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Back to: Seventh
Session of the Ad Hoc Committee
Summaries of the Seventh Session
Original
MS Word version
Languages: French
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The Chair announced that the Committee would hear a statement from the UN High Commissioner for Human Rights, Louse Arbour. He noted that her office will have a key role to play in terms of monitoring and implementation of the convention.
The High Commissioner on Human Rights recognized the special contributions of Mexico, Ireland and New Zealand to the work of the Ad Hoc Committee. She reminded the Committee that, under the Secretary General, and with the endorsement of member states, the UN has embarked on extensive reform efforts to strengthen and protect human rights. Although the human rights system is meant to protect the rights of PWD, the existing mechanisms have failed in this regard, and it is time for the UN to remedy this problem. The High Commissioner noted her personal experience as a judge with regards to unique issues of PWD and her awareness that the UN itself has much to do in this area including improving facilities and methods of work. As attitudes are not geared to accommodating and respecting differences, there is much to learn and much to change. This new treaty will affirm the rights of PWD explicitly, spell out specific action needed and raise the profile of disability throughout the UN system. A paradigm shift is needed to eliminate discrimination against PWD and to ensure reasonable accommodation. The High Commissioner encouraged the Committee to ensure that nothing in this treaty can be interpreted as setting a lower standard of treatment than in other core treaties. States bear the primary responsibility in the elimination of discrimination, but all organs of society must also acknowledge their own responsibility. She also recognized the particular needs of children as subjects of rights and appreciated the efforts to take into account the needs of women and the multiple phases of discrimination they face. There are stereotypes and barriers which bar access to education and employment. All rights, not only in public sphere, but also in dealings with society and in privacy of homes and personal relations, must be protected. She referred to the problem of resource constraints and acknowledged that implementation of the treaty may imply considerable costs. In many cases, the efforts of states will be progressive and proportional, linked to the availability of resources. However, some rights impose immediate obligations and states must honor those, regardless of whether they are classified as civil, political, economic, social or cultural rights. States must also ensure that the allocation of resources is not discriminatory in intent or effect. Wealthier states will be held accountable to a higher level commensurate with means and capacity, but progress needs to be made everywhere. The concept of reasonableness is a well known legal right and in the adjudication of human rights. It can be similarly employed with respect to the extent to which states employ economic, social and cultural rights. These goals are not necessarily achievable immediately, but they remain achievable. The High Commissioner acknowledged that it is attitudes, rather than resource constraints, that prevent the progression of the rights of PWD. The legitimate resources debate should not limit ideological change.
On the subject of monitoring, the High Commissioner noted the impressive level of participation not only by civil society but also by national human rights institutions. She encouraged all delegates to ensure that this treaty strongly reflects the need for strong protection machinery at the national level. Regarding international monitoring, she encouraged delegates to engage in serious efforts to improve the functioning of the existing human rights monitoring bodies. She noted that reform is not something that occurs overnight, but because of the complexity and challenges, it needs the full engagement of all parties. Any monitoring mechanism created by this treaty should reflect the best practices of the exiting system. It must provide for informed national reflection on the enjoyment of human rights, provide useful guidance to states, promote international cooperation, and facilitate full participation of those whose rights are in question and effective remedies for those whose rights are violated.
The High Commissioner concluded by welcoming the excellent cooperation with her office by DESA. She assured delegates that she is committed to awareness of the challenges faced by PWD, and her staff will continue to keep her informed of progress.
The Chair thanked the High Commissioner for her statement.
Article 30 – Participation in cultural life, recreation, leisure and sport (continued)
The Chair noted receipt of proposals from Kenya (http://www.un.org/esa/socdev/enable/rights/ahc7kenya.htm) and the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc)
New Zealand supported Article 30 in its current form. It asserted that it is vitally important to retain paragraph 4 in recognition of cultural and linguistic independence, in particular the reference to sign language and deaf culture. People who use sign language form a unique linguist minority. People who use sign language, or any language that is different than the national language of their country, struggle to maintain cultural and linguistic identity. This issue must be addressed in Article 30.
Austria, on behalf of the EU, did not support the IDC’s proposal to 30(b), noting that “all accessible formats” would include all the categories in list added by IDC. In 30(3), it suggested replacing “intellectual property rights” with “copyrights.” It did not support IDC’s proposed new paragraph 30(4) bis on indigenous persons, arguing that this would open the discussion of special groups, which are already addressed in other articles. The EU supported the IDC proposal to 30(5)(a), but suggested that it be added before “mainstream.” In 30(5)(b), it agreed with adding “equal,” but suggested that adding “full” in 30(5)(c) may be too extreme and other wording should be found.
South Africa proposed replacing “equitable basis” with “equal basis” in 30(1). In 30(1)(a), it proposed adding “equal” between “enjoy” and “access”. In 30(2), it proposed adding “to create equal opportunity” after “take appropriate measures.” In paragraph 3, the emphasis on regulations to protect intellectual property rights must be clarified. In paragraph 5(a), it suggested deleting the words “to the fullest extent possible.” South Africa proposed moving paragraph 5(d) to the Article 24 on Education or possibly an article on children if one is added. It suggested adding 30(1) “bis” to address the participation of PWD in the media and to encourage state parties to represent the diverse positions of PWD in society and to reduce stereotypes in the media. PWD should be portrayed as people first.
Australia proposed that “all accessible formats” in 30(1)(a) and (b) be amended to “accessible formats,” noting that formats change over time. It supported others who were concerned about the interaction of States’ action and intellectual property rights under this convention. However, it was flexible about how these concerns might be addressed.
Mali supported the current drafting. It noted that 30(3) should protect artistic and intellectual property rights. It proposed adding in 30(4), that PWD “shall be entitled to protection of artistic identity.” In paragraph 30(5)(d), “school systems” should be replaced by “school environment.” Mali pointed out that a “system” is an entire system of education. An “environment” is the actual space where students receive schooling.
Canada suggested deleting the term ‘specific,” in 30(5)(d), noting that PWD should be encouraged to participate in mainstream sporting events. It suggested replacing it with “related” or just simply dropped from the text.
