Landmine Survivors Network
March • 2004

A legal commentary on the draft convention text produced by the Working Group for the UN Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities

PREAMBLE COMMENTS

The preamble is intended in part to explain the relationship between the Convention and prior developments in international law. This Convention focuses on the achievement of full and equal human rights of people with disabilities. In order to more comprehensively describe the fundamental shift in attitudes that are necessary for this Convention to be effective, the Preamble should contain language expressing the shift in the perception of disability from one focusing on the individual impairment, to one focusing on the barriers associated with any form of impairment, which result in deprivation of human rights of people with disabilities. For a thorough example of the exploration of such concepts, the Ad Hoc Committee should reference New Zealand’s description of “disablement”. (Cf. New Zealand’s view on the Convention on the Rights of Disabled People)

Even though the preamble of a treaty is not an operative part of the treaty, the preamble provides a useful historical context and the rationale for introducing a new instrument into the body of international law. The Draft Preamble contains, in many instances, resolution-like language, with words such as “concerned”, and the Ad Hoc Committee may wish to consider the appropriateness of such language.
Draft Preamble paragraphs (a) and (b) represent standard language used in human rights conventions (Cf. International Covenant on Political and Civil Rights; Covenant on Economic, Social and Cultural Rights, Convention on Elimination of All forms of Discrimination Against Women, etc.).
Draft Preamble paragraph (c) contains language that has not been introduced in previous submissions of the draft text. The reference in this paragraph is to the Vienna Declaration (1993), paragraph 5: “All human rights are universal, indivisible and interdependent and interrelated.”

Draft Preamble (d) is consistent with principal human rights conventions in force. In addition, similar language can be found in the preamble to the Vienna Declaration (1993) and in the preamble to the UN Standard Rules.

Footnote 2 mentions the discussion during the Working Group meeting regarding the inclusion of the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families in the reference to relevant human rights documents. Taking into consideration that this is one of the core human rights treaties and has entered into force, it is unclear why this specific treaty would not be mentioned.
Paragraph (e) references the UN Standard Rules. Given that the Standard Rules summarize the message of the UN World Programme of Action, the Ad Hoc Committee may find it appropriate to include reference to the UN World Programme of Action as well.

Draft Preamble paragraph (f) refers to the principle of non-discrimination. The Committee may find it appropriate to discuss the need for this paragraph. Paragraphs (c) and (d) refer to discrimination, thus this separate paragraph would seem redundant, especially given the fact that this is a comprehensive, not only an anti-discrimination Convention.

The operative word in the paragraph (h), “concerned” is an example of the resolution-like language that is present throughout the Draft Preamble. The European Union’s proposal for the Convention contains similar language: “Concerned that despite these various instruments and undertakings persons with disabilities continue to face barriers to the effective enjoyment of human rights and fundamental freedoms”. It would be helpful for the Committee to consider changing this word to “recognizing” for the sake of consistency with other human rights Conventions.

Paragraph (i) is especially important, because it affirms the principle of international cooperation. Footnote 4 considers alternative language, which places an emphasis on developing countries in the context of international cooperation. Even though this language stems from the Convention on the Rights of the Child, it is important to realize the comprehensive nature of international cooperation necessary for the effective implementation of the Convention (ie. not only north to south based cooperation). Thus, reference to global cooperation is sufficient for the purposes of this Convention. (Cf. Vienna Declaration Paragraph 20 and 25)

Paragraph (j) emphasizes the ongoing efforts of people with disabilities and their organizations, as well as linking the promotion of human rights of people with disabilities with other objectives, notably development. The Vienna Declaration contains reference to language of human rights and development. The reference is to past and potential future contributions of persons with disabilities and their organizations to the cause. However, because of language implying future efforts, the paragraph should read “of persons with disabilities,” not “made by.”

One of the functions of the preamble is to preliminarily identify principles and objectives of the Convention. The language in the paragraph (k) fulfills that function by referring to the “individual autonomy” and “independence” of people with disabilities. The Committee may also wish to consider including language of self-determination/autonomy expressed in the Vienna Declaration.

Paragraph (l) contains language referring to the importance of participation of people with disabilities in decision-making processes. It is noteworthy that this is a weaker formulation than that used in the Vienna Declaration, which uses the word “essential.”

Footnote 5, which cites to Footnotes 101, 102, and 103, expresses the debate in the Working Group regarding the importance and feasibility of including this language, as some members were concerned with the difficulties of defining terms included. However, this language is important as it recognizes the existence of aggravated discrimination facing these disadvantaged groups in society. Again, the Committee may wish to reconsider usage of the word “concerned,” as it is more resolution, rather than Convention language.

The Draft paragraph (n) invokes a gender perspective. This is a very important reference to women and is consistent with the resolutions of the Committee on Human Rights. In addition to gender, the Committee may also consider including reference to ethnic and racial minorities.

Draft paragraph (o) refers to poverty. This is also very important language, though it may be adequately covered in paragraph (j), as it appears repetitive.

Draft paragraph (q) reflects the major target areas for equal participation set forth in the UN Standard Rules, Rules 5-12. The Committee may consider using a stronger phrase than “important,” because the concept of accessibility is one of the fundamental principles of the paradigmatic shift in the perception of disability in society.

Draft paragraph (r) fulfills one of the functions of the preamble, which is to reaffirm the need for the Convention, and in this case, it emphasizes the comprehensive nature of the Convention. (Cf. Convention on the Rights of the Child; Convention on the Protection of the Rights of Migrant Workers and Members of Their Families).

DRAFT ARTICLE 1 COMMENTS

Although the objectives of international human rights conventions are usually extrapolated from general obligations provisions found in the initial articles, prevailing international law practice in treaty drafting is to more explicitly articulate treaty objectives in a separate article. (Cf. Framework Convention on Climate Change, Article 2) By including a separate provision outlining the purpose of the convention, the Working Group text is consistent with this practice.

