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Back to: Sixth
Session of the Ad Hoc Committee
Summaries of the Sixth Session
Original
MS Word version
Languages: French
A service brought to you by RI (Rehabilitation International)
ARTICLE 22 – RIGHT TO WORK (cont)
Russian Federation highlighted that full integration and independence is impossible
to achieve for PWD without a job. In (a) ‘inclusive’ is superfluous
as the term is unclear; references to the ‘open’ and ‘accessible’ nature
of the labour market is sufficiently exhaustive. Para (c) should be broadened
by adding ‘both in the public and private sector’ after ‘labour
market’; para (i) which repeats this point could then be deleted. ‘Subsidies’ should
be added to the list of incentives in (d), which is used in some countries
to compensate the costs incurred by hiring PWD. Quotas could be costly and
are not an incentive; instead employers should be encouraged to use them in
a reference in para (h) along with legislation on hiring, with an exception
for small businesses. Quotas could be an important component in addressing
problems that PWD face in employment and therefore they must be mentioned.
Para (g) on rehabilitation should be moved to the stand-alone provision on
rehabilitation – Article 21 bis. Perhaps it would be appropriate to break
rehabilitation into its various aspects. The reference to job retention in
the second part of (g) should be moved to the related reference in (c) on maintaining
jobs. Due to its importance (h) should be moved up to follow (a) as a more
logical placement. Citing footnote 86 of the WG text (http://www.un.org/esa/socdev/enable/rights/ahcwgreport.htm)
the ILO should be mentioned in this article given its mandate and documentation
on labor. Such documentation should help develop mechanisms that ensure the
rights of PWD. Studies have shown that it is more economically viable to invest
in the additional costs of integrating PWD rather than to provide them with
social benefits. Work also promotes PWD self-respect. The benefits of integration
therefore accrue to both the PWD and the state.
Israel proposed (http://www.un.org/esa/socdev/enable/rights/ahc6israel.htm) to strengthen the current provision based on the proposals made by ILO and the International Disability Caucus (IDC). The term ‘of lawful working age’ should be inserted in the chapeau to reflect the prohibition of child labour under domestic and international law. It endorsed replacing ‘equal opportunity’ with ‘on an equal basis with others’. It included language proposed by the IDC to reflect the applicability of the right to work across the entire spectrum of the labor market, including the public, private and non-profit sectors. An express reference to legislation was added as one of the steps which the State Parties should take in advancing the role of PWD. Para (h) has been moved up – as proposed by the European Union (EU) and Canada – to be the new (a) to reflect the importance of ‘legislation’. Clear language on ‘discrimination’ has been added, as proposed by Canada as this goes to the heart of the Convention. ‘Reasonable accommodation’ is a key element and must be strengthened; this is covered in (b) of the proposed text. This para also underlines the need for proportionate and appropriate representation of PWD in the workplace because rigid quotas do not work and clear obligations must be placed before the employers. It underscored the importance of role-model behavior by the public sector in hiring persons with disabilities (PWD). Therefore, State Parties must commit themselves to hiring PWD “in their own backyard”. The equal application of employment standards such as safe and healthy working conditions, minimum wage and trade union rights cannot be taken for granted for PWD. Therefore an explicit provision on this is added to the new (d). The existing para (d) would be reformulated “encouraging employers to retain PWD in accordance with ILO proposals such as affirmative action, incentives and financial support”. This would strike a balance between flexible and effective provisions, leaving out quotas. The former (b) is now (f) and contains language proposed by the ILO. The new (g), formerly (c), reflects Canadian language which is more streamlined. In light of the IDC proposal it needs to be clarified that it is the State’s obligation to assist in obtaining, maintaining and returning to employment. The new (h) adopts text proposed by the ILO on alternative forms of employment outside the open labour market. The Convention cannot ignore the reality of many PWD working in sheltered employment or for whom there are no other work options. States Parties should address this reality by ensuring useful and remunerative work that would facilitate PWD entry into the open labour market.
Libya endorsed the encouragement, also through incentives, of private entities to hire PWD. Once a PWD has proven their capabilities, incentives are no longer necessary. It disagreed with Sudan that women’s right to work should be mentioned separately, because “all” includes women. Contrary to Yemen’s assertion, “shall” is an obligatory term. The text should reflect that rehabilitation is a necessary prerequisite for PWD to have equal opportunities in employment.
Serbia & Montenegro welcomed the proposal for para (h) by Israel because it addresses S-M’s concerns regarding alternative forms of employment.
Statements from UN Agencies, NHRI and NGOs
The International Labour Organization made a statement outlining relevant ILO documents and their recommendations and rationales with respect to this article. http://www.un.org/esa/socdev/enable/rights/documents/ahc6iloda22.doc.
National Human Rights Institutions highlighted the difficulty in determining the best approach in promoting the right to work for PWD, since this varies based on context. Most approaches are based on equality and non-discrimination. Reasonable accommodation is also frequently used, as are affirmative action schemes such as quotas and sheltered workshops. This Article should allow space for the continuation of existing approaches that have been successful. The Canadian proposal improves the WG text and captures most of the elements discussed. Amendments that have been proposed could be incorporated into the Canadian proposal, as should the NHRI’s suggestion to add ‘affirmative action schemes’ to its para (b). This would address concerns expressed by the ILO and others. Alternatively, a separate provision could be inserted as (b) bis on affirmative action. It is important that the Article captures the importance of affirmative action schemes and special temporary measures.
The International Disability Caucus (IDC) welcomed the Canadian proposal for
its emphasis on labour rights and non-discrimination. The IDC’s draft
article http://www.un.org/esa/socdev/enable/rights/documents/ahc6idcda22.doc based on CEDAW Article 11 and CESCR Article 7, also calls for reference to
reasonable accommodation, coverage across private, public and nonprofit sectors,
specifying positive measures, rejecting any mention of sheltered employment.
http://www.un.org/esa/socdev/enable/rights/documents/ahc6idcda22infosheet_000.doc.The
World Network of Users and Survivors of Psychiatry (WNUSP), also on behalf
of the IDC, responded to several issues raised by delegations so far.
A general reference to “affirmative action programs and other programs
to achieve equity in employment” in 2(e) of the IDC text, with consultation
with DPOs, is the appropriate way to reflect the different experiences with
respect to quotas, and will allow for the implementation of whichever measure
is appropriate in a given situation.
PWD who currently work in sheltered workshops have the same rights as those
who work in the open labour market. The provisions of the Article should apply
irrespective of the form or setting of employment. It is not appropriate to
separate out people who are in a particular work situation that, historically
and today, continues to be exploitative because it is segregated and separate
standards apply. Alternative forms of employment that could be read as including
sheltered workshops do not need to be mentioned. Instead the text should ensure
that all PWD have the same right to equal pay for equal work, and the equal
application of national minimum wage and other labor standards wherever they
work.