Jordan stated that 30(1)(a), 30(1)(b) and 30(1)(c) are all related and should be merged into a single subparagraph Regarding 30(4), any partial listing is problematic. Either more groups need to be added or “including sign languages and deaf culture” should be left out of the sentence. The term “on an equal basis with others” is already mentioned in 30(5), therefore it does not need to be repeated in 30(5)(b). The language in 30(5)(e) and 30(5)(c) could be combined into a single subparagraph addressing both venues and activities.
Islamic Republic of Iran supported Jordan’s proposal to merge the subparagraphs in 30(1). In 30(4) a reference should be added regarding national cultural and linguistic identity. This would be in addition to disability specific culture and identity. It proposed replacing “appropriate” with “adequate” before “resources” in 30(5)(b). Regarding 30(5)(d), the delegate questioned the rational behind adding “including those in the school system” in this sub-paragraph. Children in school systems have better access to recreation and sports than those who are not in school.
Syrian Arab Republic proposed that “Enjoy access to” be changed to “Have access to” in each of the subparagraphs in 30(1). It did not support Canada’s proposal to delete “all” before “appropriate measures” from 30(1) or to add a reference to “related rights” after “intellectual property rights” in 30(3). It commented that “including sign languages and deaf culture” was missing from the Arabic text and should be incorporated until a decision is taken regarding its ultimate inclusion or exclusion from the convention text. It supported the Islamic Republic of Iran’s comments regarding a reference to national culture and identity. It did not support Canada’s proposal to delete “disability specific” in 30(5)(b). It suggested that 30(5)(d) be moved to the article on children with disabilities.
Kenya proposed that the term “while respecting the provisions of international
law” in 30(3) be deleted. This would restrict the ability of developing
countries to provide certain accommodations, such as Braille. In paragraph
30(5)(a), it supported South Africa’s proposal to delete “to the
fullest extent possible” be deleted.
Yemen noted China’s question regarding the reference to “cultural
materials,” and stated that China’s confusion might stem from
the close relationship between cultural materials and cultural means. It
noted that, within the context of the convention, “cultural materials” should
be understood to include materials “by which culture is produced” or
which “encompass culture.” With respect to the mention of “sign
languages and deaf culture” in 30(4), Yemen questioned whether there
really exists “a deaf culture that is only particular to the deaf and
is different from their social and national identity?” It noted that “Culture
in its well-known concept is a form of daily life practices within the framework
of society.” Clothing, for example, is part of both personal and national
identity. Yemen asked “Are we saying that the deaf should wear different
clothes?” If there is an actual “deaf culture,” this implies
a society within society. Based on this, either the reference to “deaf
culture” should be deleted or the idea of national culture should be
incorporated into that concept. Yemen reiterated that no particular identity
is created as a result of a disability and that a disability does not entitle
anyone to their own culture. However, the reference to “sign language” should
be retained, as this is a right.
The Chair stated that the subject of deaf culture had been discussed extensively in the past. Understanding that “deaf culture” is a term of art, he asked the President of the World Federation for an explanation and clarification on the issue.
The President of the World Federation for the Deaf stated the concept of deaf cultures is being researched in several universities around the world, similarly to the many minorities and cultures. Deaf culture is defined in different ways. One definition suggests that deaf culture is based on the use of vision, which is used by deaf persons far more than by hearing persons and is the basis for using sign language. There are particular patterns of behavior, including eye contact and other traits, behaviors, gestures and customs that comprise a deaf culture. Cultural elements are passed on from generation to generation via sign language. According to another definition, deaf culture has five components: language, values, traditions, norms and identity. Deaf people also have their own history which is different from that of mainstream society of a particular country. It is said that a deaf person living in a particular country learns the culture of that country through their own experience and communications. Another important issue in deaf culture is art. It is very significant for deaf people to have sign language theater, sign language art, sign language literature, sign language singing, sign language poetry, etc. These are part of cultural expression for the deaf community. The WFD also noted that the aspects of deaf culture are embedded into the culture of nations. This has nothing to do with clothing, but with patterns of behavior and communications that are part of the deaf person and actually provide deaf persons the means and the basis to be part of society in general. It is therefore crucially important that linguistic and cultural identity of the deaf be recognized.
The Chair thanked the World Federation for the Deaf for its clarification.
Mexico supported the text as written and reflected all of the necessary substantive elements. It noted that the question of specific populations would be dealt with later after the facilitators had finished their work. Mexico welcomed the inclusion of the subject of tourism, as it had promoted this proposal during other sessions.
Morocco supported Jordan’s suggestion to delete “on an equal basis with others” in 30(5)(b). It also supported in 30(5)(c) the idea of including tourism services and moving 30(5)(d) to the article on children.
Norway support the text as presented. It supported rephrasing 30(3) to avoid conflicting with other international commitments on intellectual property rights. It did not support the IDC proposal for 30(4)(bis) to include indigenous people, as it did not favor bringing in another specific group. It supported Canada’s proposal to delete “disability specific” in 30(5)(b).
Nigeria supported merging 30(1)(a) and (b), but noted that the Committee must be mindful of not losing substance. Paragraphs 30(5)(c) and (d) could also be merged. It supported moving 30(5)(d) to the article on children. Nigeria agreed that the reference to international law in 39(3), as this will create implementation restraints.
The Russian Federation agreed with other delegations that “all appropriate measures” in 30(1) and 30(1)(b) is excessive and that “all should be deleted. It expressed concern regarding the use of the term “recognition” in 30(4) as it relates to cultural and linguistic identity. This might cover a whole range of legislative consequences and should therefore be tackled in a different way. However, the Russian Federation supported the use of the word ‘support,” noting that it presupposes a certain level of recognition. It noted that this paragraph applies to a right to which the concept of progressive implementation would apply. “Recognition” further complicates this matter as well. It recognized the importance of the concept of deaf culture in 30(4) but expressed its flexibility regarding whether it should be deleted. Regarding 30(5)(d), The Russian Federation supported retaining the paragraph, noting that the decision to include a separate article on children had not yet been resolved and that, if there is eventually a separate article on children, it should not be overburdened with language from other articles.
