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Back to: Third Session of the Ad Hoc Committee
NGO Comments at the third session
Comments by NGOs at the Third Session
Australian NGOs
Interventions by (Australian) National Association of Community
Legal Centres, People with Disability Australia Incorporated, Australian
Federation of Disability Organisations
PREAMBLE
Ms/r Chairman:
Thank you for the opportunity to address the Ad Hoc Committee.
We believe the name of this treaty requires simplification. The current
name is unnecessarily long and uncertain. We propose the title of the
treaty be amended to “Convention on the Human Rights and Fundamental
Freedoms of People with Disability.” This title would clearly
and concisely describe the nature of the treaty.
In general, we support the proposed text for the Preamble, but believe
that four refinements are required.
Firstly, we believe the Preamble, for interpretative purposes, should
clearly signal a change in understanding of disability away from one
of ‘individual pathology” to a recognition of the way in which social
structures and processes disable people with impairments, and thereby
deny their human rights. We therefore suggest the Preamble include the
following additional paragraph:
“Recognising a profound shift away from an understanding of
disability as an individual pathology towards one that recognises
the disabling impact of inaccessible social structures and processes
on persons with impairment.”
Second, we urge the amendment of paragraph (m) to
also refer to the multiple and aggravated forms of discrimination experienced
on the basis of “age (by children and elderly persons), sexual
orientation, by indigenous persons, and by people in remote and island
locations.”
Third, we would like to see paragraph (l) of the Preamble
strengthened in two respects. We believe that the stronger word “recognising”
(rather than “considering”) should introduce the paragraph
to make it clear that State parties positively accept this principle
rather than merely acknowledge it. We would also like participation
in decision-making to be referred to as “essential”
and as a “condition precedent” to the enjoyment of
the human rights provided in this and other human rights instruments.
This would enshrine the fundamental principle put to the Ad Hoc Committee
by the International Disability Caucus on numerous occasions in the
debate to date: “nothing about us, without us.”
Fourth, we suggest for indicative and interpretative purposes, to support
those aspects of this convention that attempt to eliminate eugenic practices,
and violence and abuse of people with disability, the addition of the
following additional paragraph:
“Recalling with profound concern the history and experience
of eugenics, abuse, neglect, isolation, segregation and violence against
people with disability in many parts of the world
Thank you for the opportunity to address the Committee
ARTICLE 2
General Principles
Amend sub-paragraphs (b) and (e) to refer to
“(b) equality of opportunity and non-discrimination”
A number of State and ngo delegations have called for a reference to
‘equality of opportunity’ in this article. Equality of opportunity is
an ethical standard, while non-discrimination is one means of achieving
it. They should therefore be linked in the text.
Add an additional sub-paragraph:
“(x) recognition and respect for the ability and potential
of all persons with disability”
This proposed new general principle would capture a key concept raised
by many State and ngo delegations in the course of the first reading
of the article.
Add an additional sub-paragraph:
“(x) recognition and respect for the specific needs and concerns
of women, children and young people and minority groups, including:
(i) indigenous persons with disability
(ii) people with severe and multiple disability
(iii) ageing and elderly persons with disability
(iv) persons with disability living in rural and remote,
and small island communities.”
This proposed new general principle would address the concerns raised
throughout the first reading debate that this convention provide recognition
of specific population group needs and concerns, without replicating
substantive provisions set out in other human rights documents. Reference
to children and women in the general principles would not detract from
specific substantive articles on the rights of children and women with
disability. Indeed, it may overcome the concern that the inclusion of
specific population group based articles will erode from the general
applicability of the convention to these groups.
Add an additional paragraph
“In interpreting the human rights of people with disability,
in no case shall rights set out in this convention derogate from rights
set out in the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, or any other human rights treaty.
Should there be any conflict between a right provided in this
and any other human rights treaty, the interpretation most favourable
to persons with disability is to be preferred.
This proposed new paragraph will address any potential for the rights
set out in this convention to derogate from rights set out in other
international human rights instruments.
Statement:
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We strongly support the terms of this article as currently drafted,
but seek the inclusion of the following additional paragraphs:
(f) protection from exploitation, violence, victimisation, abuse, harassment
and neglect
(g) the right of survival, and to realise full potential
People with disability are subject to significantly higher levels of
exploitation, violence, victimisation, abuse, harassment and neglect
than other members of the community. All people with disability are
at increased risk, but particular groups, including women and children
with disability and people with multiple and severe impairments, are
at particular risk.
The lives of people with disability are often regarded as inferior
to those without disability. As a result, medical and social interventions
are often denied people with disability, or given secondary priority.
In the absence of these interventions people with disability sometimes
cannot survive, and if they do, they are unable to reach their full
potential. The impact of impairment is frequently exaggerated by the
failure to provide appropriate medical and social service interventions.
It is essential that State parties accept, as a general principle,
the responsibility to protect people with disability from exploitation,
violence, victimisation, abuse, harassment and neglect. State parties
must also, as a general principle, ensure the survival of people with
disability, and the opportunity for us to realise our full potential.