The ‘non-profit sector’ is sometimes excluded from national provisions
on labor laws leading to deprivation of rights in this sector. Therefore it
should be mentioned in addition to the public and private sector, along with
the reference to the role model responsibility of the public sector. The IDC
agrees that self employment and entrepreneurship are important to PWD as a
path to the right to work and economic empowerment.
The IDC supports the Canadian and parts of the Israeli proposals as they are
rights based. The Canadian proposal needs to be strengthened in its promotion
of affirmative action. Its obligatory language in requiring non-discrimination
is good as is the Israeli proposal’s reference to the open labour market
and the value of legislative measures. However the Israeli proposal’s
promotion of ‘alternative forms of employment’ perpetuates sheltered
workshops, effectively maintaining separate standards.
The Latin American Region Disabled Federation emphasized the importance of access to decent work with fair pay on an equal basis as others as fundamental to the independence of PWD. Discrimination and prejudice in the workplace leads to the vicious cycle of poverty and disability, as both a cause and consequence. PWD’s resulting dependence on state aid and family support has negative consequences for all those affected. While there are no exact figures there is a huge gulf between general unemployment and unemployment levels of PWD. Approximately 75% of PWD in productive age are classified as unemployed and are thus “inactive”. This Convention must bring about the desired change, by ensuring that the stated measures are applied. The public sector must employ PWD to send a clear message of commitment, which then is echoed in the private sector. Employment in the private sector needs to be supported with effective measures and incentives. Micro-enterprises should be encouraged for PWD because this is a good form of self employment, they should be provided with the appropriate technical assistance as well as subsidized credit. Cooperation with other companies and cooperatives should be encouraged. Sheltered workshops should be provided to further integration but they should not be used for overt or covert institutionalization.
Disabled Peoples International (DPI) spoke in support of the interventions of other members of the International Disability Caucus. Para (j) on awareness raising and combating prejudices is partly addressed in Article 5, but this does not justify its deletion as suggested by some delegations. It is appropriate to explicitly mention this in Article 22 as well because discrimination against PWD in hiring processes is particularly insidious. Stereotyping and lower expectations often lead to PWD being denied employment opportunities. This is not an individual problem but a systemic one, for which a systemic solution has to be sought. The progress in advancing the equality of women in the employment context demonstrates the result of efforts to combat stereotypes and other positive measures.
People with Disability Australia (PWDA) lent qualified support to the EU’s proposal for the chapeau. However it is unclear whether the phrase ‘equal basis’ merely grants formal equality or the more substantive ‘equality of opportunity’, and should be amended to read: ‘work on the basis of equality of opportunity with others in an environment that is free from discrimination.’ The reference in the final sentence of the chapeau where access to employment is merely ‘safeguarded and promoted’ must be strengthened as this obligation becomes effective immediately, to read: “States Parties shall ensure the realization of this right, including through measures to..’ PWDA supports NZ’s intervention on slavery, forced labor and exploitation. A strong explicit reference against discrimination in recruitment and employment should be inserted in WG text para (e). Full participation in the mainstream labor market needs to be affirmed. The Convention must not create rights to segregated employment settings that might permanently warehouse PWD.
The Chair noted the difference of opinion regarding the prescriptiveness of this Article. It is clear however that what is being sought is a labor market and work environment open to all PWD. Terms such as ‘enabling environment’ and ‘economic empowerment’ were put forward. Some suggested that particular attention should be given to the situation of women in the labor market but others were concerned about singling out a particular group. There was support for the rights- based approach in the Canadian proposal. Also various proposals were made to anchor non-discrimination more firmly. Concern was expressed about likely exploitation of PWD in the work place. The EU proposal for the article’s structure (http://www.un.org/esa/socdev/enable/rights/ahc3eu.htm) was supported, including the chapeau, but a few felt that the language was too limiting. There was considerable support for the inclusion of (a) in the chapeau. The importance of the public sector providing an example to others in the employment of PWD has developed as one of the main themes. Both direct and indirect discrimination should be prohibited. The Convention should not derogate from existing norms such as those set out in ILO Conventions. The reference to ‘sheltered workshops’ has raised concerns, particularly about endorsing segregation and conditions of employment, and will need to be reviewed carefully. There was support to split (c) into two paras: one dealing with paid employment and the other with self-employment, stressing the need to strengthen the latter. Micro-companies, small businesses and self governing corporations were specially mentioned. A reference to quotas in (d) could be controversial given differing national experiences. ‘Reasonable accommodation’ met with considerable support but its meaning in the context of the right to work needs to be clarified. In (h) consistency with national legislation was a concern, particularly with regard to trade union rights. This para could be placed at the beginning of the Article. Para (j) could be included in Article 5 – promotion of positive attitudes or Article 21 – right to health. Civil society however wanted to retain the combating of stereotypes in the context of this Article. Overlaps between this para and Article 17 – education, Article 19 – accessibility and Article 21 – right to health need to be reviewed. Progressive realization was again raised as an issue.
ARTICLE 24 – PARTICIPATION IN CULTURAL LIFE, RECREATION, LEISURE AND SPORT
The Chair noted many previous proposals to add language to this article, and some proposals, which did not gain universal support, to significantly restructure it.
Yemen proposed splitting this article into two, reflecting the distinction drawn by some DPOs between notions of culture, like arts, music and literature, and recreation and sports. The recognition of deaf language in para 3 belongs in the separate Article on culture. Language guaranteeing rights should be strengthened so ‘recognize’ in paras 1 and 4 should be replaced with ‘ensure’.
The Chair asked for delegates reactions to this proposed split.
Thailand proposed adding on ‘an equal basis with others’ to the
chapeau of para 1 to emphasize the importance of cultural activities and cultural
life to all human beings. It is flexible on the proposed merger of (b) and
(c) as there are overlaps. Some intellectual property rights laws, which also
govern the development of Information and Communications Technologies (ICT),
inadvertently block PWD access to cultural materials. Therefore, it is important
to retain the substance of para 2. It supported the recognition of cultural
and linguistic identity in para 3, and recommended extending this to cover
PWD of other minority groups, including ethnic and linguistic. While para 4
covers PWD right to participate in mainstream sports events, PWD should also
have the right to participate in disability-specific activities, both in mainstream
events as well as in separately organized disability events as well. PWD should
have options not restrictions in this case.
Kenya proposed a new para 3(bis) on religion based on its proposed text from
AHC3. http://www.un.org/esa/socdev/enable/rights/ahc6kenya.htm. It further
reformulated the chapeau of this para to reflect language from Article 18
of the CCPR and to include indigenous peoples: “3(bis): States parties
recognize the fundamental right of persons with disabilities to freedom of
thought, conscience and to religious and spiritual practice of their choice.
To that end states parties shall take all appropriate measures to ensure
that persons with disabilities including those from indigenous and minority
groups, have the opportunity to….” The subparas of 3(bis) would
remain as proposed.
The Chair noted Kenya’s proposal for the chapeau draws on Article 27 CCPR on minorities.
