Back to: Fifth Session of the Ad Hoc Committee
Summaries of the Fifth Session
Daily summary of discussion at the fifth session
28 January 2005
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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summaries
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Volume 6, #5
January 28, 2005
ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT (cont)
The Coordinator opened the discussion on Article 11.
He asked colleagues to provide new, substantial and reasonably linked
pieces of proposed text to the UN Secretariat and facilitator for this
Article, so they can be made available to all on the website. Some delegations
have expressed concern about the method and pace of work, because the
complex legal issues of this Article must be discussed more thoroughly.
However, it was reiterated that this is not a final text and there will
be opportunity for everyone to come back and review the draft. Nobody
will be precluded from returning to issues that were agreed upon earlier
and reexamining the substance or wording of the draft text. In order
to simplify the drafting procedure, a drafting committee might be designated
for this purpose. All text is capable of drafting improvement. The Coordinator
also emphasized the importance of being in regular contact with representatives
from disability organizations to maintain a dialogue and exchange of
experience and knowledge. Although States implement this Convention,
it is very important to maximize the opportunity to draw on the experience
of PWD and disability organizations’ representatives.
Norway stated it engaged in discussions with the Office
of the High Commissioner for Human Rights (OHCHR) and other delegations
yesterday. With regard to 11.2, Norway supported the EU proposal to
move its second part starting with the words “and shall protect…” to
The Republic of Korea indicated its flexibility on
the placement of 11.2, as the issue to situate it elsewhere has been
raised by many states, though it believed that torture and institutionalization
are sometimes correlated. Furthermore, it proposed to add “prior” after
“free and informed consent”, so that it reads “free, informed and prior
Chile supported the comment made by Korea and preferred
not to move11.2. Medical or scientific experimentation, institutionalization
and forced medical interventions are forms of torture and there are
flagrant examples of this throughout history. It is important to expressly
prohibit these actions in the article. Upon enquiry from the Coordinator,
Chile confirmed that it prefers to retain the references to medical
and scientific experimentation, or forced institutionalization or interventions
in their present form.
Russian Federation believed that the mention of medical
and scientific experimentation is appropriate in this Article, as the
concept is justified in the International Covenant on Civil and Political
Rights (ICCPR). Adding “clearly expressed” to the wording regarding
free and informed consent would be appropriate. With regard to the second
part of 11.2, the understanding of torture is clear as defined in the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT). It is not necessary to develop any kind of new
element with regards to PWD, which would introduce some uncertainty
and lack of clarity. A brief and concise article of two paragraphs prohibiting
torture and forced medical and scientific experimentation is preferable.
In regard to institutionalization, PWD should be viewed as valuable
members of society and thus shall not be segregated. In accordance with
the underlining principles of law and order, however, there is a need
for balancing interests. PWD should not present any kind of danger to
themselves, others, or society. Therefore the deletion of the second
part of 11.2 as proposed by the EU and China would be appropriate.
The Coordinator noted that the question relating to
the second part of 11.2 about forced interventions and forced institutionalization
links back with Articles 9 and 10. Article 10 is about not depriving
PWD of liberty or placing them in institutions as a result of their
disability, and this concept should be kept in mind. If someone presents
a danger to someone else, for example engages in a threatening behavior,
then societies take actions against such people regardless of whether
a person has a disability or not. However, it is important that the
action not be taken contingent on a disability, and that is the balancing
of interests mentioned by the Russian Federation. This article requires
careful balancing and conceptualization as we are involved in a forward-thinking
and “revolutionary” convention.
New Zealand revised its previous position on Article
11 and supported the WG text on Articles 11 and 12. The part of 11.2
on the right to informed consent and other relevant aspects should become
United Arab Emirates expressed concerns about the
lack of consistency between the content of the title of Article 11 and
its second paragraph. The notion of forced intervention should be retained
in this paragraph and the title should reference medical experimentation.
A wise reformulation of this article is necessary to ensure that institutionalization
and forced medical interventions are in the interest of the PWD and/or
The Coordinator noted that at this stage the titles
are purely utilized to elucidate the topics of the articles. The practice
in most human rights conventions is not to have titles, and it may well
be decided at the end not to have titles in this convention.
Thailand supported the original structure and substance
of the WG text, which is clear that forced intervention and institutionalization
should not been allowed.
The Coordinator pointed out that 12.2 also prohibits,
and protects PWD from, “forced interventions or forced institutionalization
aimed at correcting, improving or alleviating any actual or perceived
impairment.” This Article does not preclude situations when PWD might
be a threat to others and thus justly would lose their liberty.
Costa Rica agreed with retaining 11.1 as it stands
in the WG text. However, with regard to 11.2, the concept of institutionalization
is an issue that bears a certain stigmatization for PWD, and it should
therefore be moved to Article10 because of its inherent legal nature.
South Africa addressed structural issues and recommended
merging Articles 11 and 12, as they overlap. The inclusion of elements
in Article 11 is very important, because it addresses matters of security
of PWD. The inclusion of forced institutionalization is also a very
essential element to the convention and therefore should be maintained
as a part of the article referring to freedom from torture and punishment.
Yemen supported the position of the Russian Federation
and UAE points. The title is not logical as it refers only to a part
of the article. Forced intervention and institutionalization need to
be viewed very cautiously, because sometimes what is called a forced
institutionalization, can in fact be a form of protection of PWD. The
person’s desire may not always be expressed. It is appropriate to merge
Articles 11 and 12, because forced institutionalization and torture
are both forms of violence.
