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Contribution by Governments

European Union

Proposed Modifications to Draft Article 7

EQUALITY AND NON-DISCRIMINATION

EU Position 4th AHC: Accept a separate article 7 and replace to become Article 3.

1. States Parties recognise that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. States Parties shall prohibit any discrimination on the basis of disability, and guarantee to all persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to all persons with disabilities equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, source or type of disability, age, or any other status.

EU Proposal: The EU proposes that references to multiple forms of discrimination should be moved to the Preamble. Therefore, the EU proposes the deletion of the last sentence in Paragraph 1.

2.

(a) Discrimination shall mean any distinction, exclusion or restriction which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by persons with disabilities, on an equal footing, of all human rights and fundamental freedoms.

(b) Discrimination shall include all forms of discrimination, including direct, indirect¹ and systemic, and shall also include discrimination based on an actual or perceived² disability.

EU Proposal: EU proposes replacing paragraph 2 (a) and (b) with the following:

“For the purpose of the present Convention, the term "discrimination on the grounds of disability" shall mean any distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise on an equal footing by persons with disabilities of all human rights and fundamental freedoms.”

a. Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the grounds of disability;

b. Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put a person having a disability at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary or unless measures are taken to eliminate that disadvantage

3. Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and the means of achieving that aim are reasonable and necessary. ³

EU Proposal: Delete Paragraph 3

4. In order to secure the right to equality for persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to provide reasonable accommodation,⁴ defined as necessary and appropriate modification and adjustments to guarantee to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.

EU Proposal: EU suggests the following rewording of Paragraph 4

4. In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to ensure that reasonable accommodation is provided; reasonable accommodation to be defined as necessary and appropriate modification and adjustments, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.

5. Special measures⁵ aimed at accelerating de facto equality of persons with disabilities shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; those measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved;

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Proposed Modifications to Draft Article 8

RIGHT TO LIFE¹

States Parties reaffirm the inherent right to life of all persons with disabilities, and shall take all necessary measures to ensure its effective enjoyment by them.²

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Proposed Modifications to Draft Article 9

EQUAL RECOGNITION AS A PERSON BEFORE THE LAW

States Parties shall:

(a) Recognise persons with disabilities as individuals with rights before the law equal to all other persons;

(b) Accept that persons with disabilities have full legal capacity on an equal basis as others¹, including in financial matters;

EU Proposal: EU suggests replacing (a) and (b) with the following paragraph:“Recognise persons with disabilities as individuals with equal rights before the law and guarantee equality before the law, without discrimination against persons with disabilities;”.

(c) ensure that where assistance is necessary to exercise that legal capacity:

(i) the assistance is proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not interfere with the legal capacity, rights and freedoms of the person;

EU Proposal: EU suggests ending paragraph (c) (i) after “their circumstances”.

(ii)relevant decisions are taken by a competent, independent and impartical authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;²

EU Proposal 4th AHC: replace paragraph (c) with Canadian language:

“2. States Parties shall ensure that where adults persons with disabilities need support to exercise their legal capacity, including assistance to understand information and to express their decisions, choices and wishes, the assistance is proportional to the degree of support required and tailored to the adult’s person’s individual circumstances.

1. Relevant decisions, inter alia on the loss or restriction of legal capacity, are taken by a competent, independent and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;

2. States Parties shall provide by law for a procedure with appropriate safeguards for the appointment of a personal representative to exercise legal capacity on the adult’s person’s behalf. Such an appointment should be guided by principles consistent with this Convention and international human rights law, including:

(a) ensuring that the appointment is proportional to the adult’s person’s degree of legal incapacity and tailored to the adult’s person’s individual circumstances; and

(b) ensuring that personal representatives take into account, to the maximum extent possible, the adult’s person’s decisions, choices and wishes.”

(d) ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information, and in communicating, have access to assistance to understand information presented to them and to express their decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses;³

EU proposal: Delete 9(d)

(e) take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit;

EU proposal: Delete 9(e)

(f) ensure that persons with disabilities are not arbitrarily deprived of their property.