Footnote 7 raises the question considered in the Working Group namely whether international cooperation might be appropriate to include as an objective. Reference in this regard may be made to the inclusion of international cooperation as an objective in a number of other conventions. (Cf. Convention to Combat Desertification, Article 2) Alternatively, international cooperation may be included as a general principle of the convention. (Cf. Framework Convention on Tobacco Control, Article 4(3))

Footnote 8 provides an alternative – and substantially weaker – statement that represents a departure from formulations set forth in other international human rights conventions. (Cf. International Convention on the Elimination of All Forms of Racial Discrimination, Article 2; Convention on the Rights of the Child, Article 2)

DRAFT ARTICLE 2 COMMENTS

The identification of specific principles to aid in the interpretation and implementation of a treaty is a well-recognized practice in international law. In the context of international human rights law for example, the Committee on the Rights of the Child identified four main principles (non-discrimination, best interests of the child, survival and development, and participation) through its analysis of the text of the Convention on the Rights of the Child. (Cf. Committee on the Rights of the Child, General Comment No. 5, CRC/GC/2003/5), drawing on Articles 2, 3, 6 and 12 respectively) The approach of the Working Group here is to expressly articulate the principles towards the beginning of the draft treaty text, after the section on objectives/purpose. This is an approach commonly utilized in international environmental treaties which leaves no ambiguity as to the principles to be applied. (Cf. Convention to Combat Desertification, Article 3; Framework Convention on Climate Change, Article 3)

The principles selected for inclusion in the draft text by the Working Group, are found in numerous existing human rights instruments, including the six core international human rights conventions, the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, and the ILO Convention concerning Vocational Rehabilitation and Employment (of Disabled Persons). It was also suggested that international cooperation be included as a general principle for the Convention. (Cf. Summary of the discussions held regarding the issue of international cooperation to be considered by the Ad Hoc Committee, ANNEX II A/AC.265/WG_)

The Ad Hoc Committee may wish to consider referring to “inherent dignity” in paragraph (a) instead of “dignity” (Cf. International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, preambles), and in paragraph (c) the use of the term “participation,” which is broader than “participants.” (Cf. Convention on the Rights of the Child, Article 23(1); and UN Standard Rules para. 14) The Committee may also wish to consider whether reference to “citizens” in (c) may be too limiting, as it could have the effect of excluding coverage of people with disabilities who are resident non-citizens.

In contemplating Article 2, the Ad Hoc Committee may find it helpful to revisit the contribution of the Danish Human Rights Institute to the Second Session of the Ad Hoc Committee, which provides a “Discussion Paper on Founding Principles of a Convention on Rights of Persons with Disabilities.” (A/AC.265/2003/CRP/9, available at: http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm)

DRAFT ARTICLE 3 COMMENTS

Many human rights treaties precede the substantive obligations with a definitions or “use of terms” section, clarifying how terms are to be used and aiding in the interpretation and implementation of the treaty. The Ad Hoc Committee may wish to delay consideration of the definitions section until all the treaty provisions have been finalized, at which point it will be easier to identify which terms are consistently used and should be addressed in the definitions section, and which terms should be defined in the specific article(s) in which they are used.

Footnote 10 indicates that further discussion of Draft Article 19 (Accessibility) will be needed to develop an appropriate definition. The Ad Hoc Committee may wish to take into consideration the definition of “access” used in the Bangkok Draft, as well as the coverage of Accessibility in Article 16 of that draft text.

Footnote 11 references the discussion of whether a definition of “communication” is needed. A number of Working Group members felt that defining “communication” may be too difficult, and may not in fact be necessary for the purposes of the treaty.

Footnotes 12 and 13 reference the discussions regarding the definition of “disability” and “persons with disability.” Within the context of human rights instruments that reference specific populations, it is not uncommon to include a definition of the group(s) of people to whom the treaty applies. (Cf. Convention Concerning Indigenous and Tribal Peoples in Independent Countries, ILO No. 169, Article 1) However, Working Group members questioned the need to include a definition of disability given the complexity of the issue. Others felt the inclusion of a definition essential, particularly for use in countries that do not include a definition of disability in their national legislation, or that utilize a definition that is not broad and inclusive of all people with disabilities. If the Ad Hoc Committee decides to include a definition of disability, it may find helpful the articulation of disability and disablement as a process included in the New Zealand proposal. (Cf. New Zealand’s View of a Convention on the Rights of Disabled People, paras. 7-9 and 23-24) In addressing the inclusion of a definition of “persons with disability,” the Ad Hoc Committee may wish to take into consideration the difficulties associated with defining personhood, and concerns that having to satisfy requirements of being a “person” before the law could act as an undue limitation on the scope of the application of the treaty.

Footnote 14 questions the placement of the definition of discrimination. Human rights conventions that are based on a non-discrimination framework frequently place the definition of discrimination in a definitions section towards the beginning of the treaty. (Cf. International Convention on the Elimination of All Forms of Racial Discrimination, Article 1(1); Convention on the Elimination of All Forms of Discrimination Against Women, Article 1). The structure of the Working Group text utilizes a broader and more comprehensive structure (similar to that found in the Convention on the Rights of the Child), and therefore it may be more appropriate to address the definition of discrimination in Article 7 discussing Equality and Non-Discrimination, or (if Article 7 is split) in a separate article on discrimination.

Footnote 15 addresses the inclusion of a definition of “language.” Whether or not the Ad Hoc Committee chooses to include such a definition, the coverage of linguistic rights will be an important aspect of the treaty, particularly for people with disabilities who utilize sign language and other methods of communication. (Cf. International Covenant on Civil and Political Rights, Article 27; Convention concerning Indigenous and Tribal Peoples in Independent Countries, ILO No. 169, Articles 28 & 30; and Convention on the Rights of the Child, Article 30)

Footnote 16 notes that the concept of “reasonable accommodation” is addressed further, if not completely, in Article 7, and the Ad Hoc Committee may wish to consider whether the definition of “reasonable accommodation” should be placed in the article(s) specifically addressing it.

DRAFT ARTICLE 4 COMMENTS

By including a provision expressly obliging states to give effect to the rights contained in the convention, the Working Group text is reflective of the principle that implementation of international human rights is essentially a domestic issue. In addition, Draft Article 4 also includes the important prohibition against discrimination in giving effect to the rights.

Footnote 18 highlights the concern of some Working Group members over the inclusion of a paragraph on remedies because the draft text includes coverage of civil and political rights as well as economic, social and cultural rights. Although the International Covenant on Economic, Social and Cultural Rights does not include a specific provision on remedies, the Committee on Economic, Social and Cultural Rights has stated that the provision of judicial remedies is “among the measures which might be considered appropriate, in addition to legislation,” and that “the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies.” (Cf. Committee on Economic, Social and Cultural Rights, General Comment 3, para. 5) Therefore, the absence of an explicit provision on remedies in the International Covenant on Economic, Social and Cultural Rights does not preclude the Ad Hoc Committee from including such a provision in this convention, and the exclusion of such a provision re. civil and political rights would depart from human rights law. (Cf. International Covenant on Civil and Political Rights, Article 2(3))

Footnote 19 questions how the progressive realization of economic, social and cultural rights should be addressed in the treaty. As Footnote 19 highlights, the Convention on the Rights of the Child (Article 4) provides language that may be helpful, as it clearly indicates which rights in the Convention would be subject to progressive realization. It should also be noted that Article 4 of that convention also references the utility of international cooperation in implementing rights.

