Back to: Daily Summaries
Ad Hoc Committee Main

Daily summary of discussions related to Article 15

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
A service made possible by Landmine Survivors Network * [Disclaimer]

Volume 5, #5
August 27, 2004

AFTERNOON SESSION

ARTICLE 15: LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY

Korea noted that Article 15 attempts to take into account various cultures and models of disability, and as a result the title sounds awkward. Korea proposes instead “Independent living and community inclusion,” with independent living referring to a principle rather than a model of disability. In accordance with this title the end of the chapeau should be amended to read “enjoy independent living and full inclusion in the community, including by ensuring that: “

New Zealand noted that the WG draft presents a positive alternative to the policy of institutionalization that has historically led to many human rights abuses against PWD. Many proposed amendments seem to reflect a lack of understanding of the article’s purpose, which is to ensure that PWD have choices equal to others, to live where and as they wish in a community setting. This right is based on Article 12 of ICCPR. New Zealand proposes a revised article, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm. The revision is intended to reflect the connection between the right and steps States must take to ensure exercise of the right by PWD. The draft incorporates aspects of the EU proposals addressing avoidance of institutionalization and retaining liberty. It also includes provisions from other articles, including Article 23(1)(d) addressing housing programmes, 20(a) regarding mobility aids and assistance, and a provision from Article 9 related to equal access to opportunities for economic development and financial independence. There is also an emphasis on the need to avoid an institutional approach to support provision.

Mexico noted that the article addresses two issues: independent life for PWD, and participation and inclusion in the community. The article should require States to take measures for PWD to decide upon a form of independent life, be able to choose their place and type of residence, and a way to become integrated into the community and their families. The article must emphasize the importance of choice and PWD having the freedom to choose.

Eritrea stressed the importance of ensuring the equal opportunity of PWD to choose how, where, and with whom they live. It supports the WG chapeau, and 15(1)(a) as amended by India to reference respect for cultural practices. It also supports Morocco’s proposed new paragraph addressing the need to provide support to families taking care of PWD, to ensure inclusion of PWD in society.

Thailand stressed the need to use “self-determination” in place of “autonomy.” It is very important for full inclusion to be balanced with self-determination. Although some have expressed concern that “self-determination” has a different connotation in other instruments, it is well defined and interpreted in the disability context and should not lead to confusion of used here. References to independent living should be understood as a lifestyle, rather than a movement.

Japan reiterated its proposal from AHC3 that the sub-paragraphs of Article 15 be re-ordered and grouped according to type of right. Japan believes that 15(1)(a), (b) and (e) reflect civil and political rights, and (c) and (d) reflect economic, social and cultural rights that are subject to progressive realization.

Chile supported Mexico’s proposed title, which captures the substance of the article as well as the preamble and principles of the convention. 15(1)(a) addresses a more general principle which may be described as the opportunity to plan one’s own lifestyle. This sub-paragraph could more simply state that PWD have the right to decide their own lifestyle, and then elaborate ways to do this, eg through choosing place of residence. Chile proposes a reference to access to information in 15(1)(a) to read, “Persons with disabilities shall have access to information on support services that are available.” Chile supports the Philippines proposal for 15(1)(d), but would place in a separate sub-paragraph and amend to read, “Persons with disabilities may be members and active participants in community organizations. There will be policies and ways and means to assist persons with disabilities to meet the requirements for membership and to be able to participate.” Chile supports the EU’s proposed paragraph 15(2).

Bahrain proposed a new chapeau to read “States Parties will acknowledge the rights of PWD to live independently and to social integration. They are duty bound to take effective and appropriate measures to enable PWD to achieve that.” There is also a need in Article 15 to address access to services, and the need to attend to families and personnel involved in community rehabilitation and training.

Lebanon noted the importance of this article and welcomed language detailing means by which PWD may choose how, where and with whom they live. It supports New Zealand’s proposal for 15(1)(a). Provision of live assistance where needed is of great importance and in this regard Lebanon supports Canada’s proposed new paragraph 15(1)(f).

Mali questioned whether anyone living in a community can be truly independent, given the necessary interdependence between members of the community. As the emphasis of Article 15 is on autonomy and lifestyle, the title should be “Autonomy and integration in the community.”

