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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
Daily
summary of discussions related to
ARTICLE 4: GENERAL OBLIGATIONS
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #1
May 24, 2004
AFTERNOON SESSION
Commenced: 3:06 pm
Adjourned: 6 pm
Ireland, speaking on behalf of the EU,
stated that they had looked carefully at Articles 4, 5, and 7 because
they believed these 3 articles dealt to a large extent with non-discrimination
and ways and means to assure non-discrimination. For that reason the
EU proposed the consolidation of those 3 articles into a single article
on Non-discrimination, and will make further suggestions about the non-consolidated
sections of Article 7 later.
Article 4 then would establish a set of principles needed to secure
non-discrimination of PWD. The chapeau of Paragraph 1 would be replaced
by the following wording: “In order to secure non-discrimination of
PWD, States parties undertake in particular” and would amend Paragraph
(a) to “take effective measures to review governmental, national and
local policies, and to amend, rescind or nullify any laws or regulations
which have the effect or purpose of creating or perpetuating such discrimination
wherever it exists.” Ireland asserted that while this amendment is similar
to (a) as is stands, it requires stronger commitment. The EU proposal
includes short amendments to Paragraph (b) – “rights of equality and
discrimination“ would be changed to “equality of opportunity."
The EU proposal also involves a rewording of Paragraph (c), to address
the EU's concerns with using the verb “mainstream” in an international
legal instrument. The following rewording is suggested: “States shall
ensure that the needs and concerns of PWDs are incorporated into economic
and social development plans and policies, and not treated separately.”
In relation to Paragraph (d) the following rewording is suggested: “to
refrain from engaging in any act or practice of discrimination against
PWD and to ensure that public authorities and institutions act in conformity
with this obligation.” In Paragraph (e) the EU proposes to delete the
word “private” before “enterprise.” The EU proposes that Paragraph (f),
dealing with universal design, be moved to Article 19. In reference
to Paragraph 2, the EU suggested that it be moved to Article 25, which
deals with monitoring and implementation.
Speaking as coordinator for the African Group, South
Africa (SA) called for retention of Article 4 noting that progressive
realization of economic, social and cultural rights is a critical issue
to the Group and supported footnote 19 in this regard. The Group also
prefers reference to “the conscious allocation of resources by governments
in favor or PWD.”
Japan suggested inserting a new item after subarticle
(f) and this new article (g) would state, “to provide the conditions
and environments under which persons with disabilities may live in a
self-sustained manner by fully exercising their capacity.” Their reason
is the lack of employment of PWD, and the need to help people live by
themselves and by provisions of care from the government. Therefore
Japan suggested a concept of empowerment in the article. Before subparagraph
(a) they would like to insert a new sentence, “to inspect and Ensure
the rights set forth in the present convention and to adopt,” taken
from Art 2 (1) of the Convention on the Rights of the Child, which put
this convention in line with other conventions on human rights. Japan
also suggested in subparagraph (a), the word “appropriate” should be
inserted between “adopt” and “legislative,” in order to achieve the
goals of this convention in the case that legislation is already in
place. Also, in relation to Paragraph 2, Japan suggested that it deals
with the same issues as Article 18(c) and suggested that Paragraph 2
be moved to Article 18(c).
Argentina stated that the obligation of States is
one involving means, and suggested an alternative meaning for 4(1):
“States Parties undertake guaranteeing the exercise and enjoyment of
human rights and fundamental freedoms” and can go on from there. A reference
to international cooperation could use the wording from the Convention
on the Rights of the Child. They suggest that “States parties shall
adopt all measures, administrative, legislative and other kinds to give
effect to the rights recognized in this Convention regarding economic,
social and cultural rights; the states parties shall adopt these measures
to the utmost of what their resources will allow, and when necessary,
in the context of international cooperation.” In this way, there is
the progressive making of a reality of economic, social, and cultural
rights.
A delegate suggested that future lengthy proposals be circulated in
advance, and they supported Argentina. They also requested that the
EU clarify its intentions in eliminating sub-paragraph (d), and while
acknowledging that the proposed changes are viable, they wondered if
the proposed changes might weaken the Convention. Moreover, they asked
that there be an incorporation of judicial measures, understanding that
a state is a single whole and that the judicial branch has a significant
role in this context. Subparagraph (d) must contain an additional line
that reads after public institutions, “and private institutions that
render public service,” acknowledging that these private institutions
must abide by established measures.
