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Proposals to the draft text - New Zealand

New Zealand Proposal - Structure

New Zealand has circulated a paper setting out the following guidelines for the style and structure of the Convention:

1. The level of detail and style of the draft Convention should mirror that of existing human rights treaties
2. The draft Convention should avoid redundancy and overlap
3. The draft Convention should reflect the existing doctrine of progressive realisation of economic, social and cultural rights
4. The draft Convention should not extend the doctrine of progressive realisation to civil and political rights
5. The draft Convention should be consistent with other core human rights treaties.
6. The draft Convention should focus on issues and rights that have particular relevance to disabled people

Following from these guidelines we wish to make the following more specific proposals about the structure of the Convention.

• The current structure of division of the Convention into thematic Articles should be maintained. It should not also be divided according to sub-populations of persons with disabilities e.g. women, children, unless it can be demonstrated that there are issues specific to those groups which could not be included under one of the thematic Articles. Dividing the Convention along two different axes will result either in repetition and redundancy, or fragmentation.
• The Article on Personal Mobility should be deleted and some of the ideas in the present draft merged with Articles 4 and 15. We shall be making more detailed suggestions when these draft Articles are reviewed later in this session.
• The EU proposal to merge parts of draft Articles 4, 5,and 7 into a single Article 3 on Non-Discrimination has merit, in that it brings related ideas together under the same head. Care would however be needed to ensure that valuable ideas were not lost in this process of condensation.
• The EU proposal to merge draft Article 6 (Statistics and Data Collection) with draft Article 25 (Monitoring) has merit, but only if it is decided that Article 25 should contain a section on national monitoring mechanisms as well as an international monitoring mechanism.
• The principal structural changes that we wish to propose are to Articles 11 and 12. We consider that the former should concentrate on the issue of informed consent to interventions, and the latter on freedom from all forms of violence and abuse, including torture (if indeed this needs to be mentioned in the context of the rights and freedoms of persons with disabilities) and cruel, inhuman or degrading treatment or punishment. We shall make these proposals when we come to the discussion of these Articles.

New Zealand

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: GENERAL COMMENTS ON THE COMPILATION OF PROPOSED REVISIONS AND AMENDMENTS TO THE DRAFT TEXT

The New Zealand Government would like to bring the following discussion document to the attention of the Ad Hoc Committee. After reviewing the drafting proposals that were made to the Ad Hoc Committee at its third meeting, contained in the compilation of proposed revisions and amendments in Annex II of the report of the Third Session of the Ad Hoc Committee (A/AC.265/2004/5), the New Zealand Government has the following six general observations to make:

1) The level of detail and style of the draft Convention should mirror that of existing human rights treaties

1. The drafting proposals that were made to the Ad Hoc Committee vary widely in their level of specificity. Many of the amendments proposed are at the very detailed end of the spectrum, and are too specific for a human rights treaty. They reflect the sorts of commitments that are best put into national action plans to implement the Convention, or into a UN programme of action to implement agreed commitments. Such detailed guidelines already appear in the Standard Rules, and should they appear in the convention would duplicate that document. It should also be kept in mind that a treaty that is too detailed may not attract a large number of States Parties.

2 At the other end of the spectrum, the compilation of proposed revisions and amendments contains proposals for aspirational statements, which would be too vague to be enforceable. While they could appropriately be included in a high level political declaration, in a legally binding treaty they would not create any real obligations for States Parties.

3 The Ad Hoc Committee should strive to strike a balance between these points. The objective should be to agree to a draft Convention that contains clear legally binding obligations on states, but at a level of detail, style and language that is similar to existing human rights treaties.

2) The draft Convention should avoid redundancy and overlap

4 Given the shortage of time for reflection at the Working Group in January, many ideas were incorporated into the Working Group’s draft text in more than one place. Many proposals were made at the third meeting of the Ad Hoc Committee that, if taken together, would create even more overlap and redundancy in the text. Ideas that repeatedly appear throughout the draft should instead be included in one of the general provisions at the beginning of the Convention, so that they apply through the text.

5 This principle should also apply to the proposals to deal with specific groups, such as women and children, in separate articles. The Draft Convention is at present divided thematically and it should be possible to include any provisions that relate to women and children, on health or education for example, under the relevant thematic Articles. Locating these provisions under separate Articles on women and children with disabilities risks duplication and internal inconsistency within the text of the Convention.

