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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
Daily
summary of discussions related to Article 15
LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
A service made possible by Landmine Survivors Network *
Volume 4, #5
May 28, 2004
MORNING SESSION
Commenced: 10:23 AM
Adjourned: 1:00 PM
Ireland, speaking on behalf of the EU,
suggested rewording Article 15.1 to read as follows: “States Parties
shall take appropriate measures to facilitate persons with disabilities
(PWD) to live independently and be fully included in the community,
including measures aimed at ensuring that.” Reference to Article 10’s
discussion of institutionalization should be inserted at the end of
15.1(b). The language in 15.1(c) should be replaced by the following:
“States Parties shall also take appropriate measures to promote the
provision of life assistance in order to enable PWD to live independently.”
In 15.1(d) “without discrimination” should be revised to say “on an
equal basis,” because in many cases community services are subject to
“means testing” based on the number of children per family. The goal
should be to ensure that PWD can access the same general services as
other members of the population.
Morocco proposed inserting a new paragraph, 15.1(f),
as follows: “Support to the families who are taking care of persons
with disabilities, and also provide material and moral support, and
provide them with the necessary assistance to ensure the inclusion of
persons with disabilities in society.”
Japan addressed the difference in categories, and proposed
redrafting to separate the civil and political rights contained in 15.1(a),
(b), and (e), which should be implemented without delay, from the guarantees
in 15.1(c) and (d), which are subject to progressive realization depending
on environmental conditions and financial availability. Since the content
of 15.1(b) is dealt with in Article 10, it should be moved to Article
10, and 15.1(e) should become 15.1(b). Then 15.1(c) and (d) should be
moved to a new paragraph, 15.2, reading: “States Parties shall take
appropriate steps to make accessible for persons with disabilities:
(a) A range of in-home, residential, and other community support services,
including personal assistance necessary to support living and inclusion
in the community and to prevent isolation or segregation from the community;
(b) Community services for the general population, on an equal footing
with others, in a manner responsible to their needs.” By separating
these two categories of rights for persons with disabilities, Japan
said, the issue of progressive realization could be acknowledged.
Jordan proposed amending Article 15’s title to “Independent
community living.” In 15.1, the words “people with disabilities” should
be added after “including by ensuring that”; and then the words “people
with disabilities” should be deleted from the beginning of 15.1(a),
(b), (c) and (e); and 15.1(d) should be changed to “Have access to community
services that are responsive to their needs.” Jordan supported Morocco’s
proposed addition, but recommended that it should be its own paragraph,
15.2.
Argentina suggested replacing the last portion of
15.1, “including by ensuring that” with the words “with a view to,”
as this involves an obligation of the States. Because 15.1(a) and (b)
are redundant, (b) should be deleted.
Mexico proposed amending Article 15’s title to read
“Inclusion in the community and independent living.” It suggested amending
15.1 to read as follows: “States Parties to this Convention shall take
effective and appropriate measures to enable persons with disabilities
to decide for an independent lifestyle and to be able to choose their
place and structure of residence, without barring the possibility of
being fully integrated in the community and in their families by ensuring
that:.” Mexico supported “independent living, rather than separation
of families.”
India expressed the title amendment of “Right to a
life of independence in the community.” It proposed deleting the portion
of 15.1 following “persons with disabilities.” --??? “ In 15.1(a), India
recommended replacing the current text with the following: "Persons
with disabilities have the equal opportunity to exercise their choice
of living independently or with their family respecting social and cultural
practices of family norms and be included in the community." In
15.1(d), it deleted a redundancy of “for the general population.” India
supported the EU position on 15.1(b).
New Zealand (NZ) amended Article 15.1 to read as follows:
“States Parties to this Convention shall take effective and appropriate
measures to enable persons with disabilities to live in and to be fully
included as members of the community. States Parties shall ensure that:
(a) persons with disabilities have the equal opportunity to determine
how, where, and with whom they live; (b)(bis) children live with their
own family or, where that is not possible, live in another family situation;
(c) persons with disabilities have access to a range of in-home and
other community support services, including personal assistance, necessary
to support them to live where they choose, to participate in the community,
and to prevent isolation or segregation from the community; (d) community
services and facilities for the general population are available on
an equal basis to persons with disabilities and are responsive to their
needs; (d)(bis) community support services are provided in a manner
that recognizes the autonomy, individuality and dignity of persons with
disabilities; (e) persons with disabilities have access to information
about community services, including support services. NZ states the
focus is community integration, and supporting autonomy rather than
control of PWD. Benefits to families and caregivers are a natural consequence
of implementing the Convention’s focus on PWD, so there is no need for
additional family or caregiver provisions.