Canada advocated the removal of the words “within
their jurisdiction” from Paragraph 1, as it does not clarify, and instead
presents complications. For example, it might leave out asylum-seekers
with disabilities.
New Zealand suggested a change to Article 4.2. “In
the development and implementation of policies and legislation to implement
this Convention, States Parties shall do so in partnership with persons
with disabilities and their representative organizations.” Article 5.2(d)
would then be redundant and could be removed.
Yemen was concerned that delegations have not had
sufficient time to examine the proposal of the EU and believed that
some terms might be too general to be included in an international legal
text on obligations.
Kenya expressed concerns that PWD “suffer double jeopardy,”
particularly those who are institutionalized, and proposed an additional
paragraph: “To provide particular protection and support for PWD who
are vulnerable on account of situations such as conflict and natural
disasters or because of their status as children, women or persons living
with HIV/AIDS.” He noted here that it is not often considered how HIV/AIDS
affects PWD. Kenya asserted the addition of a paragraph which would
clearly require, “credible and effective structures to oversee implementation
and monitoring.”
A delegate noted that the Committee’s methodology of work – “amendments
on the fly” –do not show clearly which proposals enjoy broad backing.
He also requested that lengthy, detailed proposals be circulated in
advance and in writing to governmental and non-governmental organizations.
There has been exhaustive discussion on the purpose of the Convention,
and it goes beyond fighting discrimination. While this delegation would
like to have the amendments proposed by the EU in writing, which could
weaken the points and purposes that the committee has assigned itself.
The chapeau of this Article on General Obligations should be in keeping
with Article 1, which has already been extensively reviewed. The document
prepared by the WG has a sound premise and is useful. In referring to
international cooperation, they intend to propose a specific article
on this point.
Serbia concurred with other delegations in appealing
to delegations to submit lengthy proposals in advance in writing. Serbia
expressed general support for the EUs decision, especially regarding
their qualifying the word ”mainstreaming,” which is a term that people
who are not from the disability movement might not know. Serbia also
commends NZ for its rewording of “close consultation with” to “partnership.”
Ireland (EU) responds to a question about Article
4(d) from Costa Rica requesting explanation for the EU’s proposal to
delete the phrase “to refrain from engaging in any act or practice that
is inconsistent with this Convention.” The EU does not believe this
is necessary, as a fundamental principle of international law stated
that parties should refrain from acts that are contrary to the Convention.
However, refraining from acts that are discriminatory to PWD is something
new and that is worth underlining - a concrete commitment that states
parties should undertake.
Delegations including Japan inquired after the EU’s proposed deletion
of the phrase ‘to adopt legislative, administrative and other measures.”
The EU was open to considering the matter but refrained
from commenting further until delegations had the opportunity to read
through its proposed amendments.
India proposed a short amendment on international
cooperation, adding after paragraph (f): “to cooperate with developing
countries through financial and technical assistance, to support them
in their efforts for the progressive achievement of the goals and objectives
of this convention.”
Liechtenstein supported Mexico regarding the chapeau
of Article 4 and highlighted the need for consistency between Articles
1 and 4. He noted that there exists in legal texts a precedent for outlining
measures that States must undertake in the course of implementation
of obligations. He asserted that the draft text in this article as it
stands is designed more to show how states can implement the Convention
and the tools it can use in this regard. Additionally, Liechtenstein
supported the EU proposal on “mainstreaming,” and agreed that another
wording be used, as “mainstreaming” is difficult to translate into other
languages.
Thailand is satisfied with the existing draft of Article
4, but suggested “to integrate” be used instead of “mainstreaming,”
and to be consistent, suggested that “including international cooperation”
be appended to Article 4.1(c). Thailand also suggested a short amendment
to Article 4.1(f) in the placement of “including assistive technologies”
at the end of the first sentence, then deleting the last sentence, as
it could be confusing.
