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Ad Hoc Committee Main
Daily summary of discussions related to Article
LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #5
August 27, 2004
ARTICLE 15: LIVING INDEPENDENTLY AND BEING INCLUDED IN THE
Korea noted that Article 15 attempts to take into account various
cultures and models of disability, and as a result the title sounds
awkward. Korea proposes instead “Independent living and community inclusion,”
with independent living referring to a principle rather than a model
of disability. In accordance with this title the end of the chapeau
should be amended to read “enjoy independent living and full inclusion
in the community, including by ensuring that: “
New Zealand noted that the WG draft presents a positive
alternative to the policy of institutionalization that has historically
led to many human rights abuses against PWD. Many proposed amendments
seem to reflect a lack of understanding of the article’s purpose, which
is to ensure that PWD have choices equal to others, to live where and
as they wish in a community setting. This right is based on Article
12 of ICCPR. New Zealand proposes a revised article, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm.
The revision is intended to reflect the connection between the right
and steps States must take to ensure exercise of the right by PWD. The
draft incorporates aspects of the EU proposals addressing avoidance
of institutionalization and retaining liberty. It also includes provisions
from other articles, including Article 23(1)(d) addressing housing programmes,
20(a) regarding mobility aids and assistance, and a provision from Article
9 related to equal access to opportunities for economic development
and financial independence. There is also an emphasis on the need to
avoid an institutional approach to support provision.
Mexico noted that the article addresses two issues:
independent life for PWD, and participation and inclusion in the community.
The article should require States to take measures for PWD to decide
upon a form of independent life, be able to choose their place and type
of residence, and a way to become integrated into the community and
their families. The article must emphasize the importance of choice
and PWD having the freedom to choose.
Eritrea stressed the importance of ensuring the equal
opportunity of PWD to choose how, where, and with whom they live. It
supports the WG chapeau, and 15(1)(a) as amended by India to reference
respect for cultural practices. It also supports Morocco’s proposed
new paragraph addressing the need to provide support to families taking
care of PWD, to ensure inclusion of PWD in society.
Thailand stressed the need to use “self-determination”
in place of “autonomy.” It is very important for full inclusion to be
balanced with self-determination. Although some have expressed concern
that “self-determination” has a different connotation in other instruments,
it is well defined and interpreted in the disability context and should
not lead to confusion of used here. References to independent living
should be understood as a lifestyle, rather than a movement.
Japan reiterated its proposal from AHC3 that the sub-paragraphs
of Article 15 be re-ordered and grouped according to type of right.
Japan believes that 15(1)(a), (b) and (e) reflect civil and political
rights, and (c) and (d) reflect economic, social and cultural rights
that are subject to progressive realization.
Chile supported Mexico’s proposed title, which captures
the substance of the article as well as the preamble and principles
of the convention. 15(1)(a) addresses a more general principle which
may be described as the opportunity to plan one’s own lifestyle. This
sub-paragraph could more simply state that PWD have the right to decide
their own lifestyle, and then elaborate ways to do this, eg through
choosing place of residence. Chile proposes a reference to access to
information in 15(1)(a) to read, “Persons with disabilities shall have
access to information on support services that are available.” Chile
supports the Philippines proposal for 15(1)(d), but would place in a
separate sub-paragraph and amend to read, “Persons with disabilities
may be members and active participants in community organizations. There
will be policies and ways and means to assist persons with disabilities
to meet the requirements for membership and to be able to participate.”
Chile supports the EU’s proposed paragraph 15(2).
Bahrain proposed a new chapeau to read “States Parties
will acknowledge the rights of PWD to live independently and to social
integration. They are duty bound to take effective and appropriate measures
to enable PWD to achieve that.” There is also a need in Article 15 to
address access to services, and the need to attend to families and personnel
involved in community rehabilitation and training.
Lebanon noted the importance of this article and welcomed
language detailing means by which PWD may choose how, where and with
whom they live. It supports New Zealand’s proposal for 15(1)(a). Provision
of live assistance where needed is of great importance and in this regard
Lebanon supports Canada’s proposed new paragraph 15(1)(f).