Trinidad and Tobago supported Costa Rica’s proposal
to move 11.2 to Article 10 in order to have one single article on all
issues concerning liberty and deprivation of liberty. There could also
be a cross reference to Article 10.
Australia supported reworking this group of clauses
to avoid any duplication. It is important to assure that PWD are not
forced into various medical, other interventions, or institutional environments.
There is an unintended consequence of 11.2 as it concentrates on the
prohibition of forced institutionalization which is aimed at correcting
impairment. It’s highly risky, because there are many instances of forced
institutionalization that are for other purposes and are not aimed at
correcting anything at all. It would be adequate to argue against forced
interventions and institutionalization of any kind, in the later drafting.
However, there must be some circumstances, in which this Convention
can allow interventions if they are done for the right purposes and
in accordance with appropriate legal procedures and safeguards. A simple
blanket ban on involuntary interventions or care of any kind, without
the consideration that this may be necessary in some occasions with
appropriate legal procedures and safeguards, is not acceptable.
Indonesia supported comments and observations made
concerning forced interventions. There are times when people with mental
disabilities present a danger to themselves and to society. A balance
needs to be drawn between the interests of all persons concerned.
The Coordinator suggested breaking down 11.2 to its
components as a result of comments on structural issues. He addressed
the underlying philosophy of the draft convention. There will be circumstances
where individuals represent a danger to others, and are usually imprisoned.
There is no argument that it should not be possible to deprive the liberty
of someone who threatened or is a threat to others. Imprisonment should
not occur based solely on the existence of disability. There shall not
be different standards for PWD in this respect. The reality and history
shows that PWD have been deprived of their liberty not because they
necessarily represent a threat to others, but because they have a disability.
As the Russian Federation stated, this is a matter of balancing interests.
A balance is very hard to achieve because states and governments have
an obligation to their citizens as well as to PWD. Interests of PWD
shall not be protected in a paternalistic way, but PWD should be allowed
to operate on an equal basis with all others.
Serbia and Montenegro supported Costa Rica, Indonesia
and other states that issues of forced institutionalization would be
better placed in Article 10 because it pertains to liberty and security.
Article 11 deals with freedom from torture and torture is absolutely
prohibited in international human rights treaties. If forced institutionalization
is viewed as a torture, this could have dangerous consequences. If PWD
represent a threat to others or themselves, they could not be institutionalized
as it would be viewed as a form of torture.
Thailand said there is no argument against forced
institutionalization and intervention as such, but if it is aimed at
correcting and improving any impairment, it should be viewed as a form
of torture. This issue has become too generalized in this discussion.
Mexico supported Costa Rica’s proposal concerning
11.2, which should be moved to Article 10. It reiterated its proposal
concerning 10.2 on specifying the types of deprivation of liberty. This
paragraph may refer exclusively to the criminal ambit, but it can also
include deprivation of liberty for civil, administrative or other reasons.
It also reiterated its suggestion to insert a new potential 11.3, as
it stands in the compilation (http://www.un.org/esa/socdev/enable/rights/ahc4mexico.htm)
The Coordinator asked Mexico whether the new proposal
of 11.3 relates only to situations where PWD are placed in facilities
for PWD, or more generally to all institutions, such as prisons. Mexico
stated it only refers to institutions for PWD.
Uganda supported the current formulation of Article
11. It is necessary to read 11.2 carefully, emphasizing that forced
interventions and institutionalization are prohibited only when they
are “aimed at” correcting any impairment. Therefore, the deletion of
the second part of 11.2 would undermine the intention of this particular
article, and it should be retained.
Bahrain stated that a reference to forced interventions
and institutionalization aimed at treatment or care of PWD, especially
within a time constraint for the person and the family, must be included
in the text. 11.2 should therefore be maintained.
The Coordinator acknowledged that a review of the
structure of the articles would be needed, but noted that the fundamental
issues would not be dealt with by shifting the same language somewhere
else. The language of the first part of 11.2 “In particular, (…) consent
of the person concerned” follows Article 7 of the ICCPR, which says:
“No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation.” The language
is slightly different given the history in different countries of PWD
being subjected to experimentation without their free and informed consent.
The Republic of Korea proposed to insert the word “prior.” The Coordinator
asked whether the first part of 11.2 amended by Korea receives general
Russian Federation reiterated its earlier proposal
to include the term “clearly expressed” in 11.2, which complements the
proposal of the Republic of Korea to add “prior”.
The Coordinator summed up that 11.2. would read “without
the “free, informed and clearly expressed prior consent.”
Thailand reiterated the need to include “other forms
of experimentation,” which go beyond medical and scientific experimentation,
as proposed in AHC4.
Jordan disagreed with the Korean and Russian Federation
suggestions. There may be cases when something harmful or dangerous
to the PWD is discovered during experimentation, and when a free and
prior consent cannot be expressed. The WG text is more general and more
valid. Free consent by definition is clearly expressed, so it is redundant
to add this expression. A question was raised whether medical experimentation
is scientific or not, and what it is meant by the “other form of experimentation.”
It recommended avoiding a shopping list and only saying “experimentation.”
New Zealand stated that free and informed consent
is a well understood concept used in many conventions, and any further
words added will confuse rather than clarify.
Colombia proposed placing 11.2 under Article 12 which
refers more to abuse in treatment.