Thank you for the opportunity to address the Ad Hoc Committee.
24 May 2004
Article 4: General Obligations
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We support in principle the Working Group’s current formulation of
draft Article 4 but assert that an explicit statement with respect to
international obligations is a crucial aspect of the convention and
should be added to the text. This statement should be contained within
Article 4 as such obligations are relevant to the entire convention.
In light of the fact that approximately two thirds of the world’s 600
million people with disability live in the developing world, it is essential
that the practical implementation of this convention involve a transfer
of resources, knowledge, technical assistance and policy advice to the
developing world. Without such a transfer, people with disability in
developing countries will not benefit from this convention. A clear
framework of international cooperation will provide the basis for this
transfer.
It is important to understand that in many cases international cooperation
will cost very little, and will amount to information exchange about
technical standards and the provision of policy advice, based on domestic
experience.
It is also important to recognise that there is already substantial
resource transfer occurring between developed and developing states
for example through bi-lateral aid programs and inter-governmental bodies
such as the World Bank and the World Health Organisation. It is critical
that these aid programs respect the human rights of people with disability,
as enunciated by this convention.
It is of fundamental importance that there be international cooperation
in the area of trade and commerce. This is particularly so in relation
to the setting of compatible standards, for example standards governing
accessibility in telecommunications, copyright etc.
This will result in no extra outlay for developed states but vastly
improved outcomes for people with disability in developing countries
That concludes our intervention. Thank you Mr Chair.
24 May 2004
Article 6
Mr Chairman: Thank you for this opportunity to address the Ad Hoc Committee.
We strongly support the content and intent of draft article 6. However,
statistics and data collection are not appropriately characterised as
a human right. In our view, they represent operational activities that
should be included with other operative provisions at the end of the
convention.
Statistics and data collection on the prevalence of disability and
enjoyment of human rights by people with disability is essential to
effective policy development, planning and evaluation of disability
initiatives at both the national and international levels. In this respect,
the opening paragraph of this article could be improved in three ways.
First, by incorporating direct references to ‘planning’ and ‘evaluation’
as activities supported by effective statistics and data collection.
Second, by making it clear that States have a direct obligation to collect,
analyse and codify disability-related statistics and other data, rather
than to merely ‘encourage’ others to do this. Third, by inserting a
requirement that States make disability related statistics and other
data publicly available. This will facilitate effective policy development,
planning and evaluation by the private sector.
Disability statistics and other data play an important role in policy
development, planning, and evaluation of international aid programs,
standards development, and trade liberalisation measures etc. The development
of consistent statistical and data collection methodologies between
countries is therefore a key priority for international cooperation.
We therefore recommend the inclusion of an additional paragraph promoting
the development, through international cooperation, of consistent statistical
and data collection methodologies between States.
Thank you for the opportunity to address the Committee.
Article 7
Intervention by (Australian) National Association of Community
Legal Centres, People with Disability Australia Incorporated, Australian
Federation of Disability Organisations
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We have three points to make in relation to this article.
Firstly, we note the EU’s proposal that references to equality be removed
from article 7. In our view, substantive equality of people with disability
is critical to the realisation of human rights and must have a central
position in this convention. Equality is an ethical standard, which
is given effect through non-discrimination mechanisms. That being the
case, we would support the removal of references to equality from article
7 only on the basis that equality is incorporated into article 4 as
a general state obligation or that a stand alone article is developed
and expressed so as to apply to all other articles of the convention.
Secondly, the current structure, clarity and scope of the article could
be significantly improved. In our view, the article ought to commence,
as it does, with a paragraph that provides a clear and comprehensive
prohibition of discrimination on the ground of disability. The next
paragraph ought to then set out a clear obligation on States to ensure
that the participation requirements of people with disability are reasonably
accommodated. This paragraph ought also to require states to compel
reasonable accommodation by State and non-State actors. The paragraph
ought to clearly set out that failure to provide reasonable accommodation
amounts to discrimination on the ground of disability. The next paragraph
ought to set out exceptions to the prohibition of discrimination, which
in our view ought to be limited to an ‘ordre public’ (public order)
exception and an ‘active (special) measures’ exception. Both exceptions
ought to be very narrowly framed, so as to ensure that other human rights
obligations continue to apply, and that while the measure itself may
be excepted, all acts done in its administration and implementation
remain subject to the prohibition on discrimination. Both ought also
to be expressed as subject to the principle of the ‘least restrictive
alternative,’ and acceptance of an active measure by a person with disability
must be voluntary. The next paragraphs should then define the key concepts
on which the article turns – discrimination – both direct and indirect;
reasonable accommodation; and active (special) measures.
Thirdly, the current text of article 7 does not include a definition
of indirect or systemic discrimination. In our view, the term systemic
discrimination can be dispensed with, as systemic discrimination should
be incorporated as the major focus of the definition of indirect discrimination.