EU proposal 4th AHC to renumber 9(f) into 9(4)(5)

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Proposed Modifications to Draft Article 10

LIBERTY AND SECURITY OF THE PERSON

1. States Parties shall ensure that persons with disabilities:

(a) enjoy the right to liberty and security of the person, without discrimination on the basis of disability;

(b) are not deprived of their liberty¹ unlawfully² or arbitrarily, and that any deprivation of liberty shall be in conformity with the law, and in no case shall be based on disability.³

EU proposal 4th AHC: insert “, including any involuntary institutionalisation,” after between “liberty” and “shall”, and insert “exclusively” after “be based”.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty, they are:

(a) treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs they have because of their disabilities;

EU proposal 4th AHC: insert new (b) and renumber as follows: “(b) entitled to the following minimum guarantees:”;

(b) provided with adequate information in accessible formats as to the reasons for their deprivation of liberty;

EU proposal 4th AHC: renumber current (b) as (i) and refrase as follows: ”(i) to be provided with adequate information in accessible formats as to their legal rights and the reasons for the deprivation of their liberty”.

(c) provided with prompt access to legal and other appropriate assistance to;

EU proposal 4th AHC: renumber current (c) as (ii) and insert “to be” before “provided”; finish sentence after “assistance”.

(i) challenge the lawfulness of the deprivation of their liberty before a court or other competent, independent and impartial authority (in which case, they shall be provided with a prompt decision on any such action);

EU proposal 4th AHC: renumber current (i) as (iii) and replace by ”to obtain a prompt ruling by a competent, independent and impartial court or tribunal established by law on the lawfulness of the deprivation of liberty” .

(ii) seek regular review of the deprivation of their liberty;

EU proposal 4th AHC: renumber current (ii) as (iv) and insert new paragraph (v) “to receive a fair hearing and be provided with a prompt decision on the lawfulness of the deprivation of liberty mentioned in subparagraphs (iii) and (iv) above.

(d) provided with compensation in the case of unlawful deprivation of liberty, or deprivation of liberty based on disability, contrary to this Convention.

EU Proposal: renumber current (d) as (c ) and refrase as follows: “compensated following determination by an appropriate authority that the deprivation of liberty has been unlawful.”

EU Proposal 4th AHC for Article 10 would thus read as follows:

“1. States Parties shall ensure that persons with disabilities:

(a) enjoy the right to liberty and security of the person, without discrimination on the basis of disability;

(b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty, including any involuntary institutionalisation, shall be in conformity with the law, and in no case shall be based exclusively on disability.

1. States Parties shall ensure that if persons with disabilities are deprived of their liberty, they are:

(a) treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs they have because of their disabilities;

(b) entitled to the following minimum guarantees:

i. to be provided with adequate information in accessible formats as to their legal rights and the reasons for the deprivation of their liberty;

ii. to be provided with prompt access to legal and other appropriate assistance;

iii. to obtain a prompt ruling by a competent, independent and impartial court or tribunal established by law on the lawfulness of the deprivation of liberty;

iv. to seek regular review of the deprivation of their liberty;

v. to receive a fair hearing and be provided with a prompt decision on the lawfulness of the deprivation of liberty mentioned in subparagraphs (iii) and (iv) above;

(c) compensated following determination by an appropriate authority that the deprivation of liberty has been unlawful.”

EU proposal: new paragraph 3:

i. States Parties shall accept the principle that forced institutionalisation of persons with disabilities is illegal, save in exceptional circumstances in accordance with the procedures established by law and with the application of appropriate legal safeguards.

ii. The law shall provide that in any case of forced institutionalisation of persons with disabilities, the best interests of the person concerned will be fully taken into account.

 

Proposed Modifications to Draft Article 11

FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

1. States Parties shall take all effective legislative, administrative, judicial, educational or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.

2. In particular, States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned, and shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment.¹

EU Proposal: EU suggests the deletion of “and shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment ” from Paragraph 2.

Proposed Modifications to Draft Article 12

FREEDOM FROM VIOLENCE AND ABUSE

1. States Parties recognise that persons with disabilities are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse. States Parties shall, therefore, take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse.

EU Proposal: Move the first sentence to the Preamble. Delete the word “therefore” from the second sentence.

EU Proposal 4th AHC: insert “abduction” after “abuse” in the penultimate line.
[Come back to question whether/where to insert a reference to “harassment”].
Insert “harassment” between “treatment” and “maltreatment”.

2. Such measures should prohibit, and protect persons with disabilities from, forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment, and abduction.

EU Proposal: Replace by: “States shall take the necessary measures to ensure that medical and related interventions, including corrective surgery, are not undertaken without the free and informed consent of the person concerned” (Moved and reworded from Article 21(k))

EU Proposal 4th AHC: replace by new paragraphs 2(a) and (b)2, 3, 4 and 5:

“2. (a) In particular, States Parties shall protect persons with disabilities from all forms of medical or related interventions, carried out without the free and informed consent of the person concerned. All such involuntary interventions shall be illegal, except as provided for in subparagraph (b) paragraphs 3 to 5 below.