The Coordinator repeated his preference not to discuss
the placement of 11.2 at this stage, since there were several suggestions
to move it to Article 10, 12 or 11(bis), or maintain it where it is.
First it is necessary to look at the substance.
Trinidad and Tobago supported proposal made by Thailand,
which broadens the article to sufficiently cover any form of experimentation
that may not be specifically referenced. Regarding free and informed
consent, this wording is clear and well understood to the international
community, as NZ stated. However, the Russian proposal introduces a
new element that would tailor this particular paragraph specifically
to PWD. This may happen for example in situations where the consent
of the PWD may be inferred and the person would not be in fact consenting.
It preferred not to include the word “prior” because as Jordan had indicated
the article could then be interpreted as applying to consent throughout
the medical and scientific procedures.
Nigeria supported the substance of Article 11. It
opposed including ”prior” because there could be a development in or
alteration of the experimentation and therefore the consent has the
potential to be misused. It is misleading to further qualify “free and
informed consent,” as the WG text already covers any prior and any further
development in the course of experimentation.
Australia supported the view that free and informed
consent is an easily understood phrase and there is a broad jurisprudence
around the concept. It referred to the ability to provide support to
PWD in order for decisions to be made or actions to be taken. There
is an overall approach of allowing support to be provided to enable
consent to be obtained, and this concept should also apply to other
articles including this one. There might be situations where it is most
desirable that a particular medical procedure should be undertaken,
even perhaps a clinical trial but where the person is unable to give
consent without considerable support. Therefore, the wording “free and
informed consent” should be maintained, and the existing jurisprudence
and interpretation of that term should be applied to other articles.
Luxemburg, on behalf of the European Union (EU) supported
NZ and Australia concerning the phrase “free and informed consent” as
well as the WG text.
Yemen supported Jordan noting that PWD have to be
continuously informed during the experimentation about their rights.
Nigeria asked for a clarification of the meaning of
“prior” consent. PWD may give consent without being aware of the harmful
consequences of the experimentation.
Uganda supported the “free, informed and clearly expressed“
wording, so that there is no doubt about the consent of a person concerned,
whose behavior may be misunderstood. It is preferable to omit the expression
of “prior“ because it works against the interest of PWD. Once prior
consent is given, it cannot be withdrawn.
The Coordinator asked for the Korean position on “prior,”
specifically whether it preferred to delete it or maintain it, since
there have been a number of questions raised about this expression.
Republic of Korea indicated its flexibility on using
“prior” and reiterated the intention of the suggestion, which was to
strengthen PWD ability to consent. This term has received increasing
attention in the area of biomedics.
New Zealand said a lot of time has been spent discussing
the issue of free and informed consent. This term has a long and rich
history and it should be considered with advice and assistance from
The OHCHR representative explained that “free consent”
is usually defined as consent obtained freely without threats or improper
inducements. “Informed consent” is obtained after appropriate disclosure
of adequate and understandable information in a form or language understood
by the person. The phrase “prior consent” has been increasingly used
but the general understanding is that “consent” includes prior consent
as well as the ongoing maintenance or non-withdrawal of that consent
at a later stage. The term “consent” may be also understood as including
the need for consent to be obtained prior to the beginning of any experimentation
The Coordinator asked for clarification of the term
The OHCHR representative explained that “clearly expressed”
is not normally used and should be understood as a component of the
need for consent. However, it may be useful to explicitly refer to it
in the context of an instrument trying to tailor the standards specifically
to the circumstances of disability.
Russian Federation indicated its flexible position
on the question of “prior consent” given the explanation from the OHCHR
representative. Following other international human rights instruments,
particularly the Universal Declaration of Human Rights, this Convention
should take into account the objective particularities that are linked
to PWD. As Trinidad and Tobago and Uganda have pointed out there are
cases where PWD may face external pressures that prevent them from expressing
their own free will.
The Coordinator asked the OHCHR to elaborate on relevant
Human Rights Committee (HRC) jurisprudence.
The OHCHR explained that when the HRC adopted the
General Comment 20/1992, which replaced its earlier Comment on Article
7 of ICCPR, it paid particular attention to this problem. Special protection
in regard to scientific or medical experimentation is necessary in the
case of persons not capable of giving “valid consent.” The HRC questioned
the possibility of consent being valid under certain circumstances and
concluded that such persons should not be subjected to any scientific
or medical experimentation that may be detrimental to their health.
The HRC’s position here is based on information received over a number
of years in connection with human rights standards.
The Coordinator concluded the discussion on 11.2.
There has been a clear support for the first part of 11.2. There have
been additional proposals to the concept of “free and informed consent,”
such as “prior” by Republic of Korea or “clearly expressed” by Russian
Federation and both countries indicated flexibility. It has been repeatedly
noted that the concept of clear and informed consent is used elsewhere.
On the other hand, this convention is being tailored specifically to
PWD, and the reality is that PWD have been subjected to medical and
scientific experimentation without their consent. Therefore qualifications
and additional language may give additional assurance to PWD. Thailand
also raised the point to insert “or other” in addition to “medical and
The Coordinator noted there has been less support
for the second part of 11.2, which raises problematic issues. It prohibits
“forced interventions and institutionalization aimed at correcting,
improving or alleviating any actual or perceived impairment.” The clause
does not prohibit institutionalization where an individual with or without
a disability, is a threat to others. He asked whether there should be
a prohibition in this Convention on forced intervention or institutionalization
without consent aimed at correcting, improving or alleviating any actual
or perceived impairment.