United States supported the spirit of Canada’s proposal regarding intellectual property rights; the text should reflect appropriate provisions regarding these rights.
Islamic Republic of Iran noted that, while appreciating the explanation from the World Federation of the Deaf on deaf culture, it supported deleting the reference to deaf culture in 30(4). It explained that a comprehensive convention must address issues related to all PWD.
Lichtenstein supported streamlining of the text, especially in 30(5). In that case, the concepts of both mainstream activities and disability-specific activities should be retained if possible. The substance of 30(3) is already covered the context of the article on accessibility and may not need to be raised here.
Yemen asserted that the idea of particular cultural identity could be incorporated into “national legislation.” It noted that in Yemen, they do not have any minorities; deaf and blind people observe their mainstream culture. It agreed with the idea that “culture” is behavior and traditions, as expressed by the World Federation for the Deaf. Yemen reiterated its proposal to either delete reference to deaf culture or to incorporate the word “national.”
Jordan stated that, from a sociological point of view, there is no problem including subcultures in the text. Many countries have subcultures, which may stem from modes of communication and interaction. They may exist as long as they do not interfere with national culture. The two merge naturally and should not need national legislation.
IDC referred delegations to its written proposal and outlined the changes reflected. It noted that it proposed adding the list in 30(1)(b) because PWD are forgotten with the development of new technologies. Moving 30(3) to Article 9 on Accessibility is justified by the fact that this relates not only access to cultural material; copyright also applies to educational and information materials. The IDC shared the worries of South Africa and Kenya that the international copyright laws will become so strict that it may become very difficult to obtain Braille translations. With respect to its added 4(bis), IDC proposed ensuring that indigenous peoples and other minorities are included in this convention.
The next speaker from IDC offered further justification for the inclusion of deaf culture in 30(4). Sign languages around the world continually experience discrimination and thus deaf cultures have not been able to flourish and be visible. In industrialized countries, sign language is used more and more in various forms of art. In other countries, its use is not yet to that level. Without the opportunity to enjoy their own culture, deaf persons will not be able to enjoy the national culture. Linguistic and cultural identities must be included as human rights.
Qatar asserted that there is no particular culture for PWD. There is no difference between that culture and society in general, however mainstream culture can be conveyed through sign language. Qatar did not support adding other rights after intellectual property rights.
IDC noted that the current language on tourism does not incorporate the dual nature of the industry concerning the service provider and the service user. Only service users are addressed in the text. Additional language should be added to include service providers and market participation. Tourism is one of the largest industries, and it is critical to ensure equal protection and opportunity to participate on both sides of the industry. The Committee should reflect a rights-based approach to tourism policy. IDC noted that specific reference to the right of women and girls to equal enjoyment of sport and recreation. In the sports world, women and girls are already often excluded on the basis of their gender. International women’s organizations have lobbied specifically on this point. There is evidence throughout international law that both a mainstream and a gender specific approach is needed to ensure equality and this should be reflected in this convention. IDC did not support moving 30(5)(d) to the article on children. It supported retaining the reference to disability specific activities in 30(5)(b), which is different from access to mainstream sporting activities. It added that it is important to use uniform language in throughout 30(5) regarding all physical realms – sports, physical and leisure.
The All Russian Society of the Deaf supported the comments of the World Federation for the Deaf. It asserted that there is widespread recognition of the existence of micro-groups, which are linked by a network of cultural and other relations. Deaf people have been recognized as a minority with Russian culture. Sign language is a highly structured linguistic system. Deaf people identify themselves as members of society and have their own lifestyle as a sub-group in society, for which sign language is a key to their culture. Sign languages have an emotional shading; deaf people express their view of the world through art and creation. Through sign languages they can study texts of poems, songs, etc. In Russia, there is a tremendous theater for mime and sign language users, literature has been developed by deaf authors, expressing the unique culture they belong to. There are also many magazines and newspapers serving deaf people, and a number of sporting organizations where only deaf people are involved. The Committee must reach a balanced solution to the question of including deaf culture in the convention.
The Chair summarized the discussion on Article 30:
• He noted Mexico’s comment that this draft of Article 30 reflects
all of the substantive elements on this topic and asserted that this reflected
his sense of the meeting as well. Virtually all of the proposals with regard
to this article were of a drafting nature and the Chair, concerned about reverting
back to the practice of detailed linguistic proposals, urged delegates to focus
on the essential, substantive aspects.
• In 30(1), there were several proposals regarding the chapeau but, on balance
most were reasonably satisfied in the text as written.
• In sub-paragraphs 30(1)(a), (b) and (c), there was a proposal to replace “enjoy” with “have,” though
this was not widely supported. The Chair noted that “enjoy” is used
in other parts of the draft convention. The concerns could be a linguistic issue
in some languages, and the Chair encouraged informal discussion if concerns persist.
• Suggestions to delete “all” in 30(1)(a) and (b) were reasonably
well supported, as many felt this to be too broad given the language in the chapeau.
• The proposal to replace “on an equal basis” with “on
an equitable basis” was not taken up by other delegations. The Chair noted
that the convention has used “equal” elsewhere, and “equitable” is
actually narrower.
• Regarding 30(3), there was a proposal to replace “intellectual property
rights” with “copyrights.” This was also not taken up by others
and had been debated in the past. “Intellectual property rights” is
broader than “copyright,” and seems to be the preference.
• There were several references to respecting provisions of international
law. This had been debated before and proved difficult to resolve. Clearly, all
provisions of this convention must respect international law. The concern seemed
to be that the WTO, and in particular the Tripps Agreement, create unreasonable
barriers. The Chair noted that Article 13 of the Tripps Agreement does allow
for limitations and exceptions to copyright restrictions. The reference in the
text should therefore remain, although it may require recasting to reflect the
flexibility of the law in some cases.
