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STRUCTURE
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #1
August 23, 2004
MORNING SESSION
STRUCTURE
New Zealand summarized 6 guidelines. The draft Convention should:
1. Mirror the level of detail and style of existing human rights treaties;
2. Avoid redundancy and overlap; 3. Reflect the existing doctrine of
progressive realization of economic, social and cultural rights; 4.
Not extend the doctrine of progressive realization to civil and political
rights; 5. Be consistent with other core human rights convention; 6.
Focus on issues and rights that have particular relevance to disabled
people. Based on these guidelines New Zealand has further suggestions:
First, the current structure with divisions by thematic articles should
be maintained, and further divisions according to sub-populations of
persons with disabilities, such as women or children, should be avoided
unless it can be demonstrated that there are issues specific to those
groups that cannot be addressed in other articles. Second, the article
on Personal Mobility should be deleted and its provisions merged into
articles 4 and 15. Third, the EU proposal to merge parts of Draft Articles
4, 5 and 7 into a single Article 3 on non-discrimination has merit,
but it is essential to ensure that important ideas are not lost in the
process of condensation. The EU proposal to merge Article 6 (Data Collection)
to Draft Article 25 (Monitoring) has merit but only if it is decided
that Article 25 should contain a section on national as well as international
monitoring mechanisms. Finally, New Zealand proposed the following additional
structural changes: Article 11 should focus on the issue of informed
consent to interventions. Article 12 should focus on freedom from all
forms of violence and abuse, including torture and cruel, inhumane and
degrading treatment or punishment.
The Netherlands (EU) noted that human rights conventions
generally follow a similar structure of preamble, general provisions,
provisions on monitoring and final provisions, and the EU was generally
satisfied with the Working Group’s draft in terms of following this
structure. As far as the substantive part of the convention is concerned,
the EU will not stand by its proposal to merge Articles 4, 5 and 7.
The EU proposed replacing Article 5 (Promotion of Positive Attitudes)
as new Article 24bis. Second, the EU proposed replacing the contents
of Article 6 (Data and Statistics) and inserting it into Article 25
(Monitoring). The EU proposed replacing Article 7 (Non-discrimination)
to become new Article 3.
Canada supported both the New Zealand and EU proposals
on structure, which it indicated were quite compatible.
Chile supported the intervention by Canada. It welcomed
the New Zealand proposals and highlighted certain points raised in them.
Chile opposes a convention addressing only non-discrimination as this
is too limiting. An integral convention should specify the various rights
and also prescribe anti-discrimination measures. The importance of implementation
and follow-up must be stressed in the Convention.
Yemen supported a comprehensive structure.
Australia noted that many existing human rights instruments
are broken up into parts and proposed that the convention be broken
into five logical parts to aid its accessibility: Part 1 – Interpretive
provisions; Part 2 – General obligations and provisions; Part 3 – Provisions
relating to civil and political rights; Part 4 – Provisions relating
to economic, social and cultural rights; and Part 5 - Remaining provisions
on implementations. Such a structure would provide a logical framework,
make it easier for people to access the various provisions, and separate
out the rights that are immediately realizable from those that are progressively
realizable.
Serbia Montenegro supported the Canada and Chile proposals,
and commended those of the EU and New Zealand, which seem compatible.
It hopes that such proposals will make the convention more precise and
capable of being put into practice.
Kenya called for a structure that parallels other human
rights conventions, and urged the inclusion of as many issues of relevance
to PWD as possible as these have not been well articulated in the monitoring
mechanisms of other conventions. It supports the coverage of issues
pertaining to specific groups where possible, an attempt to define disability,
and the inclusion of national monitoring mechanisms.
China noted the interesting views put forward, including
the proposals of New Zealand. It supports some of these proposals, especially
the point about avoiding unnecessary repetition, and will further study
the others.
Mali agreed with the existing structure, but stressed
that it would insist upon an international implementing mechanism. Mali
also noted problem throughout the French translation version of the
text where the term “handicappe” was used without the term “persons”
as in the English version. Mali believes that persons with disabilities
are persons, and the inclusion of this term therefore makes a big difference.
Republic of Korea insisted that the idea of mobility
must be preserved.
Thailand supported the constructive proposals made
by New Zealand and the EU. In particular it supports the idea of disability
inclusiveness throughout the convention, especially in the area of international
cooperation. It supports strengthening the non-discrimination aspect
of the convention as frequently stressed by the EU. While willing to
work with delegations to avoid repetition it supports retaining the
concept of mobility.
Non-Governmental Organizations
WNUSP stressed that an important principle to be reflected
in the structure and content of this convention is the rejection of
any limitation, restriction or exclusion of rights of any persons with
disabilities. This convention is to promote rights and not to enshrine
disqualifications of those rights, as has been proposed in, for example,
Article 9. If governments are not in a position to fully address all
human rights under certain themes, for instance on legal capacity or
torture, WNUSP has suggested a way to address such issues without limitations
on the basis of principles. WNUSP rejects New Zealand’s proposals on
Articles 11 and 12.
South African Human Rights Institutions (on behalf of National
Human Rights Institutions) associated itself with the Australian
proposal to have five parts to the convention, which is logical and
in line with existing human rights conventions. It also supported the
New Zealand proposal, particularly with regard to repetition and redundancy.
PWDA finds the current structure to be underdeveloped,
and problematic on both the conceptual and applied levels including:
1) the blending of civil and political rights with economic, social
and cultural rights, along with so-called third generation rights which
undermines traditional distinctions between immediately realizable rights
and those subject to progressive realization; 2) the blending of preambular,
interpretive and implementation and monitoring measures with substantive
rights; and 3) the virtual absence of implementation and monitoring
mechanisms. It supports the Australian proposals.
Thailand highlighted the absence of a provision on
remedies, and hoped that this important subject would be addressed in
the Committee’s reviews of each article.
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