Back to: Daily Summaries
Ad Hoc Committee Main

Daily summary of discussions related to Article 4

GENERAL OBLIGATIONS

UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
A service made possible by Landmine Survivors Network * [Disclaimer]

Volume 5, #2
August 24, 2004

AFTERNOON SESSION

GENERAL OBLIGATIONS - ARTICLE 4

India sought clarification on the Organization of Work. During discussion of Article 1 there were two or three proposals submitted but only one was projected on the screen for viewing. India enquired whether this procedure will be followed during informals, and whether alternative proposals that also received support be considered as well.

The Chair explained that the objective was to synthesize the discussion and that this procedure does not preclude other proposals and does not in any way limit governmental discussion.

Senegal expressed the intent of the African Group to submit proposals in relation to Article 4 reflecting the concerns of African countries. The WG text as currently formulated is not far from what it would support.

The Russian Federation called for deleting the first sentence of Article 2bis, as there is no need to include it at this point in the convention. States will be required to take on obligations to implement the convention. Measures to harmonize domestic legislation with the convention are logical and necessary.

Chile proposed new language for a separate paragraph on the budgetary allocation of resources citing the importance of this issue.

Canada stressed the importance of Article 4 as a guide for States on the nature and implementation of their legal obligations and called for a streamlined Article reflecting the WG text. This is the appropriate place to include reference to the progressive nature of rights, similar to Article 2(1) of ICESCR. The EU’s Article 2(bis) should be inserted into 4(3), with one important modification to bring it into closer alignment with Article 2(1) of ICESCR, an element of which was included in an earlier Israeli proposal. After the phrase “available resources” the phrase should be added “with a view to achieving progressively the full realization of such rights.” Canada no longer insists on removing the phrase “within their jurisdiction” in 4(1).

The Netherlands (EU) withdrew the EU’s previous proposal to merge Articles 4, 5 and 7 into a separate Article 3bis but in general maintains its position on language. The EU accepts separate Article 4. It withdraws its amendment to 4(1)(c) given feedback in particular from NGOs that the wording “and not treated separately” might create a false impression that the EU is against specific disability programmes or policies. The EU welcomes broad support for its proposal for Article 2bis and accepts suggestions that it be incorporated into 4(2) with the second line changed so that “means” is replaced by “measures” as proposed by Argentina and in line with CRC. The EU opposes the Russian Federation proposal to delete the first part of Article 2bis as this language is used in CRC and should be retained.

Japan reiterated its proposals from AHC3: to add the phrase “to respect and ensure the rights set forth in the present convention and to adopt…” in 4(1); to add “appropriate” before “legislative, administrative and other measures…” in 4(1)(a) because not all legislative or other measures will need to be adopted to give effect to the Convention; and to add a new para 4(1)(g) “To provide conditions and environments under which PWD may live in a self-sustained manner…”

Thailand reiterated its AHC3 proposal for 4(1)(c), substituting the term “mainstream” with “integrate.” The term “universal design” should be used in 4(f) instead of “universally designed.” The provision on remedies omitted from the WG text, as discussed in Footnote 18, should be reinserted in 4(2) along the lines of the Bangkok draft. Progressive realization needs to be included but does not always apply. There are many cases where economic, social and cultural rights do not imply the use of resources that are not available, and these rights should be implemented immediately. Only in some cases should ESC rights be subject to progressive realization.

Costa Rica supported the Argentinean proposal on the progressive realization of economic, social and cultural rights. It pointed out that its proposed deletion of references to national constitutions Article 4 is not reflected in the Secretariat’s text. The WG text in 4(1)(d) and (e) should be retained. It supports New Zealand’s proposal for 4(1)(f) and the Japanese proposal for 4(1)(g).

The Chair adjourned the session.

Volume 5, #3
August 25, 2004

MORNING SESSION

ARTICLE 4: GENERAL OBLIGATIONS (Cont)

Venezuela supported New Zealand’s proposals in 4(2), and India’s proposal to include a reference to “families.” Families share the problems of PWD, are their companions and caretakers, and should be included in the context of implementation.
Republic of Korea supported the EU proposal on in 4(1)(e) deleting the term “private.”

China emphasized the importance of including in 4(3) the issue of international cooperation as proposed by Israel and progressive realization of economic, social and cultural rights

India supported Argentina’s proposal in the chapeau but retaining the term “ensure” over “guarantee.” Concepts of progressive realization and international cooperation are important and therefore it also supports Canada’s proposal reflecting the ICESCR, Article 2(1).

Malaysia supported the Japanese proposal to include the term, “appropriate” in 4(1)(a). The term “rights” should be replaced by the term “principle” in 4(1)(b). The terms “equality and non-discrimination” are more consistent with the terms used by the WG.

New Zealand noted the widespread agreement among States to address economic, social and cultural rights in this Article and stressed the importance of distinguishing between civil and political rights, and economic, social and cultural rights. Language should be consistent with existing treaties wherever possible. Therefore, and in line with the suggestions of the EU and Israel, a new paragraph 4(1) bis to be inserted after current 4(1), would exactly replicate CRC Article 4. In addition, the chapeau of current 4(1) of the WG text should become a stand-alone paragraph, with the qualification “within their jurisdiction” deleted. It proposes a new chapeau to read: “In ensuring the rights of PWD States Parties undertake …” The obligation to “discourage” customs or practices should be strengthened to “modify and abolish,” consistent with CEDAW 2(f). In the interests of avoiding repetition of concepts in the Convention text, New Zealand revisited its AHC3 proposals calling for their one-time inclusion in Article 4. Therefore references related to new technologies found in Articles 13(d), 19(2)(e), 20(c), and 21(f), and to the participation of PWD found in 5(d), 6(c), 18(c), 19(2)(g), 21(m), should be removed. New Zealand no longer supports removing 4(1)(f) believing that it should be addressed separately. A general provision in remedies is not appropriate as there is no international consensus on remedies in relation to economic, social and cultural rights, and no such provision exists in the ICESCR. Any provision made on remedies in relation to civil and political rights would create unnecessary distinctions between civil and political rights and economic, social and cultural rights, and moreover the ICCPR already provides for remedies. References to families and associates in inappropriate in this convention, which is about PWD and their rights.

Serbia Montenegro supported the EU proposal for merging Articles 4, 5, and 7 into a single Article on Nondiscrimination, with the exception of maintaining the language in 4(1)(d), as any act or practice consistent with the convention is broader than non-discrimination. It supports New Zealand’s proposals, on 4(2) on the participation of PWD, and 4(1)bis on progressive realization.

Australia supported a consolidation of overlapping non-discrimination provisions in Articles 4 and 7. The language in 4(1) is acceptable but should be limited to rights and fundamental freedoms recognized under international law. “Discrimination of any kind” must be read in the context of other human rights treaties. Progressive realization should be addressed in 4(1), as proposed by China, and is recognized in Article 2 of ICESCR.

Mexico proposed new language for the chapeau so that the General Obligations was consistent to the Purpose of the Convention: “In order to achieve the purpose of the present convention, States Parties undertake…” A reference to the progressive relation of economic, social and cultural rights here would spare further references to the topic. The Committee on Economic Social and Cultural Rights has addressed the matter of legal recourse in relation to these rights and this should be mentioned in this Article. There should be a reference to universal design and new technologies. India’s additional language on discrimination for 4(1)(e) is more appropriately addressed in Article 7. Mexico supports New Zealand’s proposed language on partnership with PWD and supports incorporating the CRC approach on progressive realization.

Ethiopia noted that Article 4 requires States to nullify, amend or otherwise take action in relation to legislation or practices inconsistent with the convention. Provision should be made to ensure that no further legislation would be enacted that is inconsistent with the convention. PWD do not have access to legal counsel and in many countries the legal process is very long. PWD must have access to timely legal procedures when they face discrimination.

Yemen supported the EU proposal integrating the rights of PWD into national constitutions and legislation, and language integrating PWD in socio-economic programmes.

Non-Governmental Organizations

The International Disability Caucus called for specific references to development cooperation in 4(1)(c) and a new 4(1) referencing public monies to support accessibility and other issues of importance to PWD. The Caucus opposes a general reference to progressive realization that would relate to all rights but supports a reference applicable to economic, social and cultural rights, for which language is provided. The Committee on ESCR has often discussed the appropriateness of remedies – judicial and otherwise – in relation to economic, social and cultural rights, and there should be a specific paragraph on this topic. Additional paragraphs, on free legal assistance including sign language and communication assistance and on the particular situation of PWD facing multiple forms of discrimination are needed. The Caucus supports the reference to the principle of partnership with PWD.

Landmine Survivors Network called for a specific paragraph on remedies covering its specific application to civil and political, as well as economic, social and cultural rights.

International Labour Organisation favored references in 4(1)(c) to mainstreaming disability issues into social development programmes but cautioned this may not lead to expected progress due to inadequate planning and resources. For this reason, Article 4(1)(c) should include the terms “adequately planned and resourced.” Article 4(2) must stress key stakeholders, including employers and trade unions, as well as community associations and PWD and their representative organizations.

National Human Rights Institutions noted developments in the last few years on remedies and progressive realization and pointed out that a notion that a breach of economic, social and cultural rights does not give rise to remedies does not take into account the latest jurisprudence. It supports the India proposal or the reformulated version by the International Disability Caucus on the progressive realization of rights.

Volume 5, #6
August 30, 2004

MORNING SESSION: INFORMAL CONSULTATIONS

ARTICLE 4: GENERAL OBLIGATIONS

The Coordinator asked delegates to address the proposal that Article 4 include a statement on progressive realization of economic, social and cultural rights within the framework of international cooperation.

India proposed that language from Article 2(1) of ICESCR be added as new paragraph 4(3). It reiterates its proposal from AHC3 to replace language of 4(1)(e), specifying what would not be considered “discrimination.” India strongly supports inclusion of a reference to families, care-givers or others. Many PWD with “severe” intellectual or other disabilities cannot exercise their autonomy and choice. In the cultural context of many countries, “coupled with the severity of these conditions,” families are the “natural first choice” for support, rather than organizations that are not yet well established in developing countries. Inclusion of the text “family members where appropriate,” should be considered. India supports the EU formulation of 4(2), with amendments “and their families” added after “disabilities,” and “where appropriate” at the end.

The Coordinator noted the issues raised by India, and suggested they be considered following the present discussion on need for language addressing progressive realization. The language read by India from ICESCR Article 2(1) is “language that has already been agreed in one of the fundamental human rights conventions,” and so may be a good basis for consideration.

Sierra Leone suggested if economic, social and cultural rights are not explicitly distinguished from civil and poltical rights, there will be no need to emphasize the issue of progressive realization.

Costa Rica strongly supported inclusion of progressive realization here. It supports India’s proposed language, as it captures the concept of giving immediate effect to certain obligations, which is not captured in the ICESCR or CRC language. This language would read, “In relation to economic, social and cultural rights the states parties undertake to give immediate effect to such aspects of those rights that they are in a position to implement immediately.”

