Summary of discussions on draft Articles by the Coordinator

I. Introduction

1. On 24 August, the Chair of the Ad Hoc Committee invited Ambassador Don MacKay (New Zealand) to coordinate informal discussions on the text of a draft convention. The Chair read a statement outlining the methodology for holding informal discussions (see annex III).

2. Informal meetings were held from 30 August to 3 September. Draft articles 4, 5, 6, and 7 were discussed.

3. Discussions were held with the aim of clearing up as many of the issues concerning the draft articles as possible. Where agreement was reached, it was on the understanding that it was without prejudice to delegations’ ability to reconsider the draft articles under discussion at a later stage.

4. The text of draft articles 4 to 7 as they stand at the end of the meeting will be posted on the United Nations Enable web site for the consideration of delegations intersessionally.

5. Discussion of the titles of the draft articles was deferred until a later date, pending agreement on whether they should remain in the final text or exist merely as working titles to facilitate negotiations.

6. In order to maintain the momentum of the informal discussions, the Coordinator recommended that informal discussions on draft articles 1 to 15 continue at the next session of the Ad Hoc Committee.

II. Summary of discussions on draft article 4

7. There was general agreement on the following points for draft article 4:

• The Ad Hoc Committee should consider the placement of draft articles 4, 5 and 7 in relation to each other at a later stage.

• Draft article 4 should include the wording of article 4 of the Convention on the Rights of the Child. The precise wording of the paragraph was referred to the facilitator’s group on this draft article, led by Gustavo Ainchil (Argentina), for further work.

• Draft article 4 should include the concept of progressive realization of economic, social and cultural rights, balanced by the need to implement immediately those obligations that are capable of immediate implementation.

• Non-discrimination is not subject to the doctrine of progressive realization.

8. There was also a substantive discussion on the possibility of including a provision on remedies either in draft article 4 or draft article 9. While there was some support expressed for this, further discussion is required before the issue can be referred to the Facilitator’s group.

Paragraph 1

9. There was general agreement that the elements contained in draft articles 13 (d), 19.2 (e), 20 (c) and 21 (f) should be consolidated in subparagraph 1 (f) and a new subparagraph 1 (g). The Facilitator’s group was mandated to work on the precise wording of this proposal.

Paragraph 2

10. There was general agreement that:

• The elements in draft articles 5.2 (d), 6 (c), 18 (c), 19.2 (g) and 21 (m) should be consolidated generically in paragraph 2.

• The ultimate placement of paragraph 2 should be discussed at a later stage, along with the other articles related to implementation and monitoring.

• The question of consultation with families and others could not be resolved in the context of draft article 4 but could be considered under other specific articles or under the preamble.

III. Summary of discussions on draft article 5

11. There was general agreement on a number of points concerning draft article 5 as set out below.

Paragraph 1

12. Subparagraph 1 (a) should reflect the text prepared by the Working Group, but with the addition of “and to foster respect for their rights” at the end of the sentence. Various formulations of this phrase were proposed, and these were referred to the Facilitator’s group on this draft article, led by Ambassador Rowe (Sierra Leone), for refinement.

13. Subparagraph 1 (b) should reflect the text prepared by the Working Group, but with the addition of the words “in all areas of life” at the end of the sentence.

14. Subparagraph 1 (c) should be redrafted to read:

“Promote awareness of the capabilities and contributions of all persons with disabilities, and that as members of society they share the same rights and freedoms as all others, and in a manner consistent with the overall purpose of this Convention.”

The meeting recognized that further fine-tuning of the paragraph was needed, and it was referred to the Facilitator’s group for further discussion.

Paragraph 2

15. Paragraph 2 contained much repetition of paragraph 1 and could either be streamlined or deleted. In either case, several delegations considered that the references to public awareness campaigns and the promotion of awareness in all children and the education system were valuable. They considered that they should be retained in either a streamlined paragraph 2 or in paragraph 1. The Coordinator referred this issue to the Facilitator’s group.

16. Should paragraph 2 be deleted, subparagraph 2 (c) should be retained and moved into paragraph 1 to become paragraph 1 (d).

17. The Coordinator also asked the Facilitator’s group to elaborate general language on training, without prejudice to decisions on its inclusion and ultimate placement in the text.

IV. Summary of discussions on draft article 6

18. There was general agreement on the following points for draft article 6:

• There should be a provision in the convention on this topic.