Footnote 20 raises the question of whether the phrase “within their jurisdiction” may be too broad and inclusive? The Ad Hoc Committee may wish to consider the alternative phrasing “within its territory and subject to its jurisdiction.” (Cf. International Covenant on Civil and Political Rights, Article 2(1))

Draft Article 4(1)(a) addresses the types of actions to be undertaken by states to “give effect to this Convention” as well as those that should be changed or discouraged because they are “inconsistent with this convention.” In order to avoid ambiguity, or an overly limiting interpretation that could discourage flexibility in implementation of the convention, the Ad Hoc Committee might consider the alternative phrasing “inconsistent with the object and purpose of this convention.” (Cf. Vienna Convention on the Law of Treaties, Article 18) This alternative phrasing may also be usefully incorporated in Draft Article 4(1)(d), which references acts or practices “inconsistent with this convention.”

Draft Article 4(1)(c) addresses the mainstreaming of “disability issues.” Reference may be made to the UN Standard Rules usage of the term “disability aspects,” which is a broader and more inclusive formulation. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 14)

Draft Article 4(1)(e) is consistent with international human rights law in its coverage of private actors. (Cf. Convention on the Elimination of All Forms of Discrimination Against Women, Article 2(e); Convention on the Rights of the Child, Article 3(1)) Such coverage is particularly important given increasing privatization in the provision of goods and services once provided by public entities.

Draft Article 4(1)(f) addresses important issues of accessibility that, as indicated in Footnote 22, may perhaps be better elaborated in Draft Article 19 (Accessibility).

Draft Article 4(2) requires development of implementation measures “in close consultation with, and include the active involvement of, persons with disabilities and their representative organizations.” This important concept could be further developed through incorporation of the principle of “partnership with disabled people,” (Cf. New Zealand’s View of a Convention on the Rights of Disabled People, para. 28) as well as measures to ensure that people with disabilities understand their rights under the convention and are able to participate in this partnership process. (Cf. Convention on the Rights of the Child, Article 42)

The Ad Hoc Committee may also wish to consider the suggestion made in the Working Group that Draft Article 4 include a paragraph addressing national-level monitoring of the implementation of the convention. Such a provision would reinforce the principle that domestic implementation is a State obligation.

DRAFT ARTICLE 5 COMMENTS

This article includes important concepts related to awareness-raising, in recognition of the fact that the process of stereotyping fuels both the development and application of discriminatory practices. This article may have greater impact if addressed later in the treaty, for example in a section addressing supporting measures. (Cf. International Convention to Combat Desertification, Article 19) In addition, the Ad Hoc Committee may wish to re-examine the title of this article in light of concerns (raised by delegates to the Americas regional consultative conference - Quito, Ecuador, 9-11 April, 2003) about the use of the word “positive.” In some instances, “positive” portrayals of people with disabilities may not be accurate, and may inadvertently contribute to societal stereotypes. An alternative title could be “Stereotyping of Groups,” or “Awareness-Raising Measures.”

Draft Article 5(1)(c) provides an alternative formulation for “positive,” and is reflective of the UN Standard Rules provisions on awareness-raising, emphasising the need for awareness of people with disabilities as capable and contributing members of society. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, para. 4 and Rule 1)

Draft Article 5(2)(a) promotes public awareness campaigns “designed to nurture receptiveness to the rights of persons with disabilities.” Rather than “receptiveness,” the Ad Hoc Committee may wish to consider the use of the more positive word “respect.”

Draft Article 5(2)(b) also relates to awareness-raising, but it encompasses specific issues related to educational settings, curricula, and teacher training. It therefore seems appropriate to keep this as a separate sub-provision.

Draft Article 5(2)(c) refers to “encouraging” the media. Given the influential role of the media in most societies, “promoting” may be the more appropriate verb.

Draft Article 5(2)(d) echoes Draft Article 4(2) in its focus on partnership with persons with disabilities and their representative organizations with regard to implementation of the article. In further elaborating this concept the Ad Hoc Committee may find useful the discussion of the “role of organizations of persons with disabilities” in the UN Standard Rules. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rules 1 and 18(3))

DRAFT ARTICLE 6 COMMENTS

There is much support for data collection as an implementation measure in the UN Standard Rules. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 13) In addition, the Committee on the Rights of the Child has emphasized the need for statistical information as a means of effective implementation and monitoring. (Cf. Committee on the Rights of the Child, Reporting Guidelines to States Parties, para. 7) Inclusion in the treaty of provisions on statistics and data collection would therefore be in keeping with such recommendations. Also, given that many states will likely engage in statistics and data collection as part of the development of national legislation and programs implementing the convention, the inclusion of this article is important as a means of addressing concerns about methods used in the collection, analysis and intended use of data and statistics, particularly as regards issues of privacy.

The Ad Hoc Committee may also wish to consider the establishment of a technical body that could assist in formulating guidelines related to statistics and data collection. Where particular expertise is required to assess information relating to the implementation of a treaty, it is not uncommon for a technical body to be established by a treaty, typically consisting of individuals with particularized expertise in the topic in question. (Cf. Framework Convention on Climate Change, Article 9; Convention to Combat Desertification, Article 24)

As regards the sub-paragraphs of Draft Article 6, it may be useful to re-order the paragraphs so that those addressing issues of privacy (sub-paragraphs (a), (b) and (f)) are grouped together, or perhaps combined in order to avoid repetition and redundancies.

Draft Article 6(c) emphasizes the important need to include people with disabilities and their representative organizations in the design and implementation of data collection. Given that people with disabilities are the specific group addressed by this convention, it may be inappropriate to also reference in this paragraph “all other relevant stakeholders,” as the convention is not intended to elaborate rights for those individuals.

DRAFT ARTICLE 7 COMMENTS

Equality and non-discrimination are not only core principles of this convention, they are fundamental principles relating to the protection of human rights. Given the need for the convention to clearly articulate these rights and avoid ambiguity, it may be more appropriate to elaborate them in separate articles, as has been done in other contexts. (Cf. International Covenant on Civil and Political Rights, Articles 2 & 26; Convention on the Elimination of All Forms of Discrimination Against Women, Articles 1, 2 & 15)

The articulation of what constitutes discrimination, provided in Draft Article 7(2)(a), is consistent with formulations in other treaties. (Cf. Convention on the Elimination of All Forms of Racial Discrimination, Article 1(1); and Convention on the Elimination of All Forms of Discrimination Against Women, Article 1) In describing prohibited forms of discrimination in Draft Article 7(2)(a), it may be helpful to expand the concept of “actual or perceived disability” to include, for example, “a suspected, imputed, assumed or possible future disability, perceived disability, a past disability or the effects of a past disability, or the characteristics of a disability.” (Cf. Bangkok Draft, Article 1 definition of discrimination) With regard to Footnote 24 and whether “indirect” discrimination should be specifically referenced, it is worth nothing that the concept of indirect discrimination is expressly referenced in some domestic anti-discrimination legislation. (Cf. Australian Disability Discrimination Act, 1992, Part 1 (6); Canadian Human Rights Act, Part 1(7); and Irish Employment Equality Act, Part IV, S.31)