• Regarding 30(4), the text was reasonably supported with the exception
of the language at the end regarding sign languages and deaf culture. The Chair
urged those with differences to consult further to come up with alternative language
that acknowledges the issues important to the deaf community but that does not
cut across the desire of other delegations in terms of diminishing national identity.
There was a proposal to insert “national” in this phrase, but the
Chair stated that he was not sure how it would work. However, if it is a potential
solution, it would be welcomed. He also noted that the proposal to expand the
concept to include “artistic identity” would not seem to resolve
the issues.
• There was a proposal in 30(5)(a) to remove “to the fullest extent
possible,” and to add “access to recreational and leisure activities” but
neither drew much support.
• 30(5)(a) was specifically drafted to encourage participation of PWD in
mainstream sporting activities. That is offset in 30(5)(b), which refers to disability-specific
sporting and recreational activities. There was however a proposal to remove “disability-specific.” As
the Syrian Arab Republic noted, this was extensively discussed in the past, and
there was a good level of support for retaining that wording.
• There were some proposals to 30(5)(c) and (d) that were not taken up.
There was also a concern that 30(5)(d) limited the scope of the provision to
children in school. The Chair questioned whether referring to “activities
in the school system” rather than “[children] in the school system” would
address this issue.
• There was a proposal to move 30(5)(d) to an article on children or education.
The Chair noted that there had not been a final determination on whether there
will be a separate article on children. Another proposal to move it to the article
on education was not widely supported. Therefore, the Chair proposed that it
should be retained in Article 30 for the moment.
• Several proposals for restructuring parts of the article had not generated
broad support.
Special presentation by Chile
Before moving on to Article 31, the Chair invited Chile to present a brief video presentation on the involvement of PWD in the political and electoral process.
Chile explained that the 30-second presentation was created by PWD in order to promote the right to vote for PWD. This video was shown on several channels in Chile before the election of its first female President two weeks before.
Article 31 – Statistics and Data Collection
The Chair noted that proposals had been received electronically
from Kenya (http://www.un.org/esa/socdev/enable/rights/ahc7kenya.htm), Austria
on behalf of the EU (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7eu1.doc),
and the IDC(http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7widc1.doc)
The Chair noted that past discussions had yielded a clear consensus that this
article should be included in the convention and that it is a brief, straightforward
article.
Jordan noted that Article 31 is limited in its spectrum. There is not only a need for data collection, but also to cover the receipt and movement of data. It proposed deleting “where necessary” in 31(1). It suggested adding the concept of methodological principles to widen the spectrum of beyond simply collection of data and to encompass the issues of research, evaluation and movement of data.
The Russian Federation supported Article 31 as written except that it supported the EU proposal to replace “should” with “shall.”
Chile supported changing the title of the article. Data collection reflects the methodological aspect but does not address research and other components. It noted that the article should include a gender perspective and that data collection standards should be broken down by gender, although it recognized that gender issues would be discussed at a different time.
Islamic Republic of Iran stated that statistics and data collection are not useful just for the assessing the implementation of the convention, but should also assist in assessing the implementation of the relevant national laws and regulations. It therefore proposed adding after “implementation of” the words “relevant national laws and obligations as well as” in 31(2).
Yemen proposed deleting “where necessary” from 30(1). Data collection should not be limited. It agreed with Jordan that research should be addressed in this article.
Uganda stated that the article should reflect the need to consult PWD in data collection. It noted its experience in which PWD were not consulted and the resulting data did not reflect the reality of PWD. It proposed that the end of the chapeau to 30(1) be amended to read “The process of collecting and maintaining data shall be undertaken in consultation with persons with disabilities through disabled peoples’ organizations and should:”
The Chair noted that a consultation provision had been included but was moved to Article 4(3) on General Obligations.
Austria, on behalf of the EU, reiterated its support to replace ‘should” with ‘shall” to strengthen the whole paragraph. It agreed that the consultation provision was well placed in Article 4(3).
Japan supported the concise text of Article 31. However, it proposed replacing “including legislation on data collection” with “on an equal basis with others” in 31(1)(a).
Serbia and Montenegro supported replacing “should” with “shall” in the chapeau. It supported the IDC’s proposal to delete ‘shall also be used” in 31(2). It also supported the inclusion of a gender perspective, pending the final decision on this issue. It reserved its position on Japan’s proposal to 30(a), which it noted had some merit.
Kenya recommended the deletion of “where necessary,” in 31(1) as it may provide an excuse for states not to collect information regularly. It supported IDC’s proposal for a new 31(4).
Canada proposed that “disaggregated where necessary” should be added after “shall be” in 31(2). This proposal was based on advocacy from the disability community in Canada, which has urged the disaggregation of data in order to use information effectively.
Mexico supported Yemen’s proposal to delete “where necessary” in 31(1). It also supported Canada’s suggestion regarding disaggregation of data, noting that there is a need for aggregation by gender and by disability. It was flexible in terms of precise language.
Libyan Arab Republic agreed with Jordan that it is very important to add the concept of research to this article. It supported deleting “where necessary” in 31(1).
The Chair commented that he did not recall hearing specific language on Jordan’s proposal regarding research. Jordan stated that it would provide language regarding research and research ethics. The Chair stated that it would have to be addressed at a later date, after language had been provided and delegations given time to review it.
Jamaica stated that the article as drafted already covers research ethics. However, the matter of methodological soundness is not referred to directly and Jamaica asserted that this is not something that can be taken for granted. It therefore suggested replacing “ethical principles of statistics” with “research ethics and scientific approaches” in 31(1)(b). Regarding disaggregation, Jamaica stated that if research is appropriately undertaken, data would be disaggregated based on national requirements or the purpose of the research. It may not be good to single out one specific data point. Gender is important, but it certainly will not cover everything. It cautioned against being too specific. Regarding Jordan’s proposal for a reference to research, Jamaica suggested that “statistical data” be amended to “statistical data collection and other forms of research” in 31(1). This would cover both quantitative and qualitative data.
