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Back to: Second Session of the Ad Hoc Committee
Documents of the Second Session
A/AC.265/2003/CRP/10
Ad Hoc Committee on a Comprehensive and Integral
International Convention on Protection and Promotion of the Rights and
Dignity of Persons with Disabilities
New York, 16-27 June 2003
* The present paper has been issued without formal editing; previously issued as document E/ESCAP/EGM-PWD/Rep.
We, the participants in the Asian and Pacific regional expert group meeting on an international convention to promote and protect the rights and dignity of persons with disabilities, met from 2-4 June 2003 in Bangkok.
As experts from governmental and non-governmental organizations, national disability and human rights institutions and independent experts, we have formulated these recommendations in response to the invitation by the General Assembly in Resolution 57/229 to "make available to the Ad Hoc Committee suggestions and possible elements to be considered in proposals for a convention."
We are convinced that a new international human rights treaty is necessary to ensure that persons with disabilities enjoy all their human rights.
1. While international human rights standards require that people with disabilities should enjoy the same basic human rights as all other human beings, persons with disabilities throughout the world are subjected to widespread violations of their human rights. These violations include malnutrition, forced sterilisation, sexual exploitation, the denial of educational and vocational training opportunities, inaccessible public services, institutionalisation, and the denial of voting rights, rights to communication, and the right to participate in policy-making.
2. There is a pressing need for the elaboration of a new international convention on the human rights of persons with disabilities. A coherent, integrated and focused approach to disability in international law cannot be developed under the present treaty system. Therefore, an exclusive convention is necessary to give "status, authority and visibility" to disability issues, which cannot be achieved through the process of reform of existing international instruments and monitoring mechanisms.
3. A single comprehensive treaty would enable the States Parties to understand their obligations to set targets for the development of disability-inclusive infrastructure and processes. Adding a new treaty would complement existing international standards for the rights of the disadvantaged.
4. A new convention should be a human rights treaty, which reaffirms that human rights and fundamental freedoms apply to all human beings, including persons with disabilities, thus reflecting the movement from a social welfare approach to a rights-based model embodied at the international level in documents such as the World Programme of Action concerning Disabled Persons and the Standard Rules for the Equalization of Opportunities for Persons with Disabilities. A new human rights convention would play a critical role in enhancing the advancement of persons with disabilities in the context of all aspects of development.
5. A new convention should reaffirm and build on human rights norms laid down in the existing United Nations human rights treaties (including treaties adopted by the specialised agencies such as the International Labour Organisation) and other norms (such as the Standard Rules). A new treaty should in no way diminish existing guarantees of rights under those treaties, but should supplement existing guarantees as appropriate and address issues of particular concern to persons with disabilities.
6. A new convention should include guarantees of both civil and political and economic, social and cultural rights, and should provide for appropriate remedies at the international and national levels for violations of all the rights it guarantees.
7. The adoption of a new convention should be one part of a multi-track approach to the fulfilment of the human rights of persons with disabilities and the achievement of the goals of human and social development. In particular:
The Meeting noted the importance of the role of national institutions in realising the human rights of persons with disabilities and the need for governments to establish national human rights institutions and other appropriate bodies to give effect to those rights at the national level.
8. Member States and the United Nations system should take steps to ensure the full participation of representative disability groups and persons with disabilities, especially those from developing countries, in the process of elaboration of a convention. Governments which are in a position to do so are urged to make contributions to the United Nations Voluntary Fund on Disability for this purpose. All governments in the Asia-Pacific region should ensure that they consult DPOs for their views on the issue of a convention, facilitate the participation of DPOs in the discussions of the Ad Hoc Committee established by General Assembly resolution 56/168, and should include persons with disabilities from DPOs in their official delegations to the Ad Hoc Committee.
9. The Convention should be comprehensive, containing an explicit restatement of the rights contained in existing human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and other relevant instruments. The Convention should thus go further than a simple statement of the right to equality and non-discrimination in the enjoyment of human rights and fundamental freedoms.
10. The Meeting considered that a Convention should include the following elements:
11. The Meeting considered that the following matters might be usefully addressed in a Preamble:
12. It would be important to set out clearly the objectives of the Convention and the basic principles underlying its interpretation and application. The statement of principles and objectives of the Convention might include reference to an affirmation of dignity, autonomy, equality, solidarity, and representative participation as overarching values underpinning any convention.