(b)

3. Where the person lacks the capacity to give or withhold informed consent, an intervention may only be carried out where the consent of his or her legal representative or a competent court or authority has been obtained prior to the intervention.

4. However, this This shall not prejudice any such intervention necessary to prevent an imminent danger to the life or health of the person concerned or to the life or safety of others.

5. All such interventions shall be carried out in the best interest of the person concerned, in accordance with the procedures established by law and with the application of appropriate legal safeguards.”

3. States Parties shall also take all appropriate measures to prevent violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, by ensuring, inter alia, support for persons with disabilities and their families, including the provision of information.

EU Proposal: The bulk of paragraph 3 repeats the content of paragraph 1 of the Article. The EU recommends the deletion of existing paragraph 3, except for the concept of “provision of information”.

The EU suggests the following new paragraph 3:“Such measures shall include the provision of appropriate information to persons with disabilities and their families”.

EU Proposal: EU suggests the inclusion of new paragraph 3 bis.

i. States Parties shall accept the principle that forced intervention of persons with disabilities is illegal, save in exceptional circumstances in accordance with the procedures established by law and with the application of appropriate legal safeguards.

ii. The law shall provide that in any case of forced intervention of persons with disabilities, the best interests of the person concerned will be fully taken into account.

4. States Parties shall ensure that all facilities and programmes, both public and private, where persons with disabilities are placed together, separate from others, are effectively monitored to prevent the occurrence of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse.

EU Proposal 4th AHC: insert “abduction” after “abuse” in the penultimate line.
[Come back to question whether/where to insert a reference to “harassment”]. and insert “harassment” between “treatment” and “maltreatment”. Paragraph 4 will be renumbered into paragraph 6.

5. Where persons with disabilities are the victim of any form of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, States Parties shall take all appropriate measures¹ to promote their physical and psychological recovery and social reintegration.

EU Proposal 4th AHC: insert “abduction” after “abuse” in the first line. [Come back to question whether/where to insert a reference to “harassment”]. and insert “harassment” between “treatment” and “maltreatment”. Paragraph 5 will be renumbered into paragraph 7.

6. States Parties shall ensure the identification, reporting, referral, investigation, treatment and follow-up of instances of violence and abuse, and the provision, as appropriate, of protection services and, as appropriate, judicial involvement.

EU proposal: Replace "treatment" with "prosecution".

EU proposal 4th AHC: replace by “States parties shall put in place effective policies and legislation to ensure that instances of violence and abuse against persons with disability are identified, investigated and, where appropriate, prosecuted and that protection services are available in such cases”. Paragraph 6 will be renumbered into paragraph 8.

Proposed Modifications to Draft Article 13

FREEDOM OF EXPRESSION AND OPINION, AND ACCESS TO INFORMATION

States Parties shall take appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion through Braille, sign language, and other modes of communication of their choice, and to seek, receive and impart information, on an equal footing with others, including by:

EU proposal: The EU suggests the following language between “opinion” and “including by”: “through sign language, Braille and other modes and means of communication of their choice and to seek, receive and impart information, on the basis of equality”

(a) providing public information to persons with disabilities, on request, in a timely manner and without additional cost, in accessible formats and technologies of their choice, taking into account different kinds of disability;

EU Proposal: The EU suggests replacing "public" with "official”, deleting the words “of their choice”, and adding “for persons with disabilities” after “without additional cost”.

(b) accepting the use of alternative modes of communication by persons with disabilities in official interactions;

EU proposal: The EU suggests adding “and means” after “modes”.

(c) educating persons with disabilities to use alternative and augmentative communication modes;

EU proposal: The EU suggests replacing c) with the following wording: “promoting opportunities for training to use alternative communication modes and means”;

(d) undertaking and promoting the research, development and production of new technologies, including information and communication technologies, and assistive technologies, suitable for persons with disabilities;

EU Proposal: The EU suggests the following rewording; “promoting and where appropriate undertaking the research, development and production of new technologies, including information and communication technologies, and assistive technologies, suitable for persons with disabilities;”

(e) promoting other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;

(f) encouraging private entities that provide services to the general public to provide information and services in accessible and usable formats for persons with disabilities;

(g) encouraging the mass media to make their services accessible to persons with disabilities.

Proposed Modifications to Draft Article 14

RESPECT FOR PRIVACY, THE HOME AND THE FAMILY

1. 1. Persons with disabilities, including those living in institutions, shall not be subjected to arbitrary or unlawful interference with their privacy, and shall have the right to the protection of the law against such interference. States Parties to this Convention shall take effective measures to protect the privacy of the home, family, correspondence and medical records of persons with disabilities and their choice to take decisions on personal matters.