Thailand called upon delegates to understand that
this paragraph does not refer to all forms of forced interventions or
any form of forced institutionalization. It refers to action specifically
aimed at correcting, improving or alleviating an impairment.
United Arab Emirates noted that scientific evidence
could be used to prove that the experimentation or intervention would
not harm PWD or their families. The Coordinator clarified
that forced interventions and institutionalization “aimed at correcting
….” would be permitted if it is proved scientifically and if it does
not harm the PWD or the family.
Australia believed that the question of forced institutionalization
is one of deprivation of liberty, which is adequately covered elsewhere.
In this article, the need is to protect PWD from medical interventions.
The Coordinator again enquired as to whether the current
wording is generally acceptable adding that the question of placement
will be discussed subsequently.
Australia stated it is difficult to see that forced
institutionalization in itself could be aimed at correcting, improving
or alleviating impairments. There are certainly other interventions
that have a bad intent.
The Coordinator received assurances from Australia
that it accepts the provision on forced interventions “aimed at ….”,
but not that of forced institutionalization.
Chile agreed that forced institutionalization would
be unacceptable unless the prior consent of the PWD has been given.
There also might be a representative designated in situations when the
PWD is unable to express his or her consent. There is also a proposal
from India, which would further clarify the procedure of expressing
consent of PWD under these circumstances and determine whether it is
in the best interest of the PWD.
Costa Rica supported the Australian proposal endorsed
by Chile. It highlighted that forced institutionalization is an issue
intimately linked to the concept of liberty and to a legal point, and
therefore it should be treated distinctly from the content of Article
11. It must be clear that forced institutionalization is not a legal
option within the framework of this Convention.
The Coordinator asked Costa Rica
for clarification of the statement that forced institutionalization
is not a legal option.
Costa Rica replied that forced institutionalization
should be legally prohibited within the context of this convention.
The other issues in Articles 11 and 12 are issues that may rise not
only in an institutional context, but in others as well.
Uganda explained that the need for correcting, improving
or alleviating a impairment must originate from the person’s consent.
PWD should be protected against any forced interventions or institutionalization
aimed at correcting any impairment.
The Coordinator stated there have been a number of
countries that have supported the proposition that there should not
be forced interventions aimed at correcting, improving or alleviating
an impairment. Leaving the issue of institutionalization to one side
and referring only to interventions, the Coordinator
asked if anyone is in opposition to this proposition.
New Zealand supported the Costa Rican position that
forced institutionalization should be prohibited under this convention.
Russian Federation agreed that the issues addressed
in the second part of 11.2 shall be placed elsewhere in the Convention,
for example in Article 10. These issues are closely related to the protection
of liberty and rights of PWD. It supported Thailand’s interventions
and institutionalization are not solely aimed at isolating that person
in many cases, but rather are aimed at correcting, improving or alleviating
an impairment. This article deals with a different concept, in which
institutionalization and intervention are not the same as torture. There
must be a clear distinction drawn between the violence and viable interventions
Yemen stated that the expression “forced institutionalization”
raises concern, perhaps because it denotes oppression or torture. An
illustration of a non-disabled person who falls ill was used. In this
case, it may be necessary to keep the person under direct and continuous
supervision because the illness can harm another person or he or she
may harm themselves. This is usually not considered to be a form of
institutionalization. This rule can also apply to PWD when an intervention
is in their interests and is based on the desire to keep him or her
away from danger to themselves or others. It is necessary to replace
the term “institutionalization” by a different expression. This article
is not about violence intended to oppress, cause pain, or torture. Such
violence must be dealt with in a different article or different section
of this article. However, elimination of this provision may be more
harmful to PWD.
Thailand explained that the concept of torture may
be viewed differently by PWD. Intervention may not be acted violently
at all. “Forced” means against the will of the individual, regardless
of whether the person who conducted the intervention had good intentions
or not. Action taken against the will of the PWD can cause torture to
the PWD. Although torture may not be seen as a violent act, the consequence
which PWD have to bear is no less a violent act. Often a perceived act
of kindness can be a form of torture from the point of view of PWD.
Jordan emphasized that forced or unforced institutionalization
works against the “very thing of being human” and should only be permitted
as an exception to the general rule. There are only few PWD or sick
persons who truly need to be institutionalized.
The Coordinator concluded the discussion on 11.2.
There was a general consensus that PWD shall be protected from forced
intervention aimed at correcting and alleviating an impairment. With
respect to forced institutionalization however, it is hard to see how
it could, in and of itself, be aimed at correcting (…). The Coordinator
suggested moving on to Article 12 as there is a link between Articles
10, 11 and 12. After concluding the discussion on Article 12, the structure
and placement of 11.2 may be addressed, as many delegations have already
commented on it. Breaking down to small groups may help solve the issue
of placement and substance. There is also the Mexican proposal, which
relates generally to the concept of institutionalization and Article
10, which may be addressed after finishing discussion on Article 12.
Mexico clarified that its proposal was raised in AHC
3 and AHC 4 and presented as Article 11.3. Once the issues on placement
are solved, this proposal may be dealt with.
ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE
The Coordinator invited comments on placement and
structure of Article 12, which can clarify how to deal with issues raised
in this and Articles 10 and 11. These are:  whether the terms “violence”
or “abuse” should be elaborated further. There is a comprehensive list
of examples, but there were suggestions for additional examples. 
whether the scope of this article should be extended to include families
of PWD.  whether monitoring and judicial procedures should be included
here, noting that there will be a generic article on this later in this
Convention.  forced intervention and institutionalization, again
dealt with in 12.2.  whether there should be separate article on
free and informed choice in relation to treatment and other interventions.
 whether there should be a notion of educating PWD, their families
and caregivers so that they can recognize and report abuse of PWD. There
were also a number of specific textual proposals made with regard to
each individual paragraph.
Jordan stressed the importance of adding the term
“exploitation” to the title. The Article should be abbreviated to remove
redundancies: 12.1 should start with the last sentence; 12.2 is already
mentioned in Article 11; 12.3 and 12.5 could be merged. 12.6 could be
removed to the Article 25 on monitoring. 12.4. should remain. The Article
should articulate a general rule against violence in 2 to 3 paragraphs.
Chile supported the wording of the Article, but insisted
upon the inclusion of two concepts: abandonment, which is one of the
most entrenched and violent forms of abuse; and economic exploitation
which is a subtle but strong form of abuse.
Syrian Arab Republic noted the importance of considering
the question of violence as it occurs both outside and within the home,
including in the context of war and armed conflict.
The EU stated that when there is a forced intervention,
people who cannot express their consent should be entitled to a legal
representative or a system of safeguards to be protected against violence
and abuse. There should be a provision included which would require
States Parties to develop policies and legislation establishing a mechanism
to combat violence and abuse.
Canada proposed inserting a reference to the particular
vulnerability of women and girls with respect to violence and abuse.
This has been raised by some delegations in the past, however the appropriate
placement for this provision is not yet clear.
Yemen supported the Syrian position regarding the
right of PWD to be free from violence and abuse in wars or conflicts,
because they are especially vulnerable in these situations. It also
supported Canadian proposal to include a reference to women and girls.
With regard to the relationship between the family and PWD, it is necessary
to explain that PWD are not “shameful for the family” and are not stigmatized.
ARTICLE 9(bis): ACCESS TO JUSTICE
A legal expert from Chile introduced a new proposed Article 9(bis)
on Access to Justice, which a number of delegations had supported during
ongoing Facilitator discussions on Articles 10 and 11.
Chile in cooperation with Australia, Bosnia
and Herzegovina, Canada, Costa Rica, the Russian Federation, Mexico
and some NGOs recalled that this proposal was raised in AHC3,
discussed in AHC4, and a drafting group was set up in AHC5. There are
different legal and philosophical bases for this article. Legally, equality
means giving everyone what he or she deserves with respect to justice.
Different concepts of equality are identified, such as  equality
before the law, which is dealt with in Article 7, and  equal protection
of the law in the exercise of one’s rights, which refers to Article
9. It is this second concept that provides the legal, philosophical
basis for a specific rule on access justice. Under this rule PWD can
exercise the access to justice in different roles: as plaintiffs making
a claim against discrimination, as witnesses or defendants. Principles
grounded in political theory, of governance of a democratic society
and the rule of law, provide the second basis for a specific rule on
equal access to justice. The third basis lies in practice - the ability
of PWD to use courts or tribunals in the practical sense. A UN human
rights report on human development in 2000 has concluded that citizens
have experienced inefficiency in the legal system and therefore refrain
from accessing this system even when they need to do so. The scope of
the issue of access to justice was examined with these three bases in
mind. The group concluded that:  a separate rule, independent of
other concepts of equality such as equality before the law or legal
capacity should be established. There is a need for access to justice
to be made concrete and given due weight;  a broad and general statement,
adaptable to different legal systems and without specific lists or guidelines,
is preferable. This is because there are formal and substantive / informal
ways in which access to justice can be guaranteed, which vary across
different legal systems. Furthermore, the norms of an international
treaty should be analysed in a systematic way to coordinate with each
other. Thus language on access to justice should be consistent with
related issues of accessibility to physical space, the right to information,
human rights education and others. The new draft language (http://www.un.org/esa/socdev/enable/rights/ahc5chile.htm)
obligates states parties in an imperative and prescriptive way “to ensure
effective access to justice for PWD” that has to be “on an equal basis
with others.” “All legal proceedings” ensures the applicability of the
article in different legal systems have separate jurisdictions. The
intervention of the PWD is ensured by facilitating their role “as direct
and indirect participants”. Finally, including “investigative and other
preliminary stages” ensures PWD participation in, for example, pre-trial
police proceedings as well.
The Coordinator suggested this text be included in
draft Article 9 for further consideration as nothing has been agreed
to at this stage. Consideration of Article 12 resumed from the previous
ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE (cont)
Liechtenstein noted that the descriptive language
of this Article, which might in substance be true, is not appropriate
for international conventions. There is a substantial overlap with Article
11, and it is only a question of degree to move from torture to violence
and abuse. Likewise, violence can be classified as degrading or inhuman
treatment. It questioned why safeguards in Article 12 aimed at promoting
recovery and reintegration (12.5) and monitoring of facilities (12.4)
would only apply with respect to violence and abuse but not with respect
to torture, cruel and inhuman behaviour and punishment. A proposal by
the facilitator would help to shorten this article, and then delegations
can discuss it in depth. General references that apply to many specific
issues should be more appropriately placed in Article 4 on “General
obligations”, like natural disasters or armed conflict as they affect
a variety of articles, such as right to life, the right to help, the
right to information, the right to freedom from violence. If such crosscutting
issues were placed in the beginning of the Convention it would save
time discussing subsequent articles.