Israel also supported inclusion of progressive realization in Article 4, because otherwise it will have to be addressed in various different articles. There is uncertainty regarding what would be considered economic, social and cultural rights. Thus Israel reiterates its proposal from AHC3 to “identify those articles where the economic implications are major” in a non-exhaustive list in Article 4, including 9d, 13, 15, 16, 17, 19 to 24. This will give guidance on what rights should be subject to progressive realization.

The Coordinator noted that language proposed on progressive realization has been largely drawn from ICESCR Article 2(1) and CRC Article 4, with the CRC formulation being the more recent and abbreviated. The CRC language currently appears in Article 4(2) bis. The Coordinator asked delegates to indicate if they have a preference.

Israel expressed its preference for the language in the Compilation Document.

Mexico supported including progressive realization in Article 4 for the reason that inclusion avoids repetition in other articles. It notes the ICESCR language does not explicitly reference economic, social and cultural rights, and so Mexico prefers the CRC formulation. It has reservations about the Indian proposal, and would like to obtain the opinion of the OHCHR to see what the ramifications of such language might be.

New Zealand agreed progressive realization should be included in Article 4 to avoid repetition, and there is a need to distinguish between civil and political, and economic, social and cultural rights. It reiterates its proposal that there be two stand-alone paragraphs; one a general statement of general obligations, and one discussing obligations regarding economic, social and cultural rights. Specific articles should not be mentioned, and it is “very unhappy” with Israel’s inclusion of two civil and political rights (9d and 13) in its suggested list of articles. It acknowledges there may be economic implications in ensuring enjoyment of civil and political rights, but this does not mean such rights should be subject to progressive realization. It prefers the CRC formulation, but is also open to ICESCR 2(1) as a model. It does not support India’s proposal because there is no international agreement on which economic, social and cultural rights are immediately implementable. Also, jurisprudence on this issue has not yet been codified in any treaty, and identifying articles that are immediately implementable would create rights for PWD not available to the general population.

Australia also supported a provision on progressive realization in Article 4. It sees no reason to deviate greatly from the language of CRC Article 4. Regarding identification of types of rights, Australia has made a proposal on the treaty structure that in part addresses this point by grouping the two kinds of rights in separate parts of treaty.

Senegal (on behalf of the African Group) supported the inclusion of progressive realization in Article 4, as it is a very important general obligation. The African Group also proposes referencing access to competent tribunals, as well as the need to combat cultural customs and practices that may discriminate against PWD. The text of these proposals is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da4.htm.

Canada supported New Zealand’s comments. It supports referencing progressive realization in Article 4, and the CRC language is preferable as it explicitly mentions economic, social and cultural rights. As Article 2(1) of ICESCR does not address civil and political rights it naturally does not expressly reference rights subject to progressive realization. There is no need to further distinguish civil and political rights, as this is not done in CRC Article 4. Israel’s proposal to further distinguish rights based on economic implications of their realization is a “very dangerous approach.” Canada would “strongly object to such a proposal,” as making some civil and political rights subject to an economic condition would undermine a rights-based approach here.

Thailand reiterated support for the Disability Caucus draft Article 4(2), which clearly spells out that States should give immediate effect to those aspects of economic, social and cultural rights capable of immediate implementation. It rejects arguments against this approach simply because it has not been adopted in prior instruments. There are already other concepts included in the draft text not elaborated in prior treaties. It does not support proposals to identify individual articles subject to progressive realization, as that may undermine immediate implementation of aspects of the rights capable of such.

The Coordinator asked if it is not implicit in CRC 4 that if a State undertakes such measures to the maximum extent of its available resources, that where those measures are capable of immediate implementation it should be required to do so?

Thailand is concerned that not expressly referencing the need to give immediate effect could lead to some forms of non-discrimination being subject to progressive realization.

The Coordinator asked delegates to also address the Thai proposal, namely that the language from CRC 4 be used and that there also be language specifying an affirmative obligation to give immediate effect to those aspects of economic, social and cultural rights capable of immediate implementation.

Lebanon agreed progressive realization must be included in Article 4, but would also like to see it referenced in the monitoring section. It is important not to imply that gradual implementation is an obligation per se, as this should be considered a necessity only when giving immediate effect to a right is not possible. Lebanon supports the Thai proposal. It also opposes identifying rights that can and cannot be implemented immediately, because these have not been agreed upon internationally, and whether a right can be immediately implemented is dependent upon a country’s individual circumstances. It feels the language “maximum extent of its available resources” is too limiting and may give states excuses not to actively find resources. It prefers language from the ILO, saying that “States must make adequate planning and resource allocation in order to reach the full attainment of the rights.” This language is reflected in the changes to Article 4(1)(c) proposed by the EU. Lebanon is also supportive of language based on the European Social Charter, which would state “States must take all appropriate means, both national and international in character, for the attainment of conditions in which the rights may be effectively realized.” Discussion of maximum resources also raises the issue of international cooperation which is a broad concept that should not only occur when resources are scarce.

Liechtenstein supported use of CRC Article 4 as a model. The issue of how economic, social and cultural rights are implemented here is no different than in other contexts, and language from CRC is sufficient. Specific enumeration of articles subject to progressive realization is not useful as “almost all the articles in such a convention are somewhat heterogeneous in themselves,” and there is also no clear distinction between civil and political rights and economic, social and cultural rights. A listing would risk including some aspects of rights that do not belong. It is unnecessary to reference articles which can be given immediate effect by States and is not possible because the specific circumstances of each State will differ. All obligations that States undertake have immediate effect upon ratification and this applies equally to all rights. There are caveats only in some contexts, in particular for economic, social and cultural rights, because of the issue of available resources. The CRC Article 4 reference to “maximum extent of available resources” implies that economic, social and cultural rights must be implemented immediately, except when there are not resources to do so. It does not read the language as meaning that international cooperation is only appropriate when there are not available resources. CRC Article 4 talks about international cooperation “when needed,” and it is needed not only when States do not have resources.

The Netherlands (EU) supported Australia’s comments why CRC Article 4(2) should be a model. References to “maximum extent of available resources” are preferred over “progressive realization.” Use of CRC language focuses the article and creates clarity of purpose, which is why the EU used it in its proposal. The EU supports Liechtenstein regarding listing of specific articles. Such a list would be “a dangerous path to follow” as many draft articles contain both civil and political, and economic, social and cultural rights. It does not support the Thai and Disability Caucus proposals, though it supports the concept put forward. To require giving immediate effect to certain aspects of rights is unclear. Non-discrimination has never been subject to progressive realization.

The Coordinator concurred non-discrimination is not subject to progressive realization.

China noted there has always been an “argument” whether civil and political rights or economic, social and cultural rights, are more important and pressing. There is a need to balance both categories of rights. If refer to progressive realization of economic, social and cultural rights, the same should apply to realization of civil and political rights. For developing countries like China, the realization of economic, social and cultural rights is more pressing, although realization should not be a prerequisite to realization of civil and political rights, and vice-versa. Progressive realization of both kinds of rights is equally important, and this is reflected in Article 2 of ICESCR. China also believes non-discrimination should not be subject to progressive realization.

The Coordinator noted ICESCR Article 2 does not refer to progressive realization of economic, social and cultural rights because that is what the ICESCR deals with. The ICCPR does not contain a provision on progressive realization as the rights in that covenant are not subject to progressive realization. He asked if China could clarify their statement suggesting civil and political rights are subject to progressive realization.

China stated that both categories of rights are equally important, and “if we refer to the realization of both categories there is no issue of progressive realization because both categories of rights need to be realized and we have to balance the two categories.”

The Coordinator agreed both categories of rights are equally important, and noted the proposal that the treaty distinguish between progressive realization of economic, social and cultural rights and immediate implementation of civil and political rights was not intended to be a judgment on which category of rights is more important. The distinction is intended to acknowledge which rights may practically be implemented immediately, and which may not because of resource constraints.

Yemen suggested a new chapeau to read, “States Parties undertake to take all necessary 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 disability. To this end States Parties undertake …” In 4(c) at the end of the existing sentence: “and to provide the necessary means in order to honor our obligations” should be added. Article 4(e) should move to Article 7.

Norway noted the value of a provision on progressive realization in Article 4. Language should be based on CRC Article 4. There is no need for further differentiation between rights, as Israel proposes. Norway believes the Thai proposal is “superfluous in light of the normal interpretation of Article 4 of the CRC.” It would “in no way be able to accept” the Chinese proposal that progressive realization apply to civil and political rights.

Serbia and Montenegro strongly supported inclusion of a provision on progressive realization in Article 4. It also supports language drawn from CRC Article 4. Regarding the Indian and Thai proposals on immediate implementation, it believes the phrase “to the maximum extent of available resources” already implies that if a right can be immediately implemented then it should be. It also believes enumeration of particular articles to which progressive realization applies would be too difficult and should not be done. It sympathizes with motives for the Thai and Indian proposals, but many delegations are opposed, and too much debate would unduly prolong negotiations.

Japan agreed progressive realization should be addressed in Article 4. It supports wording drawn from CRC Article 4. The Thai proposal is interesting, but it believes immediate implementation is already captured in CRC Article 4. Regarding the Israeli proposal to further differentiate rights, it agrees with Australia that there is danger this could lead to delayed implementation of certain civil and political rights for lack of resources. Although it is opposed to further differentiation between categories of rights, it would appreciate further discussion of these issues to foster a common understanding regarding what aspects of articles would be subject to progressive realization.

[Arabic speaker not identified on tape] favors inclusion of a reference to progressive realization in Article 4. The wording should be drawn from Article 2(1) of ICESCR, as that article is clearer in its coverage of international cooperation and assistance in the implementation of these rights than Article 4 of CRC. It should be possible to incorporate the Thai proposal in a separate paragraph within Article 4.

Sierra Leone opposed the Thai proposal on immediate implementation of aspects of rights. The concept of progressive realization “is an emerging concept,” and although Sierra Leone agrees with it in principle, it should not be spelt out. When looking at the needs of PWD, “the right to vote is secondary to them: they want wheelchairs and you cannot tell them that this should be achieved progressively.” The reason to draw attention to economic, social and cultural rights is not because of their progressive quality but because they are, relatively speaking, more important to PWD. Ideas of immediacy and progressiveness should be “erased” from the convention. It supports the proposals of Canada, Liechtenstein and others to use Article 4 of CRC, and also to perhaps combine the ILO language suggested by Lebanon, to produce a compromise.

Thailand appreciated responses to its proposal. It could support the CRC language if non-discrimination was not so significant. Although as the EU said, CRC language should be interpreted as exempting non-discrimination from progressive realization, the reality is often very different. It can support the CRC language if it is clarified that non-discrimination is to be immediately implemented. Thailand notes the right to vote is equally important to PWD in developing countries, especially the privacy in voting.

