National
Human Rights Institutions *
(Comments made at the third session and submitted to the UN Secretariat
are posted below. For more information please contact enable@un.org)
Interventions by National Human Rights Institutions on Articles
1-24 of the working group draft
Mr. Chair, thank you for the opportunity.
The National Human Rights Institutions would like to support the formulation
put forward by the European Union.
We believe that the EU formulation provides more legal safeguards in
relation to privacy and confidentiality.
We would however, like to make two slight amendments:
1. Firstly, we believe the words “where necessary” in the chapeau are
redundant and suggestive of a degree of discretion and therefore would
suggest their deletion
2. Secondly, we would like to submit an amendment to (c) – which would
read as follows:
Ensure that the collection of information is done in partnership
with persons with disabilities, their respective organizations and all
other relevant stakeholders.
Article 1
Thank you Mr. Chair, the National Institutions would like to thank
the working group for the draft text before us.
The National Institutions would like to support the current formulation
of Article 2. We believe that the word “effective” should be
retained.
Its removal we observe would weaken the purpose of the convention and
may run the risk of it being theoretical.
The inclusion of the word “effective”, seeks to ensure that
substantive equality is in fact enjoyed by people with disabilities.
Furthermore, we would seek the insertion of the word “ALL” before persons
with disabilities.
Article 2
In relation to Article 2, National Human Rights Institutions propose
the following amendments:
a). Insert the words “respect for human” before the word dignity
b). Add “non – sexism” after “non-discrimination”
c). Add “participation” after the word “full”
e). Add “affirmative action” after “Equality of opportunities”
f). Add “Accessibility”. We also propose that the article should
include the principle of reasonable accommodation, and the principle
of indivisibility and interdependence of human rights
See the EU proposals that seek to delete Article 4 (1).
Article 4
Thank you Chair; there have been a few interventions this afternoon
that seek to delete Art. 4(1) particularly, the chapeau containing the
phrase “within their jurisdiction”
The National Institutions submit, Chair, that this deletion could potentially
discriminate against people with disabilities who may for instance be
asylum seekers or those who are not citizens.
Chair, while this may not be its intention, the removal of this chapeau
could result negatively in that not all people with disabilities would
enjoy all their human rights and fundamental freedoms.
Further to that, we believe that its removal would substantially narrow
the scope of this convention to one that focuses almost exclusively
on non-discrimination and thus moving away from a comprehensive international
legal instrument.
We would therefore support the retention of Art. 4(1)
Asia Pacific Forum of National Human Rights Institutions
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.
25 May 2004
Article 4 (summary)
APF on behalf of National Human Rights Institutions:
We would like to address two issues. The first is the absence of an
explicit provision on remedies. In a convention, the purpose of which
is to ensure the effective and practical enjoyment of rights, we consider
that a provision on remedies is important. The Bangkok draft and Chair’s
draft text for the Working Group contained such a provision.
Concern about the inclusion of a provision on remedies reflects a view
that it would be inappropriate to include such a provision in a convention,
which guarantees economic, social and cultural rights. However, this
fails to reflect the developments of the past 20 years within the UN
system – in particular the work of the Committee on Economic, Social
and Cultural Rights (CESCR) – which make clear that some aspects of
economic, social and cultural rights are justiciable – these include
guarantees of non-discrimination but are not confined to those aspects.
The second point is a related one. The proposals so far made in relation
to economic, social and cultural rights emphasize the progressive realization
of these rights, without regard to the developments of the last 20 years,
which recognize that many aspects of economic, social and cultural rights
are capable of immediate implementation.
We believe the convention should reflect these developments and note
that the Bangkok and Chair’s draft text contained a provision of this
sort.
Article 7
Thank you, Madam Chair.
The National Human Rights Institutions would like to suggest the deletion
of Article 7(3) from the current Working Group draft.
Primarily because it allows for too much discretion to the State.
Also Chair, we note that this paragraph as referred to in footnote
26 does not appear in any of the core international human rights treaties
and therefore see no justification for its retention.
In Article 7(4) the thrust of the provision is to secure the right
to equality for people with disabilities and makes reference to the
taking of appropriate steps. However, the wording “Unless such measures
would impose a disproportionate burden” would substantially allow
States to renege on the obligation to secure equality, which we argue
should not be qualified.