Jordan saw merit in splitting this article. If however there is no separation the chapeau should include a reference to sport as this would link the otherwise unconnected subsequent paras of this article. In para 1, (b), (c) and (d) all cover access issues, so they should be merged, to read: “Enjoy access to literature, TV programmes, films, theatre, museums, libraries, cinemas, and other cultural materials, activities and places in accessible format”. It endorsed the EU’s proposed deletion of para 3 given the difficulties of singling out one subgroup. Para 2 should be moved to the end of the Article and its reference to ‘intellectual property’ should be replaced with the less expansive term as suggested by the EU: “copyright,” or “intellectual property and trademarks.” There are rights on sports materials as well, not just intellectual property. In para 4(a) ‘local’ should be inserted before ‘regional’ to cover local schools and community based sports. Paras 4(b), (c) and (d) all deal with access so they should be merged.
Serbia & Montenegro agreed with Yemen, Jordan and others to split the Article to deal with culture and sports separately. It supported the EU’s proposed (1) bis. It welcomed the idea of merging paras 1(b) and (c) and possibly also (d). The list in these subparas should correspond to the list in Article 13 on freedom of expression and access to information to ensure consistency. ‘Tourism’ in (d) should possibly be covered separately if the suparas are not merged due to its significance. It endorsed the EU’s proposed rewording for para 2 on copyright. It suggested multilateral negotiations with regard to the proposed deletion of para 3 since this a very sensitive issue. It welcomed Kenya’s proposals for 3(bis) on religion, which could be considered in a separate Article and if so should follow ICCPR language on freedom of religion and conscience, including enjoyment on a basis of equality. Para 4 on sports should be more detailed, and Thailand’s recommendation on providing a choice between mainstream and disability specific sport events should be taken into account.
Mexico was flexible on structure but strongly supported a separate provision on tourism. In 1(d) ‘hospitality’ should be replaced with ‘tourism services’ to include the concept of private tourism services. Mexico has generally opposed specific references such as in para 3, and therefore recommends this para be deleted. Activities in (4) (a) should be a matter of choice. This entails certain accommodations so the additional access requirements should be taken into account, as well as the local aspect as mentioned by Thailand. References to tourism should be added to 4(c) with respect to venues, and to para (d) with respect to activities. The issue of progressive realization needs to be discussed. References to religion are more appropriate in Article 13 – freedom of expression.
The United Kingdom, on behalf of the European
Union (EU) opposed splitting
this article, citing the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW ) – Article 13(c) and the Convention on the Rights
of the Child (CRC) – Article 31, which deal with sport, recreation and
cultural life in one article. These issues are closely linked.
With regard to Yemen’s amendment to replace language ‘recognizing’ the
right in the chapeau, the EU notes this language is the appropriate wording
to use because it parallels CRC, Article 31, which serves as the model for
this provision. In the first sentence of the chapeau, ‘appropriate measures’ should
be ‘promoted’ instead of ‘taken’. These programs are
usually not controlled by the State but rather within and by the community
or private enterprises.
Para 1(a) deals with the enjoyment of rights and does not fit with the following
3 subparas, which deal with accessibility to those rights. It should be moved
with slight modifications to 1(bis): “States Parties shall also take
appropriate measures to enable PWD to have opportunities to develop and utilize
their creative potential not only for their own benefit but for the enrichment
of society.”
Listing accessible formats anywhere in this convention runs the risk of not
being exhaustive, so this wording in (b) and (c) should be deleted. For the
same reason language in (d) could be restrictive, and should be replaced with ‘enjoy
physical access to cultural venues and sites.’
While the EU has no specific language on this point, opportunities for PWD
to receive training and instruction so they can participate in all kinds of
cultural activities on an equal basis with others should be borne in mind.
The context of para 2 refers not to intellectual property in general but rather
cultural copyright in particular. The use of the wider concept of ‘intellectual
property’ could have unintended consequences in other areas, such as
patents, and should be replaced with “copyright”.
The EU believes it is inappropriate to single out specific impairment groups
in this convention and so endorsed the Mexican proposal to delete para 3. If
hearing impaired and deaf people feel that their needs are not met, this needs
to be addressed, without resorting to a separate para.
There is no express ‘right’ to recreational, leisure and sporting
activities in the CESCR. The language in the chapeau of para 4 is ambiguous
on this point and should be amended accordingly. The chapeau’s wording
may have been based on CEDAW Article 10(g), which addresses this issue as a
matter of equality between women and men and not as a standalone right. Subparas
4(c) and (d) should be deleted. Subpara (c) is already dealt with in 1(d).
A separate strong reference on the inclusion of PWD in all aspects of policy
decisions should be covered elsewhere rather than in an individual Article
as in 4(d).
If ‘religion’ is to be covered in this convention it should be
dealt with separately, as in the Universal Declaration of Human Rights (UDHR).
In the CCPR – Article 18 - it is covered as a freedom, not as a right,
with the objective being to avoid interference from the state. Careful consideration
is required whether delegations want to create an obligation for the State
in the practice of religion. The EU preferred to keep this as a freedom as
in Article 18 CCPR.
Australia proposed several amendments to streamline this article and responded
to those of other delegations made in AHC and AHC4. It opposed the creation
of further rights as in the proposed (3) bis by Kenya. Religion could be generic
to other articles as well, eg, accessibility, and is already adequately covered
for all people in CCPR 18 and 27. An additional reference to ‘physical
culture’ as proposed by Mexico is unnecessary as ‘recreation, leisure
and sport’ adequately encompasses these rights. In light of Article 19
on accessibility, it is not necessary to further elaborate these issues in
this Article. In response to proposals made by the EU and Chile to specify
in Article 19 that appropriate measures be taken to promote accessibility to
culture and eliminate cultural barriers, Australia advocates a less prescriptive
and more general standard of accessibility for all activities.
Australia is flexible on its proposed its text from AHC4 for the chapeau of
para 1: “States Parties recognize the right of all PWD to take part in
cultural life and shall take appropriate measures to ensure that PWD …” reflecting
Article 15 CESCR. It could accept the EU or Canadian text as alternatives.
It could accept the Chinese proposal to include a reference to the ‘progressive’ nature
of cultural rights in this statement, which is in line with Australia’s
policy on this issue. It opposed the Chilean proposal for the chapeau and welcomed
the Israeli insertion ‘by way of legislation, to the maximum extent that
is reasonable’, noting its practicality. The New Zealand proposal for
the chapeau of para 1, which is similar to the EU’s and Canada’s
proposal but goes further in defining the right by adding “artistic,
recreational and leisure activity” to “cultural life,” would
be better placed in para 4.
Some proposed amendments of 1(a) are unnecessary; eg. the Mexican proposal
to add “express” is covered in Article 13 – freedom of expression;
the New Zealand proposal to insert ‘physical’ is included in the
scope of 4(a) and (b). The Israeli addition of the phrase ‘benefit for
the community’ shifts the burden on PWD to provide a benefit to the community
and should be deleted.
