Daily Summary related to Draft Article 1 & 2
Volume 3, #1
OBJECTIVES AND GENERAL PRINCIPLES
The Coordinator introduced the Compilation, underlining that all texts, including those not included in it, have equal status.
Ireland referred to page 24 and 26 for its suggested text on general principles. PWD have the same rights as any other person and the exercise of these rights by them should be the purpose of the convention. It expressed its concern that other proposals in this section refer to the enjoyment of rights “set out in this Convention” or to the “rights of PWD”. However in both cases this might imply that PWD have fewer rights. Ireland was pleased to see that there is “considerable agreement” on principles such as non-discrimination, equality of opportunity, autonomy, participation and inclusion, and hoped that these will be reflected in the text to be presented in the next day’s meetings.
WNUSP noted that the principles set out in the Bangkok and Chair’s draft went beyond naming a list of them to defining them. The representative called for diversity and the right to be different to be reflected here as well, as this is “core” to the rights of PWD, represents their lived experience, and they would like to see this vision reflected in the final text.
Japan affirmed the principles of non-discrimination, autonomy, equality of opportunity and participation as providing a good basis for discussion. “The ultimate purpose of this Convention is the concept of normalization... we need to create an environment where PWD can live a normal life.” With this in mind the Convention should promote a “self-sustained lifestyle” and full participation in economic, social and cultural life. In addition, special measures for affirmative action should not be regarded as discrimination.
Serbia Montenegro emphasized that PWD should and do enjoy all human rights, and also have all responsibilities as other citizens. Morocco stated its support for 2 objectives of the Convention - the equal enjoyment of rights and the elimination of all forms of discrimination against PWD. In addition the proposed text should include “the very important point” of promoting existing and new forms of international cooperation, to support national efforts, to the benefit of PWD.
Landmine Survivors Network proposed that the title of the Convention be simplified to “the Convention on the Rights of PWD”. The Bangkok document provides a solid basis for work that can be further developed. Principles should be binding and linked to obligations making it possible to develop the Convention in the future. The principle of international cooperation as articulated in the New Zealand and Mexico documents as well as in environmental treaties should be included.
Columbia proposed that principles of equality and equal opportunity through sustainable development programs and inclusivity be included in the Convention. It stressed the necessity of preventive measures to reduce and eliminate conditions that cause disabilities.
Thailand reaffirmed its support for the Bangkok (BKK) and Chair’s draft with the addition of one more objective and principle – that of “survival” and “living in dignity”. Thailand believes that self-determination and autonomy can only be realized with people who have already had self-determination. PWD “who cannot express their own self-determination” are still entitled to live in dignity. This should be an “add on principle” to the BKK draft.
China noted that all proposals on the table should be taken into account including those by Mexico, Venezuela, EU as well as China. We cannot make the final judgment so the focus at this stage should be an in-depth discussion of the “main elements” in this section of the treaty and the role that it would play in relation to the rest of the treaty.
Mexico asserted that the principles of discrimination, autonomy, participation and others mentioned during the discussion must be spelled out as objectives of the convention rather than as general principles, as the goal of this convention is to bring about participation of PWD and the elimination of discrimination. The Mexican, Venezuelan and China proposals reflect this point, whereas others tend towards a briefer statement of objectives and longer general principles.
Rehabilitation International affirmed that although PWD are at least notionally protected under international law, PWD do not essentially effectively enjoy these rights. RI put forward that the core purpose of the convention is to secure full and equal “effective” enjoyment of the full range of human rights on the basis of certain principles. The representative of RI noted that most of these principles are contained in the drafts on the table and that there is ample space for common ground between them on the basis of dignity, autonomy and self-determination, which for RI includes the right to independent living, as well as on the basis of basis of participation, inclusion, equality and non-discrimination. RI further observed that there is “ample common ground to express this.”
