2(f). In the interests of avoiding repetition of concepts
in the Convention text, New Zealand revisited its AHC3 proposals calling
for their one-time inclusion in Article 4. Therefore references related
to new technologies found in Articles 13(d), 19(2)(e), 20(c), and 21(f),
and to the participation of PWD found in 5(d), 6(c), 18(c), 19(2)(g),
21(m), should be removed. New Zealand no longer supports removing 4(1)(f)
believing that it should be addressed separately. A general provision
in remedies is not appropriate as there is no international consensus
on remedies in relation to economic, social and cultural rights, and
no such provision exists in the ICESCR. Any provision made on remedies
in relation to civil and political rights would create unnecessary distinctions
between civil and political rights and economic, social and cultural
rights, and moreover the ICCPR already provides for remedies. References
to families and associates in inappropriate in this convention, which
is about PWD and their rights.
Serbia Montenegro supported the EU proposal for merging
Articles 4, 5, and 7 into a single Article on Nondiscrimination, with
the exception of maintaining the language in 4(1)(d), as any act or
practice consistent with the convention is broader than non-discrimination.
It supports New Zealand’s proposals, on 4(2) on the participation of
PWD, and 4(1)bis on progressive realization.
Australia supported a consolidation of overlapping
non-discrimination provisions in Articles 4 and 7. The language in 4(1)
is acceptable but should be limited to rights and fundamental freedoms
recognized under international law. “Discrimination of any kind” must
be read in the context of other human rights treaties. Progressive realization
should be addressed in 4(1), as proposed by China, and is recognized
in Article 2 of ICESCR.
Mexico proposed new language for the chapeau so that
the General Obligations was consistent to the Purpose of the Convention:
“In order to achieve the purpose of the present convention, States Parties
undertake…” A reference to the progressive relation of economic, social
and cultural rights here would spare further references to the topic.
The Committee on Economic Social and Cultural Rights has addressed the
matter of legal recourse in relation to these rights and this should
be mentioned in this Article. There should be a reference to universal
design and new technologies. India’s additional language on discrimination
for 4(1)(e) is more appropriately addressed in Article 7. Mexico supports
New Zealand’s proposed language on partnership with PWD and supports
incorporating the CRC approach on progressive realization.
Ethiopia noted that Article 4 requires States to nullify,
amend or otherwise take action in relation to legislation or practices
inconsistent with the convention. Provision should be made to ensure
that no further legislation would be enacted that is inconsistent with
the convention. PWD do not have access to legal counsel and in many
countries the legal process is very long. PWD must have access to timely
legal procedures when they face discrimination.
Yemen supported the EU proposal integrating the rights
of PWD into national constitutions and legislation, and language integrating
PWD in socio-economic programmes.
The International Disability Caucus called for specific references
to development cooperation in 4(1)(c) and a new 4(1) referencing public
monies to support accessibility and other issues of importance to PWD.
The Caucus opposes a general reference to progressive realization that
would relate to all rights but supports a reference applicable to economic,
social and cultural rights, for which language is provided. The Committee
on ESCR has often discussed the appropriateness of remedies – judicial
and otherwise – in relation to economic, social and cultural rights,
and there should be a specific paragraph on this topic. Additional paragraphs,
on free legal assistance including sign language and communication assistance
and on the particular situation of PWD facing multiple forms of discrimination
are needed. The Caucus supports the reference to the principle of partnership
Landmine Survivors Network called for a specific paragraph
on remedies covering its specific application to civil and political,
as well as economic, social and cultural rights.
International Labour Organisation favored references
in 4(1)(c) to mainstreaming disability issues into social development
programmes but cautioned this may not lead to expected progress due
to inadequate planning and resources. For this reason, Article 4(1)(c)
should include the terms “adequately planned and resourced.” Article
4(2) must stress key stakeholders, including employers and trade unions,
as well as community associations and PWD and their representative organizations.
National Human Rights Institutions noted developments
in the last few years on remedies and progressive realization and pointed
out that a notion that a breach of economic, social and cultural rights
does not give rise to remedies does not take into account the latest
jurisprudence. It supports the India proposal or the reformulated version
by the International Disability Caucus on the progressive realization
Volume 5, #6
August 30, 2004
MORNING SESSION: INFORMAL CONSULTATIONS
ARTICLE 4: GENERAL OBLIGATIONS
The Coordinator asked delegates to address the proposal that
Article 4 include a statement on progressive realization of economic,
social and cultural rights within the framework of international cooperation.
India proposed that language from Article 2(1) of ICESCR
be added as new paragraph 4(3). It reiterates its proposal from AHC3
to replace language of 4(1)(e), specifying what would not be considered
“discrimination.” India strongly supports inclusion of a reference to
families, care-givers or others. Many PWD with “severe” intellectual
or other disabilities cannot exercise their autonomy and choice. In
the cultural context of many countries, “coupled with the severity of
these conditions,” families are the “natural first choice” for support,
rather than organizations that are not yet well established in developing
countries. Inclusion of the text “family members where appropriate,”
should be considered. India supports the EU formulation of 4(2), with
amendments “and their families” added after “disabilities,” and “where
appropriate” at the end.
The Coordinator noted the issues raised by India, and
suggested they be considered following the present discussion on need
for language addressing progressive realization. The language read by
India from ICESCR Article 2(1) is “language that has already been agreed
in one of the fundamental human rights conventions,” and so may be a
good basis for consideration.
Sierra Leone suggested if economic, social and cultural
rights are not explicitly distinguished from civil and poltical rights,
there will be no need to emphasize the issue of progressive realization.
Costa Rica strongly supported inclusion of progressive
realization here. It supports India’s proposed language, as it captures
the concept of giving immediate effect to certain obligations, which
is not captured in the ICESCR or CRC language. This language would read,
“In relation to economic, social and cultural rights the states parties
undertake to give immediate effect to such aspects of those rights that
they are in a position to implement immediately.”
Israel also supported inclusion of progressive realization
in Article 4, because otherwise it will have to be addressed in various
different articles. There is uncertainty regarding what would be considered
economic, social and cultural rights. Thus Israel reiterates its proposal
from AHC3 to “identify those articles where the economic implications
are major” in a non-exhaustive list in Article 4, including 9d, 13,
15, 16, 17, 19 to 24. This will give guidance on what rights should
be subject to progressive realization.
The Coordinator noted that language proposed on progressive
realization has been largely drawn from ICESCR Article 2(1) and CRC
Article 4, with the CRC formulation being the more recent and abbreviated.
The CRC language currently appears in Article 4(2) bis. The Coordinator
asked delegates to indicate if they have a preference.
Israel expressed its preference for the language in
the Compilation Document.
Mexico supported including progressive realization
in Article 4 for the reason that inclusion avoids repetition in other
articles. It notes the ICESCR language does not explicitly reference
economic, social and cultural rights, and so Mexico prefers the CRC
formulation. It has reservations about the Indian proposal, and would
like to obtain the opinion of the OHCHR to see what the ramifications
of such language might be.
New Zealand agreed progressive realization should be
included in Article 4 to avoid repetition, and there is a need to distinguish
between civil and political, and economic, social and cultural rights.
It reiterates its proposal that there be two stand-alone paragraphs;
one a general statement of general obligations, and one discussing obligations
regarding economic, social and cultural rights. Specific articles should
not be mentioned, and it is “very unhappy” with Israel’s inclusion of
two civil and political rights (9d and 13) in its suggested list of
articles. It acknowledges there may be economic implications in ensuring
enjoyment of civil and political rights, but this does not mean such
rights should be subject to progressive realization. It prefers the
CRC formulation, but is also open to ICESCR 2(1) as a model. It does
not support India’s proposal because there is no international agreement
on which economic, social and cultural rights are immediately implementable.
Also, jurisprudence on this issue has not yet been codified in any treaty,
and identifying articles that are immediately implementable would create
rights for PWD not available to the general population.
Australia also supported a provision on progressive
realization in Article 4. It sees no reason to deviate greatly from
the language of CRC Article 4. Regarding identification of types of
rights, Australia has made a proposal on the treaty structure that in
part addresses this point by grouping the two kinds of rights in separate
parts of treaty.
Senegal (on behalf of the African Group) supported
the inclusion of progressive realization in Article 4, as it is a very
important general obligation. The African Group also proposes referencing
access to competent tribunals, as well as the need to combat cultural
customs and practices that may discriminate against PWD. The text of
these proposals is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da4.htm.
Canada supported New Zealand’s comments. It supports
referencing progressive realization in Article 4, and the CRC language
is preferable as it explicitly mentions economic, social and cultural
rights. As Article 2(1) of ICESCR does not address civil and political
rights it naturally does not expressly reference rights subject to progressive
realization. There is no need to further distinguish civil and political
rights, as this is not done in CRC Article 4. Israel’s proposal to further
distinguish rights based on economic implications of their realization
is a “very dangerous approach.” Canada would “strongly object to such
a proposal,” as making some civil and political rights subject to an
economic condition would undermine a rights-based approach here.
Thailand reiterated support for the Disability Caucus
draft Article 4(2), which clearly spells out that States should give
immediate effect to those aspects of economic, social and cultural rights
capable of immediate implementation. It rejects arguments against this
approach simply because it has not been adopted in prior instruments.
There are already other concepts included in the draft text not elaborated
in prior treaties. It does not support proposals to identify individual
articles subject to progressive realization, as that may undermine immediate
implementation of aspects of the rights capable of such.
The Coordinator asked if it is not implicit in CRC
4 that if a State undertakes such measures to the maximum extent of
its available resources, that where those measures are capable of immediate
implementation it should be required to do so?
Thailand is concerned that not expressly referencing
the need to give immediate effect could lead to some forms of non-discrimination
being subject to progressive realization.
The Coordinator asked delegates to also address the
Thai proposal, namely that the language from CRC 4 be used and that
there also be language specifying an affirmative obligation to give
immediate effect to those aspects of economic, social and cultural rights
capable of immediate implementation.
Lebanon agreed progressive realization must be included
in Article 4, but would also like to see it referenced in the monitoring
section. It is important not to imply that gradual implementation is
an obligation per se, as this should be considered a necessity only
when giving immediate effect to a right is not possible. Lebanon supports
the Thai proposal. It also opposes identifying rights that can and cannot
be implemented immediately, because these have not been agreed upon
internationally, and whether a right can be immediately implemented
is dependent upon a country’s individual circumstances. It feels the
language “maximum extent of its available resources” is too limiting
and may give states excuses not to actively find resources. It prefers
language from the ILO, saying that “States must make adequate planning
and resource allocation in order to reach the full attainment of the
rights.” This language is reflected in the changes to Article 4(1)(c)
proposed by the EU. Lebanon is also supportive of language based on
the European Social Charter, which would state “States must take all
appropriate means, both national and international in character, for
the attainment of conditions in which the rights may be effectively
realized.” Discussion of maximum resources also raises the issue of
international cooperation which is a broad concept that should not only
occur when resources are scarce.
