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Daily summary of discussions related to Article
1
PURPOSE
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #1
August 24, 2004
AFTERNOON SESSION
The Chair noted his intention to proceed by reaching
consensus on articles already discussed, Article 1-15 and 24 bis. The
convention should be precise without going into details more appropriate
for national legislation. Overlap, repetition, similar terminology should
be avoided and the discussion should be focused. Clarification, explanation
and objectivity will be required.
PURPOSE: ARTICLE 1
The Chair referenced the Report of the Working Group,
the Third Session, the many contributions made, and the many instances
of repetition in this Article.
Chile [no interpretation taped]
China proposed the following draft language [no interpretation
of commentary taped]: “The purpose of this convention should be to protect
and promote all rights and dignity of persons with disabilities.”
Costa Rica proposed the following draft language [no
interpretation of commentary taped]: “The purpose of this convention
shall be to promote, protect and fulfill the full and equal enjoyment
of all rights and freedoms of all persons with disabilities.”
Yemen [no English interpretation taped]
New Zealand suggested deleting the terms ”full” in
front of “enjoyment” and “all” in front of “rights” so that the Article
read: “The purpose of this convention shall be to ensure the full and
effective enjoyment of all the rights of fundamental freedoms by persons
with disabilities on n a basis of equality with others.” It is unnecessary
to mention non-discrimination, as this concept will also be in Article
2 (General Principles) and Article 7 (Non-Discrimination). There is
a virtue in keeping Article 1 succinct.
Mexico suggested: “The purpose of the present convention
is to promote the full and equal enjoyment of all human rights and fundamental
freedoms and dignity of all persons.” It is important to make clear
that the rights of PWD are the same as acknowledged in other international
conventions. References to equality and non-discrimination should be
addressed elsewhere as suggested by New Zealand.
Kenya called for three elements to be reflected. First,
States are required to promote and protect human rights, but they are
also importantly obliged to fulfill. In line with the proposal by Uganda,
but with certain deletions, Article 1 should read: “The purpose of this
convention shall be to promote, protect and fulfill the full, effective
and equal enjoyment of human rights and fundamental freedoms by persons
with disabilities.” Kenya supports deleting “all” before “human rights.”
The Netherlands (EU) preferred to refer to the enjoyment of
human rights rather than the promotion and protection of human rights.
The EU has studied proposals, including that of Uganda, regarding promotion,
protection and fulfillment, and noted precedents in other human rights
conventions for language “ensuring the enjoyment of human rights”: Article
3 ICCPR, Article 3 ICESCR, Articles 1(4), 2(2) CERD as well as the Vienna
Declaration, paras. 13 & 22. In addition merely “promoting the enjoyment”
is weak, and “ensuring the enjoyment” is stronger. The EU is satisfied
with the Working group formulation except to delete the superfluous
term “effective.”
Morrocco called for 2 concepts to be reflected: the promotion
and protection of full and equal enjoyment of human rights, and the
elimination of discrimination. The Mexican proposal from this session
and the Indian proposal at the previous session could be combined as
follows: “The purpose of the present convention is to promote the full
and equal enjoyment of all human rights and fundamental freedoms and
dignity of persons with disabilities and strive for the elimination
of discrimination against persons with disabilities.”
Eritrea called for three elements to be reflected:
protection and promotion; full enjoyment; and prevention of discrimination.
It supported the Ugandan proposal with the addition of the term “human”
before rights.
Jamaica agreed on the short and succinct formulation
of the Working Group but with the possibility of adding the term “promote”.
Non-discrimination is important, but is subsumed under enjoyment of
human rights and fundamental freedoms and these issues are clearly expanded
and elaborated in the rest of the Convention text.
Mali noted that the promotion and protection of rights
are two separate elements - the rights of PWD cannot be protected partially
and the enjoyment of rights is not done in halves. The object of this
convention should be to “promote and protect” without making any distinctions
as to race, gender, etc.
Venezuela supported the Mexican proposal, and proposed
the following additional language to reflect PWD’s roles in developing
these obligations: “…and the active participation of disabled persons,
members of their families, and their associates.”