We recommend the inclusion of the definition of indirect discrimination
as found in paragraph 2 of the Bangkok draft.
The definition of discrimination must include references to discrimination
on the basis of:
1. suspected, imputed, assumed or possible disability,
2. association with a person with disability (for example, paragraph
5 of the Bangkok draft),
3. past disability or the effects of a past disability, and
the characteristics of a disability.
Thank you for the opportunity to address the Committee.
Draft Article 9
Mr. Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We strongly support the inclusion within the draft text of the four
key rights that underpin draft article 9:
• That all people with disability have the right to recognition everywhere
as persons before the law (as recognised in article 16 ICCPR and sub
paragraph (a))
• That all people with disability have the right to be presumed to
have full legal capacity to make our own decisions in all areas of life
(as recognised in article 15 CEDAW, the common law of various States
Members’ jurisdictions and sub paragraphs (b) to (d));
• That all people with disability are entitled to the full and equal
enjoyment of the same rights and protections before and under the law
as all other people (as recognised in articles14, 15 and 26 ICCPR and
sub paragraph (a)); and
• That all people with disability have the right to own and administer
property (as recognised in article 17 UDHR, articles 13 and 15 CEDAW
and sub paragraphs (d) to (f)).
We believe that these rights represent the necessary preconditions
to the effective exercise of our rights as individuals with disability.
We therefore strongly recommend the inclusion within the text of separate
articles devoted to each of them, in substitution for draft article
9, because with respect to the Working Group, draft article 9 as currently
framed is not clear enough and does not go far enough. Its problem is
that it conflates and confuses these four quite separate rights.
When considering including an additional article in respect of the
right of people with disability to own and administer property, we can
commend to this honourable Committee the formulation of that right found
at article 25 of the Bangkok Draft.
When considering additional articles in respect of equality before
and under the law, and legal personality, we are unable to draw upon
any other draft articles for the Committee’s reference, but believe
in any event that articles in these areas should as closely as necessary
follow the form of those articles in the pre existing human rights Treaties
already referred to.
In respect of the right to be presumed competent, we believe that much
more needs to be stated in the text than currently appears.
On that topic, at the outset let us say that we do believe that there
are both situations where a person with disability does in fact lack
the capacity to understand the nature and effect of decisions that affect
them (a person in a coma is a case in point), and where a person with
a disability understands the nature and effect of decisions that affect
them but for various reasons may not be able to exercise that legal
capacity. In both cases where a decision of importance is required to
be made, we believe that appropriately safeguarded guardianship legislation
and structures remain an essential part of a range of assisted and substitute
decision-making options. This will enable people with decision-making
disability to exercise their legal capacity where the choice of such
options is directly proportionate to the degree of assistance required
without interfering with the person’s legal capacity, rights and freedoms.
In this respect we support the wording of sub paragraphs (c) (i) and
(d), but recommend a substantial redrafting of sub paragraph (c) (ii)
to further elaborate the procedural safeguards necessary to support
the full range of assisted and substitute decision making options from
the most informal, culturally appropriate and least restrictive to the
more formal options of limited and plenary guardianship. Principle 1
(6) of the Principles for the Protection of Persons with Mental Illness
and for the Improvement of Mental Health Care provides assistance in
this regard so far as safeguards around the more restrictive options
of formal guardianship orders are concerned.
It is also essential for this article to guarantee people with disability
access to competent legal aid in relation to all these matters, and
we strongly support the International Labor Organisation’s intervention
in this respect.
Draft article 12 - FREEDOM FROM VIOLENCE AND ABUSE
Thank you Mr Chairman,
We strongly support the content of draft article 12 but recommend the
following amendments:
(a) it is crucial to add harassment, victimisation, emotional and mental
abuse to the types of abuse specified in paragraphs 1,3, 4 and 5, and
to add references to economic exploitation. Violence and abuse occur
in many forms, some of which, such as mental or emotional abuse, are
often unrecognized. Their inclusion in this document will assist in
highlighting these forms of abuse;
(b) the article should contain an acknowledgement that certain groups
of people with disability are subject to even greater levels of abuse,
particularly women and children with disability, indigenous people with
disability, and people with multiple and severe impairments;
(c) the article should also address the fact that people with disability
are systemically excluded from programs, information and services provided
to the general population with the aim of reducing exposure to violence,
and emergency and short-term residential and other support services
provided to people escaping violence. The article ought to include a
paragraph guaranteeing that violence prevention and relief services
are fully accessible to people with disability;
(d) the phrase “in and out of the home” in paragraph 1 should be replaced
with the phrase “in all aspects of life;” and
(e) the references to state responsibilities which occur throughout
the article could be consolidated in a new paragraph for the purposes
of clarity.
Finally, we support those comments that have been made to date regarding
the need for a separate article dealing with the human rights of people
with disability in circumstances of emergency, for example, refugees.
Thank you for your attention.
Draft article 13
Mr Chairman:
Thank you for the opportunity to address the Ad Hoc Committee.