3) The draft Convention should reflect the existing doctrine of progressive realisation of economic, social and cultural rights

6 The existing body of human rights treaties has already developed a doctrine of “progressive realisation” of economic, social and cultural rights. That doctrine says that states parties shall implement those rights to the maximum extent of their available resources. Many of the proposals made at the third meeting of the Ad Hoc Committee seek to include qualifying language into individual articles, such as "within available resources", and "to the greatest extent possible”. Providing that the draft Convention clearly incorporates this doctrine, consistent with existing human rights treaties, such qualifying language could be avoided in most cases.

7 The Convention on the Rights of the Child provides a good model: it sets out in an early general Article (Article 4) that the economic, social and cultural rights in that treaty shall be implemented "to the maximum extent of available resources". There would then be no need to qualify every Article that deals with economic, social and cultural rights. However, where substantive articles give rise to economic, cultural and social rights, language appropriate to those rights should be used consistency with other conventions. For example, articles 24 and 28 of the Convention on the Rights of the Child, which deal with health and education, use language appropriate to progressive rights.

4) The draft Convention should not extend the doctrine of progressive realisation to civil and political rights

8 At the third meeting of the Ad Hoc Committee, proposals were made to add qualifying language such as “to the greatest extent possible” to draft Articles on civil and political rights. This would extend the doctrine of progressive realisation, for the first time, to civil and political rights. Persons with disabilities are already guaranteed civil and political rights under existing human rights treaties, without those rights being subject to qualifications such as “available resources”. The draft Convention should not incorporate such qualifications, because the result would be to weaken their civil and political rights, rather than strengthening them.

9 The Ad Hoc Committee’s guiding principle should be that the draft Convention should neither create new or additional rights for persons with disabilities, nor diminish or remove existing ones. Rather, it should spell out how their existing rights, which are the same rights that apply to all people, can be better protected.

5) The draft Convention should be consistent with other core human rights treaties

10 Given the fact that the draft Convention seeks to elaborate steps that States Parties are obliged to take to better promote the existing rights of persons with disabilities, many parts of the draft are borrowed from existing core human rights treaties. In some places, where existing wording may be somewhat old-fashioned, it may need to be updated. There appears to be wide support, for example, for replacing the word "correspondence" in the Article on privacy with the word "communications".

11 For the most part, however, the Ad Hoc Committee should resist the temptation to modify language from existing human rights treaties as this may affect the accepted meaning or intent. While there are some small differences in wording between some of the treaties already, usually to reflect the target group of the Convention, many of the proposals that were made during the third meeting of the Ad Hoc Committee to amend the draft text contain significant variations from existing language. If they were to remain in the final text of the Convention, this would create confusion and inconsistency across the body of international human rights law. Attempts to "improve" provisions of existing treaties could create the unintended consequence that the rights of persons with disabilities would be different from the rights of other people. In some places this would be to their advantage, giving them better (or even new) rights, but in others it would mean they have less protection than the rest of humankind.

12 Having said that, however, maintaining consistency of language and style with existing human rights treaties is not the same as rejecting new and valid ideas. There would be little value in a Convention that went no further than existing international legal instruments in protecting the rights of persons with disabilities.

6) The draft Convention should focus on issues and rights that have particular relevance to disabled people

13 In drafting the Convention text and choosing which rights to elaborate, it is necessary to consider whether issues related to a right are of particular significance to disabled people. They may be significant, for example, because the right in question is not currently honoured for many disabled people, or because honouring it requires taking special measures for disabled people.

14 If there are no significant differences in promoting and protecting a particular right for persons with disabilities than for other people - then it may not be necessary to include text about that right in the Convention. Each Article in the draft text needs to be considered from this point of view and assessed whether it gives appropriate emphasis to issues of particular relevance to persons with disabilities. In order not to over-state issues that do not need elaboration, each Article should be focussed on its main purpose, and that purpose should be relevant to disabled people. Articles should not attempt to straddle too many issues, some of which may already be covered elsewhere in other Articles of the Convention, or in other core treaties.

Article 4: General Obligations: Amendments Proposed by New Zealand

1. State parties shall respect and ensure the rights and freedoms set forth in this convention for all persons with disabilities [within their jurisdiction] without discrimination of any kind on the basis of disability. (Rationale: to be consistent with the second paragraph below we propose drawing on the language ofthe Convention on the Rights of the Child, Article 2. We wish however to consider the phrase in square brackets further.)