New Zealand supported the text as it is. Though a degree of sophistication and detail is important to facilitate implementation, the Washington Group on Disability Statistics (http://unstats.un.org/unsd/methods/citygroup/washington.htm) is working specifically on the development of international standards in this area. The result of its work will inform this provision, and it would be pre-emptive to attempt to settle the matter here. New Zealand suggested that it would suffice to refer to internationally accepted norms as outlined in 31(2). It supported the IDC suggestion for a new 31(4). It preferred that the concept of research be discussed in the context of Article 4 on General Obligations.
Syrian Arab Republic supported Japan’s proposal to add “on an equal basis with others” to 31(1)(a). Regarding 30(2), it would provide comments once language had been proposed.
International Labour Organization (ILO) supported the inclusion of respect for privacy and respect for fundamental freedoms, but stated that these subjects should be covered in Article 1 on Purpose. The article should also indicate that statistics facilitate the evaluation of policy and should also cover the dissemination of data, including publication and making data and data sets available to users, since this is one area where confidentiality and privacy should particularly be ensured. ILO proposed that “process” be replaced by “system” in 31(1), as this is more comprehensive. In 31(1)(b) “norms “ should be replaced by “standards and procedures,” which includes standards, guidelines, recommendations, etc. on statistics adopted under the auspices of the relevant international bodies. ILO noted that 31(2) relates to monitoring, and should thus be moved to Article 33 or 34, with the addition of reference to the designation of a responsible institution.
IDC emphasized that statistics and data collection are very important in formulating policies that would flow from the Convention. It supported deleting “where necessary” in 31(1) and including a gender category. In addition, the categories of age, ethnicity and economics should be added. However, IDC did not suggest that data be disaggregated according to type of disability, as this would have no value unless accompanied by descriptions of each type of disability. IDC stressed that data should be used only to facilitate and evaluate implementation of the convention. IDC expressed concern about the use of statistical indicators that presuppose a lesser value of the lives of PWD. Such indicators can and have been used to discriminate against PWD in terms of accessing health services and other services. Dissemination and access by PWD to data collected – including in accessible formats – should be stressed in this article.
The Chair closed the morning session.
Article 31: Statistics and data collection (continued)
The Chair summarized the discussion of Article 31 as follows:
• There was a good level of general support for the text of Article 31
and a number of proposed changes.
• There was a proposal to include the subject of “research” in
the article, for which Jamaica had suggested language.
• There was unopposed support to delete “Where necessary” from
the beginning of Article 31(1), and similar support for changing “should” to “shall” in
the same paragraph.
• Several delegations had suggested including language “on an equal
basis with others” in 31(1)(a), though the Chair expressed uncertainty
about how that language would fit.
• There was a reasonable amount of support for adding the disaggregation
of statistics to Article 31(1)(b). In discussion, some proposals regarding the
addition of specific categories were made, but had not gained strong consensus.
The Chair suggested that “disaggregated as appropriate” would cover
the critical ideas without adding unnecessary detail.
• There were proposals to change the way the article references research
ethics and the scientific approach and the Chair suggested informal consultations
on this point.
• Regarding Article 31(2) the Chair noted the suggestion to add a reference
to the purpose for which information is collected and another proposal to expand
the paragraph to refer to the implementation of the national legislation of States
Parties. On balance, however, there was support to maintain the language of the
article as is.
• There was a reasonable level of support for adding a new 31(4) about the
dissemination of statistics as proposed by the IDC.
Article 33 – National implementation and monitoring
The Chair drew attention to a document on the Enable website (http://www.un.org/esa/socdev/enable/rights/ahc7discussmonit.htm) on monitoring mechanisms and clarified that it was not (as originally titled) a text proposed by the Chair, but a discussion text presented by the Chair, containing elements drawn from the Office of the High Commissioner for Human Rights (OHCHR) and others. He noted that the document would be re-titled to reflect this. The Chair stressed that the document [hereinafter “Chair’s discussion text”] was being presented simply for the purposes of discussion. It was not a proposed revision or a new proposed text of any kind. He noted that the EU (http://www.un.org/esa/socdev/enable/rights/ahc7contgovs.htm) and IDC (http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm) had submitted proposals on Article 33.
The Chair noted the existence of valuable models in international monitoring, drawing specific attention to the Optional Protocol for the Convention Against Torture (CAT), from which elements had been drawn in the Chair’s discussion text. He noted that a number of components must be addressed in Article 33, including the establishment of a national monitoring mechanism, its independence, ensuring the qualifications of its experts, the precise role of a national monitoring mechanisms, associated rights regarding access to information and its right to have contact with the international monitoring body, confidentiality of information, and protection from intimidation, pressure and abuse. The Chair noted that these and others are standard elements of monitoring mechanisms, available for consideration in the text presented by the Chair and from the presentation given by the OHCHR. He called for consideration of these elements for inclusion.
Austria on behalf of the EU, noted that it’s proposals were related to the working text. It preferred to substitute the language from 33(1) with language from Article 24 of CEDAW and also had a proposal for 33(2) that related to changing the framework to an independent mechanism. However, Chair’s discussion text would require discussion within the EU group.
Costa Rica put forth a number of guidelines of a monitoring system, including a committee to verify implementation or compliance with the obligations of the convention and a norm referring to implementation or national compliance. It stated that it was not necessary to establish a mechanism whereby states mutually accuse one another, as such a system is neither positive nor historically effective. Costa Rica proposed to vary the monitoring system from one based on self-reporting to “reverse reporting” – with reports submitted not by governments but by the monitoring committee, which would submit a series of issues to be investigated by the state. This system would be a logical result of the best practices of existing committees and lessons learned from what has not worked in the past. Costa Rica stated its intention to submit a text reflecting its position on the Chair’s discussion text.
The Chair noted that the discussion had moved to international monitoring and invited colleagues to discuss the issue, which is interrelated with national monitoring.