Article 9
National Human Rights Institutions consider Article 9 as very important
and should remain as strong as possible. The present text of the Working
Group provides more elaborate statement on the principle of equality
before the law for people with disabilities as well as legal safeguards
against possible abuse. We therefore propose that any amendments for
strengthening the article should be done within the text. In keeping
with this, we recommend that Article 9 (c) (i) should be strengthened
by adding the following at the end of that paragraph:
“and provided that such assistance is in the best interest of the
person concerned”
Article 10
National Human Rights Institutions would like to support the European
Union’s proposal to include another paragraph in Article 10 as a new
paragraph 3 which would provide legal safeguards against arbitrary institutionalization
which we believe is a deprivation of the right to liberty and therefore
illegal. However, in the event that a restriction of liberty is necessary,
procedures established by law and legal safeguards must be applied.
The Convention should require a review of domestic legislation or the
passage of legislation to ensure that all procedures and legal safeguards
ensure the best interests of the person with disability in accordance
with the spirit of this convention.
Intervention on Article 12
Thank you, Mr. Chair; National Human Rights Institutions feel very
strongly that Articles 11 and 12 should remain as separate Articles
and not merged as proposed by some delegations. The focus of Article
12 is on abuse and violence, an occurrence which remains all too often
in the lives of people with disabilities.
We would particularly like to support the proposal made yesterday and
this morning by Morocco that suggested the importance of monitoring
by independent bodies.
We believe that national monitoring mechanisms, such as National Human
Rights Institutions, or similar structures, could contribute immensely
to the monitoring of violations in many national institutions, this
function would already fall within their mandates.
Chair, as national institutions, we will be making a more detailed
intervention on monitoring under Article 25
Article 13
Thank you, Chair; I speak on behalf of the Asia-Pacific Forum of National
Human Rights Institutions and on behalf of National Human Rights Institutions
generally.
We suggest separating freedom of expression and opinion from freedom
of access to information. This is because the enjoyment of each
of these freedoms may have different implications and require different
means, both with regard to obligations of the State and the elements
of the programmes by which persons with disabilities could be guaranteed
effective enjoyment of these freedoms. Furthermore, for persons with
disabilities, access to information has serious implications for the
enjoyment of all of other rights and therefore needs to be tailored
to reflect the diversity of persons with disabilities and their circumstances.
We appreciate concerns expressed by several delegations regarding the
application and monitoring of various provisions of draft article 13
as regards private entities and the financial obligations the provisions
may entail. With a view to overcoming such apprehensions, we propose
additional text for inclusion in Article 13, which takes into account
the government’s regulatory role. The proposal reads as follows:
“To guarantee equal access to information by persons with disabilities,
States Parties shall undertake review, amendment and modification of
regulations and by-laws established to regulate production and distribution
of information, telecommunications, media and broadcast services”.
We also encourage States to take advantage of the accessibility standards
established by the World-Wide Web Consortium, the International Telecommunications
Union, I.S.O. and similar standard-setting bodies. This would not only
reduce the financial burden of creating accessible information products
and services but would also efficiently address the systemic inadequacies
that handicap persons with disabilities in the equal enjoyment of their
freedom of access to information. Above all, such a provision would
ensure equal participation of private entities in fulfilling their obligations
towards persons with disabilities.
Article 14
Thank you, Chair. We would like to support the New Zealand addition
of the words “retain their fertility” in the first sentence
of 2 (c).
This not only provides protection against forced sterilization but
also forced permanent contraception of disabled persons.
Chair, we would also like to amend paragraph 2 by inserting the words
“including reform of family laws containing discriminatory provisions”
after the words “family relations”
We propose that the first line of 2 (b) be amended to read “persons”
and the words “men and women” be deleted to be consistent with
2 (a)
In paragraph 2 (d) add “where necessary” at the beginning
of States parties shall render appropriate assistance… add to the end
of that sentence “and ensure equal access to mainstream services
supporting parents”
Article 15
National Human Rights Institutions strongly support the provisions
of Article 15 and does not want it weakened. We support the proposals
of New Zealand on this Article as it makes the Article much clearer
and stronger in protecting the principles of living independently within
the community.
Article 16
Mr. Chair, Thank you for the opportunity. The National Human Rights
Institutions would like to highlight the importance of having a strong
Article that promotes and protects the rights of all children with disabilities.
We would also like to see the concepts of nurturing, protecting and
empowering families and or care-givers more prominent.
Chair, as National Human Rights Institutions, we are collectively of
the view that Article 23 in the Convention on the Rights of the Child
(CRC) has not effectively addressed the rights of children with disabilities
and neither has the broader text of the CRC.
We therefore seek an Article that will address the shortcomings of
the CRC in this respect and ensure that children with disabilities access
their rights.
Chair, we are mindful of the fact that it is not desirable to have
a mini-CRC in this convention but there are specific issues we think
pertain to children with disabilities and should be articulated in this
Article.