While ‘access to cultural materials’ should be retained in 1(b),
there should be no duplication with draft Article 13(a). Therefore certain
deletions should be made to give Article 24 a more general nature. Para 1(c)
should read ‘enjoy access to television programs, films, theatre and
other cultural activities in accessible formats such as captioning and sign
language’ in to ensure consistency with Article 13. It opposes the Yemeni
proposal to include ‘national and international’, which is inconsistent
with Australia’s captioning standards. The New Zealand proposal on participation
is unnecessary due to 1(a) and 4(a). Further emphasis on the participation
of PWD should be included in 1(a), if needed. It endorsed the deletion of 1(d)
as suggested by Jordan and New Zealand; a similar sentence in relation to sport
is found in 4(b) covering training and resources.
It endorsed the EU statement on para 2 to refer to copyright law. It opposed
the Thai proposal to delete ‘international’, because Australia’s
national legislation holds Australia responsible for adhering to international
standards such as the Bern Convention (http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html),
TRIPS (http://www.wipo.int/clea/docs_new/en/wt/wt001en.html), the Convention
for the Protection of Producers of Phonograms Against Unauthorized Duplication
(http://www.wipo.org/clea/docs/en/wo/wo023en.htm) and the International Convention
for the Protection of Performers and Producers of Phonograms and Broadcasting
Organisations. (http://www.wipo.org/treaties/en/ip/rome/trtdocs_wo024.html).
It endorsed the EU and Japanese proposal to delete para 3 because it does not
add value in light of Article 27 CCPR on the recognition of linguistic minorities.
The proposal for a para (3) bis on practice of religion should be deleted.
Its subparas (a), (c) and (e) are granted to all people in Article 18 & 27
of the CCPR and should therefore be deleted. Accessibility issues in (b) and
(d) are covered in Articles 19 and 13 of this convention.
It reiterated its proposal for the chapeau of para 4:”States Parties
recognize the rights of PWD to participate in leisure and sporting activities
and shall take appropriate measures to: …” Australia could alternatively
support the EU text without the inclusion of ‘on an equal basis’ because
this anticipates an inclusive environment for PWD. It strongly supported the
inclusion proposed by the Republic of Korea for 4(a) – mainstreaming
sporting activities at the regional, national and international level tailored
to the needs of PWD. It opposed the South African proposal to replace ‘encourage’ with ‘ensure’ as
participation should not be considered mandatory. It preferred the EU’s
proposal for 4(b) as it better reflects the opportunity to provide other targeted,
specific and perhaps additional initiatives for PWD. This is not a matter of
parity with able-bodied persons, as the existing WG wording implies, as the
nature and scope of support required differs from that for able-bodied persons.
The first part of 4(b) is advocating for the same rights as 4(a) and should
be deleted. In light of Articles 17 and 19 the proposed 4(c) bis and ter from
Costa Rica are superfluous and should be deleted. There is no need to place
this much emphasis on one disability sector such as children. In light of 4(a)
and (b) both 4(d) and the suggested (d)bis are also unnecessary.
Multiple forms of discrimination do not only occur in the context of sports
and recreation and so 4(e) is more appropriate in the preamble. Furthermore
CERD – Article 5 - and CEDAW - Article 10(g) – deal with racial
discrimination in cultural life and discrimination against women in sports.
The resource issue should be addressed generally in 4(b). Other proposed supplementary
paragraphs should be covered in broader paragraphs outlining participation
and education. The proposed new para 5 from Uganda is more beneficial in the
preamble so that it can apply to all articles.
New Zealand echoed the EU’s concerns that the WG provisions entail obligations
that go beyond what may be the power of states to deliver, or beyond what should
be the proper role of government in society. It is not just an issue of progressive
realization, which might be covered more generally elsewhere. The proposals
of Kenya and the EU, to insert ‘on an equal basis with others’ in
the chapeau after ‘take part’, could address this problem. This
should also allay South Africa’s concern at a previous session that the
provision of the same facilities as are available to the general population
might in fact be inequitable. The level of detail in this article may obscure
the main issues which should be expressed more succinctly.
Given the similarities of its issues this Article need not be split. In fact
paras 1 and 4 should be merged. The term ‘cultural life’ is derived
from Article 15 CESCR, which does not explicitly cover ‘leisure, recreation
and sport’. However, Article 13 (c) CEDAW clarifies that recreation and
sport are aspects of cultural life. The concept of ‘cultural life’ in
para 1 should be broadened to include sports and recreation. http://www.un.org/esa/socdev/enable/rights/ahc6nz.htm.
Accordingly, in 1(a) ‘and physical’ should be inserted after ‘intellectual’.
This would also include play, which is an important developmental opportunity
for children. Given its broad scope, in NZ’s understanding, the term ‘cultural
life’ encompasses participation in religious life.
While sympathetic to the intention of Kenya’s and Uganda’s proposed
new para on religion, NZ voiced concern that such language confused what should
be the proper role of the State, civil society and the individual. In addition,
as highlighted by the EU in AHC3, it risks lowering the standard of protection
recognised by Article 18 CCPR. However, the issue of participation is important
and is not directly addressed in Article 18 CCPR. This element could be included
in a stand-alone para reflecting language from UN Standard Rules #12: ‘States
Parties shall encourage measures for participation by PWD in the religious
life of their communities on an equal basis with others’. Language in
3(bis) on access to religious buildings and sites is covered by Article 19.
Furthermore, the State cannot protect PWD from ‘religious coercion’ any
more than other persons; to attempt to do so would be considered unjustified
interference by the State in the choice of religion. Coercion in the opinion
of one person could be freedom of choice in the opinion of another. If a provision
is to be made, the wording of Article 18.2 ICCPR should be used.
The detailed provisions of 1(b) and (c) should be replaced with a single general
provision. Listings of accessible formats and forms of cultural expression
should be deleted otherwise there is the risk that some may be left out.
The session was adjourned with NZ continuing its intervention in the afternoon.
ARTICLE 24 – PARTICIPATION IN CULTURAL LIFE, RECREATION, LEISURE AND SPORT (contd)
New Zealand continued its intervention with the proposal for a new 1(b)bis
dealing with active participation in both recreational and competitive, and
both sports and artistic. http://www.un.org/esa/socdev/enable/rights/ahc6nz.htm.
It also proposed (b) ter incorporating parts of (1) (c) and (d) and parts of
(4) (a) and (b) of the WG text, reflecting a broader concept of cultural life. ‘Access’ – as
mentioned in (1) (d) and (4) (c) – should be more properly covered in
Article 19 – accessibility. Also, the second part of (4) (c) is covered
by Article 17 – education, although it is not explicitly mentioned there.