Philippines amended 15.1(d) by adding: “Persons with
disabilities are allowed to become members and active participants in
community organisations and instrumentalities of their choice. There
shall be policies and facilities to assist PWD to qualify for membership
and be able to participate.”
Yemen supported the title amendment “Independent living
and integration into society.” It stated that “independence” does not
fully reflect the aim of the Convention. Yemen supported the statements
made by Morocco and Jordan.
Sierra Leone recommended deleting 15.1(b) as redundant.
It supported Argentina and the Working Group (WG) footnote (FN) 52.
It supported the EU's proposal for inserting a new paragraph. Sierra
Leone supported promotion of supportive assistance, rather than an obligation
to provide such assistance.
Vietnam amended 15.1(d) to read: “Persons with disabilities
have rights to participate and benefit from all available community
services on an equal basis with the general population.”
Bahrain proposed the title amendment of: “Independent
life and integration into society” or “social integration.” It supported
India and Yemen’s related proposals.
Canada deleted15.1(b), as its ideas are already expressed
in 15.1(a). In 15.1(c), “based” was inserted between “community” and
“support services.” It added paragraph 15.1(f) “Persons with disabilities
who require assistance communicating have access to necessary and appropriate
supports to enable them to express their decisions, choices and wishes.”
South Africa supported the inclusion of Article 15
in the Convention, but proposed replacing “included” with “integrated"
in the title. PWD are not “add-on parts of communities.” Integration
should be further strengthened in 15.1(c) by replacing "inclusion"
with “integration” for consistency with the proposed title. Because
its ideas are captured in 15.1(a), as referenced in WG footnote 52 and
noted by other delegations, South Africa supported deleting 15.1(b).
However, if 15.1(b) is kept in the document, then South Africa proposes
adding, at the end of the sentence, the words “unless where it is found
appropriate.”
Thailand supported the proposed changes by New Zealand,
except in 15.1(c) where “residential" should be kept as an option.
Some educational settings may require residential arrangements, similar
to that offered to non-disabled persons. Since there are two sets of
meanings for independent living (IL), it supported the general concept,
but not the narrowed application to a particular movement. Thailand
supported keeping 15.1(b) in any portion of the Convention deemed relevant.
Both the terms “inclusion” and “integration” are non-problematic if
viewed from an inclusive social structure, however Thailand would support
use of a better term.
Kuwait amended 15.1(c) by deleting “in-home,” adding
“options” after the word “residential” and deleting a redundant last
phrase, “and to prevent isolation or segregation from the community.”
It supported Yemen’s title proposal, South Africa’s 15.1(b) proposal,
and Morocco’s proposal to add 15.1(f).
Botswana supported amending 15(e) to read: “Persons
with disabilities, their families and caretakers have access to information
about available community support services.”
The Russian Federation agreed with statements made
by Argentina and Sierra Leone, and supported Canada’s proposal to eliminate
15.1(b).
The floor was opened for comments from the NGOs.
People with Disabilities Australia, speaking on behalf
of the National Association of Community Legal Centres, and the Australian
Federation of Disability Organisations, requested delegations' support
of Article 15, since independent living with support services is ”fundamental
to the realization of many human rights.” Stating that “the continued
institutionalization of PWD remains one of greatest abuses of human
rights,” it requested an “unequivocal obligation on state and non-state
actors to cease institutionalizing persons with disabilities."
It also urged strengthening 15.1(b) to require states to eliminate institutional
care since PWD are forced into them in absence of alternative choices.
States should be required to develop and implement practices to relocate
PWD currently institutionalized in the community, and provide necessary
supports.
Inclusion International (II) opposed use of the term
“integration” since it implies fitting into the existing system. “It
is not about fitting in, but about accepting diversity.” Emphasizing
the need to create choices and restore control of their lives to PWD,
it stated that “removal of restrictions, lack of choice regarding meals,
clothing, pets and friends – this is what it means to choose where one
lives.” Additionally, grouping PWD together is not cost effective, and
too proliferative. II affirmed New Zealand’s proposal.
World Network of Users and Survivors of Psychiatry (WNUSP)
reiterated the importance of the right to freedom of choice and expression
– with PWD “being able to live in the community as themselves,” able
to disclose their status and experience without fear of being declared
incompetent or dangerous. Institutionalization should not be supported.
WNUSP endorsed the NZ amendments.
International Disability Convention Solidarity in
Korea proposed replacing “living independently” with “independent living,”
and, in 15.1, “live independently” should be replaced by “to achieve
independent living.” It commented that “living independently” was written
in place of “independent living (IL)“ in the WG because IL was a service
model for some developed countries. In other countries IL means “to
govern their own lives by their own will,” not separation from families,
so the use of "independent living" in this Convention is appropriate.