Footnote 26 references the provision in Draft Article 7(3), and notes that such a provision has never before been included in a core international human rights convention. In its General Comment on Article 26 of the ICCPR, the Human Rights Committee stated that it “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.” (Cf. Human Rights Committee, General Comment No. 23 (Article 26), 1989, para. 13) Although similar, the standard articulated by the Human Rights Committee differs from that included in Draft Article 7(3), because the Committee included the proviso that the differentiation must aim to achieve a purpose “legitimate under the Covenant.” There is no such restrictive language in Draft Article 7(3) and thus it is unclear what standard would be used to determine whether the State’s discrimination fulfilled a legitimate aim. The inclusion of such a standard is of critical importance, as is the qualifier that the means of achieving the aim are reasonable, necessary, and consistent with international human rights law. Both requirements could be addressed with language such as, “ … by a legitimate aim consistent with international human rights law and the means of achieving that aim are reasonable and necessary and consistent with international human rights law.” One example of a permissible provision by a State Party in this regard might be the use of qualifications tests, e.g. to drive a car. (For an example of this in domestic legislation, Cf. Mexican Federal Act for the Prevention and Elimination of Discrimination, Article 5(II).)

Draft Article 7(4) addresses the provision of “reasonable accommodation,” and the understanding of that concept as expressed by members of the Working Group is accurately set forth in Footnote 27. In determining whether to specify that a denial of reasonable accommodation constitutes discrimination, the Ad Hoc Committee may wish to consider the conclusion of the Committee on Economic, Social and Cultural Rights that “For the purposes of the Covenant, ‘disability-based discrimination’ may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights.” (Cf. Committee on Economic, Social and Cultural Rights, General Comment 5, “Persons with Disabilities”)

Draft Article 7(5) addresses “special measures,” the use of which is widely supported as a means to “diminish or eliminate conditions which cause or help to perpetuate discrimination.” (Cf. Human Rights Committee, General Comment No. 23 (Article 26), 1989, para. 10) As highlighted in Footnote 28, the Ad Hoc Committee may wish to consider the use of an alternative term, because in the disability context, “special” has sometimes had a derogatory meaning. An alternative term could be “positive action.” (Cf. “Prevention of Discrimination: The concept and practice of affirmative action,” Final report submitted by Mr. Marc Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution 1998/5, E/CN.4/Sub.2/2002/21, para. 5) On the issue of whether the treaty should specify that such measures be limited in time (Footnote 29), it should be noted that in the opinion of the Human Rights Committee, “as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant,” which implies that temporal restrictions need not be placed on the use of positive measures if the conditions warrant the continued use of such measures. (Cf. (Cf. Human Rights Committee, General Comment No. 23 (Article 26), 1989, para. 10)

DRAFT ARTICLE 8 COMMENTS

The right to life is a fundamental principle of human rights law from which no derogation is permitted. (Cf. International Covenant on Civil and Political Rights, Articles 4(2) and 6) The Committee on the Rights of the Child has designated Article 6, expressing the right to life (and using an alternative formulation that the Ad Hoc Committee may wish to consider), as a fundamental guiding principle of the convention. Based on the foregoing, the formulation as drafted is similarly fundamental and must be reflected in the convention.

The use of the word “reaffirm” is more typically found in non-binding declaration language. It may be more appropriate to use the term “recognize” (Cf. Convention on the Rights of the Child, Article 6(1)), or “shall respect.”

Footnote 31 raises the issue of people with disabilities in armed conflict. In relation to groups at risk, the reaffirmation of the right to life in a specialized convention is commonplace, and provisions in those conventions may provide useful models for the consideration of the Ad Hoc Committee. (Cf. Convention on the Rights of the Child, Article 38(4); Geneva Convention Relative to the Treatment of Prisoners of War, Article 3(1)(a))

DRAFT ARTICLE 9 COMMENTS

It has been stated that without the right to recognition as a person before the law, “the individual could be degraded to a mere legal object, where he or she would no longer be a person in the legal sense and thus be deprived of all other rights, including the right to life. … Recognition of legal personality is thus a necessary … prerequisite to all other rights of the individual.” (Cf. “UN Covenant on Civil and Political Rights: CCPR Commentary,” Manfred Nowak, p. 282) Draft Article 9 is therefore a critical component of the Working Group draft text.

Draft Article 9 recognizes people with disabilities as persons before the law, though the phrasing in the chapeau differs somewhat from that used in the Covenant on Civil and Political Rights. (Cf. International Covenant on Civil and Political Rights, Article 16) Draft Article 9(b) also confirms that people with disabilities possess legal capacity on an equal basis with others.

Footnote 33 confirms that where assistance is necessary to exercise legal capacity, the underlying assumption is that full legal capacity always remains. However, this assumption is not made explicit in the draft text. Draft Article 9(c) also does not adequately elaborate the procedural safeguards necessary to determine when and how assistance should be provided, although it notes in (c)(ii) that “relevant legal safeguards” must be applied. It is therefore unclear, for example, who determines when assistance is provided; the manner in which that assistance is provided; and what avenues for review and appeal the disabled person has. As also referenced in Footnote 33, it is important to elaborate the legal safeguards applicable in situations where the disabled person cannot exercise their legal capacity. Although the MI Principles do not reflect current thinking about disability within the context of the social model, they do outline some procedural safeguards that the Ad Hoc Committee may wish to review in this regard. Specifically, the procedures outlined in Principle 1(6) provide a helpful guideline – not to deprive a person of legal capacity (as is done in Principle 1(6)) but in situations where the person is unable to exercise their legal capacity. (Cf. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, Principle 1(6))

Draft Article 9 provides examples of contexts in which the legal capacity of people with disabilities must be respected on an equal basis with others, e.g. financial matters, property ownership and disposition. The Ad Hoc Committee may wish to consider whether Draft Article 9 should be kept

more general, with such matters being more fully addressed in a separate article(s). Alternatively, Draft Article 9(b),(d),(e) and (f) could be expanded to include non-exhaustive lists of other relevant areas.

DRAFT ARTICLE 10 COMMENTS

Draft Article 10 is of particular significance, given the heightened exposure to deprivation of liberty (particularly in the context of institutionalization) faced by many people with disabilities. As drafted, Draft Article 10 does not adequately address the various contexts in which deprivation of liberty can occur for many people with disabilities (e.g. criminal context, civil commitment context), which will be important to highlight if (as Footnote 35 indicates) Draft Article 10 is to be interpreted with broad application.