It shared Canada’s sentiment that the purpose of (4)d was not clear,
therefore it should be deleted. It supported maintaining para 2 and would consider
the EU proposal. Finally, singling out deaf people in para 3 raises concerns
as other PWD also deserve having their cultural identity recognized. NZ notes
Australia’s recommended deletion of this para as this issue is covered
in Article 27 CCPR. Despite this many deaf people have not had their language
and identity recognized, and there are other PWD whose culture has not been
recognized sufficiently. The Maori culture in New Zealand is an example. NZ
therefore proposed a revised para 3: ‘PWD shall be entitled on an equal
basis with others to recognition and support of their specific cultural and
linguistic identity, including sign languages and deaf culture’
Brazil supported maintaining one Article due to the close relationship of the issues which are also dealt with together in its national legislation. It supported the Mexican proposal to include ‘tourism’ in para 1(d), 4(c) and (d). Religion is a freedom of conscience issue and is more appropriate in Article 13 or elsewhere.
Japan also believed that the Article was too prescriptive, particularly in light of comparable provisions in other human rights documents. In light of Article 19, paras 1(b) and (c) are duplicative on the issue of accessibility. It endorsed the EU proposal for the chapeau of para 1. It supported Australia’s intervention on avoiding conflict between international obligations and the provision on intellectual property in para 2. The last phrase should be reworded: ‘in accordance with international agreements’. It reiterated its proposal to delete para 3, particularly in light of Article 15 CESCR which does not support specific cultural and linguistic identities. Also, the basic idea is covered in draft Article 2(d). It welcomed the EU proposal for the chapeau of para 4 given that many sporting facilities are provided by private entities. It endorsed the mainstreaming in 4(a) but stated that 4(b), (c) and (d) required streamlining.
Norway endorsed the structure proposed by the New Zealand as well as the broad approach to the term culture to include sport. Thus there was no need to split the article. There is a religious aspect but ‘freedom of belief’ does not be expanded on in the context of this provision. It endorsed the language in the chapeau of para 1. Para 1(a) logically belongs in a separate para as proposed by the EU. However its last part could be deleted as it is not clear what ‘enrichment of the community’ means. It endorsed the EU text, which streamlines (b) (c) and (d). However, the term ‘physical’ in (c) should be deleted. It endorsed paras 2 and 3 of the WG text. It is flexible on the use of the term ‘intellectual property’ or ‘copy right’. It suggested a partial rephrasing of the chapeau in para 4: ‘State Parties recognize the right of PWD on a basis of equal opportunity with others’; because accommodations may be needed to ensure that PWD have the same opportunity to benefit and participate. The levels in 4(a) should include the ‘local’, however, listings should be avoided and therefore ‘all levels’ should be used instead. The term ‘the same’ should be deleted in (b). It was flexible on (c) and (d), which could also be deleted.
Cameroon suggested that religious aspects be incorporated in Article 13 – freedom of expression. It opposed the splitting of the provision due to the interrelation of the issues. It supported the deletion of para 1(b) and (c) provided that the ideas are taken up in Article 13. Similarly para 2 should be covered in Article 19 – accessibility. It opposed a specific provision on deaf persons in para 3, but supported a provision on minorities to preserve cultural specificities of indigenous peoples. The Convention on Indigenous Peoples stresses the importance of protecting cultural specificities. It proposed ‘PWD that belong to indigenous minorities’ to replace parts of para 3. It endorsed the EU and New Zealand interventions on para 4. The phrase ‘to the fullest extent possible’ could dilute the responsibility of States Parties, giving them the option to claim ‘it was not possible.’ The meaning of this phrase must be clarified.
The Chair highlighted that the term ‘enrichment of their community’ in 1(a) has been queried by a number of delegations. It is derived from Rule 10 (1) of the Standard Rules – on culture. It seems the entire provision is lifted from the Standard Rule, which at the end also specifies ‘be they in urban or rural areas’.
Trinidad & Tobago opposed splitting this Article because its range of issues are all related to self-expression, the exploration of individual talents, and are useful tools of empowerment and participation. It endorsed the reference to ‘intellectual property rights’, which is broader than the proposed “copyright”, and will facilitate maintaining a general language throughout the convention. Delegations’ concerns on this terminology could be accommodated in domestic legislation. In 4(a) it supported reference to ‘local participation’ as suggested by Jordan. It did not support the proposed inclusion of religion for reasons given by other delegations. It endorsed the insertion of ‘tourism’ as proposed by Mexico and the IDC. It endorsed the deletion of para 3 as no specific group should be singled out. It endorsed the EU proposal for 1(d) to avoid listing places for cultural performances.
South Africa noted that the issues addressed in this article promote social cohesion of PWD in society. The protection of ‘intellectual property’ is crucial. It wished to insert ‘on an equitable basis with others’ in the chapeau of para 4. In 4(a) ‘encourage’ should be replaced with ‘ensure’ to make it consistent with the other subparas. In (c) ‘access’ should be ‘equal’ and this term should be added. Similarly, ‘equal’ should be inserted in (d). The issue of children with disabilities in (c) could be dealt with in Article 17 – inclusive education. South Africa also stands by its previous proposals with respect to this article.
China opposed the inclusion of ‘religion’ as it is sufficiently covered in other Conventions, including the CESCR. The right of PWD to participate in non-mainstream sports, and the need for separate sporting opportunities, should also be ensured. For example, the Special Olympic Games will be held in 2007 in Shanghai and in 2008 the Paralympic Olympic Games will be held in Beijing. Therefore ‘mainstream’ should be deleted in 4(a).
Oman stated that PWD should have the same opprtunities to participate in sporting activities and therefore, resources for such purposes should be provided. It emphasized the need for access to tourist areas in 4(b). Religion should not be covered in this Article as this is a personal issue.
Costa Rica endorsed Brazil’s statement that the Article should not be split. It endorsed Mexico and Trinidad & Tobago on the inclusion of ‘tourism’. ‘Religion’ should more appropriately be covered in the Article on freedom of expression. It highlighted the right of children to sports and cultural life. Also, a gender perspective should be incorporated into the provision, as discrimination is prevalent in this area. Sport is an inseparable part of culture and it endorsed New Zealand’s comments on this point. However, the current text is prescriptive and rights and freedoms like access and education should be moved elsewhere to avoid repetition. It repeated its concerns on including ‘deaf people’ in para 3, their culture and identity should be recognized but in a different fashion.
Sudan endorsed the Kenyan proposal to include religion, which is not just a freedom but a right to practice the faith. It is the appropriate Article to deal with this issue as culture and religion are intertwined. Para 3 should be deleted and replaced with a provision on religion. The counter-argument that religious issues are covered in other conventions could apply to other issues too, like children’s rights and other human rights. ‘Intellectual property’ is the broader term and should be used in para 2.