Costa Rica emphasized that Article 4 clearly states all matters regarding disability have to be incorporated as policies and programs in all States, thus avoiding use of expressions such as “within available resources.” Such phrases can always be interpreted as saying “if there are sufficient resources left over … then we will see if we can include persons with disabilities.” Disability should be part of State policy and always taken into consideration.

The Coordinator summarized the strong view to include in Article 4 a provision that 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.” The language is drawn from the CRC, as supported by most though some supported the ICESCR formula on the basis it better reflects the concept of international cooperation. The facilitator now has fairly clear direction on this point. Several other well supported issues also emerged. One is that there would not be progressive realization of non-discrimination. Thailand proposed specific language drawn from the Disability Caucus text, which was a formula not supported, but the concept very clearly was. There was no view that non-discrimination would be progressively realized, and there may be a need to reflect that, here on elsewhere. Another proposal with good support was Lebanon’s proposal to use the ILO language requiring that there be adequate planning and resource allocation. This relates to 4(1)(c) and should perhaps be considered there.

India noted there are differences in support for the CRC and ICESCR formulations, and a number have suggested the need to introduce the concept of progressive realization. It proposes adopting a combination of the two, keeping Article 4 of CRC as the basis, “which would cater to the legitimate concerns of developing countries.” It is estimated that 20 million in India are PWD and its resources only permit progressive realization of economic, social and cultural rights. Many other developing countries are in the same position. India thus proposes referencing progressive realization in Article 4, adding after “State Parties shall undertake such measures” the text “with a view to achieving progressively the full utilization of these rights” and the rest of article as drafted in Article 4 of CRC would remain the same. It also supports the proposal to add words to the effect of, and at an appropriate place, “with adequate planning and resource allocation.”

The Coordinator asked India whether the concept of progressive realization of economic, social and cultural rights is not implicitly covered in CRC Article 4? He noted that India had proposed language for a new Article 2 bis based on Article 4 of CRC.

India responded that although the words “to the maximum extent …” address the concept of progressive realization to a certain extent, it is not adequately covered and should be more specifically mentioned.

Thailand suggested adding “and without any form of discrimination on the grounds of disability” after “to the maximum extent of their available resources.” This would help ensure parity of PWD with other members of society in terms of enjoyment of economic, social and cultural rights. Although it would need to consult further, this amendment would help address Thailand’s concerns and it could consider using the text in CRC.

The Coordinator noted he would ask the facilitator to consider this proposed language.

Lebanon supported the Indian proposal to merge language of CRC Article 4 and ICESCR Article 2. Clearly referencing the aim to progressively achieve the rights is “absolutely necessary to be added if the CRC wording is adopted.” Together with the Thai and Indian proposals, this approach will make the objective clearer, and that progressive realization is a required means to achieve economic, social and cultural rights. It also notes that the need for progressive realization is often needed because it can take time to change societal policies of segregation to policies of inclusion.

The Coordinator asked delegations to comment on the proposal that there be specific references to progressive realization, with CRC Article 4 elaborated in that manner.

Sierra Leone noted Lebanon’s comments that progressive realization is often needed because of the time required to change policies. However, it believes the issue is largely related to cost. It accepts the general principle of progressive realization, but does not believe the concept should be emphasized or explicitly mentioned.

Canada supported a blend of CRC Article 4 and the phrase “progressive realization” or “progressively realized” from ICESCR. It would have no problems with India’s proposal to also add text such as “with a view to achieving progressively the full realization of these rights.” This would mirror the language used by the Committee on Economic, Social and Cultural Rights in its explanation of the level of obligation in Article 2(1) of ICESCR. That language would be of assistance here.

Costa Rica reiterated its position that it does not have any problems with using either the CRC or ICESCR formulations as a basis, and it views the exercise to combine the language as positive. Nevertheless it is important that the intention of States to ensure the full realization of all rights be left extremely clear. It shares some of the concerns of Sierra Leone. It also reiterates that some economic, social and cultural rights, because of their very nature, must be realized right away to the extent possible. If the Committee were to decide to include some language to clarify that commitment, Costa Rica would be satisfied. It is not yet convinced that language such as “with a view to the full realization of these rights,” is sufficient, but it is willing to be flexible.

The Coordinator confirmed that Costa Rica was agreeable to a reference to progressive realization in this paragraph. A small group of delegations have now indicated they would support such a reference. There is also the Thai proposal. Sierra Leone has raised some additional concerns about such a reference, and the Coordinator would ask Sierra Leone to talk with the other delegations to see if it is possible to deal with those concerns.

Sierra Leone noted General Comment No. 3 of the Committee on Economic Social and Cultural Rights, regarding the nature of state obligations under Article 2(1) of ICESCR. Paragraph 2 of that document should be taken into consideration.

The Coordinator noted the language proposed recognizes that different countries may vary in their capacity (particularly economic capacity) to implement economic, social and cultural rights at a particular time. Delegations appear open to expressly referencing progressive realization in this article as India had proposed with support from Lebanon, Canada, Cost Rica and others.

Thailand indicated it has no preference whether or not to expressly reference progressive realization, as long as there is scope to discuss whether certain aspects of economic, social and cultural rights will take immediate effect, including by not limited to the concept of non-discrimination.

The Netherlands (EU) stressed that although the EU is prepared to discuss the matter further, it is not yet convinced of the need to explicitly reference progressive realization in this article. The language from CRC is adequate from the perspective of the EU.

The Coordinator asked if the EU agreed that the effect of Article 4 of CRC is to implement the concept of progressive realization?

The Netherlands (EU) responded that the concept of progressive realization has been fully established by ICESCR, and there is no need to repeat general concepts already included in the International Bill of Human Rights. Although of course the concept of progressive realization is included in Article 4 of CRC, it questions the addition of language expressly referencing progressive realization. However, the EU is ready to consider the proposals, in particular language proposed by Canada.

The Coordinator indicated his understanding that what is being discussed here is not an “escape clause” for States Parties, but recognition that there are some provisions with considerable economic impact and that will require the application of considerable financial resources by States to implement them. Countries have an obligation to implement these provisions, but resources should be taken into consideration. There is an obligation for States to implement such provisions as they are able. Nevertheless there are other obligations in the convention that countries do need to implement immediately, such as non-discrimination. There does not appear to be any difference of substance here, and the question is to find the language reflect this understanding.

Cuba supported in principle the Coordinator’s comment. It is flexible as to whether to adopt the ICESCR or CRC formulation, or a combination of the two. However, it would like to clearly state that while it supports the concept that some of the rights will have to be implemented progressively, this does not imply that ratifying States are acting in bad faith in protecting and promoting the rights of PWD.

The Coordinator noted that approaches are converging. It may be concluded that there will be a provision that deals with progressive realization, and that there was reasonable support for expressly referring to this concept, although several delegations reserved their positions on that point. He then asked delegations to respond to the proposal that Article 4(1) incorporate the substance of subsequent articles dealing with promoting research and development of new technologies to facilitate inclusion. The relevant articles are 13(d), 19(2)(e), 20(c) and 21(f). These provisions are examples of overlaps to be found in the WG draft text that were inevitable given the speed with which the WG worked. There was widespread support in previous readings to incorporate the substance of these provisions in Article 4(1), to avoid repetition.

Thailand indicated it had supported inclusion of these sub-paragraphs in various articles because it wanted to have such activities recognized. However, Thailand is fully supportive of moving the contents of the provisions to Article 4(1). It has submitted a proposal on this matter: http://www.un.org/esa/socdev/enable/rights/ahc4thailand.htm. It is similar to that of New Zealand, except that it also references “including assistive technologies” and instead of “acceptable” uses “accessible to PWD.” The phrase “to the maximum extent possible” should perhaps be added after “universal design,” as specialty design will sometimes be required.

Canada noted it had been amongst the delegations that spoke out against repetition, and it is still convinced that an article that deals with general obligations should stick with those general provisions of treaty law, with more specific issues being dealt with in specific articles. That said, its main objection was to the very fact of repletion, which can lead to inconsistencies and difficulties of interpretation. In the spirit of the flexibility, Canada could live with the New Zealand proposal as an option, but otherwise would suggest keeping the specific provisions in the articles enumerated.

The Coordinator asked whether Canada was referencing the original New Zealand proposal, or Thai amendments? Canada responded it had not had opportunity to consider the Thai amendments, and at this stage preferred the New Zealand proposal.

The Netherlands (EU) agreed there is a need to address overlap, but there is a need to decide where the overlapping concepts should be placed before examining specific language. The EU questions the need to place this overlap in Draft Article 4, or elsewhere as Canada suggested. The EU had made some suggestions for placement of these concepts in Draft Article 19 (Accessibility), which will not be discussed at AHC4. Discussion of where to address issues of new technologies and universal design should occur before discussing specific language.

Costa Rica indicated it would have no problem the addressing in Article 4 the research and development of new technologies. If agreement was reached to address these issues in Article 4, Costa Rica would withdraw its proposals with regard to the provisions in the other articles the Coordinator referenced.

The Coordinator hoped it would be possible to ask the facilitator for Article 4 to come up with draft language, subject to a decision later about where that language would be placed.

AFTERNOON SESSION

ARTICLE 4: GENERAL OBLIGATIONS (Contd.)

The Coordinator reminded delegates the present discussion relates to the combining of Articles 13(d), 19(2)(e), 20(c) and 21(f), all of which address the promotion of research and development of new technologies to facilitate inclusion. There appeared to be a good deal of support for this amendment, though at least one delegation raised the issue of appropriate placement and whether revised language should appear in Article 4, or Article 19 (Accessibility), or elsewhere. At this stage the group should obtain agreement on incorporating the substance of those paragraphs in one provision, and then the facilitator could elaborate language. This language would be placed in Article 4 as a “holding provision” and could be placed elsewhere later.

Israel joined in supporting the proposal to combine the provisions, which would achieve the dual purposes of consolidating diffuse provisions, and stressing the overall importance of technological advances in favor of promotion of the human rights of PWD.

Senegal indicated it was in favor of the provisions in the text, but reserved the right to comment on proposals until after further opportunity for consultation.

The Coordinator reminded delegates that nothing is agreed until everything is agreed, and appreciated their flexibility. Guidance on combining these provisions could now go to the facilitator. The next issue for consideration is the proposal to combine provisions that address the involvement of PWD in activities and decision-making which affect them. This was a point strongly raised in the WG and reflected in a number of WG provisions, leading to some overlap and repetition. The provisions in question are: Articles 5(2)(d), 6(c), 18(c), 19(2)(g), and 21(m). Delegates are asked to consider whether the common elements of these provisions should be combined in Article 4?.

Cuba sought clarification on the order in which issues were being addressed in the informal discussions. Returning to Article 4(1), Chile believes it should be possible to integrate the issue of promotion of new technology in Article 4 in a manner general enough to cover all options later found in the text. Despite the need to synthesize and streamline, delegates should not reject the possibility of reiterating an idea, or putting promotion of an activity in another article to avoid contradictory interpretations. Cuba is willing to be flexible on placing this issue in Article 4, and perhaps also repeating it elsewhere, or to present it in a different manner adapted to the thrust of the article in question. In that context, Cuba agrees with placement of the issue of involvement of PWD in Article 4, but depending upon the disposition of other issues taken up later, reserves the right to suggest that this issue also be placed in other articles.