EU Proposal: The EU suggests replacing “including those living in institutions” by “regardless of their place of residence or living arrangements”. Insert "freedom of" before "choice".

The EU suggests adding “and other communications” after “correspondence” in line 5 and deleting “and” before “medical records”.

2. 2. States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage and family relations and in particular shall ensure:

(a) that persons with disabilities are not denied the equal opportunity to experience their sexuality, have sexual and other intimate relationships, and experience parenthood;

(b) (b) the right of all men and women with disabilities who are of marriageable age to marry on the basis of free and full consent of the intending spouses, and to found a family;

EU proposal: replace by ‘that the right of all men and women with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses, shall be recognised.” (based on ICCPR, Article 23(2) and 23(3)).

(c) the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights.

EU Proposal: EU suggests that sub-paragraphs (d), (e) and (f) should be included as separate paragraphs, numbered 3, 4 and 5 respectively.

(d) the rights of persons with disabilities in regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. For the purpose of guaranteeing these rights, States Parties shall render appropriate assistance to disabled parents in the performance of their child rearing responsibilities.

EU Proposal: EU suggests replacing the word “parents” with the word “persons” in the second sentence. The EU suggests adding “; in all cases the best interest of the child shall be the paramount consideration” after “national legislation” in line 4.

(e) that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The child shall not however be separated from parents with disabilities on the basis either directly or indirectly of their disability;

EU Proposal: The EU suggests deletion of the words that the word “solely” be substituted for the words “either directly or indirectly” .

(f) the promotion of awareness and the provision of information aimed at changing negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities.

Following the EU proposals, (d), (e) and (f) would read as follows:

(3) States Parties to this Convention shall ensure that there is no discrimination against persons with disabilities in regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the best interest of the child shall be the paramount consideration . States Parties shall render appropriate assistance to disabled persons in the performance of their child rearing responsibilities.

(4) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The child shall not however be separated from parents with disabilities on the basis solely of their disability;

(5) States Parties shall take appropriate measures to change negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities.

Proposed Modifications to Draft Article 15

LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY

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

EU Proposal: The EU suggests the following rewording: “States Parties shall take appropriate measures to facilitate persons with disabilities to live independently and be fully included as members of the community, including measures aimed at ensuring that:”

(a) persons with disabilities have the equal opportunity to choose their place of residence and living arrangements;

(b) persons with disabilities are not obliged to live in an institution or in a particular living arrangement

EU Proposal: Insert "Save as provided in Article 10" at end of (b)

(c) that persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance, necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

EU Proposal: Delete (c) and replace by new paragraph 2 as below

(d) community services for the general population are available on an equal basis to persons with disabilities and are responsive to their needs;

EU Proposal: The EU suggests replacing “on an equal basis” with “without discrimination”.

(e) persons with disabilities have access to information about available support services;

EU Proposal: EU suggests the inclusion of a new Article 15 (2) as follows:

“States Parties shall also take appropriate measures to promote the provision of life assistance in order to enable persons with disabilities to live independently”.

FOOTNOTES

Footnotes for Draft Article 7

1: Some members of the Working Group considered that the Convention should have a specific reference to both direct and indirect discrimination. Other members considered that the distinction between the two forms of discrimination was not sufficiently clear. They considered that both a reference to "all forms of discrimination" in paragraph 1, and the reference to the "effect" of discrimination in paragraph 2(a), would cover the concept of indirect discrimination.

2: The Ad Hoc Committee may wish to consider the scope of this term, and whether it should apply to the individual's perception of themselves, or society's perception of them.

3: This paragraph has not appeared in any of core international human rights treaties, although the concept has been developed in the jurisprudence of the treaty bodies. The Human Rights Committee has included it, for example, in its general comment on Article 26 of the International Covenant on Civil and Political Rights. The Working Group discussed three options for the consideration of the Ad Hoc Committee: 1) The paragraph should not appear in the text at all; 2) the paragraph should be included only as an exception to the specific prohibition on indirect discrimination, and 3) the paragraph should apply to all forms of discrimination. In addition to those options, some members proposed adding the following phrase to the end of the paragraph: "…and consistent with international human rights law;"

4: The Ad Hoc Committee may wish to consider the following points when considering the term ‘reasonable accommodation’:

The Working Group considered that there was a need for a concept such as ‘reasonable accommodation’ in the Convention in order to secure compliance with the principle of non discrimination.