13. The Convention should:
14. The convention should include definitions of disability, discrimination, and accessibility.
15. There is a range of definitions of disability adopted at the international level. This reflects different purposes as well as changes in the understanding of disability. The meeting noted that the WHO-ICF definition might be taken as a starting-point, but also noted that there were concerns about some definitions currently employed, particularly in relation to survivors of mental illness or users and survivors of psychiatry.
16. The Convention should contain a definition of disability that reflects an understanding of disability as something which is the result of social and environmental factors. A definition of disability should not be restrictive. For example it should cover physical, sensory, intellectual, psychiatric and multiple disabilities. It should acknowledge that disability can be permanent, temporary, episodic and perceived.
17. In elaborating the definition of disability, it should be recognized that, while individuals have impairments, disability is not an individual pathology. It has a range of implications for social identity and behaviour, and largely depends upon context. Disability may also be a consequence of discrimination, prejudice and exclusion.
18. With regard to the definition of "discrimination" the Convention should address all forms of discrimination including direct, indirect, intended and unintended, hidden, and systemic discrimination. The convention should contain a definition of discrimination on the basis of disability which draws on existing international definitions but which modifies them to reflect the particular nature of equality and discrimination in relation to persons with disabilities.
19. There is a consistent approach taken to the definition of discrimination by the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, ILO Convention No 111 on Discrimination in Occupation and Employment, and by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. Discrimination exists where there is "any distinction, exclusion or restriction on the basis of a prohibited characteristic (i.e. disability) which has the purpose or effect of impairing or nullifying on a basis of equality the recognition, enjoyment or exercise of human rights".
20. A definition of discrimination should:
21. The definition of equality should recognize that equality of opportunity requires that any relevant restrictions or limitations caused directly or indirectly by a disability should be remedied by appropriate modifications, adjustments or assistance and requires affirmative action, reasonable accommodation or special measures to provide barrier free access in all spheres for full participation and to provide enabling environments, where necessary, in order to achieve equality of opportunity and treatment. Such action or measures should not be regarded as discriminatory. The Meeting raised the issue of whether the concept of equality to be adopted was one of equality of opportunity or equality of outcome/result.
22. The concept of accessibility, which was a critical component of any convention, needs to be defined carefully. The following definition was proposed: [1]
"Accessibility" means the measure or condition of things and services that can readily be reached or used (at the physical, visual, auditory and/or cognitive levels) by people including those with disabilities, which could be achieved, through design and adaptation irrespective of any types of disabilities. The term "accessibility", as commonly used in the disability-related field, may include but is not limited to:
(i) access to physical/built environments and public transport;
(ii) access to information and communications, including information, communications and assistance technology.
The Meeting also noted the elaboration of accessibility with reasonable accommodation contained in the Manila Declaration on Accessible Information and Communications Technology adopted by the United Nations Interregional Seminar and Demonstration Workshop on Accessible ICT and Persons with Disabilities (Manila, 3-7 March 2003). That meeting was organized in response to General Assembly resolution 57/229, which inter alia calls for accessibility with reasonable accommodation in United Nations facilities and documents.
23. The Convention should contain a clear statement of the obligations of a State Party to implement its provisions, in particular the obligations to respect, ensure and provide remedies for violations of the rights set out in the Convention. States Parties should be obliged to take legislative, programmatic and policy actions to implement the provisions of the Convention, in particular the obligations to respect, ensure and provide enforcement mechanisms for violations of the rights set out in the convention. These measures should include specific constitutional or legislative guarantees of the rights of persons with disabilities to enjoy human rights and fundamental freedoms without discrimination. States should be obliged to ensure an enabling environment and a barrier-free society.
24. The convention should clearly set out the obligations of States Parties in relation to the acts of non-State actors which involve the denial of the human rights of persons with disabilities.
25. States Parties should provide guarantees of equality of opportunity and of non-discrimination, both generally and in the enjoyment of rights guaranteed in the convention.
26. The Convention should contain a general guarantee of equality and non-discrimination in the enjoyment of the rights set forth in the Convention, as well as a free-standing guarantee of equality and non-discrimination as set out in article 26 of the ICCPR.