Liechtenstein supported use of CRC Article 4 as a model.
The issue of how economic, social and cultural rights are implemented
here is no different than in other contexts, and language from CRC is
sufficient. Specific enumeration of articles subject to progressive
realization is not useful as “almost all the articles in such a convention
are somewhat heterogeneous in themselves,” and there is also no clear
distinction between civil and political rights and economic, social
and cultural rights. A listing would risk including some aspects of
rights that do not belong. It is unnecessary to reference articles which
can be given immediate effect by States and is not possible because
the specific circumstances of each State will differ. All obligations
that States undertake have immediate effect upon ratification and this
applies equally to all rights. There are caveats only in some contexts,
in particular for economic, social and cultural rights, because of the
issue of available resources. The CRC Article 4 reference to “maximum
extent of available resources” implies that economic, social and cultural
rights must be implemented immediately, except when there are not resources
to do so. It does not read the language as meaning that international
cooperation is only appropriate when there are not available resources.
CRC Article 4 talks about international cooperation “when needed,” and
it is needed not only when States do not have resources.
The Netherlands (EU) supported Australia’s comments
why CRC Article 4(2) should be a model. References to “maximum extent
of available resources” are preferred over “progressive realization.”
Use of CRC language focuses the article and creates clarity of purpose,
which is why the EU used it in its proposal. The EU supports Liechtenstein
regarding listing of specific articles. Such a list would be “a dangerous
path to follow” as many draft articles contain both civil and political,
and economic, social and cultural rights. It does not support the Thai
and Disability Caucus proposals, though it supports the concept put
forward. To require giving immediate effect to certain aspects of rights
is unclear. Non-discrimination has never been subject to progressive
The Coordinator concurred non-discrimination is not
subject to progressive realization.
China noted there has always been an “argument” whether
civil and political rights or economic, social and cultural rights,
are more important and pressing. There is a need to balance both categories
of rights. If refer to progressive realization of economic, social and
cultural rights, the same should apply to realization of civil and political
rights. For developing countries like China, the realization of economic,
social and cultural rights is more pressing, although realization should
not be a prerequisite to realization of civil and political rights,
and vice-versa. Progressive realization of both kinds of rights is equally
important, and this is reflected in Article 2 of ICESCR. China also
believes non-discrimination should not be subject to progressive realization.
The Coordinator noted ICESCR Article 2 does not refer to progressive
realization of economic, social and cultural rights because that is
what the ICESCR deals with. The ICCPR does not contain a provision on
progressive realization as the rights in that covenant are not subject
to progressive realization. He asked if China could clarify their statement
suggesting civil and political rights are subject to progressive realization.
China stated that both categories of rights are equally
important, and “if we refer to the realization of both categories there
is no issue of progressive realization because both categories of rights
need to be realized and we have to balance the two categories.”
The Coordinator agreed both categories of rights are
equally important, and noted the proposal that the treaty distinguish
between progressive realization of economic, social and cultural rights
and immediate implementation of civil and political rights was not intended
to be a judgment on which category of rights is more important. The
distinction is intended to acknowledge which rights may practically
be implemented immediately, and which may not because of resource constraints.
Yemen suggested a new chapeau to read, “States Parties
undertake to take all necessary measures to ensure the full realization
of all human rights and fundamental freedoms for all individuals within
their jurisdiction without discrimination of any kind on the basis of
disability. To this end States Parties undertake …” In 4(c) at the end
of the existing sentence: “and to provide the necessary means in order
to honor our obligations” should be added. Article 4(e) should move
to Article 7.
Norway noted the value of a provision on progressive
realization in Article 4. Language should be based on CRC Article 4.
There is no need for further differentiation between rights, as Israel
proposes. Norway believes the Thai proposal is “superfluous in light
of the normal interpretation of Article 4 of the CRC.” It would “in
no way be able to accept” the Chinese proposal that progressive realization
apply to civil and political rights.
Serbia and Montenegro strongly supported inclusion
of a provision on progressive realization in Article 4. It also supports
language drawn from CRC Article 4. Regarding the Indian and Thai proposals
on immediate implementation, it believes the phrase “to the maximum
extent of available resources” already implies that if a right can be
immediately implemented then it should be. It also believes enumeration
of particular articles to which progressive realization applies would
be too difficult and should not be done. It sympathizes with motives
for the Thai and Indian proposals, but many delegations are opposed,
and too much debate would unduly prolong negotiations.
Japan agreed progressive realization should be addressed
in Article 4. It supports wording drawn from CRC Article 4. The Thai
proposal is interesting, but it believes immediate implementation is
already captured in CRC Article 4. Regarding the Israeli proposal to
further differentiate rights, it agrees with Australia that there is
danger this could lead to delayed implementation of certain civil and
political rights for lack of resources. Although it is opposed to further
differentiation between categories of rights, it would appreciate further
discussion of these issues to foster a common understanding regarding
what aspects of articles would be subject to progressive realization.
[Arabic speaker not identified on tape] favors inclusion
of a reference to progressive realization in Article 4. The wording
should be drawn from Article 2(1) of ICESCR, as that article is clearer
in its coverage of international cooperation and assistance in the implementation
of these rights than Article 4 of CRC. It should be possible to incorporate
the Thai proposal in a separate paragraph within Article 4.
Sierra Leone opposed the Thai proposal on immediate
implementation of aspects of rights. The concept of progressive realization
“is an emerging concept,” and although Sierra Leone agrees with it in
principle, it should not be spelt out. When looking at the needs of
PWD, “the right to vote is secondary to them: they want wheelchairs
and you cannot tell them that this should be achieved progressively.”
The reason to draw attention to economic, social and cultural rights
is not because of their progressive quality but because they are, relatively
speaking, more important to PWD. Ideas of immediacy and progressiveness
should be “erased” from the convention. It supports the proposals of
Canada, Liechtenstein and others to use Article 4 of CRC, and also to
perhaps combine the ILO language suggested by Lebanon, to produce a
Thailand appreciated responses to its proposal. It
could support the CRC language if non-discrimination was not so significant.
Although as the EU said, CRC language should be interpreted as exempting
non-discrimination from progressive realization, the reality is often
very different. It can support the CRC language if it is clarified that
non-discrimination is to be immediately implemented. Thailand notes
the right to vote is equally important to PWD in developing countries,
especially the privacy in voting.
Costa Rica emphasized that Article 4 clearly states
all matters regarding disability have to be incorporated as policies
and programs in all States, thus avoiding use of expressions such as
“within available resources.” Such phrases can always be interpreted
as saying “if there are sufficient resources left over … then we will
see if we can include persons with disabilities.” Disability should
be part of State policy and always taken into consideration.
The Coordinator summarized the strong view to include
in Article 4 a provision that with regard to economic, social and cultural
rights, “States Parties shall undertake such measures to the maximum
extent of their available resources, and where needed within the framework
of international cooperation.” The language is drawn from the CRC, as
supported by most though some supported the ICESCR formula on the basis
it better reflects the concept of international cooperation. The facilitator
now has fairly clear direction on this point. Several other well supported
issues also emerged. One is that there would not be progressive realization
of non-discrimination. Thailand proposed specific language drawn from
the Disability Caucus text, which was a formula not supported, but the
concept very clearly was. There was no view that non-discrimination
would be progressively realized, and there may be a need to reflect
that, here on elsewhere. Another proposal with good support was Lebanon’s
proposal to use the ILO language requiring that there be adequate planning
and resource allocation. This relates to 4(1)(c) and should perhaps
be considered there.
India noted there are differences in support for the
CRC and ICESCR formulations, and a number have suggested the need to
introduce the concept of progressive realization. It proposes adopting
a combination of the two, keeping Article 4 of CRC as the basis, “which
would cater to the legitimate concerns of developing countries.” It
is estimated that 20 million in India are PWD and its resources only
permit progressive realization of economic, social and cultural rights.
Many other developing countries are in the same position. India thus
proposes referencing progressive realization in Article 4, adding after
“State Parties shall undertake such measures” the text “with a view
to achieving progressively the full utilization of these rights” and
the rest of article as drafted in Article 4 of CRC would remain the
same. It also supports the proposal to add words to the effect of, and
at an appropriate place, “with adequate planning and resource allocation.”
The Coordinator asked India whether the concept of
progressive realization of economic, social and cultural rights is not
implicitly covered in CRC Article 4? He noted that India had proposed
language for a new Article 2 bis based on Article 4 of CRC.
India responded that although the words “to the maximum
extent …” address the concept of progressive realization to a certain
extent, it is not adequately covered and should be more specifically
Thailand suggested adding “and without any form of
discrimination on the grounds of disability” after “to the maximum extent
of their available resources.” This would help ensure parity of PWD
with other members of society in terms of enjoyment of economic, social
and cultural rights. Although it would need to consult further, this
amendment would help address Thailand’s concerns and it could consider
using the text in CRC.
The Coordinator noted he would ask the facilitator
to consider this proposed language.
Lebanon supported the Indian proposal to merge language
of CRC Article 4 and ICESCR Article 2. Clearly referencing the aim to
progressively achieve the rights is “absolutely necessary to be added
if the CRC wording is adopted.” Together with the Thai and Indian proposals,
this approach will make the objective clearer, and that progressive
realization is a required means to achieve economic, social and cultural
rights. It also notes that the need for progressive realization is often
needed because it can take time to change societal policies of segregation
to policies of inclusion.
The Coordinator asked delegations to comment on the
proposal that there be specific references to progressive realization,
with CRC Article 4 elaborated in that manner.
Sierra Leone noted Lebanon’s comments that progressive
realization is often needed because of the time required to change policies.
However, it believes the issue is largely related to cost. It accepts
the general principle of progressive realization, but does not believe
the concept should be emphasized or explicitly mentioned.
Canada supported a blend of CRC Article 4 and the phrase
“progressive realization” or “progressively realized” from ICESCR. It
would have no problems with India’s proposal to also add text such as
“with a view to achieving progressively the full realization of these
rights.” This would mirror the language used by the Committee on Economic,
Social and Cultural Rights in its explanation of the level of obligation
in Article 2(1) of ICESCR. That language would be of assistance here.
Costa Rica reiterated its position that it does not
have any problems with using either the CRC or ICESCR formulations as
a basis, and it views the exercise to combine the language as positive.