Sweden underlined its view, which is well-reflected in the EU draft, that PWD should be able to fully enjoy all human rights. Sweden specified that this does not to imply that PWD have fewer rights or that PWD have any more rights than other persons. The EU proposal, Sweden noted, does not contain a long enumeration of human rights, but rather concentrates on providing guidance to states regarding the measures to be taken to ensure that PWD do enjoy their human rights. Sweden conceded that this is due, in part, to its view that interpreting existing rights is dangerous as the result may be substandard rights for PWD. Sweden observed that several delegations had expressed support for adding the idea of discrimination to that of the full enjoyment all human rights. However, Sweden’s view is that “discrimination” is already included in the idea of full enjoyment of human rights. Sweden asserted that the discrimination issue at hand, along the lines of conventions such as CEDAW and CERD, is that there should be no discrimination in terms of enjoyment of human rights. Sweden noted the close linkage between the idea of discrimination and the full enjoyment of human rights. In addition, Sweden pointed to direct references by Working Group members to the right to be different as well as references to the Bangkok draft, and asserted that such a human right does not exist. Sweden pointed to the EU draft proposal’s treatment of the issue of diversity among PWD and noted that this diversity should be taken into account when applying different measures. Regarding the issue of preventive measures, Sweden underlined that its delegation, as well as the EU as a whole, believes that this Convention should not deal with all issues related PWD as there are numerous other human rights foras where these issues are dealt with. In Sweden’s view the convention should address the relationship between PWD and their respective governments and should therefore deal with rights of people who are already disabled and not with potential PWD.
Regarding objectives and general principles section of the convention, Canada advocated for a succinct and clear message, utilizing concepts for which there is general agreement. Canada underlined that the EU proposal illustrates this objective. Canada explored the possibility of referencing existing human rights instruments as a way to accommodate and reinforce the important principle that PWD are entitled to those rights, without enumerating in a list what rights those are for fear of excluding some right. In addition Canada cautioned against states using concepts that they were not necessarily familiar with and noted that “self-determination has a special meaning in international law and therefore it is sufficient to refer to “autonomy.” Regarding the right to be different, Canada noted that the principle of diversity is a concept that is perhaps more wieldy in the discussion.
The Republic of Korea asserted that PWD are fully entitled to all rights, as with non-disabled persons, and should enjoy all the rights guaranteed in the international conventions on equal and non-discriminatory terms. Korea offered that ultimate realization of those rights is for the disabled community to “be able fully realize their potential” and based upon this realization of potential be able to fully participate in all aspects of society. Korea determined, after having studied the existing proposals, that there was ample basis of commonality in order to work towards a convention that will serve those purposes. Korea noted that there are common elements running through all the texts and expressed the need for the Working Group to weed through the proposals on the table and find the commonalities. Korea underscored RI’s point that there was already ample basis for the group to work towards those commonalities.
India expressed its agreement with the objects of the Chair’s draft proposal, but also drew attention to its own proposal. “Recognizing the difference in the level of development and resources available it appears that international cooperation and sharing of resources will be vital for the success of the convention.” India proposed that this idea be included in the objects of the convention, particularly the need to respect “intra-country” and “inter-country” resource variations. India noted that this would allow for progressive realization of rights with reasonable accommodation for PWD.
The World Blind Union reiterated the difficult nature of the working method of the group for people with sensory disabilities. She suggested the group first address topics around which there was much agreement, which might facilitate later discussions on more difficult topics. She raised the issue of whether the principle of prevention should be in the convention. The WBU noted that there are rights in many other conventions that should cover PWD, although there are rights that may have another interpretation or slightly different meaning for PWD. The representative of WBU underlined the link between the threat to the lives of PWD in many countries and the right to life. WBU called for this right to be included in the document. Pointing to the right to rehabilitation, which appears in the CRC, this right could be applied to all PWD. There was agreement with Sweden that the Working Group needs to focus on government actions in relation to PWD and noted that this focus might be able to ring in the discussion.
The Coordinator noted that there was much overlap between these issues and emphasized that the issues not in the general principles may be taken up in the preamble.
Japan asserted that it would like to include the principle of “full participation” of PWD in the text as this should be the basis of their activity. Japan noted that this language is included in the Indian and EU texts. Japan offered the notion that the convention should achieve a “barrier-free society” and noted that this phrase appears in the Indian text. Japan then cited the issue of the role of the convention in relation to existing human rights instruments stating that the human rights mentioned there should also be enjoyed by PWD, and that this position should be articulated in the preamble. Japan further asserted that, in order to avoid duplication with existing human rights instruments, those rights directly related to PWD should be in the substantive portion of the Convention.