Chile called for strengthening this article which deals with the development
of the fullest potential of PWD. Issues of ‘accessibility’ should
be moved to Article 19. The article should be split between culture and sport
respectively. There are two aspects covered in para 1: the right to partake
in cultural events and the right to generate cultural events. The latter is
not clear enough and should possibly be strengthened. The essence of this right
is the broadest expression of diversity and the collective awareness that the
growth of the community should involve contributions by all. Sign language
should be included in 1(c) without reducing it to a ‘format’. It
endorsed the Mexican proposal to include ‘tourist services’ in
(d). Children should not be specially mentioned in 4(c), particularly in light
of the lengthy discussion on Article 17. However monitors and teachers who
provide training should be mentioned. It opposed the inclusion of ‘religion’ as
this is an issue in which States should not interfere.
Bosnia & Herzegovina agreed with the broad notion of cultural life to include
sports. In B-H sports has been key to achieving inclusion, rehabilitation and
equality of PWD in society. It has offered a means to improve self-confidence
of PWD, a change in attitudes of society towards PWD, and post-conflict reconciliation. ‘On
the basis of equality’ should be added after “cultural life” to
the chapeau of para 1. Para 1(a) should be retained to include the reference
to PWD contributions to the community. It endorsed the EU proposal for 1(b)bis,
3(a) and 3(b).
India opposed the split of the Article. The State’s obligations with respect to some of the provisions of this article can only be to serve as a facilitator, restricted to promoting rather than ensuring measures. Therefore it agreed with the EU’s proposed language for the chapeau of para 1. It endorsed 1(a) of the WG text, while (b) and (c) should be merged with less prescriptive text, because accessible formats evolve over time: ‘enjoy access to literature and other cultural materials, television programs, films, theatre, and other cultural activities in all accessible formats’. ‘Museums’ should be placed immediately after ‘monuments’ in 1(d) as this is more appropriate. The special provision for deaf people in para 3 should be deleted because the Convention deals with disability generally and not specific disabilities. In para 4(b) “the same instruction” should be replaced with ‘appropriate instruction’ and ‘ensure’ with ‘encourage’. The issues of para 4(c) and (d) are adequately addressed elsewhere – Article 16 & 19 - and should be removed.
Qatar opposed the inclusion of religion as it is sufficiently covered in the CCPR – Article 18. An addition would run counter to certain systems in some countries. Cultural life can also encompass the issue of religion.
Uganda recommended alternative language for para 4(b): ‘ensure that PWD have an opportunity to organize, develop and participate in disability-specific recreational, leisure and sporting activities and receive necessary and appropriate instruction, training and resources available to other participants’. The reference to ‘mainstream sporting activities’ in 4(a) should be retained with the additional insertion of ‘disability specific’ in (b). It proposed text for para 4(c): ‘ensure that PWD have full access to transportation, accommodation and the venues for recreation, leisure and sport activities, including tourist attractions’, highlighting the need for transportation modes and accommodation for PWD to be included in the context of accessibility to these facilities. The second part of para 4(c) relating to the access of children to sporting activities is limited, therefore, it proposed (c) bis: ‘ensure that children with disabilities have equal access to participating in play, recreation, leisure and sporting activities, including those in the school system’. It is important to highlight the right to play – Article 31 CRC. A para should be added after (d): ‘promote the international exchange of recreation, leisure and support related technologies and goods for PWD’.
The Chair noted that Uganda’s proposal to insert “disability-specific” activities in 4(b) is an alternative to the Chinese recommendation to remove the reference to “mainstream” sporting activities in 4(a). Para 4(b) implicitly deals with both mainstream and specific sports; however specifying ‘disability-specific” here would allow for the retention of the reference to mainstreaming in (a), which captures a particular meaning and nuance. The Chair asked for comments on this point.
Russia opposed the split citing the broad scope of the term ‘culture’. Also, it opposed the inclusion of ‘religion’ as it is a complex problem, aspects of which have already been covered elsewhere. Nothing new should be added that is not already covered in the human rights covenants. It welcomed the New Zealand proposal for the chapeau of para 1 and did not object to inserting ‘on an equal basis with others’. A reference to ‘physical potential’ could be included in 1(a). It questioned the last part of that paragraph and took note of the Chair’s explanation that the text derived from #10 of the Standard Rules (UNSR) http://www.un.org/esa/socdev/enable/dissre00.htm. However, the text should focus on the possibilities for PWD rather than the community. In the Russian text 1(b) the phrase ‘In any accessible form’ should be inserted after ‘and other cultural values.’ The enumeration in 1(d) is too detailed, and if it is maintained ‘concerts and musical representations’ should be added. It supported para 2 of the WG text. It reserved comments on para 3, which is an “extremely serious matter”. The phrase ‘on an equal basis with others’ in para 4 needs clarification as to whether ‘others’ refers to professional athletes who are not disabled. The wording in 4(b) unjustifiably puts the burden on PWD and the useful role of the State needs to be enhanced. It shared China’s concern on the use of ‘mainstream’ in para 4(a); particularly the level of obligation and the range of consequences has to be clarified. Much of the work to promote participation of PWD in these areas happens at the local or municipal level, so these terms should be added to 4(a). Paras 4(c) and (d) should be streamlined.
Canada submitted a detailed statement explaining its proposed amendments for this article, at: http://www.un.org/esa/socdev/enable/rights/ahc6canada.htm
Colombia agreed with Brazil, Costa Rica and Mexico in opposing a split of this Article given the close reilationship among its elements. Referring to Oman’s intervention on para 4 it proposed a new 4(e): ‘promote the development, importing or exchange of specific sporting equipment for PWD in accordance with their needs’.
New Zealand reacted to the position of some delegations against the retention of para 3 on the basis that it covers a right all PWD already have. NZ noted that this rationale would apply to all provisions in this convention. Yet states have agreed on the need for this convention because PWD have not been able to exercise these rights. With respect to the rights of people from linguistic, ethnic and religious minorities to enjoy their own culture, to practice their religion or to use their own language, DPOs and states attest PWD are still being denied these rights. Para 3 is an attempt to address this situation where deaf people have been denied access to their own language and culture, even where they clearly have this right. However deaf people are not unique in this regard among PWD. As delegations have pointed out, indigenous peoples and PWD from minority groups have also been denied access to their language and culture on the same basis as others. Therefore NZ strongly supports retention of para 3 with amended to reflect its broader applicability to all PWD as suggested by Thailand, Cameroon, Costa Rica. This can be done by removing the phrase ‘who are deaf’ at the beginning of the para, or by following Canada’s proposed alternative wording. However, because it is not well understood that deaf people who use sign language in any country form a linguistic minority in the same way as do any group of people who speak a language distinct from the national languages, it merits specific mention of deaf culture at the end of the para. This would not preclude other PWD from being covered, and thus address concerns expressed by India and other delegations.
Thailand expressed concern about the proposal of the EU and others to use ‘copyright’ instead of ‘intellectual property’ in para 2, and to add ‘in accordance with international law’. It is these laws that, both nationally and internationally, constitute barriers for PWD and deny them access to cultural materials. If the Convention is to take a step forward it will have to address this problem.