Nevertheless it is important that the intention of States to ensure
the full realization of all rights be left extremely clear. It shares
some of the concerns of Sierra Leone. It also reiterates that some economic,
social and cultural rights, because of their very nature, must be realized
right away to the extent possible. If the Committee were to decide to
include some language to clarify that commitment, Costa Rica would be
satisfied. It is not yet convinced that language such as “with a view
to the full realization of these rights,” is sufficient, but it is willing
to be flexible.
The Coordinator confirmed that Costa Rica was agreeable
to a reference to progressive realization in this paragraph. A small
group of delegations have now indicated they would support such a reference.
There is also the Thai proposal. Sierra Leone has raised some additional
concerns about such a reference, and the Coordinator would ask Sierra
Leone to talk with the other delegations to see if it is possible to
deal with those concerns.
Sierra Leone noted General Comment No. 3 of the Committee
on Economic Social and Cultural Rights, regarding the nature of state
obligations under Article 2(1) of ICESCR. Paragraph 2 of that document
should be taken into consideration.
The Coordinator noted the language proposed recognizes
that different countries may vary in their capacity (particularly economic
capacity) to implement economic, social and cultural rights at a particular
time. Delegations appear open to expressly referencing progressive realization
in this article as India had proposed with support from Lebanon, Canada,
Cost Rica and others.
Thailand indicated it has no preference whether or
not to expressly reference progressive realization, as long as there
is scope to discuss whether certain aspects of economic, social and
cultural rights will take immediate effect, including by not limited
to the concept of non-discrimination.
The Netherlands (EU) stressed that although the EU
is prepared to discuss the matter further, it is not yet convinced of
the need to explicitly reference progressive realization in this article.
The language from CRC is adequate from the perspective of the EU.
The Coordinator asked if the EU agreed that the effect
of Article 4 of CRC is to implement the concept of progressive realization?
The Netherlands (EU) responded that the concept of
progressive realization has been fully established by ICESCR, and there
is no need to repeat general concepts already included in the International
Bill of Human Rights. Although of course the concept of progressive
realization is included in Article 4 of CRC, it questions the addition
of language expressly referencing progressive realization. However,
the EU is ready to consider the proposals, in particular language proposed
The Coordinator indicated his understanding that what
is being discussed here is not an “escape clause” for States Parties,
but recognition that there are some provisions with considerable economic
impact and that will require the application of considerable financial
resources by States to implement them. Countries have an obligation
to implement these provisions, but resources should be taken into consideration.
There is an obligation for States to implement such provisions as they
are able. Nevertheless there are other obligations in the convention
that countries do need to implement immediately, such as non-discrimination.
There does not appear to be any difference of substance here, and the
question is to find the language reflect this understanding.
Cuba supported in principle the Coordinator’s comment.
It is flexible as to whether to adopt the ICESCR or CRC formulation,
or a combination of the two. However, it would like to clearly state
that while it supports the concept that some of the rights will have
to be implemented progressively, this does not imply that ratifying
States are acting in bad faith in protecting and promoting the rights
The Coordinator noted that approaches are converging. It may
be concluded that there will be a provision that deals with progressive
realization, and that there was reasonable support for expressly referring
to this concept, although several delegations reserved their positions
on that point. He then asked delegations to respond to the proposal
that Article 4(1) incorporate the substance of subsequent articles dealing
with promoting research and development of new technologies to facilitate
inclusion. The relevant articles are 13(d), 19(2)(e), 20(c) and 21(f).
These provisions are examples of overlaps to be found in the WG draft
text that were inevitable given the speed with which the WG worked.
There was widespread support in previous readings to incorporate the
substance of these provisions in Article 4(1), to avoid repetition.
Thailand indicated it had supported inclusion of these
sub-paragraphs in various articles because it wanted to have such activities
recognized. However, Thailand is fully supportive of moving the contents
of the provisions to Article 4(1). It has submitted a proposal on this
It is similar to that of New Zealand, except that it also references
“including assistive technologies” and instead of “acceptable” uses
“accessible to PWD.” The phrase “to the maximum extent possible” should
perhaps be added after “universal design,” as specialty design will
sometimes be required.
Canada noted it had been amongst the delegations that
spoke out against repetition, and it is still convinced that an article
that deals with general obligations should stick with those general
provisions of treaty law, with more specific issues being dealt with
in specific articles. That said, its main objection was to the very
fact of repletion, which can lead to inconsistencies and difficulties
of interpretation. In the spirit of the flexibility, Canada could live
with the New Zealand proposal as an option, but otherwise would suggest
keeping the specific provisions in the articles enumerated.
The Coordinator asked whether Canada was referencing
the original New Zealand proposal, or Thai amendments? Canada responded
it had not had opportunity to consider the Thai amendments, and at this
stage preferred the New Zealand proposal.
The Netherlands (EU) agreed there is a need to address
overlap, but there is a need to decide where the overlapping concepts
should be placed before examining specific language. The EU questions
the need to place this overlap in Draft Article 4, or elsewhere as Canada
suggested. The EU had made some suggestions for placement of these concepts
in Draft Article 19 (Accessibility), which will not be discussed at
AHC4. Discussion of where to address issues of new technologies and
universal design should occur before discussing specific language.
Costa Rica indicated it would have no problem the addressing
in Article 4 the research and development of new technologies. If agreement
was reached to address these issues in Article 4, Costa Rica would withdraw
its proposals with regard to the provisions in the other articles the
The Coordinator hoped it would be possible to ask the
facilitator for Article 4 to come up with draft language, subject to
a decision later about where that language would be placed.
ARTICLE 4: GENERAL OBLIGATIONS (Contd.)
The Coordinator reminded delegates the present discussion relates
to the combining of Articles 13(d), 19(2)(e), 20(c) and 21(f), all of
which address the promotion of research and development of new technologies
to facilitate inclusion. There appeared to be a good deal of support
for this amendment, though at least one delegation raised the issue
of appropriate placement and whether revised language should appear
in Article 4, or Article 19 (Accessibility), or elsewhere. At this stage
the group should obtain agreement on incorporating the substance of
those paragraphs in one provision, and then the facilitator could elaborate
language. This language would be placed in Article 4 as a “holding provision”
and could be placed elsewhere later.
Israel joined in supporting the proposal to combine
the provisions, which would achieve the dual purposes of consolidating
diffuse provisions, and stressing the overall importance of technological
advances in favor of promotion of the human rights of PWD.
Senegal indicated it was in favor of the provisions
in the text, but reserved the right to comment on proposals until after
further opportunity for consultation.
The Coordinator reminded delegates that nothing is
agreed until everything is agreed, and appreciated their flexibility.
Guidance on combining these provisions could now go to the facilitator.
The next issue for consideration is the proposal to combine provisions
that address the involvement of PWD in activities and decision-making
which affect them. This was a point strongly raised in the WG and reflected
in a number of WG provisions, leading to some overlap and repetition.
The provisions in question are: Articles 5(2)(d), 6(c), 18(c), 19(2)(g),
and 21(m). Delegates are asked to consider whether the common elements
of these provisions should be combined in Article 4?.
Cuba sought clarification on the order in which issues
were being addressed in the informal discussions. Returning to Article
4(1), Chile believes it should be possible to integrate the issue of
promotion of new technology in Article 4 in a manner general enough
to cover all options later found in the text. Despite the need to synthesize
and streamline, delegates should not reject the possibility of reiterating
an idea, or putting promotion of an activity in another article to avoid
contradictory interpretations. Cuba is willing to be flexible on placing
this issue in Article 4, and perhaps also repeating it elsewhere, or
to present it in a different manner adapted to the thrust of the article
in question. In that context, Cuba agrees with placement of the issue
of involvement of PWD in Article 4, but depending upon the disposition
of other issues taken up later, reserves the right to suggest that this
issue also be placed in other articles.
The Coordinator reiterated that consideration of placement
of a provision in a particular article does not “close the door” to
placement elsewhere in the future. Regarding the order of discussion
of issues, conversation regarding Article 4 is rather discursive because
the article is less focused than other. A number of proposals addressed
here are not found in the Compilation document, though they are found
elsewhere and relate to Article 4, such as Articles 2 bis and 3 bis.
Particular provisions of Draft Article 4 will also be considered.
Canada supported the proposal to streamline and include
an obligation to consult with PWD and their representative organisations
in Article 4. Canada believes this is a very important general obligation
that will assist in successful implementation of the treaty.
India supported the proposal and would also like “and
their families where appropriate” to be incorporated in the reworded
Kenya supported the proposal to merge the provisions
raised. Articles 5(2)(d), 18(c) and 21(m) are already very general in
the way in which they have been drafted, and the intentions in 6(c)
and 19(2)(g) would be adequately captured in the general obligation
that requires the involvement of PWD. For reasons given earlier, Kenya
supports India’s proposal to also reference families.
The Coordinator asked delegates to respond to India’s
proposal in their interventions.
Thailand supported the proposal to merge provisions
addressing the involvement of PWD and place this in Article 4. However,
it would like to see if there is further need to reference this concept
in other specific articles. It notes that this proposal does not address
the issue of inclusion of disability in development assistance and international
cooperation. Thailand does not object to the Indian proposal, but considers
it difficult to identify the circumstances when such consultation would
The Coordinator noted the Indian proposal includes
the phrase “where appropriate,” and assumes consultation would be on
a case by case basis.
Israel joined support for the proposal to merge the
provisions relating to involvement of PWD, as this would serve the technical
purpose of making the convention more compact, and the substantive purpose
of making this an overall obligation that would apply to all the provisions
of the convention. It supports the Indian proposal regarding families,
and suggests the following text: “States Parties shall work in partnership
with PWD their orgs, and where appropriate their families, in relation
to all matters that including legislation, policy-making and the provision
of services, concerning the implementation of this Convention at all
The Coordinator thanked Israel for its proposed language
and asked that it be submitted to the facilitator for Article 4.
The Netherlands (EU) indicated its support for efforts
to “clean up” the text and merge provisions where possible. Many provisions
could be deleted, and the EU has made numerous proposals in this regard.
However, while the EU supports in principle the proposal to merge provisions
regarding involvement of PWD, it would be preferable to discuss this
issue in the framework of Article 25 (Monitoring), rather than Article
The Coordinator indicated that the ultimate question
of placement remains open, but noted several delegations have spoken
in favor of addressing provisions on involvement of PWD in the article
on general obligations, where such provisions could be strengthened.
As noted by the EU, this issue also fits within the framework of implementation.
The issue should go to the facilitator to produce draft language. Placement
can be examined later when refinement of the language may be needed.
Norway stated the involvement of PWD and their representative
organizations is a crucial principle for implementation of the entire
convention. It supports proposals to include this concept in Article
4, as this will guide the interpretation of other articles. Regarding
India’s proposal, Norway has not had sufficient time to consider it,
but preliminarily thinks the treaty should focus on PWD and it is a
“little bit skeptical” about the introduction of the concept of families
in general obligations, though it is flexible on discussion of families
in later articles.