The Coordinator clarified that although Liechtenstein
made a point that there is a reasonably short transition from torture
to violence and abuse, there is a conceptual difference between them
in international human rights law. The representative of OHCHR was invited
The OHCHR explained that international human rights
law and the Convention against Torture (CAT) are seen to reflect what
is intrinsic to the definition of torture, which is the idea that “pain
or suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official
capacity.” This has been referred to as the doctrine that that torture
requires the intervention of an agent of the state. The Human Rights
Committee (HRC) when interpreting Article 7 of ICCPR on torture went
out of its way to indicate that the aim of the article was to provide
protection from such acts whether committed by an agent of a state or
a person acting in official or private capacity. The reason was that
there was no article in ICCPR, which is the equivalent of Article 12
that is now being discussed, prohibiting violence committed by private
individuals. However, there is still a distinction between violence
and abuse when committed by an official or an agent of the state and
by a private individual. The distinction is reflected in the terms the
treaties use to establish the level of obligations of states with regard
to prevention, punishment and compensation. In the 1960s, the article
on torture was interpreted as potentially providing such protection.
However the more recent trend has been to separate both issues and explicitly
address the need for human rights standards concerning both issues:
torture as committed by an agent of a state, and violence and abuse
committed by anyone, whether acting in official or private capacity.
The Coordinator repeated that having two Articles
dealing with torture (11) and violence and abuse (12) is based on international
human rights concepts.
Uganda proposed including abortion and sterilization
as these are cases of abuse that PWD are often forced to undergo.
Kenya supported Liechtenstein’s proposal and recommended
avoiding lists. Instead the Article should identify key elements in
encompassing language, eg: “violence, abuse and exploitation.”
New Zealand reiterated its proposals to:  move the
first part of 12.1 to the preamble and delete 12.3, which repeats 12.1;
 add additional descriptors of abuse, such as abduction, harassment,
economic abuse. Involuntary treatment should not be dealt with in this
Article, but in a separate article.
The EU asserted the need in this article to protect
PWD from abusive violence [remainder of intervention not recorded].
The Coordinator proposed going through the provisions
in the WG and Facilitator text to streamline Article 12. As noted by
the OHCHR Articles 11 and 12 deal with two different concepts and this
is reflected in the structure of the WG text. Article 11 deals with
actions by the state, including torture and cruel inhuman treatment
or punishment, medical and scientific experimentation, forced interventions
and institutionalization. Article 12 deals with actions by third parties
and requires states to take actions to ensure that PWD are not the subject
to violence and abuse from third parties.
The facilitator’s text for paragraph 1 reads: “1. States Parties shall
take all appropriate legislative, administrative, social and educational
and other measures to protect persons with disabilities (and their families)
both within and outside the home, from all forms of exploitation, violence
and abuse, including abandonment, violence, injury or mental or physical
abuse, abduction, harassment, neglect or negligent treatment, maltreatment
or exploitation, including economic and sexual exploitation and abuse.”
Canada proposed removing the reference to families
of PWD, as this convention is aimed at protecting PWD themselves against
violence and abuse, and inserting instead “to protect PWD, especially
women and girls…...”
The Coordinator noted that a reference to families
was considered in the WG text, and it was decided not to include it
as Article 12 is specifically aimed at PWD. There is a separate Article
14 relating to the respect for privacy, the home and the family. However,
it was also recognized that families of PWD are also quite vulnerable.
Costa Rica supported Canada and preferred not to include
families in 12.1. There is no doubt that families are important for
PWD however and there could be a reference in 12.2, in connection to
caregivers. The language should encompass the whole family and its children
and referring to “women and girls” would exclude boys. Therefore, a
reference to “woman and children” is preferable.
Yemen asserted the Convention must be coherent and
refer only to PWD, not all members of their families, as there are other
conventions protecting human rights of children and families. However,
in regard to women and particularly girls, they face a double problem
in certain countries, because they are discriminated against as girls
and for being disabled. Therefore, the Canadian proposal is strongly
The Coordinator noted that the Convention on the Elimination
of all Forms of Discrimination against Women (CEDAW) has no explicit
provision on protection from violence or abuse for women.
United Arab Emirates highlighted the need to include
another vulnerable category of people, the elderly.
Jamaica supported Costa Rica that the placement of
the reference to families in 12.1 may not be appropriate. It should
instead be made in the context of support, and not protection, of PWD.
Article 12.2 is aimed particularly at support. Special mention should
be made for women and girls with disability, as they are vulnerable
particularly to sexual exploitation. However this qualifier should not
be in 12.1, because 12.1 speaks generally to legislative and other measures
to protect PWD and it would then appear as if boys and men are less
important. Thus there should be a separate paragraph, which will address
and recognize the vulnerability of women and girls to certain forms
Kenya supported Jamaica’s language and recalled there
is already an article covering issues related to children in the WG
text. This article, whereas recognizing that women are in a great danger
of violence, should not proclaim that boys are in less danger.
The Coordinator cautioned that if women and girls
are specified in this context it may imply the need to specify them
elsewhere as well.