Israel noted that many programmes and services for PWD are based upon functional dependency, and the concept of “independence” in this article may be interpreted by many professionals in a manner contradictory to the spirit of the convention and the idea of living in the community. The title should refer generally to the right of living in the community as a basic unconditional principle, and the article emphasize the principle that the right to live in the community and to take part in all its activities belongs to every person, along with the right to equality, regardless of the level of physical or psycho-social independence. An inherent part of the right to live in the community is freedom of choice, including freedom to define what “community” means. There are various ways of living and PWD are the only ones who can make their own choices and decisions. Israel’s proposals in these regards are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm.

Costa Rica joined those supporting the Mexican proposed title. It endorses the statements of Thailand regarding independent living as a lifestyle and not referring to the “Independent Living” movement. Costa Rica endorses the EU proposed 15(2) as a means of ensuring that the principles in 15(1) become a reality. Korea’s proposed 15 bis addressing women with disabilities should be carefully considered, as there is a danger that in disaggregating the groups of PWD we may weaken the protections that exist in other bodies of international law.

The Netherlands (EU) stated that it had no new proposals to add to those it made at AHC3, and noted that its proposed 15(2) would replace language currently in 15(1)(c). It will study the proposals of New Zealand and others with interest. The EU’s proposals for Article 15 are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da15.htm.

Canada expressed its hope that the delegations of New Zealand and the EU might work to synthesize their proposals for 15, as they seem compatible. Canada has concerns about the use of “life assistance” in its proposed 15(2) to replace 15(1)(c), as this may suggest a medical context, and is distinct from “live assistance.” 15(1)(c) could be shortened and made less programmatic through use of “disability supports,” which is a more flexible phrase and can be defined further in the appropriate section. The wording of 15(1)(d) should be rearranged to read “community services for the general population are available to p}sons with disabilities on an equal basis with others and are responsive to their needs.” Canada reiterates its proposals from AHC3 that 15(1)(b) be deleted, and a new paragraph 15(1)(f) be added.

China noted that, owing to limitations in economic development, many countries would not be able to fully realize their commitments in Article 15, and so the article should be amended accordingly. China supports the EU proposal, as it addresses many of China’s concerns regarding 15. China supports the Indian proposals for 15(1)(a). It does not oppose the proposals of several delegations to delete 15(1)(b). It supports the Moroccan proposal for a new 15(1)(f), which would guarantee inclusion in the community for PWD in a more comprehensive way.

Jamaica opposed the view that 15(1)(b) is redundant in light of 15(1)(a). History shows that PWD are often forced to live in institutional or other settings not of their choosing, and 15(1)(b) emphasizes that this must not occur.

Kenya expressed a preference for usage of broader terminology as opposed to independent living movement terms of art, which may apply only to certain places or regions. It proposes a revised 15(1)(c), with “independently” after “living” to encompass those who may be living with their families and ensure that they can made decisions independently.

South Africa supported Kenya’s remarks distinguishing independent living concepts from the independent living movement. In 15(1)(a) it supports the India and New Zealand proposals allowing for promotion of choice. It supports the inclusion of 15(1)(b) bis, as well as the EU’s proposed 15(2), though “life assistance” should be clarified. South Africa also supports Morocco and Canada’s proposals for 15(1)(f). United States echoed the position of other delegations that the concept of “self-determination” be included in the treaty, but using a different term to avoid confusion in international jurisprudence. An alternative term for the concept could be “individual autonomy.”

The Chair opened the floor to NGOs.

The Disability Caucus noted that the right to live within the community touches upon the basic right to a home, and denial of this right is also a denial of the right to equality. The right has two sides: prohibition of forced institutionalization, and ensuring the necessary conditions to make living in the community a real choice for PWD. The prohibition against forced institutionalization should be stronger in 15(1)(b), stating “compulsory institutionalization is prohibited.” In 15(1)(a) it should explicitly state that PWD have the right to choose where and with whom they live. 15(1)(c) should also state that PWD have the freedom to choose whether to accept support, and if so how such support will be provided and by whom. Regarding people with communication disabilities, the Caucus supports Chile’s proposal ensuring that necessary augmentative communications devices are provided. In 15(1)(e) it is not enough that PWD be informed about support services, and the text should state that PWD “be provided with information about the community services and their right to access all such services.” The Caucus supports New Zealand on the need to ensure family living for children with disabilities. For PWD denied government funded supports and services, there must be access to fair appeals processes.