Japan supported the proposal to merge the specified
provisions in Article 4, and believes that consultation with PWD is
a “guiding principle” of this convention. Japan is open to India’s proposal,
but families can have a negative impact on PWD, and care should be exercised
in incorporating the idea of family into the concept of consultation.
Japan will study whether the language “where appropriate” would allay
China expressed appreciation for the Coordinator’s
attempts to avoid repetition, and returned to the issue of Article 4(1)(f)
addressing universal design and promotion of technology. This is an
important issue but may be better placed later in the text. If the issue
is to be addressed in general obligations, Japan’s proposal, which gives
a more generic description of the need to provide an environment where
PWD can better participate in society, would be better than the current
Regarding participation of PWD and their representative organizations,
China believes this is a crucial aspect of implementation of the treaty,
and asserts this is China’s approach when developing laws and policies.
It thus believes this element should be included in the article on general
obligations, though participation of PWD should also be reflected to
some degree in later articles. China is flexible regarding India’s proposal
on families, though as others have noted, the treaty’s focus should
be PWD. In addition, obligations regarding participation offamilies
should be clear so States know when it is necessary.
Costa Rica supported the proposal to merge the cited
provisions into Article 4. Although such a provision could be placed
elsewhere, such as the article on monitoring, there is no more general
an obligation than “nothing about us without us.” It also supports the
Indian proposal, with understanding that it is participation “where
appropriate.” In many countries families undertake the task of representation,
either because there are no organizations representing PWD, or because
families prefer this. What the provision addresses is the right of PWD
to be represented either by NGOs or their families. Ultimately it will
be up to the State, on the basis of information received from all groups,
to take decisions and undertake all the obligations set out here.
Lebanon did not see merging the provisions as a problem,
but stressed the language of the new paragraph must be examined to ensure
it “will answer to the requests of the separate article where it used
to happen.” Although this new provision should appear in Article 4,
it is necessary to retain a reference to participation of PWD in Article
25 on monitoring. Participation of PWD should not exclude consultation
with other members of civil society, such as families. Text could read
“persons with disabilities, their representative organizations as well
as families and civil society where appropriate.”
Mexico supported the proposal to merge provisions related
to participation of PWD in crafting policy. New Zealand’s proposal is
very good because it introduces the concept of “in association with
PWD.” Regarding consultation with families and others, Mexico agrees
with Norway and others that the focus should be on PWD, their rights,
and empowering them to develop autonomously. Mexico is “reticent” to
have a general obligation including families, and would prefer to reference
families on a case-by-case basis in other articles. The Korean proposal
from this AHC session for preambular paragraph (l), could be an appropriate
basis for text in relevant articles.
Namibia supported merging of provisions into a new
paragraph in Article 4, but noted the language should mirror amendments
proposed in Article 18(c) by China, Peru and South Africa, which ensure
that PWD are not only consulted about issues of particular concern to
PWD, but also other issues of public interest.
Republic of Korea supported the proposal to merge the
relevant provisions into a new paragraph in Article 4, but wished to
retain the option of inserting such a provision in other articles where
it would be good to emphasise the participation of PWD. Regarding references
to family, care-givers and other members of civil society, the emphasis
on self-representation of PWD should be retained because their opinions
have not historically been well presented to society. This emphasis
should not be interpreted as excluding the participation of families
or other members of civil society.
Yemen supported the proposal and its inclusion in Article
4. Participation of PWD should take place in all areas, including development
of legislation and programmes. It would also like to see a similar provision
in Article 25. Regarding the family, Yemen does not think that Article
4 is an appropriate place for such a reference, as this convention deals
with PWD and it is they and their organizations who should be participating.
Not referencing families does not mean they would not be consulted.
Venezuela supported the proposal to merge these elements
of participation in Article 4. It is indispensable for PWD to be able
to participate in the entire process of developing policies and programs,
and to promote their integration into society. In many countries programs
are developed for and not by PWD. The issue of families should be addressed
in this article, as many PWD, especially those with numerous or serious
disabilities “cannot implement their rights regarding these issues and
they need their families,” since in most cases it is the family that
deals with these PWD.
New Zealand agreed that these provisions should be
merged in a new paragraph in Article 4. It acknowledges the EU’s point
that the provision has relevance to monitoring, but believes it is also
relevant to the development of legislation, policies and programs. As
noted by others, the main focus should be on PWD, which does not exclude
consultation with families or others in civil society. What has yet
to be noted is the need to recognize the expertise and leadership that
PWD can provide.
Serbia and Montenegro supported efforts to streamline
the text and the proposal to merge the provisions on participation in
Article 4, and welcomed Lebanon’s comment that the provision be reexamined
in future AHC sessions to ensure that issues are adequately addressed
here. It finds merit in the EU proposal that participation also be addressed
in Article 25. Regarding issues of the family, Serbia and Montenegro
supports the comments of the EU, Canada, Norway and especially Mexico,
that this is a convention primarily about PWD and that the role of family
should be addressed on an article by article basis. In many countries
families are also members of representative organizations, and in that
respect their participation is assured. It also supports the New Zealand
proposal recognizing the expertise of PWD. As colleagues in the international
disability movement say, “nothing about us without us.”
Syria supported the removal of repetition, the proposal
to merge provisions on participation into Article 4, and also supported
the Indian proposal to reference families.
Vietnam highlighted the importance of Article 4 and
that the text should be short and easy to understand. It supports inclusion
of PWD and their representative organizations in implementation of the
treaty. Issues of inclusion of the family are important but there must
be clarity of this obligation, which could best be achieved in other
articles. It supports the Thai proposal to integrate disability in economic
and social development policies, programs and international cooperation.
It hopes that the Secretariat will produce a revised text to assist
delegations in monitoring development of the text.
Jamaica expressed appreciation for efforts to improve
the structure and precision of the text, and supported bringing together
similar provisions on participation. Consultation of PWD is important
and PWD should have a voice in all matters concerning them. Although
families and organizations are important, some PWD may not belong to
an organization or have family to represent them, and in Article 4 it
may be best to simply reference the consultation of PWD. There are other
places in the document where it may be appropriate to reference families
Bahrain supported the proposal to merge in Article
4 the proposals on participation. Participation of PWD, their representative
organizations and families would strengthen implementation of the treaty.
In addition, Bahrain would like to see participation in monitoring and
follow-up added to this paragraph.
India reiterated its position that the focus of the
treaty is and should be on PWD, and its full agreement that PWD and
their representative organizations should be consulted. India consulted
its NGOs regarding the treaty prior to AHC4. When speaking of families
India does not speak of the concerns they have for themselves or intend
to shift the focus to families, but instead wants to consider the need
to consult families and allow them to represent PWD only in cases where
PWD are not able to represent themselves. Several delegations have said
that the provision does not exclude families. If this is the case then
why not reference families here?
The Coordinator noted that no delegation had suggested
families be excluded. Rather, the argument is that by introducing others
such as families and other members of civil society, the focus on PWD
is dissipated. On that point there is considerable divergence of views
and it is difficult to say which way the predominance of view falls.
However, a considerable number of delegations are not entirely comfortable
including families on the same level as PWD. One proposal is to reference
families on an article by article basis, rather than introducing it
as a general obligation. The other proposal from Mexico and based on
a Korean proposal is to include language on this issue in the preamble.
India is invited to comment on those proposals.
India indicated its flexibility on the issue, and noted
it would be happy with article by article references if they met the
purpose. It would appreciate written text so it could further consider
the matter. India’s concern is that there are a “large number of cases
where PWD are so severely disabled that they cannot represent themselves”
and it does “not feel that families will not have their best interests
at heart, and they will be able to represent them adequately.”
The Coordinator thanked India for its flexibility on the matter.
Kenya reiterated its support for the proposal to include
a reference to families, and supported India’s comments that such a
reference does not shift the focus away from PWD. From the experience
of Kenya and other developing countries, there are PWD whose voices
will be cut out if families are not included. The proposal would not
create rights for families, but rather preserve the rights of PWD whose
needs can only be articulated by their families. Many PWD with multiple
and ”severe” disabilities in Kenya have been excluded from the development
of laws and policies affecting them. If families are excluded here,
the rights of this section of PWD will be cut out.
The Coordinator indicated no delegation wanted to “cut
out” families, and there is general recognition of the importance of
families. The issue of inclusion of families will be covered as the
process continues. The question is where to deal with the input of families.
One proposal is to deal with this issue on article by article basis.
Costa Rica indicated it could not understand the concern
that reference to families would weaken the focus of the convention.
The convention is not only about PWD but also about their representative
organizations and others who are of interest in the situation of PWD.
India and Kenya have clearly articulated that it is often families who
represent PWD and so it is important that consultation of families be
a general obligation. One option could be to reference “PWD or their
representatives where appropriate,” though Costa Rica would prefer a
reference to families. The reference to “where appropriate” should allay
the concerns of other delegations. Costa Rica has difficulty understanding
how PWD can be represented by NGOs but not families.
The Coordinator noted that the concept of “representatives”
is a helpful one and is a concept found in parts of the WG text, such
as at the end of article 4(2), which references “representative orgs.”
Clearly, there will be situations where PWD will have people representing
them just as other people have others represent them. The concept of
“representative” may be useful to incorporate the notion of families,
and delegations are encouraged to consider this. For many delegations
the question appears not to be one of excluding families, but rather
seeking balance in the text. It does not appear that continued discussion
at this point will further resolve the matter.
Thailand sought to clarify the concept of representation,
without ruling out the Indian proposal. Regarding organizations, there
are organizations “of” PWD who ar administered by PWD, and there are
organizations ”for” PWD who may consist of people serving PWD who may
or may not themselves be disabled. The two types of organizations cannot
be put in the same category for the purposes of consultation. It is
difficult to say that families can act as representatives as the family
usually plays a supporting role and represents PWD only when they cannot
indicate who they wish to represent them. The concept of “representation”
is clear in that it must stem from the will of PWD and not consist of
Australia supported the remarks of Costa Rica, in that
it would prefer to refer to “PWD and their representatives.” Families
serve as the representatives of the interests of PWD in many, but not
The Coordinator summarized there is clearly support
for incorporation of the substance of Articles 5(2)(d), 6(c), 18(c),
19(2)(g), and 21(m), into one provision, but delegates have made clear
that no content should be lost in the merger. The issue of families
has been more controversial, in terms of presentation if not substance.
It is unlikely the facilitation group will be able to resolve this issue
and it should not spend too much time on it. It may be better to examine
articles individually to see if a reference to families should be included.