Mali questioned whether anyone living in a community
can be truly independent, given the necessary interdependence between
members of the community. As the emphasis of Article 15 is on autonomy
and lifestyle, the title should be “Autonomy and integration in the
Israel noted that many programmes and services for
PWD are based upon functional dependency, and the concept of “independence”
in this article may be interpreted by many professionals in a manner
contradictory to the spirit of the convention and the idea of living
in the community. The title should refer generally to the right of living
in the community as a basic unconditional principle, and the article
emphasize the principle that the right to live in the community and
to take part in all its activities belongs to every person, along with
the right to equality, regardless of the level of physical or psycho-social
independence. An inherent part of the right to live in the community
is freedom of choice, including freedom to define what “community” means.
There are various ways of living and PWD are the only ones who can make
their own choices and decisions. Israel’s proposals in these regards
are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm.
Costa Rica joined those supporting the Mexican proposed
title. It endorses the statements of Thailand regarding independent
living as a lifestyle and not referring to the “Independent Living”
movement. Costa Rica endorses the EU proposed 15(2) as a means of ensuring
that the principles in 15(1) become a reality. Korea’s proposed 15 bis
addressing women with disabilities should be carefully considered, as
there is a danger that in disaggregating the groups of PWD we may weaken
the protections that exist in other bodies of international law.
The Netherlands (EU) stated that it had no new proposals
to add to those it made at AHC3, and noted that its proposed 15(2) would
replace language currently in 15(1)(c). It will study the proposals
of New Zealand and others with interest. The EU’s proposals for Article
15 are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm.
Canada expressed its hope that the delegations of New
Zealand and the EU might work to synthesize their proposals for 15,
as they seem compatible. Canada has concerns about the use of “life
assistance” in its proposed 15(2) to replace 15(1)(c), as this may suggest
a medical context, and is distinct from “live assistance.” 15(1)(c)
could be shortened and made less programmatic through use of “disability
supports,” which is a more flexible phrase and can be defined further
in the appropriate section. The wording of 15(1)(d) should be rearranged
to read “community services for the general population are available
to p}sons with disabilities on an equal basis with others and are responsive
to their needs.” Canada reiterates its proposals from AHC3 that 15(1)(b)
be deleted, and a new paragraph 15(1)(f) be added.
China noted that, owing to limitations in economic
development, many countries would not be able to fully realize their
commitments in Article 15, and so the article should be amended accordingly.
China supports the EU proposal, as it addresses many of China’s concerns
regarding 15. China supports the Indian proposals for 15(1)(a). It does
not oppose the proposals of several delegations to delete 15(1)(b).
It supports the Moroccan proposal for a new 15(1)(f), which would guarantee
inclusion in the community for PWD in a more comprehensive way.
Jamaica opposed the view that 15(1)(b) is redundant
in light of 15(1)(a). History shows that PWD are often forced to live
in institutional or other settings not of their choosing, and 15(1)(b)
emphasizes that this must not occur.
Kenya expressed a preference for usage of broader terminology
as opposed to independent living movement terms of art, which may apply
only to certain places or regions. It proposes a revised 15(1)(c), with
“independently” after “living” to encompass those who may be living
with their families and ensure that they can made decisions independently.
South Africa supported Kenya’s remarks distinguishing
independent living concepts from the independent living movement. In
15(1)(a) it supports the India and New Zealand proposals allowing for
promotion of choice. It supports the inclusion of 15(1)(b) bis, as well
as the EU’s proposed 15(2), though “life assistance” should be clarified.
South Africa also supports Morocco and Canada’s proposals for 15(1)(f).
United States echoed the position of other delegations that the concept
of “self-determination” be included in the treaty, but using a different
term to avoid confusion in international jurisprudence. An alternative
term for the concept could be “individual autonomy.”
The Chair opened the floor to NGOs.
The Disability Caucus noted that the right to live
within the community touches upon the basic right to a home, and denial
of this right is also a denial of the right to equality. The right has
two sides: prohibition of forced institutionalization, and ensuring
the necessary conditions to make living in the community a real choice
for PWD. The prohibition against forced institutionalization should
be stronger in 15(1)(b), stating “compulsory institutionalization is
prohibited.” In 15(1)(a) it should explicitly state that PWD have the
right to choose where and with whom they live. 15(1)(c) should also
state that PWD have the freedom to choose whether to accept support,
and if so how such support will be provided and by whom. Regarding people
with communication disabilities, the Caucus supports Chile’s proposal
ensuring that necessary augmentative communications devices are provided.