Israel believed also that proper location of the concept
of progressive realization is under Article 4. They proposed the addition
of a third paragraph based on Article 4 of the CRC: “States parties
shall undertake all appropriate legislative, administrative, and other
measures for the implementation of the rights recognized in the present
convention. With regard to economic, social and cultural rights, states
parties shall take such measures to the maximum extent of their resources,
and within the framework of international cooperation.” The second sentence
should be amended to cite the articles in the Convention text to which
progressive realisation would apply - Articles 9d, 13, 15, 16, 17, and
19 until 24. Given that these are new concepts in international law
in relation to PWD it would help clarify which rights would apply to
ESCR. The second sentence should also be amended so that “with a view
to achieving progressively the full realization of such rights” based
on Article 2 (1) of the ESCR, replaces the last phrase on international
cooperation.
New Zealand further amended 4(2) substituting “partnership
with” to replace “in close consultation with and include the active
involvement of” PWD. It also proposed an addition to the last sentence
“representative organizations, recognizing expertise of PWD and the
leadership they can provide in all affairs concerning them.”
RECESSED: 4:25 PM
RECONVENED 4:52 PM
The EU summarised “EU Proposal 24, May 2004” and its
proposed amendments (available on the UN Enable website.)
The EU’s new Article 3 titled “Non Discrimination” would incorporate
most of Article 7, include amendments as already proposed to Article
4, and include portions of Article 5 and 6. Unconsolidated text from
the existing Articles 4, 5, 6 and 7 would be either deleted or moved
elsewhere.
Lebanon noted there is a precedent in other Conventions
for General Obligations type provisions at the beginning, which outline
how states can achieve the Purpose of the Convention. It preferred retention
of this Article thus making it clear that the General Obligations was
not restricted to nondiscrimination because “nondiscrimination is only
part of this Convention.”
Kuwait cautioned that current proposals threaten “the
balance” of the draft text and deviate it away from the purpose of the
Working Group. Any comprehensive or general change would be tantamount
to a general amendment of the convention. Proposals should “be synchronized”
as agreed earlier.
Yemen asked for more time to examine the English only
proposals of the EU. There was also an announcement on May 23rd from
the Arab Summit, of the Arab Decade for the Handicapped, 2004-2014.
Mexico was “deeply concerned” at the direction of
the debate which was “very quickly moving away from WG text”. Their
position, shared by many other delegations, is that the WG did substantial
work in the endeavor to bring positions closer together. Even if this
work can’t be regarded as final, it still reflects a common ground.
Should the EU proposals be the basis for work, it would “mutilate” the
WG text. The EU’s new title of Article 4 would also substantially limit
the scope of the Convention. Seconding the rationale of Lebanon, these
amendments should be left until Article 7. Paragraph 1 should have the
following at the beginning “In order to achieve the Purposes of the
present Convention, States undertake ….” This would be followed by a
list of the General Obligations.
The EU’s proposal regarding subpara (a) “is perfectly negative”, looking
only at national legislation and policies, and does not take into account
the aim of the current text which is to enable states to approach it
in a more positive light with legislative measures to give effect to
terms of convention. They have no objection.to the EU’s language in
subpara (b) replacing “rights” with “principles,” and specifying “equality
of opportunity”. They also agree with the changes to sub-para (c) removing
the reference to “mainstreaming” and (f) shifting this to Article 19.
However amendments to subpara (d) are limiting, focusing on discrimination
with other purposes of the Convention set aside. And the value of moving
Article 6 on Data and Statistics to Article 25 is unclear given that
the provisions on monitoring lack any specificity yet.
Mexico reiterated that the main purpose of states parties is to give
effect to the Convention by the adoption of appropriate national measures
while “establishing close links with NGOs”.
It was most important to “preserve the results of the WG” and delegates
should confine themselves to making general statements that would enable
the Chair to discover which elements enjoy support, or no support, and
to formulate amendments accordingly. Otherwise the Committee is “already
embarking upon an exercise that will dilute the text in front of us,
when in fact this should be the basic text for negotiation.”
Jordan emphasized the importance of preserving Article
4 - non-discrimination is important but does not displace other obligations.
Duplicated language on discrimination across the other Articles can
be amended thus addressing the concerns of the EU. Article 5 should
also be retained.