Australia echoed the need to leave out “and their
family” in 12.1. The various forms of abuse and mistreatment should
not be listed as this cannot be inclusive. Alternate wording could be
“protection from all forms of harm, including“ followed by, if desired,
the main issues of the list in 12.1.
The EU preferred deleting the term “and their families”,
as this is a convention on PWD, and also the term “economic” in order
not to minimize the importance of sexual exploitation.
Yemen asserted that the addition of “women and girls”
does not diminish the importance of men. Any implication of the exclusion
of men may be avoided by adding ”including women and girls”. It reiterated
that there are other conventions and also other articles within this
Convention that refer to families.
South Africa endorsed the inclusion of women and children,
as they are particularly vulnerable. Although there is a special article
on children in the WG text, it is critical to include reference to women
and children in this article noting their particular circumstances in
relation to sexual exploitation and violence of many forms. The reference
to families in 12.1 should be included, as it would widen the scope
of the Convention to include other family members who may not necessarily
have a disability. For brevity, the list of the various form of abuse
should be deleted and 12.1 should be amended to read: “States Parties
shall take all appropriate legislative, administrative (…) measures
to protect PWD from all forms of exploitation, violence and abuse.”
It looked forward to a particular article on women as proposed by the
Republic of Korea.
Serbia and Montenegro echoed proposals that reference
to “families” should be placed in 12.2. It supported the inclusion of
a reference to the special vulnerability of women and girls, and was
flexible on its placement within Article 12.
The Coordinator noted strong opposition to including
the reference to families in 12.1, and support for inclusion in 12.2.
There was a general sense of agreement that women and girls are particularly
vulnerable, and interested delegations should meet with the facilitator
to draft a separate paragraph addressing this issue. The Coordinator
recommended against referencing “including women and girls” as this
may give the impression that they are not included elsewhere. Options
with regard to the listing of types of abuse are:  to maintain the
existing form of listing;  not to include any listing;  to change
the wording to say “all forms of harm, including…” but to make clear
that this is not, as is the case in the current language, an exclusive
list, as proposed by Australia;  to have a broad generic statement
which would read “protect PWD from all forms of exploitation, violence
and abuse”, which covers the field, as proposed by South Africa. The
EU is opposed to citing “economic and sexual exploitation” together;
however, if there is no listing, this issue will not need to be addressed.
Russian Federation expressed concern that the reference
to the family in 12.1 would be a problem across countries and legal
systems since the term does not always have the same meaning. As for
the reference to women and children, this is clearly a vulnerable category
of PWD, but this is a de facto question and not a question of law. This
idea should be incorporated into the preamble instead. The RF agrees
on a more general list of mistreatment. The term “exploitation” is not
clear enough, because “sexual and economic exploitation” creates conceptual
problems. The term “economic exploitation” is vague and may lead to
New Zealand supported the Australian proposal not
to create an exclusive list, but highlighted the need for a list of
those issues of particular concern to PWD. Adding “economic exploitation”
is therefore important as many PWD are subjected to this form of abuse.
It supports the Russian proposal to include the first sentence of 12.1
of the WG text in the preamble and also to mention the most vulnerable
groups like women and children in the preamble. NZ supported South Africa’s
proposed text: “all forms of exploitation, violence and abuse, including…”,
which would enable an open list of examples.
Uganda expressed concerns that all PWD need protection
and preferred to keep the expression as it stands. It supports a separate
paragraph or separate article to cover women and girls. It supports
the NZ and South African proposals as they both end with “including”,
so that the list does not appear to be exhaustive.
Trinidad and Tobago agreed there is no need to specify
categories in 12.1 as this is a general paragraph. There is a need for
a separate paragraph dealing with the most vulnerable groups. The reference
to families is better placed in 12.2 in relation to the question of
support. With regard to the listing, it is very important to spell out
some of the major forms of abuse and violation, and the South African
and NZ language proposals are therefore supported.
Holy See supported proposals by Costa Rica and others
that suggested moving the reference to “and their families” to 12.2
rather than deleting it entirely from the article. Depending on one’s
disability, the family may be crucial to the life and protection of
PWD. The decision not to explicitly protect the family may directly
subject the PWD to that violence and abuse this Convention is seeking
to protect them from.
Thailand supported the South African language on “all
forms of exploitation, violence and abuse”, and was flexible on the
word “including…”. The reference to family should be moved elsewhere
as it may confuse the scope of this Convention. It is flexible on special
references to woman and girls; however, formulating a para specific
to such circumstances might be more helpful.
The Coordinator reminded colleagues of the question
raised regarding the use of term “sexual and economic exploitation”.
The Convention on the Rights of the Child, Article 34 uses the term
“sexual exploitation” and Article 32 refers to “economic exploitation”
and Article 36 refers to “all other forms of exploitation”.
Syrian Arab Republic supported the South African proposal
with regard to the listing of all forms of abuse. It is also important
to include the mention of economic exploitation, and it is preferred
to move the reference to family to 12.2. A new paragraph exclusively
on women and children was also supported.
Costa Rica supported the South African proposal and
was flexible on using “including” followed by a list. Lists often cause
problems, it noted, but if other delegations agree, then either the
SA or NZ proposals are acceptable.
Norway emphasized the need to have a strong and encompassing
wording. This can be done by keeping the formulation short and succinct,
as proposed in the SA wording “all forms of exploitation, violence and
abuse” which covers all other forms of violence. Norway had strongly
supported and proposed a reference to equality between men and women
in Article 2 on General Principles, as this is a crosscutting issue
in this Convention that should trickle down to each article. However
it acknowledges the particular vulnerability of women and girls, and
believes that a specific reference to them is of relevance in this Article.