The World Federation of the Deaf asserted that one reason for a convention is to ensure that the human rights of PWD be carried out in practice. At the moment governments do not ensure that the human rights of PWD are carried out on equal basis. PWD have varied experiences in their disabilities and in their needs, and therefore there are many possible solutions. WFP asserted that this convention must be such that governments will modify the environment in order that PWD will be able to enjoy their human rights and be full citizens. WFD observed that this convention will probably have a section on specific rights containing guidance to governments on how to carry out the human rights of different disability groups-people of differing ages and also taking into account the gender aspect. WFD then questioned the affirmation that the right to difference is not a right and expressed its hope that this convention somehow recognize differences in PWD. WFD supported the comments on prevention made by the WBU, and noted that in it’s view the disability issue and prevention are linked.
The World Network of Users and Survivors of Psychiatry stated that every human being is entitled to self-determination and emphasized that choice is a fundamental human activity. The WNUSP asserted that autonomy and self-determination, in the sense of the right to make our own decisions, has to be both a principle and a right recognized in this convention. Regarding the way in which the rights in the convention relate to existing human rights law, the WNUSP reiterated that PWD benefit in theory from all human rights and that the problem originates from the exclusion of PWD from these rights through legal, societal and attitudinal barriers as well as physical and informational barriers. The WNUSP lent its support to the phrase “barrier free society” adding that that attitudes and laws can constitute barriers. The WNUSP affirmed that the convention should not be below existing norms and asserted the need to recognize that human rights disability law is in a state of flux and that certain emerging laws need to be supported in this convention. WNUSP specified that the convention should be “informed by our leadership and our direction.” The WNUSP went on to stress the need to look at possible reinterpretation and application of human rights law, especially where the law has not incorporated a real non-discriminatory and inclusive PWD perspective. Regarding the principles portion of the convention, WNUSP asserted that self-determination, in whatever form, needs to be included. The representative emphasized that the principle of diversity and the right to be different also needs to be included, and asserted that PWD need to be able to say that “ we have the right to be who we are and not be excluded.” WNUSP offered its support for the principle of international cooperation as way guarantee that PWD in all parts of world fully enjoy all human rights.
Ireland looked forward to India’s draft as it needed to be taken into account. Regarding comments by India and others on the need to take into account international cooperation, Ireland noted that the EU text did not include this term. The representative underlined that this was an express decision. Ireland stressed the importance of keeping in mind the goal of the treaty, which is the full and equal enjoyment by PWD of all their human rights. Ireland would therefore be concerned about adding an “additionality” or “conditionality,” for example Ireland did not believe that non-discrimination or autonomy should be contingent on the receipt or otherwise of national cooperation. In Ireland’s view, international cooperation is dealt with in ICESCR as one of the means of achieving these rights. Ireland asserted the convention should deal with people with existing disabilities and not delve into the issue of prevention. Ireland agreed with Canada that self-determination has a special meaning and it would be confusing to use the word in another context.
Sierra Leone asserted that the section on principles should be separated from the objectives. Sierra Leone suggested that the general principles be succinct and refer not just to all rights but to “specific rights.” Sierra Leone recommended that among the objectives should be some reference to international cooperation and development as one cannot enjoy rights if there are no means to make this possible. In addition, Sierra Leone specified that if international cooperation is not in the general principles it should be in the objectives, which is why Sierra Leone suggested that the principles and the objectives be two separate sections.
Germany observed a general consensus in the Working Group on various principles. These included the right of PWD to the full enjoyment of human rights on equal footing, the principle of autonomy and non-discrimination, participation and inclusion, and the principle of equality. Germany asserted that the Working Group needs to go beyond what the UN has done on human rights for PWD, such as the World Programme of Action and the Standard Rules. Germany specified that the issue of prevention would be included in a convention on disability and that this convention is not on disability but on PWD. Germany underscored the difficult issue of the right to be different and conceded that it was not a human right when looking at the core human rights treaties but indicated that it is mentioned in the UNESCO declaration on racism. Germany affirmed that since this text sees disability as not only a medical issue but also a social construct, like race or gender, the Working Group might consider including this right. Germany proposed, noting that as the mandate of the Working Group is not to negotiate but to “collect good ideas”, that the right to be different appear in draft text for the AHC to decide whether or not it should be in the objectives.
