NGO Comments on the draft text
Draft article 4
Proposal by Asia Pacific Forum of National Human Rights Institutions
25 May 2004
Article 4
Obligations with respect to economic, social and cultural rights
Proposal: amend proposal by Israel to read as follows:
3. In relation to [economic, social and cultural rights/the rights set forth in articles *** of this Convention], States Parties undertake:
(a) to give immediate effect to the aspects of those rights which are capable of immediate implementation (including, but not limited to obligations of non-discrimination in the enjoyment of those rights); and
(b) in relation to other aspects of those rights, to take steps to the maximum of their available resources, when needed within the framework of international cooperation, with a view to achieving progressively the full realization of those rights by all appropriate means.
Remedies
Proposal: include in article 4 the following paragraphs:
4. Each State Party to this Convention undertakes:
(a) To ensure that any person or class of persons whose rights or freedoms recognized in the Convention are violated shall have an effective and appropriate remedy (including as the right to just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination), whether the violation has been committed by persons or entities acting in an official capacity or by private persons or entities;
(b) To ensure that any person claiming such a remedy shall have his or her right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State,; and
(c) To ensure that the competent authorities shall enforce such remedies when granted.
5. States Parties recognize that access to effective remedies may require the provision of free legal assistance to persons with disabilities and the modification or flexible application of existing laws and practice regulating matters of procedure and evidence.
European Disability Forum
Draft Article 4 General Obligations
Proposals for amendments to the current text of article 4 are largely based on the EDF contribution.
Paragraph a) should also include by-laws, rules and EDF suggest to replace
the word ?discourage customs? by ?counter customs?.
EDF proposes to add to paragraph c) a reference to international cooperation,
which would oblige both the donor and the recipient of development cooperation
funds to take into account persons with disabilities.
EDF also considers it very important that a paragraph on remedies is included
in this article, as suggested in footnote 22.
EDF also suggests to add a reference to positive action measures to paragraph
e) of this article.
EDF suggests a reference to the use of public procurement and public funds
in paragraph f) as a way of promoting Universal Design in goods, services,
equipment and facilities.
When implementing the General State Obligations, special attention should
be given to those disabled people more in danger of exclusion and discrimination,
including women with disabilities, disabled people from ethnic or indigenous
minorities, disabled people living in rural and remote areas.
Paragraph 2 of this article is considered of vital importance. It could
be strengthened through a reference to the concept of partnership and to
the provision of measures which would strengthen the role and capacity of
representative organisations of persons with disabilities to play an active
role in the implementation of the Convention. EDF also supported the proposal
of New Zealand on this paragraph.
Secondly, EDF reacted to the EU proposal and stated our concern on proposed
limitation of chapeau to non discrimination.
EDF also stated their concern about the last words in the paragraph on mainstreaming,
as disability specific plans and programmes are still needed. Not everything
can be mainstreamed. A twin-track approach is required.
Finally, moving paragraph 2 to article 25 will depend on final wording of
article 25. A better alternative would be to include references in both.
Comments by People with Disability Australia Incorporated, (Australian) National Association of Community Legal Centres, and Australian Federation of Disability Organisations.
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
Intervention by Jerry White on behalf of Landmine Survivors
Network
May 24, 2004
Landmine Survivors Network would like to thank the Working Group for
its fine work in preparing the draft before us.
The provision on general obligations is critical to ensure that States
understand broadly what their commitments are in implementing their
substantive obligations, which I emphasize are and must continue to
be much broader than the narrow approach of non discrimination proposed
by the European Union.
To echo South Africa, Jordan, Lichtenstein, Mexico and many other delegates,
as important as non discrimination is in the context of this treaty,
the concept of full inclusion is about more than just the absence of
non discrimination. As reflected in the draft text, we believe that
the Convention must reflect the full range of civil, political, economic,
social, and cultural rights, which on the basis of our work with survivors
in scores of mine affected countries are necessary if our human rights
are to be enjoyed.
Further, the proposal to remove States’ obligation to take measures
to eliminate discrimination by “private enterprises” is of deep concern,
and unnecessary. First, other conventions have extended State obligations
to the private sector, and this treaty should require no less of States
in the disability context. Second, discrimination against persons with
disabilities happens to a large extent in the private sector, namely
work and accessibility, to identify two key areas.
We would also like to affirm Thailand’s proposal on subparagraph c,
now reading,
“to integrate disability issues into all economic and social development
policies and programmes, including international cooperation.”
Thank you Chair.
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