New Zealand wouldn’t comment at this stage on the
general repositioning of articles under the EU proposal. The EU’s proposed
specific wording changes in Paragraph 1, (a), (b), (d) and (f) as narrowing
convention. In 1 (c) it agreed to changes replacing the language on
mainstreaming and in 1(e) it agreed that “private” before “enterprise”
should be deleted. The second sentence of 1 (f) may be too specific
and should be moved elsewhere. They reserve judgment on moving Paragraph
2 to Article 25.
Kenya was hesitant about moving paragraph 2 to Paragraph
25 given the importance o consultation with PWD. They agreed with the
EU’s deletion of “private” before “enterprise”. He noted that “as far
as possible we should work with draft with WG, otherwise it will become
difficult and cumbersome as we try to reach agreement.”
Bahrain supported Kuwait’s proposal to work from the
original Draft text.
Costa Rica agreed with other delegations that the
chapeau of this article should be directly related to the purpose of
the convention. 1 (a) should be kept intact insofar as proactively committing
states to adopt legislation that would expand the ambit of human rights
that would be applicable to PWD on the one hand wipe out customs and
practices that would impede the realization of that right. 1 (b) should
avoid mentioning constitutional changes and retain the general language
of embodying changes in states’ judicial frameworks. 1 (e) should also
apply to private institutions providing public service act in line with
stipulations of the Convention.
Ireland acknowledged the excellent work of the WG
but noted that it did not in any way prejudice the work of the AHC.
Even the members of governments on the WG “spoke for themselves” and
this is the first opportunity that governments have a chance to discuss
among themselves. The outcome of the WG cannot be seen as agreements
and does not necessarily shape the structure of the Convention. The
EU’s proposed amendments are open to discussion and are as valid as
any proposals to come out of the WG.
The EU does not consider the existing Article 4 to be a General Obligations
formulation, but essentially a nondiscrimination one, and one that was
repeated in Article 7, and for that reason merited restructuring.
Thailand supported New Zealand’s position on the EU
draft. It also supported the EU’s amendments in 1(c), with the addition
of the phrase “including international cooperation.” The “substance
and spirit” in the reference to the involvement of PWD in Para 2 must
remain in the General Obligations because the role of PWD extends to
all stages of policymaking and implementation, not just in the process
of follow up and monitoring that still needs to be developed further.
Trinidad and Tobago emphasized the importance in an
international treaty to have the obligations and duties of States clearly
spelt out. Language could be strengthened and streamlined but this Article
should be retained. In addition both para 2 and Article 25 should also
be retained, with the former perhaps prefaced by language such as “without
prejudice to Article 25.”
National Human Rights Institutions (NHRI) expressed
concern on the proposed deletion of the chapeau of Article 4(1), in
particular the phrase “within their jurisdiction.” While not its intention
such an amendment could potentially discriminate against PWD, eg. non-citizens
or asylum seekers. The removal of Article 4 (1) would substantially
narrow the scope of the Convention to one that focuses on nondiscrimination
and starts moving away from a comprehensive international instrument.
Landmine Survivors Network emphasized that this Article
is critical to outlining States substantive obligations, which are and
must continue to be broader than the narrow approach of non-discrimination
proposed by the EU. LSN supports the positions of South Africa, Jordan,
Mexico, Lichtenstein and others. Full-inclusion is more than the absence
of discrimination. The Convention must assure the full range of civil,
political, economic and social and cultural rights, which based on their
work with survivors in mine affected countries, is essential if their
human rights are to be enjoyed. The deletion of the reference to “private”
enterprise is of some concern given that other treaties have extended
to the private sector and that discrimination against PWD happens to
a large extent in the private sector, in the areas of work and accessibility.
LSN supports the amendment from Thailand including international cooperation
in 1 (c).
World Network of Survivors of Psychiatry emphasized
that governments’ efforts to give effect to the Convention, and to revise
policies and laws to conform with its provisions, should not be subject
to a non-discrimination analysis, which is a particular type of analysis
that may not be exclusively applicable to every situation. WNUSP strongly
supports strengthening paragraph 2, regarding partnership with PWD,
recognizing their expertise and leadership.