Bizchut – Israeli Human Right Center for People with Disabilities expressed concern that in many societies institutionalization is the default choice for PWD, even where institutionalization is not made compulsory. Life in an institution, even if not under duress, contradicts basic principles of equality and dignity by denying life in normative living frameworks in the community, and constitutes one of the most severe human rights violations. The chapeau of Article 15 should be amended to read, “States Parties recognize the right of all persons with disabilities to live within the community in a living setting which reflects the general norm in a given society. In accordance with this principle, States Parties shall take effective and appropriate measures to enable PWD to live independently and be fully included in the community.”

Inclusion International strongly supported inclusion of an article on living in the community, as a means of ensuring enjoyment of this right by PWD. People who have not committed crimes should not be locked away, and families should not be encouraged to give up their children with disabilities. Segregation of PWD in institutions encourages society to view PWD as different and sub-human, and provides opportunities for denial of medical care and many other forms of abuse. Institutionalization is often regimental and counter-productive to teaching people the skills they need to live in the community. The AHC should look to positive examples of programmes of de-institutionalization, such as that practiced in New Zealand, for guidance on how to make community living a reality. PWD must be part of the design and implementation of efforts to move PWD out of institutions and into community living settings.

Disabled Peoples’ International supported the inclusion of Article 15, which gives explicit expression to the principle of autonomy and responds to the situation of many PWD around the world who are isolated and segregated from their societies and could be living in their communities. DPI supports the proposal for inclusion of a specific reference to support services to facilitate independent living for PWD. The concepts of independent living and community inclusion are not contradictory and have relevance in all cultures. Whether a PWD lives with their family, on their own, or in another living arrangement the essential component is that their right to freely choose be respected and honored.

World Network of Users and Survivors of Psychiatry highlighted the contrast between discussions of Article 15 that largely centered on issues of autonomy, self-determination and choice, and discussions of Articles 10 and 11 where many delegations wish to perpetuate forced institutionalization in various contexts. Institutionalization is degrading and dehumanizing, and unless forced institutionalization is addressed in Article 15 there will be two classes of PWD created: those who will be covered by the autonomy provisions of 15, and those who will be subject to forced institutionalization under Articles 10 and 11. Community living should not be just an experiment, but should be understood as a right. Societies need to commit to providing support to everyone in the community, and fundamentally changing how PWD are included rather than segregated.

League for Assistance for Disabled People introduced itself as a regional organization based in Moscow. It supports the provision of economic support to promote the physical, spiritual and social well-being of PWD. Article 15 will lead to multiple programs that will need monetary support, and corporate social responsibility must play a role in this effort. Article 4 on general obligations should include a provision the indicates the importance of government participation in social issues and appreciation of the importance of corporate social responsibility. Delegates should keep in mind the problem of population growth, and should consider expanding the convention to address the needs of the elderly. Addressing the collection and use of data and statistics is also important. The League has produced draft convention text that has been delivered to the Secretariat.

People with Disability Australia Inc. / Australian Association of Legal Centers / Australian Federation of Disability Organizations issued a joint intervention in support of the WG formulation. The ability to live independently in the community with support services is fundamental to the realization of many human rights. Continued institutionalization of PWD remains “one of the greatest abuses of the human race.” The convention must place unequivocal obligation on state and non-state actors to cease institutionalizing PWD in disability-specific settings, as well as age-care facilities and other institutional settings. In this respect it is important for (b) to be strengthened to require states to eliminate institutional care, rather than merely not oblige PWD to live in institutions. If institutional care is the only form of residential housing available then PWD will have no choice but to live there. This article should require States to develop and implement plans to relocate PWD who are currently institutionalized into the community, along with the supports they require for successful community living. It is also important that (c) be particularized to the circumstances of families with children with disabilities. Children must be enabled, wherever possible, to grow up in the context of family, preferably their birth family, but if this is not possible then a substitute family, with provision of any support services necessary for this to occur.