2. State parties undertake to adopt appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention. With regards to economic, social and cultural rights, state parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation. (Rationale for proposed addition: the need to distinguish between civil and political rights on the one hand and economic, social and cultural rights on the other when delineating the states’ obligations in each case – copied from the Convention on the Rights of the Child, Article 4).

3. In ensuring and protecting the rights of persons with disabilities, State Parties undertake:

a. to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that are inconsistent with this convention; (Rationale for this amendment: there is a general statement of states’ obligations to give effect to the rights in the Convention in paragraph 1, so we have deleted the first part of this sub-paragraph. We have strengthened the reference to “customs and practices” by making them subject to the verbs “modify and abolish” as in CEDAW 2(f))

b. to embody the principles of equality of opportunity and non-discrimination on the ground of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realisation of these rights; (Follows the formulation in the General Principles: proposed EU amendment.)

c. to incorporate the needs and concerns of persons with disabilities into economic and social development plans and policies; (Broader scope, proposed EU amendment)

d. to refrain from engaging in any act or practice that is inconsistent with this convention and to ensure that public authorities and institutions act in conformity with this Convention;

e. to take all appropriate measures to eliminate discrimination on the ground of disability by any person, organisation or enterprise; (Deletion of word “private” before “enterprise”, as in the EU’s proposed amendment, makes the scope broader.)

f. to promote the development, availability and use of universally designed goods, services, equipment and facilities. Such goods, services, equipment and facilities should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities.

g. Promote and where appropriate undertake the research, development, production, application and dissemination of new technologies in order to make available to persons with disabilities goods, services, equipment and facilities acceptable to them and aimed at their fullest inclusion in society. (This formulation, which takes into account material drawn from Articles 13 (d), 19.2 (e), 20 (c) and 21 (f).) will permit their deletion and so remove repetition and redundancy from the text of these later Articles.)

4 In the planning, development, implementation and evaluation of legislation, policies, standards and guidelines to give effect to the provisions of the Convention, States Parties shall do so in partnership with persons with disabilities, recognising their expertise and the leadership they can provide in all affairs concerning them. (This formulation drawn from Articles 5 (d), 6 (c); 18 (c); 19.2 (g) and 21 (m).) will permit their deletion and so remove repetition and redundancy from the text of these later Articles.)

ARTICLE 5: New Zealand’s proposed rewording of the Working Group text
(additions are underlined and deletions are struck out).

PROMOTION OF POSITIVE ATTITUDES TOWARDS PERSONS WITH DISABILITIES

1. States Parties undertake to adopt immediate and effective measures to:

a. raise awareness throughout society regarding disability and persons with disabilities and foster respect for their rights;
b. combat stereotypes and prejudices about persons with disabilities in all areas of life;
c. portray promote an image of persons with disabilities as capable and contributing members of society irrespective of types of disabilities, sharing the same rights and freedoms as others and in a manner consistent with the overall purpose of this Convention.

2. These measures shall include, among others:

a. initiating and maintaining an effective public awareness campaign designed to nurturing awareness of and respect for receptiveness the rights of persons with disabilities;
b. promoting awareness in all children from an early age and at all levels of the education system, to foster an attitude of respect for the rights of persons with disabilities;
c. encouraging all organs of the media to project an image of persons with disabilities consistent with the purpose of this Convention;
d. working in partnership with persons with disabilities and their representative organisations in all measures taken to give effect to the obligations contained in this article. (move to Article 4).

FOURTH SESSION OF THE AD HOC COMMITTEE ON DISABILITY
NEW ZEALAND’S POSITION ON ARTICLES 11 AND 12:

Covering issues of forced intervention and institutionalisation and - “freedom from torture or cruel, inhuman or degrading treatment or punishment and freedom from violence and abuse”