European Disability Forum supported an addition to
subpara (a) with “bylaws and rules”. In 1(c) it called for a specific
reference to development cooperation obliging both the donor and recipient
of funds to take into account PWD. It supported footnote 22 adding a
reference to remedies in this Article. It supported Kenya’s proposal
to include a specific para for PWD faced with a specific problem or
type of discrimination, like women with disabilities or indigenous minorities.
EDF welcomed NZ’s strengthening of Para 2. EDF objected to the EU proposal
merging General Obligations with Nondiscrimination, in particular restricting
the chapeau to nondiscrimination. The reference in 1 (c) to “not treating
PWD separately” in development plans is of some concern as mainstreaming
requires a twin-track approach, calling for specific programs while
promoting inclusion in regular ones. Moving of Paragraph 2 to Article
25 is not necessary at this stage.
Volume 4, #2
May 25, 2004
Morning Session
Commenced: 10:20 AM
Adjourned: 12:50 PM
China suggested new language for Article 4.1: “States
Parties undertake to adopt legislative or administrative and other measures
to ensure the full realization of all human rights and fundamental freedoms
for all individuals within their jurisdiction without discrimination
of any kind on the basis of disabilities. With regard to economic social
and cultural rights, States Parties shall undertake such measures to
the maximum extent of their available resources and, where needed, within
the framework of international cooperation.” China went on to suggest
an amendment to 4.1(a), “to amend, repeal, or nullify any laws or regulations
and discourage customs or practices that are inconsistent with this
Convention.” The Chinese amendments to Article 1 will be distributed
later.
Ireland, speaking for the EU, responded to the comments
made regarding the EU’s proposals for Article 4, and stated that it
was not the EU's intention to turn the Convention into one about non-discrimination.
Before the December (2003) meeting, the EU proposed a text of the Convention
aimed at producing a strong document that will be implemented and ratified
by the widest possible sector of the international community so that
PWD can enjoy rights already guaranteed to them by international law.
The EU advocates four basic principles -- non-discrimination, equality
of opportunity, autonomy, and participation/inclusion -- which must
remain at the core of the final Convention. Non-discrimination is an
essential element that needs to be reflected in the Convention, which
is why the EU proposed strengthening this language. The intent is not
to dilute Article
4, and the EU fully respects both the Article and the Working group.
The
EU reasoned that non-discrimination is essential because existing international
human rights instruments already apply to PWD, but PWD still face denials
of rights to which they are entitled, and states can bring about situations
where PWD can enjoy full rights without discrimination. The EU affirmed
that all human rights will apply to PWD, not just the rights stated
in this Convention. The EU also stated that later it will suggest that
Articles 18 and 19 be moved further up in the draft and that Article
4.2 (with amended language) be moved to Article 25. The EU read this
amendment during the present discussion, without prejudice to where
it might eventually be placed: “States, when developing and implementing
policies and legislation to give effect to this Convention, shall take
appropriate measures to ensure adequate consultation with, and involvement
of, PWD and their representative organizations.”
Morocco stressed that in the body of Article 4 the
question of progressive achievement of political, social, and cultural
rights must be addressed in order to enable countries to achieve the
purposes of Convention under the best possible circumstances.
Yemen, on behalf of the Arab Group, urged the AHC
not to omit discussion of the Preamble, and suggested that certain articles
discussed in haste could require further consideration later. Yemen
also stated its desire to remain as close as possible to the Working
Group text, as the WG considered numerous views. Amendments should be
limited to explanatory notes or legal angles. The WG's draft of Article
4 should be preserved.
India agreed that the EU proposal deserves some attention.
However, in order to reconcile various aspects of the Convention, India
proposed that what is now Article 7.3 be moved to Article 4 after the
discrimination clause. India proposed an amendment to 7.2, to delete
the words “close" and “the active involvement of,” both of which
are subjective and unnecessary. India proposed appending “and their
families" because in some developing multicultural countries PWD
have not reached a stage of empowerment where they can be “spokesmen
for themselves.” Families should be included as stakeholders in all
planning and policy discussions.
Next the floor was opened to interested NGOs.