It may also be desirable to include a preambular paragraph on this issue
as suggested by Mexico drawing on the Korean proposal. Regarding placement,
some have indicated a reference to families should be a general obligation,
though some have also suggested that the provision be included in the
The Netherlands (EU) reiterated its reservation regarding
inclusion of the merged participation provisions in the article on general
The Coordinator noted the divergence of views on placement
of such a provision, and that the position of the EU has been noted.
The intention here is to have a process bringing delegates closer, and
no one is precluded from opening issues later. By examining involvement
of PWD in the context of Article 4, that does not preclude later placement
in Article 25. The next issue is that of remedies, which is highlighted
in FN 18 of the WG text. The issue is whether there should be a provision
on remedies in Article 4 or in the convention as a whole. The African
Group submitted a proposal on remedies in Article 4(1)(c), and there
are provisions on remedies in existing treaties such as ICCPR Article
2(3), CERD Article 6, CAT Article 14.
Thailand reiterated its support for reinstatement of
remedies in Article 4, which is a included in the Chair’s draft. Thailand
has submitted a proposal on this, available at: http://www.un.org/esa/socdev/enable/rights/ahc4thailand.htm,
and asks delegations to please consider it. Some may have reservations
about including a provision on remedies because of the absence of such
a provision in ICESCR. However, it believes remedies is an evolving
concept and there are many economic, social and cultural rights associated
with non-discrimination, and remedies should be available for the violation
of these rights.
Sierra Leone noted Article 9(g) also addresses remedies.
It may be better to address this issue under an article dealing specifically
with issues of the rule of law, rather than under an article on general
obligations. The African Charter also contains a provision on remedies
and the Human Rights Commission is drafting basic principles and guidelines
which address the issue of remedies.
The Coordinator noted Sierra Leone’s proposal to reference
remedies in Article 9, and thanked it for highlighting the proposal
on remedies submitted by Costa Rica and appearing in Article 9(g) of
the Compilation document.
Senegal expressed support of the African Group for the inclusion of
remedies. Although the matter is covered in other articles, the African
Group attaches great importance to the concept and would prefer it included
as a general obligation, though it is willing to discuss placement in
Republic of Korea supported inclusion of a remedies
provision, but expressed concern that placement in general obligations
could conflict with the approach in ICESCR. As the treaty will operate
in association with others, it should not conflict with them.
Australia noted the previous discussions on the difference
in approach to remedies in the ICCPR and ICESCR and urged caution regarding
placement of an issue under general obligations that could assign rights
not existing in other conventions. Australia’s proposal on structure
which groups different kinds of rights could be of assistance here.
Costa Rica reiterated its position that remedies be
addressed in Article 9. It supports the Chilean proposal to split 9
into two parts; one on legal capacity and one on access to justice.
Remedies should appear in this second part. To include it under general
obligations would “open the spectrum” beyond what was anticipated by
Costa Rica when it submitted its proposal.
Israel strongly supported inclusion of remedies, for
it is here that promotion of the rights of PWD often fails, and “a right
without a remedy is no right at all.” Although ICESCR does not include
a provision on remedies, there has been considerable development in
this area. A provision on remedies should be in Article 9 and also as
a general provision. It proposes adopting the language of Article 2(3)
(a) and (b) of ICCPR, as well as (c) amended to read, “to ensure that
the s p shall institute appropriate enforcement mechanisms in relation
to the attainment of such remedies when granted.”
The Netherlands (EU) noted the various proposals and
indicated that it is has yet to decide if such a provision is needed
and, if so, where it should be placed. Whatever the decision, it has
“serious difficulties” with proposals by the African Group and Thailand.
New Zealand associated itself with the comments of
Korea and Australia. A general remedy contained in Article 4 would “pose
considerable difficulties in respect of ensuring consistency between
this new convention and older conventions, in particular with the ICESCR.”
The treaty must not create rights for PWD that are not available to
other people. Although jurisprudence has developed regarding economic,
social and cultural rights, the conventions themselves do not confer
a general remedy for such rights on the general population. Article
6 of CERD is not an appropriate model because it deals with the narrow
issue of non-discrimination, and similarly CAT is not a good model because
it offers a specific remedy for violation of a specific civil right.
New Zealand is not suggesting that remedies do not exist for civil and
Canada associated itself with remarks of Korea, Australia,
the Netherlands, & New Zealand. It is not useful to elaborate the
right to a remedy for PWD that would not be available to others. The
ICESCR does not include remedies because the rights therein are subject
to progressive realization, which makes it difficult for these rights
to become justiciable in a court of law. A cross-cutting convention
such as the CRC does not contain a provision on remedies and that should
be the case here. Canada concedes the article on unlawful detentions
could be a place to include a provision on remedies if such a provision
is included at all, as that right is alreay granted under ICCPR and
CAT. For these reasons Canada does not support the proposals for Article
4 from the African Group, Thailand, and Israel. A reference to remedies
in Article 9 bis on access to justice could be appropriate if it did
not create a new right.
Serbia and Montenegro noted remedies is a significant
issue, but associated itself with the cautions from Korea, Australia,
the Netherlands, New Zealand and Canada. On a preliminary note it could
perhaps accept the Costa Rican proposal, but only in the context of
an article on access to justice.
Japan associated itself with the comments of Korea,
Australia, New Zealand, Canada, and Serbia and Montenegro. It is cautious
about a general obligation on remedies, as there is no comparable provision
in ICESCR. However, it is not opposed to an article by article examination
and mention of remedies for rights that are clearly civil and political.
Kenya joined others who stated that the mere fact a
provision on remedies does not exist in ICESCR should not preclude such
a general obligation here. The requirement for remedies should be considered
on its merits, as the international jurisprudence is “dynamic” and develops.
The treaty should enable effective enjoyment of the rights of PWD and
should not become “effectively a toothless bulldog.” The treaty must
allow for the possibility of people being able to claim redress where
that is necessary, and it supports the Thai and African Group proposals.
Actual remedies may differ depending upon whether the right is a civil
and political, or economic, social and cultural right, but the principle
must remain that remedies are necessary.
The Coordinator noted several delegations have stated
PWD should not have rights of redress unavailable to members of the
general population. However, this may be a difficult position, as some
of the remedies would have to be available only to PWD. For example,
a right of redress for discrimination on the basis of disability under
Article 7(1) would not be available to the public at large, because
they would not be discriminated against on the basis of disability.
Thus, if the rights of PWD are to be effectively guaranteed for PWD,
is it not a necessity that they have access to some forms of redress
that would not be available to members of the general public?
Canada asserted that in the Coordinator’s hypothetical,
the right that would give access to a remedy would be non-discrimination.
That right is held equally by all persons, so there would be no difference
in that instance between PWD and the general public.
The Coordinator queried whether it is correct to say
that all persons have a right not to be discriminated against? Typically,
domestic legislation prohibits discrimination on particular bases. Is
there a general rule under international law that one shall not be discriminated
Canada noted ICCPR Article 26 provides for the right
of non-discrimination, and includes a list and also “or other status.”
Thus, the grounds for discrimination are open and the conduct prohibited
by ICCPR Article 26 is discrimination for any reason.
The Coordinator consulted a representative of the OHCHR
who confirmed the existence of a blanket prohibition against discrimination.
The Coordinator expressed reservations about this prohibition, given
that many countries discriminate against people with criminal convictions
by denying them employment in certain positions.
Thailand noted there was some confusion regarding
remedies in the WG as well. As this is a thematic convention addressing
disability, if it prohibits discrimination on the basis of disability
there has to be a remedy available to the person being discriminated
against on these grounds. Thailand is not sure if this runs with or
counter to ICESCR.
Jamaica sought clarification from delegations not in
favour a provision on remedies. The argument seems to be that there
are other conventions that do not include remedies and thus such a provision
should not be included here. However, existing instruments have been
found too general and insufficient, hence the need for a treaty specifically
addressing disability. If it is also asserted that member states have
domestic remedies available to address discrimination on the basis of
disability, why then should this convention, not also include a provision
The Coordinator asked if the argument is that PWD have
rights not to be discriminated against under ICCPR, which includes a
provision on remedies, why is it that PWD continue to be discriminated
against? The WG heard numerous examples of “horrendous discrimination”
against PWD. If coverage for PWD does not exist there appears to be
a need to create it, and if it does exist why is it not working?
Liechtenstein sought to provide clarification. Protection against
discrimination on the basis of disability is covered in ICCPR Article
26 “other status,” as accepted by the CHR. States should prevent such
discrimination but often do not as they do not have adequate policies
and legislation, which this treaty seeks to change. Where such discrimination
occurs, whether it is in the field of economic, social and cultural
rights, or civil and political rights, States are obliged to provide
a remedy, as this is required by ICCPR Article 26. If a State discriminates
on the basis of disability, this is grounds for a remedy on the basis
of ICCPR but not ICESCR. This “gate of discrimination that leads to
a remedy is a very large one” and most instances where rights of PWD
are violated involve some sort of discrimination. Many are saying discrimination
is the main issue of this convention, and “so in the end remedies would
be available probably at large.” The Coordinator thanked Liechtenstein
for its explanation.
Australia supported Canada and Lichtenstein, and reiterated
its view that ICCPR Article 26 provides a prohibition against discrimination
and a right to redress. Australia has no problem with remedies that
flow from the ICCPR or the general prohibition against discrimination.
However, to rely upon rights from ICESCR where there is no provision
for remedies “would be stretching it.” It also agrees the general prohibition
against discrimination does leave a “fairly wide door” to access remedies
in this area.
Canada supported Liechtenstein. Although Canada has
not officially endorsed the following idea, one idea might be to include
a general sub-paragraph on remedies in Article 7, to make clear that
it flows from the ICCPR protection against discrimination.
Thailand agreed that PWD are covered by “other status”
in Article 26 of ICCPR, but is concerned that this is not very specific
and could require much interpretation. This convention should try to
be as specific as possible. Thailand is flexible regarding the placement
of such a provision, as long as it can be applied generally.
Sierra Leone noted no delegation is against remedies,
which is also captured in draft Article 10(2)(d). The issue is where
to place such a provision, and it may be desirable to include a specific
article on remedies, including a mechanism to provide remedies.
Australia suggested that its proposed Article 4 ter,
ensuring no diminution from existing human rights (at: http://www.un.org/esa/socdev/enable/rights/ahc4australia.htm)
may be helpful in resolving this issue. Australia has no objection to
a strong provision on non-discrimination reiterating the provisions
of ICCPR Article 26.
Lebanon reiterated its support for inclusion of a provision
on remedies as a general obligation, finding support for its position
in paragraph 5 of CESCR General Comment No. 3. It acknowledged caution
may have to be exercised regarding the content, because of the treaty’s
coverage of economic, social and cultural rights.