The Coordinator reiterated that consideration of placement of a provision in a particular article does not “close the door” to placement elsewhere in the future. Regarding the order of discussion of issues, conversation regarding Article 4 is rather discursive because the article is less focused than other. A number of proposals addressed here are not found in the Compilation document, though they are found elsewhere and relate to Article 4, such as Articles 2 bis and 3 bis. Particular provisions of Draft Article 4 will also be considered.

Canada supported the proposal to streamline and include an obligation to consult with PWD and their representative organisations in Article 4. Canada believes this is a very important general obligation that will assist in successful implementation of the treaty.

India supported the proposal and would also like “and their families where appropriate” to be incorporated in the reworded clause.

Kenya supported the proposal to merge the provisions raised. Articles 5(2)(d), 18(c) and 21(m) are already very general in the way in which they have been drafted, and the intentions in 6(c) and 19(2)(g) would be adequately captured in the general obligation that requires the involvement of PWD. For reasons given earlier, Kenya supports India’s proposal to also reference families.

The Coordinator asked delegates to respond to India’s proposal in their interventions.

Thailand supported the proposal to merge provisions addressing the involvement of PWD and place this in Article 4. However, it would like to see if there is further need to reference this concept in other specific articles. It notes that this proposal does not address the issue of inclusion of disability in development assistance and international cooperation. Thailand does not object to the Indian proposal, but considers it difficult to identify the circumstances when such consultation would be appropriate.

The Coordinator noted the Indian proposal includes the phrase “where appropriate,” and assumes consultation would be on a case by case basis.

Israel joined support for the proposal to merge the provisions relating to involvement of PWD, as this would serve the technical purpose of making the convention more compact, and the substantive purpose of making this an overall obligation that would apply to all the provisions of the convention. It supports the Indian proposal regarding families, and suggests the following text: “States Parties shall work in partnership with PWD their orgs, and where appropriate their families, in relation to all matters that including legislation, policy-making and the provision of services, concerning the implementation of this Convention at all relevant stages.”

The Coordinator thanked Israel for its proposed language and asked that it be submitted to the facilitator for Article 4.

The Netherlands (EU) indicated its support for efforts to “clean up” the text and merge provisions where possible. Many provisions could be deleted, and the EU has made numerous proposals in this regard. However, while the EU supports in principle the proposal to merge provisions regarding involvement of PWD, it would be preferable to discuss this issue in the framework of Article 25 (Monitoring), rather than Article 4.

The Coordinator indicated that the ultimate question of placement remains open, but noted several delegations have spoken in favor of addressing provisions on involvement of PWD in the article on general obligations, where such provisions could be strengthened. As noted by the EU, this issue also fits within the framework of implementation. The issue should go to the facilitator to produce draft language. Placement can be examined later when refinement of the language may be needed.

Norway stated the involvement of PWD and their representative organizations is a crucial principle for implementation of the entire convention. It supports proposals to include this concept in Article 4, as this will guide the interpretation of other articles. Regarding India’s proposal, Norway has not had sufficient time to consider it, but preliminarily thinks the treaty should focus on PWD and it is a “little bit skeptical” about the introduction of the concept of families in general obligations, though it is flexible on discussion of families in later articles.

Japan supported the proposal to merge the specified provisions in Article 4, and believes that consultation with PWD is a “guiding principle” of this convention. Japan is open to India’s proposal, but families can have a negative impact on PWD, and care should be exercised in incorporating the idea of family into the concept of consultation. Japan will study whether the language “where appropriate” would allay its concerns.

China expressed appreciation for the Coordinator’s attempts to avoid repetition, and returned to the issue of Article 4(1)(f) addressing universal design and promotion of technology. This is an important issue but may be better placed later in the text. If the issue is to be addressed in general obligations, Japan’s proposal, which gives a more generic description of the need to provide an environment where PWD can better participate in society, would be better than the current 4(1)(f).

Regarding participation of PWD and their representative organizations, China believes this is a crucial aspect of implementation of the treaty, and asserts this is China’s approach when developing laws and policies. It thus believes this element should be included in the article on general obligations, though participation of PWD should also be reflected to some degree in later articles. China is flexible regarding India’s proposal on families, though as others have noted, the treaty’s focus should be PWD. In addition, obligations regarding participation offamilies should be clear so States know when it is necessary.

Costa Rica supported the proposal to merge the cited provisions into Article 4. Although such a provision could be placed elsewhere, such as the article on monitoring, there is no more general an obligation than “nothing about us without us.” It also supports the Indian proposal, with understanding that it is participation “where appropriate.” In many countries families undertake the task of representation, either because there are no organizations representing PWD, or because families prefer this. What the provision addresses is the right of PWD to be represented either by NGOs or their families. Ultimately it will be up to the State, on the basis of information received from all groups, to take decisions and undertake all the obligations set out here.

Lebanon did not see merging the provisions as a problem, but stressed the language of the new paragraph must be examined to ensure it “will answer to the requests of the separate article where it used to happen.” Although this new provision should appear in Article 4, it is necessary to retain a reference to participation of PWD in Article 25 on monitoring. Participation of PWD should not exclude consultation with other members of civil society, such as families. Text could read “persons with disabilities, their representative organizations as well as families and civil society where appropriate.”

Mexico supported the proposal to merge provisions related to participation of PWD in crafting policy. New Zealand’s proposal is very good because it introduces the concept of “in association with PWD.” Regarding consultation with families and others, Mexico agrees with Norway and others that the focus should be on PWD, their rights, and empowering them to develop autonomously. Mexico is “reticent” to have a general obligation including families, and would prefer to reference families on a case-by-case basis in other articles. The Korean proposal from this AHC session for preambular paragraph (l), could be an appropriate basis for text in relevant articles.

Namibia supported merging of provisions into a new paragraph in Article 4, but noted the language should mirror amendments proposed in Article 18(c) by China, Peru and South Africa, which ensure that PWD are not only consulted about issues of particular concern to PWD, but also other issues of public interest.

Republic of Korea supported the proposal to merge the relevant provisions into a new paragraph in Article 4, but wished to retain the option of inserting such a provision in other articles where it would be good to emphasise the participation of PWD. Regarding references to family, care-givers and other members of civil society, the emphasis on self-representation of PWD should be retained because their opinions have not historically been well presented to society. This emphasis should not be interpreted as excluding the participation of families or other members of civil society.

Yemen supported the proposal and its inclusion in Article 4. Participation of PWD should take place in all areas, including development of legislation and programmes. It would also like to see a similar provision in Article 25. Regarding the family, Yemen does not think that Article 4 is an appropriate place for such a reference, as this convention deals with PWD and it is they and their organizations who should be participating. Not referencing families does not mean they would not be consulted.

Venezuela supported the proposal to merge these elements of participation in Article 4. It is indispensable for PWD to be able to participate in the entire process of developing policies and programs, and to promote their integration into society. In many countries programs are developed for and not by PWD. The issue of families should be addressed in this article, as many PWD, especially those with numerous or serious disabilities “cannot implement their rights regarding these issues and they need their families,” since in most cases it is the family that deals with these PWD.

New Zealand agreed that these provisions should be merged in a new paragraph in Article 4. It acknowledges the EU’s point that the provision has relevance to monitoring, but believes it is also relevant to the development of legislation, policies and programs. As noted by others, the main focus should be on PWD, which does not exclude consultation with families or others in civil society. What has yet to be noted is the need to recognize the expertise and leadership that PWD can provide.

Serbia and Montenegro supported efforts to streamline the text and the proposal to merge the provisions on participation in Article 4, and welcomed Lebanon’s comment that the provision be reexamined in future AHC sessions to ensure that issues are adequately addressed here. It finds merit in the EU proposal that participation also be addressed in Article 25. Regarding issues of the family, Serbia and Montenegro supports the comments of the EU, Canada, Norway and especially Mexico, that this is a convention primarily about PWD and that the role of family should be addressed on an article by article basis. In many countries families are also members of representative organizations, and in that respect their participation is assured. It also supports the New Zealand proposal recognizing the expertise of PWD. As colleagues in the international disability movement say, “nothing about us without us.”

Syria supported the removal of repetition, the proposal to merge provisions on participation into Article 4, and also supported the Indian proposal to reference families.

Vietnam highlighted the importance of Article 4 and that the text should be short and easy to understand. It supports inclusion of PWD and their representative organizations in implementation of the treaty. Issues of inclusion of the family are important but there must be clarity of this obligation, which could best be achieved in other articles. It supports the Thai proposal to integrate disability in economic and social development policies, programs and international cooperation. It hopes that the Secretariat will produce a revised text to assist delegations in monitoring development of the text.

Jamaica expressed appreciation for efforts to improve the structure and precision of the text, and supported bringing together similar provisions on participation. Consultation of PWD is important and PWD should have a voice in all matters concerning them. Although families and organizations are important, some PWD may not belong to an organization or have family to represent them, and in Article 4 it may be best to simply reference the consultation of PWD. There are other places in the document where it may be appropriate to reference families and organizations.

Bahrain supported the proposal to merge in Article 4 the proposals on participation. Participation of PWD, their representative organizations and families would strengthen implementation of the treaty. In addition, Bahrain would like to see participation in monitoring and follow-up added to this paragraph.

India reiterated its position that the focus of the treaty is and should be on PWD, and its full agreement that PWD and their representative organizations should be consulted. India consulted its NGOs regarding the treaty prior to AHC4. When speaking of families India does not speak of the concerns they have for themselves or intend to shift the focus to families, but instead wants to consider the need to consult families and allow them to represent PWD only in cases where PWD are not able to represent themselves. Several delegations have said that the provision does not exclude families. If this is the case then why not reference families here?

The Coordinator noted that no delegation had suggested families be excluded. Rather, the argument is that by introducing others such as families and other members of civil society, the focus on PWD is dissipated. On that point there is considerable divergence of views and it is difficult to say which way the predominance of view falls. However, a considerable number of delegations are not entirely comfortable including families on the same level as PWD. One proposal is to reference families on an article by article basis, rather than introducing it as a general obligation. The other proposal from Mexico and based on a Korean proposal is to include language on this issue in the preamble. India is invited to comment on those proposals.

India indicated its flexibility on the issue, and noted it would be happy with article by article references if they met the purpose. It would appreciate written text so it could further consider the matter. India’s concern is that there are a “large number of cases where PWD are so severely disabled that they cannot represent themselves” and it does “not feel that families will not have their best interests at heart, and they will be able to represent them adequately.”

The Coordinator thanked India for its flexibility on the matter.