Rehabilitation International stated that retaining
the Article on general obligations is crucial, underscoring the congruity
between this Convention and other existing human rights instruments,
and that there should be a direct and visible correlation between Articles
4 and 1, with the purpose to secure full and equal enjoyment of all
human rights for PWD. RI stated that it could live without the word
“effective,” but only if it is understood that this is included in the
word “equal.” RI, like Lebanon, New Zealand, Costa Rica, and Jordan,
questions whether the EU proposal supports the underlying purposes of
the Convention. Non-discrimination describes how rights are to be delivered,
but does not go to the substantive content of these rights. It is a
tool to advance the equal enjoyment of rights but does not exhaust the
equality idea, and it does not go to the full enjoyment of human rights.
RI supports a broader conception of the role of the treaty. Non-discrimination,
though perhaps indispensable, is but a means to the ends of the Convention.
RI proposes that the chapeau read, “In order to secure the full and
equal enjoyment of the human rights of PWD, parties undertake without
discrimination to” and then continue from there.
World Network of Users and Survivors of Psychiatry
conceded the need for redrafting to make the Convention clearer, but
cautioned against reducing the coverage and scope of the rights and
obligations in this Convention. WNUSP also warned that it could be dangerous
to overemphasize the role of families of PWD, especially if families
are not working alongside of PWD. The participation of PWD needs to
be the rule in the implementation of obligations.
PWD Australia and National Association of
Community Legal Centers supported Article 4 in principle, but
asserted that an explicit statement of international obligations is
crucial. Two-thirds of the 600 million PWD live in the developing world,
and practical implementation of this Article must involve the transfer
of resources, technical assistance, and policy advice to the developing
world. Without such a transfer people in developing countries will not
benefit from this Convention. They further stated that 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.
There is already considerable resource transfer occurring between developed
and developing States, through intergovernmental aid programs, and it
is critical that these aid programs respect the rights of PWD. They
affirmed the importance of cooperation on trade and commerce standards
with regards to accessibility, telecommunications, copyrights, and so
on, and they recommended an explicit statement on these international
obligations in Article 4.
Asia Pacific Forum on National Human Rights Institutions
(APF), speaking also on behalf of National Human Rights Institutions,
raised a concern about the draft's absence of an explicit provision
on remedies. In a Convention designed to ensure the effective and practical
realization of the human rights of PWD, judicial and other appropriate
remedies should be included as explicit provisions of the Convention.
With regard to the progressive realization of economic, social, and
cultural rights (ESCR), he pointed out that developments in ESCR over
the last 20 years have meant that many of its aspects, like nondiscrimination,
can in fact be effectively and immediately realized. This was reflected
in the Bangkok and Chair’s Drafts.
Thailand supported the APF’s position that remedies
should be a core part of the Convention. The rights of PWD continue
to be violated repeatedly and by ignoring remedies it ignores the reality
that “we cannot only look into the future, we have to come back and
look at the past and present.” Thailand also expressed concern over
an overemphasis on progressive realization, even though it has been
proven repeatedly that some ESCR can be immediately implemented. This
was well reflected in the Bangkok draft and should be reconsidered.
India echoed the position of Thailand and urged inclusion
of a new paragraph from the Bangkok draft, obligating states to give
immediate effect to those aspects of those ESCR rights that are capable
of immediate implementation.
Costa Rica supported the proposal that the Bangkok
text should be mentioned.
Jordan affirmed the importance of 4.2 on participation of PWD. It also
agreed with India that the involvement and efforts of families on behalf
of PWD should not be underestimated, and text to that effect should
be included in Article 4, but should not be repeated in other Articles.
Uganda supported the retention of the Article on obligations
to ensure that states understand their obligations under the Convention.
Paragraph 4.1(c) should include the word “culture,” alongside economic
and social, as this is the setting where people face discrimination
and stigmatization. Uganda suggested that 4.1(f) substitute “to ensure”
for “to promote,” as “ensure” is a stronger word that imposes commitments
on states. Uganda offered a definition of “universally designed goods”
- products, information, services and environments which are designed
in such a manner that they are usable by all people including PWD with
minimal adaptation and cost. Uganda recommended that 4.2 be broadened
to include families of PWD, professionals and experts.
Costa Rica reaffirmed the importance of maintaining
in the text of 4.1 the concept of non-discrimination on the grounds
of disability.
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