In 15(1)(e) it is not enough that PWD be informed about support services,
and the text should state that PWD “be provided with information about
the community services and their right to access all such services.”
The Caucus supports New Zealand on the need to ensure family living
for children with disabilities. For PWD denied government funded supports
and services, there must be access to fair appeals processes.
Bizchut – Israeli Human Right Center for People with Disabilities
expressed concern that in many societies institutionalization is the
default choice for PWD, even where institutionalization is not made
compulsory. Life in an institution, even if not under duress, contradicts
basic principles of equality and dignity by denying life in normative
living frameworks in the community, and constitutes one of the most
severe human rights violations. The chapeau of Article 15 should be
amended to read, “States Parties recognize the right of all persons
with disabilities to live within the community in a living setting which
reflects the general norm in a given society. In accordance with this
principle, States Parties shall take effective and appropriate measures
to enable PWD to live independently and be fully included in the community.”
Inclusion International strongly supported inclusion
of an article on living in the community, as a means of ensuring enjoyment
of this right by PWD. People who have not committed crimes should not
be locked away, and families should not be encouraged to give up their
children with disabilities. Segregation of PWD in institutions encourages
society to view PWD as different and sub-human, and provides opportunities
for denial of medical care and many other forms of abuse. Institutionalization
is often regimental and counter-productive to teaching people the skills
they need to live in the community. The AHC should look to positive
examples of programmes of de-institutionalization, such as that practiced
in New Zealand, for guidance on how to make community living a reality.
PWD must be part of the design and implementation of efforts to move
PWD out of institutions and into community living settings.
Disabled Peoples’ International supported the inclusion
of Article 15, which gives explicit expression to the principle of autonomy
and responds to the situation of many PWD around the world who are isolated
and segregated from their societies and could be living in their communities.
DPI supports the proposal for inclusion of a specific reference to support
services to facilitate independent living for PWD. The concepts of independent
living and community inclusion are not contradictory and have relevance
in all cultures. Whether a PWD lives with their family, on their own,
or in another living arrangement the essential component is that their
right to freely choose be respected and honored.
World Network of Users and Survivors of Psychiatry
highlighted the contrast between discussions of Article 15 that largely
centered on issues of autonomy, self-determination and choice, and discussions
of Articles 10 and 11 where many delegations wish to perpetuate forced
institutionalization in various contexts. Institutionalization is degrading
and dehumanizing, and unless forced institutionalization is addressed
in Article 15 there will be two classes of PWD created: those who will
be covered by the autonomy provisions of 15, and those who will be subject
to forced institutionalization under Articles 10 and 11. Community living
should not be just an experiment, but should be understood as a right.
Societies need to commit to providing support to everyone in the community,
and fundamentally changing how PWD are included rather than segregated.
League for Assistance for Disabled People introduced
itself as a regional organization based in Moscow. It supports the provision
of economic support to promote the physical, spiritual and social well-being
of PWD. Article 15 will lead to multiple programs that will need monetary
support, and corporate social responsibility must play a role in this
effort. Article 4 on general obligations should include a provision
the indicates the importance of government participation in social issues
and appreciation of the importance of corporate social responsibility.
Delegates should keep in mind the problem of population growth, and
should consider expanding the convention to address the needs of the
elderly. Addressing the collection and use of data and statistics is
also important. The League has produced draft convention text that has
been delivered to the Secretariat.
People with Disability Australia Inc. / Australian Association
of Legal Centers / Australian Federation of Disability Organizations
issued a joint intervention in support of the WG formulation. The ability
to live independently in the community with support services is fundamental
to the realization of many human rights. Continued institutionalization
of PWD remains “one of the greatest abuses of the human race.” The convention
must place unequivocal obligation on state and non-state actors to cease
institutionalizing PWD in disability-specific settings, as well as age-care
facilities and other institutional settings. In this respect it is important
for (b) to be strengthened to require states to eliminate institutional
care, rather than merely not oblige PWD to live in institutions. If
institutional care is the only form of residential housing available
then PWD will have no choice but to live there. This article should
require States to develop and implement plans to relocate PWD who are
currently institutionalized into the community, along with the supports
they require for successful community living. It is also important that
(c) be particularized to the circumstances of families with children
with disabilities. Children must be enabled, wherever possible, to grow
up in the context of family, preferably their birth family, but if this
is not possible then a substitute family, with provision of any support
services necessary for this to occur.