The ability to communicate and receive information in Braille, sign
language, plain-language, and by other alternative or augmentative means
is an instrumental pre-condition to the exercise of the civil and political
right of Freedom of Expression. It is therefore appropriate that accessible
means of communication are given detailed attention in this Convention.
Nevertheless, accessible means of communication are only one dimension
of the human right of Freedom of Expression. The current drafting of
this article creates the risk that accessible means of communication
will be taken to be the only dimension of the right of Freedom of Expression
applicable to people with disability. We therefore suggest either that:
(a) accessible means of communication are dealt with instead in either
draft article 18 Participation in Political and Public Life, or draft
article 19 Accessibility; or
(b) the text of the article commences with the phase “Freedom of Expression
and Opinion includes the right to communicate by accessible means.”
This will avoid any potential for the particularity of this draft article
to derogate from the overarching and multidimensional right of Freedom
of Expression, which is applicable in all respects to people with disability.
Sub-paragraph (b) requires States parties to ‘accept’ the use of alternative
modes of communication. While this is welcome, we believe the article
needs to be significantly strengthened to require official recognition
of sign language. In most States of the world, including Australia,
sign language is not officially recognized. This results in inequality
before the law, and an inability to enjoy other rights and duties of
citizenship for people who are deaf. A number of States, including most
recently New Zealand, have recognized sign language as an official language,
and we believe it is critical that this emerging human rights norm is
mandated in this convention.
The Bangkok draft equivalent of this article also requires that accessible
means of communication are provided in a timely manner, and without
additional cost. We believe it is important that the article is amended
to incorporate these imperatives.
It is important that recognition of accessible means of communication
includes the obligation to provide information in easy-language formats
that will facilitate comprehension of information by people with cognitive
disability or people who have limited literacy.
Additionally, the terms of the article also require some refinement
– “equal footing” in the opening paragraph should be amended to read
“on equal terms” and the term “encouraging” in sub-paragraph (f) should
be significantly strengthened to read “requiring.” This would more properly
address the fundamental importance of non-State actors also being bound
by the terms of this convention, given the impact of their activities
on the lives of people with disability.
Thank you for the opportunity to make this intervention.
Draft article 14
RESPECT FOR PRIVACY, THE HOME AND THE FAMILY
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We support in principle the content of draft article 14 but believe
that the subject matter should be divided into two separate articles.
One article should deal with privacy and the other, personal relationships.
With respect to privacy we recommend two amendments to paragraph 1:
• First, as footnote 45 suggests, the term ‘correspondence’ should
be replaced with the more encompassing term ‘communications;’
• Second, the term ‘medical records’ should be broadened to ‘personal
information, including medical records.’ This would ensure that other
personal information that cannot be characterized as medical information
would also receive privacy protection.
With respect to the home and family we recommend the following amendments:
• First the scope of the article ought to be broadened to encompass
all personal relationships, including family relationships, but not
limited to them. In this respect, it is our view that the title of the
article should also be amended to refer to “personal relationships,”
and that the term “marriage and family relationships” paragraph 2 ought
to be amended to read “personal relationships, including marriage and
family relationships.”
• We believe this convention must contain an explicit prohibition on
the sterilization of children and adults with disability for non-therapeutic
purposes (by “non-therapeutic” we mean sterilization other than that
necessary for therapeutic purposes to save life or avoid serious illness).
Non-therapeutic sterilization, whether ‘forced’ or not, is a violation
of fundamental human rights. It is not sufficient to provide protection
against forced sterilization, as sterilization of children most often
occurs at the request of a parent, as guardian of the child, rather
than as a result of State action. In this respect it is ‘voluntary’
rather than coerced. The prohibition on non-therapeutic sterilization
must therefore also encompass voluntary conduct by parents and others
seeking sterilization of their children. This prohibition might be located
in 12 as suggested by some delegations yesterday or article 14.
• The second sentence of sub-paragraph (d) is applicable to both sub-paragraph
(d) and (e), and is perhaps of greater significance to sub-paragraph
(e). We therefore recommend that this sentence is either relocated to
the end of paragraph (e) – which would then encompass (d) as it refers
to parents – or established as a sub-paragraph standing alone. We also
recommend that the phrase ‘ on an equal basis with others’ is inserted
after ‘the rights of persons with disabilities’ to make it clear on
what basis this right is to be enjoyed. This is consistent with the
approach taken in sub-paragraphs (a) and (c).
• We recommend the deletion of the term ‘against their will’ in the
first sentence of paragraph (e). It is not clear whether the term applies
to the child or to the parent, or both. If it applies to the child,
we are concerned that it may result in circumstances where children
can be removed voluntarily without appropriate procedural safeguards,
including judicial review.
• We strongly urge against the insertion of the word ‘solely’ in subparagraph
(e) as suggested by footnote 50. Disability should never be a justification
for the separation of children from their parents – whether it is the
child or parent, or both, who are disabled. Where other factors are
involved in the decision to separate children, those factors should
be the only basis for the separation. There is a risk of creating a
loophole that would permit authorities to separate children from parents
with disability by relying on a secondary reason that may not in itself
be sufficient justification for the separation.