Draft Article 10 also does not adequately set forth the procedural safeguards and standards of review to be utilized. For instance, Draft Article 10(2)(a) assumes there will be occasions on which people with disabilities are deprived of their liberty, and sets forth requirements to be observed in respect of such deprivation. Notably, the protections as drafted do not provide the level of specificity that one would expect, especially given existing procedural safeguards in other relevant international instruments. Draft Article 10(2)(a) importantly requires that people with disabilities deprived of their liberty are to be “treated with humanity” but does not provide any further elaboration on what it means to be treated with humanity. Although the MI Principles do not reflect current thinking about disability within the context of the social model, they do detail what it means to, for example, treat someone who is institutionalized with humanity. (Cf. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, Principle 13)

Draft Article 10(2)(c) references the right to “prompt access to legal and other appropriate assistance,” but it does not explicitly grant a right to counsel, nor does it indicate who makes the determination of whether the assistance is “appropriate” or how that determination should be made. Draft Article 10(2)(c)(i) provides the right to “challenge the lawfulness of the deprivation of liberty,” but it does not provide a right of appeal from any decisions in that regard. On a related matter, as noted in Footnote 36, it is also unclear whether civil commitment is prohibited. If civil commitment (a procedure frequently utilized to deprive people with disabilities of their liberty) is permitted, it will be important to set forth the applicable procedural safeguards and standards of review. In this regard, the Ad Hoc Committee may wish to consider the increasing “criminalization” of due process standards in the civil context, and reference procedural safeguards traditionally utilized in the criminal context. (Cf. International Covenant on Civil and Political Rights, Article 9)

DRAFT ARTICLE 11 COMMENTS

Although medical experimentation has previously been addressed in the context of prohibitions against torture, cruel, inhuman or degrading treatment or punishment (Cf. International Covenant on Civil and Political Rights, Article 7), it is unusual for forced medical treatment and institutionalization to be addressed in the same context, as is done in Draft Article 11(2). In order to better elaborate protections and legal safeguards against forced treatment and institutionalization, it may be better to address these issues in a separate article, as well as to ensure that legal safeguards in related articles (such as Draft Article 10) are comprehensively addressed.

Footnote 38 indicates the desire by some members of the Working Group to permit forced treatment and forced institutionalization – a position not favored by most disability advocates. If this approach is considered by the Ad Hoc Committee it will be particularly important to address what legal safeguards to employ in such situations.

DRAFT ARTICLE 12 COMMENTS

The inclusion of an article explicitly addressing situations of violence and abuse is in keeping with the approach of the UN Standard Rules, as well as other treaties. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 9, para. 4; Convention on the Elimination of All Forms of Discrimination Against Women, Article 6; Convention on the Rights of the Child, Articles 34 – 39)

Although Draft Article 12(1) references “both within and outside the home,” it may be necessary to more explicitly specify the need for States to protect against abuse committed by private individuals and entities.

Draft Article 12(3) discusses the need for States Parties to take measures to prevent violence and abuse, but it does not fully elaborate the kinds of measures to be undertaken. For example, the provision states the need for provision of information to families and people with disabilities, but it does not reference the specific need to educate people with disabilities and their families about how to avoid abuse, recognize abuse and report incidents of abuse. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 9, para. 4) In addition, it would be important to reference the need to train those working with people with disabilities to identify and prevent abuse. It is also important to emphasize the need for any information on such matters to be available in accessible formats, issues that could also be addressed in Draft Article 19 (Accessibility).

Draft Article 12(4) addresses the need for monitoring of both public and private facilities and programs, but it does not discuss how such monitoring should be conducted. For example, the Ad Hoc Committee may wish to incorporate requirements that the monitoring be conducted by independent authorities, and for the reports of such bodies to be made available to the public.

Draft Article 12(5) elaborates actions to be taken by the State with regard to victims of violence and abuse. In order to ensure that such actions do not contravene the wishes, autonomy of decision-making and dignity of such people, it would be useful to include language such as “such recovery and reintegration shall take place in an environment which fosters the health, self-respect, dignity and autonomy of the person.” (Cf. Based in part on the Convention on the Rights of the Child, Article 39) It is also important to consider the coverage of this article with regards to people who were not previously disabled, but became disabled as a result of violence or abuse.

Footnote 39 asks whether remedies should also be referenced in Article 12(6). Given that references are made in Article 10(2)(d) to the need for compensation for those unlawfully deprived of their liberty, the inclusion of a reference to remedies would seem important in Article 12 as well.

DRAFT ARTICLE 13 COMMENTS

Draft Article 13 seems to draw in part, if not completely, upon the articulation of these concepts in treaties such as the International Covenant on Civil and Political Rights (Article 19) and the Convention on the Rights of the Child (Articles 13 and 17). Although Draft Article 13 addresses many of the issues relevant to enjoyment of these rights by people with disabilities, the structure of the article is such that issues of expression of, and access to, information are sometimes mixed, making the article somewhat confusing.

The emphasis on accessibility in this article is particularly important, given the difficulties faced by many people with disabilities in obtaining information. However, it is unclear how provisions such as Draft Article 13(a) fit with principles of reasonable accommodation and universal design. The Ad Hoc Committee may also wish to consider how best to balance the need for specificity in examples of forms of assistance, with the need to ensure that references are relevant across cultures and remain relevant over time in light of changing technologies.

The concepts elaborated in Draft Article 13 draw heavily from the UN Standard Rules on the Equalization of Opportunities for Disabled Persons, in particular Rule 5 (b). As noted in Footnote 44, the Ad Hoc Committee may also wish to consider whether it is sufficient for States to “encourage” private entities and the mass media in paragraphs (f) and (g). Given the influential role of the media, and the pervasiveness of private entities that provide goods and services to the general public, it may be necessary to adopt stronger language to ensure that States adopt measures with regard to these entities.

DRAFT ARTICLE 14 COMMENTS

Although Draft Article 14, addresses issues of privacy, paragraph 1 largely reiterates the provisions found in Article 17 of the International Covenant on Civil and Political Rights, without tailoring these rights to the specific situation of people with disabilities. For instance, policies that permit staff in institutions to enter rooms at any time without warning may not be per se unlawful, but nevertheless constitute an interference with the right to privacy. The Ad Hoc Committee may therefore wish to expand upon the provisions related to privacy and interference with family.

Draft Article 14(e) addresses the separation of a child from his/her parents. Although paragraph (e) references the “best interests of the child” standard (Cf. Convention on the Rights of the Child, Article 3(1)), no due process protections are outlined regarding who would implement this standard and how. It should also be noted that although there is an express prohibition on the removal of a child “on the basis either directly or indirectly” of the parents’ disability, there is no express provision prohibiting the removal of a child from their parents on the basis of the child’s disability.

Footnote 50 references the discussion about whether “solely” should be used in place of “either directly or indirectly.” In this regard the Ad Hoc Committee may wish to take into consideration the historic and often systemic bias of many societies against people with disabilities as parents. If the word “solely” is substituted, the provision may not offer sufficient protection against more subtle forms of discrimination against parents with disabilities.

Draft Article 14(f) relates to awareness-raising measures, but seems to employ a lower standard than expressed earlier in the Working Group text. The Ad Hoc Committee may wish to consider whether paragraph (f) should also require States Parties to “undertake to adopt immediate and effective measures,” as per Draft Article 5(1).