Yemen preferred splitting the Article but remained flexible. Tourism belongs under the category of culture. Sports and recreation are different activities. It agreed with Qatar that religion was a sensitive issue that is exclusively a matter of state sovereignty and should not be included. While recognizing linguistic specificities it opposes singling out deaf people in para 3. Cultural identity does not apply to the deaf, whose identity is part of the society in which they live. The para could refer to all persons with perhaps a specific reference to the deaf if necessary.
The Former Yugoslav Republic of Macedonia supported the inclusion of the right to play – Article 31 CRC – in para 4(c): ‘Ensure that children with disabilities have the opportunity to exercise their right to play in an inclusive and accessible environment’.
Statements from NHRI and NGOs
The World Federation of the Deaf-Blind, on behalf of the International Disability
Caucus http://www.un.org/esa/socdev/enable/rights/documents/ahc6idcda24_000.doc representing 49 members, underlined the importance of retaining the phrase: ‘not
only for their own benefit, but also for the enrichment of their community
and society as a whole’. This is derived from UNSR #10. PWD have unique
qualities and abilities that make it possible for them to contribute to their
communities and thereby to society as a whole. Alternatively, the EU proposal –‘for
the benefit of society’ – is also acceptable. The listing in (b)
and (c) is incomplete, all cultural aspects should be covered.
Para 2 is extremely important for blind and deaf-blind people. The term “copyright
law” is not broad enough and should be replaced with the phrase ‘artistic
property.’ The reference to international law at the end of this para
is deleted in the IDC text, as suggested also by Thailand. This is of concern
to PWD because as information technology develops more barriers are created
by international law.
Para 3 is not, as Australia suggests, just about language, but also about a
culture that has developed because of disability. Therefore the IDC finds the
New Zealand proposal promising. The disappearance of the term deaf-blind in
this proposal is a cause of concern but there is a recognition that they are
a small group of people, not all of whom associate themselves with the deaf
culture, and there is a debate whether a deaf-blind culture exists.
A provision on religion is important, and the Kenyan proposal 3(bis) is reflected
in the IDC text. There is a misunderstanding that PWD are not ‘able’ to
have a religion, that they should not be part of, or do not belong to, religious
groups. Para 3(bis)(e) is particularly important in light of some religious
groups and NGOs who condition care for PWD on their endorsement or membership
of their faith.
A provision on the joining and forming of organizations, covered in Article
18 Standard Rules, remains to be addressed in this convention, including whether
this is a right or a freedom.
The Chair stated that the right of PWD to form organizations was covered in draft Article 18 of the Convention – participation in political and public life.
The World Federation of the Deaf endorsed the IDC statement. It reminded delegations
that deaf minorities and deaf minority cultures exist in all their countries.
In those countries with resources, there is support for sign language choirs
and poetry. In countries with few resources the cultural and spiritual life
in deaf communities is poor because of a lack of recognition of their cultural
expression and art forms.
Participation in mainstream cultural life is important, particularly for children
and this is covered in paras 1(b) and (c). Currently only a few countries have
translated their national anthems into sign language. Deaf people should be
able to partake in religious services, especially those that take place in
the context of the family, such as weddings. Currently only two countries have
translated the Bible into sign language.
Para 3 is crucial for the equality of deaf people giving them the means to
be part of society. If it is left out, there is nothing left for deaf people.
This is not a question of singling out a particular group. The New Zealand
proposal correctly incorporates this underlying idea of equity, and its language
expanding recognition to other minorities should also be reflected in the IDC
text. UNESCO’s multilingual world action plan http://unesdoc.unesco.org/images/0012/001297/129728e.pdf emphasises the importance of language in understanding diverse cultures.
Save the Children Fund, also on behalf of the IDC, highlighted that the right to play is widely violated for children with disabilities not just because of the lack of physical access but because they are not in school and/or are separated from informal play networks, which are essential in establishing friendships. Many parents and professionals assume that children with disabilities are not capable of playing and therefore keep them from partaking in recreational activities alongside nondisabled children. Sometimes parents themselves will deny their children with disabilities opportunities to play at all preferring instead to hide them away. Governments and professionals all too often fail to provide the necessary inclusive environment. One of the most powerful findings from research among children with disabilities is that social isolation, loneliness and the denial of opportunity to play with friends brings untold sadness and profoundly low self-esteem. Children cannot value themselves if they are systematically excluded from day to day activities of childhood. Play is an integral part of the spontaneous urge for development. These barriers are too high for children to overcome alone. Article 31 CRC and the existing WG text are not sufficient to ensure the right to play for disabled children. The Convention has to ensure an inclusive and accessible environment for children with disabilities alongside their peers.
The North-Eastern Center for the Study of Sport & Society endorsed the split of the Article, but called for a focus on the content rather than placement of the text. Para 4(c) should ensure access to physical activity venues separately from children’s rights. Each issue should be covered in a separate clause. It strongly supports Mexico’s and Thailand’s proposal for specific recognition of the various realms in which PWD participate in physical activity, including mainstream and disability-specific sports. Also, tourism should be mentioned because it is undeniably a part of recreation and leisure. It endorsed New Zealand’s and Canada’s recognition of the right to play for children, which is not protected under the language of sports and recreation which in the sporting world is recognized as separate activity.
National Human Rights Institutions informed the Committee of a complaint petition
pending before an NHRI relating to a demand by the deaf persons for the recognition
of a standard sign language. In the 2 years the case has been pending the NHRI’s
investigations revealed that that barely 25% of UN member states have ever
given any sort of recognition to sign language, either as an official language
of the deaf or as a language used by deaf persons. It should also be pointed
out that while Article 27 CCPR recognizes minority cultures and languages and
there are similar protections available in domestic jurisdictions, many deaf
children in countries where sign language is not recognised have not been able
to qualify for high school degrees. They are labeled as ‘language deficient’.
This is the stigma that results when the support system, required for the development
and nurturing of any language, does not exist. The language that ends up being
used is primitive, lacking even a grammar.
There is a clear recognition in the Standard Rules and some regional instruments
of states obligations in the development of sign language. Yet the use and
application of sign language is still not systematically developed including
in cultural contexts. As this convention provides states useful guidance where
there are gaps in understanding and attempts to tailor rights in the context
of disability, the Committee should pay attention to the facts on the ground.
A small reference to sign language may go a long way to helping deaf people
get the recognition they need to realize those rights.
The Chilean Deaf Organization supported the views of the World Federation of the Deaf. There seems to be a rejection of the needs of deaf persons because the Convention aims at protection the rights of all PWD. Deafness is a disability which affects communication and expression which are indispensable for conveying culture and the enjoyment of a citizen’s rights. As deaf language is a language separate from mainstream language it has its own intrinsic cultural value and endows identity. Particularly in developing countries as in Latin America there is no legislation on sign language, no oversight, and civil society organizations are not consulted on the effectiveness of formats used in published materials to guarantee access to culture and the right to communicate ideas. Often deaf people don’t know how to write well and there is a high rate of functional illiteracy. There are no financial mechanisms to pay for sign language interpreters which are essential for cultural expression. Recently sign language was introduced on Chilean television after a long court battle brought by deaf persons themselves. Sign language must not be excluded from deaf culture because is their only opportunity to correct faulty interpretations. The New Zealand proposal for para 3 is essential. Furthermore this provision has to be unequivocal. If it is relative, the rights will depend on goodwill and will not be ensured.