• Finally, we strongly urge the inclusion of a new sub-paragraph guaranteeing
children and parents access to legal aid in relation to these rights.
Thank you for the opportunity to make this intervention.
Draft Article 15
Intervention by (Australian) National Association of Community
Legal Centres, People with Disability Australia Incorporated, Australian
Federation of Disability Organisations
Mr Chairman:
Thank you for the opportunity to address the Ad Hoc Committee.
We intervene briefly to strongly support the terms of this article.
The ability to live independently in the community with the support
services necessary for this to occur is fundamental to the realization
of many human rights.
The continued institutionalization of people with disability remains
one of the greatest abuses of our human rights. It is essential that
this convention place an unequivocal obligation of State and non-State
actors to cease institutionalizing people with disability, in disability
specific institutions, as well as other institutional settings, such
as residential aged care facilities (which is a major concern in the
Australian context).
In this respect it is important that sub-paragraph (b) is strengthened
to require States to eliminate institutional care, rather then merely
“not oblige” people with disability to live in institutions. If institutional
care is the only form of residential of accommodation available, people
with disability will have no choice but to accept this form of assistance.
Institutions must therefore be removed entirely from the spectrum of
State provided or supported residential services. We also believe the
article ought to require States to develop and implement plans to relocate
people with disability who are currently institutionalised to the community
along with the supports they require for successful community living.
It is also important that sub-paragraph (c) is particularized to the
circumstances of families and children with disability. Children with
disability must be enabled, wherever possible, to grow up in the context
of a family, preferably with their birth family, but where this is not
possible, in a substitute family, with the support services necessary
to enable this to occur.
Thank you for the opportunity to make this intervention.
Draft article 17
Mr Chairman:
We support footnote 55 of the working group text, which suggests that
Article 17 should make explicit reference to “training” in addition
to education.
We recommend that references to children and primary education are
replaced with broader terms to ensure this article applies to education
at all life stages. This would allow sub-paragraph 5 to be deleted.
We strongly urge States to maintain the obligation to provide inclusive
education to people with disability. We are disappointed that some States,
including Australia, have sought to water down these obligations by
qualifying phrases that impose duties on States. Education is essential
to the proper realization of human rights. States who have made a commitment
to equality for people with disability earlier in this debate cannot
now abrogate that responsibility by reducing state obligations to mere
options.
We recognize the importance of specialist education in disability specific
language and skills for particular groups, but believe that such education
should be provided inclusively within the mainstream education system.
For example, it may be that a student enrolled in a mainstream educational
facility will need to attend separate classes for the purpose of learning
Braille or sign language.
Students receive much more than purely academic learning and development
within an educational environment. Many social and life skills are also
acquired, often informally. It is important that people with disability
have the opportunity to interact with other students and teachers without
disability for at least three reasons:
(a) people with disability, during and once we have completed our education,
will be interacting with the wider community where broad life experience
and skills are essential for continuing participation in society;
(b) interaction between students with disability and students and teachers
who do not have disability promotes a general understanding and awareness
of disability which in itself promotes a more inclusive society; and
(c) people with disability form life-long networks during their education.
It is important that they have the opportunity to develop these networks
with non-disabled as well as disabled people.
We strongly recommend that paragraph 1 is amended to recognise the
right of all persons with disability to an inclusive education in a
school of our choice in our local community and urge delegates to delete
paragraph 3, which would justify continued discrimination against, and
segregation of, people with disability.
Finally, we support the International Labour Organisation’s recommendations
concerning greater recognition of school to work transitional education,
and other vocational and vocational rehabilitation training in this
convention.
Thank you for the opportunity to make this intervention.
Draft Article 18
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
The ability to effectively participate in civic affairs on equal terms
with others is a condition precedent to the enjoyment of human rights.
Due to structural and personal disadvantage, social isolation, discrimination,
stigma and impairment, people with disability require specific assistance
to participate in civic affairs on equal terms with others.
For this reason we applaud sub-paragraph (b) (ii) which recognizes
the right of people with disability to form and join organizations of
people with disability at national, regional and local levels. However
we believe this obligation should be strengthened in three key respects
as proposed by the Bangkok draft.
First, the article should make clear that people with disability are
entitled to form and join ‘independent’ organizations. The independence
of our organizations is a key dimension not captured in the current
draft text, and is crucial to the integrity of our civic participation.
Second, the article ought to require States to “provide recognition
and financial support to such associations in order to promote the full
realization of the rights of persons with disability” as also proposed
by the Bangkok draft. In the absence of public financial support for
organizations of people with disability they will not be able to fulfill
their role within civil society.
Third, the levels of participation of organizations of people with
disability ought to be expanded to also recognize the crucial role they
have to play at the international level, as our participation in the
development of this convention clearly demonstrates. The role of our
organizations in international affairs will become increasingly important
as this convention enters into force, and as intergovernmental bodies
and other multinational entities begin the process of adjustment to
the requirements of the convention. Organisations of people with disability
will have a crucial role to play in reporting, monitoring, and other
compliance measures in relation to the implementation of the convention.