DRAFT ARTICLE 15 COMMENTS

It has been stated that, the “right to independence or an independent life embodies one (very important) aspect of the principle of autonomy. It underlines the right to live a life outside of institutions, where barriers for full social inclusion are removed and the necessary technical aids and personal assistance are provided.” (Cf. “Discussion Paper on Founding Principles of a Convention on Rights of Persons with Disabilities,” Danish Institute for Human Rights, A/AC.265/2003/CRP/9, available at: http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm) Thus, the concepts of living independently and being included in the community are related concepts of great importance for inclusion in a human rights treaty for people with disabilities.

Footnote 51 references the confusion by some Working Group members over the meaning of the term “living independently.” The Ad Hoc Committee may wish to explicitly define the term as used in this article or, as the footnote suggests, consider alternative terms, so that it is clear that the fundamental concepts encompassed are choice and autonomy, not separation from families.

Footnote 52 highlights the objections of some members of the Working Group to paragraph (b). Should this paragraph be removed (an option unlikely to be supported by most disability activists), it will be of critical importance for the Ad Hoc Committee to thoroughly review due process and other legal protections throughout the draft treaty text, in order to ensure the rights of those subject to institutionalization by their States Parties.

Footnote 53 expresses the concern of some Working Group members about the ability of some States Parties to provide the support services referenced in paragraphs (c) and (d). The concerns of these States Parties could be alleviated through the understanding that these provisions could be subject to progressive realization.

DRAFT ARTICLE 16 COMMENTS

This Article is a duplication of Article 23 of the Convention on the Rights of the Child. However, Article 23 is the weakest provision of the Convention on the Rights of the Child, as it includes language “shall” as compared to the more forceful “should”. Draft Article 16 of this Convention, even though it does specify rights of children, does not adequately deal with the issues that are particular to children with disabilities as a sub-group of people with disabilities, such as abuse or exploitation. For example, the Ad Hoc Committee may consider emphasizing groups at risk within this group, i.e., refugees, orphans, etc. Children with disabilities are mentioned only in two other Articles of the Convention. (Article 17-Education and 21-Rehabilitation) Thus the Committee should consider including more specificity in Draft Article 16, in order to make it stronger than Article 23 of the Convention on the Rights of the Child, and more adequately tailored toward issues and barriers facing specifically children with disabilities. For a helpful reference on formulation of an article dealing solely with children with disabilities, see Rights into Action’s contribution to the Working Group. This document is available at: http://www.un.org/esa/socdev/enable/rights/wgcontrib-riaction.htm

Footnote 54 explains that duplication exists between this Article and Article 23 of the Convention on the Rights of the Child, which deals with Children with Disabilities. Therefore, the Committee should consider whether reference to children with disabilities should be included in every article, or if it should be dealt with exclusively within this provision. If the latter approach is adopted, then as mentioned above, the Article needs to further elaborate the issues relevant to children with disabilities.

The draft language of paragraph (5) refers to the right of participation of children with disabilities. A helpful reference in this regard would be Article 12 of the Convention on the Rights of the Child, which addresses children’s right to participation.

DRAFT ARTICLE 17 COMMENTS

People with disabilities frequently find themselves forced into educational settings not of their choosing and/or often not appropriate to their actual needs, which in turn limit their opportunities to develop their full potential as individuals and to participate fully in society. It is therefore important that Draft Article 17 address the range of issues related to the education of people with disabilities. (For some examples of educational issues of relevance to people with disabilities, Cf. UN Standard Rules on the Equalization of Opportunities for People with Disabilities, Rule 6)

Draft Article 17(1) specifically states that the right of all persons with disabilities to education is a right to be achieved “progressively.” Although there are other draft articles in the Working Group text subject to progressive realization, those provisions are not consistently highlighted as such. The Ad Hoc Committee may wish to consider whether it is really necessary for Draft Article 17 to be subject to such treatment.

Footnote 56 notes the use of the term “children” in paragraph (1). Given that educational settings (particularly tertiary education) have relevance to adults as well, the Ad Hoc Committee may wish to examine the references to children throughout this article.

Footnote 59 and paragraph 3(d) both make reference to the “needs” of students and children with disabilities. The Ad Hoc Committee may wish to consider amending this language to instead read “rights and needs.”

Footnote 61 references the discussions about different options regarding mainstream vs. specialist education services. It should be noted that the expectation is that if specialist educational settings are offered, they should not be of a lower standard than the general or mainstream settings. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 6, para. 8; UNESCO Convention Against Discrimination in Education, Article 5(1)(c))

DRAFT ARTICLE 18 COMMENTS

Draft Article 18 provides coverage of well-established rights of participation in political and public life (Cf. International Covenant on Civil and Political Rights, Article 25) and highlights, therefore, a fundamental right to which people with disabilities are frequently denied, not only in the voting context, but in a wide range of decision-making processes where their interests are affected. This provision is in keeping with recent developments in international human rights law in the context of participation in decision-making for particularly disadvantaged groups. (Cf. Convention on the Rights of the Child, Article 12; ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, Articles 6 & 7).

Draft Article 18 sets forth in three sub-paragraphs obligations that States are to undertake in relation to voting and holding public office, participation in political organization and, more generally, decision-making in which their interests are affected. While a level of specificity in relation to access to voting in particular is included in sub-paragraph a, the same degree of specificity is not provided in relation to other decision-making processes. The prevailing practice in relation to ensuring the participation of marginalized groups in society is to provide a level of detail that exposes and addresses potential barriers to the realization of rights of participation. In this regard, the Ad Hoc Committee may wish to pay particular attention to ILO Convention, as noted in Footnote 65. (Cf. ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, Articles 6 & 7). In particular, attention should be given to the participation of people with disabilities and their representative organizations in development decision-making at all levels. Notably absent, but covered in other human rights treaties, is the explicit recognition of the rights to represent government at the international level and to participate in the work on international organizations, (to which one could also add regional organizations.) (Cf. Convention on the Elimination of All Forms of Discrimination against Women, Article 8.)

DRAFT ARTICLE 19 COMMENTS

Although issues of accessibility are addressed in places throughout the draft text, given the enormity of the issue it is logical to have a specific article focused on accessibility issues. This is also the approach taken in the UN Standard Rules. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 5)

Draft Article 19 take a comprehensive approach to accessibility, addressing both issues of physical accessibility, as well as accessibility of information and communications. Importantly, the objective if the article is independence and full inclusion of people with disabilities “in all aspects of life.”

Because of the need to maintain the relevancy of the convention over time, it may be necessary to re-examine some of the forms and methods of accessibility referenced in Draft Article 19, to ensure that the terms used have relevancy across cultures and will not quickly become outdated. As with Draft Article 6 (Statistics and Data Collection), the Ad Hoc Committee may wish to consider the establishment of a technical advisory body to harness expertise, and disseminate research on issues of accessibility.