• Historically, institutional and in-voluntary care or treatment for disabled people has violated many individual human rights. Therefore, it is not surprising that clauses preventing or limiting institutional approaches to disability are dotted throughout the draft text in particular, Articles 10, 11.2, 12.2, 21(j) and (k) and 15.
• Discussion at the third session indicated that the current repetitive and unfocussed organisation and wording of text around issues related to institutional and in-voluntary care or treatment is not satisfactory and somewhat confusing.
• New Zealand believes these important issues need to be more effectively dealt with in the convention. Therefore to take into account the various suggestions and comments at the third session on Articles 8, 9,10, 11, 12 and 21 we are proposing a reformulation of Article 11.
• New Zealand considers that there are three useful distinctions to be made around human rights in relation to forced interventions and forced institutionalisation.
• Using positive language we could say that the aim is to promote:
  • liberty or freedom from arbitrary detention in institutions (covered in Article 10);
  • choices and responsibilities, equal to others, to move around and live where and as you wish in a community setting (covered in Article 15); and
  • free and informed consent to any intervention (medical, spiritual, scientific, experimental etc).
• In the Working Group text the second part of Article 11 is about the right to refuse treatment and scientific experimentation. This is a major issue for disabled people in relation to historical and continuing institutional treatment and in-voluntary treatment.
• We think that the rights pertaining to these issues warrant emphasis through the use of an article solely focussed on them.
• We propose to bring clauses 11.2, 12.2, 21(j) and (k) together in a revised Article 11 which addresses the right to free and informed consent to any intervention (medical, spiritual, scientific etc). We propose to incorporate related amendments around in-voluntary treatment proposed by some States, such as the European Union during discussions on Article 10.
• We also propose to move the aspects of the Working Group Article 11 related to torture and cruel or inhumane treatment to Article 12.
• We acknowledge a view, put forth by NGOs, that any mention of the use of involuntary treatment albeit in relation to safeguards will in fact diminish existing rights for disabled people. In particular those rights elaborated on in draft Article 9 of non-discrimination on the basis of disability.
• We also acknowledge that there are exceptional circumstances which many States consider do justify the use of involuntary treatment. And that where this occurs these circumstances must be prescribed by law, not be based solely on disability and that there must be legal safeguards around any use of in-voluntary treatment.
• New Zealand has developed a proposal which might offer a solution to the tension between these two positions.
• Our proposal is derived, in part, from the Europeans Union’s proposals on Article 10 around forced institutionalisation. We agree with the European Union that forced institutionalisation should be considered illegal, save in exceptional circumstances. However we consider the exceptional circumstances should apply only to in-voluntary treatment which is a subset of ‘forced institutionalisation’.
• We also suggest that in addition to the safeguards proposed by the European Union, States should also be obligated to ensure that the use of in-voluntary treatment is minimised through the provision of better care thereby encouraging voluntary treatment and through the promotion of alternatives such as advance directives. Also that it should always be provided in the least restrictive setting possible.
• Further, we feel that in the spirit of minimising the use of in-voluntary treatment and of the right to free and informed consent we should prefix the safeguard provisions with the words “in countries where in-voluntary treatment has not been abolished it shall only be used in exceptional circumstances …”etc followed by the safeguard provisions.
• We have distributed our proposal in written form, as it is a substantial deviation from the Working Group text. We do not intend to read it all out at this point but hope that it might be considered during the informal discussions. We also suggest these discussions should ideally be clustered with those on Articles 10,12 and 15.

• States Parties shall take the necessary measures to ensure that medical or scientific, experimentation or interventions, including corrective surgery, aimed at correcting, improving or alleviating any actual or perceived impairment, are undertaken with the free and informed consent of the person concerned
• Such measures shall include the provision of appropriate and accessible information to persons with disabilities and their families
• States Parties shall accept the principle that forced institutionalisation of persons with disabilities on the basis of disability is illegal.
• In countries where in-voluntary treatment has not been abolished it shall only be used in exceptional circumstances prescribed by law and its use shall be minimised through the active promotion of alternatives
• States Parties shall ensure in any case of involuntary treatment of persons with disabilities that:
  • it is undertaken in accordance with the procedures established by law and with the application of appropriate legal safeguards
  • the law shall provide that the interventions are in the least restrictive settings possible and the best interests of the person concerned will be fully taken into account
  • forced interventions are appropriate for the person and provided without financial cost to the individual receiving the treatment or to his or her family.

• We do not believe there are any circumstances that might justify exceptions to the rights to freedom from violence, abuse and other cruel, inhuman or degrading treatment. Therefore we believe it is useful to retain these provisions in this separate article and not confuse them with the rights to free and informed consent.
• If the amendments we have suggested for Article 11 occur then a number of subsequent amendments follow for Article 12.
• These include deletion of clause 2 and an addition of the clause about torture and cruel, inhuman and degrading treatment and punishment from Article 11(1).
• There was general willingness at the Third Ad Hoc Committee meeting to streamline some of the language. In particular move the first sentence of Part 1 to the preamble and possibly delete Part 3, which repeats Part 1. We endorse these proposals made by the EU.
• The amended working group text (taking into account various proposals at the third Ad Hoc Committee meeting) has been provided in written form to delegates. Again we do not intend to read it all out but hope that itt will be considered during the informal discussions. As mentioned in relation to Article 11 we suggest these discussions should ideally be clustered with those on Articles 10,11 and 15.
• We also seek to maintain our proposals on this article made at the last session of the Ad Hoc Committee.