Sub-paragraph (c) requires States “to ensure that persons with disabilities
and their organizations participate, on an equal basis to others, in
all decision-making processes, in particular those concerning issues
relating to persons with disabilities.” In our view this sub-paragraph
ought to be strengthened to require States to recognize the primacy
of the participation of people with disability in decision-making processes
that affect our lives. We want more than equal standing with others
on these matters. To facilitate our participation in public policy development,
we believe the article ought to require States to establish central
disability policy coordination points within and across Government.
In relation to establishing the right to accessible voting procedures,
the scope of sub-paragraph (a) needs to be expanded to add the words
“information and materials” to “voting procedures and facilities.” This
is to ensure all dimensions of the voting process are accessible to
people with disability. The article must also prohibit State laws from
denying voting rights to people with disability on the basis on mental
illness or intellectual impairment.
Finally, some of the language of the article requires significant strengthening.
The term “actively promote” in paragraphs (a) and (b) should be replaced
with the term “to ensure” in recognition that civic participation, including
the right to vote are civil and political rights that must be immediately
realized. The term “appropriate” in sub-paragraph (a) (i) should be
deleted as it adds nothing to the meaning of the sub-paragraph and may
allow it to be read down. For the same reason we recommend deletion
of “as appropriate” from the chapeau of sub-paragraph (b).
Thank you for the opportunity to make this intervention.
Draft Article 19
Accessibility
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
This is a fundamentally important article in this convention, which
is directed towards the removal of the structural barriers that disable
people with impairments within our societies. However, the scope of
the article as it is currently drafted is inadequate to remove many
barriers, as key areas, such as goods, equipment, electronic commerce,
aids and appliances are either omitted, or not necessarily included
in the terms used in the article. This is principally because in the
chapeau the article does not refer to key areas and uses terms at different
levels of generality; for example, “transport” and communications,”
are examples of “services” but “services” are listed alongside them.
This creates ambiguities and potential gaps in the scope of the article.
To address these drafting problems, the chapeau should be redrafted
to impose a general obligation to remove all barriers in the areas of
“the built environment, goods, services (including transportation, information,
and communications), facilities, information technology, electronic
commerce (including banking), equipment, aids and appliances.” In this
respect, we make the point that this article might achieve more if it
was more generally framed, and if its specific applications, and implementation
requirements were removed, and taken up in more flexible subsidiary
standards and advisory documents developed through international cooperation
once this convention enters into force.
The article is also far too focused towards the built environment,
which either directly or by implication limits its applicability to
other areas. For example, sub-paragraphs 2 (a) and (b) limit the requirement
to provide Braille and sign languages interpreters to public buildings
and facilities. States must accept a general obligation to remove barriers
in all aspects of the social environment.
The article is also inappropriately limited to the ‘public’ sphere.
Non-state actors are responsible for most of the built environment,
and goods, services, facilities, information technology, electronic
commerce (including banking), equipment, aids and appliances. The article
must be reframed to ensure that the obligation to create an accessible
environment applies to State and non-State actors in equal terms.
One critical area clearly, but very inappropriately, excluded from
this article is domestic (or private) residential accommodation. The
inaccessibility of domestic residential accommodation is one of the
greatest contributors to the extra costs of disability (as funds must
be expended to modify inaccessible premises), to social isolation (as
it prevents people with disability from visiting friends and family
on equal terms with others), and to reliance on specialist services,
which become necessary to compensate for the inaccessibility of the
domestic environment. It is essential that this convention mandates
universal design for residential accommodation.
We also believe the obligation to “develop detailed national standards
for accessibility” set out in paragraph 1 of the equivalent article
in the Bangkok draft ought to be included in this article.
We strongly believe the words “appropriate measures” in the first line
of the chapeau should be replaced with the word “progressive measures”
to make it clear that accessibility is to be achieved within a clear
framework of progressive realization.
Thank you for the opportunity to make this intervention.
Draft Article 20
Mr Chairman:
We intervene briefly to strongly applaud the terms of this article.
Personal mobility is crucial to the independence, dignity, and positive
self-concept of people with disability. It is also essential to our
social and economic participation.
It is important to fully appreciate that the issue of personal mobility
is critical to a number of impairment groups, not just people with physical
impairments who rely on mobility devices, such as scooters and wheelchairs,
for mobility. For example, people who are blind require orientation
technology, audible announcements, tactile indicators, and Braille signage
in order to successfully navigate the community. People with intellectual
impairment also require audible announcements and signage in plain-language
if they are to do so. The article must be amended to ensure that it
explicitly encompasses the mobility needs of people from all relevant
impairment groups.
We are concerned about the reference to the universal design in sub-paragraph
(b). The principles of universal design apply to the built environment
and generic goods, services, and facilities etc. It aims to create artifacts
that are accessible to the largest number of people without the need
for specific adjustments. In this respect it would be applicable to
audible announcements and signage. However, this article largely deals
with devices that are designed to meet the specific requirements of
people with disability. Many of these devices are highly individualized.
They cannot be universally designed.
In relation to the second part of subparagraph (b) we propose that
the word “encouraging” is replaced with the word “ensure.” Non-state
actors are the principal producers of mobility aids, devices and assistive
technologies, and it is essential that States require them to comply
with the terms of this convention.
We urge delegates to amend sub-paragraph (e) to require the development,
on the basis of international cooperation where applicable, of international
design standards for mobility aids.
We draw attention to sub-paragraph (c) of the equivalent article in
the Bangkok draft and urge delegates to include it in this article.
It requires that “the built environment is designed or adapted to facilitate
the mobility of persons with disabilities with the greatest possible
independence.” While some aspects of these requirements are dealt with
under draft article 19 (2), the requirements set out there currently
apply only to buildings and facilities, rather than to the built environment
more generally.
We also seek the addition to two new sub-paragraphs –
(a) which should require States to take effective measures to ensure
the timely availability of affordable maintenance and emergency repair
services for mobility devices and appliances; and
(b) which would require states to allow the portability of personal
mobility aids and devices purchased or granted through public subsidy
across internal and international borders without cost.
Thank you for the opportunity to make this intervention.
Draft Article 21
Thank you Mr Chairman:
We support both government and non-government interventions which state
that rehabilitation should be removed from article 21 and developed
into a separate article, that both the health and rehabilitation articles
be strengthened and that reference should be made to community based
rehabilitation. With these interventions in mind, we now make the following
comments:
We support the interventions which recommend that there should be specific
mention of issues relating to women’s health. We also recommend that
there should be specific mention of the health and rehabilitation needs
of children and a requirement that these needs be elaborated and addressed
explicitly.
With regard to those interventions which recommended the involvement
of people with disability in the design and provision of health and
rehabilitation services, we also note that it is important to ensure
that people with disability are involved in the monitoring and review
of rehabilitation and health services.
The current wording of draft article 21 does not address two important
areas of health care – oral health (including dental care) and mental
health. It is our recommendation therefore that the text of the article
be amended to include explicit reference to these areas.
Oral care and mental health are vital for the proper enjoyment of life.
Oral care is often omitted from mainstream health care, but is equally
as important as other forms of medical care, particularly when it comes
to the ability to maintain proper nutrition, to avoid pain caused by
poor oral health, and to properly enjoy the act of eating. Without provision
for proper mental health care, people with disability may experience
increased levels of distress and impaired functioning which may impact
upon our ability to enjoy the other rights set out in this convention.
The article should be amended to specify that persons subject to compulsory
assistance on the basis of mental illness should not be accommodated
in a criminal justice institution. Likewise, if an individual is diverted
from the criminal justice system on the basis of mental illness, that
individual must not then be detained within the criminal justice system,
but should be provided with treatment within the health care system.
In any event, the provision of health care must never be used as a
punishment.
We note that sub paragraph (j) provides that health information cannot
be shared without the consent of the person with disability. We would
recommend an exception in the case of emergency. The exemption would
need to be carefully worded as to only apply in situations where the
exchange of information is vital to the preservation of life or in situations
where the absence of necessary information will lead to additional harm.
An obvious example is the situation involving the quick access of information
before providing an emergency intervention on a person who is unconcious
and thereby unable to give consent.
Finally, we note sub-paragraph (f) and the corresponding footnote (footnote
78) which makes reference to the issue of genetics. On this point, we
refer back to our intervention on article 8 – Right to Life, and reiterate
that genetic information should not be used as grounds for the elimination
of, or discrimination against, people with disability.
Thank you
Draft Article 22
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We strongly support the intervention of the ILO in proposing amendments
to Article 22, and in particular welcome the suggested reference in
the chapeau to “women and men” with disability, a reference which effectively
deals with the Working Group’s concerns at FN 87.
In a similar vein, we would like to propose amendments dealing with
the particular situations and vulnerabilities of young people and geographically
isolated people with disability. These groups experience aggravated
forms of discrimination, oppression, and lack of equal access to employment
opportunities.
As regards children and young people, we suggest the insertion in the
chapeau of the words “of lawful working age” after the phrase “women
and men with disabilities”. We believe that this proposal directly tackles
the issue of the forced labour of young people with disability, and
effectively undermines any argument that people with disability not
of lawful working age have a “right” to be employed, when they should
instead be receiving an education.
In respect of geographically isolated persons with disability, we note
the way in which this issue is addressed within the Bangkok draft, and
we suggest the creation of a new paragraph within the Article in substantially
similar terms:
“States Parties shall ensure that the measures articulated in paragraph
1 are implemented and apply equally and without discrimination to people
with disability in rural or remote areas, in small island communities,
or in scattered populations”.