Since the UN theme for the 2000 World Disability Day was “Independent
Living,” it is reasonable to believe they didn’t choose the name of
a popular service model.
World Union for Progressive Judaism (WUPJ) suggested
an addition to 15.1(e) with a reference to the accessibility of information
on available support services to family and caregivers, considering
their important role in the inclusion of PWD. It also expressed affirmation
of PWD rights to live independently, be part of and take part in all
services available to the general community, regardless of the level
of independence.
National Human Rights Institutions supported Article
15 and the New Zealand proposal in order to clarify and strengthen community
independent living principles for PWD.
The floor was re-opened to States for additional comments.
Lebanon proposed amending New Zealand’s proposed 15.1(b)(bis)
to read: “Children with disabilities live with their own family or,
where that is not possible, favour that children with disabilities live
in another family situation whenever possible.”
Costa Rica stated their intent to present a written
text to address overlooked points in Article 15. Specifically, it wants
to clarify decision-making rights of PWD through provision of States’
assistance.
PROPOSED NEW ARTICLE15 (BIS): WOMEN WITH DISABILITIES
“1. State Parties undertake to ensure the enjoyment of full and equal
rights and freedoms by women with disabilities and their equal participation
in political, economic, social and cultural activities without any discrimination
on the basis of their gender and/or disabilities.
"2. State Parties shall take the following steps from a gender
perspective so as to ensure that women with disabilities are able to
live with dignity in freedom, safety, and autonomy.
(a) Include a separate reference to the protection of the rights of
women with disabilities in laws pertaining to women and persons with
disabilities;
(b) Incorporate women with disabilities in social surveys and statistics
collection efforts and collect gender-disaggregated data on persons
with disabilities;
(c) Protect the motherhood of women with disabilities by developing
and disseminating policies and programs for assistance based on the
recognition of the special needs of women with disabilities in pregnancy,
childbirth and postpartum health care and child-care;
(d) Ensure that women with disabilities are not deprived of their right
to work due to their pregnancy or childbirth, and provide the necessary
assistances in this regard;
(e) Ensure that women with disabilities are protected from sexual exploitation,
abuse and violence at home, institutional facilities and communities.”
The Republic of Korea introduced the above proposal
for insertion before Article 16. Paragraphs 15(bis)(a) and 15(bis)(b)
requiring inclusion of women with disabilities' (WWD) issues into laws
and into data collection both provide special consideration to the unique
societal situation that WWD face. Paragraphs 15(bis)(c), (d) and (e)
focus on protection of motherhood, right to work, sexual exploitation,
abuse and violence. The rights of WWD need to be accorded similar attention
to that received by children with disabilities.
South Africa called for a dedicated Article on WWD
because they are one of the most highly marginalized groups. This is
consistent with the draft text’s inclusion of children.
Ireland reaffirmed the EU’s position that the purpose
of this Convention is to apply to, and ensure the rights of, all PWD.
It highlighted structural problems resulting from proposals which differentiate
high risk groups such as WWD and CWD within the whole community of PWD.
While they EU may agree with the substance of the proposal, as a matter
of principle the EU believes that the appropriate placement for such
references is in the Preamble.
Jordan supported the statement made by Ireland/EU
regarding the need for unity, as opposed to more division. It suggested
including WWD in the Preamble, or elsewhere.
Sierra Leone posited several questions, given that
children are a special population group, on whether “special articles
to cover special population groups” should be included in this Convention
and if so, “how far can we go?” It highlighted an inconsistency because
children are included, but women are not.
Yemen responded that inclusion of women would depart
from the goal of a Convention covering all PWD. Children are different
from adults since they cannot meet needs on their own. Yemen opposed
including an Article on WWD, and supported the positions stated by Ireland/EU
and Jordan.
India called for inclusion of WWD in the Preamble
and General Principles, while retaining the separate Article on CWD.
As stated by EU, Jordan and others, a separate WWD Article is unnecessary.
Norway echoed India’s statement, and added that the
right to “equality between men and women” would also encompass children.
Namibia supported the Korean and South African proposal
of a separate Article for WWD, since they are more marginalized than
any other group, including children.
Ireland responded to Sierra Leone’s question regarding
the EU’s apparently contradictory position in including a separate Article
on children, but not women. The EU did not wish to imply that women
and children don’t face severe challenges. It wanted to avoid compartmentalization,
and digression into arguments about which group has the most or least
severe challenges. This Convention should apply to all PWD. For this
reason the EU also does not support a separate article on CWD. A dedicated
Article implies that the only rights available to a group are those
that are referred to in that Article, and therefore risks limiting children’s
rights to the provisions of that Article. This may be a grave disservice
to CWD. The Convention on the Rights of the Child (CRC) is virtually
universal, with the greatest number of ratifications among the human
rights instruments. An approach that attempts to incorporate incomplete
elements of the CRC into this Convention would not enhance the protection
of the human rights of CWD.
Kenya affirmed universality in principle, while noting
that certain categories of PWD suffer disproportionately. It supported
South Africa and Korea in specifically recognizing WWD, because women
have suffered more. “This is our opportunity to recognize the principle
of universality, but also recognize specific categories of people that
have suffered most because of gender.”
Serbia and Montenegro stated that the Convention should
contain reference to WWD, but does not support inclusion of a separate
Article. The Preamble already contains reference to WWD; gender equality
could be included in the Convention’s General Principles or elsewhere.
Uganda supported separate Articles on WWD and children
with disabilities. Disability is a diverse, non-homogenous category.
Different PWD suffer differently, and women face special double discrimination
and risk because of gender and disability.
Thailand acknowledged that WWD do face "multiple
layers of discrimination, more so than men.” However, the Convention
can only contain a limited number of articles. Thailand urged finding
a constructive approach to give strong recognition to the problem.
Mali supported addition of Article 15(bis). While
it understands the EU view, this is a diverse world. In African countries
women are doubly discriminated against, and a universal Convention should
underscore this in the name of solidarity among PWD.
Korea expressed appreciation of the many concerns regarding
categories, and asked all States Parties to give deeper attention to
subgroups such as WWD.
Sierra Leone proposed a special Article covering population
sub-groups, including women, children and any other at-risk group in
a succinct, short format considering specific concerns of each group.
These needs are not adequately covered in the Preamble. In the event
of non-consensus on inclusion of separate Articles on women and children,
and should the Committee choose to take the route of “not ignoring,
nor overemphasizing the needs and positions of groups,” Sierra Leone
offered to prepare a proposal.
Saudi Arabia recognized discrimination against women
with disabilities and the merit of the Korean proposal but believed
this Convention should concentrate on PWD regardless of gender. The
provisions of 15(bis) should be incorporated into other Articles such
as the one on violence. Saudi Arabia supported the Article on CWD as
a special, non-adult case.
Mexico affirmed its views regarding a separate Article
on children. It noted that situation of WWD has not been dealt with
in other human rights instruments and for this reason should be addressed
in the Preamble, along with other special populations.
Costa Rica noted consensus regarding the inclusion
of special population groups, but a lack of consensus on the best approach
to PWD sub-groups facing additional challenges. Ireland is right to
advise against establishing a hierarchy of disability sub-groups. Discussion
on this issue is “more of form than substance” and should be suspended.
Liechtenstein echoed the position of Costa Rica noting
that “form is optional, substance is not.” Whether provisions on WWD
is included in a separate article or integrated into other Articles
into the Convention, what matters is the substance of these provisions.
Addressing needs of specific categories of people in a human rights
discourse is not inherently problematical. The theoretical danger that
such an exercise could lower the standards of protection can be addressed
with careful drafting, ensuring that they are in conformity with human
rights standards. A general provision that deals with the relationship
between this Convention and other Conventions addressing similar rights
should be explored.
Lebanon has always been concerned about the risk of
discrimination between and among PWD. It agreed with Sierra Leone to
create a special populations Article addressing women as well as the
elderly, without being too detailed and restrictive.
The Special Rapporteur on Disability supported inclusion
of Article 15(bis). An Article specifically dealing with WWD is necessary,
as the issue has many dimensions. They relate to the stages of aging,
and to societies that create situations and have cultural values that
complicate this situation of multiple discrimination.
The floor was opened for NGO participation.
World Federation of the Deaf (WFD) supported the Korean
proposal. Existing Conventions such as CEDAW and CRC do not adequately
include all rights and needs of disabled women or children. The fear
of having to add other new groups is insufficient grounds for not including
the Articles on Women and Children.
.
Economic and Social Commission for Asia and the Pacific
(ESCAP) affirmed the stance of Korea, South Africa, Mexico and others,
although it understands the concept of universal application. The majority
of disabled women, who are 50% of the population, do not have access
to services, WWD should be included in this Article or the General Principles.
Landmine Survivors Network (LSN) strongly supported
the Korean proposal and comments of Uganda, Namibia, Kenya, South Africa
and others. It is convinced from its work with women and girls in mine
affected countries that female amputees face additional discrimination.
World Blind Union (WBU) supported Korea’s proposal.
The issues of WWD have rarely been recognized, and this needs to begin
somewhere. WWD are " the poorest of the poor.” They are often neglected,
and cannot move forward without States’ recognition.
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