• This should be a separate article and not merged with draft article 25 on monitoring.

• The article should be in the section of the convention concerned with implementation and monitoring (possibly in a chapter on those topics). Its ultimate placement was not resolved and some delegations expressed the preference that it remain in the earlier part of the convention.

• The text should be streamlined to read:

“Where necessary, States parties undertake to collect appropriate information to enable them to formulate and implement policies to give effect to this Convention. The process of collecting and maintaining this information should:

(a) Comply with legally established safeguards to ensure confidentiality and respect for the privacy of persons with disabilities, including legislation on data protection;

(b) Comply with internationally accepted norms to protect human rights and fundamental freedoms;”

• The concept of compliance with the international standards and ethical principles of statistics, as suggested by Landmine Survivors Network, but without listing the elements involved in that concept, should be included. It is possible that briefer wording along the lines of general comment 5 of the Convention on the Rights of the Child, which sets out the objective without being too prescriptive, would suffice. This was referred to the Facilitator’s group, led by Leslie Gatan (Philippines).

• A number of delegations raised the importance of the use to which the data might be put. To avoid unbalancing the text, the Coordinator asked two delegations to draft a briefer formulation for a possible paragraph 2, covering a number of issues not covered in paragraph 1.

V. Summary of discussions on draft article 7

Paragraph 1

19. There was general agreement on the substance of paragraph 1, as well as on the addition of one footnote and the referral of a drafting matter to the Facilitator’s group on this draft article, led by Stefan Barriga (Liechtenstein).

20. The text was generally agreed as follows:

“States parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. States parties shall prohibit any discrimination on the basis of disability and guarantee to all persons with disabilities equal and effective protection against discrimination. States parties shall also prohibit any discrimination and guarantee to all persons with disabilities equal and effective protection against discrimination on any other grounds.^a

21. The Facilitator’s group is to consider whether it would be useful to combine the second and third sentence of paragraph 1 without altering their substance.

Paragraph 2 (a)

22. There was general agreement to use the following text, which borrows from the last part of article 1 in the Convention on the Elimination of All Forms of Discrimination against Women (two footnotes were also agreed on):

“(a) For the purpose of the present Convention, the term ‘discrimination on the basis of disability’ shall mean any distinction, exclusion or restriction^b which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on a basis of equality with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”^c

Paragraph 2 (b)

23. The text was generally agreed as follows: “(b) Discrimination shall include all forms of discrimination, including direct and indirect discrimination.”

24. Some drafting issues may need to be addressed later in relation to whether to amalgamate subparagraphs 2 (a) and (b).

Paragraph 3

25. It was generally agreed that existing paragraph 3 had a high risk of being misinterpreted. It was agreed to delete paragraph 3 and to add a footnote to the draft article.

26. The text of the footnote was agreed as follows:

“Note: A number of delegations were of the view that there should be a reflection of general comment 18 of the Human Rights Committee, as follows: ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the convention’.”

Paragraph 4

27. There was general agreement to use the text set out below as a basis for paragraph 4, with two new footnotes, and to retain footnote 27 of the Working Group draft text. There was also acknowledgement of the need for further drafting consideration and discussion on the placement of the definition, either here or within the definitions section of the draft convention. The text was generally agreed as follows:

“^dStates parties undertake to take all appropriate steps to ensure that reasonable accommodation is provided; ‘reasonable accommodation’ to be defined as necessary and appropriate modification and adjustments not imposing a disproportionate burden,^e where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on a basis of equality with others of all human rights and fundamental freedoms.^f”

Footnotes:

a: The list of other grounds for discrimination outlined in the working group text has been deleted.
A number of delegations would like to look again at this list in the context of the preamble; in particular, subparagraph (m) covers similar matters. It was agreed that the list should be consistent with existing human rights treaties.

b: A number of delegations wished to include here the phrase “or denial of reasonable accommodation”.

c: A number of delegations would like to include other aspects within the definition, such as those found within the Inter-American Convention. Particular aspects raised were: record of disability; condition relating to previous disability; or perception of disability, whether past or present.

d: A preceding phrase that was proposed, and a corresponding one in the Working Group draft, was deleted, which some delegations wish to consider further.

e: A number of delegations expressed reservations about the phrase “disproportionate burden”.

f: Footnote 27 in document A/AC.265/2004/WG.1 to be inserted here.