Kenya reiterated its support for the proposal to include a reference to families, and supported India’s comments that such a reference does not shift the focus away from PWD. From the experience of Kenya and other developing countries, there are PWD whose voices will be cut out if families are not included. The proposal would not create rights for families, but rather preserve the rights of PWD whose needs can only be articulated by their families. Many PWD with multiple and ”severe” disabilities in Kenya have been excluded from the development of laws and policies affecting them. If families are excluded here, the rights of this section of PWD will be cut out.

The Coordinator indicated no delegation wanted to “cut out” families, and there is general recognition of the importance of families. The issue of inclusion of families will be covered as the process continues. The question is where to deal with the input of families. One proposal is to deal with this issue on article by article basis.

Costa Rica indicated it could not understand the concern that reference to families would weaken the focus of the convention. The convention is not only about PWD but also about their representative organizations and others who are of interest in the situation of PWD. India and Kenya have clearly articulated that it is often families who represent PWD and so it is important that consultation of families be a general obligation. One option could be to reference “PWD or their representatives where appropriate,” though Costa Rica would prefer a reference to families. The reference to “where appropriate” should allay the concerns of other delegations. Costa Rica has difficulty understanding how PWD can be represented by NGOs but not families.

The Coordinator noted that the concept of “representatives” is a helpful one and is a concept found in parts of the WG text, such as at the end of article 4(2), which references “representative orgs.” Clearly, there will be situations where PWD will have people representing them just as other people have others represent them. The concept of “representative” may be useful to incorporate the notion of families, and delegations are encouraged to consider this. For many delegations the question appears not to be one of excluding families, but rather seeking balance in the text. It does not appear that continued discussion at this point will further resolve the matter.

Thailand sought to clarify the concept of representation, without ruling out the Indian proposal. Regarding organizations, there are organizations “of” PWD who ar administered by PWD, and there are organizations ”for” PWD who may consist of people serving PWD who may or may not themselves be disabled. The two types of organizations cannot be put in the same category for the purposes of consultation. It is difficult to say that families can act as representatives as the family usually plays a supporting role and represents PWD only when they cannot indicate who they wish to represent them. The concept of “representation” is clear in that it must stem from the will of PWD and not consist of self-appointed representatives.

Australia supported the remarks of Costa Rica, in that it would prefer to refer to “PWD and their representatives.” Families serve as the representatives of the interests of PWD in many, but not all, cases.

The Coordinator summarized there is clearly support for incorporation of the substance of Articles 5(2)(d), 6(c), 18(c), 19(2)(g), and 21(m), into one provision, but delegates have made clear that no content should be lost in the merger. The issue of families has been more controversial, in terms of presentation if not substance. It is unlikely the facilitation group will be able to resolve this issue and it should not spend too much time on it. It may be better to examine articles individually to see if a reference to families should be included. It may also be desirable to include a preambular paragraph on this issue as suggested by Mexico drawing on the Korean proposal. Regarding placement, some have indicated a reference to families should be a general obligation, though some have also suggested that the provision be included in the implementation section.

The Netherlands (EU) reiterated its reservation regarding inclusion of the merged participation provisions in the article on general obligations.

The Coordinator noted the divergence of views on placement of such a provision, and that the position of the EU has been noted. The intention here is to have a process bringing delegates closer, and no one is precluded from opening issues later. By examining involvement of PWD in the context of Article 4, that does not preclude later placement in Article 25. The next issue is that of remedies, which is highlighted in FN 18 of the WG text. The issue is whether there should be a provision on remedies in Article 4 or in the convention as a whole. The African Group submitted a proposal on remedies in Article 4(1)(c), and there are provisions on remedies in existing treaties such as ICCPR Article 2(3), CERD Article 6, CAT Article 14.

Thailand reiterated its support for reinstatement of remedies in Article 4, which is a included in the Chair’s draft. Thailand has submitted a proposal on this, available at: http://www.un.org/esa/socdev/enable/rights/ahc4thailand.htm, and asks delegations to please consider it. Some may have reservations about including a provision on remedies because of the absence of such a provision in ICESCR. However, it believes remedies is an evolving concept and there are many economic, social and cultural rights associated with non-discrimination, and remedies should be available for the violation of these rights.

Sierra Leone noted Article 9(g) also addresses remedies. It may be better to address this issue under an article dealing specifically with issues of the rule of law, rather than under an article on general obligations. The African Charter also contains a provision on remedies and the Human Rights Commission is drafting basic principles and guidelines which address the issue of remedies.

The Coordinator noted Sierra Leone’s proposal to reference remedies in Article 9, and thanked it for highlighting the proposal on remedies submitted by Costa Rica and appearing in Article 9(g) of the Compilation document.
Senegal expressed support of the African Group for the inclusion of remedies. Although the matter is covered in other articles, the African Group attaches great importance to the concept and would prefer it included as a general obligation, though it is willing to discuss placement in other articles.

Republic of Korea supported inclusion of a remedies provision, but expressed concern that placement in general obligations could conflict with the approach in ICESCR. As the treaty will operate in association with others, it should not conflict with them.

Australia noted the previous discussions on the difference in approach to remedies in the ICCPR and ICESCR and urged caution regarding placement of an issue under general obligations that could assign rights not existing in other conventions. Australia’s proposal on structure which groups different kinds of rights could be of assistance here.

Costa Rica reiterated its position that remedies be addressed in Article 9. It supports the Chilean proposal to split 9 into two parts; one on legal capacity and one on access to justice. Remedies should appear in this second part. To include it under general obligations would “open the spectrum” beyond what was anticipated by Costa Rica when it submitted its proposal.

Israel strongly supported inclusion of remedies, for it is here that promotion of the rights of PWD often fails, and “a right without a remedy is no right at all.” Although ICESCR does not include a provision on remedies, there has been considerable development in this area. A provision on remedies should be in Article 9 and also as a general provision. It proposes adopting the language of Article 2(3) (a) and (b) of ICCPR, as well as (c) amended to read, “to ensure that the s p shall institute appropriate enforcement mechanisms in relation to the attainment of such remedies when granted.”

The Netherlands (EU) noted the various proposals and indicated that it is has yet to decide if such a provision is needed and, if so, where it should be placed. Whatever the decision, it has “serious difficulties” with proposals by the African Group and Thailand.

New Zealand associated itself with the comments of Korea and Australia. A general remedy contained in Article 4 would “pose considerable difficulties in respect of ensuring consistency between this new convention and older conventions, in particular with the ICESCR.” The treaty must not create rights for PWD that are not available to other people. Although jurisprudence has developed regarding economic, social and cultural rights, the conventions themselves do not confer a general remedy for such rights on the general population. Article 6 of CERD is not an appropriate model because it deals with the narrow issue of non-discrimination, and similarly CAT is not a good model because it offers a specific remedy for violation of a specific civil right. New Zealand is not suggesting that remedies do not exist for civil and political rights.

Canada associated itself with remarks of Korea, Australia, the Netherlands, & New Zealand. It is not useful to elaborate the right to a remedy for PWD that would not be available to others. The ICESCR does not include remedies because the rights therein are subject to progressive realization, which makes it difficult for these rights to become justiciable in a court of law. A cross-cutting convention such as the CRC does not contain a provision on remedies and that should be the case here. Canada concedes the article on unlawful detentions could be a place to include a provision on remedies if such a provision is included at all, as that right is alreay granted under ICCPR and CAT. For these reasons Canada does not support the proposals for Article 4 from the African Group, Thailand, and Israel. A reference to remedies in Article 9 bis on access to justice could be appropriate if it did not create a new right.

Serbia and Montenegro noted remedies is a significant issue, but associated itself with the cautions from Korea, Australia, the Netherlands, New Zealand and Canada. On a preliminary note it could perhaps accept the Costa Rican proposal, but only in the context of an article on access to justice.

Japan associated itself with the comments of Korea, Australia, New Zealand, Canada, and Serbia and Montenegro. It is cautious about a general obligation on remedies, as there is no comparable provision in ICESCR. However, it is not opposed to an article by article examination and mention of remedies for rights that are clearly civil and political.

Kenya joined others who stated that the mere fact a provision on remedies does not exist in ICESCR should not preclude such a general obligation here. The requirement for remedies should be considered on its merits, as the international jurisprudence is “dynamic” and develops. The treaty should enable effective enjoyment of the rights of PWD and should not become “effectively a toothless bulldog.” The treaty must allow for the possibility of people being able to claim redress where that is necessary, and it supports the Thai and African Group proposals. Actual remedies may differ depending upon whether the right is a civil and political, or economic, social and cultural right, but the principle must remain that remedies are necessary.

The Coordinator noted several delegations have stated PWD should not have rights of redress unavailable to members of the general population. However, this may be a difficult position, as some of the remedies would have to be available only to PWD. For example, a right of redress for discrimination on the basis of disability under Article 7(1) would not be available to the public at large, because they would not be discriminated against on the basis of disability. Thus, if the rights of PWD are to be effectively guaranteed for PWD, is it not a necessity that they have access to some forms of redress that would not be available to members of the general public?

Canada asserted that in the Coordinator’s hypothetical, the right that would give access to a remedy would be non-discrimination. That right is held equally by all persons, so there would be no difference in that instance between PWD and the general public.

The Coordinator queried whether it is correct to say that all persons have a right not to be discriminated against? Typically, domestic legislation prohibits discrimination on particular bases. Is there a general rule under international law that one shall not be discriminated against?

Canada noted ICCPR Article 26 provides for the right of non-discrimination, and includes a list and also “or other status.” Thus, the grounds for discrimination are open and the conduct prohibited by ICCPR Article 26 is discrimination for any reason.

The Coordinator consulted a representative of the OHCHR who confirmed the existence of a blanket prohibition against discrimination. The Coordinator expressed reservations about this prohibition, given that many countries discriminate against people with criminal convictions by denying them employment in certain positions.

Thailand noted there was some confusion regarding remedies in the WG as well. As this is a thematic convention addressing disability, if it prohibits discrimination on the basis of disability there has to be a remedy available to the person being discriminated against on these grounds. Thailand is not sure if this runs with or counter to ICESCR.

Jamaica sought clarification from delegations not in favour a provision on remedies. The argument seems to be that there are other conventions that do not include remedies and thus such a provision should not be included here. However, existing instruments have been found too general and insufficient, hence the need for a treaty specifically addressing disability. If it is also asserted that member states have domestic remedies available to address discrimination on the basis of disability, why then should this convention, not also include a provision on remedies?

The Coordinator asked if the argument is that PWD have rights not to be discriminated against under ICCPR, which includes a provision on remedies, why is it that PWD continue to be discriminated against? The WG heard numerous examples of “horrendous discrimination” against PWD. If coverage for PWD does not exist there appears to be a need to create it, and if it does exist why is it not working?