The Coordinator noted the strong support for inclusion
of a provision on remedies, with many supporting placement in general
obligations, and some suggesting placement in Articles 7 or 9. One delegation
has opposed inclusion of remedies and another representing a group of
countries has reserved its position for now. It seems likely that consensus
will develop on inclusion of this provision. However, content will depend
upon placement and with no agreement on placement at this stage it is
not appropriate to develop language now. Additional issues for consideration
here include the Japanese and Kenyan proposals for Article 4(1)(g).
Japan’s proposal on conditions and environments may best be placed in
Article 15 (Living independently and being included in the community)
or 19 (Accessibility), and Kenya’s proposal on structures overseeing
implementation and monitoring may be better placed in the section on
Japan acknowledged aspects of its proposal relate to
other articles, but the obligation to provide environments for PWD to
live in a self-sustaining manner is a cross-cutting issue relevant whenever
governments act. Inclusion in general obligations is preferred.
Kenya noted it made its proposal before the substantive
article on monitoring had been proposed. It is flexible on placement,
but suggests maintaining it as a general obligation that could be further
elaborated in the section on monitoring.
The Coordinator thanked Japan and Kenya for their comments
and flexibility. He also asked India to comment on its proposal for
Article 4(1)(e) in the Compilation, and whether the concept was already
adequately captured in draft Article 7(3). India indicated Article 7(3)
met its requirements. The Coordinator thanked delegates for their discussion
on Article 4, which will inform the work of facilitator Mr. Gustavo
Ainchil (Argentina). He encouraged the facilitator’s group to use footnotes
rather than square brackets, as there is a need to narrow the options
at this stage, and footnotes are easier to read for many. Discussion
on Article 4 was necessarily slow because it relates to general obligations
and there were many proposals to consider. Later articles are more focused
and should permit an expedited discussion.
The session was adjourned.
Volume 5, #7
August 31, 2004
ARTICLE 4 INFORMAL CONSULTATIONS
The Facilitator Mr. Ainchil (Argentina) would focus the group
on drafting. Flexibility is requested, with brief explanations and focusing
on common ground. Discrepancies will be reflected in footnotes. The
Working Group draft text is the default. The group will first address
structure as reflected in the chapeau, then move to specific substantive
points. Should the chapeau be long, or short with bullet points, or
use the WG draft?
New Zealand asked to reserve its position on the phrase
“within their jurisdiction,” which is a point it made previously. It
asked the Facilitator if he might suggest specific text for a shorter
chapeau for delegations to consider.
The Facilitator provided three chapeau options: 
the WG proposal with reference to “human rights and fundamental freedoms”;
 the New Zealand proposal of two paragraphs followed by bullet points;
 the Mexican proposal which would read “In order to achieve the purpose
of the present convention the states parties undertake,” with the reference
to ensuring all human rights and fundamental freedoms appearing as one
of the bullet points. A shorter chapeau would build on the Mexican proposal.
Senegal indicated the African Group’s agreement to
shorten the chapeau.
Canada supported a shorter chapeau but hesitates to
lose the reference to “human rights and fundamental freedoms” which
is what the treaty is about. It could accept the Mexican proposal with
this reference in the chapeau instead of as a bullet point. The chapeau
in the Compilation could be used, including the reference.
The Facilitator inquired whether retention of human
rights and fundamental freedoms in the first bullet point would be acceptable?
Canada responded that the importance of keeping the reference in the
chapeau is that that it is an underlying principle that informs all
the other obligations. It thus prefers to retain the reference in the
The Netherlands (EU) did not have major difficulties
with the WG text, but favours concise formulations. Article 4(1) is
closely related to the purpose in Article 1, the WG text for which the
EU strongly supports. With a clearly articulated purpose the Facilitator’s
proposal could be acceptable though it must discuss this with its group.
New Zealand supported the EU and Canada. Without agreement
on Article 1 it is difficult to know the implications of the Mexican
proposal here. Although it prefers concise formulations, it does not
wish to see the chapeau weakened.
The Facilitator asked delegations to address the possibility
of retaining the WG formulation, as not too much time should be spent
here on the chapeau.
Chile did not have any problems with the WG proposal,
or the reference to “jurisdiction.” It is flexible on the Facilitator’s
proposal, provided it could be given a second reading.
Norway did not have major problems with the WG text,
but would like to stress the nexus between this chapeau and Article
1. If Article 1 contains a strong and unequivocal formulation on ensuring
all human rights and fundamental freedoms, there is room for more flexibility
in this chapeau, along the lines of the Mexican proposal.
Mexico stated the aim of its proposal was to clearly
reflect the aims of the convention in a manner that would be clear,
strong, and agreeable to everyone. The general obligations should be
brief, and consistent with the stated goals of the convention. Although
many have said that they do not have problems with the WG chapeau formulation,
there are “three or four square brackets which reflect duplication of
discussion.” Mexico would like “both proposals to be kept consistent.”
China made two points:  the primary obligation
of States Parties under the general obligations is to ensure the purpose
of the treaty is realized. Mexico’s proposal is concise, reflects China’s,
and it is a good basis for discussion.  although China submitted
a proposal for the chapeau, it is willing to accept the Mexican proposal.
Republic of Korea expressed support for a succinct
chapeau, such as the Mexican proposal. However, it prefers to preserve
substantive elements in the chapeau, such as ensuring all human rights
and fundamental freedoms, as noted by Canada. This could be achieved
if a reference to ensuring all human rights and fundamental freedoms
were included in the purpose of the convention.
The Facilitator sought reactions to combining the two
proposals, saying “In order to achieve the purpose of the present Convention,
States Parties undertake:” and then follow with the WG text. One footnote
at “purpose” would indicate the nexus with Article 1, and another footnote
reflect discussion on “jurisdiction.”
The Netherlands (EU) questioned how the article would
then read and what the chapeau would then mean? For the EU the purpose
of the convention is clearly the “full and equal enjoyment of all human
rights and fundamental freedoms by persons with disabilities,” but it
has difficulty understanding the chapeau in light of the new language.
If purpose is referenced it must be clear what is being discussed, which
is one of the reasons why the EU would like to know when Articles 1
and 2 will be discussed. It is difficult to talk about “purpose” or
understand the chapeau if the purpose is not agreed.
New Zealand felt the combined proposals lost the intended
benefits of the shorter formulation. It also shares the EU’s concerns
that the purpose is not yet agreed, as well as what might then follow
from the chapeau, in particular to deal with the distinction between
civil, political, and economic, social and cultural rights. The desire
to clearly distinguish between the types of rights led to New Zealand’s
proposal on this article.
Jordan supported the need to keep the text concise.
It is too early to merge proposals, without conclusion on Article 1.
It has difficulty with the phrase “within their jurisdiction,” and could
only agree to its inclusion if “and or under their control” were added
Lebanon preferred a short and concise chapeau for the
reasons given by Mexico, having itself proposed that sort of wording
before. Wording depends on Article 1.
The Facilitator noted the view that the first part
of the chapeau should align with, either by repeating the same language
or making a reference to, the purpose of the treaty. There are two options
to proceed, each which will have to be adjusted in light of Article
1:  retain the WG text, with a footnote that it will be adjusted
in line with Article 1; or  the Mexican proposal with the same footnote.
It is understandable that delegations want “safeguards” in the text
so that their concerns will be respected. The “safety valve” in this
case is a footnote.
Mexico very much understood the concerns of others,
and found the Facilitator’s proposed solution adequate.
The Netherlands (EU) was unclear if it correctly understood
the proposal. It would not oppose putting the Mexican or other proposals
in a footnote to assist discussions. Without repeating earlier arguments,
it stresses this section will depend upon final text for Article 1.
It would be best to keep the WG text rather than using the Mexican proposal
and footnoting the WG proposal. The EU would prefer not to see numerous
proposals bracketed, as it understood such issues should be addressed
The Facilitator clarified that the intention was not
to add an additional footnote, but to have one footnote. The WG draft
text footnotes would not be retained in order to streamline the text.
The footnote would include a sentence saying the chapeau will later
be aligned with the purpose, once Article 1 is agreed upon.
Senegal stated the African Group accepted the Facilitator’s
proposal with a footnote.
The Netherlands (EU) expressed continued confusion
about how the proposal would be reflected. It also noted that when the
group was not drafting there were big screens displaying proposals,
but now drafting has started there are no screens. The screens would
be very helpful for delegates to be sure which proposals are being discussed.
The Facilitator apologized that the screens would be
Sierra Leone noted that in the January WG meeting they
worked at this level of drafting without screens. It suggested the Facilitator
read his proposal again slowly.
The Facilitator thanked Sierra Leone for its suggestion.
The proposal would be to keep verbatim the WG language, with one footnote
after “jurisdiction” repeating more or less the WG footnote on that
issue. Another footnote would appear after “disability,” saying “the
content of this sentence will be adjusted to the final drafting of Article
1.” The footnote can also raise the possibility of using the Mexican
Jordan did not have major difficulties with a footnote,
though its preference is not to use footnotes. It could accept the Facilitator’s
proposal as long as Jordan’s proposed amendment regarding “jurisdiction”
can be included in the relevant footnote.
India supported the New Zealand amendment for Article
4(1). In particular it wishes to delete “within their jurisdiction”
because some countries face problems of illegal immigrants and there
cannot be any obligations under this treaty for illegal immigrants.
Canada would be content with the Facilitator’s proposal.
Having once proposed deletion of “within their jurisdiction” it could
accept this deletion. It does not wish to see additions to the WG text.
“Under their control” would introduce a concept never before used in
international human rights law and opens more questions than it settles,
such as what constitutes “control” over an individual by a State? As
a major contributor to international peace-keeping operations it raises
huge issues for Canada, and “we would not in any circumstances accept
that addition to the text.” For reasons similar to India’s, it expands
the scope of the treaty far beyond that in prior international human
The Facilitator asked delegates to also respond to
the phrase “within their jurisdiction.”
Senegal stated the African Group preferred “jurisdiction”
retained in the chapeau.
Jordan agreed with Canada that the concept of “control”
is not reflected in international instruments, but case law reflects
this emerging concept. It can live with deletion of “within their jurisdiction,“
but if the phrase is retained “we will insist on our amendment.”
The Facilitator noted the question of “jurisdiction”
took much time in prior discussions. His perception is that “within
their jurisdiction” is limiting and if other contexts are also addressed,
there can be difficulties in how these additional contexts are described.
Deletion of the phrase might imply coverage of all contexts, and in
so doing all possibilities could be addressed. Could Senegal elaborate
Senegal stated it would have to first consult the other
members of the African Group.
Costa Rica accepted the Facilitator’s proposal which
seems to have solid support. The phrase “within their jurisdiction”
appears to be a compromise and could be too limiting given that the
majority here believe international cooperation is absolutely necessary.