We also support the ILO’s suggested amendment to sub par ( c ) proposing
alternative forms of employment. The ILO amendment will ensure that
work in such alternative forms of employment does not become a permanent
situation for people with disability, and that planning and services
to facilitate a person’s entry or re-entry into the open labour market
will be provided.
It is also important to note that such alternative forms of employment
are not stated to lie outside States Parties’ labour laws governing
working conditions, including laws dealing with the principle of equal
pay for work of equal value referred to in sub par (g). Accordingly,
workers in such alternative forms of employment shall be entitled to
the same rates of pay as workers in the open market performing work
of similar value.
We would suggest, however, that the reference to such alternative forms
of employment be further amended by requiring that such forms of employment
be provided within inclusive, mainstream employment settings. Such a
requirement would ensure that the transitional nature of the alternative
employment forms are emphasised, and that permanent and totally segregated
employment services for people with disability are avoided.
We also recommend that:
Sub-pars (b) to (d) inclusive are amended to commence with the words
“Ensure that”, along with necessary consequential amendments, rather
than with the phrases “enable”, “promote” and “encourage” respectively;
Sub-par ( c ) is amended to insert the words “maintaining and” before
the word “retaining employment”;
Sub-par (d) is amended to insert the words “services to support people
with disability in the workplace” after the words “wage subsidies”;
Sub-par (g) is amended to insert the words “workplace training” after
the words “continuance of employment”;
Sub-par (h) is amended to add the words “at all levels” after the words
“public sector”.
We further suggest the insertion of a new sub-par (j) to provide as
follows:
“Incorporate the measures referred to in sub-paragraphs ( a ) to (i)
of this Article into domestic legislation.”
Thank you.
Draft article 23
Social Security and an Adequate Standard of Living
Mr Chairman:
Thank you for the opportunity to address the Ad Hoc Committee.
Many people with disability have much greater needs for social assistance
than other members of the community. This includes many specialist services,
including personal care, supported accommodation, therapy, equipment,
aids and appliances. These are “special measures,” much broader than
is encompassed by the term ‘social insurance.’ We therefore urge delegates
to replace the term social insurance with the term social assistance
in the second line of the chapeau as suggested by footnote 99.
Given that the measures outlined in this article will be, in the main,
special measures, there are conceptual problems with the reference to
the “enjoyment of this right without discrimination.” This may have
the unintended effect of prohibiting the targeting or prioritising of
measures for specific population groups. On the other hand, as we have
previously submitted in relation to article 7, it is important that
the administration of “special” measures is subject to non-discrimination.
We therefore believe the chapeau must be carefully redrafted so as to
apply the principle of non-discrimination to the administration of “special”measures,
but not the policy of the “special” measure itself.
In relation to sub-paragraph (c) we propose that the words “living
in situations of poverty” are deleted. The extra costs of disability
are a major issue to be addressed even in the most developed countries,
where the circumstances of the individuals concerned might not accurately
be described as ‘poverty.’ These extra costs are largely related to
social and economic participation, and they therefore must be addressed
if they are not to act as a disincentive to participation. This measure
would be subject to progressive realisation taking into account the
resources available to particular States Parties. It is important that
developed States also understand the applicability of this article to
people with disability and their families within those States. We also
urge the deletion of the phrase “which should not become a disincentive
to develop themselves.” People with disability will typically require
“special” measures in order to develop themselves: “special” measures
are not a disincentive to personal development, they are a precondition
for it.
In relation to (d) we urge delegates to base this provision on universal
housing design, by inserting the words “through universal design” after
the word “ensure.”
Thank you.
Draft Article 24
Mr Chairman:
Thank you for the opportunity to address the Ad Hoc Committee.
We strongly applaud the terms of this article.
It is important that the removal of barriers to information constituted
by intellectual property law (including copyright) applies to all information,
not just cultural information. It may therefore be preferable for this
issue to be dealt with comprehensively in paragraph 2, article 19 “Accessibility.”
It is also important that the word “exhibits” is inserted before the
word “monuments” in subparagraph 1(d) to ensure that exhibits within
places of cultural importance are also made accessible to people with
disability. We would add the word “throughout” after “to” in the third
line of this sub-paragraph to make it clear that all aspects of the
interior of monuments and other sites of cultural significance are to
be made accessible as far as possible.
In relation to sub-paragraph 4(b), we agree with the Landmine Survivors
Network that the word “necessary” should replace the word “same” in
the second line, as people with disability may require the same or specialised
instruction, training and resources in order to participate in mainstream
sport.
We recommend that the two elements of sub-paragraph 4(c) are separated
into two separate articles, as the current conflation of these separate
ideas may give rise to confusion. We also recommend that the words “services
and facilities” are added following the word “venues” in the second
line to ensure that all aspects of this experience are encompassed.
Finally, we are concerned that there is no reference in this article
to sites of religious significance. Many people with disability encounter
significant barriers to participation in religion due to the inaccessibility
of religious sites. It is important that these sites are specifically
encompassed in this article.
Thank you.
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