Liechtenstein sought to provide clarification. Protection against discrimination on the basis of disability is covered in ICCPR Article 26 “other status,” as accepted by the CHR. States should prevent such discrimination but often do not as they do not have adequate policies and legislation, which this treaty seeks to change. Where such discrimination occurs, whether it is in the field of economic, social and cultural rights, or civil and political rights, States are obliged to provide a remedy, as this is required by ICCPR Article 26. If a State discriminates on the basis of disability, this is grounds for a remedy on the basis of ICCPR but not ICESCR. This “gate of discrimination that leads to a remedy is a very large one” and most instances where rights of PWD are violated involve some sort of discrimination. Many are saying discrimination is the main issue of this convention, and “so in the end remedies would be available probably at large.” The Coordinator thanked Liechtenstein for its explanation.

Australia supported Canada and Lichtenstein, and reiterated its view that ICCPR Article 26 provides a prohibition against discrimination and a right to redress. Australia has no problem with remedies that flow from the ICCPR or the general prohibition against discrimination. However, to rely upon rights from ICESCR where there is no provision for remedies “would be stretching it.” It also agrees the general prohibition against discrimination does leave a “fairly wide door” to access remedies in this area.

Canada supported Liechtenstein. Although Canada has not officially endorsed the following idea, one idea might be to include a general sub-paragraph on remedies in Article 7, to make clear that it flows from the ICCPR protection against discrimination.

Thailand agreed that PWD are covered by “other status” in Article 26 of ICCPR, but is concerned that this is not very specific and could require much interpretation. This convention should try to be as specific as possible. Thailand is flexible regarding the placement of such a provision, as long as it can be applied generally.

Sierra Leone noted no delegation is against remedies, which is also captured in draft Article 10(2)(d). The issue is where to place such a provision, and it may be desirable to include a specific article on remedies, including a mechanism to provide remedies.

Australia suggested that its proposed Article 4 ter, ensuring no diminution from existing human rights (at: http://www.un.org/esa/socdev/enable/rights/ahc4australia.htm) may be helpful in resolving this issue. Australia has no objection to a strong provision on non-discrimination reiterating the provisions of ICCPR Article 26.

Lebanon reiterated its support for inclusion of a provision on remedies as a general obligation, finding support for its position in paragraph 5 of CESCR General Comment No. 3. It acknowledged caution may have to be exercised regarding the content, because of the treaty’s coverage of economic, social and cultural rights.

The Coordinator noted the strong support for inclusion of a provision on remedies, with many supporting placement in general obligations, and some suggesting placement in Articles 7 or 9. One delegation has opposed inclusion of remedies and another representing a group of countries has reserved its position for now. It seems likely that consensus will develop on inclusion of this provision. However, content will depend upon placement and with no agreement on placement at this stage it is not appropriate to develop language now. Additional issues for consideration here include the Japanese and Kenyan proposals for Article 4(1)(g). Japan’s proposal on conditions and environments may best be placed in Article 15 (Living independently and being included in the community) or 19 (Accessibility), and Kenya’s proposal on structures overseeing implementation and monitoring may be better placed in the section on monitoring?

Japan acknowledged aspects of its proposal relate to other articles, but the obligation to provide environments for PWD to live in a self-sustaining manner is a cross-cutting issue relevant whenever governments act. Inclusion in general obligations is preferred.

Kenya noted it made its proposal before the substantive article on monitoring had been proposed. It is flexible on placement, but suggests maintaining it as a general obligation that could be further elaborated in the section on monitoring.

The Coordinator thanked Japan and Kenya for their comments and flexibility. He also asked India to comment on its proposal for Article 4(1)(e) in the Compilation, and whether the concept was already adequately captured in draft Article 7(3). India indicated Article 7(3) met its requirements. The Coordinator thanked delegates for their discussion on Article 4, which will inform the work of facilitator Mr. Gustavo Ainchil (Argentina). He encouraged the facilitator’s group to use footnotes rather than square brackets, as there is a need to narrow the options at this stage, and footnotes are easier to read for many. Discussion on Article 4 was necessarily slow because it relates to general obligations and there were many proposals to consider. Later articles are more focused and should permit an expedited discussion.

The session was adjourned.

Volume 5, #7
August 31, 2004

MORNING SESSION

ARTICLE 4 INFORMAL CONSULTATIONS

The Facilitator Mr. Ainchil (Argentina) would focus the group on drafting. Flexibility is requested, with brief explanations and focusing on common ground. Discrepancies will be reflected in footnotes. The Working Group draft text is the default. The group will first address structure as reflected in the chapeau, then move to specific substantive points. Should the chapeau be long, or short with bullet points, or use the WG draft?

New Zealand asked to reserve its position on the phrase “within their jurisdiction,” which is a point it made previously. It asked the Facilitator if he might suggest specific text for a shorter chapeau for delegations to consider.

The Facilitator provided three chapeau options: [1] the WG proposal with reference to “human rights and fundamental freedoms”; [2] the New Zealand proposal of two paragraphs followed by bullet points; [3] the Mexican proposal which would read “In order to achieve the purpose of the present convention the states parties undertake,” with the reference to ensuring all human rights and fundamental freedoms appearing as one of the bullet points. A shorter chapeau would build on the Mexican proposal.

Senegal indicated the African Group’s agreement to shorten the chapeau.

Canada supported a shorter chapeau but hesitates to lose the reference to “human rights and fundamental freedoms” which is what the treaty is about. It could accept the Mexican proposal with this reference in the chapeau instead of as a bullet point. The chapeau in the Compilation could be used, including the reference.

The Facilitator inquired whether retention of human rights and fundamental freedoms in the first bullet point would be acceptable? Canada responded that the importance of keeping the reference in the chapeau is that that it is an underlying principle that informs all the other obligations. It thus prefers to retain the reference in the chapeau.

The Netherlands (EU) did not have major difficulties with the WG text, but favours concise formulations. Article 4(1) is closely related to the purpose in Article 1, the WG text for which the EU strongly supports. With a clearly articulated purpose the Facilitator’s proposal could be acceptable though it must discuss this with its group.

New Zealand supported the EU and Canada. Without agreement on Article 1 it is difficult to know the implications of the Mexican proposal here. Although it prefers concise formulations, it does not wish to see the chapeau weakened.

The Facilitator asked delegations to address the possibility of retaining the WG formulation, as not too much time should be spent here on the chapeau.

Chile did not have any problems with the WG proposal, or the reference to “jurisdiction.” It is flexible on the Facilitator’s proposal, provided it could be given a second reading.

Norway did not have major problems with the WG text, but would like to stress the nexus between this chapeau and Article 1. If Article 1 contains a strong and unequivocal formulation on ensuring all human rights and fundamental freedoms, there is room for more flexibility in this chapeau, along the lines of the Mexican proposal.

Mexico stated the aim of its proposal was to clearly reflect the aims of the convention in a manner that would be clear, strong, and agreeable to everyone. The general obligations should be brief, and consistent with the stated goals of the convention. Although many have said that they do not have problems with the WG chapeau formulation, there are “three or four square brackets which reflect duplication of discussion.” Mexico would like “both proposals to be kept consistent.”

China made two points: [1] the primary obligation of States Parties under the general obligations is to ensure the purpose of the treaty is realized. Mexico’s proposal is concise, reflects China’s, and it is a good basis for discussion. [2] although China submitted a proposal for the chapeau, it is willing to accept the Mexican proposal.

Republic of Korea expressed support for a succinct chapeau, such as the Mexican proposal. However, it prefers to preserve substantive elements in the chapeau, such as ensuring all human rights and fundamental freedoms, as noted by Canada. This could be achieved if a reference to ensuring all human rights and fundamental freedoms were included in the purpose of the convention.

The Facilitator sought reactions to combining the two proposals, saying “In order to achieve the purpose of the present Convention, States Parties undertake:” and then follow with the WG text. One footnote at “purpose” would indicate the nexus with Article 1, and another footnote reflect discussion on “jurisdiction.”

The Netherlands (EU) questioned how the article would then read and what the chapeau would then mean? For the EU the purpose of the convention is clearly the “full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities,” but it has difficulty understanding the chapeau in light of the new language. If purpose is referenced it must be clear what is being discussed, which is one of the reasons why the EU would like to know when Articles 1 and 2 will be discussed. It is difficult to talk about “purpose” or understand the chapeau if the purpose is not agreed.

New Zealand felt the combined proposals lost the intended benefits of the shorter formulation. It also shares the EU’s concerns that the purpose is not yet agreed, as well as what might then follow from the chapeau, in particular to deal with the distinction between civil, political, and economic, social and cultural rights. The desire to clearly distinguish between the types of rights led to New Zealand’s proposal on this article.

Jordan supported the need to keep the text concise. It is too early to merge proposals, without conclusion on Article 1. It has difficulty with the phrase “within their jurisdiction,” and could only agree to its inclusion if “and or under their control” were added after.

Lebanon preferred a short and concise chapeau for the reasons given by Mexico, having itself proposed that sort of wording before. Wording depends on Article 1.

The Facilitator noted the view that the first part of the chapeau should align with, either by repeating the same language or making a reference to, the purpose of the treaty. There are two options to proceed, each which will have to be adjusted in light of Article 1: [1] retain the WG text, with a footnote that it will be adjusted in line with Article 1; or [2] the Mexican proposal with the same footnote. It is understandable that delegations want “safeguards” in the text so that their concerns will be respected. The “safety valve” in this case is a footnote.

Mexico very much understood the concerns of others, and found the Facilitator’s proposed solution adequate.

The Netherlands (EU) was unclear if it correctly understood the proposal. It would not oppose putting the Mexican or other proposals in a footnote to assist discussions. Without repeating earlier arguments, it stresses this section will depend upon final text for Article 1. It would be best to keep the WG text rather than using the Mexican proposal and footnoting the WG proposal. The EU would prefer not to see numerous proposals bracketed, as it understood such issues should be addressed in footnotes.

The Facilitator clarified that the intention was not to add an additional footnote, but to have one footnote. The WG draft text footnotes would not be retained in order to streamline the text. The footnote would include a sentence saying the chapeau will later be aligned with the purpose, once Article 1 is agreed upon.

Senegal stated the African Group accepted the Facilitator’s proposal with a footnote.

The Netherlands (EU) expressed continued confusion about how the proposal would be reflected. It also noted that when the group was not drafting there were big screens displaying proposals, but now drafting has started there are no screens. The screens would be very helpful for delegates to be sure which proposals are being discussed.

The Facilitator apologized that the screens would be unavailable.

Sierra Leone noted that in the January WG meeting they worked at this level of drafting without screens. It suggested the Facilitator read his proposal again slowly.

The Facilitator thanked Sierra Leone for its suggestion. The proposal would be to keep verbatim the WG language, with one footnote after “jurisdiction” repeating more or less the WG footnote on that issue. Another footnote would appear after “disability,” saying “the content of this sentence will be adjusted to the final drafting of Article 1.” The footnote can also raise the possibility of using the Mexican proposal.

Jordan did not have major difficulties with a footnote, though its preference is not to use footnotes. It could accept the Facilitator’s proposal as long as Jordan’s proposed amendment regarding “jurisdiction” can be included in the relevant footnote.