Rehabilitation International concurred with Germany on why the concept of prevention should not be included, yet underscored that this does not mean that rehabilitation should not be included as a tool for freedom and independent living. RI expressed concern over the mention of progressive achievement within the principles section, as if included in this section the concept might be seen to apply to civil and political rights, thereby weakening existing norms. RI believes that “progressive achievement” should be included in the section on programmatic rights of a social and economic character, but not in the general section on principles.
Venezuela urged that the group clarify elements of the first article on the nature of the convention. Venezuela noted its proposal is very similar to the Chinese draft except that it does not use the five domains that the Venezuelan proposal does. Venezuela asked the Chinese delegation whether it would be possible to include in its proposal the different spheres that Venezuela listed when referring to social life, non-discrimination and full participation.
DPI affirmed that the time has come for a thematic convention to protect the rights of PWD. DPI stressed the need for a disability-specific convention, as the monitoring process of the seven human rights conventions have greatly marginalized PWD. In addition, DPI noted that many UN human rights instruments, such as the Millennium Goals, don’t specifically mention disability. DPI recalled that at its 6th World Assembly in Japan in 2002 those assembled declared the need for a convention with the full range of civil, political, economic, cultural and social rights. DPI also stressed the need for a strong monitoring mechanism. DPI raised the difficulty of deciding not only what rights apply but how they should apply. DPI asserted that a disabilities convention must use plain structure and language to assure understanding especially by PWD. DPI asserted that the convention must be clear in “equality, dignity and access.”
Inclusion International (II) spoke for people often labeled with intellectual disabilities. Inclusion International affirmed that nobody, irrespective of his/her disability should be excluded from human rights. II asserted that citizenship should be for everybody and this should mentioned in the preamble. II also noted that persons with intellectual disabilities often belong to the poorest of poor, therefore II concluded that international cooperation should be cited and that the “poverty problem” should not be excluded. In addition II noted that in some countries prevention has bioethical dimensions, which should be discussed
Disability Australia Limited made the observation that more than 50% of NGOs and member states interventions favored a treaty of a holistic nature—meaning a treaty that elaborates the full range of rights including economic social and cultural rights. One of the clear purposes of the discussion, DAL noted, has already been elaborated on by the member states and other stakeholders. DAL affirmed that the convention should provide authoritative interpretation of the rights of PWD. Regarding the danger of elaborating certain rights and leaving out others, DAL noted that the risk of undermining certain rights is worth taking because people will not achieve their rights if they are not elaborated. DAL further asserted that the objective should be more elaborate than a mere statement that PWD should have equal and effective enjoyment of rights and fundamental freedoms.
Slovenia reiterated its support for a human rights oriented text and noted that during the discussion many areas of common agreements had already been identified. Slovenia asserted that some concepts, such as international cooperation, are elaborated in existing international instruments. Slovenia proposed a short and concise statement for this principles/objectives part of the convention with a safeguard clause, such as that for Art 3 of the Chair’s draft on p. 27 of the compilation, to ensure that interpretation of rights of PWD should not be less generous.
Russia stated its position that this convention must focus on the rights of PWD and focus on the particularities of those rights. Russia asserted that it must not duplicate existing instruments. Russia urged group members not to forget that PWD are expecting a realistic document and that the effectiveness of the convention will depend on how specific it is. Russia offered as elements for the major principles and objectives -defining at national level liability with respect to action or inaction -establishing realistic conditions for rehabilitation of PW D -Support for socio-economic activities of PWD to encourage them to work -deepening society’s understanding of PWD.
Inter-American Institute on Disability noted progression in the discussion in the agreement on distinguishing the principles and objectives. The Institute observed that there is agreement on the importance of emphasizing full and total participation which must be in the principles. The relationship between poverty and disability was highlighted as one causes the other and that PWD in poor countries continue to be excluded from development in the context of public policy and government programs. Historically, international bodies have not taken this exclusion into account. The Institute stated the importance of including this international cooperation in the objectives portion.
World Federation of the Deaf stressed that the name of the convention must reflect its content and stated that the suggestion of “Convention on rights of PWD” was an acceptable title. WFD stated its hope that the process of the Working Group not be too long. Noting the agreement of the Working Group not to make “recommendations,” the WFD indicated that this might mean that the convention process will be prolonged. Referring to comments made by II, WFD pointed out that while in some countries legislation is behind the technical advances, some of these advances infringe on the rights of PWD.