Liechtenstein stressed the purpose of this Article is not to
define the legal obligations of States, which will be outlined in Article
4, but to be an extension of the Title and in this way of service to
the reader. The Working Group draft is excellent. The term “ensure”
is the highest level of abstraction that can be used, because “protecting”
human rights is more negative and has less to do with positive obligations.
“Promoting” human rights is something we tend to associate with progressive
realization of rights. “Ensuring” on the other hand encompasses both
terms and is therefore preferred. It is not necessary to reference non-discrimination
as this is already encompassed in the current formulation.
Sierra Leone noted the common terms in all proposals
- promotion, protection, and full enjoyment – are used in resolutions
and declarations. “Ensuring” is a key term to be incorporated because
it is action-oriented and requires States to do something. The rest
of the Convention document will explain how the rights of PWD will be
ensured and protected.
Canada preferred references to “promote and protect,”
in particular because “promotion” applies to the positive, forward looking
issues in the convention, but could accept the term “ensure.” The WG
formulation is acceptable, as is the Ugandan proposal if the term “and
fulfill” is deleted as suggested by Costa Rica and there is a grammatical
change from “of all persons” to “by all persons”. Non-discrimination
is already encompassed in the language and elaborated in a separate
article. Canada opposes the Venezuelan proposal to adding the reference
to “members of families”, as this convention is about PWD.
Guatemala supported the Mexican proposal adding “promote
and protect.”
Thailand agreed with referencing “ensure, protect and
promote,” but noted that non-discrimination is already covered in the
current formulation’s reference to human rights.
Norway supported the WG formulation, and the term “ensure”
as it encompasses most of the other variations that have been proposed.
As Liechtenstein noted, Article 1 should be short and succinct and without
an explicit reference to non-discrimination as this is already encompassed
in the current formulation.
India was of the view that although “equal” subsumed non-discrimination,
this should be explicitly referenced as it is one of the most important
concepts in the convention.
Serbia Montenegro agreed with those delegations satisfied with
the Working Group text and who approached the article as a succinct
extension of the Title. “Ensure” is preferred, but “promote and protect”
are also acceptable to reach consensus. Non-discrimination is important
but addressed more precisely elsewhere in the convention.
Bahrain asserted that “ensure” emphasizes positive action and
should be included. This convention is about PWD so there is no need
to add references to families.
Lebanon shared other delegations views that the WG text should
be retained.
South Africa called for a brief Article and endorsed the WG’s
formulation.
Trinidad and Tobago suggested a slight redrafting of
the Ugandan proposal which combines almost all of the elements suggested
by various delegations: “The purpose of this convention shall be to
promote, protect and ensure the full and equal enjoyment without discrimination
of all human rights and fundamental freedoms by all PWD.”
Non-Governmental Organizations
PWDA generally supported the WG formulation but encouraged
the incorporation of the concept of dignity, as the recognition of rights
alone will not necessarily ensure that PWD are treated with dignity.
South African Human Rights Commission supported a short
and succinct article that unambiguously articulates the purpose of the
convention. It shared the EU’s support for the term “ensure” but suggested
adding “protect and promote” before it.
EDF (on behalf of International Disability Caucus)
supported including the term “ensure” as well as “protect and promote”
because these terms identified the means by which the final objective
could be reached. The term “effective enjoyment” must be retained. Reference
to “all PWD” is important to ensure that all PWD are covered. Non-discrimination
is more appropriately addressed in the article on Principles.
DPI emphasized that this Article should be concise
and consistent with other human rights conventions. It shared delegations’
views that the overall purpose of the convention must be to ensure the
effective enjoyment of human rights by PWD. It supported the comments
by the EU in its briefing to NGOs underscoring the need to create conditions
leading to the effective enjoyment of human rights. Therefore, the concept
of effective enjoyment is important.
Sierra Leone withdrew its own proposal and substituted it with
the Ugandan proposal with the following addition: “The purpose of the
present convention is to ensure the protection, promotion, full and
effective enjoyment of all human rights and fundamental freedoms by
all PWD.”
The Chair noted substantial agreement with the WG text
with a few minor amendments, a lack of support for a specific reference
to nondiscrimination, and accordingly proposed the following synthesized
text for consideration: “The purpose of this convention shall be to
promote, protect and ensure the full enjoyment of all human rights and
fundamental freedoms of PWD, their dignity and participation as members
of society.”
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