India supported the New Zealand amendment for Article 4(1). In particular it wishes to delete “within their jurisdiction” because some countries face problems of illegal immigrants and there cannot be any obligations under this treaty for illegal immigrants.

Canada would be content with the Facilitator’s proposal. Having once proposed deletion of “within their jurisdiction” it could accept this deletion. It does not wish to see additions to the WG text. “Under their control” would introduce a concept never before used in international human rights law and opens more questions than it settles, such as what constitutes “control” over an individual by a State? As a major contributor to international peace-keeping operations it raises huge issues for Canada, and “we would not in any circumstances accept that addition to the text.” For reasons similar to India’s, it expands the scope of the treaty far beyond that in prior international human rights law.

The Facilitator asked delegates to also respond to the phrase “within their jurisdiction.”

Senegal stated the African Group preferred “jurisdiction” retained in the chapeau.

Jordan agreed with Canada that the concept of “control” is not reflected in international instruments, but case law reflects this emerging concept. It can live with deletion of “within their jurisdiction,“ but if the phrase is retained “we will insist on our amendment.”

The Facilitator noted the question of “jurisdiction” took much time in prior discussions. His perception is that “within their jurisdiction” is limiting and if other contexts are also addressed, there can be difficulties in how these additional contexts are described. Deletion of the phrase might imply coverage of all contexts, and in so doing all possibilities could be addressed. Could Senegal elaborate its position?

Senegal stated it would have to first consult the other members of the African Group.

Costa Rica accepted the Facilitator’s proposal which seems to have solid support. The phrase “within their jurisdiction” appears to be a compromise and could be too limiting given that the majority here believe international cooperation is absolutely necessary. Limiting obligations to state borders is a reflection of state sovereignty, but how that operates depends upon how state sovereignty is exercised. It supports elimination of “within their jurisdiction.”

Mexico supported the Facilitator’s proposal to use the WG text and have a footnote, but queried whether its proposed text would also be referenced in the footnote, as is done in other WG footnotes. Mexico supports the deletion of the phrase “within their jurisdiction” for reasons provided by Canada and Costa Rica.

The Facilitator indicated his intention was to include Mexico’s proposal in the footnote. There appears to be quite a lot of support for deletion of “within their jurisdiction”. He proposes deleting the phrase and, following consultations of the African Group, if that group cannot live with the deletion a footnote will be provided on the matter.

The Netherlands (EU) understood the concerns of New Zealand and the discussions of the WG regarding “within their jurisdiction.” However, it is unclear what legal obligations States Parties would be taking upon themselves if this phrase were deleted. The remaining formulation would be one not seen in any of the human rights conventions, and although it assumes interpretation of the text would be more limited, it would need to seek legal advice. The EU has reservations about further amending the chapeau language here, given that it will be revisited once agreements have been reached on Article 1. The way to proceed may be to leave the chapeau language as it is, with footnotes to reflect points made by various delegations, and revisit it in more detail later.

The Facilitator acknowledged it “does not really make sense to engage in this” if the whole sentence will be reshaped in light of Article 1. For now the text would retain the WG formulation, with one footnote indicating that the sentence will be adjusted according to Article 1, and referencing the Mexican proposal. Another footnote would incorporate WG FN 20 discussing “within their jurisdiction” and the Jordan proposal.

Sierra Leone suggested the footnote on “jurisdiction” should not merely reproduce the WG footnote but simply state that the issue was not resolved and then include the Jordanian proposal. If anyone wants to read WG FN 20 they can, but this would help reduce the size of the document.

The Facilitator indicated he would proceed in the manner suggested. The group should now move to Article 4(1)(a). Building upon the very extensive discussion yesterday, it was clear that the group should base (a) on the text of CRC Article 4, and then try to add some of the ideas discussed yesterday, such as the proposal from India.

Jordan sought clarification whether “within their jurisdiction” would be bracketed, as this would be Jordan’s preference.
The Facilitator clarified there would be a footnote, but in light of the very clear request of the Coordinator and the technical difficulties faced in reading brackets, it would not be bracketed. However, the footnote would have the same practical and political meaning usually accorded brackets in UN discussion, and he requested Jordan’s flexibility.

Senegal announced that, following consultations, the African Group would like to see “jurisdiction” retained in the chapeau. It would then like to see the language currently reflected in Article 4(1)(a) reflected instead in Article 4(1)(b).

The Facilitator thanked Senegal for its comments, which he felt would be reflected in his proposal to retain the WG chapeau language and capture concerns on this issue in a footnote. He asked the group to move to Article 4(1)(a). The general sense of the discussion yesterday was to build upon the language of CRC Article 4, though deleting “States Parties undertake” and beginning “to adopt,” in order to reflect the placement of the language in a sub paragraph. To include the elements raised yesterday by India, ICESCR Article 2(1) could be incorporated, so that after “international cooperation” in the CRC language it would read “with a view to achieving progressively the full realization of the rights recognized in the present convention.”

Thailand believed there should be a place which acknowledges that there are aspects of rights capable of immediate implementation and which should be given immediate effect. With that included Thailand can go along with the CRC text.
The Facilitator repeated his proposal following a request to do so from Senegal.

The Netherlands (EU) would prefer the CRC language in a separate paragraph 4(2), rather than in (a). At AHC3 it proposed an amendment to this language, as in the framework of this treaty it is inappropriate to speak of “implementation of the rights recognized in the present convention.” Its amendment reads “for the implementation of the present Convention.” Regarding progressive realization, it will have to take any proposal back to its group, but preliminarily suggests the ICESCR Article 2(1) language would more naturally fit after “available resources” than at the end of the paragraph.

Sierra Leone asked if it would be possible for Thailand to provide suggested language.

Canada agreed with the EU that rather than having this important language become a “sub sub paragraph” it should instead become Article 4(2). It would be content with the slight reformulation as provided by the EU. Canada seeks clarification concerning addition of ICESCR Article 2(1). Yesterday Canada proposed language reading “with a view to achieving their progressive realization,” making it clear that it refers specifically to economic, social and cultural rights. Canada is fairly flexible regarding placement of this qualification, and sees some merit in the EU proposal that the insertion follow “available resources,” though this is not something it feels strongly about.

Thailand indicated its proposal would fit with the idea of having the paragraph on economic, social and cultural rights as a separate paragraph. The language would read, “With regard to economic, social and cultural rights States Parties undertake to a) give immediate effect to the aspects of those rights which are capable of immediate implementation, including but not limited to obligations of non-discrimination in the enjoyment of those rights and b) in relation to other aspects of those rights … “ and then the CRC language would start.

Senegal stated the Facilitator’s proposal looked very interesting, but it would provide its position after consultations with the African Group.

The Facilitator noted that incorporating the CRC language in a separate paragraph would either lead to repetition of concepts currently in (a), or it could lead to a “strange flow” of concepts related to adoption of legislative and other measures, because in (a) there would be an obligation to amend laws and then some paragraphs later there would be a reference to promoting laws. He sought guidance on this issue from those delegations who expressed a preference for the CRC language in its own paragraph.

Canada did not see the difficulty described by the Facilitator. The new sub paragraph would merely clarify the extent of the obligations set out previously in sub paragraph 4(1). The placement would be appropriate and make the level of obligations clear. Regarding the Thai proposal, Canada objects to the characterization of the right not to be discriminated against as an economic, social and cultural right. The right is contained in ICCPR Article 26, and to characterize it as coming from a different source, namely the ICESCR, “would be a rather unfortunate misstatement of international law on this point” that Canada would not find particularly helpful in this context.

Mexico supported including progressive realization in a separate paragraph. Acknowledging it may not flow well, one solution would be to avoid repetition of the common elements, and begin Article 4(2), “With regard to economic, social and cultural rights.” That would still have application to all the measures listed previously in Article 4(1). Mexico understood the agreement yesterday that using the formulation and including an explicit reference to progressive realization would address the concerns of Thailand regarding division of rights that are to be immediately implemented and those not. Mexico continues to feel this separation is not necessary and as the Facilitator’s wording is appropriate it does not feel Thai proposal is necessary.

New Zealand addressed flow of the article. If the WG draft with its reference to “all” human rights and fundamental freedoms is accepted, to then in a sub paragraph qualify this with a different formula for economic, social and cultural rights seems contradictory. It is for this reason that New Zealand suggested this distinction be made earlier in the article and in a stand-alone paragraph modeled on the CRC. New Zealand’s immediate reaction to the proposal introducing progressive realization from the ICESCR into the CRC wording is that the placement of it is as the EU suggested.

The Facilitator summarized discussions. Delegations prefer to have this idea as a stand-alone paragraph. We will not repeat today the discussions from yesterday where the decision was to use CRC language and try to incorporate the idea of progressive realization. He read the suggested language for what will be called for now sub paragraph (4), with minor adjustments as suggested: “States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the present convention. With regard to economic, social and cultural rights States Parties shall undertake such measures to the maximum extent of their available resources with a view to achieving their progressive realization and where needed within the framework of international cooperation.”

Costa Rica agreed with New Zealand. The proposal as read appears to be the New Zealand proposal with progressive realization added, and Costa Rica supports this. However, if this is a point of conflict, and if there is agreement, the generic New Zealand proposal could be used, making the article easier to understand. Regarding the Thai proposal, as a measure of flexibility, there could be reference to the immediate realization of those aspects of rights that can be realized immediately. Costa Rica agrees with Canada that non-discrimination is a civil and political right, but it is also a cross-cutting right. The New Zealand proposal appears to cover all concerns raised and Costa Rica would like to know if that proposal has acceptance in the room.

The Facilitator also wanted to hear if the text is accepted prior to discussing placement.

Serbia and Montenegro preferred the CRC text and has no objection to a specific provision on progressive realization as suggested by India, with placement as suggested by the EU and New Zealand. Regarding flow, the Mexican suggestion could be helpful. The second sentence of CRC Article 4 could be placed in the chapeau to read, “States Parties undertake to ensure the full realization of all human rights and fundamental freedoms for all individuals without discrimination of any kind on the basis of disability within their jurisdiction. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources with a view to achieving their progressive realization and where needed within the framework of international cooperation.” There would then be no problem “to go along with sub paragraph (a) of 4(1).” The phrase “without discrimination of any kind” hopefully addresses the Thai concerns. The concept of immediate realization could be incorporated later, though the phrase “to the maximum extent of their available resources” already addresses this “if implemented in good faith.”

The Facilitator queried whether Serbia and Montenegro’s proposal could be incorporated at this stage, given that it is linked to the pending discussion on purpose.

The Netherlands (EU) noted that progressive realization has yet to be discussed by the EU group, but finds the Facilitator’s formula interesting, and a good basis to proceed.

New Zealand appreciated the proposal of Serbia and Montenegro, but expressed concern that the contradiction would still remain between “full realization of all human rights” and then the different formula for economic, social and cultural rights. There should be internal consistency between sentences and paragraphs. The Thai proposal raises interesting issues, and New Zealand would appreciate a written copy to consider.