Thailand raised the issue of the to right to be different. Thailand asserted that the right to be different is specific to disability issues and further noted that diversity as such is nothing if not strengthened by the right to be different.
Lebanon stated that the Working Group risked spending much time on discussion of the principles without reaching a final agreement and suggested coming back to this discussion after addressing specific rights.
China noted that in its draft proposal, it prescribes eliminating all forms of discrimination of PWD. As this language is similar to that of CEDAW, China affirmed that the group does not need make a list thereby running the risk of leaving something out. Regarding the question of international cooperation, raised by India and other delegations, China noted that PWD have specific circumstances--social and other. China reiterated the relationship poverty and disability and concluded that strengthening international cooperation would have positive significance for the goals of convention.
Landmine Survivors Network expressed agreement with China that the Working Group was not in a negotiating posture. LSN noted that international cooperation is not a new principle and should be included as a principle in this convention. LSN suggested putting the concept in the objectives portion and the obligation for international cooperation be in a general framework related to specific obligations.
Volume 3, #1
South Africa asked for closer scrutiny of comments made at the African regional consultations that were held in South Africa in 2003 with regard to the aim of the WG being to ensure an inclusive document that includes the principles of equality and non-discrimination. It emphasized the primary importance of regional and international cooperation.
New Zealand qualified its previous statement and said that the opening statement should be simple and to the point so that no one can overlook the objective of the Convention, such as is presented in Article I of the EU Draft. The Convention should reinforce rights of PWD as ones that all humans have. He said that prevention issues should not be mentioned because it could send conflicting messages, that is, that disability is something that is not wanted, and that PWD themselves are not valued. The body of the Convention should then address how to ensure that existing human rights have an effect on PWD.
Canada offered some alternatives to some of the considerations already put forth on the concepts of self-determination and the right to be different. The concept of self-determination should be addressed as PWD having autonomy and the right to independent living, which includes the right to make decisions. The delegate expressed concern that including a right to be different would be creating a new right and that inclusion of the principle about international cooperation in this part of the draft could change objective of convention and narrow the possibility of states being party to this Convention and suggested it be addressed in the Preamble. He concurred with other delegations who said that prevention should not be an element in this part of the draft as its focus is those who have a disability. He asked for attention to Article III New Zealand text of the Universal Declaration, which would be appropriate for the Preamble.
The Coordinator cautioned against becoming embroiled in discussions on right to life and proposed the WG find way around it instead of resolving it.
The World Blind Union addressed the need for issues of discrimination and right to life to be discussed in depth because they are issues of concern to PWD. She referenced CEDAW’s approach to discrimination and indicated that this could be an option. Existing rights could be reworded but that it might not be possible in all cases. She indicated that this section should address discrimination using positive and progressive language. There is also a need, she said, to find appropriate wording to address full participation, dignity, and diversity. She also highlighted that in some parts of the world, PWD do not have the right to full citizenship; this right should go to all and not some. She concurred with Landmine Survivors Network and the World Federation of the Deaf regarding the name of the Convention, which could be abbreviated more easily, and suggested that the current title could be used as the opening sentence of the Preamble.
Serbia and Montenegro stated that the objective of Convention should be the enjoyment of rights for PWD and allow for their participation in society in full and equal way. He called for word choice regarding self-determination to be examined further and suggested that the concept of international cooperation be included in the Preamble or opening lines instead of this section. Inclusion of prevention should be avoided, he said because this is a medical approach to disability and not a social one and the Convention is a HR approach to disability issues.
The Coordinator highlighted the wide range of agreement amongst those
who had spoken with regard to the object and purpose of the Convention,
that is, that PWD should enjoy full range of fundamental rights and freedoms,
irrespective of nature or cause of disability. He also highlighted where
there was disagreement with regard to the separation of principles and
objectives, whether to include international cooperation and prevention,
as well as inclusion of the right to self-determination, right to life,
and the right to be different. He proposed that small open-ended group
referenced earlier come up with language and come back tomorrow with a
draft, that is not overly elaborate for further discussion. The WG did
not object so he indicated that the WG would move on to a focused discussion
on the obligations of state parties (page 44-58 of the Compendium).