Australia stated general support for the original text of Article 33 with minor amendments relating to the participation of civil society. 33(3) refers to civil society’s full participation at all levels of the monitoring process. While that is a worthwhile objective, in reality it may be too resource intensive and unrealistic. Australia expressed reluctance at the level of prescription in the Chair’s discussion text, noting the need for a convention that is both effective and possible for states to ratify. The delegate urged caution against devising a system for national monitoring that would not leave room for the international mechanism to do its work. It added that it is difficult to conclude discussion of a national monitoring body without knowing the outcome of discussions of the international monitoring mechanism. It expressed general support for human rights institutions and civil society’s involvement therein.
New Zealand stated that it could support Article 33 as written, supporting the lack of prescriptive detail. However it would have to further consider the Chair’s discussion text.
Mexico stated that a monitoring mechanism must be a strategic section of the convention and that it is intertwined with international cooperation. As a model for coordinating international and national levels it pointed to the Optional Protocol to the Convention against Torture, which stipulates time frames, professionalism, independence, confidentiality, and sufficient resources for monitoring mechanisms.
Serbia and Montenegro supported Austria’s statement and agreed with Australia that the Chair’s discussion text was too detailed and restrictive for a convention, as much of it is drawn from an optional protocol. It expressed support of the participation of civil society, and particularly PWD, in the monitoring process.
The Chair apologized for the unexpectedness of the text he had presented but appreciated the discussion it had initiated.
Japan joined Austria’s support for Article 33 and asserted that each state must have discretion to develop its own national monitoring mechanism. It agreed that the language in the Chair’s discussion text was too prescriptive, stating that the language in the working text was sufficiently detailed and stressing the importance of an effective national monitoring mechanism.
Yemen strongly supported the wording of Article 33 but underscored the need for effective follow-up to ensure proper implementation of the convention. In 33(1), “focal point” should be replaced by “independent commission.” Yemen proposed adding a fourth paragraph to the article: “The commission shall present periodic reports to the government to emphasize the degree to which the present convention has been implemented.”
Austria on behalf of the EU stated that it could not comment on the text presented by the chair before further study. It believed, however, that the overall approach of a monitoring body on the issue of torture would necessarily differ from one regarding disability. The EU asserted that the article on national monitoring mechanisms should not be too detailed.
The Chair reiterated that the text he presented for discussion was not an official proposal and that delegates were correct in referring back to Article 33 of the text. He confirmed that article should not become too prescriptive. He agreed with Japan’s statement that a national monitoring mechanism must be effective, noting that states will have to demonstrate this to the international monitoring mechanism.
Norway also supported Article 33 as written, supporting a focal point within government, a framework for the independent mechanism (as stated by the EU), and the participation of civil society. It agreed that the Chair’s discussion text appeared to be too detailed.
Canada supported the comments of Australia, Serbia and Montenegro, Japan and the EU, stating the need to examine the Chair’s discussion text more closely and expressing a preference for something shorter and less prescriptive. Like Australia, Canada expressed the need for the article to be flexible enough to accommodate the diversity of different national systems, including federal systems such as that in Canada. It expressed particular support for 33(3) regarding the participation of civil society, particularly PWD and their representative organizations.
Chile asserted that Article 33 contained all of the critical elements for a national monitoring process. It supported more discussion of civil society’s involvement in the overarching monitoring process and expressed support for adhering to the Paris Principles as closely as possible, especially regarding periodicity of monitoring.
South Africa agreed, in principle, with Article 33 and observed that monitoring mechanisms must develop indicators to track the progress of implementation. It stressed the importance of an early warning system and the dangers of self-reporting by states, which must be internationally monitored. It called for focal points rather than a single focal point, as monitoring should happen at all levels of government. To that end, it also recommended requiring intra- in addition to inter-governmental monitoring, explaining that monitoring is needed between levels of government and across governmental departments or sectors. It suggested adding language to 33(2) language regarding the mainstreaming of the rights of PWD in monitoring and evaluation systems.
China stated that each country should be able to decide on an effective and practical monitoring system. It stated that Article 33 provided a good basis for national monitoring and agreed that the Chair’s discussion text was too prescriptive. China noted that the Chair’s discussion text was very different from the monitoring mechanisms discussed during the 3rd session. It stated that, because discussions regarding international monitoring and international cooperation were still ongoing, it would need more time to study the issue.
Indonesia echoed the opinion that the Chair’s discussion text was too prescriptive and that national monitoring mechanisms need flexibility and discretion. It agreed particularly with the concern of the EU that the text was drawn from an CAT optional protocol, which deals with a very different issue. It further noted that this is an optional protocol to which few states have yet become parties. It agreed with South Africa that the article should specify focal points rather than a single focal point. It supported the inclusion of civil society, NGOs and human rights institutions in the processes of consulting and monitoring of implementation. It stated that it would reserve its final support of the article pending the resolution of discussions on international cooperation.
Uganda noted that, while it agreed that the Chair’s discussion text was too detailed, it appreciated that its intent was to generate discussion, which it had successfully done. It emphasized the need for a gender perspective in monitoring systems and strongly supported multiple focal points within government. Monitoring must span across the government, not simply be concentrated with the central ministry.
Jordan asked for clarification of the relationship between 33(1), which appeared to relate to implementation, and 33(2), which addressed monitoring. Regarding implementation, as addressed in 33(1), it supported the establishment of an diverse body, including government, the private sector and civil society, as opposed to a focal point within the government. With respect to monitoring, as addressed in 33(2), Jordan stated that it should focus on monitoring only and avoid the references to implementation, which create confusion. It noted inconsistent terminology between the two paragraphs, in that one refers to implementation of “the present Convention” and the other to implementation of “the rights recognized in the present Convention.” It proposed adding in 32(2) the element of “evaluation,” which would be the result of the monitoring. Jordan stated that, although the Chair’s discussion text was extremely detailed, elements from it could be incorporated in Article 33.