Thailand could not “confidently” agree to the Facilitator’s proposal. It is not yet convinced the language captures the idea of giving immediate effect to those aspects of rights capable of such. Many delegations appear to be of the view that economic, social and cultural rights are automatically subject to progressive realization and cannot immediately implemented, but it believes some aspects of those rights are capable of such. It would be willing to submit its proposal in writing if there is a mechanism for that.

The Facilitator noted the Thai proposal is essentially captured in the Compilation document immediately before 4(2). The intention here is not to reopen discussions of yesterday, when 2 options were discussed: [1] to introduce the concept of progressive realization; or [2] to introduce the concept of giving immediate effect. As instructed by the Coordinator, the focus is on the first option, drawing on the CRC and ICESCR.

Cuba expressed satisfaction with the structure of the New Zealand proposal. It agrees with the first paragraph and the discussion just held on the WG paragraph. Perhaps some of the Mexican suggestions could also be included. It supports the treatment of CRC Article 4 and the Indian proposal to include progressive realization. This should be a separate paragraph as proposed by New Zealand. Various sub paragraph options as covered in Article 4(1) could then be considered.

Kenya supported the Facilitator’s proposal based on the CRC and including progressive realization. The language is inclusive and addresses issues of both immediate and progressive implementation. “Immediate” implementation need not be expressly stated, as this will be measured on the basis of eg when a State joins the treaty. Kenya could support this as a stand alone paragraph, but does not wish to lose concepts currently in WG Article 4(1)(a), such as addressing customs and practices inconsistent with the treaty. These concepts could perhaps be reflected elsewhere in this article.

The Facilitator clarified that 4(1)(a) has not yet been reached in the discussions.

Sierra Leone supported the Facilitator’s proposal. It suggests incorporating the idea that some rights that could be effected immediately, as proposed by Thailand. Language drawn from the Compilation document could be added, reading “to give immediate effect to those aspects of those rights that are capable of immediate implementation.” It hopes this suggestion would be acceptable to Thailand.

The Facilitator suggested this proposal could be inserted after “undertake” and then it would be followed by “and in relation to other aspects of those rights to adopt such measures … “ with the rest the same. It is very long but includes all the ideas so far.

Costa Rica suggested Sierra Leone’s proposal could be addressed by partially incorporating the Indian proposal, excluding the reference to non-discrimination which does not belong here for the reasons given by Canada. After “international cooperation” the text would read, “States Parties undertake to give immediate effect to those aspects of those rights which are capable of immediate implementation.” This qualifies the commitments of States Parties regarding economic, social and cultural rights.

Japan preferred the New Zealand text, which is concise and addresses all concerns. Although “progressive realization” is in the ICESCR, it should not be focused on here as it may give States an excuse not to realize economic, social and cultural rights. The phrase “maximum extent of available” resources should sufficiently address the Thai and Indian concerns. If progressive realization must be included the Thai proposal may need to be incorporated, though Japan’s preference is for a more concise text.

Lebanon supported the Thai proposal, but does not wish to “divide rights up” by explicitly referencing economic, social and cultural rights.

The Netherlands (EU) was concerned the discussions were moving the wrong way. It does not understand what problem is addressed in the Thai proposal and is concerned the Thai proposal is “creating a new kind of human rights law.” References to “rights capable of immediate implementation” wrongly implies that rights “have the ability to implement themselves.” Non-discrimination is also misplaced, as it is not an economic, social and cultural right. The Facilitator’s proposal covers all issues and it “does not think we should add other concepts, in particular ones which are not understandable.”

Colombia supported the Costa Rican proposal and wishes to include its proposed new Article 7 bis as a new sub paragraph of Article 4.

Thailand did not understand why the concept of immediate implementation was not readily understandable, and is willing to discuss this further. It appreciates the proposals of Sierra Leone and Costa Rica, and could accept either formulation.
Mexico clarified that in terms of structure, it prefers to see these concepts in chapeau, a separate paragraph. It is “appalled” to see yesterday’s discussions resumed. It supports the Facilitator’s proposal. It believes progressive realization implies that some aspects of rights may be implemented immediately and others gradually, and so it cannot support the Thai and similar proposals that “give us a conceptual problem.”

Australia shared concerns the paragraph is “expanding.” The CRC language is appropriate, and it agrees with Japan the additional reference to progressive realization may have “led to the desire for a counterbalancing provision in relation to immediate implementation.” The CRC language, with or without “progressive realization” is sufficient, and it is concerned about adding additional language. To determine content of this provision, understanding of the article’s structure and flow is needed. In that regard it supports the Serbia and Montenegro proposal to use the second part of the CRC text, either in the chapeau or “up top” in the article’s opening.

The Facilitator spoke to the structure; the intent would be to have these ideas in a separate paragraph. Placement could be addressed later, or the New Zealand approach could be used and the paragraph moved up, though this could generate more problems. The language would be as he read earlier: the CRC language including reference to progressive realization. After “international cooperation” a footnote would be added addressing the proposal on immediate implementation, as there is no consensus yet on this issue.

Jordan was flexible, but it does not see the necessity of emphasizing progressive realization. To address Thai concerns it may be possible to insert the language “while taking into account the immediate implementation of some rights” following “With regard to economic, social and cultural rights,” with the rest of the paragraph unchanged.

Sierra Leone suggested language for the footnote without naming delegations, to read “One delegation suggested the inclusion of a reference to those rights that are capable of immediate implementation and others disagree.” The Facilitator agreed.

Brazil supported the Facilitator’s proposal based on CRC Article 4. Although it understands concerns about immediate implementation, it agrees with Mexico that this idea is implicit in the concept of progressive realization.

The Facilitator asked to move to Article 4(1)(a), specifically addressing the possible repetition of the first 2 lines as a result of insertion of his proposal based on CRC Article 4. Some delegations have said repetition is not a problem. He proposes leaving the first line and a half as it is, then adding the EU/China proposal in the Compilation document addressing review of policies, and finding a way to incorporate the Chinese proposal related to customs, also in the Compilation document.
China expressed support for the Facilitator’s proposal, and it’s willingness to cooperate to find wording. Regarding customs, its proposal addresses the need to ban customs not in conformity with the treaty, while acknowledging that prohibiting customs related to culture and history cannot be a state obligation.

The Netherlands (EU) did not see need for repetition of concepts addressed in the CRC-based proposal just agreed. It supports inclusion of its proposal on review and amendment of laws and regulations leading to discrimination. It does not see a strong need to include the customs proposal, but could re-examine if others feel differently.

New Zealand agreed the first part of (a) is now redundant. Its proposal incorporates concepts in the EU amendment, and strengthens the provisions relating to customs by seeking to modify or abolish those inconsistent with the treaty. It is open to discussing how far the article should go in this regard.

Jordan supported the EU comments and queried whether the Chinese proposal on customs could be captured by, or better placed in Article 5.

Costa Rica preferred not to repeat in (a) that already been agreed on. Its proposal at AHC3, not captured in the Compilation, is to “adopt measures aimed at the eradication of customs or practices which prevent or make difficult the enjoyment of human rights by PWD.” This is in line with China’s proposal. It is flexible on its inclusion in Article 5, but prefer placement in general obligations, which is stronger.

The Facilitator noted in some States, customs and practices are as important as laws. From that perspective Article 5 addresses this in a different manner. He suggests merging proposals to read “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, and discourage customs or practices that are inconsistent with this convention.”

Sudan supported the Facilitator’s proposal, but suggested adding “harmful” before “customs” as not all customs are bad. It notes Trinidad and Tobago made a similar proposal in Article 5, inserting “negative” before “stereotypes.”

Kenya supported retention of customs and practices in the general obligations and not Article 5, because this is not just a matter of attitudes. “Harmful” is redundant and implied in “inconsistent.” It supports “discourage,” as State jurisdiction over customs is not a simple matter, particularly in areas with multiple communities.

Jordan supported the proposal to merge the sub paragraphs. It supports Kenya regarding “harmful.” “Discourage” is too “watered down” and “combat” is preferred.

Serbia and Montenegro associated itself with the EU and New Zealand regarding the first part of the paragraph, and supports retention of customs here. It is flexible regarding use of “discourage” or the tougher wording of New Zealand or Costa Rica.

Canada supported the proposal. The first element is addressed in the chapeau and need not be repeated. It agrees with the EU and China wording for the second element. It is flexible on the third element regarding customs, and can support the Chinese wording. The New Zealand use of “abolish” may not be appropriate because of the reasoning given by Kenya, and “discourage” may be better.

Mexico supported the proposal and avoiding repetition. It is unsure what is meant by “creating or perpetuating such discrimination” and prefers “that are inconsistent with this Convention.” It supports retention of customs in the general obligations, though this should be addressed in Article 5 as well. It is difficult to change customs, but this should not be an excuse to perpetuate customs that prevent PWD fully enjoying human rights. The language on this issue should be no less forceful than that in existing treaties, and so the New Zealand and Costa Rican language is preferred.

Syria supported the proposal. It had preferred to address customs and practices in Article 5, but in light of Kenya’s comments is flexible on inclusion in general obligations. It supports Sudan in inclusion of the qualifier “harmful,” to add clarity.

The Facilitator suggested the following text to address the delegates’ views: “To take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws or regulations and discourage harmful customs or practices that are inconsistent with this convention.”

The Netherlands (EU) appreciated the proposal but would need to study it. It is “quite hesitant” to add “harmful,” because it does not know what would be the non-harmful customs or practices inconsistent with this convention. It would appreciate examples.

Norway appreciated the proposal, but shares the EU’s concerns regarding use of “harmful.” It may not always be possible to “abolish” customs and practices, but it would prefer something stronger than “discourage” and favours “combat.”

Sudan will not insist on adding any words, but following the logic of the EU it would appreciate examples of customs or practices “inconsistent with the convention,” and to add clarity prefers to include “harmful” or “negative.”

Japan supported the proposal but suggested language such as “modify or abolish” based on CEDAW Article 2(f). It also does not support qualifiers such as “harmful,” as this could be problematic if a custom is inconsistent to some and not harmful to others.

The Facilitator suggested “To take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws or regulations and combat negative customs or practices that are inconsistent with this convention.” A footnote after “negative” would indicate concerns regarding use of qualifiers.

Jamaica noted the distinction between customary laws and customs per se. Under general obligations it could say “abolishing customary laws that are inconsistent,” with Article 5 addressing more general, attitudinal customs.

Syria supported Sudan and noted varying interpretations of “inconsistent.” Adding a qualifier such as “harmful” or the weaker “negative” could be of help, and supports the Facilitator’s footnote on this issue.

Kenya supported use of “combat” and highlighted CEDAW Article 2(f) and CRC Article 24(3) which offer alternatives for those uncomfortable with “combat.” It suggested reference to “traditional customs and practices” to address Jamaica’s concerns.