DRAFT ARTICLE 20 COMMENTS

As indicated in Footnote 72, Draft Article 20 is intended to be distinguished from the broader right to liberty of movement, which is understood to mean the right of individuals to move freely within the borders of their state, as well as to leave and return to it, subject only to restrictions necessary to protect interests such as national security, public safety, health, and the prevention of crime. (Cf. International Covenant on Civil and Political Rights, Article 12; Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 2-4) Given that issues of liberty of movement in the traditional sense are not addressed in Draft Article 20, it would therefore seem appropriate that an additional article be included to more fully elaborate the right to liberty of movement as it relates to people with disabilities.

In many respects, Draft Article 20 relates to the provision of support services as understood in Rule 4 of the UN Standard Rules, though Draft Article 20 is limited in scope to support services related to mobility. The Ad Hoc Committee may wish to consider the inclusion of a specific article related to support services.

DRAFT ARTICLE 21 COMMENTS

Draft Article 21 addresses health and rehabilitation/habilitation, and as noted in Footnote 74, these issues are of a complexity and depth such that it may be more appropriate to elaborate them in separate articles, as is done in the UN Standard Rules. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rules 2 and 3) In whatever format these rights are addressed, it will be important to place a greater emphasis on the importance of choice throughout the article(s), so that people with disabilities are empowered to accept or refuse health care and rehabilitation of their choosing.

Draft Article 21(a) makes reference to “other citizens.” Given that the individual in question may not be a citizen of the relevant State Party, it may be preferable to utilize the broader term “other members of society.” (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 2, para. 3)

Draft Article 21(c) relates to the proximity of services to a person’s community. Given the challenges that many people with disabilities face accessing transportation, the provision of services at the local level is of great importance. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 3, para. 5)

Draft Article 21(d) references the need for “counseling and support groups, including those provided by persons with disabilities.” During the Working Group meeting a number of members suggested that it would be valuable for “peer support” to be incorporated in this provision, ie. the concept of those with similar shared experiences offering each other mutual support. Although “including those provided by persons with disabilities” might encompass the concept of peer support, it might not necessarily do so. Therefore, the Ad Hoc Committee may wish to consider the explicit inclusion of that term in paragraph (d).

Draft Article 21(j) addresses issues of privacy related to the health or rehabilitation information of people with disabilities. Paragraph (j) requires health and rehabilitation professionals to inform people with disabilities of their “relevant rights.” Such language is rather vague. It may be more appropriate to state “inform persons with disabilities of these rights.”

Draft Article 21(l) again relates to the issue of privacy of information. This paragraph seems repetitive of issues already addressed in paragraph (j) and should perhaps be deleted.

Draft Article 21(m) addresses the involvement of people with disabilities and their organizations in the formulation and implementation of health and rehabilitation legislation and policies. These important concepts find precedent in the UN Standard Rules. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rules 3(7) and 14(2))

DRAFT ARTICLE 22 COMMENTS

Draft Article 22 addresses a number of the issues relevant to people with disabilities that wish to exercise their right to gain a living by work. It is notable though, that there are no specific provisions addressing issues such as slavery, servitude, forced labor or economic exploitation. Given the historic exploitation of people with disabilities (e.g. in some sheltered workshops) the Ad Hoc Committee may wish to include such provisions in a separate article. (Cf. International Covenant on Civil and Political Rights, Article 8)

Footnote 93 references the possible inclusion of a provision on reasonable accommodation in the employment context. If such a provision is included, it will be important to link it to the efforts in paragraph (f) to encourage the hiring of people with disabilities, because lack of understanding about the duty to accommodate may lead to employers failing to hire otherwise qualified people with disabilities and/or may lead to a failure by employers to accommodate during the hiring process. With further regard to paragraph (f) and Footnote 92, the Ad Hoc Committee may wish to consider the removal of any specific examples (e.g. quotas), and utilizing a broader term (such as “positive measures”) which could, but need not necessarily, include quotas.

Draft Article 22(g) addresses the need for promotion of vocational and professional rehabilitation. The Ad Hoc Committee may find the ILO Convention (159) on Vocational Rehabilitation and Employment (of Disabled Persons) a helpful reference in this regard.

Draft Article 22(h) references the need for certain kinds of protections with regard to people with disabilities and employment. However, it does not expressly reference the important need to ensure against discrimination in the context of the hiring process. Given the discrimination against people with disabilities in this regard it would seem important to include such a provision.

Draft Article 22(i) discusses the need for equal opportunity employment in the public sector, but does not extend this need to the private sector, which will be necessary if equal opportunity to employment is to truly be achieved.

DRAFT ARTICLE 23 COMMENTS

Draft Article 23 seeks to combine coverage of two issues traditionally addressed in separate articles. (Cf. International Covenant on Economic, Social and Cultural Rights, Articles 9 and 11). In order to adequately elaborate the issues relevant to these two rights, the Ad Hoc Committee may wish to consider splitting Draft Article 23. With regard to the right to social security (as well as the acceptance of the use of that term), the Ad Hoc Committee may find ILO Convention (157) on Maintenance of Social Security Rights, as well as Rule 8 of the UN Standard Rules, of some assistance.

Draft Article 23(1)(a) addresses access to “services, devices and other assistance” related to “disability-related needs.” As noted in Footnote 100, some elements of this paragraph may be covered in Draft Article 20 (Personal Mobility). While the purpose of the provision is to detail how States should proceed in achieving the right of people with disabilities to social security, as drafted, this paragraph seems to vague to be useful. The Ad Hoc Committee will want to explore with greater depth the necessary components for realization of this right.

Draft Article 23(1)(b) makes explicit reference to ensuring access of persons with disabilities to social security programs and poverty reduction strategies. It makes important reference to particularly marginalized groups of disabled persons. The provision also significantly mentions the need to take into account “the needs and perspectives of persons with disabilities” in such programs. It could be strengthened by explicitly referencing the participation of people with disabilities in all stages of programming.

Draft Article 23(1)(c) provides important reference to particularly disadvantaged sectors of the disability community. Nonetheless, the Ad Hoc Committee will need to consider the precise objectives of the provisions in light of its drafting.

Draft Article 23(1)(d) provides important mention of access to governmental housing programs and provides a specific example of how such access might be achieved, namely, through an earmarking system. The Ad Hoc Committee may wish to consider how access to housing relates to paragraph (2) of Draft Article 23 concerning adequate standard of living. In addition, the Ad Hoc Committee may wish to consider whether the explicit mention of earmarking is appropriate given that this is the only example listed but is by no means the only way of achieving the purpose of the provision.

Draft Article 23(1)(e) addresses access to tax exemptions and tax benefits for people with disabilities in respect of their income. The provision as drafted has a level of specificity that may not take into account differences in tax systems (notably in relation to income taxation) and may indeed be unrealistic.