Mexico expressed doubt in regard to the reference
to “abduction” and families. The Mexican legal system is different in
the context of criminal law dealing with abduction. If there is not
a reference to other family members, Mexico cannot agree to this Article.
Panama supported the Costa Rican and NZ proposals
to list examples of abuse.
The Coordinator noted overwhelming support to delete
the reference to families, and remove “women and children” into a separate
paragraph. He asked delegates to meet with the facilitator if they have
reservations about singling out some groups. There was a wide range
of proposals with regard to the listing in 12.1:  a specific listing;
 abbreviated wording;  a combination of the two;  incorporating
the listing as well as the language of the first sentence of the WG
text into the preamble. The Preamble has not yet been discussed. A compromise
approach would be to combine the SA proposal with the list. It would
read: “from all forms of exploitation, violence and abuse, including…”
It should be highlighted in a footnote that this list may be shifted
into the preamble. With regard to the list itself, Mexico raised a point
whether to include “abduction,” and the EU had difficulty using “economic
and sexual exploitation” together. The following language was proposed
by the Coordinator as a solution to the EU’s concerns: “including economic
exploitation, and sexual exploitation and abuse” thereby separating
both concepts and not diluting the issue of “sexual exploitation.”
The EU supported deleting “economic and”, but including
the idea of “sexual exploitation”.
The Coordinator questioned whether the concept of
“economic exploitation” is used elsewhere and whether separating these
two issues would retain the concept.
The EU opposed any reference to “economic exploitation.”
Jordan considered economic exploitation important
to retain, as there are cases where PWD are institutionalized and their
property is confiscated.
The Coordinator reiterated that the term “economic
exploitation” is found in Article 32 of the Convention on the Rights
of the Child, and asked Jordan and the EU to confer.
Trinidad and Tobago supported the inclusion of economic
exploitation and asked the EU for reasons for its opposition to the
The Coordinator explained that, initially, the EU
wanted to delete the reference to sexual exploitation, and therefore
it was proposed to separate these two issues. The EU then expressed
difficulty with the reference to economic exploitation.
The EU preferred not to include the idea of economic
exploitation in this article, but indicated flexibility to deal with
this issue in another article.
Yemen reiterated Jordan’s point that there are many
problems that lead to economic exploitation of PWD and prevent them
from exercising economic activities. Therefore it is important to stress
the economic exploitation, and also sexual exploitation. It called for
a definition of family within the Convention given the different definitions
of family elsewhere.
The Coordinator explained that “families and caregivers”
will be discussed in 12.2. The EU and others were asked to meet together
to discuss the issue of economic exploitation. Mexico was asked to amplify
on the point of “abduction” and whether it should be included in 12.1.
Mexico explained that the “abduction” has a different
meaning in the Mexican legal system. Historically, there is no reference
to abduction in terms of violent acts in the appeal system.
The Coordinator noted that caveats will be incorporated
into the Report. He invited comments on 12.2 of the Facilitator’s text:
“States Parties shall also take all appropriate measures to prevent
violence and abuse by ensuring, inter alia, appropriate forms of assistance
and support for persons with disabilities and their caregivers, including
through the provision of information and education on how to avoid,
recognize and report instances of (violence and abuse) above.” A number
of delegations have suggested that the reference to families should
be included in this paragraph, and the WG had also had much discussion
whether to refer to families or caregivers.
Trinidad and Tobago reiterated its proposal to refer
to caregivers. Caregivers is a broader category of people who support
PWD and it encompasses families.
Jordan expressed concerns that families are more important
than caregivers, as the latter imply a passive reference and do not
encompass families, and families are more of a natural institution.
United Arab Emirates stressed the importance of indicating
“support groups” with regard to education.
The Coordinator asked UAE whether the term “support
groups” should go beyond families and caregivers.
United Arab Emirates clarified the language should
read “PWD and their families, and support groups.”
Brazil preferred the term caregivers, because it is
Islamic Republic of Iran suggested using both families
and caregivers, because families play an important role in our societies.
Thailand indicated flexibility with respect to families
and caregivers, but these two terms may not necessarily mean the same
thing. It drew attention to the word “information”, which is often not
given to PWD in an accessible format.
Vanuatu believed that “families” could replace “caregivers.”
Jamaica explained that caregivers is a broad term
that is being used as including a number of groups. This paragraph can
benefit from the inclusion of both terms. There might be support for
“PWD, their families and other caregivers.”
Trinidad and Tobago preferred the original proposal
because families are not always caregivers to PWD, and as a matter of
fact they may neglect them. It suggested to say ”families or caregivers”.
The Coordinator clarified from Trinidad and Tobago
that its proposal seeks to cover families only when families are actually
Australia made clear that this Convention should be
specifically about PWD, and it is redundant to include families or caregivers
in this Article.
Jordan echoed Jamaica’s proposal to include families
and caregivers, as families are indispensable.
The Coordinator noted the split on this issue and
requested those who spoke on this subject to meet with the facilitator
and resolve it. At this moment, a note will be included in the report
to reflect that there was an outstanding discussion whether to refer
to families, caregivers or both.
The session was adjourned.
The Fifth Ad Hoc Committee
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