United States preferred the approach of Article 33 to the Chair’s discussion text, but noted the EU’s proposal concerning Article 24 of CEDAW as another possible alternative. It concurred with South Africa and Indonesia on the need for multiple focal points, noting that different agencies deal with different subjects, such as justice, employment, education, etc. Regarding 33(2), the US suggested adding language addressing states or other sub-federal units and asked for clarification on the EU’s mention of an “independent mechanism” versus a “framework.” The US supported the word “framework,” believing that an “independent mechanism” would be inconsistent with multiple focal points. Regarding Australia’s comment on the involvement and participation of PWD, it noted that in the US system monitoring is spread throughout different departments and suggested that the article might be reformulated to take into account that practical point. The US stated that it preferred to discuss national and international monitoring and international cooperation as a whole package, due to their interrelated nature.
Russian Federation stated that the Chair’s discussion text contains elements that deserve serious study. It noted that without effective national monitoring mechanisms it is impossible to discuss international monitoring and supported the language “framework of government” for 33(1). It suggested formulating 33(1) in a more general way to allow states more freedom, perhaps specifying a “national mechanism” instead of the “national level,” as this would be more useful for federal systems. It drew attention to the third line of 33(2) and supported expanding the scope of the language to include parts of the Convention not specifically described as “rights,” perhaps stating “to monitor the implementation of the present Convention” instead. It strongly supported the involvement of civil society in national monitoring mechanisms and stressed the importance of involving PWD on a systematic and not an ad hoc basis. It suggested rewording the paragraph to that effect.
Jamaica recognized the Chair’s discussion text as a useful tool for discussion, noting that it indicates a number of principles essential to a monitoring system, including functional independence, the competence of the persons involved, broad-based representation, and a systematic approach. It would be useful to introduce these principles to Article 33 – for example, at the end of 33(2). Jamaica warned against allowing concern about being too detailed to interfere with the objective of establishing a strong and effective monitoring system.
Kenya broadly supported the text of Article 33 and suggested that the phrasing of 33(1) deal with an implementation mechanism at a national level and multiple focal points. It supported moving “promote and protect” from 33(2) to 33(1), so that 33(2) would be focused exclusively on monitoring. It suggested 33(2) focus on independent and autonomous frameworks to monitor implementation at a national level. Kenya supported the use of “mechanism” rather than “framework,” which might be interpreted as limited to law and policies, pointing out that in Kenya and the surrounding region, the vast majority of the population does not have access to the court system. It also supported the inclusion of civil society, in particular organizations of and for PWD, in all levels of implementation and monitoring, noting that the current text appears to limit their participation only to monitoring.
Islamic Republic of Iran stated that national monitoring mechanisms are more important than international monitoring mechanisms, as it is the national mechanisms that are the subject of international monitoring. Overall it observed that the Chair’s discussion text was very prescriptive and much of it was unnecessary. It noted that one national level mechanism should be enough to cover all sectors of government. Iran pointed out the Chair’s discussion text did not include the important role of civil society in monitoring and that this should be incorporated. It suggested that the role of the media in monitoring should be added to the article.
Brazil supported Article 33 as drafted and especially supported civil society’s involvement in all levels of monitoring.
Syrian Arab Republic noted that the lack of consensus on a number of elements in the convention made it difficult to for its delegation to express its concerns.
Yemen preferred to show flexibility so that states could develop their own monitoring mechanisms. These should include three components: follow-up on the application of the convention; involvement of NGOs; and a link between national and international mechanisms.
Jordan echoed the statements of Kenya regarding elements of the Chair’s discussion text that would enhance Article 33, such as independence and competence of a monitoring mechanism and broad-based participation.
The International Service for Human Rights and the IDC representative was pleased to see emphasis on national monitoring and noted three core components to an effective system. The first of these is the need for multiple focal points established at the very highest levels. Regarding the second component, ISHR/IDC noted that Article 33 calls for “due consideration” to the establishment of coordination mechanism, and asserted that this should be recast as an obligation, since having only a focal point or focal points can lead to the abrogation of responsibility at the broader government level. It referred to Rule 17 of the Standard Rules for guidance as to the functions of a coordination mechanism and called for inter-ministerial relationships and a strong civil society component, namely PWD and their representative organizations. It agreed with Brazil that the civil society component required strengthening in both Article 33 and the Chair’s discussion text and referred the Committee to the IDC proposal which contained language from the Bangkok draft. Thirdly, it supported an independent national “mechanism” rather than a “framework.” The representative emphasized the importance of compliance by the monitoring mechanism with the highest international standards, noting that the Paris Principles could be improved upon. ISHR/IDC concluded by stating that there should be a tight and formalized relationship between national and international monitoring mechanisms; it encouraged colleagues to study Article 11 of the Optional Protocol to the Convention Against Torture, which deals not specifically with torture but with the nature of the relationship between national and international levels of monitoring.
Amnesty International supported a strong approach to implementation and monitoring, especially the inclusion of national monitoring mechanisms as separate from and complementary to international monitoring. It suggested improvements to 33(1) and 33(2) as follows:
1. The strength of a governmental focal point depends on its status and mandate;
it must have the authority to foster intergovernmental coordination.
2. Focal points should be required to cooperate with the international mechanism,
particularly as regards periodic reporting, follow-up to and implementation
of recommendations emanating from the international mechanism.
3. The article should require states to create a broader, inclusive mechanism
(such as a national coordinating committee), not just give “due consideration” to
its establishment. Such a mechanism should include a forum for inclusive policy
evaluation and formulation aimed at strengthening implementation.
4. The concept of protecting, promoting, and monitoring by independent institutions
needs to be strengthened in Article 33. These institutions should be empowered
and adequately resourced to be effective. The provision should, at a minimum,
stipulate that national mechanisms should operated in accordance with the Paris
Principles.
National Human Rights Institutions stated that they had previously addressed international and national monitoring mechanisms and would not repeat their previous statements, but that NHRI were broadly in line with the IDC. They referred to texts presented to the 6th session of the Committee (http://www.un.org/esa/socdev/enable/rights/ahc6nhri.htm) . NHRI stressed that implementation and monitoring must be distinct institutionally and conceptually and agreed with Jordan that a separate article on implementation might clarify the focus. Regardless of its placement in the text, the provision(s) on implementation should include a reference to national action plans. NHRI appreciated the reference in the Chair’s discussion text to the establishment and functioning of National Human Rights institutions as they relate to national monitoring. They reiterated Jamaica’s point that monitoring mechanisms must be independent and systematic and supported the elements of the Chair’s discussion text that build on the Optional Protocol to the Convention against Torture, a recent and innovative model on which most national human rights institutions are constructed.
