UN Enable - Ad Hoc Committee - Fourth Session - Summary of discussions on draft Article 11

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Daily summary of discussions related to Article 11

FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #4
August 26, 2004

MORNING SESSION

ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Chile supported 11(1) in terms of the reference to medical and scientific experiments as well as Thailand’s proposal in 11(2). Forced institutionalization is addressed in Article 12 and should therefore be addressed in that Article.

Mexico supported the WG text in 11(1). In 11(2), Mexico supports the deletion of the second part of the WG text. Monitoring conditions in facilities is important and Mexico proposes a modification to its new sub-paragraph 3, submitted at AHC3.

South Africa stressed the importance of ensuring the elimination of inhumane and degrading treatment of PWD. It rejected the formulation offered by Algeria, which is qualifying language that weakens existing international law. South Africa noted that the Indian proposal to insert the terms “violence and abuse” is not necessary as there is a separate article on the topic. It supports Thailand’s proposal which widens the scope of scientific experimentation covered. India’s proposal for 11(2) is “strongly supported.”. It does not support the reference to the Optional Protocol to CAT, and supports the placement of the reference to monitoring in the section on monitoring.

China does not support referencing forced institutionalization or forced interventions in 10(2). It is difficult for China to accept the Mexican proposal concerning monitoring facilities in new subparagraph (3). The reference to the Optional Protocol to CAT is problematic.

Venezuela supports the merger of Articles 11 and 12. It supports moving the Mexican proposal on monitoring to Article 25. It supports the proposal of Thailand in 10(2) and India in (2), but amended to delete the reference to third party interests.

Yemen proposed the following language for 11(2): “States Parties shall prohibit scientific or medical experimentation in toto with regard to PWD.” It will submit additional proposals to the Secretariat.

AFTERNOON SESSION

PRELIMINARY MATTERS

The Secretariat announced a fire drill scheduled for August 27. Because of the difficulties in having members of the Ad Hoc Committee participate in the drill, as well as the need to close the building, the morning session for August 27 would begin at 11:15.

ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (Contd)

India reiterated its position on 11(2). It endorsed China’s view that 11(3) be deleted.

Guatemala supported the original wording for 11(1) and 11(2), and supported Mexico’s proposed wording for 11(3).

Thailand proposed deleting the latter half of 11(2), completing 11(2) with “the free and informed consent of persons concerned.” The idea of forced intervention or institutionalization has already been addressed in 10(1)(b), and need not be repeated here. 11(3) does not need to be here and could be deleted.

New Zealand noted that institutional and involuntary care of PWD has historically violated many rights, and it is not surprising to find clauses prohibiting or limiting institutionalization or involuntary care throughout the text. However, the approach is often repetitive and confusing. The right to refuse treatment and scientific experimentation is a major issue warranting creation of a separate article. Clauses 11(2), 12(2) and 12(j) and (k), should be brought together in a revised 11 addressing the right to free and informed consent to any intervention, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da11.htm.

Aspects of 11 related to torture or cruel or inhumane treatment should be moved to Article 12. Acknowledging that some NGOs believe mention of involuntary treatment, even in relation to safeguards, could diminish PWDs rights, New Zealand supports the EU that forced institutionalization should be considered illegal save in exceptional circumstances. These exceptional circumstances should only apply to involuntary treatment, which is a sub-set of forced institutionalization, and must be prescribed by law, not be based solely on disability, and there must be legal safeguards. States should ensure that involuntary treatment is minimized through provision of better care, encouraging voluntary treatment, and also through the promotion of alternatives, such as advance directives. All compulsory treatment should be provided in the least restrictive settings possible.

Canada reiterated support for proposals by China and the EU to delete references to forced intervention and forced institutionalization in 11(2). These issues are better addressed in Articles 10 and 12. Regarding Mexico’s proposal for 11(3), the reference to the Optional Protocol of the Convention Against Torture could be problematic, as that instrument is not yet in force. On a preliminary basis, Mexico’s revised language is acceptable. New Zealand’s proposal is also interesting.

Malaysia supported deletion of 11(3), and proposals of China and the EU to delete references to forced intervention and forced institutionalization in 11(2).

Qatar supported Article 11 as it appears. Its formulation is consistent with humanitarian and religious law, and appropriately establishes the minimum rights for PWD.

Lebanon indicated it would delay commenting on Article 11 until it had had sufficient opportunity to examine the recent proposals from New Zealand and Mexico.

The Netherlands (EU) stood by its earlier proposal to delete the last part of 11(2), and would study the new proposals from New Zealand and Mexico with interest.

The Chair opened the floor for NGOs

The Disability Caucus began by identifying its members as those disabled people’s organizations and allied NGOs attending the Ad Hoc Committee meeting.

The Caucus supported the Mexican proposal to refer to other human rights instruments to assist in monitoring obligations under this article. Acts that would be considered torture in other contexts should not be permitted against PWD because they are carried out by medical personnel or others claiming that the interventions are for the benefit of the person concerned. Delegates should consider the use of mind altering drugs or similar procedures to “correct” a disability against a person’s will as torture. Forced institutionalization falls within the category of torture and other cruel, inhuman or degrading treatment or punishment, because “it is essentially the putting into concentration camps of people based on who they are rather than anything that the people have done or any legitimate reason for States to deprive people of their liberty.”