Draft Article 23(1)(f) introduces the important concept of non-discrimination against persons with disabilities in the context of obtaining life and health insurance. Note that Footnote 75 of the Draft Text likewise references disability discrimination in this context.

The right to an adequate standard of living is well-established in international human rights law. (Cf. Universal Declaration of Human Rights, Article 25; International Covenant on Civil and Political Rights, Article 11(1); and Convention on the Rights of the Child, Article 27)

Footnote 107 discusses the appropriateness of the inclusion of a reference to “clean water” in paragraph (2). The Committee on Economic, Social and Cultural Rights has indicated “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.” (Cf. Committee on Economic, Social and Cultural Rights, General Comment 15, 2002, para. 1) Furthermore, the Committee has highlighted the particular relevance of this right to people with disabilities, as well as the need to protect against discrimination against people with disabilities with regard to the enjoyment of this right. (Cf. Committee on Economic, Social and Cultural Rights, General Comment 15, 2002, paras. 13, 16(h)) It would therefore seem appropriate for the Ad Hoc Committee to retain the reference to “clean water” in paragraph (2).

DRAFT ARTICLE 24 COMMENTS

Draft Article 24 incorporates many of the elements set forth in the UN Standard Rules, Rule 11, which addresses the State’s responsibilities to ensure that people with disabilities have equal opportunities for recreation and sports. Other specialized conventions have similarly recognized such rights. (Cf., Convention on the Rights of the Child, Article 31) Draft Article 24 usefully covers three separate activities that contribute to physical fitness, mental well-being, and social interaction of people with disabilities. (Cf. UN Inter-Agency Task Force on Sport for Development and Peace)

Draft Article 24, paragraphs (1)-(3), provides coverage of the right to participate in cultural life, drawn extensively from the UN Standard Rules, Rule 10 (Culture). Draft Article 24(3) relates not to cultural life, but the right to culture.

Draft Article 1(a) provides content to the concept of participation in cultural life, which is drawn from UN Standard Rules, Rule 10, para. 1.

Draft Article 24(1)(b) relates to the accessibility of cultural materials via accessible formatting. The Ad Hoc Committee may wish to consider the relationship of this provision to other Draft Articles (e.g. Draft Article 13 (Freedom of Expression and Opinion, and Access to Information), and Draft Article 19 (Accessibility)) and whether its level of specificity is appropriate to meet the objectives of the provision and to ensure relevancy over time.

Draft Article 24(1)(c) relates to accessibility in relation to other cultural media. What remains unclear is the distinction between the concept of access to “cultural materials” in sub-paragraph 1(b) and access to “cultural activities” in sub-paragraph 1(c).

Draft Article 24(1)(d) seems to relate to access to the built or physical environment, although this is not clear.

Draft Article 24(3) addresses a distinctly separate right under international law – the right of minorities, in this case deaf persons, to enjoy their own culture and linguistic identity, and in particular the right to use their own language. The right to use one’s own language entails the freedom to speak one’s own language without interference, a right that has been frequently violated in respect of the deaf community in many countries. (Cf. Convention on the Rights of the Child, Article 30; International Covenant on Civil and Political Rights, Article 27; Human Rights Committee, General Comment 23, 1994, HRI/GEN/1 Rev. 5, pp. 147-150) Given the distinction between the right to culture and the right to participate in the cultural life of a community, it may be useful to include in the convention a separate article on cultural identity.

Draft Article 24(4) (a) and (b) are complimentary provisions. Paragraph (a) refers to mainstream sporting activities and (b) speaks of the equalization of access to “instruction, training, and resources” needed for meaningful participation in the activities. In (a), the “mainstream sporting activities” may be interpreted as excluding non-mainstream activities, or activities only for and by people with disabilities. The Working Group debates over the meaning are reflected in Footnote 111, and warrant further consideration by the Ad Hoc Committee.

The language in paragraph (b) lacks the expressed goal of disability-specific programs, which should be included in the text. The language should include integrative, as well as disability-specific programming. The term “same” should be replaced by the term “necessary” as this formulation better reflects the varied context within which persons with disabilities participate in sport (again, recognizing disability specific programming). (Cf. UN Standard Rules, Rule 11, para. 4)

Paragraph (4)(c) addresses issues covered in UN Standard Rule 11 (1) and (3). The sub-paragraph merges two issues, namely accessibility and children with disabilities in sporting activities. This conflation makes the subparagraph confusing. The Ad Hoc Committee may wish to consider revision to increase clarity.

The language of paragraph 4 (d), as drafted, is somewhat vague. It would be helpful for the Ad Hoc Committee to specify the nature of the services targeted by this provision. It remains unclear how this sub-paragraph relates to sub-paragraph (b).

The importance of extending sport and recreational opportunities to particularly marginalized sectors of the disability community is reflected by the reference to children with disabilities in Draft Article 24(c), but may usefully be extended to two other groups that are at a comparative disadvantage because of their dual minority statues, namely, women and refugees. The importance of extending sporting activities to these two disadvantaged groups has been recognized by the UN (Cf. UN Inter-Agency Task Force on Sport for Development and Peace, p. 8, 9; Convention on the Elimination of All Forms of Discrimination Against Women, Article 10(g); UNHCR REFUGEE PROTECTION: A Guide to International Refugee Law, http://www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=MEDIA&id=3d4aba564&page=publ, UNHCR Agenda for Protection, p. 37)

DRAFT ARTICLE 25 COMMENTS

The inclusion of this provision in the Working Group text reflects the now routine treaty practice to create obligations in relation to national legal implementation. Developments in the law of treaties in this regard recognize that the primary responsibility for implementation lies with states. The article is a substantially shortened version of the original text considered for inclusion by the Working Group.

Footnote 112 references the subject of international monitoring which the Working Group did not consider in any detail and notes some disagreement among members on the subject of international monitoring. It is noteworthy that all principal international human rights conventions do create international monitoring mechanisms within the framework of the treaties. The absence of any such framework within a convention on the rights of persons with disabilities would represent a significant departure from international human rights treaty practice, and a weakening of this convention.

Footnote 113 indicates that the Working Group was unable to undertake detailed drafting of this provision, and references the on-going UN review of existing human rights treaty monitoring. Some Working Group members felt that whilst the treaty reform process should be taken into consideration, the Ad Hoc Committee should certainly not wait for that process to be completed.

Footnote 114 references possible functions for national human rights monitoring institutions, drawn from the Paris Principles which provide detailed and highly relevant guidelines on the operation of national institutions. An explicit reference to the Paris Principles was deleted from an earlier draft of Article 25. (Cf. Paris Principles on National Institutions for the Promotion and Protection of Human Rights, GA Res. 48/134 (20 December 1993); Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Articles 17-20)

Landmine Survivors Network March • 2004

Landmine Survivors Network
March • 2004