The Chair noted that the general view of the committee was that the Chair’s discussion text was overly detailed and prescriptive for the draft convention, but also observed that many found the approach of Article 24 of CEDAW too abbreviated. The overall thrust of the discussion was that the level of detail in Article 33 was appropriate as drafted. He reiterated the point that while international and national monitoring mechanisms are linked, they are also independent of one another. The Chair summarized the proposals to Article 33 as follows:
• There was good support for referring to multiple focal points in 33(1)
however some preferred only one. Therefore the Chair recommended the language “States
parties shall designate one or more focal points.”
• There was support for a clearer separation of implementation and monitoring
into two different paragraphs and this would be done.
• He also noted one proposal to delete 33(2) but that was not supported.
• There was discussion regarding the words “mechanism” and “framework” and
support clearly leaned toward using the word “mechanism” and furthermore
qualifying it as independent, autonomous, broadly based and systematic. The Chair
suggested the term “independent national mechanism” rather than “mechanism
at a national level” to address the needs of federal systems.
• The Chair noted the need for the language in 33(2) to include provisions
of the Convention that are not specified as “rights.”
• There was general consensus to maintain language concerning civil society
in 33(3), although the qualifier “at all levels” may be too prescriptive.
• As only one state proposed a fourth paragraph on reporting by the independent
mechanism, the Chair suggested that delegations concerned about that subject
should consult further on it.
• Other topics mentioned by states but not broadly supported included early
warning systems (although these are usually built into international monitoring
systems), development indicators, periodicity, and intra-governmental monitoring.
Draft Article 34 – International Monitoring
The Chair noted the committee had not yet had a discussion on which to base a proposed text on international monitoring and therefore there was no text on international monitoring in the working document. However, the Chair had prepared a discussion text identifying various elements drawn from previous discussions and also from the presentation by the OHCHR earlier in the week. He asked the EU if it had a proposed text on international monitoring.
Austria affirmed the existence of such a text but stated it was not yet on the website due to a minor question of phrasing currently being resolved.
The Chair noted an earlier reference to language from a Chilean document on monitoring and asked whether it had been circulated.
Chile replied that the document analyzes various existing international monitoring mechanisms and was delivered last year, stating that it was only a reference paper for purposes of discussion, not a formal position, and only available in Spanish.
The Chair noted that the IDC (http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm) and the National Human Rights Institutions (http://www.un.org/esa/socdev/enable/rights/ahc7nhri.htm) had submitted papers on international monitoring.
Australia stated that it supported the treaty body reform process underway within the UN system as an opportunity to capture the best practices of existing committees. It supported flexibility and avoiding too much prescriptive detail. Australia expressed particular interest in the option presented by the High Commissioner for Human Rights in which the monitoring body would pose questions to a state about its initial report and the responses to those questions would form the basis for the state’s next report. It noted that the wording in 39(2) in the Chair’s discussion text may too conclusive and be interpreted to mean that governments should provide information only on those issues identified by the Committee. Australia asked for clarification of Article 45 and 46 in the Chair’s discussion text, in terms of whether those articles would be mandatory or included in the “opt out” provisions. It asserted that these should be among the optional provisions.
The Chair noted that these would be optional, as reflected in Article 45, and acknowledged that this would need to be further determined and clarified in the related articles.
Yemen referred to the document presented by the OHCHR as it is linked to a previous convention whose international monitoring has been scrutinized considerably. It noted that in the 5th session there had been some discussion of international monitoring and that the subject matter of this discussion could potentially be used for a proposal. Yemen also emphasized the importance of preserving the link between national mechanisms and the international mechanism, and retained its right to put forward a specific text when ready to do so.
Serbia and Montenegro noted that its comments were preliminary. It agreed
with the intent of Article 38 but felt its specifics might be too prescriptive
at this stage. Like Australia, it could accept Articles 45 and 46 only as optional
provisions. Echoing Costa Rica, it stated that the interstate complaints procedure
(Article 47) has not worked well in the past and perhaps should not be included.
While it supported the concept of a disability ombudsperson, Serbia and Montenegro
was uncertain as to its appropriateness in the convention. It was also concerned
about resource constraints among civil society in terms of participating in
conferences of states parties.
Philippines asked whether the Chair’s discussion text should be approached
as a “menu” of possible options or a package wherein everything
should be included in the draft convention.
The Chair stated that the document is intended more as a menu and whether the
convention will contain all or some of its measures is a matter for the committee
to discuss. He noted that although delegations may not in a position to address
international monitoring in detail presently, he encouraged them to develop
positions on the issue as soon as possible as this subject should be addressed – at
least in a general way – during the 7th session. He noted general support
for the idea of an international committee to monitor implementation, which
leads to a number of matters that could be discussed, including the composition
of such a body, its mandate, how it should operate, procedures, opt-out versus
mandatory requirements, individual complaints procedures, etc. He stated that
addressing these issues in the current discussion would set the table for the
development of a draft text that reflects the general views of the group and
that could be discussed in detail at the next meeting.
The EU stated that its paper on international monitoring had been posted on
the Enable website.
The IDC suggested that the committee follow the model offered in the Convention
on the Rights of Migrant Workers and their Families, in which the membership
of the monitoring body increases with increases in ratifications of the convention.
It urged states to consider the idea of a disability rights advocate. There
is an important synergy between the treaty body process and what is known as
the “special procedures” and there is an opportunity here to create
a better relationship between these types of approaches.
The United States clarified that its position is to oppose the creation of a new monitoring body.
The Chair acknowledged the United States’ position but added that it was in the minority on this issue.
The Session was adjourned.
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