Limiting obligations to state borders is a reflection of state sovereignty,
but how that operates depends upon how state sovereignty is exercised.
It supports elimination of “within their jurisdiction.”
Mexico supported the Facilitator’s proposal to use
the WG text and have a footnote, but queried whether its proposed text
would also be referenced in the footnote, as is done in other WG footnotes.
Mexico supports the deletion of the phrase “within their jurisdiction”
for reasons provided by Canada and Costa Rica.
The Facilitator indicated his intention was to include
Mexico’s proposal in the footnote. There appears to be quite a lot of
support for deletion of “within their jurisdiction”. He proposes deleting
the phrase and, following consultations of the African Group, if that
group cannot live with the deletion a footnote will be provided on the
The Netherlands (EU) understood the concerns of New
Zealand and the discussions of the WG regarding “within their jurisdiction.”
However, it is unclear what legal obligations States Parties would be
taking upon themselves if this phrase were deleted. The remaining formulation
would be one not seen in any of the human rights conventions, and although
it assumes interpretation of the text would be more limited, it would
need to seek legal advice. The EU has reservations about further amending
the chapeau language here, given that it will be revisited once agreements
have been reached on Article 1. The way to proceed may be to leave the
chapeau language as it is, with footnotes to reflect points made by
various delegations, and revisit it in more detail later.
The Facilitator acknowledged it “does not really make
sense to engage in this” if the whole sentence will be reshaped in light
of Article 1. For now the text would retain the WG formulation, with
one footnote indicating that the sentence will be adjusted according
to Article 1, and referencing the Mexican proposal. Another footnote
would incorporate WG FN 20 discussing “within their jurisdiction” and
the Jordan proposal.
Sierra Leone suggested the footnote on “jurisdiction”
should not merely reproduce the WG footnote but simply state that the
issue was not resolved and then include the Jordanian proposal. If anyone
wants to read WG FN 20 they can, but this would help reduce the size
of the document.
The Facilitator indicated he would proceed in the manner
suggested. The group should now move to Article 4(1)(a). Building upon
the very extensive discussion yesterday, it was clear that the group
should base (a) on the text of CRC Article 4, and then try to add some
of the ideas discussed yesterday, such as the proposal from India.
Jordan sought clarification whether “within their jurisdiction”
would be bracketed, as this would be Jordan’s preference.
The Facilitator clarified there would be a footnote, but in light of
the very clear request of the Coordinator and the technical difficulties
faced in reading brackets, it would not be bracketed. However, the footnote
would have the same practical and political meaning usually accorded
brackets in UN discussion, and he requested Jordan’s flexibility.
Senegal announced that, following consultations, the
African Group would like to see “jurisdiction” retained in the chapeau.
It would then like to see the language currently reflected in Article
4(1)(a) reflected instead in Article 4(1)(b).
The Facilitator thanked Senegal for its comments, which
he felt would be reflected in his proposal to retain the WG chapeau
language and capture concerns on this issue in a footnote. He asked
the group to move to Article 4(1)(a). The general sense of the discussion
yesterday was to build upon the language of CRC Article 4, though deleting
“States Parties undertake” and beginning “to adopt,” in order to reflect
the placement of the language in a sub paragraph. To include the elements
raised yesterday by India, ICESCR Article 2(1) could be incorporated,
so that after “international cooperation” in the CRC language it would
read “with a view to achieving progressively the full realization of
the rights recognized in the present convention.”
Thailand believed there should be a place which acknowledges
that there are aspects of rights capable of immediate implementation
and which should be given immediate effect. With that included Thailand
can go along with the CRC text.
The Facilitator repeated his proposal following a request to do so from
The Netherlands (EU) would prefer the CRC language
in a separate paragraph 4(2), rather than in (a). At AHC3 it proposed
an amendment to this language, as in the framework of this treaty it
is inappropriate to speak of “implementation of the rights recognized
in the present convention.” Its amendment reads “for the implementation
of the present Convention.” Regarding progressive realization, it will
have to take any proposal back to its group, but preliminarily suggests
the ICESCR Article 2(1) language would more naturally fit after “available
resources” than at the end of the paragraph.
Sierra Leone asked if it would be possible for Thailand
to provide suggested language.
Canada agreed with the EU that rather than having this
important language become a “sub sub paragraph” it should instead become
Article 4(2). It would be content with the slight reformulation as provided
by the EU. Canada seeks clarification concerning addition of ICESCR
Article 2(1). Yesterday Canada proposed language reading “with a view
to achieving their progressive realization,” making it clear that it
refers specifically to economic, social and cultural rights. Canada
is fairly flexible regarding placement of this qualification, and sees
some merit in the EU proposal that the insertion follow “available resources,”
though this is not something it feels strongly about.
Thailand indicated its proposal would fit with the
idea of having the paragraph on economic, social and cultural rights
as a separate paragraph. The language would read, “With regard to economic,
social and cultural rights States Parties undertake to a) give immediate
effect to the aspects of those rights which are capable of immediate
implementation, including but not limited to obligations of non-discrimination
in the enjoyment of those rights and b) in relation to other aspects
of those rights … “ and then the CRC language would start.
Senegal stated the Facilitator’s proposal looked very
interesting, but it would provide its position after consultations with
the African Group.
The Facilitator noted that incorporating the CRC language
in a separate paragraph would either lead to repetition of concepts
currently in (a), or it could lead to a “strange flow” of concepts related
to adoption of legislative and other measures, because in (a) there
would be an obligation to amend laws and then some paragraphs later
there would be a reference to promoting laws. He sought guidance on
this issue from those delegations who expressed a preference for the
CRC language in its own paragraph.
Canada did not see the difficulty described by the
Facilitator. The new sub paragraph would merely clarify the extent of
the obligations set out previously in sub paragraph 4(1). The placement
would be appropriate and make the level of obligations clear. Regarding
the Thai proposal, Canada objects to the characterization of the right
not to be discriminated against as an economic, social and cultural
right. The right is contained in ICCPR Article 26, and to characterize
it as coming from a different source, namely the ICESCR, “would be a
rather unfortunate misstatement of international law on this point”
that Canada would not find particularly helpful in this context.
Mexico supported including progressive realization
in a separate paragraph. Acknowledging it may not flow well, one solution
would be to avoid repetition of the common elements, and begin Article
4(2), “With regard to economic, social and cultural rights.” That would
still have application to all the measures listed previously in Article
4(1). Mexico understood the agreement yesterday that using the formulation
and including an explicit reference to progressive realization would
address the concerns of Thailand regarding division of rights that are
to be immediately implemented and those not. Mexico continues to feel
this separation is not necessary and as the Facilitator’s wording is
appropriate it does not feel Thai proposal is necessary.
New Zealand addressed flow of the article. If the WG
draft with its reference to “all” human rights and fundamental freedoms
is accepted, to then in a sub paragraph qualify this with a different
formula for economic, social and cultural rights seems contradictory.
It is for this reason that New Zealand suggested this distinction be
made earlier in the article and in a stand-alone paragraph modeled on
the CRC. New Zealand’s immediate reaction to the proposal introducing
progressive realization from the ICESCR into the CRC wording is that
the placement of it is as the EU suggested.
The Facilitator summarized discussions. Delegations
prefer to have this idea as a stand-alone paragraph. We will not repeat
today the discussions from yesterday where the decision was to use CRC
language and try to incorporate the idea of progressive realization.
He read the suggested language for what will be called for now sub paragraph
(4), with minor adjustments as suggested: “States Parties shall undertake
all appropriate legislative, administrative and other measures for the
implementation of the present convention. With regard to economic, social
and cultural rights States Parties shall undertake such measures to
the maximum extent of their available resources with a view to achieving
their progressive realization and where needed within the framework
of international cooperation.”
Costa Rica agreed with New Zealand. The proposal as
read appears to be the New Zealand proposal with progressive realization
added, and Costa Rica supports this. However, if this is a point of
conflict, and if there is agreement, the generic New Zealand proposal
could be used, making the article easier to understand. Regarding the
Thai proposal, as a measure of flexibility, there could be reference
to the immediate realization of those aspects of rights that can be
realized immediately. Costa Rica agrees with Canada that non-discrimination
is a civil and political right, but it is also a cross-cutting right.
The New Zealand proposal appears to cover all concerns raised and Costa
Rica would like to know if that proposal has acceptance in the room.
The Facilitator also wanted to hear if the text is
accepted prior to discussing placement.
Serbia and Montenegro preferred the CRC text and has
no objection to a specific provision on progressive realization as suggested
by India, with placement as suggested by the EU and New Zealand. Regarding
flow, the Mexican suggestion could be helpful. The second sentence of
CRC Article 4 could be placed in the chapeau to read, “States Parties
undertake to ensure the full realization of all human rights and fundamental
freedoms for all individuals without discrimination of any kind on the
basis of disability within their jurisdiction. With regard to economic,
social and cultural rights, States Parties shall undertake such measures
to the maximum extent of their available resources with a view to achieving
their progressive realization and where needed within the framework
of international cooperation.” There would then be no problem “to go
along with sub paragraph (a) of 4(1).” The phrase “without discrimination
of any kind” hopefully addresses the Thai concerns. The concept of immediate
realization could be incorporated later, though the phrase “to the maximum
extent of their available resources” already addresses this “if implemented
in good faith.”
The Facilitator queried whether Serbia and Montenegro’s
proposal could be incorporated at this stage, given that it is linked
to the pending discussion on purpose.
The Netherlands (EU) noted that progressive realization
has yet to be discussed by the EU group, but finds the Facilitator’s
formula interesting, and a good basis to proceed.
New Zealand appreciated the proposal of Serbia and
Montenegro, but expressed concern that the contradiction would still
remain between “full realization of all human rights” and then the different
formula for economic, social and cultural rights. There should be internal
consistency between sentences and paragraphs. The Thai proposal raises
interesting issues, and New Zealand would appreciate a written copy
Thailand could not “confidently” agree to the Facilitator’s
proposal. It is not yet convinced the language captures the idea of
giving immediate effect to those aspects of rights capable of such.
Many delegations appear to be of the view that economic, social and
cultural rights are automatically subject to progressive realization
and cannot immediately implemented, but it believes some aspects of
those rights are capable of such. It would be willing to submit its
proposal in writing if there is a mechanism for that.
The Facilitator noted the Thai proposal is essentially
captured in the Compilation document immediately before 4(2). The intention
here is not to reopen discussions of yesterday, when 2 options were
discussed:  to introduce the concept of progressive realization;
or  to introduce the concept of giving immediate effect. As instructed
by the Coordinator, the focus is on the first option, drawing on the
CRC and ICESCR.