Korea Solidarity for International Disability Convention and Korea Association for the Deaf underscored the uniqueness of sign language, which is created by the deaf. When sign language becomes a language of mainstream society deaf people will be able to enjoy their rights. However society has developed around the language patterns of non-disabled people. This has created barriers to sign language. Many countries still consider sign language as an outdated communication pattern. Sign language has to be recognized as unique, as one of many languages on ‘an equal basis with others’ in para 3. It must clearly recognize the deaf as a linguistic and cultural minority. Specific measures to be undertaken by states to improve the situation with respect to sign language in their countries should be included in this convention. Paras 1 and 2 should call for assistance for hearing devices in addition to sign language. Furthermore, recognition of information accessibility and knowledge for the deaf has to be included in Article 19. Article 17.4 should be modified to read: ‘State Parties shall employ teachers with disabilities and teachers who are fluent in sign language or Braille’.
The Chair noted the issue of teachers with disabilities had already come up
in Article 17 and needs further reflection. Many delegations have called for
a strengthening of this article. Many had supported a split of this article
between culture and sport but there was also a lot of opposition to this suggestion.
What is clear is that at the very least these concepts should be separated
within the Article. Some stated that culture was broad and encompassed sport,
recreation and leisure. There was some support for the EU’s proposed
restructuring, particularly on (a) and 1(bis). Several suggestions were made
to insert language such as ‘on an equal basis with others’ where
there is enjoyment and application of rights, which have to be looked at as
well as the overlaps with other Articles. There were proposals to broaden the
scope of the Article to include tourism, and no one opposed this. Adding religion
was partly supported, some suggested to place it elsewhere, for example in
Article 13, and some opposed the inclusion. Reference to indigenous minorities
was supported by a number of delegations. Finally, the insertion of the ‘right
to play’ for children was supported. In 1(a) there were questions about
the phrase at the end although it is derived from the Standard Rules. Alternative
language was suggested: ‘for the enrichment for the community’.
Various proposals for 1(b), (c) and (d) were made, including for streamlining,
which was partly supported. Two issues in para 2 remain: the proposed change
to ‘copyright’, which some thought to be too narrow, and the reference
to ‘international law’, which was unnecessary in the opinion of
some since this assumption holds throughout the convention.
Para 3 was ‘extremely problematic’: many delegations wanted the
reference to deaf people deleted or to broaden the provision as no one should
be singled out for special treatment. Those in favor of the provision had a
strongly held view, not based on general principle as such, that there was
a need to refer to deaf people. The compromise formula proposed by New Zealand
gained reasonable support from those who had spoken strongly in support of
retaining the clause. The NHRIs suggest that as a practical matter a ‘small
reference may go a long way.’ In light of these statements the clause
should remain for the time being to be discussed further. The Committee should
not rush to delete a provision, which is so strongly supported by some. Proposals
were made to delete ‘mainstream’ in para 4(a); alternatively ‘disability
specific’ could be inserted in para 4(b). Also, ‘local’ levels
should be added to para 4(a) or a general reference to ‘all levels’ should
be made. The existing formula could be read to exclude the local level. The
issue of progressive realization will have to be dealt with generally. Some
suggested that there was a confusion in para 4(c), and the two concepts of
sporting venues and children should be kept separate. Any additional proposals
should be addressed to the Facilitator for this article from Thailand.
ARTICLE 25 – MONITORING
The Chair noted that this article only addresses a ‘national implementation framework’ because the WG did not have sufficient time for a detailed discussion. So a discussion on monitoring would be general. He pointed to footnotes 112-114 of the WG text. Delegations may want to take into account ongoing considerations for reforming the UN treaty body monitoring system, on which a representative from the Office of the High Commissioner provided an introduction.
The OHCHR cited several reform proposals: the report of the UN Secretary-General ‘In
Larger Freedom’ (http://www.un.org/largerfreedom/contents.htm); the statement
of the High Commissioner for Human Rights at the fourth inter-committee meeting
of human rights treaty bodies in June 2005 http://www.ohchr.org/english/bodies/icm-mc/docs/stat4thmeeting.doc;
and a new fact sheet on human rights treaty bodies (http://www.ohchr.org/english/bodies/docs/OHCHR-FactSheet30.pdf).
The High Commissioner’s statement highlights the human rights treaty
system as the cornerstone of the UN human rights framework. The reporting system
has proven positive and successful and has stimulated the creation of constituencies
to promote implementation of human rights. The treaty body system is the foundation
for increased human rights country engagement, a central proposal of the OHCHR
draft Plan of Action. This will enhance the OHCHR capacity to support governments
and national stakeholders to participate in the reporting process including
follow up on recommendations at the national level. The reporting system has
provided direct input into the development of new laws, policies and programmes
at the national level. This process serves as a platform for national dialogue
on human rights and an opportunity for public scrutiny of government policy,
both at the stage of report preparation and that of implementation of concluding
observations.
The problems of the reporting system, such as the untimely submission of country
reports, the part-time nature of Committee members’ engagement which
has created backlogs, and perhaps the greatest challenge, the gap between treaty
body recommendations and national implementation are well known. Improvements
that have been made to address these challenges so far include: coordinating
the working methods and activities of the treaty bodies, streamlining reporting
requirements, and developing guidelines for an expanded “core document” made
available to all 7 committees containing the basic information on each reporting
country.
The Plan of Action of the High Commissioner makes clear that these improvements
are not enough, particularly in light of the campaign for universal ratification,
a move that would further widen the gap between the capacities available and
the needs.
The recommendation of a unified standing treaty body will be discussed at an
inter-governmental consultation of states parties in July 2006. A concept paper
is being developed which will take into account: the current human and resource
requirements of the current system of 7 treaty bodies whose 115 members meet
for 57 weeks a year; the backlog of reports awaiting consideration and petitions
awaiting review; and the results of an online dialogue to be launched in October
2005. The paper will suggest a permanent body consisting of properly remunerated
qualified members most likely elected by states parties. Modalities in the
consideration of reports include civil society involvement and the possibility
of engagement in missions at the national level. A brainstorming session on
this paper will be held perhaps in May 2006, the results of which will be considered
at the above mentioned consultation of states parties.
A unified treaty body system would only be possible if all committees were
able to function in partnership, ensuring jurisprudential coherence and increased
visibility. Therefore responsibility for supporting the New York based Committee
on the Elimination of Discrimination against Women, the only human rights treaty
body supported outside of the OHCHR, should be transferred to this office.
The session was adjourned.
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