Chair, with your indulgence, we make these few comments:
- The current formulation of this Article is quite negative and projects
children with disabilities as liabilities and not as children with rights.
We therefore would propose a more positive thrust to this Article.
- This Article is full of qualifiers, which weaken the rights of children
with disability. We believe that the “escape clauses” such as subject
to available resources and introducing eligibility criteria should be
deleted.
More particularly, we suggest the following:
Article 16
We would delete the words:
- Paragraph 1 – “without discrimination of any
kind on the basis of disability”
- Paragraph 2 – seek the deletion of the word “should
enjoy” and propose replacement with the words “have the right”
- Paragraph 3
(a) We would like to insert the word “identification and”
after the word “early”
(b) We offer the following text:
“the provision to the child and those responsible for their care,
of assistance for which application is made and which is appropriate
to the child’s condition to the circumstances of the parents or caregivers”.
We also offer the following:
- Paragraph 4 - All children with disabilities
are guaranteed the right to free basic services that are designed to
ensure the child achieves the fullest possible social integration and
individual development, including his/her cultural and spiritual development
including inter alia: education, training, health-care services, nutrition,
comprehensive (re) habilitation services and recreation opportunities.
- Paragraph 5 - We propose the deletion of the words
“other persons caring for” and replace it with “care-givers”.
And then, deletion of the word “referrals” (which surely would
be covered by the words “appropriate information”).
Similarly as suggested by Uganda, we would like to introduce paragraph
6:
“A child’s best interests are of paramount importance in every
matter related to the child”
Finally, we would like to support the inclusion of paragraph 7 of the
Save the Children Fund proposal.
Chair, we would like to see introduced, an additional paragraph similar
to Article 12 of the CRC that addresses children’s participation.
Such an article will assist in monitoring.
Article 17
On behalf of National Human Rights Institutions and more particularly
on behalf of the Asia Pacific Forum of National Human Rights Institutions,
I would like to express our concern in 4 specific areas that are vital
to the enjoyment of the right to education without any discrimination
and on the basis of equality by all persons with disabilities.
1) We would recommend careful use of the concept of progressive realization
in relation to the right to education, as majority of the states are
committed to free and compulsory education for all, though limited to
elementary education. In view of this we recommend shifting article
17 (2)(c) to article 17(1).
2) We would encourage minimizing any bias in the treaty for a particular
approach to education. We therefore recommend that the text of article
17(3) should be placed after article 17(2)(a). This would indicate respect
of and freedom of choice and autonomy for persons with disabilities
as far as the selection of educational options is concerned.
3) The National Human Rights Institutions attach great importance to
linguistic rights and appreciates the recognition of this right in the
context of education. Therefore, we would support retention of the text
as it appears in article 17(4). While we greatly appreciate the EU’s
effort and skillful crafting of an alternative Article 17(4), we consider
the working group text is clearer and recognizes in explicit terms the
importance of transacting education in the language and script most
conducive to the needs of the persons with certain disabilities.
4) And lastly, we are satisfied to note the support extended by several
member states in recognizing the importance of access by people with
disabilities to various forms of education.
Article 19
Thank you chair, for the opportunity. On behalf of National Human Rights
Institutions, I would like to offer a few comments.
National Human Rights Institutions recognize the importance of Article
19. We see this article as fundamental in ensuring that people with
disabilities are able to effectively participate in society and necessary
for achieving equality.
We therefore believe that this article cannot and should not be ambiguous
or vague.
More particular, in relation to
- 1 (2), we propose the deletion of the word “public” and replace
it with the word “all”. We seek the deletion of the words “for
public use”
- We would like the word “road” to be moved after the word
“including”.
Lastly in this subsection, we would like to see the deletion of the
words “publicly owned” before the word “workplaces”.
Chair, private buildings should not be exempt from ensuring accessibility
just as they are not for example, exempt from complying with fire safety
requirements or need for emergency exits in buildings.
These are standard requirements articulated in domestic regulations
and should be expanded to include accessibility for persons with disability
as a standard requirement.
Chair, in this vein, we would like this article to make provision for
the development of regulations on accessibility at a national level.
In regards to article 2 (c), we would like to delete the word “public”
appearing before the word “facilities” and include at the end
of that section the words – “and infrastructure”.
Chair, the proposed deletions would render paragraph 2 (d) redundant.
And so, we would seek its deletion in its entirety.
Finally, at a conceptual level, we recognize that the concept “Universal
design” is well known and understood in the disability sector. However,
there may be a danger in the wider international context of it being
seen as the lowest common denominator and therefore would seek its deletion.
However, if paragraph (3) includes a definition of universal design,
we believe that these concerns would be allayed. We note that the EU
has sought to address this.
Lastly, we seek the deletion of paragraph (2) (h) and would like to
underscore that accessibility should also cover the recognition of sign
language as a language.
Article 20
Chair, National Human Rights Institutions would like to propose that
Article 20 be titled “Liberty of Movement” we believe that
this introduces an emphasis on a rights-based approach and moves away
from the medical model.
We also seek the deletion of the words “with the greatest possible
independence” in the chapeau.
In keeping with our previous thinking regarding “Universal design”,
we seek the deletion of subsection (6) as well as the deletion of (g)
which we believe should be in the general obligations and not repeated
in every Article.
Article 21
The National Human Rights Institutions support the splitting of Article
21 into an Article on health and a separate Article on rehabilitation.
This would reflect an understanding that rehabilitation is not a concept
limited to the area of health. We therefore support the tenor of the
Israeli proposal.
Article 22
The National Human Rights Institutions feel this Article while being
very important is generally too prescriptive for an International Convention.
It uses terminology and concepts, which do not allow for flexibility,
and may be fixed at one point in time.
Mr. Chair, we support the chapeau for the simplification of this Article
as suggested by New Zealand with one change. We would substitute the
word “protect” for “safeguard” in the second sentence.
We would also propose to re-word (c) in the New Zealand draft and (d)
in the working group draft to read ensure “that employers hire persons
with disabilities”, deleting the rest of the sentence.
Article 23
Thank you chair for the opportunity. National Institutions are acutely
aware of the importance of the right to an adequate standard of living
particularly in the context of disability.
Chair, the thrust of our intervention seeks to highlight as other distinguished
delegates have, that the two rights before us:
i. the right to social security
ii. the right to an adequate standard of living are recognized as separate
rights under existing international human rights law.
We therefore would like to align ourselves with the suggestion to swap
the chapeaus around so that Article 23 (2) becomes Article 23 (1) –
invert the order of the chapeaus and support New Zealand’s point on
having the title reflect the change.
Chair, the right to an adequate standard of living is broader than
the right to social security. The right to social security can be seen
as a component or a means to attaining an adequate standard of living.
A few specific comments:
i. in the existing chapeau (1) we suggest the deletion of the word
“appropriate” and replace it with the word necessary
ii. and the word “safeguard” with the word “protect”
which speaks to the state obligations.
In the current 1 (2) we offer the following formulation:
i. ensure the necessary services, devices and other forms of assistance
for persons with disabilities
In (c), we seek the deletion of the words - with severe and multiple
disabilities, and in the same article end the sentence after the word
respite care.
With respect to (d), we suggest the word “accessible” be inserted
before the word governmental housing.
Again here, we would like to see the paragraph end after the word programmes
[in short, deleting the words including through earmarking percentages
of governmental housing].
In (f), we recognize the complexity of this subsection and would like
to see states undertake services and address discrimination.
Chair, we would like to see the access to clean water retained as elaborated
in general comment 15 by the committee of the ICESCR. While we recognize
the point made yesterday about retaining the language of the convention,
we believe that 20 years on the right to water is a basic service.
Finally in relation to (e), we suggest a reformulation of this paragraph.
We do not think a blanket tax exemption is desirable. We believe that
tax exemption should be linked to disability related expenses. This
we believe would go a long way in recognizing that people with disabilities
are equal citizens, with rights and responsibilities.
Article 24
The National Human Rights Institutions would see merit in splitting
Article 24 into two separate Articles dealing respectively with cultural
life on the one hand and recreation, leisure and sport on the
other. We consider that the present close association of these separate
rights in a single Article does not lay sufficient emphasis on the right
to cultural life.
The National Institutions would also emphasize the importance of retaining
paragraph 3, recognizing and supporting the specific cultural and linguistic
identity of persons who are deaf (or deaf blind)
Intervention on international cooperation
National Human Rights Institutions are of the view that there are many
forms of international cooperation that may support national efforts
to realize fully the human rights of persons with disabilities. One
effective form is cooperation between national human rights institutions,
which have been able to share their substantive and technical expertise
and other experiences with each other in a number of areas. This has
happened on a bilateral basis, as well as through regional fora such
as the Asia-Pacific Forum on National Human Rights Institutions, the
Secretariat of the African National Institutions, and other fora.
We consider that cooperation of this sort – involving the exchange
of information and experience among and between developing and developed
countries – could be extremely helpful in the implementation of this
convention, and we ask that the role for national institutions be recognized
in this context, if a specific article on international cooperation
is included in then convention.
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