27. The Convention should make specific reference to the right of women and men to equality and non-discrimination in the enjoyment of human rights and fundamental freedoms.
28. The Convention should reaffirm the entitlement of persons with disabilities to the enjoyment of all human rights and fundamental freedoms. It should therefore contain a statement of specific rights guarantees, drawing on the rights contained in the UDHR, ICCPR, ICESCR and other instruments. These rights should be supplemented by more detailed elaborations of what is required for persons with disabilities to enjoy those rights on the basis of equality, or by new formulations that reflect the perspectives of persons with disabilities. The Convention on the Rights of the Child and the Convention on the Rights of All Migrant Workers and Members of Their Families may provide useful starting-points for developing such an approach.
29. The Meeting noted that all rights could be further elaborated to ensure that persons with disabilities enjoyed them on an equal basis. A number of specific examples were given:
30. The meeting also noted that the implications of some rights for persons were contentious. The example of the right to life and its implications for the use of genetic counselling, or rights of access to abortion was mentioned. It was recognized that a convention would not necessarily resolve debates over these contentious issues.
31. In addition to specific interpretations of existing human rights guarantees, participants identified a number of additional perspectives or aspects of existing rights that might be considered for explicit inclusion in a convention. These included:
32. There was some discussion of whether the concept of reasonable accommodation should be seen as involving a separate right or whether it was better understood as part of the concept of discrimination. Some consideration was also given to whether third generation rights, such as the right to development, should appear in the Convention. The consensus of the Meeting was that, given the complexities of introducing such a collective right into the proposed convention, it might be more appropriate to focus on guaranteeing enjoyment of individual rights as a means to enhancing the participation of persons with disabilities in the development process and ensuring that they enjoy the benefits of development, rather than including the right to development as such in the body of the convention.
33. The Convention should also contain provisions dealing with other measures to be taken by States Parties, which could include:
34. The Meeting considered that there were a number of international, regional, sub-regional and national level mechanisms that might be used to monitor the implementation of the Convention. The establishment of an independent committee of experts similar to that established under other United Nations human rights treaties was seen as a central component of a Convention, though it was recognized that monitoring also needed to take place at the regional and national levels.
35. The Meeting considered that there should be established a new human rights treaty body, consisting of independent experts in the field of disability, to oversee the implementation by States Parties of the provisions of the Convention. Such a new committee should have a general monitoring function, as well as being empowered to consider allegations of violations of rights where the national system concerned has failed to provide a remedy. Any monitoring system should involve an independent assessment of implementation by State Parties.
36. The committee should perform the functions of reviewing reports submitted by State Parties, have competence to receive individual complaints alleging violations of the rights guaranteed in the convention, and should have the power to initiate an inquiry into the situation in a State Party where it appears that serious or systematic violations of the Convention are occurring. The committee might also be given the competence to consider complaints by one State Party against another alleging violation of obligations under the Convention.
37. Membership of that committee should include persons with disabilities, and ways of involving DPOs in the selection of the members of the committee should be explored. Information concerning the Convention produced by governments and the United Nations should be made available in formats which are available and accessible to all.
38. In addition to the establishment of a new treaty committee, regional intergovernmental organizations should be encouraged to monitor implementation of the rights of persons with disabilities, and existing or future regional human rights charters and mechanisms should expressly incorporate the rights of persons with disabilities. Particular mention was made of the Biwako Millennium Framework monitoring system as having the potential to monitor the implementation of a new Convention and to provide input into the work of a new treaty committee.
39. The Convention could also include specific obligations relating to national institutional frameworks, in particular providing that States Parties should use national institutions to monitor and promote compliance with the Convention, in which national human rights institutions can play a role. There should be provision for handing of complaints, and for promotion, litigation, monitoring and reporting functions. There should be enforcement mechanisms, including provision of remedies, within institutional and/or judicial systems. The Meeting considered that such national frameworks should be adequately resourced. The Meeting also noted the importance at the national level of the establishment of consultative bodies incorporating persons with disabilities and DPOs.
Notes:
[1] Taken from the seminar on ICT accessibility for persons with disabilities in the Asian and Pacific Region held in Bangkok, 20-22 June 2002.