Cuba expressed satisfaction with the structure of the
New Zealand proposal. It agrees with the first paragraph and the discussion
just held on the WG paragraph. Perhaps some of the Mexican suggestions
could also be included. It supports the treatment of CRC Article 4 and
the Indian proposal to include progressive realization. This should
be a separate paragraph as proposed by New Zealand. Various sub paragraph
options as covered in Article 4(1) could then be considered.
Kenya supported the Facilitator’s proposal based on
the CRC and including progressive realization. The language is inclusive
and addresses issues of both immediate and progressive implementation.
“Immediate” implementation need not be expressly stated, as this will
be measured on the basis of eg when a State joins the treaty. Kenya
could support this as a stand alone paragraph, but does not wish to
lose concepts currently in WG Article 4(1)(a), such as addressing customs
and practices inconsistent with the treaty. These concepts could perhaps
be reflected elsewhere in this article.
The Facilitator clarified that 4(1)(a) has not yet
been reached in the discussions.
Sierra Leone supported the Facilitator’s proposal.
It suggests incorporating the idea that some rights that could be effected
immediately, as proposed by Thailand. Language drawn from the Compilation
document could be added, reading “to give immediate effect to those
aspects of those rights that are capable of immediate implementation.”
It hopes this suggestion would be acceptable to Thailand.
The Facilitator suggested this proposal could be inserted
after “undertake” and then it would be followed by “and in relation
to other aspects of those rights to adopt such measures … “ with the
rest the same. It is very long but includes all the ideas so far.
Costa Rica suggested Sierra Leone’s proposal could
be addressed by partially incorporating the Indian proposal, excluding
the reference to non-discrimination which does not belong here for the
reasons given by Canada. After “international cooperation” the text
would read, “States Parties undertake to give immediate effect to those
aspects of those rights which are capable of immediate implementation.”
This qualifies the commitments of States Parties regarding economic,
social and cultural rights.
Japan preferred the New Zealand text, which is concise
and addresses all concerns. Although “progressive realization” is in
the ICESCR, it should not be focused on here as it may give States an
excuse not to realize economic, social and cultural rights. The phrase
“maximum extent of available” resources should sufficiently address
the Thai and Indian concerns. If progressive realization must be included
the Thai proposal may need to be incorporated, though Japan’s preference
is for a more concise text.
Lebanon supported the Thai proposal, but does not wish
to “divide rights up” by explicitly referencing economic, social and
The Netherlands (EU) was concerned the discussions
were moving the wrong way. It does not understand what problem is addressed
in the Thai proposal and is concerned the Thai proposal is “creating
a new kind of human rights law.” References to “rights capable of immediate
implementation” wrongly implies that rights “have the ability to implement
themselves.” Non-discrimination is also misplaced, as it is not an economic,
social and cultural right. The Facilitator’s proposal covers all issues
and it “does not think we should add other concepts, in particular ones
which are not understandable.”
Colombia supported the Costa Rican proposal and wishes
to include its proposed new Article 7 bis as a new sub paragraph of
Thailand did not understand why the concept of immediate
implementation was not readily understandable, and is willing to discuss
this further. It appreciates the proposals of Sierra Leone and Costa
Rica, and could accept either formulation.
Mexico clarified that in terms of structure, it prefers to see these
concepts in chapeau, a separate paragraph. It is “appalled” to see yesterday’s
discussions resumed. It supports the Facilitator’s proposal. It believes
progressive realization implies that some aspects of rights may be implemented
immediately and others gradually, and so it cannot support the Thai
and similar proposals that “give us a conceptual problem.”
Australia shared concerns the paragraph is “expanding.”
The CRC language is appropriate, and it agrees with Japan the additional
reference to progressive realization may have “led to the desire for
a counterbalancing provision in relation to immediate implementation.”
The CRC language, with or without “progressive realization” is sufficient,
and it is concerned about adding additional language. To determine content
of this provision, understanding of the article’s structure and flow
is needed. In that regard it supports the Serbia and Montenegro proposal
to use the second part of the CRC text, either in the chapeau or “up
top” in the article’s opening.
The Facilitator spoke to the structure; the intent
would be to have these ideas in a separate paragraph. Placement could
be addressed later, or the New Zealand approach could be used and the
paragraph moved up, though this could generate more problems. The language
would be as he read earlier: the CRC language including reference to
progressive realization. After “international cooperation” a footnote
would be added addressing the proposal on immediate implementation,
as there is no consensus yet on this issue.
Jordan was flexible, but it does not see the necessity
of emphasizing progressive realization. To address Thai concerns it
may be possible to insert the language “while taking into account the
immediate implementation of some rights” following “With regard to economic,
social and cultural rights,” with the rest of the paragraph unchanged.
Sierra Leone suggested language for the footnote without
naming delegations, to read “One delegation suggested the inclusion
of a reference to those rights that are capable of immediate implementation
and others disagree.” The Facilitator agreed.
Brazil supported the Facilitator’s proposal based on
CRC Article 4. Although it understands concerns about immediate implementation,
it agrees with Mexico that this idea is implicit in the concept of progressive
The Facilitator asked to move to Article 4(1)(a), specifically
addressing the possible repetition of the first 2 lines as a result
of insertion of his proposal based on CRC Article 4. Some delegations
have said repetition is not a problem. He proposes leaving the first
line and a half as it is, then adding the EU/China proposal in the Compilation
document addressing review of policies, and finding a way to incorporate
the Chinese proposal related to customs, also in the Compilation document.
China expressed support for the Facilitator’s proposal, and it’s willingness
to cooperate to find wording. Regarding customs, its proposal addresses
the need to ban customs not in conformity with the treaty, while acknowledging
that prohibiting customs related to culture and history cannot be a
The Netherlands (EU) did not see need for repetition
of concepts addressed in the CRC-based proposal just agreed. It supports
inclusion of its proposal on review and amendment of laws and regulations
leading to discrimination. It does not see a strong need to include
the customs proposal, but could re-examine if others feel differently.
New Zealand agreed the first part of (a) is now redundant.
Its proposal incorporates concepts in the EU amendment, and strengthens
the provisions relating to customs by seeking to modify or abolish those
inconsistent with the treaty. It is open to discussing how far the article
should go in this regard.
Jordan supported the EU comments and queried whether
the Chinese proposal on customs could be captured by, or better placed
in Article 5.
Costa Rica preferred not to repeat in (a) that already
been agreed on. Its proposal at AHC3, not captured in the Compilation,
is to “adopt measures aimed at the eradication of customs or practices
which prevent or make difficult the enjoyment of human rights by PWD.”
This is in line with China’s proposal. It is flexible on its inclusion
in Article 5, but prefer placement in general obligations, which is
The Facilitator noted in some States, customs and practices
are as important as laws. From that perspective Article 5 addresses
this in a different manner. He suggests merging proposals to read “to
take effective measures to review governmental, national and local policies,
and to amend, rescind or nullify any laws or regulations which have
the effect or purpose of creating or perpetuating such discrimination
wherever it exists, and discourage customs or practices that are inconsistent
with this convention.”
Sudan supported the Facilitator’s proposal, but suggested
adding “harmful” before “customs” as not all customs are bad. It notes
Trinidad and Tobago made a similar proposal in Article 5, inserting
“negative” before “stereotypes.”
Kenya supported retention of customs and practices
in the general obligations and not Article 5, because this is not just
a matter of attitudes. “Harmful” is redundant and implied in “inconsistent.”
It supports “discourage,” as State jurisdiction over customs is not
a simple matter, particularly in areas with multiple communities.
Jordan supported the proposal to merge the sub paragraphs.
It supports Kenya regarding “harmful.” “Discourage” is too “watered
down” and “combat” is preferred.
Serbia and Montenegro associated itself with the EU
and New Zealand regarding the first part of the paragraph, and supports
retention of customs here. It is flexible regarding use of “discourage”
or the tougher wording of New Zealand or Costa Rica.
Canada supported the proposal. The first element is
addressed in the chapeau and need not be repeated. It agrees with the
EU and China wording for the second element. It is flexible on the third
element regarding customs, and can support the Chinese wording. The
New Zealand use of “abolish” may not be appropriate because of the reasoning
given by Kenya, and “discourage” may be better.
Mexico supported the proposal and avoiding repetition.
It is unsure what is meant by “creating or perpetuating such discrimination”
and prefers “that are inconsistent with this Convention.” It supports
retention of customs in the general obligations, though this should
be addressed in Article 5 as well. It is difficult to change customs,
but this should not be an excuse to perpetuate customs that prevent
PWD fully enjoying human rights. The language on this issue should be
no less forceful than that in existing treaties, and so the New Zealand
and Costa Rican language is preferred.
Syria supported the proposal. It had preferred to address
customs and practices in Article 5, but in light of Kenya’s comments
is flexible on inclusion in general obligations. It supports Sudan in
inclusion of the qualifier “harmful,” to add clarity.
The Facilitator suggested the following text to address
the delegates’ views: “To take effective measures to review governmental,
national and local policies, and to amend, rescind or nullify any laws
or regulations and discourage harmful customs or practices that are
inconsistent with this convention.”
The Netherlands (EU) appreciated the proposal but would
need to study it. It is “quite hesitant” to add “harmful,” because it
does not know what would be the non-harmful customs or practices inconsistent
with this convention. It would appreciate examples.
Norway appreciated the proposal, but shares the EU’s
concerns regarding use of “harmful.” It may not always be possible to
“abolish” customs and practices, but it would prefer something stronger
than “discourage” and favours “combat.”
Sudan will not insist on adding any words, but following
the logic of the EU it would appreciate examples of customs or practices
“inconsistent with the convention,” and to add clarity prefers to include
“harmful” or “negative.”
Japan supported the proposal but suggested language
such as “modify or abolish” based on CEDAW Article 2(f). It also does
not support qualifiers such as “harmful,” as this could be problematic
if a custom is inconsistent to some and not harmful to others.
The Facilitator suggested “To take effective measures
to review governmental, national and local policies, and to amend, rescind
or nullify any laws or regulations and combat negative customs or practices
that are inconsistent with this convention.” A footnote after “negative”
would indicate concerns regarding use of qualifiers.
Jamaica noted the distinction between customary laws
and customs per se. Under general obligations it could say “abolishing
customary laws that are inconsistent,” with Article 5 addressing more
general, attitudinal customs.
Syria supported Sudan and noted varying interpretations
of “inconsistent.” Adding a qualifier such as “harmful” or the weaker
“negative” could be of help, and supports the Facilitator’s footnote
on this issue.
Kenya supported use of “combat” and highlighted CEDAW
Article 2(f) and CRC Article 24(3) which offer alternatives for those
uncomfortable with “combat.” It suggested reference to “traditional
customs and practices” to address Jamaica’s concerns.