There was widespread agreement in the Working Group on the need to keep the notion both general and flexible in order to ensure that it could be readily adapted to different sectors (e.g., employment, education, etc.) and in order to respect the diversity of legal traditions.

There was also general agreement that the process of determining what amounted to a ‘reasonable accommodation’ should be both individualised (in the sense that it should consciously address the individual’s specific need for accommodation) and interactive as between the individual and the relevant entity concerned. It was understood that an entity should not be allowed to compel an individual to accept any particular ‘reasonable accommodation’. It was also felt, however, that in situations where a range of ‘reasonable accommodations’ is available – each of which is, by definition, reasonable - that an individual did not have the right to choose the one that he or she preferred.

There was general agreement that the availability of state funding should limit the use of ‘disproportionate burden’ as a reason by employers and service providers not to provide reasonable accommodation.

Some members of the Working Group supported the proposition that a failure to ‘reasonably accommodate’ should in itself constitute discrimination, some of whom highlighted General Comment 5 of the Committee on Economic, Social and Cultural Rights as supporting this view.

Other members of the Working Group considered that the Convention should not dictate the manner by which the concept of ‘reasonable accommodation’ should be achieved or framed under relevant domestic legislation. Specifically, they took the view that it was inappropriate for an international legal instrument designed primarily to engage State responsibility to frame a failure to ‘reasonably accommodate’ on the part of private entities as a violation of the non-discrimination principle.

5: The term “special measures” is used in other international human rights treaties. The Ad Hoc Committee may wish to discuss the appropriateness of using the term in the disability context, and whether alternative terms could be used.

Footnotes for Draft Article 8

1: There were different views expressed within the Working Group as to whether the Convention should include an article on the right to life, and if so, its content.

2: In the context of the discussion on this draft Article, some members of the Working Group suggested that the Convention should contain a separate draft article on the protection of the rights of persons with disabilities in armed conflict, similar to the approach taken in Article 38(4) of the Convention on the Rights of the Child. It was also suggested that such an article could deal more broadly with the protection of the rights of groups at particular risk.

Footnotes for Draft Article 9

1: The intent of this paragraph is to acknowledge that children are not generally accepted as having full legal capacity and that neither would, therefore, children with disabilities. In terms of legal capacity, persons with disabilities should be treated without discrimination on the basis of disability.

2: Paragraph (c) allows for the provision of assistance to a disabled person to exercise their legal capacity, and is based on the assumption of full legal capacity, even if the person needs assistance in exercising that capacity. It is intended that subparagraph (c)(ii) apply only in exceptional circumstances, for which legal safeguards must be provided. The Ad Hoc Committee may wish to consider whether the paragraph is sufficiently clear, and also how best to protect persons with disabilities who cannot exercise their legal capacity. A separate paragraph may be required for this purpose. Some members of the Working Group proposed that where others are exercising legal capacity for a person with disabilities, those decisions should not interfere with the rights and freedoms of the person concerned.

3: The first part of paragraph 4 has more general application than the equal recognition of persons with disabilities as persons before the law and the Ad Hoc Committee may wish to consider its most appropriate placement in the Convention.

Footnotes for Draft Article 10

1: The jurisprudence of the Human Rights Committee (see, for example, General Comment 8) notes that States interpret deprivation of liberty too narrowly, so that it applies only to the criminal justice system. The right to liberty and security of persons, however, applies to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness or intellectual disability, vagrancy, drug addiction, educational purposes, or immigration control. The Ad Hoc Committee may wish to consider: 1) whether civil and criminal cases should be dealt with separately; 2) whether the text needs further elaboration on civil cases of deprivation of liberty; and 3) whether, for criminal cases, the clauses in this text dealing with procedural matters need strengthening (see also Article 9 of the International Covenant on Civil and Political Rights).

2: The Ad Hoc Committee may wish to discuss whether the wording of paragraph 2 does or does not prohibit civil commitment, and whether it should.

3: The Ad Hoc Committee may wish to consider adding a provision that obliges states to reform laws and procedures that perpetuate the arrest and detention of persons with disabilities on the basis of disability.

Footnotes for Draft Article 11

1: Members of the Working Group had differing opinions on whether forced intervention and forced institutionalisation should be dealt with under “Freedom from Torture”, or under “Freedom from Violence and Abuse”, or under both. Some members also considered that forced medical intervention and forced institutionalisation should be permitted in accordance with appropriate legal procedures and safeguards.

Footnotes for Draft Article 12

1: Some Working Group members suggested that this paragraph should include an explicit provision of legal remedies.