FREEDOM FROM VIOLENCE, ABUSE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT

• States Parties recognise that persons with disabilities are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse. States Parties shall therefore, take all appropriate legislative, administrative, social, educational and other measures to:
  • protect persons with disabilities, both within and outside the home, from all forms of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including economic and sexual exploitation and abuse
  • prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment. (moved from Article 11).
• Such measures should prohibit, and protect persons with disabilities from, forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment, and abduction.
• States Parties shall also take all appropriate measures to prevent violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, by ensuring, inter alia, support for persons with disabilities and their families, including the provision of information.
• States Parties shall ensure that all facilities and programmes, both public and private, where persons with disabilities are placed together, separate from others, are effectively monitored to prevent the occurrence of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including economic and sexual exploitation and abuse.
• Where persons with disabilities are the victim of any form of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including economic and sexual exploitation and abuse, States Parties shall take all appropriate measures to promote their physical and psychological recovery and social reintegration.
• States Parties shall ensure the identification, reporting, referral, investigation, treatment prosecution and follow-up of all instances of violence and abuse, and their timely referral to appropriate protection agencies and, where necessary, to the courts provision of protection services and, as appropriate, judicial involvement.

NEW ZEALAND’S POSITION ON ARTICLE 15: Living And Being Included In The Community With Choices Equal To Others

• The rights expressed in this article are very important for disabled people and represent in a positive form the alternative to institutionalisation, a policy that has led to the violation of so many human rights for disabled people.
• A large number of amendments were proposed for the title and content of this article, perhaps reflecting a lack of clarity about the overall purpose of the article in the current wording.
• New Zealand considers that fundamentally this article is about ensuring that disabled people have choices equal to others to move around and live where and as they wish in a community setting. This is based on a civil and political right, outlined in Article 12 (1) of the Covenant on Civil and Political Rights, ‘to liberty of movement and freedom to choose his [/her] residence’.
• We have amended the working group text to first state this right and to then outline the necessary measures that States need to take so the right may be exercised.
• The EU proposed changes that would strengthen the idea that the article is about avoiding institutionalisation and retaining liberty. We support many aspects of the EU’s proposals but we also seek to reinforce the inclusion into the community as ‘ordinary citizens’ with rights equal to others.
• New Zealand also proposes shifting various related clauses from other articles, with some amendments, into this article:
• 23(1)(d) which is about access to housing programmes on an equal basis to others;
• 20(a) regarding mobility - to use this to amend what would become sub-paragraph 3 under the EU proposed amendment of 1(c) of the Working Group text;
• 9(e) regarding promoting equal access to opportunities for economic development and financial independence.
• We have also proposed some wording that reflects the idea that access to personal support should allow for people to choose where they live and, therefore, must be separate from access to housing. This avoids an institutional approach to support provision.
• Our suggested rewording is as follows (underlined text has been inserted by New Zealand; struck out text has been deleted by New Zealand):

LIVING AND BEING INCLUDED IN THE COMMUNITY WITH CHOICES EQUAL TO OTHERS

1. States Parties shall reaffirm the right of persons with disabilities to liberty of movement and freedom to choose his or her residence. States Parties shall ensure persons with disabilities have the equal opportunity to determine how, where, and with whom they live.

2. States Parties to this Convention shall take effective and appropriate measures to enable persons with disabilities to live in, independently and to be fully included as members of in the community. States Parties shall take measures to including by ensure that:

1. community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs;
2. persons with disabilities have equal access to governmental housing programs; and
3. persons with disabilities have access to information about available community services, including support services.

3. States Parties shall also take appropriate measures to promote the provision of in-home, residential and other community support services, including personal assistance, necessary to support them persons with disabilities to live and participate living and inclusion in the community with choices equal to others, and to prevent isolation or segregation from the community. States parties shall ensure that these support services are provided in a manner that recognises the autonomy, individality and dignity of persons with disabilities and, in particular, that access to personal support is consistent with the right to liberty of movement and freedom to choose a residence.

4. States Parties shall take effective measures to ensure liberty of movement mobility with the greatest possible independence for persons with disabilities, including facilitating access by persons with disabilities to high-quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries. including by making them available at affordable cost.

5. States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to opportunities for economic development and financial independence including to rent, own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit.